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Bellagio LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

April 25, 2017

Bellagio, LLC, Petitioner
v.
National Labor Relations Board, Respondent

          Argued January 6, 2017

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

          Paul T. Trimmer argued the cause and filed the briefs for petitioner.

          Rebecca J. Johnston, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Meredith L. Jason, Deputy Assistant General Counsel. Kira D. Vol, Attorney, National Labor Relations Board, entered an appearance.

          Before: Brown, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

          OPINION

          Edwards, Senior Circuit Judge.

         The petition for review in this case, filed by Bellagio, LLC ("Bellagio" or "Company"), challenges a Decision and Order issued by the National Labor Relations Board ("NLRB" or "the Board"). The Board determined that Bellagio violated section 8(a)(1) of the National Labor Relations Act ("NLRA" or "the Act") when it interfered with employee Gabor Garner's right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right by placing him on "Suspension Pending Investigation" ("SPI"); unlawfully surveilled Garner after placing him on SPI; and then coercively prevented him from discussing his suspension with other employees. The Board ordered Bellagio to cease and desist from these activities, post a notice informing employees of the violations, and pledge not to repeat them. Bellagio, LLC, 362 NLRB No. 175 (2015).

         Bellagio contends that the Board's determinations should be vacated because they are inconsistent with established precedent and not supported by substantial evidence. It also asserts that the Board violated the Company's due process rights in finding that a Company supervisor engaged in coercive conduct to compel Garner not to speak with coworkers about his discipline because this was not among the charges in the complaint that had been issued against Bellagio. We find that Bellagio's contentions are meritorious. We therefore grant in full the petition for review and deny the Board's cross-application for enforcement.

         I. Background

         At the time of the events giving rise to this dispute, Garner was a bellman at Bellagio, a hotel in Las Vegas, Nevada. As a bellman, Garner was represented by the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 156 ("Union"), affiliated with UNITE HERE. Garner's job duties included greeting arriving guests, assisting them with their luggage, and escorting departing guests from the hotel. Bellagio expects its bellmen to treat customers with courtesy and respect at all times, and forbids them from soliciting tips.

         On May 12, 2013, a guest complained that Garner had inappropriately attempted to solicit a tip and, when the customer did not oblige, Garner allegedly responded with a sarcastic comment. The next day, shortly before Garner's shift was to end, Front Services Supervisor Brian Wiedmeyer summoned him to a meeting regarding the customer's complaint. Max Sanchez, another supervisor, also attended as a witness. Garner asked Wiedmeyer whether the meeting could result in discipline. Wiedmeyer told him that it might, at which point Garner requested a Union representative. Wiedmeyer requested that Garner provide a statement describing the incident, but Garner declined to do so without a representative present.

         When Garner declined to contact a representative himself, Wiedmeyer and Sanchez left the meeting in search of a Union agent. However, neither Wiedmeyer, Sanchez, nor Company representatives in the Employee Relations department could locate a Union representative. Wiedmeyer then returned to the meeting room and again asked Garner to fill out a statement, but Garner refused to do so without a Union representative present. Wiedmeyer then placed Garner on SPI and told him that he had to leave the premises.

         Garner exited the meeting and walked into the dispatch area. This is a heavily-trafficked location on Bellagio premises where bellmen store their belongings and wait for assignments. Most of the customers' luggage at the hotel also passes through the dispatch area, and it is common for employees to enter the area throughout the day. While gathering his personal belongings, Garner started to tell another bellman about his meeting with Wiedmeyer and the resulting SPI. At that point, Wiedmeyer entered the room, told Garner that he could not discuss the matter at that time, and once again instructed him to leave the hotel. Wiedmeyer then followed Garner to ensure that he was heading towards the building's exit.

         Later that day, Bellagio contacted Garner to schedule a disciplinary meeting. The next morning, Garner and a Union steward attended a meeting with Front Services Director Charles Berry and Employee Relations Manager Susan Moore. Garner completed a statement, received a verbal warning, and then returned to his job. As a result of the SPI, Garner missed a short amount of work, for which he was fully compensated.

         Garner subsequently filed an unfair labor practice charge with the NLRB. The Board's General Counsel issued a complaint against the Company, alleging that it had violated the Act by conducting an investigatory interview after Garner had invoked his right under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), to have a Union representative present. The complaint also charged Bellagio with retaliating against Garner for invoking his Weingarten right; unlawfully surveilling him; and promulgating an overly broad rule prohibiting employees from discussing disciplinary matters that were under investigation. Following a hearing, an Administrative Law Judge ("ALJ") issued findings that Bellagio had indeed committed the unfair labor practices as alleged.

         The Board adopted the ALJ's findings on all but one charge. It held that Wiedmeyer did not promulgate an unlawful rule when he instructed Garner not to discuss his SPI in the dispatch area. Instead, the Board found that Wiedmeyer had "engaged in coercive conduct to compel Garner to cease speaking to coworkers about his discipline." Bellagio, LLC, 362 NLRB No. 175, at 1 n.3. The Board adopted the ALJ's Order requiring the Bellagio to cease and desist from its unfair labor practices and post a notice informing employees of these violations and promising not to repeat them.

         The Company petitioned for review of the NLRB's Decision and Order, and the Board cross-applied for enforcement. We have jurisdiction to decide this case pursuant to 29 U.S.C. §§ 160 (e) and (f).

         II. ...


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