Local Joint Executive Board of Las Vegas v. NLRB

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.