United States Court of Appeals, District of Columbia Circuit
January 6, 2017
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
T. Trimmer argued the cause and filed the briefs for
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.
Edwards, Senior Circuit Judge.
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).
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.
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.
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.
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.
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
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
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
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
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).