consolidated DAVID J. LOMANTO v. N.L.R.B., 804 F.2d 808, 812 3d Cir. 1986 citing Universal Camera Corp. v. N.L.R.B.,…

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-4541 & 05-5511 consolidated
* DAVID J. LOMANTO,
Petitioner
vs.
NATIONAL LABOR RELATIONS BOARD,
Respondent
** *** BOARDWALK REGENCY CORPORATION d/b/a Caesars Atlantic City,
Intervenor-Respondent
* (Amended as per the Clerk's 12/16/05 Order)
** (Pursuant to the Court's 3/13/06 Order)
*** (Amended as per the Clerk's 4/3/06 Order)
On Petition for Review of an Order of
the National Labor Relations Board
(Case 4-CA-32937)
Submitted Under Third Circuit LAR 34.1(a)
September 11, 2006
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
Filed: September 12, 2006
OPINION

-- 1 of 6 --

Boardwalk Regency Corporation does business as “Caesars Atlantic City”1
in Atlantic City, New Jersey. For ease of reference, we will refer to Boardwalk Regency
as “Caesars” in this opinion.
2
PER CURIAM.
David LoManto seeks review of a decision and order of the National Labor
Relations Board (“the Board”) dismissing his unfair labor practices complaint against
Boardwalk Regency Corporation. LoManto was employed by Caesars as a dealer in its1
Atlantic City casino from 1999 to 2004. In late 2003, Teamsters Union Local 331 began
organizing dealers at Caesars and other area casinos. LoManto was involved in the
campaign in various ways; including, signing a union authorization card, attending
meetings, and distributing literature to coworkers. The campaign gained momentum in
January 2004 and, by its end, approximately 200 of Caesars’ 800 dealers had signed union
authorization cards. However, the campaign ended without an election petition being
filed. Near the end of the campaign, LoManto was involved in two heated conflicts with
casino customers who were gambling at his table. After the first incident on February 21,
2004, Caesars issued a written warning to LoManto that another such incident would
result in his dismissal. Before this warning was delivered to LoManto, however, a second
incident occurred on March 5, 2004. LoManto was subsequently placed on investigatory
suspension and was discharged shortly thereafter.
After his termination, LoManto filed a charge with the Board, alleging that
Caesars had violated the National Labor Relations Act (“the Act”), 29 U.S.C.

-- 2 of 6 --

LoManto also filed a petition for review in the United States Court of2
Appeals for the District of Columbia Circuit, which was transferred to this court on
December 23, 2005 and docketed at C.A. No. 05-5511. Both cases have been
consolidated for disposition. We granted Caesars’ motion for leave to intervene.
3
§§ 158(a)(1), (3), by making anti-union comments, issuing threats of reprisal for union
activity, taking disciplinary action against him and discharging him for his union activity.
The Regional Director of the Board issued a complaint against Caesars, and a trial was
held before an Administrative Law Judge (“ALJ”) during which both Caesars and
LoManto (through General Counsel for the Board) presented evidence. After the
proceedings concluded, the ALJ issued a decision finding that Caesars had not violated
the Act and recommending that the complaint be dismissed. LoManto filed an extensive
list of exceptions, and Caesars filed an answering brief. In a decision and order issued on
June 30, 2005, the Board adopted the ALJ’s recommended order and dismissed
LoManto’s complaint. After the Board denied LoManto’s motion for reconsideration,
LoManto filed this petition for review, requesting that the Board’s order be set aside.2
The Board had jurisdiction under 29 U.S.C. § 160(a). We have jurisdiction
pursuant to 29 U.S.C. § 160(f). We review the Board’s findings to determine whether
they are supported by substantial evidence in the record. See 29 U.S.C. § 160(f); Hunter
Douglas, Inc. v. N.L.R.B., 804 F.2d 808, 812 (3d Cir. 1986) (citing Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 487-91 (1951)).

-- 3 of 6 --

4
Under section 8(a)(1) of the Act, it is an unfair labor practice for an
employer to “interfere with, restrain, or coerce employees in the exercise of [their rights]”
to engage in union organizing activities. See 29 U.S.C. § 158(a)(1). The Act also
prohibits an employer from encouraging or discouraging membership in any labor
organization. See id. at § 158(a)(3). In order to prove a violation of the Act, General
Counsel must first establish that opposition to union activity was a “motivating factor” in
the employer’s decision to discharge or take other adverse action against an employee.
See N.L.R.B. v. Omnitest Inspection Servs., Inc., 937 F.2d 112, 122 (3d Cir. 1991)
(internal citation omitted). The timing of the action, whether the employer knew about
the employee’s union activity or was hostile towards the union, and the employer’s
reasons, if any, for the action are all relevant to the determination whether an unlawful
motive exists. See id. If and when this showing is made, the burden shifts to the
employer to show by a preponderance of the evidence that it would have taken the same
action even if the employee had not engaged in protected conduct. See id. (citing
N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393, 401-03 (1983)).
The trial before the ALJ spanned three days and included testimony from
LoManto, eight Caesars employees (mostly management level), and a casino patron who
was involved in the February 21 incident. In regard to the customer incidents, LoMantost
testified that customers had been committing rules infractions and he had merely done his
job by enforcing the rules. LoManto also testified that the customers were verbally

-- 4 of 6 --

5
abusive to him. Testimony from Caesars’ witnesses painted an entirely different picture,
uniformly portraying LoManto’s behavior as bullying and aggressive towards the
customers. Caesars’ witnesses also testified that LoManto had disobeyed a direct order
from his immediate supervisor to continue dealing during the March 5 incident.th
In a detailed decision, the ALJ emphasized that credibility was a key
consideration in the case, as LoManto’s uncorroborated testimony constituted the bulk of
the General Counsel’s evidence. The ALJ discredited LoManto’s version of events,
based both on his assessment of LoManto’s demeanor and his observation that LoManto
shifted his story throughout the trial. Crediting the testimony of Caesars’ witnesses, the
ALJ found that management had never made anti-union or threatening comments as
alleged by LoManto. The ALJ also found that the General Counsel had failed to sustain
his burden of proving that anti-union animus motivated Caesars’ warning, suspension, or
termination of LoManto, because there was no credited evidence that management knew
about LoManto’s involvement in the union campaign. The ALJ also credited Caesars’
version of events surrounding the customer conflicts and found that LoManto’s written
warning, suspension, and termination were the direct results of his inappropriate behavior.
On appeal, LoManto contends that the Board’s credibility determinations
were flawed, that each witness’s testimony was self-contradicting, and that the ALJ failed
to recognize that some testimony from Caesars’ witnesses actually supported his case.
We are not persuaded by these assertions, which are unsupported by the record. After

-- 5 of 6 --

6
reviewing the record, including LoManto’s numerous exceptions, we find no fault with
the Board’s credibility determinations. See Edgewood Nursing Center, Inc. v. N.L.R.B.,
581 F.2d 363, 365 (3d Cir. 1978). See also N.L.R.B. v. Craw, 565 F.2d 1267, 1270 (3d
Cir. 1977) (reviewing court cannot displace Board’s selection between two conflicting
views of the evidence). We hold that the Board’s findings are supported by substantial
evidence in the record and will, accordingly, deny LoManto’s petition for review.

-- 6 of 6 --