Foxwoods Resort Casino

National Labor Relations Board - Board Decisions

Jun 30, 2008

352 N.L.R.B. 771 (N.L.R.B. 2008)

FOXWOODS RESORT CASINO
352 NLRB No. 92
771
Foxwoods Resort Casino and International Union,
UAW, AFL–CIO, Petitioner and State of Con-
necticut, Intervenor. Case 34–RC–2230
June 30, 2008
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered
objections to an election held November 24, 2007, and
the administrative law judge’s report concerning disposi-
tion of them.1 The election was conducted pursuant to a
Decision and Direction of Election. The tally of ballots
shows 1289 for and 852 against the Union, with 36 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs,2 has adopted the judge’s findings and
recommendations as modified below,3 and finds that a
certification of representative should be issued.
1. We agree with the judge’s recommendation to over-
rule the Employer’s Objections 2, 3, and 5, concerning
translation of the notice of election and ballots. See, e.g.,
Bally’s Atlantic City, 352 NLRB 316, 321–322, 326–327
(2008) (Regional Office’s refusal to translate the election
notice did not warrant setting aside the election; the
judge observed, inter alia, that employees were required
to speak English on the job, that documents such as job
applications and employee handbooks were issued in
English only, and that the employer provided translated

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh. Pursuant to this delegation, Chairman Schaumber
and Member Liebman constitute a quorum of the three-member group.
As a quorum, they have the authority to issue decisions and orders in
unfair labor practice and representation cases. See Sec. 3(b) of the Act.
2 The judge was sitting as a hearing officer in this representation
proceeding. The Employer has implicitly excepted to some of the hear-
ing officer’s credibility findings. The Board’s established policy is not
to overrule a hearing officer’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
3 We correct the following inadvertent errors by the judge, which do
not affect our decision. Two employee witnesses named Yin Chen
testified. Mr. Yin Chen, not Ms. Yin Chen, testified that he saw elec-
tion notices posted in the casino in English and Chinese. Employee
Barry Shuen, not Yin Chen, testified that he could read traditional and
simplified Chinese and knew that “UAW” meant the Union. Finally,
employee Ya Qiong Zeng did not testify that she saw the election no-
tices at the casino.
In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendations to overrule Objections 7–12.
explanations of the election process during its pre-
election employee meetings).4
2. We also agree with the judge’s recommendation to
overrule the Employer’s Objection 6, which alleges that
agents of the Union engaged in objectionable list keeping
on election day. See, e.g., Piggly-Wiggly #011, 168
NLRB 792 (1967) (election set aside where union repre-
sentatives stood in front of the polling place with a list of
eligible employees and checked off employees’ names as
they entered). The Employer relies on the conduct of
unit employee Mary Johnson, a member of the Union’s
employee organizing committee. The Employer argues
that Johnson was an agent of the Union under the doc-
trine of apparent authority.5
In Corner Furniture Discount Center, 339 NLRB
1122, 1122 (2003), the Board stated:
Apparent authority results from a manifestation
by the principal to a third party that creates a reason-
able basis for the latter to believe the principal has
authorized the alleged agent to perform the acts in
question. Either the principal must intend to cause
the third person to believe the agent is authorized to
act for him, or the principal should realize that his
conduct is likely to create such a belief.
Employee members of an in-plant organizing commit-
tee are not, per se, agents of the union. See Cornell
Forge Co., 339 NLRB 733 (2003); Advance Products
Corp., 304 NLRB 436 (1991).6 Indeed, the Board has
found activities such as distributing literature, soliciting
signatures on authorization cards, and talking to fellow
employees about the union insufficient to make employ-
ees general agents of the union.7
The burden of proving agency is on the party asserting
it. Millard Processing Services, 304 NLRB 770, 771
(1991), enfd. 2 F.3d 258 (8th Cir. 1993), cert. denied 510
U.S. 1092 (1994). Here, assuming arguendo that John-
son engaged in objectionable list keeping, the Employer
failed to prove that her conduct was attributable to the
Union.

4 We do not rely on the statements in NLRB v. Precise Castings, 915
F.2d 1160, 1161–1162 (7th Cir. 1990), cert. denied 499 U.S. 959
(1991), quoted by the judge in the present case, that the Board no
longer requires “laboratory conditions” or “meticulous safeguards” for
elections. Rather, we find that the Employer failed to show that labora-
tory conditions were compromised.
5 The Employer does not contend that Johnson’s conduct would war-
rant setting aside the election if she were not a union agent.
6 Chairman Schaumber concurred in Corner Furniture, supra, and
Cornell Forge, supra, and he adheres to his positions in those cases.
7 See, e.g., Corner Furniture, supra at 1123; Advance Products
Corp., supra at 436.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD772
The employee organizing committee was a group of
about 105 employees who spoke to coworkers about the
Union, distributed literature, and met with union repre-
sentatives to discuss working conditions and issues and
to help identify coworkers who might be prounion. Any
employee who wanted to call herself a member of the
committee could do so.
The evidence does not show that the committee mem-
bers were the Union’s primary conduits of communica-
tion to employees or that union representatives were gen-
erally absent from the campaign. See, e.g., Corner Fur-
niture, supra at 1123 (noting that the employee in ques-
tion was not the union’s only conduit to employees; em-
phasizing the active role played by the union’s paid rep-
resentative). Rather, the Union maintained a substantial
presence throughout the campaign, beginning the cam-
paign with a staff of 10 to 15 organizers and increasing
that number to about 50 by the week of the election.
Employee organizing committee members did not con-
duct the Union’s meetings; members attended home vis-
its only in the presence of a union staff member. The
Union occasionally asked committee members to “tell
their stories” to the press about why they wanted union
representation, and the Union’s media specialist worked
with employees on how to present their stories, but there
is no evidence that those stories were presented as any-
thing other than employees’ personal views.
With respect to employee Johnson specifically, al-
though other witnesses testified that she appeared in a
union campaign video, the video itself was not intro-
duced in evidence, nor does the record contain any testi-
mony about Johnson’s role in it. Similarly, the record
contains a paucity of detail regarding Johnson’s level of
participation in other organizing committee activities.
The evidence does not show that the Union held out
Johnson as its spokesperson or, in particular, that the
Union condoned or was even aware of Johnson’s alleged
list keeping.
In these circumstances, we find that the Employer
failed to prove that Johnson had apparent authority to
engage in the alleged list keeping. We therefore overrule
Objection 6.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union, UAW, AFL–CIO, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full-time and regular part-time licensed dealers em-
ployed by the Employer at its Connecticut Casino, in-
cluding poker dealers, table game dealers, and dual rate
dealers; but excluding all other employees, office cleri-
cal employees, and guards, professional employees,
and supervisors as defined in the Act.
William E. O’Connor, Esq. and Terri Craig, Esq., for the Re-
gional Director.
Richard B. Hankins, Esq., Alston Correll, Esq., Keith M.
Harper, Esq., and Betsy Conway, Esq., for the Employer.
Thomas W. Meiklejohn, Esq. and Elizabeth A. Conklin, Esq.,
for the Union.
DECISION ON OBJECTIONS
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Hartford, Connecticut, in January 15, 16, 17, 23, 24, 28,
and 29, 2008.
The petition in this case was filed by the Union on Septem-
ber 28, 2007. Pursuant to a Decision and Direction of Election
issued on October 24, 2007, an election was conducted on No-
vember 24, 2007. Of approximately 2629 eligible voters, 1289
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 exclud-
ing 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 is-
sued a supplemental decision on objections and notice of hear-
ing. On January 16, 2008, the Board issued an Order rejecting
the Employer’s appeal of those objections that had been over-
ruled by the Regional Director.1 In pertinent part, the Regional
Director overruled Objections 1 and 4 and sent the remaining
objections to a hearing.2
The remaining objections are as follows:

1 It is noted that the Employer contended in the underlying represen-
tation 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 jurisdic-
tion 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 excep-
tions to the Regional Director’s Decision and Direction and Election.
The jurisdictional issue is therefore not before me.
2 Objection 1 simply reasserted the Employer’s contention that the
Board lacks jurisdiction in this matter. Objection 4 asserted that be-
cause the Petitioner was identified on the ballot only as “UAW” this did
not comport with the Representation Casehandling 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.
FOXWOODS RESORT CASINO 773
Objection 2
The Employer alleges that ballots were available only
in English despite the fact that numerous employees spoke
other languages.
Objection 3
The Employer alleges that the Board’s official notices
were available only in English and traditional Chinese.
Objection 5
The Employer alleges that the wording on the trans-
lated official notice did not comply with Board policy and
procedure.
Objection 6
The Employer alleges that agents of the petitioner in-
terfered with the election by making it known that they
were keeping lists of the names and badge numbers of eli-
gible voters, whether they voted and how they voted.
Objection 7
The Employer alleges that Petitioner’s agents inter-
fered 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 8
The Employer alleges that the Petitioner’s agents inter-
fered with the election by engaging in a pattern of harass-
ment, threats and intimidations for the purpose of sup-
pressing voter turnout of those who opposed unionization.
Objection 9
The Employer alleges that the Petitioner’s agents inter-
fered 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 10
The Employer alleges that the Petitioner’s agents inter-
fered with the election by harassing and ridiculing eligible
voters who did not support unionization.
Objection 11
The Employer alleges that the Petitioner’s agents inter-
fered with the election by threats of bodily harm to em-
ployees who expressed opposition to the Union.
Objection 12
The Employer alleges that by the above and other acts
the Petitioner has engaged in conduct warranting the set-
ting aside of the election.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following3
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

3 Certain errors in the transcript are noted and corrected.
was filed until the date that the election was held. Ideal Elec-
tric & 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 objec-
tive one- whether it has “tendency to interfere with the em-
ployees’ freedom of choice.” Cambridge Tool Mfg., 316
NLRB 716 (1995). In determining whether a party’s miscon-
duct 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 elec-
tion; (5) the degree to which the misconduct persists in the
minds of the bargaining unit employees; (6) the extent of dis-
semination of the misconduct among the bargaining unit em-
ployees; (7) the effect, if any, of 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 prounion em-
ployees, there is an issue as to whether those persons should be
construed as agents so that their conduct may legally be attrib-
utable to the Union. Ordinarily, employees, whether supporters
of a union or supporters of 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 em-
ployee 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 664 (1998).
I note, however, that there can be certain very limited situa-
tions where the actions of third parties (including employees)
may be sufficient to set aside an election. But in those situa-
tions 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 Me-
morial, 310 NLRB 943 (1993). See also Duralam, Inc., 284
NLRB 1419 (1987).
In Lamar Advertising of Janesville, 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 prounion 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD774
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 dis-
seminated 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. OBJECTIONS 2, 3 AND 5
The Translation Issue
In these objections, the Employer contends: (a) that the Re-
gional Office of the NLRB erred by failing to translate the no-
tice of election into traditional and simplified Chinese, (b) that
notwithstanding the issuance of the notice in English and tradi-
tional 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 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 NLRB Casehandling Manual (which, in part, 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 lan-
guage 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

4 The organizing committee had 105 employees on it and these peo-
ple were self-selected. Anyone who wanted to join could become a
member. They solicited union authorization cards from other employ-
ees. 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.
5 See Superior Industries, 289 NLRB 834 fn. 13 (1988).
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 transla-
tions 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 Eng-
lish.).
And at Section 11315.2, the Representation Casehandling
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 vot-
ers 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 repro-
duced 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, 919 (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 re-
quiring the use of ballots in multiple languages. North-
west Products, Inc., 226 NLRB 653 (1976); Precise Cast-
ings, 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 Casehan-
dling 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 bal-
lots, that nothing in the Act prevents the Board from giv-
ing the Regions discretion in matters of this kind. Precise
Castings, supra at 1164. Therefore, the Employer’s argu-
ment addressing other Regions use of foreign language
ballots is simply irrelevant. Region 13 is within its discre-
tion 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, 1161–1162 (7th Cir.
1990). The court, discussing its difference of opinion from an
earlier Fifth Circuit case, stated:
Only a multilingual ballot assures the “laboratory con-
ditions” 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 Corrugated Container Corp., 431 F.2d 1196 (1st
Cir. 1970).
FOXWOODS RESORT CASINO 775
The fifth circuit found two defects in the use of Eng-
lish 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 lan-
guages 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 size-
able 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 politi-
cal ones, and in part on a belief that employees were easily
misled and incapable of expressing their true choice ex-
cept 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 Co., 140 NLRB 221 (1962)] . . . overruled Gen-
eral Knit of California, Inc., 239 NLRB 619 (1978). . . .
Today the Board is much more likely than in 1969 to be-
lieve 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.
. . . .
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 jurisdic-
tions 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 do 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 2629 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 tradi-
tional 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
3000 are shared by both versions of written Chinese. (For our
purposes, there is no such thing as a written version of Canton-
ese.) 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 differ-
ences, 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 voters, translated into a variety
of languages, including Chinese, explaining that they were

6 Jt. Exh. 14 is a list 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 at-
tempts 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 Man-
darin.
8 In written Chinese, each character represents a word. It is not like
an alphabet or a system where each written character represents a sylla-
ble. Since each character in Chinese can represent a number of different
words, two characters are often used together to make the meaning
precise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD776
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, Span-
ish, 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 trans-
lations. 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 be-
come 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
the 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 elec-
tion 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 Chi-
nese made it very clear that this was to be a secret-ballot elec-
tion 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 of-
fice. In addition to the continuing objection, expressed re-
peatedly to you and the Regional Director, regarding the fail-
ure 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 objec-
tions 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.
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 pro-
vide notices in Mandarin and Cantonese Chinese,” I note ini-
tially 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 understand-
ing that there is only one form of written Chinese, commonly
referred to as Mandarin Chinese. Although there is a Canton-
ese dialect, a distinct written form of that dialect does not ex-
ist. In this regard, at no time have you ever advised the Re-
gional 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, un-
contradicted 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 Em-
ployer 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 Can-
tonese language. Therefore, the Employer’s postelection objec-
tion 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 vot-
ing unit who likely were born in China, Taiwan, or Hong Kong
(before it reverted to China). I am going to assume that be-
cause 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 em-

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.
FOXWOODS RESORT CASINO 777
ployees who emigrated from other countries. Janet Cummings,
the Employer’s vice president of communications, testified that
the first translated document was issued in December 2006.
Thereafter, the Employer has issued some written communica-
tions to its employees in a variety of languages including tradi-
tional and simplified Chinese. But this practice has not been
uniform and a number of important documents have been is-
sued without translation. These latter would include the em-
ployee handbook, a monthly bulletin (monthly matters), em-
ployment applications, instructional books, disciplinary notices,
and licenses.10
Also, until about 2 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 2 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 Fox-
woods passes an aptitude test (given in English), and success-
fully 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 8 weeks of
8-hour classes and is taught by Foxwoods employees only in
English over a 3-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 midterm
test, and a comprehensive final exam consisting of about a 100
questions. These are written tests and are given only in Eng-
lish. 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 midterm or at the
final, he or she is out. Obviously, if the applicant can’t under-
stand 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 instruc-
tions in Chinese. (Albeit I have no idea if the written materials
used are in English or Chinese). Nevertheless, if the person

10 The Employer pointed out that the Union, via written materials
and through its website, provided Chinese translations of its campaign
materials. 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.
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
applicant is true. On that document, there is a space for the
applicant’s signature and a place for the signature of an inter-
preter 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 Em-
ployer 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 Em-
ployer’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 vari-
ety 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 an 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.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD778
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 elec-
tion 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 exam-
ple, 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 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 materials in English and
Chinese urging people to vote “Yes.” Without going into de-
tail, this material was distributed by hand, by mail, and via the
Union’s website.
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 unaware of the issues and were aware that marking a bal-
lot 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 eli-
gible voters who essentially claimed that they did not under-
stand the English language ballot. This represents 2.6 percent
of the Chinese dealers and there is no indication that this consti-
tutes a random or representative sample. (Being excellent at-
torneys, 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

12 Although relevant, I don’t place much reliance on the more gener-
alized testimony of the Employer’s witnesses who asserted that some
unidentified Chinese dealers have difficulty in communicating or read-
ing English. For one thing, the testimony in this regard does not dis-
close 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 percent 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 10 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 some-
times hard to communicate, he manages to do so in English. Betty Ann
Mr. Yin Chen, who started working at Foxwoods in Septem-
ber 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 indi-
cated 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 Un-
ion, 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.)
Ms. Yin Chen, who had been employed for 4 months at Fox-
woods at the time of the hearing, was born in China. She testi-
fied 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 at-
tended three preelection 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 em-
ployee 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 elec-
tion.
Lin Shuzhen had been employed as a dealer at Foxwoods for
5 months at the time of the hearing. She was born in Fujian
province and has been in the United States for 4 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 be-
fore the translator posed questions to her in Chinese. Like Ms.
Yin Chen, she signed an English language confidentiality
agreement and she signed an English language document indi-
cating 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 3
years.13 She testified that she knows how to speak some Eng-
lish but has difficulty with written English. (She used the trans-
lator during the hearing more often than Lin Shuzhen and either
Yin Chen.) Her employment application indicates that she

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.
13 This would mean that she must have gone through the Foxwoods
training school where the entry level Blackjack course is given in Eng-
lish only and where the job applicants are required to take and pass a
series of English language tests.
FOXWOODS RESORT CASINO 779
speaks, reads, and writes in Chinese and English. Zeng testi-
fied that she voted in the election and that she 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 litera-
ture 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 3 years and
her primary languages are Cantonese and Mandarin. (She stud-
ied English for 1 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 in-
structions, 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 8 years. He testified that he can read a
little English but that if he receives an English language memo-
randum at work 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 6
years and attended the Foxwoods training school. He testified
that his primary language is Cantonese and that he “seldom”
reads English. Pun testified that when his children sometimes
ask him about their homework he will use the dictionary to help
them understand English words. He testified that he is a U.S.
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 2 years of English in college. He voted in the elec-
tion.
May Wong was born in Canton and came to the United
States in 2000. She has been employed at Foxwoods for 8
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 preelection
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 ac-
knowledged 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

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.
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 8
years. She testified that she can read simple English and that if
she gets company memos in English she asks someone to trans-
late or uses a dictionary. Although somewhat evasive, Liang
admitted that she attended one preelection company meeting
held at 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 elec-
tion. 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 6 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 preelec-
tion 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 U.S. citizen.
Chen has been employed by Foxwoods for 8 years and pre-
sumably she went through the Foxwoods training school. On
cross-examination, she acknowledged that she attended two
company held preelection 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 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 in-
spection. 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 be-
cause the sample ballot was not translated into Chinese or be-
cause the notice of election was translated only into traditional
Chinese.15

15 After the briefs were filed, counsel for the Regional Director of-
fered to submit for an in camera inspection, the voting list, offering to
prove that about 81.4 percent of the Chinese employees voted and that
the overall voter participation rate was 83 percent. Because I don’t
believe that there is any basis for making a causal connection between
the nonvoting of some Chinese dealers and the failure to translate the
ballots into Chinese and/or the failure to translate the notice of election
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD780
Based on the totality of the evidence presented by the Em-
ployer 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 under-
standing 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 Com-
pany 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 includ-
ing Chinese.
In short I conclude that Objections 2, 3, and 5 should be
overruled.
III. OBJECTION 6
In this objection, the Employer alleges that agents of the Un-
ion 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 restrooms outside the Sunset Ball-
room 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 Am-
pavo. 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. 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. Ma-
tos states that when she asked him how he voted, he said “no”

into simplified Chinese, I don’t think that it is necessary to take up the
offer.
and she replied that, “[Y]ou 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 Ball-
room 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 ap-
peared 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 per-
sons 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 Lopez was made by any person who
had any relationship to the Union. As the conduct alleged can-
not be considered “so aggravated as to create a general atmos-
phere 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 7
In this objection, the Employer alleges that the Union inter-
fered with the election by making a speech to a massed assem-
bly 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 be grounds for setting aside the election. In Peerless
Plywood, 107 NLRB 427, 429 (1953), the Board held that em-
ployers 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 mi-
nor conversation between a few employees and a union agent
or supervisor for a 24-hour period before an election.” Busi-
ness 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

16 Julie Kushner testified that she gave instructions to all of her staff
to stay off the property during the election.
FOXWOODS RESORT CASINO 781
during the 24-hour period “if employee attendance is voluntary
and on the employees’ own time.” Peerless Plywood Co., su-
pra 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 Em-
ployer 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 recom-
mend that this objection be overruled.
V. OBJECTIONS 8–12
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 unioni-
zation; (b) threatened eligible voters that the Union would ob-
tain 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
noncoercive 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 Corp., 300
NLRB 584 (1990); Pacific Grain Products, 309 NLRB 690,
691 (1992); Janier Plastic Mold Corp., 186 NLRB 540 (1970);
Duralam, Inc., 284 NLRB 1419 fn. 2 (1987). I also note in this
regard, that the testimony of Matos indicates that he might have
misunderstood the alleged statement. He testified that he under-
stood 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. Ac-
cording 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 iden-
tify 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

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.
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.” Tran testified that they 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 3 days before the elec-
tion he heard some of the dealers speculating amongst them-
selves 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 represen-
tatives 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 war-
rants 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 elec-
tion 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. 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

18 Flowers also testified that about a month before the election, an-
other 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 objection-
able 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 Flow-
ers, Chipman said that Denson was a liar, a troublemaker, 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD782
established that all three of the alleged incidents occurred be-
fore 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 601 (1997); and Dol-
lar 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 postelection 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.)
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 cafete-
ria 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 vot-
ing 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, testi-
fied 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 de-
nied that either he or anyone else made any threats to harm
Weaver or that they surrounded her in such a manner as to im-
pede 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 es-
capes 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 meet-
ing; that it was a rally type thing. She also testified that a union
representative spoke to the employees and talked about a griev-
ance procedure if employees had complaints at work. Beebe
testified that during this discussion, the representative, Robert

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.
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 corrobo-
rating 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 inci-
dent that was not really referenced in the Employer’s objec-
tions. This involved Harper’s assertion that while she was 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 1 month. According to Shea, he made the offer out of per-
sonal sympathy and not to influence her to vote for the Union.
He testified and she essentially agrees that he did not even men-
tion the Union during the conversation.
Harper also testified that on another occasion she attended a
company meeting where she expressed her opinion that man-
agement should be allowed to express their views. She testified
that shortly after the meeting she was confronted by Mary
Johnson, a member of 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 tes-
tify.) 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 regard-
ing 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
FOXWOODS RESORT CASINO 783
met that burden in this case. Certain of the Employer’s wit-
nesses 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 Corp.,
319 NLRB 420, 422 (1995).
Accordingly, I recommend that Objections 8–12 be over-
ruled.
CONCLUSION 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

20 Under the provisions of Sec.102.69 of the Board’s Rules and
Regulations, Exceptions to this Report may be filed with the Board in
Washington, D.C., 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 recom-
mended decision.