A pro-union Atlantic City casino dealer who contested his firing by Bally’s Park Place was unlawfully dismissed, according to a ruling by the U.S. Court of Appeals in Washington D.C. The court agreed with a previous finding by the National Labor Relations Board (NLRB), which had found for the dealer, Jose Justiniano, after his firing was upheld by a state court in New Jersey.
The case dates back four years, when Justiniano, who had been active in union organizing at Bally’s, was fired for violating the company’s family leave policy. According to court papers, on March 31, 2007 Justiniano was scheduled to work at the casino from 12:00 noon to 8:00 p.m. The night before his shift, the mother of his 13-year-old daughter called and asked him to take care of the girl beginning at 12:30 p.m. the next day. Justiniano’s daughter suffered from severe asthma that required treatment every four hours. He had previously taken leave to care for her, without incident, pursuant to the Family and Medical Leave Act (FMLA).
Justiniano called Bally’s at 6:00 a.m. on the morning of March 31 and left a message that he would be taking FMLA leave that day; he called back at 9:00 a.m. to confirm that Bally’s had received the message. Later that morning, the UAW held a rally outside the Trump Plaza casino as part of its effort to organize Atlantic City casino dealers. The rally was scheduled to last from 10:30 a.m. until about 12:15 p.m. Justiniano attended the rally and waved a “Union Yes” sign. On his way to work, one of Bally’s’ managers saw Justiniano holding the sign. Upon arriving at the casino, the manager informed Bally’s’ vice president of table games, Michael May, that he had just seen Justiniano at the rally. May responded that Justiniano had requested FMLA leave for the day.
When Justiniano returned to work, he signed a form requesting paid family leave for his entire shift on March 31. On April 9, May took him to meet with Bally’s’ director of operations, Richard Tartaglio. Tartaglio informed Justiniano that he had been seen at the UAW rally on the morning of March 31, and he asked Justiniano when he left the rally. Justiniano acknowledged that he was at the rally until it ended at about 12:20 p.m., and said that he had then gone home to care for his daughter. Based on the information Justiniano provided, Tartaglio and May concluded that he had been at the rally for 20 minutes after the start of his scheduled shift and that he had therefore spent 20 minutes of FMLA leave time attending the rally.
On April 12, Bally’s terminated Justiniano for “violation of Work Rule Number 3 in the employee handbook stating that employees will be honest and forthcoming in all communication.”
Justiniano claimed he was fired because he was targeted for union organizing. The Court of Appeals, in finding for Justiniano, said that he was only at the rally for 20 minutes and Bally’s policy on family leave did not justify the firing.
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