Midnight Rose Hotel & Casino

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1003 (N.L.R.B. 2004)

MIDNIGHT ROSE HOTEL & CASINO
343 NLRB No. 107
1003
Midnight Rose Hotel & Casino, Inc. and Teamsters
Local Union No. 537, affiliated with Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 27–CA–17885–1
December 16, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On December 16, 2002, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief and cross-
exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions, as
further explained below, and to adopt the recommended
Order.
The sole issue now before the Board is whether the
judge correctly found that the Respondent discharged
union activist Maureen Ostler in violation of Section
8(a)(3) and (1) of the Act on February 13, 2002, because
of her union organizing activities, rather than because of
what the Respondent asserted was theft by Ostler stem-
ming from her repeated clocking in as a bartender when
she was in fact working as a cocktail waitress (which has
a lower base wage rate than bartender).
Facts
The facts, more fully set forth in the judge’s attached
decision, are essentially as follows. In mid-November
2001,3 cocktail waitress April Hendricks asked bartender
Ostler if Ostler would be willing to switch duties with
Hendricks when they were both working on the same
shift. Ostler agreed to do so, and Supervisor Shelby
Moon approved the plan. At that time, bartenders were
paid a base wage of $6.75 per hour, and waitresses $5.50.
When Hendricks and Ostler did not work the same shift,
Ostler worked as either a waitress or bartender, depend-
ing on where she was most needed at the moment.
On the first day that Hendricks and Ostler were sched-
uled to work the same shift after receiving approval for

1 The General Counsel cross-excepts to the judge’s failure to address
his unopposed motion to correct several errors in the transcript. We
grant this motion.
2 The Respondent contends that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful examination of
the judge’s decision and the entire record, we are satisfied that the
Respondent’s contentions are without merit.
3 All dates are November 2001 through February 2002 unless stated
otherwise.
their plan, November 17, Ostler affirmatively clocked in
using the computerized job code for cocktail waitress, at
the lower wage rate, overriding her computerized default
job code as bartender. Thereafter, however, while Ostler
continued to work as a waitress, she did not override her
computerized default job code as bartender by affirma-
tively clocking in under the waitress code. (Unless Ostler
clocked in using the waitress code, the timeclock would
default back to her primary code, bartender.) Thus, Os-
tler was being paid at the $6.75 base wage rate for bar-
tenders while working in the $5.50 base wage waitress
job. Likewise, Hendricks also consistently failed to
override her computerized default job code as waitress
when she clocked in to work as a bartender, and she thus
wound up getting paid at the $5.50 base wage rate for
waitresses while working in the $6.75 base wage bar-
tender job.
In January, the Union began working with Ostler and
fellow employee Patricia Donch to organize the Respon-
dent’s employees. On January 16, the Union notified the
Respondent in writing that the Union was beginning an-
other organizing drive,4 and that Donch was leading the
effort.
The Respondent violated Section 8(a)(1) of the Act on
several occasions during the January–February period in
question. Thus, Moon asked employee Randi Carroll
whether Carroll had witnessed any union activity in the
casino. Carroll told Moon that not only had Carroll wit-
nessed such activity during the past few months, but also
that Carroll supported it. Moon then told Carroll that
former employee Sabrina Newberry was an example of
an employee who had strong prounion beliefs and who
had suffered negative consequences because of those
beliefs. The judge found that Moon’s comments to Car-
roll about Newberry were an unlawful veiled threat of
job loss for supporting the Union, a finding to which the
Respondent does not except.
Around this time also, employee Brenda Franco told
Supervisor Rebecca Vandiver that someone had solicited
employee Trent Costello to support the Union’s organiz-
ing campaign. In violation of Section 8(a)(1), Vandiver
told Franco to stay away from the Union and not to talk
to anyone about the organizing campaign, and also that
the Respondent would likely close the blackjack pit if the
Union attempted to organize the employees. The next
day, again in violation of Section 8(a)(1), Vandiver asked
Franco for the name of the person who had solicited
Costello to support the Union. Franco gave Vandiver the
name—Ostler.

4 The Union had unsuccessfully tried to organize the Respondent’s
employees in 1998 and 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1004
In January, Shift Manager Michael Martinez heard a
rumor that Ostler was organizing for the Union. Shortly
thereafter, while Martinez and Moon were walking past
the bar, Moon told Martinez that Ostler seemed to be
spending a lot of time talking to other employees, and
that Moon thought that might be a sign that Ostler was
engaged in union organizing.
In January or February, the Respondent’s General
Manager Richard Wenschlag, in violation of Section
8(a)(1), asked antiunion employee Mark Shibe if he was
aware of any union activity in the casino. Also in viola-
tion of Section 8(a)(1), Wenschlag asked Shibe to report
back to Wenschlag if Shibe observed any such activity.
And in further violation of Section 8(a)(1), Wenschlag
recruited Shibe specifically to spy on Ostler’s union ac-
tivities by asking Shibe to engage Ostler in a conversa-
tion about the Union and to report Shibe’s findings back
to Wenschlag.
In early February, Moon performed a periodic payroll
audit and discovered that Ostler had been overpaid, at the
bartender rate, when she had been working as a waitress
(and that Hendricks, correspondingly, had been under-
paid, at the waitress rate, when she had been working as
a bartender). Moon immediately reported this circum-
stance to Wenschlag. Without further investigating the
situation, and particularly without asking Ostler for an
explanation, Wenschlag decided to terminate Ostler for
theft. The Respondent’s food and beverage manager,
Rick Pratt, then called Ostler at her home on February 13
and informed her that she was terminated for theft.5
After being terminated, Ostler reported to the casino to
get her final paycheck and to speak with Human Re-
sources Director Mark Lockwood. Chief Financial Offi-
cer Scott Rhoda, Marketing Director Bob Taylor, and
Food and Beverage Manager Pratt soon joined their con-
versation. Ostler denied to them that she had stolen any-
thing. At one point, Ostler told Rhoda that Ostler knew
that her termination was union-related. During a fol-
lowup meeting, this one attended by Wenschlag and
Rhoda, Ostler again voiced her suspicion that her termi-
nation was because of her union activity. Wenschlag
denied it.
Analysis
We agree with the judge, for the reasons he sets forth,
that the General Counsel met his initial Wright Line6
burden of establishing that Ostler’s union activity was a
motivating factor in the Respondent’s decision to termi-

5 The other employee actively involved in the Union’s organizing
campaign, Patricia Donch, had been laid off the day before, in conjunc-
tion with the Respondent’s shutdown of the blackjack pit.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
nate her. The record establishes that Ostler was squarely
targeted by the Respondent as a union activist.
We further agree with the judge that the Respondent in
turn failed to meet its Wright Line burden of establishing
that it would have terminated Ostler for the asserted rea-
son—theft—even in the absence of her union activity.
Our dissenting colleague disagrees with us on that score.
Based upon his thorough analysis of the evidence, the
judge found that the Respondent’s asserted reason for
terminating Ostler, theft, was an inflation of the situation.
More specifically, the judge found that the Respondent
had failed to establish that Ostler intended to steal from
the Respondent by failing to clock in at the lower wage
rate each time she worked as a waitress.7 The judge
noted that although Ostler had not on her own alerted the
Respondent to the overpayment, she did not, on the other
hand, attempt to hide that fact from the Respondent’s
attention during the entire 3-month period when the Re-
spondent failed to notice this ongoing discrepancy. The
judge additionally found that customer gratuities were
the main source of earnings for both bartenders and wait-
resses, and that the $1.25 differential in the respective
base wage rates of Hendricks and Ostler had relatively
little impact—about $10 per 8-hour shift—on their total
earnings, including tips. The judge further found that
Ostler failed affirmatively to override her default code as
bartender each time she clocked in after November 17
because she was likely operating under two misappre-
hensions: (1) that the timeclock would retain the most
recent job code that she affirmatively entered (i.e., the
code for waitress that she entered on November 17) until
she affirmatively entered a different one (which she
never did); and (2) that she had wholly switched jobs
with Hendricks, and that from November 17 on, she was
a waitress who occasionally worked, ad hoc, as a bar-
tender, without need to clock out as a waitress and clock
back in as a bartender each time she filled in as a bar-
tender. The judge found that Ostler’s testimony showed
that she was confused about the pay rate implications of
her switching jobs with Hendricks (a confusion that was
apparently shared by Hendricks, who also consistently
failed affirmatively to clock in under the correct job code
when she worked as a bartender).
In sum, the judge found that the Respondent seized
upon this job code recording discrepancy as an opportu-
nity to get rid of Ostler, the lone remaining union activ-
ist, and that the Respondent characterized Ostler’s con-

7 The judge discredited Moon’s testimony that, when she had given
her permission in November for Ostler and Hendricks to switch jobs
with each other, she had also admonished them both to clock in under
the proper job code for the duties they were going to perform on that
shift.
MIDNIGHT ROSE HOTEL & CASINO 1005
duct as theft in order to mask the Respondent’s unlawful
antiunion motive for terminating her. More specifically,
the judge rejected the Respondent’s attempt to equate its
termination of Ostler to instances where the Respondent
had terminated or suspended employees for intentional
and egregious misconduct such as gambling at other ca-
sinos while clocked in to work for the Respondent, thus
clocking in to work on shifts that they did not actually
work, and misuse of the Respondent’s toll-free tele-
phone.
We agree with the judge’s thorough analysis of the
evidence, with the findings he arrived at based on his
analysis, and with his conclusion that the Respondent
terminated Ostler in violation of Section 8(a)(3) and (1)
because of her union activities. Consequently, we dis-
agree with our colleague’s view that, in analyzing the
evidence, the judge was actually substituting his business
judgment for the Respondent’s, and second-guessing a
legitimate business decision to terminate Ostler. Analyz-
ing the relevant evidence is not an exercise in second-
guessing the Respondent. It is, instead, a necessary
process, in light of the complaint allegation, to determine
whether or not the Respondent violated the Act.
Under Wright Line, the General Counsel has the initial
burden of proving that the employee’s protected activity
was a motivating factor in the employer’s action. If the
General Counsel meets that initial burden, the burden
shifts to the employer to prove that it would have taken
the adverse employment action even in the absence of the
employee’s protected activity. E.g., McKesson Drug
Co., 337 NLRB 935, 936 (2002), cited by our colleague.
We agree with our colleague that (as stated in McKesson
Drug, supra, at 937 fn. 7) in order for an employer to
meet its Wright Line burden, it does not need to prove
that the employee actually committed the alleged of-
fense, but must, however, show that it had a reasonable
belief that the employee committed the offense, and that
the employer acted on that belief in taking the adverse
employment action against the employee.
Here, the Respondent assertedly discharged Ostler for
theft. “Theft,” however, commonly involves knowingly
obtaining something of value from someone else without
authorization, or by threat or deception, and intending to
deprive the other person permanently of the use or bene-
fit of the thing of value. See, e.g., Colo. Rev. Stat. Ann.,
Sec. 18-4-401(1)(a). In order to satisfy its Wright Line
burden in this case, therefore, the Respondent had to es-
tablish, at a minimum, that at the time it discharged Os-
tler, it had a reasonable belief that she committed theft,
i.e., that she knowingly took bartender base wages with-
out the Respondent’s authorization, or by deception, dur-
ing those times that she worked as a waitress.
With respect to whether the Respondent has estab-
lished a reasonable belief that Ostler engaged in “theft,”
we note that Ostler engaged in no deception; after No-
vember 17 and through the date of her discharge, she
routinely and openly clocked in for work without over-
riding her computerized default job code of bartender by
affirmatively clocking in instead under the waitress code.
And at no time after November 17 through the date of
Ostler’s discharge did the Respondent notify her that she
was not authorized to continue to do that.8 In any event,
Wenschlag terminated Ostler based only on Moon’s re-
port to Wenschlag immediately after Moon discovered
the discrepancy in Ostler’s pay. The Respondent con-
ducted no investigation of the discrepancy, nor did it give
Ostler an opportunity to explain it, before peremptorily
terminating Ostler for theft.
Not only does the Respondent’s failure to conduct a
fair investigation and its failure to give Ostler an oppor-
tunity to explain her actions before imposing discipline
defeat its claim of reasonable belief that Ostler was en-
gaged in theft, McKesson Drug, supra, at 936–937
(Hammond’s suspension), these failures are also signifi-
cant factors in support of finding that the Respondent did
not act on such a belief in discharging her. These find-
ings, in turn, lead us to conclude that the discipline was
discriminatorily motivated. Johnson Freightlines, 323
NLRB 1213, 1222 (1997).
While our dissenting colleague sees this case differ-
ently, his perception is somewhat colored by remarks
made by Ostler after she was discriminatorily terminated,
during stressful postdischarge meetings she had with
groups of management officials. None of what tran-
spired in those meetings had any bearing on the Respon-
dent’s decision to terminate Ostler, for the simple reason
that Ostler had already been terminated before the meet-
ings. Our colleague is incorrect in characterizing these
postdischarge meetings with Ostler as the Respondent’s
investigation preceding its final decision to terminate
Ostler. Ostler was terminated in a telephone call from
Food and Beverage Manager Pratt on February 13, acting
on orders from General Manager Wenschlag that were
issued shortly after Moon reported Ostler’s timeclock
discrepancy to Wenschlag. There was no pre-
termination investigation or request to Ostler that she
explain the discrepancy. She was not suspended pending
an investigation. She was not conditionally discharged.
She was simply terminated, then and there. Her dis-

8 The cases cited by our colleague, Merrilat Industries, 307 NLRB
1301 (1992); and Greenery Extended Care Center in Cheshire, 322
NLRB 932 (1997), are thus fundamentally different from the instant
case in that those cases involved employees who, unlike Ostler, know-
ingly and deceptively took employer property.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
charge was nothing less than final at the time Pratt noti-
fied her of it. Ostler’s remarks to management referred
to by our colleague took place after the Respondent ter-
minated her on February 13, and thus had no possible
effect on the Respondent’s decision to terminate her in
the first place. The Respondent’s failed Wright Line de-
fense to the allegation of unlawful termination is not sal-
vaged by remarks that Ostler made to the Respondent
after the termination.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Midnight Rose Hotel & Ca-
sino, Inc., Cripple Creek, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
MEMBER SCHAUMBER, dissenting.
Introduction
The Supreme Court has instructed that an employee
who is reasonably believed to have been engaged in mis-
conduct must not be put in a worse position because he
or she engaged in protected conduct. Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S.
274, 284–285 (1977). The Court has also cautioned,
however, that in applying a rule of causation, an em-
ployee must not be put in a better position than the em-
ployee would have been in if the employee had not en-
gaged in the protected conduct. Id. at 285–286.1 Be-
cause I believe by adopting the judge’s decision that the
Respondent violated Section 8(a)(3) when it discharged
Maureen Ostler for theft, my colleagues do the latter, I
respectfully dissent.2
Employee theft has a corrosive effect on the employee
and a deleterious impact on the employment relationship.
It is not surprising, therefore, that theft, regardless of the
amount involved, is the “most universally recognized
ground for summary discharge.”3 It is also not surprising
that the Respondent, the operator of three casinos, in-
cluding the Midnight Rose where Ostler was employed,

1 The Board quoted the Supreme Court’s admonition in formulating
its Wright Line test. Wright Line, 251 NLRB 1083, 1086 (1980) (quot-
ing Mt. Healthy, supra, 429 U.S. at 285–286), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
2 In the absence of exceptions, I adopt the judge’s findings of 8(a)(1)
violations. Similarly, the Respondent did not specifically except to the
judge’s finding that the General Counsel met the initial burden under
Wright Line, supra. Rather, in its exceptions, the Respondent focuses
on its rebuttal of the General Counsel’s evidence. Therefore, I will
only address this issue.
3 Labor Agreement in Negotiation and Arbitration, Zack and Bloch,
“The Cardinal Offenses” at 147. (BNA 1983.)
has a policy of terminating employees for theft. It was
pursuant to that policy that Ostler was terminated.
In concluding that Ostler made an “honest mistake”
based on an explanation she gave many months later for
the first time at the hearing, the judge selected certain
evidence, ignoring the most persuasive, and improperly
substituted his own business judgment, second-guessing
that of the Respondent. The judge’s reliance, for exam-
ple, on what he considered as a “virtually meaningless”
pay rate differential is inconsistent with extant Board
law; it is also not relevant. Finally, notwithstanding the
judge’s and my colleagues’ findings to the contrary, the
record does not support the conclusion that the Respon-
dent engaged in disparate treatment when it terminated
Ostler.
Facts
The essential facts are not in dispute. The Respondent
discharged Maureen Ostler, a bartender, citing theft by
misuse of the timeclock as the reason for discharge. Os-
tler and April Hendricks, a cocktail waitress, had tempo-
rarily switched positions with the permission of their
supervisor, Shelby Moon. When Moon conducted a pe-
riodic payroll audit upon her return from vacation, she
discovered that Ostler had been overpaid at the bartender
rate during 47 shifts (over the course of approximately 3
months) that she worked as a cocktail waitress. Ostler
had failed to use the separate cocktail code when she
clocked in during these shifts.
The evidence demonstrates that Ostler knew perfectly
well how to clock in using the cocktail code. Although
the judge apparently did not believe Moon’s testimony
that she instructed Ostler and Hendricks to use the proper
code, it is clear that Ostler knew how to clock in. In fact,
she clocked in using the cocktail code during her first
shift as a cocktail waitress, but she failed to do so there-
after. Ostler’s own testimony reveals that instructions on
clock-in procedure are posted near the timeclock, and
employees receive training on this procedure at the be-
ginning of their employment. Indeed, Ostler demon-
strated the proper clock-in procedure to the Respondent’s
chief financial officer Scott Rhoda and marketing direc-
tor Bob Taylor during the discharge investigation.
The Respondent conducted an investigation that
spanned several days before making a final decision to
terminate Ostler. As soon as Moon discovered the pay-
roll discrepancies, she reported them to General Manager
Richard Wenschlag. Moon and Wenschlag reviewed the
payroll records, discussed prior terminations for theft,
and determined that, consistent with the casino’s past
practice, Ostler should be terminated for theft. Thereaf-
ter, several meetings occurred between Ostler and man-
agement representatives regarding Ostler’s discharge.
MIDNIGHT ROSE HOTEL & CASINO 1007
During the course of these meetings, Ostler did not deny
her actions. During the first meeting, Rhoda asked Os-
tler if she knew she was being overpaid, and Ostler said
she did. As noted above, she also demonstrated the cor-
rect clock-in procedure upon request. During a meeting
2 days later, Wenschlag asked Ostler if she would have
reported to management if she had been underpaid, and
Ostler said yes. Wenschlag and Rhoda decided to think
about the termination over the weekend. Wenschlag
testified that because Ostler complained that her termina-
tion was union-related, he and Moon thought “longer and
harder to make sure [they] were doing the right thing.”
After considering the matter further, Wenschlag called
Ostler on Monday and told her she was terminated be-
cause the Employer could not set a different precedent.
During the hearing, Ostler claimed for the first time
that she made a mistake. She testified that she assumed
that once she clocked in under one department (i.e. cock-
tail), the timeclock would retain that designation. On
cross-examination, she admitted that, during the meet-
ings conducted by management to consider her termina-
tion, she never gave this mistaken assumption as the rea-
son she accepted salary overpayments for 47 work shifts
covering a period of nearly 3 months.
As mentioned above, the Respondent maintains a pol-
icy of terminating employees who engage in theft. In the
past, it discharged two employees who left work while
on the clock to gamble at other casinos. The Respondent
had also discharged an employee who worked an unau-
thorized extra shift every week. The Respondent sus-
pended an employee for the one-time offense of using its
toll-free telephone number to receive a long-distance
personal call at her home.
Analysis
Introduction
The sole issue in this case is whether the Respondent
met its rebuttal burden of proving that it would have dis-
charged Ostler in the absence of her protected activity.
Wright Line, supra. My colleagues agree with the
judge’s finding “that the Respondent’s accusation of
theft by misuse of the timeclock was pretext for its
unlawful motive.” Respectfully, in my view, such a con-
clusion involves substituting the judge’s, and now the
Board’s, judgment for the legitimate business judgment
of the Employer. It also impermissibly puts Ostler in a
better position than she would have been in had she not
engaged in protected activity. See Mt. Healthy School
District Board of Education v. Doyle, supra.
I. THE EVIDENCE SUPPORTS THE RESPONDENT’S
REASONABLE BELIEF THAT OSTLER WAS ENGAGED
IN MISCONDUCT AND THAT THE RESPONDENT
ACTED ON THAT BELIEF
While, I believe, the more accurate weighing of the
evidence establishes that Ostler committed the offense
for which she was terminated, that is not the Respon-
dent’s burden to prove. An employer need only show
“that it had a reasonable belief that the employee com-
mitted the offense, and that it acted on that belief.”
McKesson Drug Co., 337 NLRB 935, 937 fn. 7 (2002).
The record evidence here amply supports that showing.
Ostler conceded that she knew she was being overpaid
but made no effort to correct the situation. Although she
said that if she had been underpaid she would have
brought the matter to management’s attention, she was
unable to explain why she did not bring to management’s
attention the overpayments made for each of 47 shifts
spanning a period of nearly 3 months. Further, when
asked to demonstrate the clocking-in procedure, she did
so properly, consistent with the instructions management
provided employees next to the timeclock machine.
Ostler’s claim that she mistakenly assumed that the
timeclock machine would maintain the last entered code
until it was changed and that it would not default to her
general job classification—the higher-paying bartender
job—was made for the first time at the hearing. The late
arrival of this defense is reason enough to discount it.
However, other evidence undermines the veracity of Os-
tler’s claim without regard to its belated arrival.
In addition to the evidence described above, Ostler
transferred back and forth between cocktail waitress and
bartender several times during this 3-month period, but
she never changed her job code after overriding it the
first time to reflect that she was working her first cocktail
waitress shift. If Ostler assumed the machine would re-
tain the last-entered job classification, cocktail waitress,
however, why would she fail to override the machine
again to reflect when she was working the higher-paid
bartender position?
Contrary to my colleagues, I believe the above evi-
dence amply supports the Respondent’s reasonable belief
that Ostler knowingly accepted wage overpayments. It
also supports the Respondent’s characterization of such
actions as theft, pursuant to my colleagues’ definition,
“knowingly obtaining [by cashing improperly inflated
paychecks] something of value [approximately $470
worth of unearned wages] from someone else [the Re-
spondent] without authorization.” The Respondent did
not raise Ostler’s wage rate or otherwise authorize her to
accept overpayment of wages to which she was not enti-
tled, for a job that she did not perform. No one claims
that Ostler covertly or deceptively shielded her job code
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
when clocking in or that the Respondent was obligated to
look over her shoulder to make sure that she clocked in
honestly each time. I disagree with my colleagues’ as-
sertion that the Respondent was obligated to notify Ostler
that she was not authorized to continue clocking in im-
properly before it could conclude that she knowingly
obtained wage overpayments without authorization. Pro-
fessional service personnel do not need to be told that
they are not authorized to secure and keep wage over-
payments anymore than they need to be instructed not to
overcharge their patrons and pocket the difference. Here,
the Respondent trained its employees on clock in proce-
dures and posted the instructions next to the timeclock.
Ostler knew her wage rate and was attentive enough to
her paychecks to assert that she would have brought any
disadvantageous discrepancies to her employer’s atten-
tion. Respondent’s actions to enforce its policies vio-
lated no Federal law.
The judge’s conclusion that the above evidence does
“not eliminate the likelihood of an honest mistake,” even
if factually accurate, significantly misconstrues the na-
ture of the Respondent’s burden. See McKesson Drug
Co., supra, 337 NLRB at 937 fn. 7. More significantly,
since the Respondent was unaware of Ostler’s mistaken
assumption explanation at the time it discharged her, this
defense cannot fairly be relied on in evaluating the rea-
sonableness of the Respondent’s belief or its motivation
for terminating Ostler.
The judge’s penchant for second-guessing the Respon-
dent’s business decisions and management practices is
evident in his findings with regard to Moon’s testimony
that she “admonished both Ostler and Hendricks to
punch-in under the proper job codes.” The judge said
that he was “not convinced” that Moon should be cred-
ited because of her antiunion activities. Consequently,
he found in the alternative that if, in fact, Moon admon-
ished Ostler and Hendricks, her admonishment led to
misunderstandings and confusion, which the posted in-
structions did not override. According to the judge, “Os-
tler is being held responsible for what is essentially a
management shortcoming.” Moon, the judge says,
“should have been more clear,” she “should have tracked
the two employees’ compliance,” and “a simple question
from Moon would have sufficed and the error easily . . .
corrected.” He concludes: “Certainly Moon should have
noticed the incorrect payments earlier.” While the judge,
if he had been a member of management, may have
given what he believed were clearer instructions without
relying on management’s posted instructions, may have
followed up with the two employees and asked them
questions about their clocking in procedure instead of
relying on the employees to ask management if they had
any questions with regard to its instructions, and may
have conducted a payroll audit more often than the Re-
spondent who appears to do so quarterly, it is not the role
of the judge or the Board to question managerial prac-
tices and decisions unless they are being used for dis-
criminatory purposes in violation of the Act. While I do
not wish to suggest or leave the impression that I share
the judge’s view of management’s shortcoming or the
propriety of his observations, the Act “does not require
that an employer act wisely, or even reasonably; only,
whether reasonable or unreasonable, that it not act dis-
criminatorily.” Paramount Metal & Finishing Co., 225
NLRB 464, 465 (1976).
Nor am I persuaded by the judge’s explanation for Os-
tler’s failure to explain her “honest mistake” defense to
her employer, that “she was operating in an emotional
state” during the discharge meetings. Even assuming
that Ostler’s emotion at the first meeting justified her
failure to mention such a salient aspect of her defense,
she had ample time to collect her thoughts and assert her
explanation of mistake at the following meeting 2 days
later. She failed to do so, however.
My colleagues’ and the judge’s reliance on the pay dif-
ferential’s relative impact on Ostler’s total earnings as
supporting Ostler’s “honest mistake” defense is inconsis-
tent with extant Board law, and, once again, intrudes on a
management prerogative. The Board has repeatedly vin-
dicated an employer’s concern about employee theft, no
matter how negligible the amount in question. See, e.g.,
Merillat Industries, 307 NLRB 1301, 1303 (1992) (theft
of sandpaper of “miniscule” value, less than $2); Green-
ery Extended Care Center in Cheshire, 322 NLRB 932,
938 (1997) (removal of Christmas tree from facility
without proper permission). Also, while the judge may
view the amount involved as “meaningless,” that is not a
determination for the judge to make, nor, in my view, is
it correct. Regardless of how much money Ostler re-
ceived from tips, $10 per shift over the course of 47
shifts amounts to $470, or nearly $1900 if left unreme-
died for a year.
II. THE RESPONDENT CONDUCTED AN ADEQUATE
INVESTIGATION
My colleagues take the position that Ostler’s discharge
occurred before the termination meetings and that the
Respondent failed to conduct an adequate investigation
before terminating Ostler. I disagree. While it is true
that Ostler was informed of the decision to discharge her
before she met with management, the record makes clear
that the Respondent’s managers agreed to reconsider
their discharge decision when Ostler took issue with it.
The Respondent reaffirmed Ostler’s discharge the fol-
lowing week, but only after meeting with Ostler several
MIDNIGHT ROSE HOTEL & CASINO 1009
times and re-evaluating its initial decision. Had the ter-
mination been irreversible prior to the meetings with
Ostler, there would have been no point in meeting with
her and continuing the investigation for several days.
Thus, the post-meeting reaffirmation of Ostler’s dis-
charge was the final decision.
Moreover, I do not agree with my colleagues that the
Respondent failed to conduct an adequate investigation,
supporting their finding of pretext. Moon conducted a
payroll audit, which revealed unequivocal evidence that
Ostler received $10 more per shift than she was entitled.
She also noticed that job code change entries were miss-
ing from the computerized timeclock record for Ostler,
resulting in her being paid consistent with her default
bartender job category. Moon discovered that, despite 3
months’ worth of paychecks reflecting payment at the
higher bartender wage rate, Ostler never reported the
discrepancy to management. Wenschlag and Moon re-
viewed the payroll and timeclock records. Obviously
aware that the procedures for proper use of the timeclock
had been communicated to Ostler, they discussed the
overpayments and compared what happened here with
prior discipline imposed on employees for theft. Based
on this information, they decided to terminate Ostler.
It is unnecessary to decide whether, without the Re-
spondent’s managers speaking with Ostler, this initial
investigation was adequate or evidence of a rush-to-
judgment and of pretext.4 Once Ostler told the Respon-
dent that she disputed management’s decision, several of
the Respondent’s managers gave Ostler ample opportu-
nity to explain her actions, after which they reconsidered
their decision.
III. THE RESPONDENT DID NOT ENGAGE IN
DISPARATE TREATMENT BY TERMINATING
OSTLER FOR THEFT
The record does not support the judge’s, and my col-
leagues’ conclusion that the Respondent is guilty of dis-
parate treatment by terminating Ostler for theft. Ostler’s
knowing receipt of overpayments spanning a 3-month
period of time is just as serious as previous employees’
acts of gambling while on the clock or working unau-
thorized shifts, if not more serious. In fact, the offenses
are similar in that they all involve misuse of the time-
clock.
The judge addressed the circumstances surrounding
prior instances of misconduct in analyzing the Respon-
dent’s Wright Line rebuttal argument, finding that those

4 In any event, it is simply not the Board’s province to dictate appro-
priate methodologies for workplace investigations. Only where the
record evidence reflects a demonstrable departure from prior standards
for investigations of similar misconduct or a sham investigation is an
inference of animus warranted.
situations “are of no assistance here.” I disagree with the
judge as well as my colleagues. The Respondent’s com-
parison of Ostler’s behavior to prior instances of miscon-
duct involving misuse of the timeclock was reasonable,
and its attempt to treat more or less similarly situated
employees in an even-handed fashion is not rendered
discriminatory because the circumstances are not exactly
the same. As the Board has repeatedly pointed out, “it is
rare to find cases of previous discipline that are ‘on all
fours’ with the case in question,” and the absence of such
evidence is “not to be viewed as fatal to [a]
[r]espondent[‘s claim].” Merillat Industries, supra, 307
NLRB at 1303. In this regard, Ostler’s timeclock offense
is sufficiently dissimilar to another employee’s one-time
misuse of the Respondent’s toll-free telephone number to
justify the variation in punishment for the two offenses.
Thus, because the Respondent introduced ample evi-
dence of similar treatment, and it adequately explained
why it distinguished Ostler’s misconduct from a truly
minor offense for which it gave a lesser discipline, the
Board should accept the Respondent’s discipline as a
legitimate business decision without second-guessing the
Respondent’s assessment of the appropriate penalty. See
Paramount Metal & Finishing Co., supra..
In sum, since the Respondent established by a prepon-
derance of the evidence that it would have terminated
Ostler for theft even in the absence of her protected con-
certed activity, I find that the decision to discharge Ostler
was lawful and respectfully dissent from my colleagues’
conclusion to the contrary.
Michael Cooperman, for the General Counsel.
Jeffrey T. Johnson, Esq. (Holland & Hart), of Denver, Colo-
rado, for Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Denver, Colorado, on June 18–19, 2002,1 based on
a complaint issued on April 16 by the Regional Director for
Region 27. The underlying unfair labor practice charge was
filed by Teamsters Local Union No. 537 (the Union) on Febru-
ary 28. The complaint alleges that Midnight Rose Hotel &
Casino (Respondent) violated Section 8(a)(1) and (3) of the
National Labor Relations Act.
Issues
The case presents two questions. The first is whether Re-
spondent engaged in a prohibited response to union organizing,
such as coercively interrogating employees, soliciting informa-
tion from employees about the organizing activities of other
employees, threatening to discharge employees because of their
organizing activities and telling them that union representation

1 All dates are 2002 unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
is futile. All are alleged to be independent violations of Section
8(a)(1) of the Act. Second, the General Counsel asserts that
Respondent violated Section 8(a)(3) of the Act by discharging
its employee Maureen Ostler for engaging in union organizing.
Respondent claims Ostler was fired for a nondiscriminatory
reason, theft from the Company by misuse of the timeclock.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in the operation of a
hotel and casino in Cripple Creek, Colorado. In the course and
conduct of its business, Respondent’s annual gross revenue
exceeds $500,000 and it annually purchases goods, materials,
and services in excess of $5000 originating from sources out-
side Colorado. Accordingly, Respondent admits, and I find it
to be, an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. It also admits that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates three casinos in Cripple Creek, the
Midnight Rose involved here, J.P. McGill’s, and the Brass Ass.
Other companies operate additional casinos in the town, includ-
ing one known as the Double Eagle.
During early 2002, the following people were members of
Respondent’s management: Richard Wenschlag, the general
manager; Scott Rhoda, the chief financial officer; Dave Schnei-
der, the director of operations; Eric Chandler, the assistant di-
rector of operations; Shelby Moon, a shift/bar manager; Re-
becca Vandiver, a supervisor; Bob Taylor, the marketing direc-
tor; and Rick Pratt, the food and beverage manager.
In January 2002, Local 537’s organizer Dean Modecker be-
gan working with Respondent’s employees, Patricia “Pat”
Donch and Maureen “Mo” Ostler, to organize Respondent’s
facility. This was the Union’s third effort, having failed in
1998 and 2001. Donch, a blackjack dealer and one of the lead
organizers in past campaigns, initiated the most recent attempt
with a call to Modecker in late December 2001, telling him the
employees were ready to try another campaign. Maureen Os-
tler became involved due to Donch’s recommendation. On
January 16, 2002, Modecker sent Wenschlag a letter notifying
Respondent that the Union was beginning another organizing
drive, and advising that Donch was the employee leading the
effort.
On February 12, 2002, Respondent closed the blackjack pit.
Donch was laid off together with the rest of the blackjack deal-
ers. That layoff is not a part of this complaint. Ostler was ter-
minated the following day, assertedly for the timeclock viola-
tion. With both Donch and Ostler gone, the organizing attempt
was effectively ended.
Ostler’s alleged timeclock problem began when she and fel-
low-employee, April Hendricks, decided to swap positions. In
mid-November 2001, Hendricks approached Ostler with the
idea of temporarily exchanging positions whenever they
worked the same shift. At that time, Ostler was a bartender and
Hendricks a cocktail waitress. They spoke with their Shift
Supervisor Shelby Moon (now Shelby Brenuich) about the
switch. Moon was initially reluctant but later agreed. Begin-
ning with a common shift on November 17, 2001, Ostler began
cocktailing and Hendricks began bartending, mostly on Fridays
and Saturdays. When their shifts did not match, each usually
performed her original job. Several months later, in mid-
February 2002, Food and Beverage Manager Rick Pratt called
Ostler at home to tell her she was being fired for a timeclock
violation. Moon had discovered that Ostler had been receiving
a bartender’s hourly rate during the shifts she was serving as a
cocktail waitress. This meant Ostler was being overpaid by
$1.25 an hour for those shifts. Respondent characterized this
transgression as theft.
B. Interference, Restraint, and Coercion
Even before Modecker’s letter, Respondent had become
concerned that union-organizing activity was about to com-
mence at its facility. Wenschlag had witnessed picketing by
another union at the Double Eagle. After the letter, various
sources alerted him to organizing activities within Respondent
itself.
1. Rebecca Vandiver
While soliciting supporters for the organizing campaign, Os-
tler spoke with fellow bartender Trent Costello. Costello testi-
fied that during their conversation, Ostler advocated for the
Union and asked for his support. Undecided about union repre-
sentation, Costello conferred with his live-in girlfriend and
fellow employee, blackjack dealer Brenda Franco, about Os-
tler’s effort. Franco in turn told her good friend, supervisor
Rebecca Vandiver that someone had approached Costello about
supporting the Union. Vandiver contacted Franco the next day
and asked for the individual’s name. Franco identified Ostler.
Franco testified that she spoke with Vandiver about the Un-
ion because she genuinely wished to hear her friend’s opinion.
Vandiver, being both a member of management and personally
very antiunion, attempted to dissuade Franco from union activ-
ity. She advised Franco to stay out of the union fray, calling
the previous campaign a “nightmare,” and admonishing her not
to talk to anyone about it.2 Vandiver also told Ostler if there
was organizing, Wenschlag would likely close the blackjack pit
and that people had been laid off during the last campaign.
Costello testified that Vandiver once approached him for in-
formation about the Union. He responded by telling her he did
not know anything about it. Vandiver denied that she ever
asked Costello about the Union.
2.Shelby Moon
Randi Carroll was a blackjack dealer until the blackjack pit
was closed. While working for Respondent, her supervisor was
Shelby Moon. Carroll and Moon had a good working relation-
ship. They considered themselves friends but were not so close
as to associate outside of work. Carroll testified that Moon,
having first extracted a promise of confidentiality, asked her
whether she had witnessed any union activity in her area.

2 Vandiver: “And I just basically told her to stay away from the Un-
ion, that the last time was a nightmare, that they followed us, and it
wasn’t fun at all, and just to stay away from it.”
MIDNIGHT ROSE HOTEL & CASINO 1011
Moon expressed surprise when Carroll said she had been aware
of union activity for about 3 months and that she supported the
cause. Moon admitted she was “shocked” to learn of Carroll’s
prounion attitude.
Like Vandiver, in addition to seeking information regarding
organizing activities, Moon went on to express her personal
antiunion sentiments to Carroll. Carroll said Moon explained
that she and her father had a sufficiently strong disagreement
about the issue to the point where they had agreed not to dis-
cuss it. Moon and Carroll discussed the organizing at the Dou-
ble Eagle casino, where a different union had recently been
observed picketing. They then focused on what organizing the
Midnight Rose might mean to them.
Carroll recalled that during their discussion Moon brought
up the name of Sabrina Newberry, one of Respondent’s former
employees. She said Moon used Newberry’s name as an ex-
ample of someone with strong prounion beliefs and who had
suffered negative consequences because of them, yet being
careful not to say too much to Carroll. Carroll testified that at
the time of the conversation with Moon she suspected but was
uncertain that Newberry had been terminated, for Moon did not
go that far. Moon agreed that, as far as she was aware, New-
berry had been terminated for her “pro-union passions.”3
Former Shift Manager Michael Martinez testified that in
January he heard a rumor that Ostler was organizing for the
Union. Shortly thereafter, he says, he and Moon had occasion
to be walking by the bar. Moon observed to him that Ostler
seemed to be spending a lot of time at the end of the bar con-
versing with many employees. Moon told him she thought that
might be a sign that Ostler actually was acting as an organizer.
In addition, Martinez testified that Wenschlag was constantly
on the lookout for union organizers and had given standing
instructions to the managers to report any suspicions they had.4
3. Richard Wenschlag
On the stand, Respondent’s general manager, Richard
Wenschlag, made the assertion that he dismissed the report of
Ostler’s organizing activities as rumor.5 Yet, his activities belie

3 Q. (BY MR. COOPERMAN) Well, didn’t you talk about Sabrina
Newberry?
A. (WITNESS MOON) Yes. Her name did come up.
Q. That was the one person that was brought up by name in that
conversation; isn’t that correct?
A. Correct.
Q. And that was the person who you brought up because her pro-
union passion had caused trouble, didn’t it?
A. Yes.
Q. And, in fact, she lost her job because of those pro-union passions,
correct?
A. As far as I’m aware. I was not a manager at that time.
Q. And as far as you’re aware, that’s correct?
A. Yes.
Q. And isn’t it true you brought her name up to demonstrate what
the union coming around again could cause?
A. No.
4 Respondent discounts Martinez’ testimony as that of a disgruntled
discharged former employee. Assuming that he is disgruntled, I do not
find his attitude to have severely undermined his credibility.
5 (By Mr. Johnson) Q. What was your reaction to that news?
(WITNESS WENSCHLAG)
the contention. During the previous union campaigns, black-
jack dealer Mark Shibe had shown himself to be strongly anti-
union. In January or February, Wenschlag called Shibe at
home. Managers Scott Rhoda and David Schneider were pre-
sent in Wenschlag’s office to listen on the speakerphone.
Wenschlag asked Shibe if he was aware of any organizing at
the casino. Shibe answered that he had not heard anything at
that time. Wenschlag then asked Shibe to report back if he
observed any union activity, specifically requesting Shibe at-
tempt to engage Ostler in a conversation about the Union, a
transparent effort to confirm the rumor. Shibe testified he did
try to speak with Ostler about the Union. However, as Shibe
had predicted during the call, Ostler did not mention the Union
to him during the discussion. Shibe attributed Ostler’s silence
to his well-known opposition to union representation.
C. Maureen Ostler’s Discharge
At the center of the 8(a)(3) controversy is whether Ostler
was terminated for timeclock abuse or because of her support
for the Union. As described above, Respondent became aware
of Ostler’s organizing via a number of sources and, indeed,
Wenschlag had settled on her as a union activist. Nonetheless,
Ostler seemingly committed some work-related deceit. She
was discovered as being overpaid under what might be charac-
terized as questionable circumstances. Respondent maintains
that it fired her for timeclock abuse, not for her union activity.
Immediately upon returning from vacation in February 2002,
Moon performed a periodic “payroll audit.” As a result of the
review, Moon discovered Ostler was being overpaid. The error
had not previously been caught during Moon’s weekly “time
checks” for punch-in and punch-out accuracy. During the au-
dit, Moon noticed job code change entries were missing from
the computerized timeclock record. Each employee has a de-
fault job category for timeclock purposes. If an employee
serves in a different capacity, he or she is to change the default
category to show each change. The missing codes next to Os-
tler’s name indicated that her pay was being assessed under her
default category. This caught Moon’s attention because she
knew Ostler had gone back and forth between bartender and
cocktail waitress. Ostler’s punch-in records should have shown
the cocktail code for the shifts she was working as a cocktail
waitress and her bartender code when she switched back.
Moon testified that when she gave permission for the job
switching, she admonished both Hendricks and Ostler to punch
in under the proper category.
Moon immediately discussed Ostler’s payroll discrepancy
with Wenschlag. After conferring, they agreed Ostler had
committed a terminable offense and he decided to discharge
her. Pratt, the food and beverage manager, called Ostler at
home and told her she was being terminated for theft. Of-
fended that she had been accused of theft (and unclear what had
led to such a charge), Ostler went to the casino to pick up her
last check and to speak with Mark Lockwood, the human re-
sources director. During the course of their discussion, Rhoda,

A. Rumor.
Q. Was it something that was of concern to you?
A. No.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
Taylor, Pratt, and “Lissa” from payroll joined Lockwood and
Ostler. Throughout the meeting Ostler was upset and tearful,
fiercely denying that she had stolen anything.
At the hearing, it was the General Counsel’s contention that
Ostler simply made an error in operating the computer which
serves as the timeclock. Ostler testified that she believed the
machine would maintain the last entered code until it was
changed again. She did not think the machine would default to
her general job classification—the higher-paying bartender job.
The payroll records show that she did indeed change her job
category on November 17, 2001, the first day she switched
positions with Hendricks. Respondent’s witnesses claim Ostler
never offered this default code defense during the course of two
termination meetings. In fact, at management’s request, Ostler
successfully demonstrated the proper punch-in procedure.
During a break in the initial termination meeting, Ostler told
Rhoda that she “knew this [termination was] union related.”
During a second termination meeting, at which Rhoda,
Wenschlag, and Ostler were present, she again voiced her sus-
picion that she was being fired for union activity. Wenschlag
denied it and on the stand stated that because Ostler had
brought up the Union they thought “longer and harder to make
sure [they] were doing the right thing.”
III. ANALYSIS AND CONCLUSIONS
A. The 8(a)(1) Allegations
In responding to a union organizing campaign, an employer
is entitled to undertake countermeasures only to the point of
illegality. The Board and the courts have said that Sections
8(a)(1) and 8(c),6 when read together, leave an employer free to
communicate with his employees so long as the communication
does not contain a “threat of reprisal, or force, or a promise of
benefit.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617–618
(1969). See also El Rancho Market, 235 NLRB 468, 471
(1978). As stated there, the Board, in determining whether the
conduct under scrutiny is coercive within the meaning of Sec-
tion 8(a)(1) looks to see whether the employer’s conduct may
reasonably be seen as tending to interfere with the free exercise
of employee rights under the Act.
Here, Respondent did not stay within those confines. Rather,
in its resistance to unionization, it engaged in a number of
8(a)(1) unfair labor practices. Acting through Vandiver, Moon,
and Wenschlag, Respondent conducted several illegal interro-
gations, threatened employees, and solicited an employee to
spy on another. Counsel for the General Counsel asserts that
the facts also support a finding that Respondent, through
Vandiver told employees that their effort to obtain union repre-
sentation would be a futile undertaking, violating Section
8(a)(1). I find the evidence insufficient to sustain that allega-
tion.

6 Sec.8(c), generally known as the “free speech” section of the Act
says with regard to an employer’s response: “The expressing of any
views, argument or opinion, or the dissemination thereof, whether in
written, printed, graphic or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this
Act, if such expression contains no threat of reprisal or force or promise
of benefit.”
The conversations between Vandiver and Franco are largely
uncontroverted. In her testimony, Vandiver did not dispute the
fact that she emphatically warned Franco against joining the
Union, saying the last time had been a ‘nightmare’ and that the
organizers had followed them, implying that such a thing was
alarming. Nor did Vandiver dispute asking Franco for the name
of the union organizer and uncovering Ostler in the process.
It is true that these discussions took place between friends.
However, Vandiver is an admitted supervisor. It was not her
place to coerce her friend Franco from union activity. Franco
was free to make up her own mind uninhibited by restraints
imposed by Vandiver’s meddling. Friendship does not privi-
lege interference, restraint, and coercion aimed at denying the
right to engage in conduct protected by Section 7.
There is some dispute regarding the threats which took place
during the Franco-Vandiver discussions. Franco testified that
Vandiver claimed Wenschlag would close down the blackjack
pit if he suspected organizing and had laid employees off dur-
ing the last organizing drive. Vandiver denied both. I find
Franco’s versions of these conversations to be the more credi-
ble. At that time she testified, Franco was no longer an em-
ployee of Respondent. She had left her employment somewhat
voluntarily, choosing to not take the position offered to her
after the blackjack pit closed. She has no obvious ax to grind
with Respondent. The fact that Franco testified in a fashion
contrary to that of her good friend also adds weight to her
credibility. Vandiver, on the other hand, still works as a man-
ager for Respondent and can only gain from a memory lapse
regarding some of her comments. Accordingly, based on both
demeanor and logic, I find Vandiver made the threats as alleged
and that they violated Section 8(a)(1).
Vandiver also testified that she did not recall ever having
asked Franco’s boyfriend, Trent Costello, if he knew anything
about the Union. Costello testified that while visiting Franco at
the home they shared, “Becca [Vandiver] asked me if I knew
anything about the Union.” He told her that he did not.
I find Vandiver’s denial not to be as credible as Costello’s
testimony. She continues to have the same employment-related
motivation for a memory lapse discussed above. Costello,
however, was still an employee of Respondent at the time of
the hearing. He was subject to both the social implications
(Franco’s friendship with Vandiver) and employment conse-
quences. The fact that he is still employed and gave testimony
unfavorable to his employer is a significant factor in assessing
his credibility and I credit him over Vandiver. Georgia Rug
Mill, 131 NLRB 1304, 1305 fn. 2 (1961), modified on other
grounds 308 F.2d 89 (5th Cir. 1962); Shop-Rite Supermarket,
231 NLRB 500 (1977); Eagle Transport, 338 NLRB 489
(2002). Vandiver had no legitimate purpose to interrogate
Costello about his knowledge of the Union. Her only aim was
to find out about the employees’ union activity, no doubt with
an eye to reporting it to higher management. Accordingly it
violated Section 8(a)(1).
However, I do not discern from Vandiver’s conduct that she
did or said anything which qualifies as discouraging employees
from union activity as a futile act. At best she tried to coerce
employees through threats and a contention that union organiz-
ing was a negative experience. She never said anything to the
MIDNIGHT ROSE HOTEL & CASINO 1013
effect that it was a waste of energy or that Respondent would
never recognize or bargain with a properly recognized labor
organization. Compare her conduct to that of the employer in
Wellstream Corp., 313 NLRB 698, 706 (1994). There, the
employer told its employees that “no son of a bitch would ever
bring a union in” and the company would never be unionized.
Similarly, see Ideal Elevator Corp., 295 NLRB 347, 351
(1989), where the employer said he would fight unionization
“til his last penny” and the company would always be non-
union. Both cases involved a company principal who had the
power to formulate such a policy. Vandiver, a first line super-
visor, clearly is not a principal and lacks such power. And,
both employers expressed an intensity and purpose which
Vandiver did not display. This case is more akin to Ready-Mix,
Inc., 337 NLRB 1189 (2002), where a company principal sim-
ply said that the company was nonunion and had no plans to
become unionized. Therefore, I shall dismiss paragraph 5(c)(ii)
of the complaint relating to the futility issue.
There is no real dispute regarding Moon’s questions and
comments to Carroll. Having first asked for a promise of con-
fidentiality, Moon proceeded to ask Carroll about her union
activities, simultaneously going out of her way to express her
personal antiunion beliefs. Obviously, Moon’s reference to
former employee Sabrina Newberry was a not-so-thinly-veiled
threat of job loss. In her testimony, Moon conceded that she
believed Newberry had been fired for her union activity. There
can be no doubt that she intended her remark to convey that
likelihood. And, Carroll got the message, for she testified that
she concluded from Moon’s remarks that Newberry’s organiz-
ing had led to her dismissal. Moon’s interrogation and threats
were intended to coerce Carroll from exercising any right
granted by Section 7. Both the interrogation and the threats
violated Section 8(a)(1).
Finally, there is the phone conversation between Wenschlag
and Shibe. Wenschlag admitted he called Shibe to ask him
whether he had witnessed any union activity. That alone con-
stitutes an unlawful interrogation. However, Shibe says
Wenschlag went well beyond that inquiry and recruited him as
a spy for management and asked him to elicit information from
Ostler about her union activity and report his findings back to
Wenschlag. It is that part of the conversation which is in dis-
pute, for Wenschlag denies making any reference to Ostler. I
find Shibe’s version of the conversation is far more credible
than Wenschlag’s denial. Shibe simply had no motivation to
fabricate his story. His antiunion feelings have not changed,
but they did not overcome what he knew to be the truth.
Wenschlag, on the other hand, had every reason to deny having
made the request. Shibe’s version is credited. Furthermore, as
seen below, Wenschlag’s credibility is rejected on other matters
as well. I conclude Wenschlag violated Section 8(a)(1) by
interrogating Shibe regarding the union activities of other em-
ployees and recruiting him to spy on Ostler’s union activities.
B. Ostler’s Discharge
The leading case in assessing an 8(a)(3) discharge allegation
is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Its doctrine was
later approved by the Supreme Court in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). In Wright Line
the Board laid out the burdening-shifting components of an
8(a)(3) case. Yet the doctrine’s essence only requires the Gen-
eral Counsel to prove by a preponderance of the evidence that
union animus was ‘a motivating factor’ in the termination deci-
sion. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). To
do that, the General Counsel must prove several elements.
They are: (1) there must have been, or perceived to have been,
union activity by the discriminatee; (2) the employer must have
knowledge of the discriminatee’s union activity; (3) the em-
ployer must be shown to harbor animus or hostility toward
employee union activity; and (4) there must be a nexus of those
elements to the discharge, usually timing. Here, I find, under
Wright Line, that the General Counsel has met the burden of
establishing a prima facie case and that union organizing was ‘a
motivating factor’ in Wenschlag’s decision to discharge Ostler.
Certainly there were organizing activities occurring at Re-
spondent’s facility at a time closely connected to Ostler’s ter-
mination. It is uncontroverted that approximately a month
before Ostler’s termination, Wenschlag received a letter from
union organizer Modecker announcing the Union’s intent to
organize Respondent’s facility. In addition, witness Carroll
testified she knew it and had said as much to Moon during a
conversation. Costello testified that Ostler had spoken to him
about the benefits of unionization and Vandiver learned about
that from Franco.
In its brief, Respondent argues there is little evidence to
show Respondent had knowledge of Ostler’s organizing activi-
ties. It claims the only information management had regarding
Ostler’s union organizing was through the conversation be-
tween Franco and Vandiver but that it was so attenuated and
vague as to be meaningless. Yet, I find this assertion ignores
Shibe’s credible account of his phone conversation with
Wenschlag. One can reasonably conclude from that incident
that Wenschlag was hunting for employee organizers and had
targeted Ostler. There is also the testimony of Martinez, Re-
spondent’s former shift manager. He specifically recalls Moon
voicing her suspicions about Ostler. Clearly the information
Franco gave to Vandiver is not nearly as attenuated or insig-
nificant as the Respondent would have it seem. These are three
clear and likely paths directly to uppermanagement about Os-
tler’s involvement with the Union. In any event Respondent is
charged with their knowledge. See Ready Mixed Concrete Co.,
317 NLRB 1140, 1143–1144 (1995); Van Dyke Crotty Co., 297
NLRB 899 fn. 4 (1990); Dr. Phillip Megdal, D.D.S., Inc., 267
NLRB 82 (1983); and Pellegrini Bros. Wines, 239 NLRB 1220
(1979).
Moreover, Respondent’s union animus is clearly found
through the 8(a)(1) violations discussed above. Also, as the
Wenschlag-Shibe telephone conversation amply illustrates,
there was animus, in the form of interrogation and surveillance,
specifically targeting Ostler. The General Counsel has easily
established a prima facie case concerning Ostler’s discharge.
Given the General Counsel’s prima facie case, Wright Line
shifts the burden to Respondent to rebut it. To do so, it must
prove that the employee would have been terminated in any
case. That is to say, Respondent must prove, even absent Os-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
tler’s protected conduct, that her timeclock failings would have
resulted in her termination.
Respondent argues Ostler behaved in a dishonest manner
through her supposed misuse of the timeclock and that she
committed theft by knowingly accepting wage overpayments.
To emphasize its contention that the higher wage was not the
result of mistake, Respondent argues that Ostler was well-
versed in the timeclock procedures. Also, Respondent notes
Moon’s testimony that she told Ostler to change her timeclock
job codes whenever a switch was made, and that, in any case,
directions for the timeclock code changes were posted.
I do not find Respondent’s rationale for Ostler’s termination
persuasive. A careful scrutiny of the facts undercuts Respon-
dent’s claim that Ostler’s knowledge of the proper timeclock
procedures makes her intent to steal evident.
First, I find it relevant that Ostler’s actions are not in conflict
with her expressed reasoning. She testified that she believed
the timeclock would retain the last entered job code until it was
changed again. Given the fact that she changed her job cate-
gory to cocktailing on the first day of the job switching, her
subsequent inactivity is consistent with that belief. Nor is that
undermined by her inability to explain it in those terms during
the exit interviews, where she was operating in an emotional
state.
Under Respondent’s rationale, Ostler’s records should have
shown classification switching during that period of time and
her first day switch showed she knew how to do it. Her failure
to do so, however, does not eliminate the likelihood of an hon-
est mistake. I find it is more likely that Ostler was also operat-
ing under a second misapprehension, a belief that she had
wholly switched positions with Hendricks. Her behavior sug-
gests this is so. It is probable that she did not consider the mi-
nor variations in her schedule (based on what the shift required)
to warrant clocking in under another job category. I find Os-
tler’s testimony illustrates her confusion about the pay rate
implications of the job switching.7 After all, the hourly pay rate
differential was virtually meaningless to both Ostler and
Hendricks. It only changed their gross pay by $1.25 per hour,
from $5.50 to $6.75, no more than $10 per 8 hour shift. Cus-
tomer gratuities were the main source of earnings for both jobs

7 THE COURT: Well, let me see if I’ve got this right. I mean, I—
when you were working together is when you switched, or did you
switch shifts altogether? In other words,—
THE WITNESS: Altogether.
THE COURT: So every—even if she wasn’t there, then you would be
cocktail waitressing?
THE WITNESS: Or bartending. I did both.
Q. (BY MR. COOPERMAN) Okay. Was there a primary—two days a
week, Friday and Saturdays, you were cocktailing,—
A. Correct.
Q .—and April [Hendricks] bartending?
A. Yes.
Q. And on the other days of the week that you worked, how would
you know whether you were going to be a cocktail waitress or a bar-
tender?
A. You didn’t till you got to work. I would get to work as—like,
Trent [Costello] would leave early. I would go back behind the bar and
be bartender. If we had a new person behind the bar, usually I handled
training them as a bartender, even though I was cocktailing at the time.
and the hourly differential had little impact on their total earn-
ings.
Respondent attempts to bolster its argument by claiming
Moon admonished both Ostler and Hendricks to punch in under
the proper job codes. Hendricks, who stood to lose money by
not punching in properly, did not change her job category at all
during this time period, either. Accordingly, I am not con-
vinced that Moon should be credited on the point, given her
strong backing of Respondent’s efforts to blunt union organiz-
ing. In the alternative, even if she did, her admonishment was
not effectively carried out. Moreover, I find that, with the mis-
understandings and confusion described above, the posted in-
structions did not override the confusion evidenced by both
employees.
Moon’s instructions to Ostler and Hendricks should have
been more clear and Moon should have tracked the two em-
ployees’ compliance. A simple question from Moon would
have sufficed and the error could easily have been corrected
from the outset of the job switching arrangement. Certainly
Moon should have noticed the incorrect payments earlier. It
may accurately be said that because of Moon’s failure to super-
vise, Ostler is being held responsible for what it is essentially a
management shortcoming.
Furthermore, Wenschlag, in an effort to show Ostler’s mis-
use of the timeclock was not a mistake, said “She bragged that
she was probably the best” concerning her skill in using the
timeclock computer. I find his claim to be a transparent effort
to bolster the validity of his decision to discharge her. Simi-
larly unimpressive is Wenschlag’s purported lack of concern
about the letter from Modecker announcing the organization
attempt as well as his self-effacing testimony that he regarded
the reports of Ostler’s organizing to be mere rumor. I find all
these claims to be self-serving and evidence of Wenschlag’s
desire to cast a patina of innocence over his actions. In a simi-
lar vein, Wenschlag overstated his concerns over dishonest
employees, observing that the Company operated in a heavily
regulated business. The observation is true for licensed gaming
employees, but there is no heightened difference for its food
and beverage department over any noncasino restaurant/bar.
Like any employer Wenschlag must be concerned with em-
ployee honesty; yet making it appear that his business requires
greater honesty of its waitresses and bartenders because it also
operates a casino says more than needs to be said. It is another
exaggeration and part of the effort to justify his treatment of
Ostler. Accordingly, I find Respondent’s allegations of dishon-
esty and theft to be an exaggeration.
Respondent offered its past practice of terminating employ-
ees for what it says were similar timeclock violations. But, the
situations described during testimony were not at all compara-
ble. Cases of employees gambling at nearby casinos while on
Respondent’s clock or clocking in for shifts they never worked
are of no assistance here. In situations such as those, there was
no chance of mistake. The actions of such employees were
willful and egregious. Unlike those employees, all of whom
were fired, Ostler was working when she was supposed to be
and committed no act of deceit to cover up her supposed “viola-
tion.” Similarly, Respondent’s suspension of an employee for
misuse of the company’s toll-free telephone number is not
MIDNIGHT ROSE HOTEL & CASINO 1015
comparable because it, too, was a scheme which went well
beyond any possible mistake.
It is true that Ostler was aware, if only barely, that she was
being overpaid and did not report it to any manager. Likewise,
Hendricks was underpaid, but did not report it. As noted
above, for both positions in question, bartending and cocktail-
ing, customer gratuity is the main source of compensation.
Both Ostler and Hendricks knew that and understood the finan-
cial implications when they entered into their job switching
agreement. They traded not for the money, but to vary the
nature of their work. The pay rate did not strike either of them
as very important. It is clear to me that Ostler had no intent to
steal from anyone; she just didn’t recognize there was a record-
keeping problem.
Ultimately, I can only find Ostler’s failure to observe the
timeclock codes to be the product of a misunderstanding at
most, one which could have been avoided with proper supervi-
sion. Respondent’s accusation of theft is a clear inflation of the
situation. I find Respondent saw it as an opportunity and an
excuse to get rid of a perceived union activist.
Respondent’s defense, therefore, fails to rebut the General
Counsel’s prima facie case. Accordingly, I find Respondent
violated Section 8(a)(3) and (1) of the Act when it discharged
Ostler because of her efforts to organize her fellow employees
on behalf of the Union.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. And, as Respondent discriminatorily dis-
charged Ostler, it will be ordered to offer her immediate rein-
statement and make her whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of
her discharge to the date of a proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Furthermore, it
shall be required to expunge from Ostler’s personnel file any
reference to her illegal discharge. Sterling Sugars, 261 NLRB
472 (1982). Finally, it shall be directed to post a notice to em-
ployees advising them of their rights and describing the steps it
will take to remedy the unfair labor practices which have been
found.
Based upon the foregoing findings of fact, legal analysis, and
the record as a whole I hereby make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 537, affiliated with Interna-
tional Brotherhood of Teamsters, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. On the dates shown in the decision, Respondent violated
Section 8(a)(1) when its managers and supervisors, Richard
Wenschlag, Rebecca Vandiver, and Shelby Moon, interrogated
employees about their union activities, sympathies, and desires
and about the union activities, sympathies, and desires of other
employees.
4. In late January or early February, Respondent, acting
through Wenschlag, violated Section 8(a)(1) by soliciting an
employee to spy on the union activities of employee Maureen
Ostler and to inform him of his findings
5. In early February, Respondent, acting through Vandiver,
violated Section 8(a)(1) by threatening employees with loss of
jobs for seeking representation by the Union.
6. The General Counsel has failed to prove that Respondent,
through Vandiver, told employees that union representation
was an act of futility.
7. On February 13, Respondent violated Section 8(a)(3) and
(1) of the Act when it discharged employee Maureen Ostler.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Midnight Rose Hotel & Casino, Inc., Crip-
ple Creek, Colorado, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees their union activities,
sympathies, and desires and the union activities, sympathies,
and desires of other employees.
(b) Soliciting employees to spy on the union activities of
their fellow employees.
(c) Threatening employees with loss of their jobs because
they seek union representation.
(d) Discharging or otherwise disciplining employees because
they engage in activity protected by Section 7 of the Act, in-
cluding organizing on behalf of any labor union.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mau-
reen Ostler full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Maureen Ostler whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to Ostler’s unlawful discharge, and within 3
days thereafter notify her in writing that this has been done and
that the discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-

8 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1016
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its ho-
tel and casino in Cripple Creek, Colorado, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 27 after
being signed by Respondent’s authorized representative, shall
be posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 25, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the remainder of the complaint
be dismissed in its entirety.
APPENDIX
NOTICE TO 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

9 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.”
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively interrogate you about your union ac-
tivities, sympathies, and desires or the union activities, sympa-
thies, and desires of your fellow employees.
WE WILL NOT ask any employee to spy on the union activities
of fellow employees.
WE WILL NOT threaten you with loss of your jobs because
you seek union representation.
WE WILL NOT discharge or otherwise discipline you if you
engage in activity protected by the National Labor Relations
Act, including organizing on behalf of Teamsters Local Union
No. 537, affiliated with International Brotherhood of Team-
sters, AFL–CIO, or any other labor union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Federal law.
WE WILL within 14 days from the date the Board’s Order, of-
fer Maureen Ostler full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Maureen Ostler whole for any loss of earn-
ings and other benefits suffered as a result of our discrimination
against her, plus interest.
WE WILL within 14 days from the date of the Board’s order,
remove from our files any reference to Maureen Ostler’s
unlawful discharge and within 3 days notify her in writing that
we have done so and that the discharge will not be used against
her in any way.
MIDNIGHT ROSE HOTEL & CASINO, INC.