Local Joint Executive Board of Las Vegas v. NLRB ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOCAL JOINT EXECUTIVE BOARD OF 
LAS VEGAS; CULINARY WORKERS
UNION LOCAL #226, and
BARTENDERS UNION LOCAL 165,
AFL-CIO, No. 05-75515
Petitioners, NLRB Nos.
REORGANIZED AG, LLC,  28-CA-18851
Intervenor, 28-CA-19017
v. OPINION
NATIONAL LABOR RELATIONS
BOARD,
Respondent.

On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
October 16, 2007—San Francisco, California
Filed January 28, 2008
Before: Jane R. Roth,* Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
1327
LOCAL JOINT EXEC. BD v. NLRB 1329
COUNSEL
Kristin Martin (argued), Richard G. McCracken, Davis, Cow-
ell, & Bowe, LLP, San Francisco, California, for petitioner
Local Joint Executive Board of Las Vegas.
1330 LOCAL JOINT EXEC. BD v. NLRB
David A. Seid, Attorney, National Labor Relations Board,
Washington, D.C., for the respondent.
Brian Herman (argued), Mark J. Ricciardi, Fisher & Phillips,
LLP, Atlanta, Georgia, for intervenor Reorganized Aladdin
Gaming, LLC.
OPINION
CALLAHAN, Circuit Judge:
Local Joint Executive Board of Las Vegas, the Culinary
Workers Unions Local 226, and the Bartenders Unions, Local
165, AFL-CIO (“the Unions”), petition this court for review
of a decision by the National Labor Relations Board (“the
Board”) reversing the Administrative Law Judge’s (“ALJ”)
conclusion that agents of Aladdin Gaming, LLC,1 (“the Com-
pany”) engaged in illegal surveillance in violation of Section
8(a)(1) of the National Labor Relations Act (“NLRA” or “the
Act”). We deny the Unions’ petition for review.
FACTS
The Company operates a hotel and casino in Las Vegas,
Nevada. On May 30, 2003, the Unions began an open cam-
paign to organize the housekeeping, food, and beverage
departments. During the organizing campaign that followed,
the Company committed some unfair labor practices that are
not at issue in this case. The issue in this appeal is whether
two incidents where human resources managers interrupted
employees who were discussing union cards in an open dining
room constitute unlawful surveillance under Section 8(a)(1).
The first incident involved Tracy Sapien, the Company’s
1
Aladdin Gaming is now known as Reorganized AG, LLC.
LOCAL JOINT EXEC. BD v. NLRB 1331
vice-president of human resources, and two employees who
were also union organizers, Sheri Lynn and Julie Wallack. All
employees, including supervisors and managers, can eat in an
employee dining room provided by the Company. On June 4,
2003, Ms. Lynn and Ms. Wallack were having lunch together
in the employee dining room. During their lunch break, the
organizers approached a number of buffet servers at the table
next to them to ask whether they would like to sign union
cards. After observing Ms. Wallack and Ms. Lynn briefly,
Ms. Sapien, who was also eating lunch in the dining room,
approached the buffet servers. Ms. Sapien interrupted the
organizers and said to the servers, “I would like to make sure
you have all of the facts before you sign that card.” Sapien
told the buffet servers that before signing a union card, they
should understand that what they were signing was “legal and
binding,” and that if the Union ever became the collective-
bargaining representative, the “card authorizes union dues to
start coming out of [the card signer’s] paycheck.” Ms. Lynn
assured Ms. Sapien that she had given the buffet servers all
the facts. There was then a brief conversation about union
benefits including insurance, and Ms. Sapien offered her opin-
ion that even if the union organizing campaign was success-
ful, there was no guarantee that the hotel employees would
get different medical insurance. Ms. Sapien told the servers
that union dues were $32.50 a month, and Ms. Lynn indicated
that she had already told the servers about dues. Then Ms.
Sapien said that it “looked like [Lynn] had all [her] bases cov-
ered,” and walked away. Ms. Wallack testified that the con-
versation with Ms. Sapien lasted about eight minutes.
Ms. Sapien ordinarily eats lunch in the employee dining
room, but normally sits with human resources employees. She
does not usually sit with uniformed employees. She acknowl-
edged that as she approached the table to talk to the servers,
she was aware that they were talking about signing union
cards. Ms. Sapien testified that she approached the employees
with the intention of giving them “the facts.”
1332 LOCAL JOINT EXEC. BD v. NLRB
The second incident involved Stacey Briand, the Compa-
ny’s director of human resources; Azucena Felix, a union
committee leader; and Adelia Bueno, a housekeeper. On June
6, 2003, Ms. Felix was speaking to a table of housekeepers in
the employee dining room at Ms. Bueno’s request. As Ms.
Bueno was signing a union card, Ms. Briand came over to the
table. Ms. Briand said Ms. Bueno “shouldn’t be signing things
that she wasn’t sure about, because what she was signing was
something like a contract, and that [Felix] was probably
promising something that [Felix] wasn’t going to be able to
give her.” Because Ms. Bueno did not understand English
very well, Ms. Felix translated Ms. Briand’s comments into
Spanish. Ms. Briand asked what Ms. Felix was saying, and
Ms. Felix explained that she merely translated Ms. Briand’s
statements for Ms. Bueno. Ms. Briand then left the table.
STANDARD OF REVIEW
The Board’s interpretation of the Act is accorded consider-
able deference as long as it is “rational and consistent” with
the statute. NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir.
1999); NLRB v. United Union of Roofers, Waterproofers &
Allied Workers, Local 81, 915 F.2d 508, 510 (9th Cir. 1990)
(deferring to the Board’s interpretation of the Act “if it is rea-
sonably defensible.”). Decisions of the NLRB will be upheld
on appeal if the findings of fact are supported by substantial
evidence and if the agency correctly applied the law. Retlaw
Broadcasting Co. v. NLRB, 172 F.3d 660, 664 (9th Cir. 1999).
“The substantial evidence test compels us to evaluate the
entire record, although we may not ‘displace the NLRB’s
choice between two fairly conflicting views, even though
[we] would justifiably have made a different choice had the
matter been before [us] de novo.’ ” Sever v. NLRB, 231 F.3d
1156, 1164 (9th Cir. 2000) (quoting Walnut Creek Honda
Assocs. 2, Inc. v. NLRB, 89 F.3d 645, 648 (9th Cir. 1996)). “If
‘there are conflicting interpretations of the facts, and the one
adopted by the Board is supported by substantial evidence,’
LOCAL JOINT EXEC. BD v. NLRB 1333
we may not substitute our own interpretation.” UAW v. NLRB,
834 F.2d 816, 822 (9th Cir. 1987) (quoting NLRB v. Anchor-
age Times Pub. Co., 637 F.2d 1359, 1363 (9th Cir. 1981)).
“Indeed, we must enforce the Board’s judgment if, given the
record, a reasonable jury could reach the same conclusions.”
Id.
DISCUSSION
[1] Section 8(a)(1) of the NLRA states that “[i]t shall be an
unfair labor practice for an employer — (1) to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1).
The Board has interpreted Section 8(a)(1) to make observa-
tion of union activity unlawful, “if the observation goes
beyond casual and becomes unduly intrusive.” Kenworth
Truck Co., Inc., 327 N.L.R.B. 497, 501 (1999); see also Cal.
Acrylic Indus. v. NLRB, 150 F.3d 1095, 1099-1100 (9th Cir.
1998) (noting unlawful surveillance tends to create fear of
reprisal and chill the exercise of Section 7 rights).
“[M]anagement officials may observe public union activity,
particularly where such activity occurs on company premises,
without violating Section 8(a)(1) of the Act, unless officials
do something out of the ordinary.” Metal Industries, Inc., 251
N.L.R.B. 1523, 1523 (1980). “The test for determining
whether an employer engages in unlawful surveillance or
whether it creates the impression of surveillance is an objec-
tive one and involves the determination of whether the
employer’s conduct, under the circumstances, was such as
would tend to interfere with, restrain or coerce employees in
the exercise of the rights guaranteed under Section 7 of the
Act.” The Broadway, 267 N.L.R.B. 385, 400 (1983).
[2] The NLRB refined the objective test for surveillance by
announcing that, “[i]ndicia of coerciveness include the dura-
tion of the observation, the employer’s distance from its
employees while observing them, and whether the employer
engaged in other coercive behavior during its observation.”
1334 LOCAL JOINT EXEC. BD v. NLRB
Aladdin Gaming, LLC, 345 N.L.R.B. No. 41 at *2, 178
L.R.R.M. (BNA) 1288 (2005). We determine that this three-
factor test is “rational and consistent” with the NLRA, and
accordingly, we defer to the Board’s interpretation of when
surveillance becomes coercive and the application of the test
to these facts. Calkins, 187 F.3d at 1085. By announcing fac-
tors to consider when deciding when otherwise lawful obser-
vation becomes coercive, the Board exercised its “primary
power of interpretation and application of the Act” granted by
Congress. Int’l Bhd. of Boilermakers v. Hardeman, 401 U.S.
233, 240 (1971); see also Marine Eng’rs Beneficial Ass’n v.
Interlake S.S. Co., 370 U.S. 173, 178 (1962) (noting that the
NLRB interprets and applies statutory definitions in addition
to adjudicating the applicability of the Act to substantive con-
duct).
[3] In addition, the NLRB found that the views expressed
by Ms. Sapien and Ms. Briand were protected under Section
8(c) of the NLRA.2 “Section 8(c) of the Act specifically pro-
hibits [the Board] from finding that an uncoercive speech,
whenever delivered by the employer, constitutes an unfair
labor practice.” Livingston Shirt Corp., 107 N.L.R.B. 400,
405 (1953). The Supreme Court has stated that “an employ-
er’s free speech right to communicate his views to his
employees is firmly established and cannot be infringed by a
union or the Board.” NLRB v. Gissel Packing Co., Inc., 395
U.S. 575, 617 (1969). “Thus, an employer is free to communi-
cate to his employees any of his general views about unionism
or any of his specific views about a particular union, so long
as the communications do not contain ‘a threat of reprisal or
2
Section 8(c), states:
The expressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor prac-
tice under any of the provisions of this subchapter, if such expres-
sion contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c).
LOCAL JOINT EXEC. BD v. NLRB 1335
force or promise of benefit.’ ” Id. at 618. Of course, “[a]ny
assessment of the precise scope of employer expression . . .
must be made in the context of its labor relations setting.
Thus, an employer’s rights cannot outweigh the equal rights
of the employees to associate freely, as those rights are
embodied in § 7 and protected by § 8(a)(1) and the proviso to
§ 8(c).” Id. at 617.
[4] There is no evidence that either Ms. Sapien or Ms. Bri-
and used threats, force, or promises of benefits that would
strip their speech of the protections of Section 8(c). Ms.
Sapien attempted to give the buffet servers additional facts to
consider before signing the union cards. Ms. Briand told Ms.
Felix that Ms. Bueno should not sign a union card without
fully understanding the consequences and provided her opin-
ion that the union may not be able to deliver on its promises.
Ms. Felix voluntarily translated Ms. Briand’s comments for
Ms. Bueno. After Ms. Felix explained the translation, Ms.
Briand left.
The unions do not contend that the observations of organiz-
ing activity by Ms. Sapien or Ms. Briand were unlawful by
themselves. The unions argue that the interruption of pro-
tected union activity, even to express opinions protected by
Section 8(c), makes the otherwise lawful observation unlaw-
ful. The Board characterized the facts in this case as being
closer to those in Metal Industries, 251 N.L.R.B. at 1523, and
distinguished other cases involving more coercive behavior.
Aladdin Gaming, LLC, 345 N.L.R.B. No. 41 at *2. In Metal
Industries, the Board dismissed an unlawful surveillance
claim when management officials “regularly stationed them-
selves in the parking lot at the end of the day to bid the
employees goodbye and answer any questions they might
have.” Metal Industries, 251 N.L.R.B. at 1523. Although one
of the management officials made checkmarks on a clipboard
during his observation, the ALJ and the Board concluded that
making checkmarks on a clipboard he normally carried was
1336 LOCAL JOINT EXEC. BD v. NLRB
not so coercive or unusual that it rose to the level of unlawful
surveillance. Id.
[5] We defer to the Board’s conclusion that Ms. Sapien’s
and Ms. Briand’s brief, spontaneous interruptions were not
coercive because it is “rational and consistent” with the Act.
Applying its new three-factor test, the Board reasonably
determined that where the duration of the observation was
short and the employer’s behavior was not out of the ordinary,
verbally interrupting organizing activity does not necessarily
violate Section 8(a)(1). Id. at *3. The Board’s creation of a
three-factor test for unlawful surveillance is “reasonably
defensible.” United Union of Roofers, Waterproofers & Allied
Workers, Local 81, 915 F.2d at 510. Therefore, the petition
for review is DENIED.