Foxwoods Resort Casino

National Labor Relations Board - Administrative Judge Opinions

Mar 11, 2008

34-RC-002230 (N.L.R.B. Mar. 11, 2008)

JD(NY)–09-08
Norwich, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FOXWOODS RESORT CASINO
Employer
and Case No. 34-RC-2230
INTERNATIONAL UNION, UAW, AFL-CIO
Petitioner
and
STATE OF CONNECTICUT
Intervenor
William E. O’Connor, Esq.,
Counsel for the Regional Director
Thomas W. Meiklejohn, Esq. and
Elizabeth A. Conklin, Esq., Counsel
for the Union
Richard B. Hankins, Esq., Alston Correll, Esq.,
Keith M. Harper, Esq. and Betsy Conway, Esq.,
Counsel for the Employer
DECISION ON OBJECTIONS
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Hartford, CT in
January 15, 16, 17, 23, 24, 28 and 29, 2008.
The Petition in this case was filed by the Union on September 28, 2007. Pursuant to a
Decision and Direction of Election issued on October 24, 2007, an election was conducted on
November 24, 2007. Of approximately 2,629 eligible voters, 1,289 voted for the Petitioner, 852
voted against union representation and 36 ballots were challenged. (About 472 people did not
vote). As the challenges were insufficient to affect the results of the election, a majority of the
valid votes counted were in favor of the Union. The bargaining/voting unit is:
All full-time and regular part-time licensed dealers employed by the Employer at its
Connecticut Casino, including poker dealers, table game dealers, and dual rate
dealers; but excluding all other employees, office clerical employees, and guards,
professional employees and supervisors as defined in the Act.
On December 3, 2007, the Employer filed Objections to the election and on December
21, 2007, the Regional Director issued a Supplemental Decision on Objections and Notice of
Hearing. On January 16, 2008, the Board issued an Order rejecting the Employer’s appeal of
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those objections that had been overruled by the Regional Director.1 In pertinent part, the
Director overruled Objections 1 and 4 and sent the remaining Objection to a hearing. 2
The remaining objections are as follows:
Objection No. 2
The Employer alleges that ballots were available only in English despite the fact that
numerous employees spoke other languages.
Objection No. 3
The Employer alleges that the Board’s official notices were available only in English and
traditional Chinese.
Objection No. 5
The Employer alleges that the wording on the translated official notice did not comply
with Board policy and procedure.
Objection No. 6
The Employer alleges that agents of the petitioner interfered with the election by making
it known that they were keeping lists of the names and badge numbers of eligible voters,
whether they voted and how they voted.
Objection No. 7
The Employer alleges that Petitioner’s agents interfered with the election by making an
election speech to a massed assembly of employees within 24 hours before the scheduled time
for the election.
Objection No. 8
The Employer alleges that the Petitioner’s agents interfered with the election by
engaging in a pattern of harassment, threats and intimidations for the purpose of suppressing
voter turnout of those who opposed unionization.
Objection No. 9
The Employer alleges that the Petitioner’s agents interfered with the election by
threatening eligible voters that the Union would obtain the discharge of employees who did not
vote for or support the Union.
Objection No. 10

1 It is noted that the Employer contended in the underlying representation case hearing that the Board
does not have jurisdiction over the Mashantucket Pequot Tribe or its wholly owned gaming enterprise.
The Regional Director concluded that the Board properly exercised jurisdiction in this matter pursuant to
the Board’s Decision in San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004) enfd. 475 F.3d 1306
(D.C. Cir. 2007). As noted, the Board rejected the Employer’s Exceptions to the Regional Director’s
Decision and Direction and Election. The jurisdictional issue, is therefore not before me.
2 Objection No. 1 simply reasserted the Employer’s contention that the Board lacks jurisdiction in this
matter. Objection No. 4 asserted that because the Petitioner was identified on the ballot only as “UAW”,
this did not comport with the Representation Case Handling Manual because the ballot failed to list the
Petitioner’s full name. The Regional Director concluded that there was no evidence to suggest that the
voters were confused as to the identity of the Petitioner and he therefore overruled this Objection.
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The Employer alleges that the Petitioner’s agents interfered with the election by
harassing and ridiculing eligible voters who did not support unionization.
Objection No. 11
The Employer alleges that the Petitioner’s agents interfered with the election by threats
of bodily harm to employees who expressed opposition to the Union.
Objection No. 11
The Employer alleges that by the above and other acts the Petitioner has engaged in
conduct warranting the setting aside of the election.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following 3
Findings and Conclusions
I. General Principles
In this proceeding it is the Employer that has the burden of proof with respect to (a)
showing that certain specific conduct by union agents, or in some cases, other persons, had an
undue and adverse impact on the election and (b) that the conduct occurred within the time
period from the date that the Petition was filed until the date that the election was held. Ideal
Electric Mfg. Co., 134 NLRB 1275 (1961).
Further, to balance the interests of insuring that employees have a fair chance to
express their choice with the requirement that elections have at least a reasonable degree of
finality, the Board has explicated a set of standards by which to judge whether conduct, (by
either party), will be sufficient to set aside an election. In Taylor Wharton Harsco Corp., 336
NLRB 157, 158 (2001), the Board stated:
[T]he proper test for evaluating conduct of a party is an objective one- whether
it has “tendency to interfere with the employees’ freedom of choice.”
Cambridge Tool Mfg., 316 NLRB 716 (1995). In determining whether a party’s
misconduct has the tendency to interfere with employees’ freedom of choice,
the Board considers: (1) the number of incidents; (2) the severity of the
incidents and whether they were likely to cause fear among the employees in
the bargaining unit; (3) the number of employees in the bargaining unit
subjected to the misconduct; (4) the proximity of the misconduct to the
election; (5) the degree to which the misconduct persists in the minds of the
bargaining unit employees; (6) the extent of dissemination of the misconduct
by the opposing party to cancel out the effects of the original misconduct; (8)
the closeness of the final vote; and (9) the degree to which the misconduct
can be attributed to the party. See, e.g. Avis Rent-a-Car, 280 NLRB 580, 581
(1986).
As some of the conduct was allegedly done by pro-union employees, there is an issue
as to whether those person should be construed as agents so that their conduct may legally be
attributable to the Union. Ordinarily, employees, whether supporters of a union or supporters of

3 The parties essentially agreed to correct certain errors in the transcript. A list of corrections is
attached hereto as an Appendix.
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an Employer, are not considered to be agents of either party. Indeed, if we were to hold that
either an Employer or a Union is liable for all the acts of their employee supporters, there would
be less likelihood that we would ever get to a final result in many elections.
Generally, the Board applies the common law principles of Agency including principles of
apparent and actual authority in determining responsibility for misconduct. Fieldcrest Cannon,
Inc., 318 NLRB 470 (1995). See also Culinary Foods, Inc., 325 NLRB No. 115 (1998).
I note, however, that there can be certain very limited situations where the actions of
third parties, (including employees), may be sufficient to set aside an election. But in those
situations the proven conduct has to be so serious as to make a fair election impossible.
Westwood Horizons Hotel, 270 NLRB 802 (1984); U.S. Electrical Motors, 261 NLRB 1343
(1982); Phoenix Mechanical, 303 NLRB 888 (1991); and O'Brien Memorial, 310 NLRB 943
(1993). See also Duralam, Inc., 284 NLRB 1419 (1987).
In Lamar Advertising of Jonesville, 340 NLRB 979, 980 (2003), the Board discussed the
standard to be used when acts are committed by persons who are not union agents. This would
include pro-union employees as well as third parties. The Board stated:
In Westwood Horizons Hotel, supra, the Board set forth the following factors to
be considered in assessing the seriousness of a third party threat: (1) the
nature of the threat itself; (2) whether the threat encompassed the entire
bargaining unit; (3) whether reports of the threat were disseminated widely
within the unit; (4) whether the person making the threat was capable of
carrying it out, and whether it is likely that the employees acted in fear of his
capability of carrying out the threat; and (5) whether the threat was
rejuvenated at or near the time of the election.
With respect to conduct by employees, there are therefore two questions. Are certain
employees agents of the Union by virtue of their status and authorized behavior as members of
the Union’s employee organizing committee? 4 And if not agents, is their conduct, if proven by a
preponderance of the evidence, sufficiently egregious to warrant concluding that the election
should be set aside because their actions made a fair election impossible?
II. Objection Nos. 2, 3 and 5
The Translation Issue
In these objections, the Employer contends (a) that the Regional Office of the NLRB
erred by failing to translate the notice of election into traditional and simplified Chinese, (b) that
notwithstanding the issuance of the notice in English and traditional Chinese, the Regional
Office failed to have the ballots translated into traditional or simplified Chinese and (c) that the
notice of election that was translated into traditional Chinese contained errors. In the last

4 The organizing committee had 105 employees on it and these people were self selected. Anyone
who wanted to join could become a member. They solicited union authorization cards from other
employees. They also helped distribute literature. On occasion, they gave interviews to the media after
having their comments reviewed by union staff members. In addition, many were assigned to go in teams
with union agents to visit employees’ homes to solicit support. Of the 105 employees on the organizing
committee there were 10 about whom there was some testimony. These were Peter Beck, Judy
Colecchi, David Duval, William E. Lockwood, Dolly Puskas, Josef Chipman, Laureen DeMarchi, Mary
Johnson Donald MacPhee and Billy Shea.
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respect, the Employer claimed at the opening of the hearing that the notice of election that was
translated into traditional Chinese did not notify the employees (a) that the balloting would be
secret and (b) that it described the unit incorrectly as being the employees of the casinos in
Connecticut and not the employees of the Foxwoods Casino.
The Board’s casehandling manual, (which in only meant to provide guidance and not
binding rules) 5 states at Section 11315.1:
The use of foreign languages may be required in Board elections. As detailed in
Sec. 11315.2 notices of election, including side panels and/or center panels
and/or ballots in languages other than English, may be provided in addition to
English notices, where the need is shown in appropriate circumstances….
Because the preparation of foreign language notices may be extremely costly
and may delay the election, the Regional Director should carefully evaluate
request for such notices. In deciding whether to provide translated notices
and/or ballots, the Regional Director may consider the following factors: (a) the
portion of the voting group which speaks a foreign language an does not read
English, (b) the number of foreign language translations that would be required to
accommodate these voters, (c) whether written communication between the
employer and these employees is in English or their native language. (The mere
fact that employees may communicate among themselves in a language other
than English is insufficient to demonstrate that they do not understand written
English.).
And at Section 11315.2, the Representation Case Handling Manual goes on to state:
The translated notices of election, (center panels as well as side panels),
may be provided, as in paragraph (b) above, while English only ballots are
provided to the voters at the election. In this case, the ballot appears on the
notice of election, translated into the foreign language with the following
notation above it. “The sample ballot reproduced in this notice appears in the
[the foreign language] and is a translation of the ballot you will receive in the
election. However the ballot you receive in the election will be printed in
English.”
In Superior Truss & Panel, Inc. 334 NLRB 916 (2001), the Board adopted the Hearing
Officer’s Report on Objection in which he stated;
The Board has made it clear that it has no policy requiring the use of ballots in
multiple languages. Northwest Products, Inc., 226 NLRB 653 (1976); Precise
Castings, 294 NLRB 1164 (1989) enfd. 915 F.2d 1160 (7th Cir. 1990), cert.
denied 499 U.S. 959 (1991)….
Pursuant to Precise Castings, supra, and the Casehandling Manual, there is no
uniform policy mandating that every Region of the NLRB use foreign language
ballots. To the contrary, the Board and the court held in Precise Castings, noting
that Region 13 never uses bilingual ballots, that nothing in the Act prevents the
Board from giving the Regions discretion in matters of this kind. Precise
Castings, supra at 1164. Therefore, the Employer's argument addressing other

5 See Superior Industries, 289 NLRB 834 fn. 13 (1988).
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Regions use of foreign language ballots is simply irrelevant. Region 13 is within
its discretion to use English-only ballots, and this decision has been upheld by
the Board and the courts.
The Seventh Circuit Court of Appeals has explicitly affirmed the Board holding
that there is no obligation to print ballots in all of the languages that are used in the
workplace. NLRB v. Precise Castings, Inc., 915 F.2d 1160 (7th Cir. 1990). The Court,
discussing its difference of opinion from an earlier 5th Circuit case, stated:
Only a multilingual ballot assures the “laboratory conditions” necessary to
effective choice, Precise Castings submits, with support from Marriott In-Flight
Services v. NLRB, 417 F.2d 563 (5th Cir. 1969. Contra NLRB v. Lowell
Currugoated Container Corp., 431 F.2d 1196 (1st Cir. 1970).
The fifth circuit found two defects in the use of English ballots when a third of
the voters were literate only in Spanish. First, the court believed, the election
departed from the Board’s policy of using bilingual ballots; second, the court
thought that elections using ballots printed in a language employees cannot
understand are unfair… The first of these need not detain us. Since Marriott
the Board has made it clear that it has no policy regarding the use of ballots in
multiple languages. Northwest Products, Inc., 226 NLRB 653 (1976). The last
vestige of that policy, if the Board ever had one (it denied having one at the
time of Marriott and Lowell concluded that it had none), was a statement in the
General Counsel’s practice manual that if a regional director deems election
notices in multiple languages appropriate, the director also should print ballots
in those languages… The current version of the Manual… changes this to: “If
a foreign language notice is used that language may also be used on the
ballot.”
Marriot’s second and principal conclusion is that when many voters have “no
access to ballots in a language [they] can understand [the election] necessarily
falls below the minimum laboratory standards of fairness…. [I]t would be
whimsical to establish meticulous safeguards against coercion, misinformation
and corruption if a sizeable portion of the electorate, though untrammeled in its
choice, does not know how to exercise it.” 417 F.2d at 567 (footnotes omitted).
When the fifth circuit wrote this in 1969, the Board required elections to take
place in “laboratory conditions,” free from the distortions common in political
contests….This doctrine was based in part on a belief that labor elections
should be “better” than political ones, and in part on a belief that employees
were easily misled and incapable of expression their true choice except in
“laboratory conditions.” Since 1969 there has been a revolution in the Board’s
thought. Partly in response to research showing that employees were
considerably more capable and threats or propaganda less effective than the
Board had believed… the Board overruled Hollywood Ceramics… overruled
General Knit of California, Inc., 239 NLRB 619 (1978)…. Today the Board is
much more likely than in 1969 to believe that employees can fend for
themselves. It has pulled the rug out from under Marriott. The Board no longer
establishes “meticulous safeguards” for elections, so it cannot be “whimsical” to
assume that employees can cast accurate votes despite the fact that the ballot
is in English. Questionable, perhaps; whimsical no.
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Making labor elections more like political elections is among the Board’s
legitimate choices. And most ballots in political elections are in English. True, the
voting Rights Act has, since an amendment in 1975 … required covered
jurisdictions to offer ballots in languages used by 5% of the populace, if those
groups are below the national norm in literacy. In the main, however, persons
who not speak English must learn from other sources how to cast an effective
vote…
On the day of the election, Foxwoods employed in excess of 11,000 employees, of
which approximately 2,629 were eligible voters. Of this latter number, there were about 446
dealers with Chinese surnames who were born in Mainland China, Hong Kong, or Taiwan and
who spoke one or more of a number of Chinese dialects as their original language. 6
Further, all of these people would have learned either traditional or simplified Chinese as
their first written language. In this regard, although there are numerous spoken dialects in
China, (some of which are quite distinct from each other), there had been up until the 1950s
only one utilized written language, which was called Mandarin Chinese. 7 In the early 1950s
the Chinese government mandated the creation and thereafter the use of a simplified version of
the traditional Chinese written language. This, essentially involved reducing the number of
strokes found in some, (but not all), of the characters used as words. 8 Thus, after the 1950s,
people who received their schooling in Mainland China were taught simplified written Chinese
and those who grew up in Hong Kong and Taiwan were taught traditional written Chinese.
Because the simplified version of Chinese was created and based on the original
traditional version of written Mandarin Chinese, the two are closely related and from the
testimony in this case, it seems that if one was taught one version, the other version can be
learned fairly easily without instruction. These are not two separate written languages and from
the testimony of the experts presented by the parties in this case, although there are about
60,000 characters in written Chinese, all but 3,000 are shared by both versions of written
Chinese. (For our purposes, there is no such thing as a written version of Cantonese). For
example, the Employer’s Chinese language expert, made a translation of the ballot into
traditional and simplified Chinese. Comparing the two versions, each of which had 143
characters, there were only 33 characters that were different, whereas all the rest were
identical. And even among the differences, many in the simplified version were very similar to
the characters that were written in traditional Chinese.
The Regional Director issued a Decision and Direction of Election on October 24, 2007.
On October 31, 2007, the Employer’s counsel sent to the Regional Office a list of the
names and addresses of the people in the bargaining unit who were employed as of the payroll
period ending October 20, 2007. On the same date, Foxwoods sent a letter to the prospective

6 Joint Exhibit 14 is a list of containing the names of 446 dealers whom the parties agree were
Chinese speakers. In addition, there are dealers who speak Spanish, Portuguese, Farsi, Vietnamese,
Filipino, and Creole.
7 It appears that there have been, in the past, a few unsuccessful attempts to invent written versions
of some of the Chinese dialects. But for all practical purposes, there has historically been only one widely
used written language in China and that was a written version of Mandarin.
8 In written Chinese, each character represents a word. It is not like an alphabet or a system where
each written character represents a syllable. Since each character in Chinese can represent a number of
different words, two characters are often used together to make the meaning precise.
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voters, translated into a variety of languages including Chinese, explaining that they were
obligated to furnish the Regional Office a list of their names and addresses.
By letter dated November 1, 2007, the Employer’s counsel suggested that the election
be held in the Sunset Ballroom and that the languages to be used in the election be English,
Spanish, Creole, Mandarin and Cantonese. (As noted above, there is no such thing as written
Cantonese). On that same date, the Employer submitted via e-mails, two examples of
Foxwoods communications to employees that had been translated into Spanish, Creole,
Traditional Chinese and Simplified Chinese.
At some point after November 1, the Union’s representative Julie Kushner was notified
of the Employer’s request for translations. She testified that she was aware that there was a
fairly large population of Chinese dealers whose first language was Chinese. She informed the
Region that she was neutral about having the notices and/or ballots translated into Chinese, but
was concerned that if there were a lot of different languages used this might be more confusing
to the voters. She further told the Board agent that she understood that in order to become a
licensed dealer all employees had to understand English and that English was the only
language allowed during work.
By letter dated November 13, the Regional Director notified that parties that the election
would be held on November 24 in the Sunset Ballroom. He also stated:
With regard to the Employer’s suggestion that the languages used in the election
include Spanish, Creole and Chinese, the Employer has proffered no evidence
that any unit employees are unable to read or converse in English. Accordingly,
the ballots will be in English only. However the Notice of Election will be printed
in Chinese as well as English.
By letter dated November 14, 2007, the Region sent copies of the Official Notice of
Election. There was one version in English and one version in traditional Chinese. However,
on the Chinese version of the notice of election, the sample ballot contained in the middle panel,
was not translated and was still in English. With respect to the Chinese version of the Official
Notice, the credited testimony is that the translation into Chinese made it very clear that this was
to be a secret ballot election and that the voting unit was to be the dealers who were employed
by the Casino. (Singular and not plural).
The Employer sent an e-mail to the Region on November 20, 2007 at 12:02 p.m. This
stated inter alia;
The Nation has received the NLRB Notices sent by your office. In addition to the
continuing objection, expressed repeatedly to you and the Regional Director,
regarding the failure to provide notices in Mandarin and Canton Chinese and the
failure to include the Chinese languages on the ballots themselves, the employer
notes that the sample ballots list the labor organization only as “UAW….
In a second e-mail sent to the Region on November 20, 2007 at 1:31 p.m., the
Employer’s counsel stated;
One additional point just to make sure that the Nation’s objections are clear. In
addition to the objection to the objections to the languages on the actual
ballots, the Nation continues to object to the sample ballot being in English
only, especially on the Chinese Notice.
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On November 21, 2007, the Regional office responded to the Employer’s November 20
e-mails as follows:
With regard to your reference to our alleged “failure to provide notices in
Mandarin and Cantonese Chinese,” I note initially that on November 14, 2007,
both you and your client were sent Notices of Election in English and in
Mandarin Chinese. With regard to your request for Notices in “Canton
Chinese,” as I previously informed you, it is my understanding that there is only
one form of written Chinese, commonly referred to as Mandarin Chinese.
Although there is a Cantonese dialect, a distinct written form of that dialect
does not exist. In this regard, at no time have you ever advised the Regional
office that this information was incorrect. With regard to the Region’s decision
not to include “Chinese languages” on the ballots… the Employer has proffered
no evidence that any of the unit employees are unable to read or converse in
English. In this regard, it is the Region’s understanding, uncontradicted by the
Employer that all of its dealers, including those of Chinese ancestry, operate
gaming tables that are not restricted to Chinese speakers and are required to
apply for Connecticut State Gaming Licenses which are only conducted in
English.”
Having received the English and Chinese election notices on November 14 or 15,
neither the Employer nor the Union raised any issues regarding the accuracy of the Chinese
translation at any time before the election. In this regard, I note that both parties had access
and utilized Chinese translators during the period up through the election to convey their
messages to the employees.
As scheduled, the election was held on November 24, 2007 with the Official Notices in
English and traditional Chinese and with the ballots in English only. As shown above, the
Employer never requested that either the ballots or the Notice of Election be in simplified
Chinese and I can’t assume that the Regional Director would even have been aware that there
were two written versions of Mandarin Chinese at the time he made his decision. The Employer
requested only that the Chinese languages used be Mandarin and Cantonese. The latter
request could not be granted as there is no such thing as a written Cantonese language.
Therefore, the Employer’s post-election objection that the Regional Director’s refusal to have
the election notice and/or ballot translated into simplified Chinese can have no merit inasmuch
as that was never requested. 9
As noted above there were about 446 employees in the voting unit who likely were born
in China, Taiwan, or Hong Kong, (before it reverted to China). I am going to assume that
because this hearing revolved around the Chinese language, that most of the foreign born
dealers who work at Foxwoods are of Chinese background.
Until about December 2006, all communications between the Employer and its
employees were in English. Then in or about December 2006, the Employer began to issue
translations of some of its written communications in the languages of employees who
emigrated from other countries. Janet Cummings, the Employer’s vice President of

9 It appears that the Regional office did not provide any interpreters to assist voters at the polling
place. However, there is no evidence that either party made a request that interpreters be made
available.
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Communications, testified that the first translated document was issued in December 2006.
Thereafter, the Employer has issued some written communications to its employees in a variety
of languages including traditional and simplified Chinese. But this practice has not been uniform
and a number of important documents have been issued without translation. These latter would
include the employee handbook, a monthly bulletin, (called Monthly Matters), employment
applications, instructional books, disciplinary notices and licenses. 10
Also, until about two years before this hearing, most applicants for dealer jobs had been
trained at Foxwoods’ own school. Although Foxwoods continues to operate this school, it has, in
the past two years, interviewed and hired some applicants who go through outside approved
schools of which there are two in New York City. As far as the current complement of Chinese
dealers, I do not have sufficient information to tell me how many were trained at the Foxwoods
School and how many were trained at the outside schools.
Assuming that a job applicant who applies directly to Foxwoods passes an aptitude test,
(given in English), and successfully passes a drug test and an interview, he or she would be
enrolled in the Foxwoods training school where the initial course is for Blackjack.11 This course
takes about eight weeks of eight hour classes and is taught by Foxwoods employees only in
English over a three month period. Moreover, the manual used by the instructor and the
students for this course is printed only in English. During the course, there are weekly tests, a
mid-term test and a comprehensive final exam consisting of about a 100 questions. These are
written tests and are given only in English. Applicants are separated and efforts are made to
prevent people from cheating. If an applicant doesn’t understand a question, he or she can ask
the instructor for clarification in English and any clarification will be given in English. If an
applicant can’t get a passing grade at the mid-term or at the final, he or she is out. Obviously, if
the applicant can’t understand the questions that are written in English, that is too bad.
If the applicant passes the final test, he or she must then pass an audition where the
applicant is tested in a mock game setting about all of the elements needed to do the job
successfully. This is conducted only in English and the applicant must pass the audition in
order to be hired. This audition takes about 3 to 4 hours and encompasses all of the materials
set out in the Blackjack manual.
If an applicant takes the course at one of the outside schools in New York City, he or she
is likely to have received instructions in Chinese. (Albeit I have no idea if the written materials
used are in English or Chinese). Nevertheless, if the person comes from one of the New York
City schools and has passed tests administered by these schools, he or she must still take the
comprehensive English language audition at Foxwoods in order to get a job. In this regard, the
Union presented the testimony of Xian Rong Sun, an applicant who had gone through a New
York City school and who was denied employment because she could not adequately perform
at the audition in English.
If a dealer is hired, he or she is given a set of documents to read and sign, all of them in
English. One of the documents in the package is a statement that the information given by the

10 The Employer pointed out that the Union, via written materials and through its web site, provided
Chinese translations of its campaign materials. Ms. Kusher testified that this was done, not so much
because of necessity but because it showed respect to the prospective voters who came from other
countries.
11 There are subsequent courses given in other games, each of which comes with its own manual of
instructions. All of these are in English only.
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applicant is true. On that document there is a space for the applicant’s signature and a place for
the signature of an interpreter if one is used. In a summary prepared by the parties based on a
variety of documents, of 446 Chinese names, 14 indicated that an interpreter had been used by
the applicant. Although relevant, I don’t place as much reliance on this as the Counsel for the
Regional Office would suggest.
The evidence establishes that all dealers are required to speak only in English while
working at the gaming tables. This involves calling out the game as it progresses so that the
floor supervisor knows what is happening. It also involves making small talk with customers so
that they will feel at ease while playing the game. The only exception is where a customer can’t
understand English.
During the election campaign both the Union and the Employer held meetings with
employees and distributed literature urging employees to vote yes or no. The literature issued
by both sides was typically translated into Chinese. (The Employer’s literature was translated
into traditional and simplified Chinese and at times either mailed to employees’ homes or posted
at the Casino.)
In addition, the Employer prepared two DVDs that were in English and other languages
including Chinese. One of the DVDs issued by the Employer was shown at meetings with
employees on its premises and had a group of people enacting the voting procedure. This
included a description of the ballot and an explanation of what it means. This was done in a
variety of different languages including Chinese. In this DVD, a narrator explained that putting
an X in the “no” box meant that the voter did not want the UAW.
The other DVD was mailed to the employees’ homes and contained a booklet translated
into various languages including traditional and simplified Chinese. It contained sample ballots
that were translated into both forms of written Chinese and had the “no” box marked with a X. It
also contained the following quote:
Voting in the National Labor Relations Board election is easy. You simply;
1. Go to the Sunset Ballroom on Saturday, November 24, anytime between
8:00 a.m. and 11:00 p.m.
2. When you get to the voting area, give your name to the Labor Board agent.
3. Take the paper ballot to the enclosed ballot booth.
4. Mark your ballot with an “X”. Mark the “NO” box of you do not want the
Union.
[Sample ballot inserted with the “No” box marked]
5. Do not write your name on the ballot. Fold your ballot in half so no one
sees it and place it in the ballot box.
The evidence showed that during the weeks before the election, the Employer
conducted meetings with the employees to discuss the election. In some cases, Chinese
translators were present to answer questions. At other meetings that were held exclusively with
Chinese employees, the person who spoke on behalf of the Employer was also a Chinese
speaker. For example Pauline Chao testified that she was one of several Chinese speaking
people who conducted meetings with Chinese dealers. She testified that she held three or four
such meetings where she explained the procedures of voting. She stated that she explained
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that she told employees that if you vote “yes” that means they would represent you and if you
vote “no” that means the union would not represent you.
In addition to the material distributed or made available by the Employer, the Union
issued its own materials in English and Chinese urging people to vote “Yes.” Without going into
detail, this material was distributed by hand, by mail and via the Union’s web site.
The point here is not to show that either party, in terms of its campaign materials, did or
said anything wrong. The point is to show that each side spent a lot of time, effort and money to
get its point of view across to the employees. As there was other testimony showing that the
election was the principle topic of conversation among the employees during the week before
the election, it is inconceivable to me that employees, unless they were unconscious or
completely disinterested in the outcome, were aware of the issues and were aware that marking
a ballot with an X in the “yes” box meant that they wanted union representation and marking a
ballot with an X in the “no” box meant that they were against the Union.
In support of this Objection, the Employer presented 12 eligible voters who essentially
claimed that they did not understand the English language ballot. This represents 2.6% of the
Chinese dealers and there is no indication that this constitutes a random or representative
sample. (Being excellent attorneys, I surmise that the Employer’s counsel chose to present
those witnesses and facts which they believed to be true and were most favorable to their
client’s position). 12
Mr. Yin Chen, who started working at Foxwoods in September 2007, answered most of
the questions that were posed to him on direct and cross examination in English. He testified
that he reads traditional and simplified Chinese and also can read some English. On his
employment application, he indicated that he can read, write and speak English and Chinese.
Chen acknowledged that before the election he understood that the English abbreviation on the
ballot for UAW meant the Union but testified that he didn’t understand the words “collective
bargaining.” (I note in the latter regard, that two non-Chinese, English speaking witnesses were
asked if they knew what the words “collective bargaining” meant and both stated that they did
not. One of these was an Immigration lawyer).
A Ms. Yin Chen who had been employed for four months at Foxwoods at the time of the
hearing, was born in China. She testified that she can read simple English and that sometimes
when she receives memos in English, she will ask the floor manager for help. She also testified
that she had heard about the Union from other employees and the parties stipulated that she

12 Although relevant, I don’t place much reliance on the more generalized testimony of the Employer’s
witnesses who asserted that some unidentified Chinese dealers have difficulty in communicating or
reading English. For one thing, the testimony in this regard does not disclose who in particular these
people are. For another, the testimony is somewhat contradictory or not particularly dispositive of whether
the Chinese language dealers can read English. For example, Pauline Chou testified that perhaps 60-
70% of the Chinese dealers needed help reading English. She based this estimate on her assertion that
they often come to her to explain memos that are issued in English. But that doesn’t prove that they don’t
read English. It can also mean that they simply want clarification from a Chinese speaking manager of
any policy changes that may affect their work or employment. Glorimar Lopez testified that over the
course of ten years she could recall only one occasion where she had to use a translator to speak to
someone whose native language was Chinese. Jimmy Matos testified that he speaks with a lot of
Chinese dealers each week and although it is sometimes hard to communicate, he manages to do so in
English. Betty Ann Conroy, a floor supervisor called by the Union, testified that when she occasionally
has trouble understanding a Chinese dealer, she asks them to slow down and then it was fine.
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attended three pre-election meetings held by the Employer. When she was hired she signed a
confidentiality agreement that was written in English and she signed another English language
document indicating that she had received and read the employee handbook. (The handbook is
written in English only). This witness testified that she saw English and Chinese election notices
at the facility. She testified that she voted in the election.
Lin Shuzhen had been employed as a dealer at Foxwoods for five months at the time of
the hearing. She was born in Fujian province and has been in the United States for four years.
(She indicated that she studied English in a Chinese middle school). Shuzhen testified that she
sometimes has trouble understanding English and doesn’t read English. Although starting out
with a translator, she answered many of the questions in English before the translator posed
questions to her in Chinese. Like Ms. Yin Chen, she a signed an English language
confidentiality agreement and she signed an English language document indicating that she had
received and read the employee handbook. On cross examination, Shuzhen acknowledged
that she knew that the election was for a union and that she knew how she wanted to vote.
(She did in fact vote). Shuzhen acknowledged that she saw election notices at the facility but
states that she didn’t pay attention to them. She further acknowledged that she received
literature from the Union and the Employer at her home, but that she threw them away.
Ya Qiong Zeng has been employed by Foxwoods for three years. 13 She testified that
she knows how to speak some English but has difficulty with written English. (She used the
translator during the hearing more often that Lin Shuzen and either Yin Chen). Her employment
application indicates that she speaks, reads and writes in Chinese and English. Zeng testified
that she voted in the election and that knew how she intended to vote. She testified that she
saw the election notices at the casino but did not pay any attention to any of the literature
mailed to her home by either the Employer or the Union. Zeng also acknowledged that she
attended at least two meetings held by management, one of which had a Chinese translator
present who showed and explained the ballot and how to vote.
Yue Jing Lin has been in the United States for three years and her primary languages
are Cantonese and Mandarin. (She studied English for one year in China). During her
testimony, she answered almost all questions in English and there is no doubt that she is fluent
in the English language. Lin acknowledged that she attended the Foxwoods training school
where the instructions, materials and tests were all in English. Lin also testified that when she
went to vote, she knew that the vote was about a union.
Yan Ling, whose original language is Cantonese, has been in the United States for eight
years. He testified that he can read a little English but that if he receives at work an English
language memorandum that he doesn’t understand, he will get help from others. During his
testimony, he answered many of the questions without using a translator. Ling acknowledged
that before the election, he attended a meeting with Pauline Chou who spoke to employees in
Chinese and who, as noted above, explained the election process and how to mark the ballot.
Kio Pun was born in Hong Kong and has been in the United States since 1989. He has
been employed at Foxwoods for six years and attended the Foxwoods training school. He
testified that his primary language is Cantonese and that he “seldom” reads English. Mr. Pun
testified that when his children sometimes ask him about their homework, he will use the

13 This would mean that she must have gone through the Foxwoods training school where the entry
level Blackjack course is given in English only and where the job applicants are required to take and pass
a series of English language tests.
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dictionary to help them understand English words. He testified that he is a US citizen and it is
noted that in order to gain citizenship, there is a requirement that except for some limited cases
not applicable here, an applicant must demonstrate an ability to read simple English. In his
employment application, Pun indicated that he could read and write in English and Chinese.
Pun also testified that he took two years of English in college. He voted in the election.
May Wong was born in Canton and came to the United States in 2000. She has been
employed at Foxwoods for eight years and presumably attended the Foxwoods training school
where she was required to take the course in English and pass a battery of English language
tests. Notwithstanding those facts, she testified that she doesn’t speak much English and can’t
read English. 14 Wong acknowledged that she attended a pre-election meeting where the
company explained the voting procedures but she asserts that she didn’t pay attention. (The
time records show that she attended three such meetings). She also acknowledged that she
received campaign materials at her home but didn’t read them or look at the DVD that was
mailed to her house. She acknowledged that before the election there was a lot of talk about
the Union and that she had made up her mind about how she was going to vote before she cast
her ballot.
Ada Liang speaks Cantonese and has been in the United States for 10 years. She has
been employed by Foxwoods for eight years. She testified that she can read simple English
and that if she gets company memos in English she asks someone to translate or uses a
dictionary. Although somewhat evasive, Liang admitted that she attended one pre-election
company meeting held the theatre and another smaller meeting where there was a person who
spoke in Chinese.
Barry Shuen speaks Mandarin and claims that he can’t read English. However, he has
been in the United States for 17 years and has been working at Foxwoods for 11 years. He
acknowledged that he was aware that UAW meant the Union and that there was a lot of talk
about the Union before the election. He testified that about a week before the election, he was
given a sample of the ballot and that he received campaign materials at his home, some of
which were in Chinese. He voted in the election.
Qingfeng Chen was born in China and has been in the United States for six years. He
testified that he can speak basic English and can read books that are written in simple English.
At the hearing this witness seemed to need the translator a lot. The parties stipulated that he
attended three company held pre-election meetings and he acknowledged that the election
procedure was explained to employees. He voted in the election.
Miao Chen’s first language is Cantonese. She claims that she can read only a little bit of
English. She has been in the United States for 14 years and is a naturalized US citizen. Chen
has been employed by Foxwoods for eight years and presumably she went through the
Foxwoods training school. On cross examination, she acknowledged that she attended two
company held pre-election meetings one of which was held by Pauline Chou who spoke in
Chinese. She voted in the election.
This record contains no evidence to show that any Chinese language dealers failed to
vote because the election notices were not translated into simplified Chinese or that the sample
ballots contained in that notice was not translated into either version of written Chinese. I reject

14 The Union presented Susan Ryan, a non-Chinese speaking floor supervisor who testified that she
often spoke in English with Wong without any difficulty.
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the Employer’s contention that because the Regional Office didn’t offer to put the voting list into
evidence, I should conclude that a number of Chinese employees therefore did not vote. For
one thing, there was nothing to prevent the Employer from asking the Region to see, or at least
to present to me, the voting list for an in camera inspection. Moreover, even if a number of
Chinese employees did not vote, there is no causal connection between the guess that this was
the case and the conclusion that they did not vote because the sample ballot was not translated
into Chinese or because the notice of election was translated only into traditional Chinese.15
Based on the totality of the evidence presented by the Employer and the Union, it is my
opinion that the Employer has not established that any significant number of Chinese born unit
employees had such difficulty with reading and understanding English that the failure to
translate the ballot into Chinese could have affected the election. The employees presented by
the employer did not represent a random sampling of the Chinese voters. And the evidence
failed to convince me that any more than a few, at most, might have had any difficulty in
understanding how to mark their ballots. (In a few of the cases, any difficulty they might have
had could be attributable to their indifference). The Notices of the Election posted at the facility
were in English and traditional Chinese. Both the Company and the Union communicated to the
employees in English and Chinese by a wide variety of means. Additionally the Company held a
series of meetings urging employees to vote “no” and explaining the election procedure. In
some cases, meetings were conducted in English with a Chinese translator available to answer
questions. In other cases, meetings were held where instructions about the balloting were given
by a Chinese speaker. This was bolstered by mailed DVDs and pamphlets explaining the
balloting procedure in various languages including Chinese.
In short I conclude that Objections 2, 3 and 5 should be overruled.
III. Objection No. 6
In this objection, the Employer alleges that agents of the Union interfered with the
election by making it known that it was keeping lists of the names and badge numbers of eligible
voters and whether and how they voted.
There were five witnesses presented by the Employer who testified that on the day of
the election, (November 24), there were people in or around the rest rooms outside the Sunset
Ballroom who asked people if they voted and how they voted. These witnesses were Diane
Weaver, Maija Hill Ninnant, Jimmy Matos, Jorge Ladino, Glorimar Lopez and Juan Ampavo.
Three of them, Diane Weaver, Juan Ampavo and Maija Hill Ninnant testified that the person
they saw, (respectively a woman and a man), had a pad of paper in his or her hand. Weaver
thought the person that she saw was possibly a dealer who was Filipino.
One of these witnesses, Glorimar Lopez, testified that when she was asked how she
intended to vote, she replied that she was going to vote “no.” Lopez states that this person told
her that she had better vote “yes” because you’re going to lose your job. According to Lopez,
she asked the person who she was and this individual said that she was from the Union.

15 After the briefs were filed, Counsel for the Regional Director offered to submit for an in camera
inspection, the voting list, offering to prove that about 81.4% of the Chinese employees voted and that the
overall voter participation rate was 83%. Because I don’t believe that there is any basis for making a
causal connection between the non-voting of some Chinese dealers and the failure to translate the ballots
into Chinese and/or the failure to translate the notice of election into simplified Chinese, I don’t think that
it is necessary to take up the offer.
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Although giving a physical description of this woman, neither Lopez, nor any other witness in
this case could proffer any identification for this person.
In a similar vein, Jimmy Matos testified that on the day of the election, he went to the
employee cafeteria before he voted and that a young lady was asking people how they voted.
Matos states that when she asked him how he voted, he said “no” and she replied that, “you
may just lose your job for voting no.” According to Matos, he ignored her, got something to eat
and then stopped off at the bathroom outside the Sunset Ballroom before going to vote. Matos
could not identify the person who talked to him in the cafeteria and there is no evidence that she
was an agent of the Union.
Maija Hill Hinnant also testified that on November 23, the day before the election, she
was outside the poker area, when another employee named Del Chin had a notebook and
appeared to be writing down the names and badge numbers of a group of dealers who were
known to be against the Union.
There is no evidence that on the day of the election, any persons were actually makings
lists of the people who were voting. Nor was there any evidence as to the identity of the people
who allegedly spoke to Matos in the cafeteria or were in and around the rest rooms that were
located outside the Sunset Ballroom. The fact is that the rest rooms in question are located in
the public part of the property, (as opposed to employee only areas), and employees are not
even supposed to use them. Anyone could have been there during the time that the election
was held. I note that this election had drawn the attention of the local media and it is certainly
possible that these individuals could have been reporters who were conducting a kind of exit
poll. 16
There is no evidence to show that any agents of the Union kept lists during the election.
Nor has it been shown that the alleged threat reported by Ms. Lopez was made by any person
who had any relationship to the Union. As the conduct alleged cannot be considered "so
aggravated as to create a general atmosphere of fear or reprisal rendering free choice in an
election impossible," I therefore conclude that this Objection has no merit and I recommend that
it be overruled.
IV. Objection No. 7
In this objection, the employer alleges that the Union interfered with the election by
making a speech to a massed assembly of employees within 24 hours before the scheduled
time of the election.
Even assuming that this was the case, such conduct, by itself would not grounds for
setting aside the election. In Peerless Plywood, 107 NLRB 427 429 (1954), the Board held that
employers and unions would be forbidden to make election speeches on company time to
massed assemblies of employees within 24 hours before the scheduled time for an election.
However, the Peerless Plywood rule was held inapplicable in the case of a casual solicitation of
three employees, only one of whom was eligible to vote, the night before the election by a union
agent. This, said the Board, cannot be characterized as a "speech" to a "massed assembly of
employees." "That rule was not intended to nor, in our opinion, does it prohibit every minor
conversation between a few employees and a union agent or supervisor for a 24-hour period

16 Julie Kushner testified that she gave instructions to all of her staff to stay off the property during the
election.
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before an election." Business Aviation Inc., 202 NLRB 1025 (1973). The Board has also held
that the rule does not prohibit employers and unions from making campaign speeches on or off
company premises during the 24-hour period "if employee attendance is voluntary and on the
employees' own time." Peerless Plywood Co., 107 NLRB 427 (1954), supra at 430. See also
Nebraska Consolidated Mills, 165 NLRB 639 (1967).
The only evidence of a massed speech to employees by the Union can only relate to a
union meeting held at the Union’s hall in Norwich, about a week before the election. As the
Employer presented no evidence to show that the Union made a speech to a massed assembly
of employees, either on or off the company’s premises, within 24 hours of the election, I
recommend that this Objection be overruled.
V. Objections Nos. 8 through 12
The Employer asserts that agents of the Union; (a) engaged in a pattern of harassment,
threats and intimidation for the purpose of suppressing the turnout of those opposed to
unionization; (b) threatened eligible voters that the Union would obtain the discharge of
employees who did not vote for or support the Union; (c) harassed and ridiculed employees who
expressed opposition to the Union; and (d) interfered with the election by other unspecified acts.
I have already dealt with the testimony of Jimmy Matos and Glorimar Lopez insofar as
they testified regarding alleged statements made by unidentified persons to the effect that if they
voted against the Union they could lose their jobs. In this regard, I note that the Board has held
that threats of job loss or discharge made by union representatives are considered to be non-
coercive since employees can reasonably evaluate such comments as being beyond the
Union’s control, and are, at most, a prediction of action to be taken by the employer.
Hollingsworth Management; Bonanza Aluminum 300 NLRB 584 (1990); Pacific Grain Products,
309 NLRB 690, 691 (1992); Janier Plastic Mold Co., 186 NLRB 540 (1970); Duralam Inc., 284
NLRB 1419 fn.2 (1989). I also note in this regard, that the testimony of Matos indicates that he
might have misunderstood the alleged statement. He testified that he understood the statement
as meaning; “Your job is not safe unless we got a union in here; if a union is not in here, your
job is not safe, they can fire you any time they want.”
The Employer called Heidi Smith who testified that union representatives visited her
home on five occasions during the week before the election. On the final visit, which occurred
on Friday, Smith testified that her son answered the door and she could hear them ask her son
how she was going to vote. According to Smith, she stepped into the doorway and told them
that she was going to vote “no.” She states that at this point, one of the people told her that her
job was in danger if she voted “no” and she needed to vote “yes.” Smith testified that she didn’t
let them identify themselves and she could not identify either person except to say that one was
a man and the other a woman. She also testified that neither person explained how voting “no”
would endanger her job and that she really didn’t give them a chance to explain. 17
Paul Tran, an employee whose first language is Vietnamese, testified in English that two
people came to his house a couple of weeks before the election and asked him to sign a card.
As far as I understand his testimony, these people told him that if he didn’t want a union, he
should not vote and that he replied that he was going to vote “no.” Mr. Tran testified that they

17 One of the points that Unions normally make during organizing campaigns is that without a union
to assist them, employees, because they are hired on an at-will basis, may have little leverage in the
event that they are discharged or disciplined by their employer.
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then said; “Well, if you vote no, you don’t have right to work.” Tran could not recognize either
individual and testified that he never saw them before or since.
Michael Franck, an employee who actively campaigned against the Union, testified that
around three days before the election, he heard some of the dealers speculating amongst
themselves how the Asian dealers were going to vote. He testified that one of the dealers
named Theresa stated that they should tell the Asian dealers not to vote at all.
Cherie Shimard testified that despite asking union representatives not to come to her
house, they nevertheless persisted in doing so. (Although she may object to union agents
visiting her home, this by itself, is not objectionable conduct that warrants setting aside an
election). She also testified about two incidents involving Dave Duval, who was on the
organizing committee. In the first, she asserted that during a break, Duval said that it would be
hazardous to any dealer voting “no.” In the second, Shimard testified that a day or two before
the election, she heard him say, as he was walking behind her, that those “f..ing dealers who
are voting no need to watch their backs.” Duval denied making these statements and based on
their respective testimony and demeanor, there is nothing that would lead me to conclude that
either was more credible than the other. I note that Shimard indicates that the remarks made by
Duval were made in the presence of other people but that no one was asked to corroborate her
testimony.
Mellisa Flowers testified that she was told by an Asian friend that someone else had told
her that if she didn’t vote for the Union, “they” were going to call immigration. Apart from the
fact that this is double hearsay, we don’t know who Mr. Flower’s friend is or who is alleged to
have made the alleged threat to that friend. 18
Tina Denson testified about three alleged incidents involving another employee named
Keith who was a union supporter. The most serious involves an alleged attempt by this person
to interfere with the driving of her car. Nevertheless, as it was established that all three of the
alleged incidents occurred before the petition was filed, they cannot be the basis for setting the
election aside. Ideal Electric Mfg. Co., 134 NLRB 1275 (1961); Gibralter Steel Corp., 323 NLRB
No. 100 (1997); and Dollar Rent-A-Car, 314 NLRB 1089 fn. 4 (1994). 19 (I also note that I
rejected the Employer’s offer to prove that certain post-election conduct should be considered
as such conduct cannot be the basis for setting the election aside. Mountaineer Bolt, 300 NLRB
667 (1990). Also the alleged post election conduct would not in my opinion, make any difference
in determining credibility as they involved verbal transactions between the same people who
gave competing versions of events in the first place).

18 Flowers also testified that about a month before the election, another dealer named Billy followed
her while she was driving and that when she stopped, he drove up next to her and asked her to sign a
card for the Union. This incident, assuming it happened is not objectionable conduct but merely reflects
an attempt by one employee to solicit union support from another. Flowers also testified that on another
occasion, she was visited at her home by Josef Chipman who tried to convince her to vote for the Union.
She testified that she told him that she was going to vote “no” because she didn’t want to pay union dues
and that she agreed with her friend Tina Denson. According to Flowers, Chipman said that Denson was
a liar, a trouble maker and a f…ing bitch. At most, this amounts to mere name calling and does not
qualify as a threat of reprisal warranting setting aside the election.
19 As a general rule, the period during which the Board will consider conduct as objectionable-often
called the "critical period"-is the period between the filing of the petition and the date of the election.
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Diane Weaver testified that on Wednesday, November 21, 2007, Donald McPhee tried
to talk to her about the Union. She testified that as she approached the soda machine in the
cafeteria, a group of other employees surrounded her and started shouting at her to vote “yes.”
Weaver testified that one person, who she can’t identify, told her that she was stupid for not
voting for the Union. She also testified that another unidentified person threatened to drag her
out of her house and beat her up. Weaver testified that during this entire incident, there were
other employees in the cafeteria who stopped to look.
Donald McPhee, who is on the organizing committee, testified about this incident and
acknowledges that he tried to talk to Weaver about voting for the Union. He also acknowledges
that a group of about three other employees came up to talk to her and that one said to her;
“What are you, stupid.” McPhee denied that either he or anyone else made any threats to harm
Weaver or that they surrounded her in such a manner as to impede her ability to go to or leave
the cafeteria. There were no other witnesses who corroborated either’s version of events. And
in my opinion, there was nothing to say that Weaver’s account of this transaction was any more
credible than McPhee’s.
The Employer called Angela Fernandes as a witness and she testified that on one
occasion she was sitting on the employee shuttle bus when Mary Johnson, (a member of the
organizing committee), said that she knew where in Norwich Fernandes lived and that she too
lived in Norwich. Assuming that the Employer had some point in providing this testimony, it
escapes me. Nothing in this transaction can, in my opinion, be construed as being a threat or
coercion.
Debra Beebe testified that she attended a union meeting at the Union’s hall in Norwich
Connecticut about a week before the election. Her testimony was that this was an upbeat
meeting; that it was a rally type thing. She also testified that a union representative spoke to the
employees and talked about a grievance procedure if employees had complaints at work.
Beebe testified that during this discussion, the representative, (Robert Madore), said that the
Union would know who voted “no” and that they would have a way to have grievances filed by
such persons pushed to the back so that their grievances would more than likely never be
heard. The Employer offered no corroborating witnesses for this allegation.
The Union presented four witnesses, including Madore, who described this meeting and
who all denied that the statement described by Beebe was made either by Madore or anyone
else. In fact they all testified that the subject of grievances was not even mentioned. Based on
the totality of the evidence, I do not credit the testimony of Beebe.
The Employer called Faith Harper to testify about an incident that was not really
referenced in the Employer’s Objections. This involved Harper’s assertion that while she on her
way to a Company meeting dealing with the election, Billy Shea, (a member of the organizing
committee) came up to her, stated that he was aware that she was having difficulty with paying
for some medication, and offered to pay it himself. In this regard, Shea testified that he had
been friendly with Harper in the past and that she had confided in him about some of her family
problems. He testified that when he heard about her difficulty in paying for her medication, he
offered to pay for it for one month. According to Shea he made the offer out of personal
sympathy and not to influence her to vote for the Union. He testified and she essentially agrees
that he did not even mention the Union during the conversation.
Ms. Harper also testified that on another occasion, she attended a company meeting
where she expressed her opinion that management should be allowed to express their views.
She testified that shortly after the meeting, she was confronted by Mary Johnson, a member of
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the organizing committee, who asked if she was “f…ing changing her god-damned mind” and
that she was making a big mistake by doing so. (Johnson did not testify). Obviously this
behavior was rude and uncalled for. However, this testimony does not objectively demonstrate
that any threat was actually made to Harper.
To a large extent, the evidence presented by the Employer related to statements and
conduct by unidentified people or unidentified employees. And in the case of the alleged threat
to cause deportations, this was based on unadorned hearsay allegedly heard by an unidentified
friend who told the witness that she was told this by some other unidentified person.
On the other hand, some of the alleged conduct involved statements or actions by
members of the organizing committee; these being employees who were particularly active in
their support for the Union. Only one allegation directly involved the statements made by a
union official and this involved the alleged, uncorroborated and credibly denied statements
regarding grievances that Robert Madore is alleged to have made at the meeting held in
Norwich.
I note that as it is the Employer that is making the claims of misconduct it is the
Employer that has the burden of proof. And in this regard, it is my opinion that the Employer
has not met that burden in this case. Certain of the Employer’s witnesses testified about
alleged threats of bodily harm or alleged actions that physically confined an employee. But as I
have concluded that there is no basis for crediting the Employer’s witnesses over the Union’s
witnesses, I must find that these allegations lack merit. National Telephone Directory, 319
NLRB 420,422(1995).
Accordingly, I recommend that Objections 8 through 12 be overruled.
Conclusions of Law
Neither the Union nor the Regional Director has engaged in any objectionable conduct
warranting setting aside the election.
ORDER
The representation case should be remanded to the Regional Director of Region 34 for
the purpose of issuing the appropriate Certification. 20
Dated, Washington, D.C. March 11, 2008
_____________________
Raymond P. Green
Administrative Law Judge

20 Under the provisions of Section 102.69 of the Board’s Rules and Regulations, Exceptions to this
Report may be filed with the Board in Washington, DC within 14 days from the date of issuance of this
Report and Recommendations. Exceptions must be received by the Board in Washington by March 25,
2008. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof
upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto,
the Board may adopt this Recommended Decision.
JD(NY)–09–08
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21
Page Line Error Correction
Vol.
1 6 13 waiting waiving
8 6 in any
15 9 boards courts
18 24 Board Board's
20 14 periously curiously
43 6 "have partner with" "am a partner in"
75 5 day thing
129 16 Forward Foreword
129 19 Forward Foreword
131 1 people at Pequot
Page Line Error Correction
Vol.
2 164 10 manners matters
167 16 parco Pai Gau
167 16 mini bar mini bac
170 7 and in
171 16 what want
203 L.6 MR. O'CONNOR HANKINS
203 10 MR. O'CONNOR HANKINS
213 19 where were
215 8 wetting working
215 9, 10, 11 Polka poker
215 19 Polka poker
231 9 perform prefer
232 12 her your
255 15 Are were
257 8 arguable arguably
272 13 Barrcarat Baccarat
276 14 themselves themselves
281 3 unlwaful lawful
288 2 for a
290 2 films games
290 2 back back/bac
290 19 who who/how
310 2 to that to that/back of
312 12 Polka Polka/poker
313 9 Polka Polka/poker
317 4 standing standing/stating
319 18 of of/or
327 6 displayed displayed/was played
335 10 strike strike/swipe
336 2 simplied simplied/simplified
345 7 cause cause/course
353 6 MATT@FOXWOODS MAD@FOXWOODS
354 25 Viet Namese Vietnamese
361 10 Floor Board
JD(NY)–09–08
APPENDIX
22
363 24 advise advice
368 7 trickle clock
376 17 assumed assure
381 5 line like
382 3 "that represented" "a representative"
Page Line Error Correction
Vol.
3 393 19 On One
398 17 instead and today
465 23 approximately approximate
478 2 "do employee" "to use employee"
503 23 to to/at
503 23 to to/at
504 17 noble knowable
Page Line Error Correction
Vol.
4 572 3 delete "an"
574 16 and am
576 17 to a
579 10 at least be
579 25 add "of" to end of line
585 25 while white
586 20 remove "d" at end of line
588 8 word work
591 7 me be
615 15 Correlli Correll
616 20 Correlli Correll
617 9 Correlli Correll
620 15 Correlli Correll
620 19 Correlli Correll
621 4 Correlli Correll
622 17 Viet Namese Vietnamese
626 15 Correlli Correll
630 4 delete "my"
633 15 delete "you"
635 16 Meiklejohn Hankins
638 6 Correlli Correll
638 8 Correlli Correll
638 19 Correlli Correll
641 13 or of
647 2 your you're
647 11 that that's
647 23 do did
648 18 THE WITNESS MR. MEIKLEJOHN
650 2 employ employee
650 19 it is
657 17 last first
JD(NY)–09–08
APPENDIX
23
657 18 her here
658 21 remove quotes
665 1 how's who's
665 12 seem seen
685 3 you your
700 18 O'CONNOR HANKINS
702 4 Correlli Correll
702 6 Correlli Correll
702 10 Correlli Correll
702 14 Correlli Correll
707 24 Correlli Judge Green
708 1 Judge Green Mr. Hankins
708 3 Mr. O'Connor Mr. Hankins
708 22 Mr. Hankins Ms. Craig
708 24 Ms. Craig Mr. Meiklejohn
710 2 Correlli Correll
711 25 promised promises
712 1 Correlli Correll
712 4 Correlli Correll
712 7 Correlli Correll
712 21
add endquote after
"concrete"
713 10 Correlli Correll
713 23 Correlli Correll
716 14 Correlli Correll
716 21 Correlli Correll
718 3 Correlli Correll
718 25 Correlli Correll
719 3 Correlli Correll
719 9 Correlli Correll
720 15 Correlli Correll
733 9 Correlli Correll
740 8 then the
742 24 your you
750 23 produce product
754 10 remove "do"
762 2 "have and" had an
776 19 purposed purposes
780 8 Meiklejohn Hankins
780 14 Meiklejohn Hankins
783 1 is are
785 20 maybe may be
786 11 That' That
Page Line Error Correction
Vol.
5 803 15 Meiklehohn Meiklejohn
804 15 Meiklehohn Meiklejohn
805 9 Meiklehohn Meiklejohn
JD(NY)–09–08
APPENDIX
24
807 8 Meiklehohn Meiklejohn
811 6, 15 Meiklehohn Meiklejohn
817 2 Meiklehohn Meiklejohn
818 3 Meiklehohn Meiklejohn
823 18 Meiklehohn Meiklejohn
826 17 Meiklehohn Meiklejohn
828 9 Meiklehohn Meiklejohn
832 11,18,24 Meiklehohn Meiklejohn
833 11 Meiklehohn Meiklejohn
835 1 Meiklehohn Meiklejohn
845 16 Meiklehohn Meiklejohn
849 13 Meiklehohn Meiklejohn
852 10, 13 Meiklehohn Meiklejohn
864 21 Meiklehohn Meiklejohn
865 6, 22 Meiklehohn Meiklejohn
867
14, 21,
25 Meiklehohn Meiklejohn
868 3, 13 Meiklehohn Meiklejohn
869 6 Meiklehohn Meiklejohn
870 13 Meiklehohn Meiklejohn
873 14-25
testimony of prev. wit.
Deleted
874 "1-15"
testimony of prev. wit.
Deleted
878 3 Meiklehohn Meiklejohn
879 20 Meiklehohn Meiklejohn
885 20 Meiklehohn Meiklejohn
887 14 Meiklehohn Meiklejohn
888 7 Meiklehohn Meiklejohn
894 23 Meiklehohn Meiklejohn
896 15 Meiklehohn Meiklejohn
900 24 Meshintucket Pequa Mashantucket Pequot
901 3 Meshintucket Mashantucket
902 24 Travel Tribal
908 10 delete "U"
911 23 Meiklehohn Meiklejohn
913 13 Meiklehohn Meiklejohn
914 25 Meiklehohn Meiklejohn
916 11 Meiklehohn Meiklejohn
917 20 Meiklehohn Meiklejohn
919 2 Meiklehohn Meiklejohn
931 11 Meiklehohn Meiklejohn
932 6 Meiklehohn Meiklejohn
932 12 Meiklehohn Meiklejohn
933 7 Meiklehohn Meiklejohn
935 9 Meiklehohn Meiklejohn
937 1 Meiklehohn Meiklejohn
938 1 Meiklehohn Meiklejohn
938 9 Meiklehohn Meiklejohn
JD(NY)–09–08
APPENDIX
25
939 16 Meiklehohn Meiklejohn
941 1 Meiklehohn Meiklejohn
948 22 There They
950 1 delete "Q"
951 21 Meiklehohn Meiklejohn
952 5 Meiklehohn Meiklejohn
968 5 Meiklehohn Meiklejohn
970 8 Meiklehohn Meiklejohn
970 23 Meiklehohn Meiklejohn
971 9 Meiklehohn Meiklejohn
972 3 Meiklehohn Meiklejohn
972 11 Meiklehohn Meiklejohn
972 19 Meiklehohn Meiklejohn
974 1 Meiklehohn Meiklejohn
974 10 Meiklehohn Meiklejohn
975 7 Meiklehohn Meiklejohn
975 15 Meiklehohn Meiklejohn
978 3 Meiklehohn Meiklejohn
982 14 Judge Green Mr. Hankins
982 18 Judge Green Mr. Hankins
985 2 Judge Green Mr. Hankins
Page Line Error Correction
Vol.
6 998
Employer Exh 54 & 55 put
into evidence on page 1022
1010 4 Mr. 5 Mr. O'Connor
1010 11 Meiklejohn Hankins
1010 12 Hankins Judge Green
1011 16 eight right
1012 13 Mr. 3 Mr. Hankins
1094 12 we hasn't we haven't
1102 23 can od can do
1103 3 of sa of a
1106 21 can't day can't say
Page Line Error Correction
Vol.
7 1214 11 Donald MacPhee Cathy Healy
1220 24 are their are there