Trump Ruffin Commercial LLC

National Labor Relations Board - Board Decisions

Jul 28, 2016

28-RC-153650 (N.L.R.B. Jul. 28, 2016)

Las Vegas, NV
PHMc
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
TRUMP RUFFIN COMMERCIAL LLC
Employer
and Case 28-RC-153650
LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS,
affiliated with UNITE HERE INTERNATIONAL UNION
Petitioner
ORDER DENYING REVIEW
The National Labor Relations Board, by a three-member panel, has carefully considered
the Employer’s request for review of the Regional Director’s Decision and Certification of
Representative. The request for review is denied as it raises no substantial issue warranting
review.1

1 Pursuant to Sec. 102.67(e) and (d) of the Board’s Rules and Regulations, we have
carefully examined the record relevant to the Employer’s request for review. The Employer has
requested review of the Regional Director’s decision to affirm some of the hearing officer’s
credibility findings. The Regional Director appropriately evaluated the Employer’s exceptions to
the hearing officer’s findings under Stretch-Tex Co., 118 NLRB 1359 (1957).
We agree with the Regional Director that the conduct of the Petitioner’s election
observer, as established by the credible evidence, does not warrant setting aside the election
under the Board’s standards set forth in Boston Insulated Wire & Cable Co., 259 NLRB 1118,
1118-1119 (1982), and Milchem, Inc., 170 NLRB 362, 363 (1968). We accordingly deny the
Employer’s request for review of the Regional Director’s decision to overrule its Objection 1.
In denying review of the Regional Director’s decision to overrule the Employer’s
Objection 2, to alleged surveillance of employees near the polling area, we find, as a threshold
matter, that the alleged surveillants were not the Petitioner’s agents, without reaching the
question of whether their conduct would otherwise constitute objectionable surveillance.
In denying review of the Regional Director’s decision not to consider the Employer’s
objection alleging that the Petitioner violated the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 et seq., we note that the Employer raised this contention for the first time well after the
expiration of the period provided for filing a timely objection under Sec. 102.69(a) of the
Dated, Washington, D.C., July 28, 2016.
_______________________________________
Mark Gaston Pearce, Chairman
_______________________________________
Kent Y. Hirozawa, Member
_______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

Board’s Rules and Regulations. In order to warrant consideration of its late-filed objection, the
Employer would have had to show “clear and convincing proof that evidence relating to the
objection was ‘not only newly discovered, but also previously unavailable.’” John W. Galbreath
& Co., 288 NLRB 877, 878 (1988) (quoting Burns Security Services, 256 NLRB 959, 960
(1981)). The Employer has not made the required showing.
Finally, in denying review of the Regional Director’s decision to affirm the hearing
officer’s ruling partially revoking the Employer’s subpoenas duces tecum, we agree with the
Regional Director that the hearing officer did not abuse her discretion under the Board’s Rules
and Regulations Sec. 102.66(f). The hearing officer appropriately considered the Employer’s
need for material related to specific conduct alleged in its objections and required the production
of all subpoenaed material relevant to that conduct. The Employer does not contend that it was
deprived of any material required to be produced under the subpoenas thus limited. Requiring
further production of “any and all photographs or recordings” requested by the Employer could
expose employee conduct protected by Sec. 7 of the Act that the Employer could not lawfully
have photographed itself. See, e.g., Cobb Mechanical Contractors, 356 NLRB 686, 686-687
(2011); F. W. Woolworth, 310 NLRB 1197 (1993). Under these circumstances, employees’
interest in keeping their Sec. 7 activity confidential outweighs the Employer’s interest in
obtaining any additional subpoenaed material not probative of its specific objections that may
have been denied to it by the hearing officer’s ruling. See, e.g., Laguna College of Art and
Design, 362 NLRB No. 112, slip op. at 1 fn. 1 (2015); National Telephone Directory Corp., 319
NLRB 420, 421 (1995).