Blue Chip Casino, LLC

National Labor Relations Board - Board Decisions

Mar 31, 2004

341 N.L.R.B. 548 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
Blue Chip Casino, L.L.C., a wholly owned subsidiary
of Boyd Gaming Corporation and Delano Roy
McMillin. Case 25–CA–27856–1
March 31, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On August 16, 2002, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed a brief in response.
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 conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Blue
Chip Casino, L.L.C., a subsidiary of Boyd Gaming Cor-
poration, Michigan City, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 1(a).
“(a) Suspending, discharging, or otherwise discrimi-
nating against employees because they engage in pro-
tected, concerted activities.”

Walter Steele, Esq., for the General Counsel.
Michael Robert Lied, Esq. (Howard & Howard Attorneys,
P.C.), of Peoria, Illinois, for the Respondent.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 carefully examined the record and find no
basis for reversing the findings.
2 Member Schaumber concurs in the result reached by his col-
leagues. He agrees that McMillin engaged in certain protected con-
certed activities, the General Counsel showed that those activities were
a motivating factor in his discharge, and the Respondent failed to show
it would have discharged McMillin absent those activities. In reaching
this result, Member Schaumber does not endorse the judge’s broad
interpretation of protected concerted activities and does not rely on
every instance of protected concerted activity found by the judge.
3 We have modified the judge’s recommended Order to more closely
reflect the violations found herein.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in LaPorte, Indiana, on June 3–4, 2002. The charge
was filed October 3, 2001,1 and the complaint was issued Janu-
ary 8, 2002. The complaint alleges that Blue Chip Casino,
L.L.C., a subsidiary of Boyd Gaming Corporation (Respondent)
violated Section 8(a)(1) and (3) of the Act by suspending and
then discharging Delano Roy McMillin. Respondent filed a
timely answer that, as amended at the hearing, admitted the
allegations of the complaint concerning the filing and service of
the charge, jurisdiction, the labor organization status of the
Hotel Employees and Restaurant Employees, Local 1, a/w Res-
taurant Employees International Union, AFL–CIO (the Union),
and the supervisory and agency status of the persons named in
the complaint. The answer denied the substantive allegations
of the complaint. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the operation of a
riverboat casino and hotel located in Michigan City, Indiana,
where it annually purchases and receives goods valued in ex-
cess of $50,000 directly from points outside the State of Indi-
ana. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As indicated, Respondent operates a riverboat casino and ho-
tel. The hotel houses about 180 rooms while the casino con-
sists of three levels containing slot machines and gaming tables.
Respondent employs about 1200 persons. Jeanne Faccadio is
Respondent’s director of human resources. Eileen Siordia,
Respondent’s manager of employees’ services, reports to Fac-
cadio. Respondent maintains a progressive disciplinary system
consisting of a verbal warning, a written warning, a final writ-
ten warning, and termination. Gross misconduct, however, can
result in immediate termination. Respondent has an open door
policy by which employees can bring matters of concern to
management. It also has a procedure that employees are wel-
come to use to resolve grievances.
Del McMillin had worked for Respondent since July 7, 1998,
as a housekeeper. McMillin had earlier worked for 36 years as
a principal and guidance director in the Michigan City, Indiana
school system. As a housekeeper, McMillin vacuumed carpets,
and cleaned offices, restrooms, and slot machines. In his brief
the General Counsel says, “McMillin while very intelligent and
educated can also be seen as eccentric, and strange particularly
to his less educated co-workers.” Prior to the events described
1 All dates are in 2001 unless otherwise indicated.
341 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 549
below, McMillin had received excellent evaluations from Re-
spondent.
On February 6, a patron in the casino told McMillin that he
had lost some photographs and asked if McMillin had found
them. McMillin said no, but that he would check around with
other employees to see if they had found the photographs.
McMillin then approached Jimmy Sheets, a security guard, and
asked him to use his radio to check with dispatch to see if they
had the photographs. McMillin felt Sheets resented his request
and appeared unhelpful. Sheets answered that he would talk to
the patron after he completed the task he was working on.
Sheets then assisted another employee in escorting the transfer
of money. Once involved in monitoring the transfer of money,
security officers are not allowed to be distracted until the trans-
fer is complete, but McMillin was apparently not aware of this
policy or was not aware that Sheets was escorting money.
McMillin then left the area and continued to attempt to locate
the lost photographs. McMillin came back to the casino area
and noticed that the patron was still waiting there. McMillin
then approached Sheets and asked if Sheets had radioed dis-
patch. McMillin then asked why Sheets had not done so earlier
so that the customer would not have to be standing there.2
Sheets, who testified that McMillin was “in his face” at that
time, answered that he had been busy.3 This incident was the
start of what now is a Federal case.
Sheets then approached housekeepers Freda Johnson and
Nancy Williams. Sheets was angry. He told Johnson and Wil-
liams that he wanted to talk to their supervisor because McMil-
lin was getting on his nerves. Johnson asked what happened
and Sheets said that McMillin had been bothering him about
some pictures, that he did not understand why McMillin kept
bothering him, and that he had things to do. Williams testified
that Sheets said that if McMillin did not leave him alone he was
going to kick his ass and that he did not care if he lost his job.
Johnson testified that she did not hear this statement because
she (Johnson) became distracted while Sheets continued talking
with Williams. However, as seen below, Johnson later signed a
statement indicating that she too had heard Sheets’ remarks in
this regard. In any event, Williams then called Kathy Willis,
Respondent’s casino housekeeping manager, told her about the
situation, and asked her to come to the pilothouse. At the hear-
ing Sheets was asked whether he had made any sort of threats
against McMillin. He testified: “To my knowledge, no. I’m
not a violent person. I had no intentions of hurting anyone.
He’s done nothing really to me to have me in any way harm
him.”4 Willis then came to the pilothouse and talked to

2 McMillin explained that according to Respondent’s handbook, em-
ployees were not to leave customers waiting for long periods of time.
3 These facts are based on a composite of McMillin’s and Sheets’
testimony. I credit McMillin’s testimony that he did not follow Sheets
around but left the area between the two conversations. I credit Sheets’
testimony that he was involved in monitoring the transfer of money
when McMillin first approached him. I conclude both that McMillin
felt that Sheets had resented his inquiry and appeared unhelpful from
his perspective and Sheets’ perceived that McMillin had been too ag-
gressive in insisting that Sheets assist him at once.
4 I purposefully do not resolve the issue of whether or not Sheets ac-
tually threatened to kick McMillin’s ass. As will be seen below, it is
McMillin. Sheets then provided a statement of his encounter
with McMillin, contending that McMillin had gotten in his face
because he refused to be distracted while escorting money.
Sheets’ statement did not cover what he said to Williams and
Johnson after the encounter with McMillin.
About 20 minutes after his encounter with Sheets, McMillin
was summoned to Willis’ office. Together they went to the
pilothouse where Captain Christopher Glaser and Mate Ed
Schmidt were present. Glaser asked McMillin what was going
on between McMillin and Sheets. McMillin asked what Glaser
meant. Glaser said that McMillin had gotten in the face of the
security guard. McMillin asked to have a witness present but
Schmidt responded that they would be McMillin’s witness.
McMillin said that he would protest that decision. Willis then
explained that the guard said that McMillin had gotten in his
face and had hounded him. McMillin denied this. Willis told
McMillin that he could not follow a security guard and that the
guard could not call and ask about photographs because secu-
rity could not stop at that moment and take care of every little
thing that the housekeepers asked. McMillin took this as a
reprimand. He told Willis that he had been going by the hand-
book that said that employees are to take ownership of an issue
until the issue is resolved. He denied that he was rude to
Sheets. Glaser said that McMillin was not being written up for
the incident. McMillin said that he did not see why he was
being accused when he did not do it. He asked if someone was
going to talk to Sheets. Glaser said that it was not for McMillin
to know because that was an internal matter. McMillin asked if
he could show them where he and Sheets had been when the
incident occurred and he started to stand up. He was told to sit
down. As he was sitting down Glaser said that he was done
and McMillin could leave.5 Willis conceded at the hearing that
she gave McMillin a verbal counseling at this meeting and that
it was the first step in the progressive disciplinary system.
Pursuant to Respondent’s open door policy, McMillin ar-
ranged a meeting with Michael Driggs, Respondent’s general
manager on February 22. McMillin explained that he felt that
no one believed him. Driggs said that because of union consid-
erations the matter should be taken up with human resources.
On about March 3, McMillin took up the matter with Fac-
cadio. He complained that Willis had unfairly treated him in
the pilothouse after the incident. He explained that he felt that
the guard had filed a false report. Faccadio told McMillin that
she would look into the matter. Faccadio then discussed the
incident with Willis, Sheets, and others and determined that
McMillin had behaved inappropriately in approaching Sheets
and that Willis had merely counseled McMillin about the inci-
dent. Faccadio explained that counseling was not a form of

enough for purposes of this decision that McMillin later came to be-
lieve that Sheets had done so and that Respondent later asserted that
Sheets had not done so.
5 These facts are based on a composite of the credible portions of
McMillin’s and Willis’ testimony. I have credited Willis’ testimony
that she did not raise her voice when speaking to McMillin. I have
considered Glaser’s testimony that McMillin did not ask for a witness.
I do not credit that testimony because neither Schmidt nor Willis cor-
roborated that testimony. In any event, I conclude that McMillin was
well aware of his ability to request a witness and did so regularly.

BLUE CHIP CASINO 550
discipline. After Faccadio completed her investigation of the
incident one of the deckhands, Ladonna Latiker, appeared at
her office and complained that McMillin had repeatedly “bad-
mouthed” the deckhand employees by saying that they were a
lazy bunch of workers who just stood around and did not work.
Latiker testified that she decided to complain to Faccadio after
an incident in the lunchroom where McMillin was showing
employees receipts and claiming that he was a millionaire and
had so much money in one bank and so much in another bank.
She told McMillin at that time that no one wanted to hear what
he was saying and McMillin responded that he was not talking
to her but to others at the lunch table. They then exchanged
words concerning whether or not McMillin was talking to her.6
McMillin denied such an encounter but described another inci-
dent when he was talking with another employee and Latiker
kept muttering under her breath that McMillin was a trouble-
maker. McMillin then told Latiker that he was not talking to
her.
On March 8, McMillin called Faccadio and asked about the
status of his complaint. Faccadio told him that now an em-
ployee had filed a complaint against him and that she was in-
vestigating the matter.
Latiker then filed a written complaint against McMillin that
reads:

This has been an ongoing issue for some time now. Dell
makes comments saying those deckhands are so lazy, they do
nothing and I do all the work around here. Deckhands are
good for nothings. Why don’t the deckhands do some kind of
work, are they afraid they’re gonna dirty up those nice blue
uniforms? Why do the deckhands have to use my cleaning
supplies, these are my cleaning tools and they’re just for us
housekeepers. You deckhands are so stupid and useful (sic).
If there’re any small problems such as a loose rack, he turns
something small into something huge and raises a big fuss
about the deckhands are so slow and stupid, and we can’t get
anything right if it’s not done as rapidly as he would like.
Dell complains that the deckhands are sorry individuals and
are a waste of company money. Dell argues every point and
makes notes of almost everything and tries to force his views
and beliefs on other employees. Dell uses slandering state-
ments to mistreat others, as well as trying to destroy character
and self esteem.

At trial, Latiker recounted an incident where there was a spill
and McMillin went to get a mop bucket from the housekeepers’
closet only to discover that there was none because a deckhand
had taken it. McMillin became angry and stated that the deck-
hands ought to use their own supplies.7 Latiker described this
as her biggest problem with McMillin.

6 I do not credit Latiker’s testimony that McMillin told her to shut up
and sit down, that she was stupid, and that she was worthless. Based on
my observation of the demeanor of the witnesses and weighed against
the record as a whole, I conclude that her testimony in this regard is
exaggerated.
7 McMillin explained that housekeepers and deckhands each had
their own closet that they were to keep stocked with supplies from the
general storeroom. He said that deckhands would take supplies from
On March 13, McMillin again met with Faccadio; Williams
came along as his witness. McMillin had two or three pages of
notes he had made to make an oral presentation to Faccadio.
He began making the presentation but Faccadio interrupted and
said that she was not going to hear anymore about the security
guard incident. She said that she had concluded that Sheets
would not have filed a false report. Faccadio then said that she
had received a complaint from Latiker that claimed that McMil-
lin had said that the deckhands were lazy, were not worth a
damn, and were sorry. McMillin denied making those remarks.
McMillin claimed that the only reason Latiker would make
those claims was because McMillin had asked one of the deck-
hands to stop taking supplies from the housekeepers’ closet and
instead to use the supplies in the deckhands closet. At the hear-
ing in this case McMillin denied that he ever called the deck-
hands lazy or said that they were good for nothing.8 Faccadio
assigned Debbie Varnak, human relations manager, the task of
looking into the complaint against McMillin.
On March 16, McMillin was talking to Johnson and Wil-
liams about the security guard incident that had occurred on
February 6. They told McMillin that Sheets had said on that
occasion that they better get a supervisor down there because if
McMillin got in his face one more time, he was going to kick
McMillin’s ass and leave McMillin lying on the floor.9
McMillin asked if Williams and Johnson would sign a state-
ment to that effect. On March 20, Williams and Johnson left
the facility and traveled to a notary where they signed a nota-
rized statement prepared by McMillin that read:

We, Nancy Williams and Freda Johnson, witnesses, hereby
declare that on February 6, 2001, we were present and heard
Security Officer Jim Sheets make the following statement re-
garding Housekeeper employee Del McMillin: If Del comes
in my face one more God damn time, I’m going to kick his
ass and leave him laying in the floor because I don’t give a
God damn about my job.

Meanwhile, during this same time period McMillin prepared
a petition that read:

Since the preponderance of inter-departmental disputes be-
tween Housekeepers and employees of other departments
have been decided in favor of other departments, we, the un-
dersigned Housekeepers, believe that there are sufficient
grounds to establish that Housekeepers are not being treated
by Blue Chip with parity with other department employees
and are being subjected to disparate treatment impact as de-
fined by OFCCP.

McMillin showed Williams, Johnson, and Gwendolyn Range,
another housekeeper, the petition and asked them to read it and
sign. They declined to sign the petition.

the housekeepers’ closet and then when there was an emergency the
supplies would not be in the closet.
8 I find it unnecessary to resolve whether McMillin actually dispar-
aged the deckhands; it suffices that Respondent concluded that McMil-
lin had done so.
9 It will be recalled that, as set forth above, Johnson testified that she
became distracted and did not hear the entire conversation.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 551
In March,10 McMillin also asked the other housekeepers on
the first shift if they wanted to meet at a nearby facility to dis-
cuss how to improve working conditions. He reserved a room
for that purpose. He solicited the employees in the lunchroom
during lunchtime. Range was one of the employees that
McMillin invited. She testified that while on lunchbreak in the
lunchroom McMillin asked her and other employees if they
would meet with him at a nearby pub. She testified that
McMillin later again asked if she was going to the meeting.
Range did not go to the meeting. Instead, she told Captain
Christopher Ketterer that McMillin was asking them to meet
with him to talk some things over. Ketterer asked her what for,
and Range replied that she did not know. Ketterer then asked
what she wanted him to do and she said she wanted him to tell
McMillin to quit asking her to go because she did not want to
go. Ketterer asked if she wanted to write a statement on the
matter and Range said that she did not because if McMillin
asked her again she would return and tell Ketterer. Range
never talked to Ketterer again about this matter.11 McMillin
also asked Williams to sign the petition described above con-
cerning unfair treatment of the housekeepers. He asked her to
meet in a nearby restaurant to discuss the matter. At some
point Williams told Mate Ed Schmidt that she was getting a
little fed up with McMillin bothering her with the “same stuff.”
She told Schmidt that McMillin was trying to get together with
the housekeepers to form a better situation for them. Schmidt
said that he would take care of it.
Meanwhile, McMillin also submitted himself to a polygraph
test in order to support the credibility of his statements.
On March 26, First Mate David Wade explained Respon-
dent’s new guest service policy to McMillin and fellow house-
keepers Williams and Range. The policy, in part, instructed the
housekeepers to convey concerns raised by patrons to certain
other employees. Wade asked if they had any questions and
McMillin said that the problem was that when he tried to pass
along patron concerns to slot persons and servers they would
answer that McMillin was not their boss. McMillin asked if
anyone had talked to them about the policy. Wade answered
that he had already indicated that those issues were being ad-
dressed on a departmental level. Wade felt that Williams and
Range were uncomfortable and asked if they had any questions.
When they said no, he allowed them to leave. He continued the
discussion with McMillin. Wade again said McMillin’s issues
were being addressed but McMillin persisted that he was not
being heard. At some point McMillin said that the officers
acted like they were a king or master race. McMillin said that
it was like the Germans during World War II and he felt like a
Jew.12 Wade asked if McMillin was accusing him of being a
racist and McMillin said no. McMillin explained that he was

10 Contrary to the General Counsel’s assertion in his brief that these
events occurred in January, I credit McMillin’s testimony that they
occurred in March.
11 These facts are based primarily on the version of this conversation
that Range gave in response to my questions.
12 McMillin admitted that he made reference to a king and master
race; he denied that he said anything about Germans or Jews. Based on
my observation of the demeanor of the witnesses, I do not credit that
denial.
just making references. Wade asked if McMillin wanted to
discuss the matter with human relations and McMillin said no.
Wade said that if McMillin were so unhappy working there that
he could quit.
Later that same day McMillin walked over to where Wil-
liams, Range, and Elizabeth Martin, another housekeeper, were
sitting in the lunchroom and asked if they were willing to be a
witness for him when he took his grievance to the next higher
step. Martin said that she was not interested and Williams said
that the matter was already over. McMillin later returned to
their table and attempted to show them that the matter was not
over because the handbook permitted him to take his grievance
on further. The women replied that they did not care about it.
McMillin returned yet a third time and attempted to talk about
Weingarten13 rights. They again declined to get involved.
During the course of these discussions McMillin made state-
ments to the effect that management can break one finger, but
not a whole hand and that the employees may be the next in
Mike Driggs’ office. Later that day Williams signed an em-
ployee statement that complained that McMillin was “really
getting on some of the girls’ nerves.” The statement described
how the employees were on lunchbreak and McMillin kept
running back and forth to their table. She described how
McMillin wanted someone to go with him to see Mike Driggs
concerning a matter that they felt had already been dropped.
She complained that McMillin kept pushing his issues on eve-
ryone, that they did not feel the same about those issues, and
that McMillin would get mad. She explained that this has been
going on since the meeting with Faccadio on March 13, and she
was tired of McMillin trying to pressure her. Williams testified
that because she was a union steward, employees complained to
her about McMillin.
In a statement prepared that day, Ketterer described the
events of that day as follows:

Housekeeping Supv. Kathie Willis reported to Mate
David Wade and myself that a few of the housekeepers were
uncomfortable with some actions Del McMillin was taking
toward them. At the time I decided to speak with housekeep-
ers who were feeling uncomfortable. I asked housekeeper
Gwen Range to come to the pilothouse to discuss the situa-
tion. Gwen informed me that on numerous occasions Del had
made her feel uneasy. She stated that while she was at lunch
today with Nancy Williams and Elizabeth Martin, Del came
over to their table and asked one of them to go to a meeting in
Mike Driggs’ office with him. I was told that the ladies all re-
plied that they weren’t interested in going to this meeting. A
few minutes later, Del came back over to the table and asked
the ladies again to come with him stating that they all needed
to stand together to get things done. She stated that he said
something to the effect of, they can break one finger, but not a
whole hand. Gwen stated that she felt intimidated by Del’s
language in that several times he told her that she may be the
next one in court, or the next one in Mike Driggs’ office if she
did not agree with him. Again a few minutes later, Del came
over to their table again and Gwen said that she got up and
13 NLRB v. Weingarten, 420 U.S. 251 (1974).

BLUE CHIP CASINO 552
left the table without finishing her lunch because she did not
want to be bothered on her lunch break. On another occasion,
Gwen stated that Del had also been attempting to pass a peti-
tion amongst the housekeepers, but she stated that she did not
know what it was pertaining too (sic) and did not sign it.
Gwen said that he also was pressuring her to attend a meeting
outside work that she was not able to attend due to a medical
situation in her family. She stated that Del was very upset
with her that she did not attend this meeting.
I asked Gwen if she wanted to make a written state-
ment about what happened, and she replied that she did
not want to at this time. She added that if a similar situa-
tion arises again she would make a statement. I then
called Nancy Williams to the pilothouse to discuss the
various incidents regarding Del. She stated that she had
been having several problems with him. I discussed the
situation with her and asked her to make a statement per-
taining to her dealings with Del. Her statement is included
with this corrective action form. I was unable to speak
with Elizabeth Martin before she left at the end of her
shift. She is scheduled off for the next two days and I will
try to contact her at home.

Still later that same day McMillin encountered Wade and
asked if it was in accord with Respondent’s open door policy if
an employee raises a sincere work-related matter and manage-
ment responds by telling the employee that he should resign if
he is not happy. McMillin emphatically showed Wade the
portion of the handbook dealing with Respondent’s open door
policy.14 Wade invited McMillin to discuss the matter with
human resources. Ketterer overheard the conversation and
asked them to come to his desk. Ketterer said that he had a
complaint that McMillin had been too insistent in trying to get
witnesses. McMillin replied that he was just practicing his
Weingarten rights. Ketterer said that he did not want McMillin
doing that any more;15 McMillin said okay. McMillin repeated
his earlier statement about the Germans and feeling like a Jew.
McMillin raised his voice during this meeting.16 Wade replied
that he thought this remark was racist and at this point that he
called human relations. Wade then announced that Faccadio
wanted to talk to them. They went to Faccadio’s office, where
Faccadio then told McMillin that he was suspended. In the
same statement prepared that day, Ketterer described the events
as follows:

At the end of the shift, Del came to the pilothouse and asked
Mate David Wade for a copy of the employee handbook,
which David provided him. He then turned to page 25 and
read the statement pertaining to the zero tolerance policy for

14 I do not credit Wade’s testimony that he felt threatened by McMil-
lin’s this conduct. Based on my observation of his demeanor, I con-
clude that this testimony is exaggerated.
15 The General Counsel does not allege that this statement violated
the Act.
16 At the hearing McMillin denied that he had raised his voice during
his conversation with Ketterer and Wade. I do not credit that testi-
mony. Ketterer testified that McMillin was “kind of ranting and rav-
ing.” I do not credit that testimony either. Instead, I conclude that
McMillin had raised his voice in this conversation.
managers or supervisors who interfere with the use of the
open door policy. He said that he twice now has been told
that if he does not like it here he can resign. I informed him
that his statement was not preventing him from using the open
door policy, rather he was stating that if he thought the treat-
ment that he was receiving here, and the conditions he works
under, are that difficult for him that maybe this was not the
right position for him. Mate David then suggested that we use
the open door policy at this time and go to Human Resources
to discuss his concerns. Del stated that he did not want to go
to Human Resources. At this time, Del began to raise his
voice saying that he was being treated unfairly. Mate David
called Human Resources to update Deb Varnak of the situa-
tion. I explained to Del that we should go to HR since he was
inferring that we did not want him to use the open door pol-
icy. I then asked Del to take a seat and began to address some
of the concerns that had been brought to my attention earlier
during the day. I informed him of the complaints that I had
received earlier that day. He acknowledged that he had done
this, and stated that he would not let i[t] happen again. Mate
David then told Del that we could go to HR to discuss his
concerns. Again Del said that he did not want to go to HR.
Del spoke to Deb Varnak on the phone and then went along
with myself to a meeting in Jeanne Faccadio’s office. Once in
Jeanne’s office, I reviewed the situation as described above
for both Jeanne Faccadio and Annette Corbett. I also pre-
sented Jeanne with a copy of Nancy Williams’ statement. Af-
ter reviewing the statement, and discussing the situation with
Del and I it was determined that Del would be suspended
while an investigation was conducted.17

Ketterer then prepared a “corrective action notice” for
McMillin on which Ketterer wrote:

Inappropriate actions toward co-workers and raising his voice
while speaking to Mate David Wade and Capt. Chris Ketterer.
This corrective action is a final warning and any continuance
of this conduct will result in termination.
The notice indicated that McMillin had been counseled con-
cerning the security guard incident on February 6. Ketterer
admitted that the reference to “inappropriate actions toward co-
workers” pertained to McMillin’s efforts in the lunchroom to
try and get employees to attend the meeting. He knew from the
employees that McMillin wanted them to go with him and meet
with the general manager, to be a witness, and to meet with
McMillin outside the premises. He gathered from the state-
ments of the employees that McMillin wanted them to be to-
gether in dealing with management. He explained that it was
inappropriate for McMillin, once he was told no by the em-
ployees, to come back 5 minutes later, and do it again; that
when the employees said that they did not want to talk about it
McMillin kept coming back. The General Counsel asked Fac-
cadio whether the language in the notice “Inappropriate actions
toward co-workers” referred to McMillin’s attempts to have the
three employees serve as a witness concerning his complaint
against the security guard. Faccadio answered “All I know is
17 The General Counsel does not allege that this suspension violated
the Act because it is outside the 10(b) period.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 553
that we had more (than) three employees raise complaints
against [McMillin] because they considered he was harassing
them in the employee cafeteria by badgering them to go do
something with him that they didn’t want to participate in.”
When asked why Respondent did not issue McMillin a written
warning first before firing him, Faccadio testified that in cases
of gross misconduct, progressive discipline is not followed.
She characterized the March 26 suspension as resulting from
gross misconduct. She explained that McMillin was being
given a chance when he was suspended for the incident as op-
posed to being terminated.
On March 29, Elizabeth Martin provided Ketterer with a
statement that read:

On Sunday I was sitting in the lunchroom and Del came up to
ask me if I would go with him to sit in on a case he has and I
said no. He got upset about it and kept coming back. I do not
want to be involved with what he is doing. But if you tell him
no he just keeps coming back and putting papers in your face
and says read this. I just would like Del to keep his comments
to himself and just leave me alone about things unless it has to
do with work.

Meanwhile, on March 26, Varnak prepared a written report
of her investigation concerning whether McMillin had made
disparaging remarks about the deckhands. Her report indicated
that one employee reported that McMillin frequently made
negative remarks about the deckhands, but he did not take those
remarks seriously. A deckhand said that she never heard
McMillin make negative remarks. She explained that others
had said that McMillin made such remarks but she had never
heard them. She also explained that McMillin had been her
teacher in high school and never did anything to bother her.
Another deckhand said that McMillin regularly made negative
remarks about the deckhands. He stated that McMillin com-
plains when deckhands remove items from the housekeeping
closet instead of using their own closet. This deckhand stated
that McMillin had been much nicer over the past few weeks
and that he had been McMillin’s student in high school also. A
third deckhand said that McMillin had regularly made negative
remarks about deckhands such as they do not work hard enough
or are lazy. Faccadio reviewed this report before McMillin was
suspended again on April 7. Based on the report she concluded
that McMillin had lied to her earlier when he had denied mak-
ing derogatory remarks about the deck hands. She testified that
she confronted McMillin with the report and that McMillin lied
again when he denied making those remarks.
While serving the March 26 suspension McMillin sent Fac-
cadio two certified letters. The first read:

The purpose of this letter is to notify Blue Chip Casino’s Di-
rector of Human Resources Jeanne Faccadio that I, Delano
McMillin, am concerned about my physical safety at the Blue
Chip Casino because I have been informed by notarized
statements of witnesses that Security Officer Jim Sheets has
threatened to do bodily harm to me. I need the assurance of
the Blue Chip Casino that when I return to work that Blue
Chip Casino will fulfill its fiduciary responsibility to provide a
work place safe from work place violence.

The second letter discussed in detail why McMillin was con-
cerned about the statements that Sheets had allegedly made. In
that letter McMillin stated that Sheets’ “words felt very real to
me.” McMillin returned to work on April 2.
On April 7, McMillin met with Captain Glaser and Mate
Schmidt. He handed them a copy of the notarized statement
that Williams and Johnson had signed concerning the remarks
that Sheets had made after the February 6 incident, except that
he redacted their names. McMillin explained that he did so in
an effort to protect them from retaliation. Glaser made a copy
of the statement. Glaser asked if McMillin pressured the em-
ployees to sign the statement; McMillin said no. Schmidt ex-
amined the statement and said that he could tell that the em-
ployees signing the statement were Johnson and Williams de-
spite the attempted redaction. Schmidt asked McMillin why he
did not just drop the matter. McMillin answered that he was
trying to clear his name; that was what a person does in a slan-
der or defamation case. He gave an example of General West-
moreland during the Vietnam War. Schmidt replied that
McMillin was not Westmoreland and this was not the Vietnam
War. Schmidt said that if McMillin did not stop this, some-
thing worse was going to happen to him.18
About 20 minutes later McMillin was summoned back to the
pilothouse. Willis was with Glaser and Schmidt this time.
McMillin asked for a witness and Glaser said that he and Willis
would be his witness. McMillin protested. They then said that
McMillin was suspended. The documents concerning this sus-
pension indicate only that McMillin was suspended pending
investigation.19 Faccadio testified that she decided to issue this
suspension because of a “combination of things that were hap-
pening with Del involving the dishonesty, the insubordination,
the harassment, just the ongoing inappropriate behavior with
him.”
On April 10, Respondent terminated McMillin. Faccadio
and Siordia met with McMillin and his witness. Faccadio
asked him for the names of the employees who had signed the
notarized statement. McMillin said that he preferred not to give
them until he reached the top level of the procedure. Faccadio
testified that she told McMillin that he was terminated for ly-
ing, harassing, and being insubordinate. McMillin said that he
had taken a polygraph test and offered to supply it to her.20

18 The General Counsel does not contend that this statement violated
the Act.
19 These facts are again based on McMillin’s testimony. I have con-
sidered Glaser’ testimony that he had been advised the day before to
bring McMillin to human resources so that he could be suspended and
despite seeing McMillin that morning he had forgotten to bring him to
human resources at that time, that Schmidt did not say that something
worse would happen to McMillin if he did not drop the matter, and that
McMillin did not ask for a witness to be present. Based on my obser-
vation of the demeanor of the witnesses I do not credit that testimony.
20 In its brief Respondent contends that I erred in admitting the poly-
graph results into evidence. I reject this contention. I accepted the
polygraph results only as a document proffered by McMillin to Re-
spondent, but not as substantive evidence. I have given no weight to
the substance of the polygraph results in this decision. Respondent also
argues that I erred in receiving GC p. 16 on the grounds that it was
cumulative, self-serving; and as being a calculated effort by McMillin
to create evidence. I again disagree. This document also was not re-

BLUE CHIP CASINO 554
Faccadio declined. The termination documents indicate that
McMillin was discharged for misconduct. The written com-
ments indicate “falsification & misconduct.” Faccadio testified
that the misconduct was insubordination and harassment of his
coworkers.
On April 17, McMillin met with General Manager Driggs.
McMillin gave him a copy of the notarized statement with
nothing redacted. He also attempted to present the results of
his polygraph test. Driggs interrupted and said that he had
decided to sustain Faccadio’s decision to terminate him. None-
theless Faccadio investigated the matter. During that investiga-
tion, Johnson signed a statement that read:

The day of Feb. 6 the sec. officer came and ask me and Nancy
where were [sic] our boss at and we told them she was some
where on the floor. He said then I need to talk to her. I said to
him about what. He said about one of the housekeepers Del.
I asked him then what did Del do. He said that he keep com-
ing up to me about some pictures a man lost did I find them. I
said no. He (illegible) in a few min. He had come back again
and asked me the same thing. I told him then that I was tired
of this shit. He told him leave along [sic]. He asked if I find
Cathy then said he look for her instead. He said because he
ain’t going to be messing with me. I am sick of that shit.
Then I told him I said you look really mad said I am cause I
am trying to do my job ain’t got time for that shit. I don’t re-
member him threatening him. I felt bad for Del at the time
because he was going through this and yes I told him I would
sign but I only signed because I know what I heard him say.

Faccadio testified that during her investigation of McMillin’s
claim that he had been threatened by Sheets, she spoke with
Williams. Faccadio claimed Williams said that she signed the
statement indicating that Sheets made the threat “(t)o get
[McMillin] off of my back.” Yet Williams consistently testi-
fied that Sheets had, in fact, made those remarks and reiterated
them in a statement provided to Faccadio on April 17. I do not
credit Faccadio’s testimony in this regard. At some point
Sheets was asked to provide a statement concerning the claim
that he had threatened McMillin. He wrote:

As far as ever threatening him, I don’t recall ever doing so,
and if I said something to anyone that sounded threatening
toward him I can’t recall that either. In conclusion I thought
this issue was done and over with and never wanted any trou-
ble with this man nor get him in any trouble.

McMillin availed himself of the final step Respondent’s appeal
procedure. That procedure allows an employee to present his
case to the general manager and then have his case heard by a
panel of his peers. This panel then acts much like an arbitrator.
On May 8, McMillin appeared before the panel, but his appeal
was denied.
Respondent contends that McMillin was terminated for a
combination of insubordination and dishonesty. It described
the nature of the insubordination as, “[i]n large part, refusing to
let other employees alone after they had expressed that they did

ceived as substantive evidence but instead to rebut Respondent’s im-
plied assertion that McMillin’s testimony had been recently fabricated.
not want to get involved with Mr. McMillin.” Faccadio testi-
fied that she decided to fire McMillin because he kept lying to
her. She stated that he lied to her concerning the deckhands,
about harassing the housekeepers, about the workplace violence
because he had not heard that directly from Sheets. She also
stated that she terminated him in part because of:

a continued method on his part to persist in a matter that could
have been dropped the first time out and then, when he
brought in about the lady at the end, he had some kind of a
notarized or subpoena form, and he had blackened out the
name. I said ‘Del,’ and he presented a whole new set of facts
to me at that point. I said ‘Del, if you give me the name, I will
investigate or reinvestigate,’ and he refused to give me the
name. That is interfering with an investigation on top of the
number of times he had lied to me already. The decision was
made he was an inappropriate employees and no longer could
work at Blue Chip.

At an unemployment compensation hearing that followed
McMillin’s termination, Respondent, through Ketterer and
Siordio, took the position that McMillin was terminated be-
cause he continued to ask his fellow employees to attend meet-
ings and to act as a witness in meetings with management.
They made no mention of insubordination, lying, or any other
reason.
McMillin also filed a claim with the Indiana Civil Rights
Commission alleging that he had been fired because of a dis-
ability.
Regarding the allegation that McMillin was terminated be-
cause of his union activities, the parties stipulated that the Un-
ion was certified in July 2000, and that a contract was reached
in September 2001. However, contrary to that stipulation Fac-
cadio testified that Respondent agreed to a card check in March
2000 with the Union. That card check occurred on July 26,
2000, and Respondent then recognized the Union pursuant to
that card check and that at some later point the parties reached a
collective-bargaining agreement. The General Counsel acqui-
esced to this testimony. McMillin testified that he supported
the Union and talked to employees informally and told them
that he thought the Union was a good idea and the dues they
paid were worth the benefits that they would receive. This
occurred sometime in late 1999 or 2000. McMillin conceded
that he was not an organizer for the Union. In around March he
wore a 3-inch button that read “No Contract Yet.” Mate David
Wade told him to take off the button and he did. McMillin
wore the button for about an hour and did not wear it again
after Wade’s instruction. Faccadio testified without contradic-
tion that the Union agreed to waive the right of employees to
wear buttons and that when a contract was reached employees
were permitted to wear union buttons but only of a certain size.
She testified that the button that McMillin wore was bigger
than what the Union had agreed to in negotiations. Faccadio
credibly testified that she had no knowledge that McMillin had
been an active union supporter.
III. ANALYSIS
The General Counsel alleges that McMillin was fired be-
cause he engaged in protected, concerted activity as defined in

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 555
Section 7 of the Act. In Meyers Industries, 268 NLRB 493
(1984) (Meyers I), the Board explained that activity is con-
certed if engaged in, with, or on the authority of other employ-
ees, and not solely by and on behalf of the employee himself.
Id. at 497. In Meyers Industries (Meyers II), 281 NLRB 882
(1986), the Board stated that for individual activity to be con-
certed it must be designed to initiate or induce or to prepare for
group action or must concern truly group complaints. The
Board has long held, with court approval, that concerted activ-
ity may consist solely of a speaker and a listener, so long as the
speaker is seeking to induce group action. This is so because
such activity is viewed as an indispensable first step to em-
ployee group activity. Mushroom Transportation Co. v. NLRB,
330 F.2d 683 (3d. Cir. 1964). Under this standard, McMillin’s
efforts to get fellow workers to sign the petition about the al-
legedly unfair treatment of housekeepers constitute concerted
activity. His efforts to persuade employees to attend a meeting
outside of the workplace to discuss working conditions likewise
are concerted activity. His efforts to persuade employees to
appear as a witness on his behalf in his encounters with super-
visors is also concerted activity, as were his attempts to inform
employees of their Weingarten rights. McMillin’s successful
efforts to have employees sign the statement concerning
Sheets’ alleged threat also is concerted activity since it was
group activity designed to support McMillin’s expressed con-
cern of workplace violence. The conveyance of that group
activity to management was likewise concerted activity. I also
conclude that McMillin’s request to management that he be
permitted to procure a witness during his meetings with man-
agement also is concerted activity because it was designed to
induce group activity.21 Respondent argues that McMillin’s
activity concerning the encounter with Sheets was not con-
certed but simply a personal effort to “clear his name.” But the
short answer is that he solicited other employees to assist him
in that effort, sometimes successfully, often not. It is this con-
duct that I conclude is concerted.
Although McMillin’s March 26 suspension is not alleged to
be unlawful because of the Act’s 6-month statute of limitations,
the General Counsel argues that this suspension sheds light on
the motive of McMillin’s subsequent suspension and termina-
tion. I therefore examine that suspension. As described above,
the corrective action notice for this suspension indicated that
McMillin was suspended for “Inappropriate actions toward co-
workers and raising his voice while speaking to Mate David
Wade and Capt. Chris Ketterer.” Ketterer admitted that the
reference to “inappropriate actions toward co-workers” per-
tained to McMillin’s efforts in the lunchroom to try and get
employees to attend the meeting. He knew from the employees
that McMillin wanted them to go with him and meet with the
general manager, to be a witness, and to meet with McMillin
outside the premises. He gathered from the statements of the

21 The General Counsel urges me to rely on Epilepsy Foundation,
331 NLRB 676 (2000). I find it unnecessary to rely on that case be-
cause the General Counsel has not alleged that Respondent violated the
Act by refusing to allow McMillin to have a witness. I conclude only
that McMillin’s request was concerted activity; I do not decide whether
or not Respondent had to grant that request.
employees that McMillin wanted them to be together in dealing
with management. He explained that it was inappropriate for
McMillin, once he was told no by the employees, to come back
5 minutes later and do it again; that when the employees said
that they did not want to talk about it McMillin kept coming
back. Faccadio also admitted that McMillin was suspended
because of his efforts to get employees to participate with him
on matters dealing with working conditions.22 Respondent’s
position at the unemployment compensation hearing further
supports this conclusion.
Respondent argues that McMillin’s activity lost the protec-
tion of the Act because his “harassing and overly persistent
manner,” citing Patrick Industries, 318 NLRB 245 (1995), and
NLRB v. General Indicator Corp., 707 F.2d 279, 282 (7th Cir.
1983). I disagree. McMillin’s activities took place during
nonworking time. McMillin was indeed persistent in his efforts
to have the employees sign the petition, meet outside work to
address workplace concerns, and have an employee join him in
his meeting with management. However, McMillin’s level of
persistent did not exceed the bounds of protected conduct.
Respondent points out how McMillin solicited employees dur-
ing their lunchtime on three occasions in rapid succession to
serve as his witness. However, each instance of solicitation had
a different purpose. McMillin first asked if the employees
would serve as a witness. The response was that the matter was
over. McMillin returned later with a copy of the appeals pro-
cedure to demonstrate that the matter was not over because he
could appeal. He was again rebuffed. He returned later to
explain the Weingarten case to the employees. This conduct
does not exceed the bounds of protected conduct. Respondent
points out that the employees were subjectively annoyed or
angered by McMillin’s conduct. But the standard for assessing
whether conduct remains protected under the Act is an objec-
tive standard, Consolidated Deisel Co., 332 NLRB 1019
(2000), and I have concluded that McMillin’s conduct remained
protected under that standard. The Act designs a system where
employees decide for themselves whether to engage in con-
certed activity. As part of that system it is necessary that dis-
cussion among employees and attempts to persuade be robust
and vigorous. A necessary consequence of such robust discus-
sion is that some employees may feel annoyed or otherwise
upset by the efforts to persuade them. But employees may have
to endure some level of annoyance if the Act’s goals are to be
achieved. Nor did the manner in which McMillin exercise his
rights exceed the bounds of proper conduct. There is no

22 At another point in her testimony Faccadio testified that she did
not know what McMillin was asking the housekeepers. She testified
that she could not remember whether she asked McMillin what he was
asking the housekeepers to do. I do not credit Faccadio’s testimony on
this matter.

BLUE CHIP CASINO 556
evidence of any threats or intimidation.23 Respondent next
argues that the employees complained and that it was obligated
to act under its harassment policy. However, Respondent may
not use its harassment policy to nullify the rights of employees
protected by the Act. Consolidated Deisel, id. I conclude that
the concerted activity that McMillin engaged in was protected
under the Act.
In determining whether an employee has been disciplined
because of his concerted activity, the General Counsel must
show that the employer knew of the concerted nature of the
activity. Meyers II, supra. From the testimony of Ketterer and
Faccadio described above as well as other testimony set forth
above, I conclude that Respondent was well aware of the con-
certed nature of McMillin’s activity. Indeed, the testimony of
Ketterer and Faccadio also amounts to an admission by Re-
spondent that it suspended McMillin, in part, because of the
concerted activity. Of course, Respondent also asserts that it
disciplined McMillin in part because he had raised his voice in
the meeting with Wade and Ketterer. At this point the burden
shifting analysis in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
requires that Respondent show that it would have suspended
McMillin in any event for raising his voice during the meeting
with Ketterer and Wade.24 Respondent is required to show not
that it may have suspended McMillin for that conduct, but that
it would have done so. But the record is barren of evidence that
Respondent routinely suspends employees for raising their
voices during discussions of grievances with management. In
its brief Respondent also contends that McMillin was insubor-
dinate not only by raising his voice but by making “racially
insensitive remarks” in obvious reference to McMillin’s state-
ment concerning Germans and Jews. I reject this contention.
The disciplinary notice states: “Inappropriate actions toward
co-workers and raising his voice while speaking to Mate David
Wade and Capt. Chris Ketterer.” (Emphasis supplied.) It
makes no mention of the content McMillin’s remarks and I
conclude that this is first of several attempts by Respondent to
create after-the-fact arguments to strengthen its case. I thus
conclude that Respondent’s suspension of McMillin on March
26 was motivated in substantial part by his protected concerted
activities and that this conclusion sheds light on the motive for
the suspension and termination that followed quickly thereafter.
I now address the matter of McMillin’s suspension on April
7, and his termination on April 10. During the time between
the March 26 and April 7 suspensions three matters of conse-
quence occurred. First, Varnak issued an investigative report

23 McMillin’s comments to the effect that a hand is stronger than a
single finger was simply an attempt to persuade the employees that
collective action may be more effective than individual action. The
Supreme Court has described concerted activity as an effort to “equal-
ize the bargaining power of the employee with that of the employer by
allowing employees to band together in confronting an employer re-
garding the terms and conditions of their employment. NLRB v. City
Disposal, 465 U.S. 822 (1984).
24 I find it unnecessary to decide whether McMillin’s conduct in that
meeting itself constituted concerted activity and whether raising his
voice fell within an acceptable part of that activity. See Thor Power
Tool, 351 F.2d 284 (7th Cir. 1965).
from which Faccadio concluded that McMillin had in fact dis-
paraged the deckhands. Next, Martin gave a statement con-
firming that McMillin had asked her to be a witness for him in
his dealings with management. Finally, McMillin asserted that
Sheets had verbally made threats directed at him and claimed to
have a notarized statement signed by witnesses. Faccadio ex-
plained that she decided to again suspend McMillin because of
a “combination of things that were happening with Del involv-
ing the dishonesty, the insubordination, the harassment, just the
ongoing inappropriate behavior with him.” I have already con-
cluded above that “harassment” referred to McMillin’s conduct
that was concerted activity protected by the Act. Martin’s
statement only served to reinforce that conclusion. I therefore
conclude that the General Counsel has established his initial
burden of showing that the April 7 suspension was motivated in
substantial part by McMillin’s protected concerted activities.

The burden now shifts to Respondent to show that it would
have again suspended McMillin in any event, apart from his
protected concerted conduct. Respondent claims that McMillin
was disciplined for dishonesty. The dishonesty, Respondent
contends, consisted of several instances. First, relying on Fac-
cadio’s testimony, Respondent claims that McMillin was dis-
honest when he claimed that Sheets had directly threatened
him. The problem with that contention is McMillin never made
such an assertion. Indeed, his letter to Faccadio said clearly: “I
have been informed by notarized statements of witnesses that
Security Officer Jim Sheets has threatened to do bodily harm to
me.” I do not credit Faccadio’s testimony in this regard. In
fact, this assertion is so weak that it leads me to conclude that it
was created after the fact for no other reason than to attempt to
strengthen Respondent’s case. Second, Respondent argues in
its brief that McMillin was dishonest when he claimed that he
had been “excoriated” by Willis on February 6. It is difficult to
see how this remark qualifies as “dishonesty.” Obviously,
McMillin genuinely felt he had been disciplined in some fash-
ion by Willis’ remarks. The incident with Willis did, in fact,
occur. The fact that many people would not characterize
Willis’ remarks as “excoriation” does not negate the fact that
McMillin may have subjectively perceived it as such. In any
event, Respondent has not shown any instance where it has
considered similar remarks as “dishonesty” meriting disci-
pline.25 Respondent next argues in its brief that McMillin was
“dishonest” about harassing other employees. However, I have
concluded above that this conduct did not constitute harassment
but was instead protected, concerted activity. Respondent’s
argument in this regard only serves to strengthen the case
against it. Finally, Respondent argues that McMillin was dis-
honest when he denied having made disparaging remarks about
the deckhands. Respondent, citing 6 West Limited Corp. v.
25 In its brief Respondent notes that pursuant to subpoena it provided
the General Counsel with the disciplinary records of 42 employees yet
the General Counsel introduced into evidence the records of only 13 of
those employees. Respondent argues that I should infer that remaining
29 disciplinary records support its position. I make no such inference
because it can be also be argued that if the records supported Respon-
dent’s position it would have offered them into evidence and therefore
a negative inference should be drawn against Respondent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 557
NLRB, 237 F.3d 767 (7th Cir. 2001), argues that it is entitled to
be strict in the manner that it handles dishonest employees.
Indeed it may. But Respondent has failed to show that it has
been “strict” in this regard. More precisely, Respondent has
failed to show that when employees present differing versions
of an event, it makes a credibility determination and then disci-
plines the employee not based on the underlying event, but
instead disciplines the employee against whom it has made its
credibility resolution for dishonesty. That is what Respondent
asserts it did in this case yet it has failed to show the existence
of such a policy. Respondent argues that it has met its burden
when it introduced into evidence a list of employees and super-
visors who had “dishonesty” listed as the reason for termina-
tion. But Respondent failed to define what it means by “dis-
honesty.” Without such a definition the mere listing is of little
use in assessing whether Respondent would have terminated
McMillin for the type of “dishonesty” that he was accused of.
In fact, the General Counsel introduced the disciplinary records
of some of the individuals on Respondent’s list to support his
case. As an example, take the record of George Plantiga, one
of the persons listed as having been terminated for dishonesty.
Plantiga was hired August 18, 1997. A year later, after Re-
spondent concluded that he had falsified his employment appli-
cation he was not fired for “dishonesty” but was merely sus-
pended. In July 2000, surveillance caught Plantiga finding a
wallet in the employees’ smoke room. Plantiga did not turn the
wallet into security. For this conduct Plantiga received a writ-
ten warning. In March 2001, Plantiga received another written
warning for “Failure to maintain the highest degree of service
and courtesy . . . with co-workers and guests.” That warning
indicated that earlier that year Plantiga was counseled for “Dis-
respectful comments or conduct toward anyone . . . .” In Sep-
tember that same year Plantiga received a final warning for
same misconduct. In November Plantiga was suspended for a
number of reasons, including the same reason that he had ear-
lier been warned about. On November 12, 2001, Plantiga was
fired for “Stealing company time.” No further explanation is
provided in the record. Respondent points to the record of Cor-
nell Irby, listed as having been terminated for dishonesty and
whose record was also introduced by the General Counsel. Irby
was hired in July 1997. In March 1998 he, like McMillin, had a
“verbal and attitude conflict with fellow employee Donna
Latiker.” For this he received a verbal warning. In May 2000,
Irby was suspended pending an investigation to determine if he
should be fired for allegations of sexual harassment. In July
that same year he was again suspended for the identical reason.
On July 13, 2001, after McMillin had been fired, Irby too was
fired. The records indicate that he was fired for sexual harass-
ment, but Faccadio added on the form “& lying during an in-
vestigation.” Irby’s record adds little to Respondent’s case. In
fact, to the contrary, it shows that when another employee had a
run-in with Latiker, that employee was only given a verbal
warning. At the hearing Faccadio testified that two of the listed
individuals were terminated because they “lied during the in-
vestigation.” But even this testimony falls short of the specific-
ity needed to compare their discipline with McMillins. Re-
member, the burden is on Respondent at this point of the legal
analysis. I conclude that Respondent has failed to show that it
would have suspended McMillin for “dishonesty” even in the
absence of his protected, concerted activity.
Next, Respondent argues that McMillin was suspended on
April 7 because of insubordination. Yet McMillin had just
served a 3-day suspension due, in part, to his alleged insubordi-
nation and Respondent points to no additional acts of insubor-
dination during the short period of time that McMillin had re-
turned. Of course, as described above when McMillin returned
to work he continued to press his grievance against Sheets and
presented Respondent with the notarized statement of the two
supporting employees and Schmidt warned that if he did not
stop this, something worse was going to happen to him. But
McMillin’s conduct, because it involved the support of two
employees, constituted concerted activity protected by the Act.
Thus, Respondent could not lawfully require McMillin to desist
from such concerted conduct. Rather, this evidence tends to
support the conclusion that McMillin was suspended on April 7
because he engaged in protected, concerted activity.
Finally, Respondent contends that McMillin would have
been suspended in any event because it concluded that he made
disparaging remarks about the deckhands. However, Respon-
dent’s burden at this point is more than simply pointing to mis-
conduct; it must show that it would have taken the same disci-
pline based on the misconduct. Respondent points again to the
list of names of employees and supervisors it introduced into
evidence. That list gives the names of nine individuals and
indicates that the reason they were terminated was “Talking
badly to or making disparaging comments to co-workers.” But
this evidence is simply not specific enough to meet Respon-
dent’s burden. I conclude that Respondent has not shown that
it would have suspended McMillin on April 7 even in the ab-
sence of his protected activity. It follows that by suspending
McMillin on April 7 because he engaged in protected, con-
certed activity, Respondent violated Section 8(a)(1).
McMillin was terminated on April 10. Little had changed
since he was unlawfully suspended on April 7. Immediately
before his termination McMillin indicated to Faccadio that he
still intended to pursue the concern of his workplace safety,
supported by other employees. Faccadio asked for the names
of the employees, but McMillin declined, stating that he pre-
ferred to give the names at a higher level of the grievance pro-
cedure. I have already concluded that McMillin was engaged
in protected, concerted activity by pursuing this matter in that
manner that he had. Respondent now asserts that a reason that
McMillin was terminated was because he obstructed the inves-
tigation of his own grievance by refusing to provide the names
of the witnesses. This argument does not withstand scrutiny. I
have concluded above that McMillin apparently had not done a
good job redacting those names because Schmidt was able to
accurately determine the names of the two employees who had
signed the notarized statement. Thus, Respondent had the in-
formation it needed to do the investigation. Importantly, Re-
spondent has failed to show that it has a policy of terminating
employees who fail to give the names of witnesses to events.
In any event, based on my observation of Faccadio’s demeanor,
I do not credit her testimony on this contention and conclude
that it was another afterthought. By terminating McMillin on
April 10, Respondent violated Section 8(a)(1).

BLUE CHIP CASINO 558
Finally, I address the General Counsel’s contention that
McMillin’s suspension and termination also violated Section
8(a)(3) of the Act. I again use the Wright Line framework. The
General Counsel has established that McMillin engaged in
union activity when he wore the “no contract yet” button on
one occasion. However, this hardly set McMillin apart as a
leading supporter of the Union. The General Counsel has
shown that Respondent was aware of that activity by virtue of
the fact that Schmidt told McMillin to remove the button. The
General Counsel relies on Schmidt’s statement as evidence of
animus. However, the record in this case does not allow me to
make that conclusion. This is so because there is unrebutted
testimony that the Union agreed that employees could wear
buttons of only a certain size and McMillin’s button exceeded
that size. Although the record is not clear when that agreement
was reached, it is the General Counsel’s burden to establish
animus and this record evidence is not sufficiently persuasive.
This is especially so because McMillin compliantly removed
the button when instructed to do so and did not wear it again.
Also militating against a finding of animus is the fact that Re-
spondent apparently voluntarily recognized the Union after a
card check and then entered into a collective-bargaining agree-
ment with the Union. I also note that the element of timing
does not support the General Counsel’s case. Under these cir-
cumstances I conclude that the General Counsel has not met his
initial burden and I shall dismiss that allegation of the com-
plaint.
CONCLUSION OF LAW
By suspending and then terminating Delano McMillin be-
cause he engaged in protected, concerted activity, Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
The Respondent having discriminatorily suspended and dis-
charged Delano McMillin, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to 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).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, Blue Chip Casino, L.L.C., a subsidiary of
Boyd Gaming Corporation, Michigan City, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(a) Discharging or otherwise discriminating against employ-
ees because they engage in protected, concerted activities.
(b) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Delano
McMillin 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 previ-
ously enjoyed.
(b) Make McMillin whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge,
and within 3 days thereafter notify McMillin in writing that this
has been done and that the suspension and discharge will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records 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) Post at its facility in Michigan City, Indiana, copies of the
attached notice marked “Appendix.”27 Copies of the notice, on
forms provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
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 Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since April 7, 2001.
(f) 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 inso-
far as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
27 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 559
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT suspend, discharge, or otherwise discriminate
against any of you for engaging in protected, concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Delano McMillin 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 privi-
leges previously enjoyed.
WE WILL make Delano McMillin whole for any loss of earn-
ings and other benefits resulting from his suspension and dis-
charge, 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 unlawful suspension
and discharge of Delano McMillin, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that
the suspension and discharge will not be used against him in
any way.

BLUE CHIP CASINO, L.L.C., A WHOLLY OWNED
SUBSIDIARY OF BOYD GAMING CORPORATION