Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, L

National Labor Relations Board - Administrative Judge Opinions

May 2, 2014

28-CB-107960 (N.L.R.B. May. 2, 2014)

JD(SF)–16–14
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS,
CULINARY WORKERS UNION, LOCAL 226,
AND BARTENDERS UNION, LOCAL 165,
affiliated with UNITE HERE
and Case 28–CB–107960
NANI SUGIANTO, an Individual
Gregoire F. Sauter and Nathan Higley, Esqs.,
for the General Counsel.
Yuval Miller, Esq.,
for the Respondent.
John C. Scully, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case was tried before me on
February 11, 2014, in Las Vegas, Nevada. Nani Sugianto (Charging Party) filed a charge on
June 25, 2013, alleging violations by Local Joint Executive Board of Las Vegas, Culinary
Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with Unite Here (the
Respondent) of Section 8(b)(1)(A) of the National Labor Relations Act (the Act). Respondent
filed an answer denying that it violated the Act. The parties were given full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file
briefs. I carefully observed the demeanor of witnesses as they testified and I rely on those
observations here. I have studied the whole record, and based upon the detailed findings and
analysis below, I conclude that the Respondent violated the Act essentially as alleged.
JD(SF)–16–14
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FINDINGS OF FACT
I. JURISDICTION
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The complaint alleges, Respondent admits and I find that:
1. (a) At all material times, Paris Las Vegas Operating Company, LLC, formerly known
as Parball Corporation and doing business as Paris Las Vegas (the Employer), has
been a limited liability company with an office and place of business in Las 10
Vegas, Nevada (the Employer’s facility), and has been engaged in operating a
hotel and casino.
(b) In conducting its operations during the 12-month period ending June 25, 2013, the
Employer purchased and received at the Employer’s facility goods valued in 15
excess of $50,000 directly from points outside the State of Nevada.
(c) In conducting its operations during the 12-month period ending June 25, 2013, the
Employer derived gross revenues in excess of $500,000.
20
(d) At all material times, the Employer was an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. At all material times, Respondent has been a labor organization within the meaning of
Section 2(5) of the Act.25
3. At all material times, Alfonso Gonzalez held the position of shop steward and was an
agent of Respondent within the meaning of Section 2(13) of the Act.
4. At all material times, by virtue of Section 9(a), Respondent was the exclusive 30
collective-bargaining representative of the following employees of the Employer:
All full time and regular part-time employees working under the Union’s
jurisdiction and working in those job classifications listed in Exhibit 1,
attached to and made part of the collective-bargaining agreement between
Respondent and the Employer effective from June 1, 2007 through 35
May 31, 2012 and extended through May 31, 2013 (the Agreement). (See
GC Exh. 2.)
II. ALLEGED UNFAIR LABOR PRACTICES
40
A. Background
Nani Sugianto was employed as a snack bar attendant at JJ’s Boulangerie, a casual dining
restaurant located within the Paris Hotel and Casino. (Tr. 67:13–15.) Shortly after being hired,
she signed a card authorizing the monthly deduction of union dues. (Tr. 73:14–15.) She later 45
determined that she could reap the benefits of the collective bargaining agreement without
paying any union dues and decided to cancel her membership. (Tr. 70:11–17.) On August 16,
JD(SF)–16–14
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2007, she sent a certified letter to the Respondent advising them of her decision to revoke her
monthly union dues. (GC Exh. 3.) On October 9, 2007, she received a response from Wanda
Henry, the Respondent’s director of operations advising her that she could only request to stop
her dues during the 15-day period after the anniversary of the date on which she signed the
authorization. (GC Exh. 4.) Despite this letter from Henry, the deductions from her paychecks 5
stopped and therefore Sugianto took no further action. Then, in August 2012, Sugianto noticed
that dues were again being deducted from her paycheck. She contacted the Employer’s payroll
department and was advised to contact the Respondent. She thereafter contacted Wanda Henry
who explained that the Respondent had never received a timely dues revocation. (Tr. 75:23-
76:5.) Thereafter, Sugainto sent a new revocation to the Respondent on November 26, 2012, and 10
subsequently the deductions ceased. (GC Exh. 5.)1
In the spring of 2013, negotiations between the Respondent and the Employer over a
successor agreement began to grow contentious and there was talk among the employees of the
possibility of a strike. The shop steward, Alfonso Gonzalez was at the time employed as a pizza 15
chef at the restaurant. On May 7, 2013, Gonzalez met with a union organizer and was given a
list of employees who were not paying union dues. (Tr. 36:20-37:21.) He asked for the list of
persons because he wanted to talk to the employees in an effort to get them to sign up and
become members of the Union. (Tr. 24:22.) On this same date, Gonzalez approached Sugianto
to speak with her about joining the Union.20
B. Two Versions of the Same Conversation
Regarding the conversation with Gonzalez, Sugianto testified as follows:
25
Q: So could you tell me in your own words about this conversation from the
beginning, how it was started and what was said?
A: Okay
30
A: On that day he came in at noon and usually I have to have a conversation with the
cook about pizza. Some people want some people [sic] that's not on the counter and I
have to ask the cook is there any Pizza's cooking right now? And I believe that time
that I came to him and asked him is there any certain pizza the customer wants. And
then he answered my question. And then he told me Nani I know you, we all know 35
you, and I got a phone call from the Union rep to let you know that it will be bad for
me and my family since I don't pay any more Union dues. So if the casino signs any
more contract with the Union, then I will be losing all my benefits, my insurance, my
seniority, and I will start over at the beginning as a new hire.
40
Q: And did you respond to anything?

1 Sugianto admitted that she was annoyed with the reinstatement of her dues and the requirement that
she resubmit a new dues revocation. (Tr. 102:10.) Respondent attempts to weave from this candid
testimony an argument to support the conclusion that her annoyance with dues payment was in reality her
motivation for bringing false allegations. I reject Respondent’s misplaced attempt to build a bridge from
her annoyance with dues payment to a motivation to fabricate her testimony. The evidence of record and
the reasonable inferences drawn from it simply do not support such a conclusion.
JD(SF)–16–14
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A: After I heard that I was just asking what do you mean as a new hire. His hand was
putting the Pizza topping but he's making a little gesture with his chin, like her, like
that. There was a new lady just started like a few weeks ago and she was bussing the
table outside so he was like, pointing like her. Pointing like her. 5
Q: And so he referred to the new lady
A: To this new lady--
10
Q: as a new hire.
A: -- as a new hire.
Q: Meaning that if you don't pay -- and you understood that to mean that if you don't 15
pay your dues --
A: Yes.
Q: You would be like her? 20
A: Yes. (Tr. 80:22-81:1-25.)
Gonzalez’ version of the conversation differs from that of Sugianto. He testified as follows: 25
Q: Now, what is it that you said to her? In fact, if you could describe what it is that
you said to her to try to quote yourself, talk as if you're talking to her.
A: Yeah, I told Nani, you know the companies almost called a strike, so if we go to 30
strike I see that you -- you're not a member, so if you stay and we don't get a
contract, you can -- you might lose your benefits and because we don't know -- and,
like I told her, you see how the company is doing right now, trying to short hours,
trying to take aware [sic] hours from us, so if we lose our contract, they might not
give us the benefits that we have right now and we want to keep it, we want to keep35
all of those benefits. So if we -- you can help us to vote and be a member, we are
going to be stronger.
Q: And you had mentioned that you had talked about the strike to vote. What did you
say about the strike vote or strike pay or anything like that?40
A: Yeah. That we will -- we'll be out and if we strike we are all going to walk out and
I told her that we don't know how long we will be in the strike, so the people who --
who stay in that time when we were going to strike we're not going to have a
contract. 45
Q: What was she doing when you were talking to her; was she listening carefully to
you?
JD(SF)–16–14
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A: No. Because she was kind of in a hurry, because we were, like, in a work area.
(Tr. 49:23-50:25.)
After the conversation ended, Gonzalez gave Sugianto a blank authorization card and told her
to “just sign it and give it back to me and you’ll be fine.” (Tr. 82:3–7.) Shortly thereafter Sugianto 5
sought the advice of a former manager whom she trusted to ask if whatever Gonzalez told her was
true. (Tr. 101:5–21.)
C. Analysis
10
Section 8(b)(1)(A) of the Act provides that “it shall be an unfair labor practice for a labor
organization or its agents to restrain or coerce employees in the rights guaranteed in Section 7.”
Whether or not a violation of the Act occurred falls squarely on the question of whose version of
events is believed. If Sugianto’s version is believed, the statements can reasonably be construed as
threats. If, on the other hand, Gonzalez’ version is believed, the conversation is more akin to a mere 15
prediction of the possible results of the Respondent not signing a contract.
After carefully considering the matter and studying the record, I credit the testimony of
Sugianto. At the hearing, while I observed her testimony, she appeared to testify in a confident,
candid and credible manner with certainty and conviction in her responses. Her overall demeanor 20
was forthright and suggested that she was being truthful about the conversation.2 I also credit her
testimony because her action of seeking out a manager after the conversation with Gonzalez ended is
consistent with her perception that she was being threatened and/or coerced.3 In sum, the
conversation triggered action on her part. Speaking with her manager and going the step further to
complain to the Board is more consistent with someone who perceived that she was coerced and/or25
threatened than someone who merely was given advice as to what might happen if a contract was not
signed. The actions taken after the conversation lend credibility to her version of events.
Furthermore, I find that Sugianto’s lack of any potential monetary gain whatsoever in bringing forth
the allegations bolsters her credibility.
30
I do not credit the testimony of Gonzalez because judging from his demeanor and the manner
in which he testified, his testimony surrounding the conversation appeared to be self-serving,
rehearsed and calculated to neatly fall within the parameters of what the law might consider not
threatening and/or coercive.4 Gonzalez attempted to portray himself as a close friend of Sugianto
who was interested only in her well being. I find that this testimony was contrived merely to color 35
his version of events with an artificial backdrop of legitimacy. (Tr. 39:10–15). I further find that
Gonzalez was attempting to help increase Union membership during a time period when a potential

2 See Advocate South Suburban Hospital and Serv. Employees Int'l Union, 346 NLRB No. 23 (2006),
enfd. Advocate South Suburban Hospital v. NLRB, 468 F. 3d 1038 (7th Cir 2006).
3 It is important to note, as set forth more fully below, I find the statements of Gonzalez were not only
perceived by Sugianto to be threatening and coercive but also when viewed objectively were in fact
threatening and coercive and violate the Act. See Teamsters Local 391, 357 NLRB No. 187 (2012).
4 See, e.g., Advocate South Suburban Hospital v. NLRB, 468 F. 3d 1038 (7th Cir. 2006), holding that
testimony that was “mechanical” and “ rehearsed” as well as hesitant and evasive was alone sufficient to
support the conclusion that a witness was not credible.
JD(SF)–16–14
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strike was on the horizon and his over-zealous pursuit of that goal took the form of the conversation
as described by Sugianto.
Having credited the testimony of Sugianto, the question turns to whether the statements made
to her by Gonzalez violate the Act. On their face, the statements were threatening and/or coercive. 5
The suggestion that it would be “bad for her family” that she could “lose all her benefits and
seniority” as well as being forced to “start as a new hire” when coupled with the presentation of a
blank authorization card for her to sign sent a clear message of sign up or suffer consequences. The
Board has long recognized that such conduct violates the Act. See Painters Local 558 (Forman-
Ford), 279 NLRB 150 (1986), holding that a message which conveyed potential unpleasant 10
consequences for employee even if unintentionally communicated was coercive. See also,
Teamsters Local 886 (Lee Way Motor Freight, Inc.), 229 NLRB 832 (1977); Teamsters, Local
745, 240 NLRB 537, 540 (1979); In Re Painters Local 446 (Skidmore College)332 NLRB 445,
446 (2000), noting the Board’s longstanding precedent holding that Section 8 (b)(1)(A)
proscribes threats of economic reprisals.515
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act.
20
2. The Employer has been engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. The unfair labor practices found above affect commerce within the meaning of
Section 2(6) and (7) of the Act.25
4. By threatening Charging Party with the loss of all benefits including insurance and
seniority, the requirement that she would have to start as a new hire, and telling her
that it would be “bad for her and her family” if she did not join the Union and
reinstate her union dues, the Respondent violated Section 8(b)(1)(A) of the Act. 30

5 Respondent argues that an adverse inference should be drawn from the General Counsel’s failure to
call witnesses who were available to testify at the hearing relying on In re DPI New England, 354 NLRB
849, 858( 2009). “[W]hen a party fails to call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge.” Int’l Automated Machines, Inc., 285
NLRB 1122, 1123 (1987) (citing 2 Wigmore, Evidence § 286 (2d ed.1940); McCormick,
Evidence § 272 (3d ed.1984). While the rule permits an adverse inference to be drawn, it does
not mandate conclusively that it must be drawn in every case. The rule requires that the
witnesses not called be ones who may reasonably assumed to be favorably disposed to the party.
This record provides insufficient evidence from which to conclude that the witnesses who were
not called, and were merely co-workers of both Sugianto and Gonzalez, would have been more
favorably disposed to Sugianto than to their other co-worker Gonzalez. I therefore find that the
exercise of my discretion to draw an adverse inference is unwarranted under the facts presented.
To hold otherwise would frustrate the purposes of the Act.
JD(SF)–16–14
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REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.5
The Respondent shall be required to post a notice that assures that it will respect
employees’ rights under the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended6
ORDER
The Respondent, Local Joint Executive Board of Las Vegas, Culinary Workers Union, 15
Local 226, and Bartenders Union, Local 165, affiliated with Unite Here, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
20
(a) Threatening employees with the loss of benefits, insurance and/or seniority if they
fail to join the Union and/or pay union dues.
(b) Telling employees that it will be “bad for them or their family” if they didn’t pay
union dues and/or join the Union. 25
(c) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:30
(a) Within 14 days after service by the Region, post at its business office and meeting
places copies of the attached notice. Copies of the notice, on forms provided by
the Regional Director after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 35
consecutive days in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material.
40
(b) Mail a copy of the notice to every member of the bargaining unit.

6 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.
JD(SF)–16–14
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(c) Sign and return to the Regional Director sufficient copies of the notice for posting
by the Employer, Paris Las Vegas, if willing, at all places where notices to
employees are customarily posted in its facility.
(d) Within 21 days after service by the Region, file with the Regional Director a 5
sworn certification of a responsible official on a form provided by the Region
attesting to the steps the Respondent has taken to comply.7
Dated, Washington, D.C. May 2, 2014
10
___________________
Dickie Montemayor
Administrative Law Judge

7 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the
notice reading, “posted by Order of the National Labor Relations Board Shall read, “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf with your employer.
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT threaten you with unspecified losses and/or loss of
contractual benefits unless you pay union dues once we and Paris Las
Vegas agree to a new collective bargaining agreement.
WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
Local Joint Executive Board of
Las Vegas, Culinary Workers
Union, Local 226, and Bartenders
Union, Local 165, affiliated with
Unite Here
_____________________________
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CB-107960 or by
using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by
calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.