HRHH Gaming Senior Mezz, LLC d/b/a Hard Rock Hotel & Casino

National Labor Relations Board - Administrative Judge Opinions

Apr 21, 2017

28-CA-183553 (N.L.R.B. Apr. 21, 2017)

JD(SF)–16–17
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HRHH GAMING SENIOR MEZZ, LLC
d/b/a HARD ROCK HOTEL & CASINO
28–CA–183553
and
GENERAL TEAMSTERS, AIRLINE, AEROSPACE
AND ALLIED EMPLOYEES, WAREHOUSEMEN,
DRIVERS, CONSTRUCTION, ROCK AND SAND,
LOCAL 986, affiliated with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Larry A. Smith, Esq., for the General Counsel.
David B. Dornak, Esq. (Fisher & Phillips, LLP),
for the Respondent.
Debra S. Goldberg, Esq. (Weinberg,
Roger & Rosenfeld) for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on January 24, 2017,
in Las Vegas, Nevada. Based on a charge and amended charge filed by General Teamsters,
Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local
986, affiliated with International Brotherhood of Teamsters (Local 986, the Union or Charging
Party), the Regional Director for Region 28 issued a consolidated complaint on April 29, 2016
(the complaint). The General Counsel alleges that Respondent HRHH Gaming Senior Mezz,
LLC d/b/a Hard Rock Hotel & Casino (Respondent or HRHH) violated Section 8(a)(1) of the
National Labor Relations Act (the Act), by denying an employee’s request to be accompanied by
a union representative at a peer-review proceeding regarding his discharge. Respondent denies
committing the unfair labor practice alleged.1

1 This allegation is set forth at paragraphs 5(k) through 5(m) of the complaint; prior to hearing, the
General Counsel severed all other substantive allegations from the complaint, as reflected by the single
case number remaining in the caption of this decision.
JD(SF)–16–17
2
At trial, all parties were afforded the right to call, examine and cross-examine witnesses, to
present any relevant documentary evidence, to argue their respective legal positions orally, and
to file post-hearing briefs. Post-hearing briefs were filed timely by the General Counsel and
Respondent and have been carefully considered.2
5
I. FACTS
Until 2016, discriminatee Dean Varos (Varos)3 worked as a valet attendant at Respondent’s
Las Vegas, Nevada hotel and casino, where he was represented by Local 986. This case
concerns Varos’ request that a Local 986 representative be present while he was questioned at a 10
“Board of Review” hearing regarding a workplace accident relied on by Respondent to discharge
him.
A. Varos’ Workplace Accident and Respondent’s Response
15
On May 14, 2016,4 Varos damaged a customer vehicle. After a brief suspension and drug
test, Respondent returned him to work as it further investigated the accident. During the next 2
weeks, a number of meetings and/or conversations took place between management officials and
Local 986 Representative Tamura Jamison (Jamison) regarding Varos. On May 31, Varos and
Jamison met with Respondent officials, including Director of Human Resources Charles Flieger 20
(Flieger) and Assistant Director Ruth Vasquez (Vasquez), for what Flieger characterized as a
“due process meeting,” during which the accident and potential forms of discipline were
discussed. (Tr. 34, 36–37, 40, 45–46; R. Exh. 9)
Following this meeting, Respondent determined that Varos should be discharged. According 25
to Flieger, he and at least one other HRHH representative met with Varos on June 7 to “review
the Company’s decision…to terminate his employment.” According to Flieger’s unrebutted
testimony, Jamison was invited to attend this meeting, but declined. (Tr. 28) Following the June
7 meeting, Flieger “terminated” Varos’ employment in Respondent’s HRIS5 computer database,
which effectively ended his workers’ compensation and insurance coverage. He also signed a 30
“separation form” for Varos, which led to his status in the payroll system being changed.6

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for the General Counsel’s post-hearing
brief and “R. Br.” for Respondent’s post-hearing brief.
3 Throughout the record, Varos’ name is misspelled as “Verez.” The record is hereby amended to
correct these misspellings.
4 All dates herein refer to 2016, unless otherwise noted.
5 “HRIS” stands for Human Resource Information System, a form of information technology that,
inter alia, allows employers to store employee data, manage payrolls and administer benefits. See
https://en.wikipedia.org/wiki/Human_resource_management_system
6 According to Respondent, it provided Varos with a “benefits package” at this time, and Flieger also
“reviewed and discussed COBRA documents, unemployment compensation and benefit options” him
(R. Br. at 8) However, although Flieger did testify these were typically the steps that took place
following Respondent informing an employee of his discharge, he did not confirm that this took place in
Varos’ case. (See Tr. 28)
JD(SF)–16–17
3
B. Respondent’s Board of Review Process
Pursuant to HRHH internal policies,7 Respondent’s actions entitled Varos to request a “Board
of Review” (BOR) proceeding. The BOR process involves a hearing on the merits of a given
discipline before a panel of three hourly employees (one from within and two from outside the 5
aggrieved employee’s department), as well as two managers from outside the employee’s own
department. According to Respondent’s internal training materials, the BOR “functions as a
‘checks and balance’ process for [employees] who feel they were issued corrective action or
separated unfairly.” A typical BOR hearing involves the presentation of documentary and
testimonial evidence by HRHH and the aggrieved employee. This is followed by questions put 10
to either or both parties by the BOR members, and the presentation of closing arguments. The
proceeding is then closed, at which time the BOR panel member deliberate and ultimately cast
secret ballots to determine the outcome.
A BOR may vote to sustain, reverse or reduce discipline. In the case of discharge, the panel 15
may also vote to award reinstatement and backpay. According to Flieger, an employee reinstated
as a result of a BOR proceeding would have their status reinstated in Respondent’s HRIS
database for purposes of payroll, benefits and workers compensation. A BOR panel makes a
recommendation only, which may be overturned by Respondent’s Chief Operating Officer;
however, this has not occurred for at least 4 years. (Tr. 17, 20, 24, 30–31, 44–45; R. Exh. 1–3, 20
5–7)
C. Varos’ Board of Review Process

Following the June 7 meeting, Varos timely requested a BOR review of his discharge; his 25
BOR hearing was held several months later. (Tr. 51) Varos’ request for union representation
arose in the course of scheduling that hearing. Specifically, on Saturday, September 3, Flieger
emailed Varos as follows:
I’d like to conduct the BOR process in the next few days. I have 30
set aside time on Tuesday, Wednesday, and Thursday.
If you aren’t able to attend a BOR on those days I’m afraid I’ll
have to close your request. Please let me know which day will
work best.35
(GC Exh. 2(b)) The following afternoon, Varos responded that he would be available Tuesday
afternoon, adding:
A couple questions:40
1. Will there still be someone there from classic valet on the BOR
Board as previously discussed
2. Other than the HR representative, Board of review members
and myself, who else will be sitting in on the proceedings ?45

7 No collective-bargaining agreement or grievance and arbitration procedure exists between the
parties. (Tr. 54)
JD(SF)–16–17
4
3. If their [sic] are other observers to be sitting in on the
proceedings, will a representative from the Teamsters Union be
allowed to sit it also.
Id. The BOR did not go forward on Tuesday, however. Instead, at 10:37 a.m. that day, Flieger 5
begged off, asking “can we schedule for Wednesday?” He then replied to Varos’ inquiries in
order:
1. We will schedule a representative from your Department.
2. Aside from those mentioned, there will be someone present taking notes.10
3. A representative from Teamsters will not be permitted to sit in.
(GC Exh. 2(a)) Approximately 3 hours later, Varos responded, “I figured it wouldn’t happen
today! Tomarrow [sic] as close to 4 would be fine.” Id.
15
Varos’ BOR was held at 3 p.m. on Wednesday, September 7. Counsel for the General
Counsel failed to present Varos—or any other individual present during the interview in
question—as a witness, but instead relies on Respondent’s official minutes of the proceeding.
These minutes indicate that the proceeding adhered to the standard BOR format, including Varos
being questioned by members of the BOR panel, as well as HRHH’s representative at the BOR, 20
Assistant Director Vasquez. Subjects on which Varos was questioned included:
 the scope of his job duties as a valet attendant;
 his awareness of HRHH “guidelines” for inspecting work areas;
 any vehicle warning or alert he received prior to the May 14 accident; and25
 whether another individual should be held responsible for the accident.
(GC Exh. 3; Tr. 15) There is no indication that, at any time prior to or during the BOR hearing,
Varos reiterated his September 4 request for union representation during this questioning.8
According to Respondent’s records, the BOR panel voted to uphold Varos’ discharge. (GC Exh. 30
3)
II. ANALYSIS
It is well settled that Section 7 guarantees an employee the right (generally referred to as a
“Weingarten right”) to be accompanied and assisted by a union representative at an 35
“investigatory” interview, which is one the employee reasonably believes may result in
disciplinary action. NLRB v. Weingarten, 420 U.S. 251, 260 (1975). Weingarten rights,
however, are designed leave intact “legitimate employer prerogatives,” and an employee that
requests a representative is not guaranteed the approval of his request. Id. at 258. Instead, an
employer is free to deny the request and proceed with its investigation, leaving the employee 40
“the choice between having an interview unaccompanied by his representative, or having no
interview and foregoing any benefits that might be derived from one.” Id. (citing Mobil Oil
Corp., 196 NLRB 1052, 1052 (1972)).

8 According to the meeting notes, Varos made only one reference to being represented by Local 986:
asked whether HRHH had notified him in writing of a change in work rules, he responded, “No. Only
verbal. We are Union and policies need to be posted.” (G.C. Exh. 3(f))
JD(SF)–16–17
5
Significant to this case, an employee who weighs these two options and voluntarily submits
to an interview unaccompanied will be found to have waived his Weingarten rights. See, e.g.,
Seattle-First National Bank, 268 NLRB 1479 (1984). Waiver will not be found, however, where
it results from employer conduct aimed to “dissuade an employee from remaining firm in his
request,” such as suggesting that maintaining the request will result in the involvement of 5
“higher management” and more harsh disciplinary consequences. Southwestern Bell Telephone
Co., 227 NLRB 1223 (1977). What follows is an application of these principles to the instant
case:
A. Varos’ September 7 BOR was “Investigatory” and Triggered Weingarten Rights10
Respondent argues that Varos was not entitled to a Weingarten representative on September
7, because the BOR was not “investigatory” in nature, in that an employee in Varos’ position
would not reasonably believe—based on objective standards—that it might result in disciplinary
action. NLRB v. Weingarten, 420 U.S. at 257, fn.5. I disagree.15
It is certainly true that an employee is not entitled to union representation at every meeting
regarding discipline. Weingarten rights are afforded to employees facing the possibility of
involuntary adverse action; thus, an employee who voluntarily resigns is not entitled to
representation at a meeting to present a request for reinstatement. Polson Industries, 242 NLRB 20
1210 (1979). Moreover, for the rights to attach, discipline must ‘hang in the balance’; if the
employee’s disciplinary outcome is not dependent on the interview in question, there is no right
to a representative. Baton Rouge Water Works, Co., 246 NLRB 995, 997 (1979) (no right to
representative at meeting “held solely for the purpose of informing the employee of, and acting
upon, a previously made disciplinary decision”). Conversely, an employee remains entitled to a25
representative—even after the employer has engaged its disciplinary processes—until the point
at which that discipline becomes final. PPG Industries, Inc., 251 NLRB 1146, 1146, fn.2 (1980)
(Weingarten applicable where employer “did not reach a final, binding decision concerning
specific discipline prior to” the meeting in question).
30
Where an employer’s disciplinary actions are not final and binding until after they are
reviewed by a designated body that reviews the case for discipline, deliberates and affirms the
decision, that body’s proceedings constitute will be deemed “investigatory” for purposes of the
Weingarten doctrine. Henry Ford Health System, 320 NLRB 1153, 1155 (1996); see also
Midwest Division–MMC, LLC, 363 NLRB No. 193 (2015). Such is the case even where the 35
review is not automatic, but is initiated by the aggrieved employee. See, e.g., Washoe Medical
Center, Inc., 348 NLRB 361, 361–362 (2006). As the Board has noted, it is irrelevant under
such an analysis whether the reviewing body in question lacks the ability to increase the
discipline in question; the fact that the reviewing body’s determination is a necessary
prerequisite to any discipline suffices as reasonable grounds for the employee to believe that its 40
proceedings may result in discipline. Henry Ford Health System, 320 NLRB at 1155, fn.5.
Applying these standards to Varos’ September 7 BOR produces but one conclusion: he was
entitled to union representation. Unlike an employee who had voluntarily resigned, Varos faced
discharge. Moreover, the conduct of Varos’ BOR—which followed the standard format for such 45
meetings—clearly involved more than merely informing him of a prior, unilateral decision to
discharge him. Per Respondent’s established policy, the meeting was held to have his case
heard, deliberated and adjudicated before his status was finally resolved. Because his
JD(SF)–16–17
6
employment status was in limbo at the time of the meeting—as reflected by the BOR’s authority
to recommend his reinstatement—Varos was entitled to a Weingarten representative.
B. Varos Properly Invoked his Weingarten Rights
5
Once it is established that a particular interview confers Weingarten rights, the next question
is whether such rights were validly invoked. As the Board has made clear, an employee’s
request for representation need not amount to an explicit demand, but must only be sufficient to
put the employer on notice of the employee’s desire for union representation. For example, the
request can be phrased as a question, such as in Southwestern Bell Telephone Co., 227 NLRB at 10
1227 (Weingarten rights triggered where one employee asked supervisor whether they “should
obtain union representation” and another employee stated, “I would like to have someone there
that could explain to me what was happening”).
In this case, Varos made his request for a Local 986 representative amply clear by directly 15
asking Flieger whether “a representative from the Teamsters Union” would be allowed to attend
the BOR hearing. As such, I find that he properly invoked his Weingarten rights.
C. Varos Waived his Right to Representation by Participating in the September 7 BOR
20
Respondent contends that, to the extent that Varos’ BOR implicated Weingarten rights, he
waived those rights by voluntarily proceeding with the September 7 meeting without union
representation. I agree.
As noted supra, an employee’s Weingarten right, once asserted, is hers to waive; this occurs 25
most often where, as here, the employer denies the employee’s request, forcing the employee to
choose between: (a) continuing the interview unaccompanied, thereby waiving her right to
representation; or (b) preserving her right to representation by foregoing the interview. As
discussed, an employee who—in the absence of intimidation or dissuasion by the employer—
chooses the former option will be found to have voluntarily relinquished the right to 30
representation. See, e.g., Seattle-First National Bank, supra.
Such is the case here. Upon receiving Varos’ request for representation, Flieger denied that
request, thereby forcing Varos either to proceed without representation or abandon his BOR.
There is no indication in the record, nor does the General Counsel argue, that, prior to presenting 35
Varos with these alternatives, Flieger (or any other representative of Respondent) took any action
to encourage Varos to waive his rights by attending. Under such circumstances, I find that,
although he clearly could have refused, Varos voluntarily chose to attend the BOR in an attempt
to regain his employment. As such, Respondent, by conducting the BOR, operated within the
parameters of the Board’s Weingarten doctrine. Id. at 1481.40
JD(SF)–16–17
7
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
5
It is recommended that the complaint be dismissed in its entirety.
Dated: Washington, D.C. April 21, 201710
Mara-Louise Anzalone
Administrative Law Judge

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.