Monte Carlo Resort & Casino

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 54 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54
Victoria Partners, a Partnership of Mirage Resorts,
Inc. and Circus Circus Enterprises, Inc. d/b/a
Monte Carlo Resort & Casino and International
Union of Operating Engineer, Local 501, AFL–
CIO. Case 28–CA–13975
October 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On September 19, 1997, Administrative Law Judge
Michael D. Stevenson issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
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,1 and conclusions and
to adopt the recommended Order, as modified.2
In adopting the judge’s conclusion that the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing
final disciplinary notices to employees Council and
Brickey, we find it unnecessary to rely on the judge’s
“fruit of the poisonous tree” analysis. It is undisputed
that the Respondent’s stated reason for issuing discipli-
nary notices was Council’s and Brickey’s violation of the
Respondent’s employee handbook rules prohibiting “un-
authorized posting, distribution, sale or circulation of
written material in working areas [or] unauthorized sale
of anything while on the premises” (rule 21) and “solicit-
ing, procuring or engaging in any immoral acts on the
premises” (rule 24). However, neither Brickey nor Coun-
cil posted distributed, sold, or circulated any material,
nor did they engage in solicitation even arguably within
the meaning of rule 24. Moreover, as to employee
Brickey, there is no evidence in the record that his con-
duct involved any solicitation at all. Rather, the em-
ployee statements in the record on which the Respondent
claimed it relied in disciplining Brickey indicate that he
merely listened as another employee solicited him. Un-
der these circumstances, we conclude that the issuance of
final disciplinary notices to Council and Brickey for vio-
lation of these rules was baseless and clearly pretextual.
See Shattuck Denn Mining v. NLRB, 362 F.2d 466 (9th
Cir. 1966). Thus, we agree with the judge that the disci-
pline of these employees violates Section 8(a)(3) and (1).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they are incorrect.
Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s findings that Paul Leysen and Vincent Pan-
gallo are not statutory supervisors, we do not rely on the judge’s com-
ments, in Secs. III(B)(3)(a) and III(C)(2), respectively, concerning the
prevalence of resume inflation and employee independence from close
supervision as a treasured feature of the graveyard shift. In adopting
the judge’s finding in Sec. III(C)(2) of his decision that Leysen and
Pangallo did not have the authority to effectively transfer employees,
we also do not rely on his finding that the transfers referenced by the
Respondent did not involve employee discipline. Further, we do not
rely on the judge’s finding in Sec. III(B)(3)(a) that, because Leysen’s
position description was never shown to him, it is of little value in
establishing supervisory status. Concerning Leysen’s comment to
employee Suvoski to the effect that Suvoski should disregard instruc-
tions from the deputy chief and chief engineers, discussed in Sec.
III(C)(2) of the judge’s decision, we rely solely on the judge’s finding
that this comment is not evidence of supervisory status. Last, we adopt
the judge’s findings that Leysen and Pangallo are not supervisors even
accepting the Respondent’s representations in its exceptions concerning
the percentages of time they spend “working with the tools.”
In adopting the judge’s findings that Leysen and Pangallo are not
supervisors within the meaning of the Act, Member Brame does not
rely on the judge’s statement that supervisory status must not be con-
strued too broadly because the employee who is deemed a supervisor is
denied the Act’s protection, or upon the citation to Chevron Shipping
Co., 317 NLRB 379, 380–381 (1995)
2 We have modified the Order and issued a new notice to more
closely reflect the violations found.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Victoria Partners, a Partner-
ship of Mirage Resorts, Inc., and Circus Circus Enter-
prises d/b/a Monte Carlo Resort and Casino, Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c):
“(c) Discriminatorily issuing written warnings to em-
ployees for violation of employee handbook rules.”
2. Add the following as paragraph 1(d) and renumber
accordingly:
“(d) Creating an impression among employees that
their union activities were under surveillance.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

327 NLRB No. 19
VICTORIA PARTNERS 55
WE WILL NOT discharge employees because they
engaged in protected concerted activity or union activity.
WE WILL NOT unlawfully interrogate our employees.
WE WILL NOT create an impression among our em-
ployees that their union activities are under surveillance.
WE WILL NOT discriminatorily issue disciplinary no-
tices to employees for violation of employee handbook
rules.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the ex-
ercise of any of the above rights which are protected un-
der the National Labor Relations Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Paul Leysen and Vincent Pangallo
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Leysen and Pangallo whole for any
loss of earnings and other benefits resulting from their
discharges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the discharges of Leysen and Pangallo, and any written
disciplinary notices issued to Gary Brickey and to Jerry
Council, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges will not be used against them in any way.

VICTORIA PARTNERS, A PARTNERSHIP OF
MIRAGE RESORTS, INC. AND CIRCUS CIRCUS
ENTERPRISES, INC. D/B/A MONTE CARLO
RESORT & CASINO

Nathan W. Albright and David Lujan, Esqs., of for the General
Counsel.
Harriet Lipkin and Celeste M. Wasielewski, Esqs. (Pantaleo,
Lipkin & Moss, P.C.), of Washington, D.C., for the Re-
spondent.
Lewis N. Levy, Esq. (Levy, Goldman & Levy), of Los Angeles,
California, for the Charging Party.
DECISION1
STATEMENT OF THE CASE2
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Las Vegas, Nevada, on March
10, 11 and 12, 1997,3 pursuant to a complaint issued by the
Regional Director for the National Labor Relations Board for
Region 28 on December 20, and which is based on charges

1 In a motion to postpone hearing (G.C. Exh. 1(q)), filed on or about
January 6, 1997, Respondent averred that Respondent’s proper name
was Victoria Partners, a partnership of Gold Strike L.V., a Nevada
general partnership, a M.R.G.S. Corp., d/b/a Monte Carlo Resort &
Casino. Because no motion to correct the case name was ever made
and because even Respondent’s posthearing brief contains the original
case name, I will make no changes.
2 Without objection, Respondent’s motion to correct transcript, dated
May 9, 1997, is granted.
3 All dates herein refer to 1996 unless otherwise indicated.
filed by International Union of Operating Engineers, Local 501,
AFL–CIO (the Union) on October 29 (original), and December
16 (amended). The complaint alleges that Victoria Partners, a
Partnership of Mirage Resorts, Inc. and Circus Circus Enter-
prises, Inc. d/b/a Monte Carlo Resort & Casino (Respondent)
has engaged in certain violations of Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act).
Issues
I. Whether for all times material to this case, Respondent
proved that alleged discriminatees, Paul Leysen and Frank Pan-
gallo, were statutory supervisors pursuant to Section 2(11) of
the Act.
II. Whether Respondent, acting through Jacqueline
DeRoode, unlawfully interrogated employees about their own
and other employees’ union membership, activities, and sympa-
thies and unlawfully created the impression among its employ-
ees that their union activities were under surveillance by Re-
spondent.
III. Whether Respondent unlawfully issued final warning
disciplinary notices to two of its employees for alleged viola-
tions of two employee handbook rules purporting to regulate
distribution and solicitation.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a partnership of Gold Strike
L.V., a Nevada general partnership and MRGS Corp., d/b/a
Monte Carlo Resort and that Respondent is wholly owned by or
are subsidaries of Circus Circus Enterprises, Inc., and Mirage
Resorts, Inc., which operates a hotel and casino and maintains
an office and place of business located in Las Vegas, Nevada.
Respondent further admits that based on a projection of its
operations since on or about June 21, at which time Respondent
commenced operations, Respondent in the course and conduct
of its business operations described above, will annually derive
gross revenues therefrom in excess of $500,000. Respondent
further admits that based on a projection of its operations since
on or about June 21, Respondent in the course and conduct of
its business operations described above, will annually purchase
and receive in interstate commerce at Respondent’s facility,
products, goods and materials valued in excess of $50,000 di-
rectly from points outside the State of Nevada. Accordingly,
Respondent admits, and I find, that it is an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Union of
Operating Engineers, Local 501, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
1. The General Counsel’s amendments to complaint
On the first day of hearing, the General Counsel moved to
amend the complaint in certain respects. The “housekeeping”
matters were allowed, without objection. However, the General
Counsel moved to add one substantive allegation, represented
by issue III, above (G.C. Exh. 3). For various reasons, Respon-
dent did object to this amendment, including lack of time to
investigate the new allegation. To prove a prima facie case on
both the original and amended allegation, the General Counsel
offered only documents. In the latter instance, the General
Counsel represented that the documents on which he relies
were documents furnished by Respondent shortly before hear-
ing began, pursuant to the General Counsel’s subpoena duces
tecum. In any event, to resolve the problem of Respondent’s
lack of time to prepare for the new allegation, I held the record
open for 30 days after both sides rested on the original com-
plaint allegations. On March 18, 1997, Respondent submitted
an amended answer. Thereafter, I was notified by Respondent
on or about April 4, 1997, by conference telephone call, that
Respondent would not offer additional evidence with respect to
the new allegation. By Order of April 14, 1997, I closed the
record and set a briefing schedule.
I now mark the amended answer, and the Order of April 14,
1997, as General Counsel Exhibits 1(l) and 1(m), respectively,
and admit them into evidence.
2. Stipulation
All or most of this case is dependent on whether the two al-
leged discriminatees were, for all times material to the case,
statutory supervisors. In a rare but no less welcome time-
saving procedure, the parties have agreed on a written pre-
hearing stipulation which reads as follows:

Re: Monte Carlo Resort & Casino
Case 28–CA–13975
STIPULATION
The parties stipulate as follows:
(1) At all relevant times, only Lee Fofi and Gary Hughes
has authority to authorize and enter into Respondent’s
timeclocks, to authorize overtime or schedule
changes allowing for payment of wages to any em-
ployee employed in Respondent’s Engineering de-
partment.
(2) Respondent Respondent stipulates that Paul Leysen
and Frank Pangallo were discharged because of the
conduct as set forth in paragraphs 5(e) and 5(h) (re-
numbered as 5(I) if amendment to the complaint is al-
lowed) of the outstanding complaint. The parties
stipulate that if Paul Leysen and Frank Pangello are
found to be supervisors within the meaning of Sec-
tion 2(11) of the Act, Respondent did not violate
8(a)(1) and (3) of the Act as set forth in the out-
standing complaint. The parties further stipulate that
if Paul Leysen and Frank Pangallo are not found to be
supervisors within the meaning of Section 2(11) of
the Act, Respondent independently violated Section
8(a)(1) of the Act as set forth in paragraph 6 and 8 of
the oustanding complaint and violated Section 8(a)(1)
and (3) of the Act, as set forth in the outstanding
complaint, by the discharges of Paul Leysen and
Frank Pangello.

Dated: 3/10/97 By: /s/ Nathan W. Albright
Nathan W. Albright, counsel for
the General Counsel.
Dated: 3/10/97 By: /s/ Harriet Lipkin
Harriet Lipkin, counsel for the
Respondent.
Dated: 3/10/97 By: /s/ Lewis Levy
Lewis Levy, counsel for the
Charging Party.
[G.C. Exh. 2.]4
B. Facts
1. Respondent’s property
On or about June 21, Respondent opened for business. Lo-
cated on a prime 54-acre site, the hotel/casino contains some of
the best of what Las Vegas has to offer: a 120,000 square foot
casino with 95 table games, 2800 slot machines, separate areas
for poker, keno, bingo, and a sports book. If the players ever
tire, they may retire to one of over 3000 hotel rooms to rest. If
they are hungry, Respondent offers a choice among four public
restaurants and one for its employees. If they thirst, there are
two main bars and one service bar at the ready. Each hotel
room contains at least one private bath and the property main-
tains numerous public bathrooms for the convenience of its
guests. Several swimming pools are located around the prop-
erty.
Insuring the comfort of Respondent’s guests is a job pe-
formed by the equipment in the central plant, and the engineers
who work there or in related behind the scene jobs. To keep
guests warm in winter and cool in the summer, the central plant
contains four 300-hp. boilers and 21 pumps moving water
around the property; five 1000-ton chillers and five 1500-ton
cooling towers on the roof.5 Numerous elevators serve the
public going to and coming from their rooms in the tower areas.
The area of the central plant is about 4000 square feet.
Notwithstanding the fact that all the equipment is new,
power outages occur, water lines break, elevators go out of
service, cooling towers need to be lengthened, locks malfunc-
tion, its too hot or too cool. These are only a sampling of what
can and has gone wrong at Respondent’s new hotel/casino.
Keeping the property in full operation when things go wrong is
the responsibility of its engineering staff upon which this case
focuses. I should also add that the staff maintains a complex
fire prevention and firefighting program which thus far has
worked well in preventing fires. Finally the staff performs a
number of regular maintenance chores in and around the prop-
erty, so that all or most equipment works as expected.
2. Respondent’s engineering staff
Respondent’s chief engineer is August (Lee) Fofi, who was a
witness both for Respondent and for the General Counsel.
Hired as of June 4, 1995, Fofi worked at Respondent’s project
as it was being constructed. His expertise was useful from both
a technical and personnel point of view. That is, Fofi had years

4 Par. 6 of the complaint referred to in the stipulation alleges viola-
tions of the Act represented by issue II, above.
5 Respondent presented a video tape (R. Exh. 24) showing many
nonpublic areas of Respondent in the central plant, such as an office,
many of the major pieces of equipment and other relevant details.
VICTORIA PARTNERS 57
of experience working at various properties in and around Las
Vegas. His last job before Respondent was at the MGM Grand
Hotel/Casino where he was an engineer on the graveyard shift
and for 2 days of the week, he worked as a replacement shift
supervisor. Fofi’s technical and professional experience gar-
nered over the years was useful in planning and building Re-
spondent to be as efficient as possible. But Fofi had another
job as well: to recruit a staff of subordinate engineers, experi-
enced and capable like Fofi himself. Fofi hired his deputy, a
man named Gary Hughes, who did not testify, as assistant chief
engineer. (All agree that for all times material to the case Fofi
and Hughes were statutory supervisors. Tr. 597.)
Both Fofi and Hughes had position descriptions. The former
read as follows:

Lee Fofi
MONTE CARLO
LAS VEGAS
JOB DESCRIPTION
JOB TITLE: CHIEF ENGINEER POSITION CODE:
ENG023
MINIMUM AGE REQUIREMENT: 21 YEARS OF AGE
DEPARTMENT: ENGINEERING
REPORTS TO: GENERAL MANAGER
SUPERVISES: ENGINEERING STAFF

GENERAL SUMMARY OF DUTIES: The Chief Engineer
is in charge of the overall operation of the Engineering De-
partment on a twenty-four (24) hour basis. He is responsible
for planning, directing and controlling the department.

TYPICAL PHYSICAL/MENTAL DEMANDS: Communi-
cate directly, telephonically, electronically and by transcrip-
tion with guests, general public, management and staff in
English. Work accurately with intermediate math skills; able
to utilize a calculator; requires normal vision range and ab-
sence of color blindness; requires the ability to distinguish let-
ters and symbols. Understand and comply with Policies and
Procedures, Job Description, daily memorandums, chemical
labels and other instructions.

TYPICAL WORKING CONDITIONS: Be mobile in all ar-
eas of hotel and surrounding property; extensive contact with
departments and staff. Able to tolerate varying conditions of
noise level, temperature, illumination and air quality.

EXAMPLE OF DUTIES (includes but is not limited to the
following):
1. Plan, organize and schedule all Engineering activi-
ties.
2. Determine personnel requirements for Engineering
Department.
3. Prepare Monthly, Quarterly and Annual Forecast for
Engineering Department.
4. Establish and maintain sufficient materials and parts
to keep the Hotel/Casino in peak operating condition.
5. Establish and maintain files for the department.
6. Establish and maintain an inventory of carpet used
throughout the Hotel/Casino. Determine and schedule ma-
jor replacements.
7. Establish and maintain a safe working environment
for employees.
8. Research, schedule and oversee all structural, me-
chanical and electrical additions or changes throughout
Hotel/Casino.

PERFORMANCE REQUIREMENTS:

Knowledge, Skills & Abilities: Pleasant personality, team
oriented and enjoys working with and serving people. Skill in
establishing and maintaining effective working relationships
with staff. Working knowledge of plumbing, electrical and
mechanical equipment. Ability to perform intermediate math.

Education: Minimum high school education or equivalent;
college preferred with background in business administra-
tion/management.

Experience:

1. Three (3) to five (5) years experience management
experience of a large property.
2. Three (3) to five (5) years experience in a supervi-
sory capacity.
3.Three (3) to five (5) years as an engineer.

Certicate/License: Non-Gaming LVMPD Sheriff’s Card.

ALTERNATIVE TO MINIMUM QUALIFICATIONS:
NONE
[G.C. Exh. 20.]
The latter reads as follows:
Gary Hughes
JOB DESCRIPTION
JOB TITLE: Assistant Chief Engineer
DEPARTMENT: Engineering
REPORTS TO: Chief Engineer
EFFECTIVE DATE: June 21, 1996

JOB SUMMARY:

It is the responsibility of the Assistant Chief Engineer to assist
in managing and directing the Engineering Department/-
Maintenance operation on a 24-hour basis and to assure all
functions are performed in accordance with departmental and
Monte Carlo Resort and Casino policies and practices. Re-
sponsible for ensuring the completion of the daily assignment
log. Supervises subordinate personnel in the maintenance, re-
pair and modification of facilities and equipment within prop-
erty. Duties are performed within the framework and intent
of the Monte Carlo.

ESSENTIAL FUNCTIONS:

1. Responsible of assisting the Chief Engineer in di-
recting and managing the Engineering Department on a
24-hour basis, ensuring all activities and job duties per-
formed according to department and Monte Carlo policies
and procedures.
2. Reviews, plans and coordinates all job assignments,
setting priorities, making cost-effective assignment deci-
sions and ensures the quality of work and completion of
projects in a timely manner.
3. Prepares complete annual preventative maintenance
schedules to ensure and effective efficient approach to all
sytems and equipment maintenance.
4. Conducts employees briefings prior to the start of
and end of a shift for the purpose of making job assign-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
ments and discusses any problems or concerns. Conducts
periodic meetings to review and discuss policies and pro-
cedures, address problems and concerns, and sense of
teamwork and ownership of department responsibilities.
5. Responsible for the employees department orienta-
tion on departmental policies procedures and funcational
job duties. Ensures employees become thoroughly familar
with the facility, receive comprehensive training and have
complete understanding of the job and its standards.
6. Responsible for ongoing training of existing em-
ployees as necessary to ensure department standards are
met. Cross training as necessary for efficiency and effec-
tiveness of department and expands employees’ expertise
to other functional areas within department.
7. Ensures adequate staffing for engineering duties and
project completion thru accurate manpower planning and
projection of required equipment and supplies.
8. Assists the Chief Engineer in determining the feasi-
bility and expense of various projects through the prepara-
tion of data on material cost and man hour requirements.
Make recommendations for cost savings measures.

ADDITIONAL RESPONSIBILITIES:

1. Assists the Chief Engineer in the preparation and
maintenance of the annual budget.
2. Interviews, screens and hires the most qualified in-
dividuals to work in engineering. Initiates recommenda-
tions for change in classification, salary action, promo-
tions, transfers, terminations.
3. Keep the Chief Engineer and lead watch informed
on all pertinent information and reports all significant ir-
regularities or problems as they occur.
4. Performs a variety of other managerial/supervisory
duties as required.

REQUIREMENTS:

Physical
Must possess the ability to:
1. Access all areas of the facility and travel off prop-
erty when representing the company.
2. Access hard-to-reach and potentially dangerous ar-
eas and work in areas from crawl space and the roof of the
facility. Job assignments may require working with haz-
ardous equipment chemicals.
3. Effectively listen and verbally communicate tele-
phonically and in person with management, employees
and outside contacts. Ability to read and evaluate reports,
correspondence statistical reports.
4. Ability to make decisions and work independently
and the physical and mental stamina work under pressure
when dealing with multiple work assignments and meeting
deadlines.
Non-physical
Must possess:
1. Extensive knowledge of the Monte Carlo facilities
and equipment, specific management experience in engi-
neering and the successful application these concepts in a
hotel/casino environment.
2. The perception and awareness of the company’s fa-
cilities/maintenance policy and goals to assist in formulat-
ing and implementing of an effective maintenance strategy
for the hotel.
3. Excellent oral and strong written communication
skills to effectively manage the department.

EDUCATION/EXPERIENCE:
Must possess:
1. Education level usually associated with the attain-
ment of a Degree in Business and certification from a
trade school or equivalent work experience.
2. Experience in working in a management or supervi-
sory level position with strong knowledge of engineering
principles and theories, specifically in hotel/casino opera-
tions.
Certificate/License
1. Employment eligibility for the United States.
2. Valid non-gaming Sheriff’s card.
[G.C. Exh. 21.]
To reduce the risk of hiring incompetent employees, Fofi
concentrated his search for employees on those people he had
worked with at the MGM Grand. From this source, Fofi re-
cruited Paul Leysen, an alleged discriminatee, Rene Alvarez, a
rebuttal witness for the General Counsel and current Respon-
dent employee and Curt Beasley, also a rebuttal witness for
General Counsel and former Respondent employee. For sev-
eral weeks prior to the actual date of hire of these MGM Grand
employees, Fofi hosted weekly breakfast meetings at a local
restaurant in order to keep prospective employees updated on
important information, such as the progress of construction and
the dates the jobs would become available. Fofi did not limit
his recruiting to the MGM Grand. Years before he worked
there, he worked at another Las Vegas property called the
Alexis Park. The chief engineer there was Frank Pangallo who,
while working at a different job in November, 1995, happened
to meet Fofi, strictly by chance. Pangello was dissatified with
his current position and Fofi was looking for Respondent engi-
neers who did good work. Fofi remebered Pangallo and after
both men recalled some old times, Pangello was eventually
hired for the graveyard shift. Both Leysen and Pangallo began
work on March 18. About four other engineers including Alva-
rez, started on the same day in the first engineering department
hiring after Hughes. To establish seniority among the six engi-
neers, Fofi instructed his secretary to draw names out of a hat.
(To minimze later disputes, the entire procedure was video-
taped.)
Approximately 45–46 engineers were eventually hired by
Fofi by the time Respondent opened to the public. Counting
auxiliary staff such as secretaries, dispatchers, and others, about
76 employees were employed in the engineering department
under Fofi and Hughes. This figure includes people employed
on the day, swing and graveyard shifts. Respondent offered
three organizational charts into evidence for these shifts: For
the day shift, the “Lead Central Plant” job, a title General
Counsel urges was held by Leysen, is listed on a line equivalent
in authority to “Painter,” “Carpenter,” “Lead Electrician,” and
other classifications (R. Exh. 20). For the swing shift, “Swing
Supervisor” is listed above “Locksmith,” “Engineers” and other
classifications (R. Exh. 21). For the graveyard shift, the “Grave
Supervisor,” a title Respondent urges was held by Pangallo, is
listed above “Plumber,” “Maintenance Engineer” and other
classifications (R. Exh. 22).
VICTORIA PARTNERS 59
3. Duties and responsibilites of alleged discriminatees
a. Paul Leysen
Leysen was hired on March 18 and terminated on October
10. In reviewing the facts and circumstances surrounding Ley-
sen’s status, I begin by finding in general, Leysen was not a
highly credible witness. Time after time, he was impeached by
Respondent’s counsel. Here are a few examples: Leysen could
not recall ever telling anybody he was the central plant manager
(Tr. p. 49). However, in an application for employment after
his termination from Respondent, Leysen described his job at
Respondent as “Plant Manager” (R. Exh. 1). In another appli-
cation for employment, Leysen described his job at Respondent
as “Engineer CP Manager” (R. Exh. 25, p. 2). In the former
application, Leysen wrote as a reason for leaving Respondent,
“Job benefits promised, not delivered after start-up.” In addi-
tion, Leysen denied ever commending Respondent engineering
employees for work performed (Tr. 100). However, in an entry
in the central plant logbook.6 Leysen did just that (R. Exh. 14).
Contrary to his testimony at hearing that he did not supervise
other employees, Leysen caused to be prepared a resume and
submitted it with an application for employment to a prospec-
tive employer stating that at Respondent, Leysen directed five
coworkers during the day shift (R. Exh. 25). Also, Leysen gave
certain testimony at hearing at variance with statements con-
tained in his affidavit to the Board (Tr. 514–521).
Respondent contends in its brief (Br. 52), that the impeach-
ment contained in Leysen’s employment application are also
admissions (FRE 801(d)(2)(A)) and should be considered as
substantive evidence.7 Neither Leysen nor Pangello are Charg-
ing Parties, so it is not at all certain, they are properly “party-
opponents” for purposes of applying FRE 801(d)(2)(A) to the
statements at issue. This question need not be decided, how-
ever. I will assume arguendo that the statements of Leysen
(and similar statements by Pangallo) are admissions against
interest. I assign little weight to the alleged admissions, how-
ever, because regretably, in today’s culture, the concept of “re-
sume inflation” appears to have taken hold. Without condoning
the practice, I find that Leysen’s decision to “beef up” his re-
sume is not very probative of the pending issues and that this
case will rise or fall on other evidence to show whether or not
he is a supervisor. On the other hand, I find that Leysen’s tes-
timony must be carefully scrutinzed in light of the impeach-
ment.
At the end of the hearing, Respondent produced a job de-
scription for “Central Plant Lead,” which reads as follows:

Paul Leysen
JOB DESCRIPTION

JOB TITLE: Central Plant Lead
DEPARTMENT: Facilities
REPORTS TO: Director of Facilities

JOB SUMMARY:

6 The central plant logbook is a solid binder type book kept in the
central plant office. The pages were numbered consecutively, any
engineering employee could wrote in it and all or most at one time or
another apparently did. The book was used primarily to record signifi-
cant events on a shift, to communicate with employees of different
shifts and for other miscellaneous purposes.
7 An admission against interest may be used as evidence as well as to
impeach. Pratt & Whitney Aircraft, 310 NLRB 1626 (1993).
Supervises and schedules personnel, and oversees and
inspects the quality of work assignments ensuring that all
work is completed. Responsible for the maintenance and
operation of the chillers, hot water boilers, pumps, air
compressors, cooling towers, generators, and other related
equipment in the Central Plant. Serves as a working su-
pervisor.

ESSENTIAL FUNCTIONS:
1. Supervises and schedules personnel with the Facili-
ties Manager’s approval.
2. Oversees and inspects the quality of all completed
assignments.
3. Ensures that all assigned and dispatched work is
completed efficiently and accurately.
4. Responsible for the maintenance and operations of
the chillers, hot water boilers, pumps, & compressors,
cooling towers, generators, and other related equipment in
the Central Plant.
5. Reports on a daily log all operational conditions
within the Central Plant.
6. Serves as a working supervisor.

ADDITIONAL RESPONSIBILITIES:
1. Advices the Director of Facilities of any unusual
conditions within the Central Plant.
2. Requisitions all materials needed to maintain the
Central Plant.
3. Performs other related duties as requested.

REQUIREMENTS:
Physical
Must possess the ability to:
1. Access all areas of the facility, including hard-to-
reach and potentially dangerous areas and work in areas
from crawl spaces to the roof of the facility. Job assign-
ments may require working with hazardous equipment and
chemicals.
2. Work from a standing position and/or walking mo-
tion for extended periods of time.
3. Climb ladders onto raised areas.
4. Work from a crouching and/or stooping position for
extended periods of time.
5. Tolerate working both extreme heat and extreme
cold for extended periods of time.
6. Wear a tool belt.
7. No restrictions on lifting or bending.

Non-Physical
Must possess:
1. Extensive knowledge of repair and preventative
maintenance of the central plant equipment.
2. The perception and awareness of the Company’s fa-
cilities/maintenance polices and goals.
3. Adequate verbal and written communication skills
to understand and converse with supervisor and co-
workers regarding job duties.

Education/Experience
Must possess:
1. High school education or equivalent.
2. Five years experience working in a Central Plant,
preferably in a hotel or industrial complex.

Certificate/License
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
1. Employment eligibility for the United States.
2. Valid non-gaming Sheriff card.
[R. Exh. 26.]
According to Fofi, he obtained a position description for cen-
tral plant manager from the MGM Grand, and adopted it for his
needs at Respondent. Leysen denied ever seeing the document
and Fofi was not certain that he ever showed it to Leysen. I
find that it was never shown to Leysen and is of little probative
value in establishing the supervisory status of Leysen.8
I will revisit the subject of Leysen’s duties in the Analysis
and Conclusions section of this decision. But for now, I find
that when hired, Leysen had about 30 years of experience as a
maintenance engineer and that his job at Respondent on the day
shift, was to work with the tools about 50 percent of his work
time, both installing new equipment like compressors, and per-
forming repairs and maintenance, instructing less experienced
engineers on performing the same tasks, occasionally reviewing
the work of others, consulting on complicated engineering
problems, and other related jobs.

b. Vince Pangello

Pangallo was hired on March 18 as a graveyard lead watch
and terminated on July 9. His position description, like Ley-
sen’s, was never shown to him. It reads as follows:

JOB TITLE: Watch Lead
DEPARTMENT: Facilities
REPORTS TO: Facilities Facilitator

JOB SUMMARY
Serves as shift supervisor during the absence of the Facilities
Manager or the Facilities Facilitator, supervising employees
in the Facilities Department, ensuring all work scheduled is
assigned and completed.

ESSENTIAL FUNCTIONS
1. Serves as shift supervisor during the absence of the
Facilities Manager or the Facilities Facilitator.
2. Oversees and inspects the completion of all work
performed by subordinates.
3. Serves as a working maintenance technician and
performs all of the duties of a maintenance technician.
4. Keeps the Central Plant and Facilities Management
Center advised of any unusual conditions which might af-
fect the operation of the equipment.
5. Reports on a daily log all operational conditions on
his shift.

ADDITIONAL RESPONSIBILITIES:
1. Keeps the facilitators advised of all unusual condi-
tions within the facilities.
2. Responds to all facility emergencies and coordinates
containment and repairs.
3. Preforms other related duties as requested.

REQUIREMENTS:
Physical
Must possess the ability to:

8 Apparently the parties do not disagree since the position descrip-
tions were not produced for the record until I requested them (Tr. 404).
Furthermore, job descriptions do not necessarily vest employees with
supervisory powers. NLRB v. Security Guard Services, Inc., 384 F.2d
143, 149 (5th Cir. 1967).
1. Access all areas of the facility, including hard-to-
reach and potentially dangerous areas and work in areas
from crawl spaces to the roof of the facility. Job assign-
ments may require working with hazardous equipment
and/or chemicals.
2. Work from a standing position and/or walking mo-
tion for extended periods of time.
3. Climb ladders onto raised areas.
4. Work from crouching and/or stooping positions for
extended periods of time.
5. Tolerate working in both extreme heat and extreme
cold for extended periods of time.
6. Wear a tool belt.
7. No restrictions on lifting or bending.

NON-PHYSICAL
Must Possess:
1. Extensive knowledge of repair and preventative
maintenance of facilities equipment.
2. The perception and awareness of the Company’s fa-
cilities/maintenance policies and goals.
3. Adequate verbal and written communication skills
to understand and converse with supervisor and co-
workers regarding job duties.

EDUCATION/EXPERIENCE
Must possess:
1. High school education or equivalent.
2. Two years experience as a maintenance technician,
preferably in a hotel or industrial complex property.

CERTIFICATE/LICENSE
1.Valid non-gaming Sheriff card
2. Employment eligibility for the United States.
[R. Exh. 27.]
Pangello too worked with the tools and spent over 50 percent
of his time responding to work orders. Because his position
description was never adopted by Pangallo, it is not probative
of Pangello’s supervisory status and I assign little weight to it.
With respect to Pangallo’s status, Respondent called a wit-
ness named Bridgette Tate, who was hired on May 28, as an
engineer on Respondent’s graveyard shift. Fofi told Tate that
Pangello was the senior watch on graveyard and Tate was to
report to him. Contrary to Pangallo’s testimony, I find that
Pangello gave her a tour of the hotel when she was hired and
trained her to reset steam boilers. Thereafter, Tate who special-
ized in lock repair was pretty much on her own. Her job as-
signments came mostly from the dispatcher, from work orders
left over from prior shifts and occasionally from Pangallo. Tate
testified that one of Pangello’s most important duties was his
responsibility for fire command center in the event of a fire.
This involved locating any fire, calling for assistance, coodinat-
ing of fire fighting activities and insuring the safety of affected
guests.
C. Analysis and Conclusions
1. Applicable legal principles
As the party seeking to prove that Leysen and Pangallo were
supervisors at the time of their terminations, Respondent has
the burden of proof. Northwest Florida Legal Services, 320
NLRB 92 fn. 1 (1995). Section 2(11) of the Act defines a “su-
pervisor” as:

VICTORIA PARTNERS 61
any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not merely of a
routine or clerical nature, but requires the use of independent
judgment.

The first portion of Section 2(11) is read in the disjunctive. The
possession of any of the powers enumerated there, however,
confers supervisory status only if its exercise “involve[s] the
use of true independent judgment in the employer’s interest”
Beverly Enterprises v. NLRB, 661 F.2d 1095, 1098 (6th Cir.
1981).
In Cassis Management Corp., 323 NLRB 456 (1997), the
Board explained, that in enacting Section 2(11),

Congress stressed that only persons with “genuine manage-
ment prerogatives” should be considered supervisors, as op-
posed to “straw bosses, leadmen, . . . and other minor supervi-
sory employees.” Chicago Metallic Corp., 273 NLRB 1677,
1688 (1985). Additionally, the Board has often held that
building superintendents were nonsupervisory employees.6
________________
6 Hagar Management Corp., 313 NLRB 438 (1993);
J.R.R. Realty Co., 273 NLRB 1523 (1985), enfd. 785
F.2d 46 (2d Cir. 1986); and Elias Mallouk Realty
Corp., 265 NLRB 1225 (1982) . . . .

In Chevron Shipping Co., 317 NLRB 379, 380–381 (1995),
the Board stated that it has a duty, “not to construe supervisory
status too broadly because the employee who is deemed a su-
pervisor is denied rights which the Act is intented to protect.”
As pointed out by the administrative law judge in Chicago
Metallic Corp., 273 NLRB 1677, 1688–1689 (1985), affd. rele-
vant part 794 F.2d 527 (9th Cir. 1986):

The status of a supervisor under the Act is determined
by an individual’s duties, not by his title or job classifica-
tion. It is well settled that an employee cannot be trans-
formed into a supervisor merely by the vesting of a title
and theoretical power to perform one or more of the enu-
merated functions in Section 2(11) of the Act. To qualify
as a supervisor, it is not necessary that an individual pos-
sess all of these powers. Rather, possession of any one or
them is sufficient to confer supervisory status. However,
consistent with the statutory language and legistative in-
tent, it is well recognized that Section 2(11)’s disjunctive
listing of supervisory indicia does not alter the essential
conjunctive requirement that a supervisor must exercise
independent judgment in performing the enumerated func-
tions. . . . Thus, the exercise of some supervisory authority
in a merely routine, clerical, perfunctory, or sporadic man-
ner does not elevate an employee into the supervisory
ranks, “the test must be the significance of his judgment
and directions.” Consequently, an employee does not be-
come a supervisor merely because he gives some instruc-
tions or minor orders to other employees. Nor does an
employee become a supervisor because he has greater
skills and job responsibilities or more duties than fellow
employees. Additionally, the existence of independent
judgment alone will not suffice for, “the decisive question
is whether [the employee has] been found to possess au-
thority to use independent judgment with respect to the
exercise . . . of some one or more of the specific authori-
ties listed in Section 2(11) of the Act.” In short, “some
kinship to management, some empathetic relationship be-
tween employer and employee must exist before the latter
becomes a supervisor for the former.” Moreover, in con-
nection with the authority to recommend actions, Section
2(11) of the Act requires that the recommendations must
be effective. [Citations omitted.]

See also NLRB v. Lauren Mfg. Co., 712 F.2d 245, 247–248 (6th
Cir. 1983), where the court concluded that the disputed em-
ployees were leaders, but not supervisors, because none of the
functions they performed required them to exercise independent
judgment. The court also noted, as is true in the instant case,
the disputed employees did not participate in formulating or
developing company policy.
2. Whether Leysen and Pangello have been proven to be statu-
tory supervisors
I begin by comparing Fofi and Hughes, admitted supervisors,
to Leysen and Pangallo with respect to various factors.9

Fofi/Hughes Leysen/Pangello
(and all other
nonsupervisory
engineering em-
ployees
Wages Salary Hourly
Overtime None Time and one-half
Life Insurance $15,000 $7,500
Health Insurance Same Same
Parking Special place (Fofi
only)
Not applicable
Seniority Not Applicable Names drawn out
of hat (first group
hired on March
18)
Work Uniform Not Applicable Green pants/gray
shirt
Time Clock Not Applicable Must punch in and
out
Tool Belt Not Applicable Carries on job

Works with
Tools
Not Applicable Certain percent of
work day, works
with tools
Office Special place Central plant of-
fice Used by all
engineers
Management
Meetings10
Attended Attended (Leysen
and Pangallo
only)

9 Many of these factors are secondary indicia of supervisory status
and are not dispostive in the absence of evidence indicating the exis-
tence of any one of the primary indicia of such status. Chrome Deposit
Corp., 323 NLRB 961–963 fn. 9 (1997); St. Francis Medical Center
West, 323 NLRB 1046 (1997).
10 The routine meetings were held on a daily basis before the day
shift started and usually discussed any work problems which had oc-
curred on the prior shift and the work which needed to be done on the
coming shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
It is undisputed that Leysen was hired as an “engineer” on
March 18 at the rate of $20.62 (G.C. Ex. 6). On April 12, Ley-
sen was still considered an “engineer,” but he received a pay
raise to $21 per hour (G.C. Exh. 7). According to Fofi, once
Respondent opened for business, Leysen became a central plant
manager and was introduced not only to other employees, but
to outside contractors as “manager.” In fact, on August 26,
Leysen signed an industrial accident report as supervisor (R.
Exh. 16). The inferences which may flow from this are rebuttal
by current employee11 Rene Alvarez who started with Leysen
in the engineering department on March 18, and testified that
Leysen never said he was a supervisor, that no one else ever
described him as a supervisor, and that Alvarez didn’t consider
him a supervisor (Alvarez had an engineering specialty in water
treatment and cooling towers and considered it part of his job to
know what work needed to be done.). Alvarez was supported
by the testimony of two other General Counsel rebuttal wit-
nesses, Curt Beasley and David Smith, both former Respondent
employees in the engineering department. Although the three
employees did not consider Leysen to be their supervisor—
Alvarez was told by Fofi that, Leysen was his boss—the fact is
that none of this means very much. The subjective perceptions
of others are not dispostive of supervisory status. Blue Star
Ready-Mix Concrete, 305 NLRB 429, 430 (1991). Moreover,
as already noted, the terms “supervisor,” “central plant man-
ager,” or even “boss” are not conclusive since title is in and of
itself is insufficient to confer supervisory status. Davis Super-
markets, 306 NLRB 426, 458 (1992), enfd. 2 F.3d 1162 (D.C.
Cir. 1993).
At 30 of its brief, Respondent tenders several arguments in
support of Leysen’s supervisory status. First, Leysen allegedly
effectively recommended two persons, Alvarez and Paul Glass,
for hire. Glass did not testify, but it appears that both worked
for MGM Grand Hotel and were known to Fofi who hired them
for Respondent. There is no evidence that Leysen played any
role in the hiring of Alvarez. Fofi was familar with Alvarez’s
good work at the MGM Grand, and knew he had received spe-
cial training in water treatment, a speciality needed by Respon-
dent. Fofi exercised his own judgment to hire Alvarez. As for
Glass, Leysen merely told Fofi that Glass might be ameanable
to leaving MGM Grand to work for Respondent. This occurred
in June after Respondent opened, in response to Fofi’s question
directed to several engineers at the time whether anyone knew
of good engineers. Leysen told Fofi that Glass was interested
in discussing an engineering position on the day shift. I find
the evidence here inadequate to support any conclusion that
Leysen recommended Glass for hire. Compare Queen Mary,
317 NLRB 1303 (1995).
Respondent also argues that Leysen had the authority effec-
tively to recommend that an employee named Suvoski be trans-
ferred as a disciplinary matter. This contention requires some
background for proper consideration. A current Respondent
employee named Edward Suvoski was called as a Respondent
witness. Now a day-shift lead engineer, Suvoski started at
Respondent in May and at first worked with Leysen in the cen-
tral plant. According to Suvoski, Fofi told Suvoski to report to
Leysen, the supervisor in charge of the central plant. In July or
August, Suvoski was transferred from the central plant to the
hotel/casino by Fofi. Fofi told Suvoski that he was being trans-

11 As a current employee, Alvarez is entitled to enhanced credibility.
Penbrook Management, Inc., 296 NLRB 1226, 1237 fn. 5 (1989).
ferred at the request of Leysen who had told Fofi that Suvoski
was disruptive. The change in assignment did not result in
more onerous work, a different shift, or a reduction in pay. In
fact, about 1–2 months after his transfer, Suvoski’s pay was
raised from $20.62 to $21.62 and he was made a lead engineer
(In his new job, Suvoski’s supervisor was Gary Hughes, an
undisputed statutory supervisor.). Suvoski considered the
transfer routine (Tr. 254). Fofi did not consider the transfer
disciplinary; rather Fofi called it “a transfer to accommodate
harmony in a work place” (Tr. p. 404). Sometime before Su-
voski was transferred, Beasley gave Fofi notice that he was
leaving. When Fofi asked why, Beasley said one reason was
that he had heard Suvoski was “talking bad about me.” Fofi
asked Beasley if he would stay, if Fofi transferred Suvoski out
of the central plant, or Beasley could work on a different shift.
Beasley rejected both offers and left Respondent.
A second employee named Pelemo, who did not testify, was
also transferred by Fofi from central plant to the hotel tower to
assist with room calls. Pelemo stayed on the same graveyard
shift and his salary also remained the same. Fofi testified that
he made the transfer after receiving information from both Ley-
sen and Pangello that Pelemo could not master the computer.
Pelemo’s inability to learn the computer’s operation resulted in
more work for other employees in the engineering department.
I consider this evidence insufficient to establish or even sup-
port supervisory status. Niether Leysen nor Pangallo was en-
gaged in disciplinary duties, but were merely pointing out to
Fofi, flaws in the work of Suvoski and Pelemo. See Food Mart
Eureka, 323 NLRB 1288 (1997); Appollo Construction Co.,
322 NLRB 996 (1997).12
To bolster this part of its argument, Respondent also directs
my attention to Suvoski’s testimony regarding an incident
where he allegedly was caught between conflicting demands of
Fofi and Hughes on the one hand and Leysen on the other. One
day before his transfer, Suvoski was given an assignment by
Fofi and Hughes which required him to leave the central plan
area without notifying Leysen, contrary to policy. When Ley-
sen found out that Suvoski had left the area, he allegedly
scolded Suvoski supposedly saying, “the next time Fofi and
Hughes tell you to do something, tell them to go F— them-
selves.” Fofi testified that Suvoski reported this insubordina-
tion to him, but Fofi’s reaction was to talk to Leysen about the
incident, without taking any action (Tr. 418). Leysen denied
ever making the remark in question to Suvoski.
I credit Suvoski’s and Fofi’s account,13 but find it of no
benefit in establishing Leysen’s supervisory authority. Clearly
Suvoski knew that he must obey the orders of Fofi and Hughes
without telling them to go f— themselves. This incident re-
flects Fofi’s tolerance for shop talk and reactions of employees
under pressure shortly before the hotel opened. At best, this
evidence shows an isolated and infrequent incident of supervi-
12 Again, I find insufficient evidence to prove that Leysen “effec-
tively recommends,” i.e., that the recommended action is taken without
independent investigation by superiors, not simply that the recommen-
dation is ultimately followed. Children’s Farm Home, 324 NLRB 61
(1997).
13 My attention is directed to R. Exh. 8 (p. 30) written by Leysen,
which reads in the central plant log for May 28, 1996,
Attn: Ed
. . . .
Stay on Assigned Duties
as evidence corroborating the testimony of Suvoski and Fofi.
VICTORIA PARTNERS 63
sion which does not elevate a rank and file employee to super-
visor. Children’s Farm Home, supra; St. Francis Medical Cen-
ter-West, supra, 323 NLRB 1046.
It is true that Leysen gave other employees instructions from
time to time, but this does not render the instructing employee a
supervisor for purposes of the Act. Stop & Shop Co. v. NLRB,
548 F.2d 17, 19 (1st Cir. 1977). Rather, Leysen’s authority
reflects no more than a more skilled employee advising one less
skilled. See NLRB v. Magnesium Casting, 427 F.2d 114, 118
(1st Cir. 1970), affd. 401 U.S. 137 (1971); Adco Electric, 307
NLRB 1113, 1120 (1992), affd. 6 F.3d 1110, 1117 (5th Cir.
1993). Many of the engineers had special skills such as Alva-
rez in water treatment, or Tate as a locksmith. Where this is so
and management prepares a master schedule based on these
skills as was done by Fofi in the instant case, assignment of
daily jobs amounts merely to routine implementation of orders.
Quadrex Environmental Co., 308 NLRB 101 (1992). See also
Highland Superstores v. NLRB, 927 F.2d 918, 921 (6th Cir.
1991). In this case job assignment is also affected by the dis-
patcher or even the employees deciding for themselves what
jobs to perform. In sum I find insufficient use of independent
judgment to assign work to establish supervisory status. Com-
pare Rose Metal Products, 289 NLRB 1153 (1988). In addi-
tion, Leysen spent little time in checking the work of the other
engineering employees. See Somerset Welding & Steel, Inc.,
291 NLRB 913, 914 (1988). Compare Iron Mountain Forge
Corp., 278 NLRB 255 (1986).
Contrary to Respondent’s claim, I find that to the extent Ley-
sen gave orders to other employees, which can not be attributed
to his greater skill as a leadman, he was merely a conduit for
relaying information from Fofi and Hughes. See Chrome De-
posit Corp., supra, 323 NLRB 961. In part, this was the pur-
pose of the daily meetings which have been referred to above.
In conclusion, I find that Leysen does not “responsibly di-
rect” the work of other employees. That is, there is no evidence
he is answerable for the discharge of a duty or obligation. See
NLRB v. KDFW, Inc., 790 F.2d 1273, 1278 (5th Cir. 1986).
Leysen worked the day shift when both Fofi and Hughes were
either present or reachable by phone. To the extent, Leysen
allowed some employees to finish a task by working overtime,
to leave early or come in late, Leysen remained “one of the
gang who merely gives routine instructions, with no kinship to
management.” See Providence Alaska Medical Center v.
NLRB, 156 LRRM 2001, 2005 (9th Cir. 1997). To the extent
Leysen was permitted to call in outside contractors to perform
repairs, his authority was circumscribed by policy. For exam-
ple, Leysen had more discretion to call in a contractor during
normal business hours, if the contractor was paid a monthly fee
to come when called. Leysen had less discretion to call in any
contractor during nonbusiness hours because the hourly fees
charged to Respondent were enormous. Consequently, Leysen
had to judge the gravity of the emergency, e.g., an elevator in
disrepair during a busy weekend. I find that Respondent has
failed to prove that Leysen possessed any primary indicia of
supervisory authority.
The evidence to support Pangello’s supervisory status is
more sparse than for Leysen. As already noted, Pangallo was
hired on March 18 for $20.62/hour and received both a shift
differential (to $20.97) and pay raise for a final pay of
$21.72/hour at time of termination on July 9 (72 cents per hour
for lead position). It is undisputed that Pangello like Leysen,
was first hired as an engineer. Then on June 17, Fofi instituted
the graveyard shift and Pangallo was made graveyard shift lead
(or fire watch). At 39–40 of its brief, Respondent makes an
argument that Pangallo had “several” primary indicia of super-
visor status. I find that he had none. As to Pangello’s alleged
authority to recommend the transfer of Pelemo, I have rejected
that argument above. Similarly, I have rejected the argument
that Pangallo directed the work of other employees and issued
work assignments. In fact, on graveyard, employee independ-
ence and freedom from any kind of close supervision is a treas-
ured feature for that otherwise undesirable shift. Essentially for
the reasons stated for Leysen, which reasons apply even more
here, I find no evidence to prove that Pangello was a statutory
supervisor during his employment with Respondent. Instead, I
find he was an employee who worked with his tools most of the
time, responding to work orders, dispatches, or emergencies
and having no kinship to management.
For the reasons stated above, I find that Respondent has
failed to prove that Leysen and Pangallo were statutory super-
visors during all times material to this case. Accordingly, as
stipulated by Respondent both discriminatees were terminated,
because they engaged in protected concerted activities in viola-
tion of Section 8(a)(1) and (3) of the Act. As further stipulated
by the parties, on or about July 9, Respondent violated Section
8(a)(1) of the Act when Jacqueline DeRoode, Respondent’s
human relations director, who did not testify, interrogated em-
ployees Leysen and Pangello about their union membership,
activities, and sympathies and the union membership, activities,
and sympathies of other employees (par. 6(a) of complaint). I
further find that Respondent violated Section 8(a)(1) of the Act
when DeRoode created the impression among Respondent’s
employees that their union activities were under surveillance by
Respondent (par. 6(b) of complaint).
3. Whether the General Counsel proved certain additional vio-
lations of Section 8(a)(1) of the Act
Before the hearing began, the General Counsel amended the
complaint to add new paragraph 5(h) which reads, “About July
10, 1996, the Respondent issued final warning disciplinary
notices to Jerry Council and Gary Brickey for violation of [Re-
spondent’s] Employee Handbook Rules 21 [no distribution] and
24 [no soliciting, procuring or engaging in any immoral acts on
the premises]” (G.C. Exh. 3.) Neither Council nor Brickey
testified. As mentioned above, Respondent elected to present
no further evidence with respect to the amendment.
When the issue of the General Counsel’s amendment to the
complaint was first raised at hearing, Respondent objected in
part on the grounds there was no underlying charge to support
the allegations (Tr. 19–21). This contention was renewed in the
Amended Answer and supplemented with a number of other
“Affirmative Defenses.” Other than the argument that the two
alleged discriminatees are statutory supervisors, the other af-
firmative defenses have not been briefed. Under these circum-
stances, the questions presented are waived. Cf. Local 137 v.
Food Employers Council, 126 LRRM 2223, 2225 fn. 2 (9th Cir.
1987); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d
1020, 1025–1026 (7th Cir. 1988); Carducci v. Regan, 714 F.2d
171, 177 (D.C. Cir. 1988).
With respect to Respondent’s terse comment at hearing,
about the amendment lacking an underlying charge, I find that
under the authority of Nickels Bakery, 296 NLRB 927 (1989)
the amended allegations of the complaint are sufficiently re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
lated to the underlying charge and, therefore, Respondent’s
objection lacks merit.
The evidence shows that Council and Brickey were hired by
Respondent as engineers on or about June 17 and 24, respec-
tively (G.C. Exhs., 9, 10, and 11). Subsequent to their hire,
both received disciplinary notices from DeRoode for violations
of rules 21 and 24 of the employee handbook (G.C. Exhs. 12,
13). The handbook is in the record (G.C. Exh. 16), and at page
21 the rules reads as follows:

#21 Unauthorized posting, distribution, sale or circula-
tion of any written materials in working areas of unauthor-
ized sale of anything while on the premises. (See section
entitled “No Solicitation Policy.”)
#24 Soliciting, procuring or engaging in any immoral
acts on the premises.

The disciplinary notices apparently were based on written
witness statements from Respondent employees Thomas Chea-
sar and Steve Harris, neither of whom testified, as taken by
DeRoode and Fofi on July 9. In the first statement (G.C. Exh.
14), DeRoode asked Cheasar if any Respondent supervisor
talked to him about joining a union or related issues. Cheasar
told DeRoode that he overheard Pangallo in the engineering
office on Respondent’s premises tell Brickey that if he signed a
card and joined the Union, Brickey wouldn’t have to worry
about being paid double-time for the holiday. Pangallo added
that he felt everyone should sign a card.14
A second statement was provided by Respondent employee
Steve Harris (G.C. Exh. 15). In that statement Harris told
DeRoode that in the engineering office during work hours ei-
ther Pangello or Council or both asked him to sign a union card.
As a result of the interrogations of Cheasar and Harris, Council
and Brickey received the disciplinary notices referred to above.
The General Counsel contends that Respondent violated Sec-
tion 8(a)(1) of the Act both by the interrogations of Cheasar and
Harris and the resulting disciplinary notices to Council and
Brickey on July 10.
I agree with the General Counsel that asking an employee
about his own union activities or the union activities of others is
unlawful. Rossmore House, 269 NLRB 1176, 1177 (1984),
enfd. sub. nom. Hotel Employees Union Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). More specifically, asking about the
signing of union cards by the employee or by other employees
is unlawful. Direct Transit, Inc., 309 NLRB 629, 632 (1992).
At pages 52–53 of its brief, Respondent contends that the in-
terrogations of its employees Chesar and Harris were non-
coercive; further that Respondent gave a valid Johnnie’s Poul-
try warning (146 NLRB 770 (1964), enfd. denied 344 F.2d 617
(9th Cir. 1965)). Finding it unnecessary to consider any John-
nie’s Poultry issue, I reject Respondent’s argument and find
that the two interrogations in issue were coercive. Both
employees were told that Respondent was investigating super-
visory conduct of Pangallo. I have found that Pangello was not
a supervisor so Respondent had no right under the law to be
asking about the union activities of employee Pangallo.
Whether or not Respondent’s officials DeRoode and Fofi be-
lieved that Pangello was a supervisor is no defense. Answering,

14 In an attached handwritten statement Cheasar wrote that the con-
versation referred to occurred during “work hours.’ Cheasar also wrote
that he overheard Council discussing the signing of union cards with
other employees, in the shop, but before clocking in.
Inc., 215 NLRB 688, 689 (1974). But see Cato Show Printing
Co., 219 NLRB 739, 740 (1975).15
I also find it is unnecessary for me to cite and discuss such
authorities as Our Way, Inc., 268 NLRB 394 (1983), or Hil-
ton’s Environmental, Inc., 320 NLRB 437 (1995), as urged by
General Counsel (Br. 37). The simple fact is that Brickey and
Council were disciplined (G.C. Exh. 12, 13) based on the un-
lawful and coercive interrogations of Cheasar and Harris. This
discipline is therefore “fruit of the poisonous true”16 and cannot
stand as both notices violate Section 8(a)(1) and (3) of the Act
as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Victoria Partners, A Partnership of Mi-
rage Resorts, Inc. and Circus Circus Enterprises, Inc. d/b/a
Monte Carlo Resort & Casino, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, International Union of Operating Engineers,
Local 501, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. For all times material to this case, Paul Leysen and Vicent
Pangallo were not proven to be statutory supervisors pursuant
to Section 2(11) of the Act.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
discharging Leysen and Pangello because of their protected
concerted activities;
5. Respondent violated Section 8(a)(1) of the Act by unlaw-
fully interrogating employees about their union activities or the
union activities of other employees; and violated Section
8(a)(1) and (3) of the Act by issuing disciplinary notices to
employees based on information obtained from the unlawful
interrogation of the other employees.
6. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall recommend that Respondent offer Paul Leysen and
Vincent Pangallo full and immediate reinstatement to the posi-
tions they would have held but for their unlawful discharges. If
their jobs no longer exist, Paul Leysen and Vincent Pangello
are to be reinstated to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges.
Further, Respondent shall be directed to make Paul Leysen and
Vincent Pangallo whole for any and all loss of earnings and
other rights, benefits, and privileges of employment they may
have suffered by reason of Respondent’s discrimination against
them, with interest. Backpay shall be computed in the manner
15 In Harvey’s Resort Hotel, 271 NLRB 306, 307 fn. 12 (1984), the
Board declined to consider whether the precedents on the issue in ques-
tion were conflicting.
16 Cf. Brown v. Illinois, 422 U.S. 590, 597–600 (1975). In a criminal
law context, court cited Id. at 598–599, Nardone v. U.S., 308 U.S. 338,
341 for the issue “granting establishment of the primary illegality,
[whether] the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means suffi-
ciently distinguishable to be purged of the primary taint.” I find in the
instant case, no purge of the primary taint.
VICTORIA PARTNERS 65
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as provided in New Horizons for the Retarded, 283
NLRB 1173 (1987). See also Florida Steel Corp., 231 NLRB
651 (1971), and Isis Plumbing Co., 139 NLRB 716 (1962).
Respondent shall also be required to expunge any and all
references to the unlawful discharges of Leysen and Pangello
and to also expunge the unlawful disciplinary notices dated July
1996 issued to Gary Brickey and Jerry Council from their files
and notify all of them in writing that this has been done and that
the unlawful discharges and disciplinary notices will not be the
basis for any adverse action against any of them in the future.
Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Victoria Partners, A Partnership of Mirage
Resorts, Inc. and Circus Circus Enterprises, Inc. d/b/a Monte
Carlo Resort & Casino, Las Vegas, Nevada, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Discharging employees in order to discourage union ac-
tivities.
(b) Unlawfully and coercively interrogating employees about
their own union activities or the union activities of other em-
ployees.
(c) Issuing written warnings to employees based on informa-
tion obtained from coercive and unlawful interrogations of
other employees.
(d) 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 actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer imme-
diate and full restatement to Paul Leysen and Vincent Pangallo
to the positions they would have held, but for their unlawful
discharges. If their jobs no longer exist, Leysen and Pangello
are to be reinstated to substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
(b) Make whole Leysen and Pangallo for any and all losses
incurred as a result of Respondent’s unlawful discharges of

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
them, with interest, as provided in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, expunge from
its files any and all references to the discharges of Leysen and
Pangello and notify them in writing that this has been done and
that Respondent’s discharge of them will not be used against
them in any future personnel actions.
(d) Also, within 14 days from the date of this Order, expunge
from its files any and all references to the disciplinary warnings
issued in July 1996 to Gary Brickey and to Jerry Council and
notify them in writing that this has been done and that these
disciplinary notices will not be used against them in any future
personnel action.
(e) 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 necessary to
analyze the amount of bakpay due.
(f) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
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. In the event that, during the
pendency of these proceedings, the 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 employ-
ees employed by the Respondent at any time since July 1996.
(g) 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.

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted By Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”