Hotel Tropicana

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to refrain from becoming or remaining , members of a, labor organization except to the extent that such rights. may. be affected by an agreement conforming to the provisions of Section 8(a)(3), of the National Labor Relations Act, as amended. HUGHES & HATCHER, INC.; A/K/A HUGHES HATCHER SUFFRIN, Employer. Dated- ----------------- By---------------------------------- -------- (Representative) (Title) HUGHES & HATCHER, INC., AND ITS WHOLLY OWNED SUBSIDIARY, OPPENHEIM'S, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 500' Book Building, 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone 226-3244. Hotel Conquistador, Inc., d/b/a Hotel Tropicana and American, Federation of Casino and Gaming Employees. Case £0-CA-- 3278. June x4,,1966,. DECISION AND ORDER On March 4, 1966, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's, Decision and a supporting brief, and the General Counsel filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as' amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made' at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein.' 1 We correct certain minor inadvertent errors in the Trial Examiner 's Decision. 159 NLRB No. 105. HOTEL .CONQUISTADOR ' 1221 [The Board adopted the Trial Examiner's Recommended Order with the following modification:, The first paragraph of the Appen- dix is amended to read : [WE WILL NOT discourage membership in American Federation of Casino and Gambling Employees, or any other. labor organi- zation, by discharging, laying off, or otherwise discriminating in regard to hire, tenure, or other term or condition of employment.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On September 1, 1964, the Hotel Tropicana, one of the topflight casinos on the fabulous Las Vegas gambling "Strip," fired its head slot machine mechanic. By this and other acts, the complaint herein charges the owner of the Tropicana with unfair labor practices under the National Labor Relations Act. Tropicana's defense is both technical and on the merits. Of its two technical -defenses, its first is a challenge to the Board's assertion of jurisdiction over the labor practices of the Nevada gambling industry and accordingly over Tropicana as a member thereof. Its second technical defense is a challenge ; to all of ,the allega- tions of the complaint, except the allegation of the discriminatory discharge, on the ground that they are,not supported -by the statutorily+required ,precomplaiiit filing of appropriate charges by, the Union (Charging Party ). 'On ,the - merits, Respondent -denies all -the charges of the complaint. A more detailed , statement of'the issues is shown below. - - The complaint herein was issued on April 22, 1965, pursuant to a charge i filed ,by the Union .on September 28, 1964 .- An amendment to, the complaint, setting forth the name -of an additional -supervisor, was issued -on July, 13, 1965 . 'During the course of •the hearing, numerous amendments, chiefly-reflecting corrections in the names and positions of supervisors , were made to the amended complaint pursuant to leave granted by the Trial Examiner . -By direction of '-the, Trial Examiner -these have been reduced to writing and filed as of August 26, 1965. Similarly the oral answer made by the Respondent at the hearing to,these -amendments has been reduced to writing and also filed herein . The names , and positions of the casino's supervisors hereinafter referred to will be shown ,as corrected by the amendments to the complaint. • . , , - The case was heard before Trial Examiner Maurice S. Bush at Las Vegas, Nevada, on August 4 and 5 , 1965. Comprehensive briefs were filed by General .Counsel and counsel for Respondent in the latter part of September 1965 .1 These have been carefully reviewed and considered. Upon the entire record , and from my observation of the, witnesses , I make the following: - FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent herein is the Hotel Conquistador, Inc., a Nevada corporation, -doing business as the Hotel Tropicana . It is engaged -in the operation of a hotel and gambling casino, known as the aforementioned Hotel Tropicana, at Las Vegas, Nevada. The Company during the past year received gross revenue in excess of $500,000 in the course and conduct of its business operation. U. THE LABOR ORGANIZATION The American Federation of Casino and Gambling Employees, herein called the Union, is a labor organization within the meaning of the Act. . 1 Pursuant to Respondent's unopposed motion , the statement appearing in the transcript of the proceedings -herein at page 294, lines 3 and 4, reading "Houssells admitted that to Hanley" is corrected to read "Houssells did not admit that to Hanley." 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues 1. Whether the National Labor Relations Board should assert jurisdiction over employers engaged in the gambling industry in the State of Nevada, such as Respondent? 2. Whether the Section 8(a)(1) violations alleged by the complaint, as amended, are barred by the 6-months limitation provision of Section 10(b) of the Act? 3. Whether the Respondent, in violation of Section 8(a)(1), on or about August 6, 1964, through its supervisor, George Harvey, gave one of its employees, Frank Yockman, the impression that the Company was engaging in surveillance of employees' union activities? 4. Whether the Respondent, in violation of Section 8(a)(1), on or about June 1, 1964, through its supervisor, Harry Farnow, unlawfully interrogated its aforementioned employee, Frank Yockmen, about his union activities? 5. Whether at all times here pertinent Phillip Daly had supervisory status in the position he held with Respondent? 6. Whether the Respondent, in violation of Section 8(a)(3) and (1), discrimina- torily discharged the said Frank Yockmen because of his union activities? B. Issue as to Board's jurisdiction over Nevada gambling industry The Respondent at the hearing moved for a dismissal of this proceeding on the ground that the Board "lacks" jurisdiction over employers engaged in the gambling industry in the State of Nevada, of which Respondent is a member. The Company has filed a 25-page addendum brief in support of its motion. From the brief, it appears that Respondent is not attacking the legal authority of the Board to assert jurisdiction over the gambling industry of the State of Nevada, but is merely request- ing the Board in its admitted discretionary powers not to assert such jurisdiction. The Board, to effectuate the purposes of the Act, has heretofore asserted jurisdic- tion over certain employers in the gambling industry within the State of Nevada with gross annual income from gambling operations in excess of $500,000. El Dorado Inc., d/bla Eldorado Club, 151 NLRB 579. In recognition of this, Respondent in its addendum brief acknowledges that its present motion for dismissal of the complaint on discretionary jurisdictional grounds "is in reality a motion for reconsideration of the Board's prior ruling in El Dorado." In connection with this motion for reconsideration, pursuant to Respondent's request, I have taken official notice of certain documents, such as the Nevada Gambling Control Act and portions of the transcript in the El Dorado case, which for purposes of convenience have been submitted to me for my consideration.2 From its addendum brief, it appears that Respondent is seeking a reversal of the Board's ruling in the El Dorado matter to assert jurisdiction over the Nevada gam- bling industry on the basis of the same facts presented in that case and essentially on the basis of the same arguments advanced therein, the crux of which is that the gambling industry in Nevada is already adequately regulated by the State of Nevada. The prior determination of the Board in the El Dorado matter to assert jurisdiction over employers (with the requisite annual revenue) engaged in gambling operations in the State of Nevada in order to effectuate the purposes of the Act is binding upon me in the instant case. Moreover, the decision of the Board in the El Dorado case appears to be more than amply justified in view of the fact that 75 percent of the persons engaged in nonagricultural pursuits in the State of Nevada are employed, directly or indirectly, by the gambling industry within the State and by the further fact that over 20 million tourists are attracted annually to Nevada, in large part, because of the facilities therein for gambling .3 I find that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. The motion of Respondent, taken under advisement at the hearing, for a dismissal of the complaint herein for want of jurisdiction is denied. 2 The copies of the Nevada Gaming Control Act and the partial copy of the transcript in the El Dorado case, thus submitted to me by Respondent, will be transmitted to the Record Section for association with the file herein upon the filing of the Trial Examiner's Decision In this matter. s These statistical findings are from the findings of the Board In the El Dorado case, supra. HOTEL CONQUISTADOR 1223 C. Issue as to whether Section 8 (a)(]) allegations of complaint are time-barred At the opening of the hearing the Respondent moved 4 for a dismissal of the two 8(a)(1) violations= alleged in paragraph 5 of the complaint, as amended, on the -ground "that there was no charge filed upon which an independent allegation of a violation of Section 8(a) (1) could be based." This challenges the authority of the Board to proceed with the allegations of paragraph 5 of the complaint. Under Section 10(b) of the Act, a complaint may not be issued without the prior filing of a supporting charge of an unfair labor practice. Further under the proviso of Section 10(b), the issuance of a complaint is barred where it is "based upon any unfair, labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ...:' The charge in the instant case was filed by the Union on September 28, 1964 on Form NLRB-501. For present purposes, the pertinent portions of the Union's charge are contained in the paragraphs thereof numbered paragraphs I and 2. Par- agraph 1 in the portion here pertinent, set forth almost entirely in print, reads as follows: The above-named employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a), subsection (1) and (3) of the National Labor Relations Act . . . " (Editorial note : All of the above is in printed form except for, the "(3)" which.is typed in.) Paragraph 2 of the charge consisting of two paragraphs (the first of which is printed and the second typed in) reads as follows: 2. Basis of the Charge (Be specific as to facts, names, addresses, plants involved, dates, places, etc.) On September 1, 1964, the above-named employer discharged Frank Yock- men, who had been employed by it as a slot machine mechanic, because of his membership in, activities on behalf of, and sympathy for the below-named labor organization. Paragraph 5 of the complaint, as amended, contains the following allegations charging unlawful surveillance (by impression thereof) and interrogation in violation of Section 8(a)( I) of the Act: On or about August 6, 1964, the Respondent by George Harvey gave an employee the impression that the Respondent was engaging in surveillance of employees' union activities. On or, about June 1, 1964, they Respondent by Harry Farrow unlawfully interrogated Frank Yockmen about his union activities. Respondent contends that the above 8 (a) (1) violations of the complaint must be dismissed because the unfair labor practices therein described have not been specif- ically spelled out in the Union's charge and that the mere allegation in the Union's charge of 8(a) (1) violations is insufficient in itself to support the complaint's specific 8(a)(1) allegations. In support of this contention Respondent argues that the charge's' "printed state- ment alleging a violation of Section 8 (a) (1) . is not intended to cover and does not cover matters independent of the specific charge contained in the body of the- formal document itself." (Emphasis supplied.) The "specific charge" the Respond- ent has reference to is the allegation in the Union's charge that the Respondent dis- criminatorily discharged the aforementioned Frank Yockmen because of his union activity in violation of Section 8(a)(3). Since under established law a violation of Section 8 (a) (3) is also automatically a violation of Section 8(a) (1) and since the- Union's charge does not specifically set forth any independent or separate 8(a)(1). violations, Respondent argues that the printed reference to Section 8(a)(1) viola- tions in the Union's charge must be interpreted as being merely derivative, or flow- ing, from the alleged 8(a) (3) violation. Thus, because of the absence of specifically spelled-out independent allegations of 8(a)(1) violations in the Union's charge, Respondent argues it is entitled to a dismissal of the portions of the complaint, as- amended, which allege violations of Section 8 (a) (1). 'Although Respondent made two motions, one for dismissal of the 8( a) (1) allegation- of paragraph 5 of the original complaint and another for the dismissal of another 8(a) (1) allegation set forth in an amendment to paragraph 5 of the complaint, I deem and treat the two motions as essentially one 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue raised by, Respondent will necessarily turn on the facts here involved, but the applicable rules of law 'governing the decision thereon are well established. The courts have over the years rejected the attempts made by employers "to restrict the Board's, complaint to the precise violations specified in the charge." N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F 2d 393, 401 (C.A. 2), cert. denied 347 U.S. 953, and cases cited therein. The rule' for determining whether a complaint issued by the Board is properly supported by a charge is stated in N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484, 491, as follows: "the complaint . . . may allege vio- lations not alleged in the charge if (a) they are closely related to the violations named in the [Charging Party's] charge, and (b) "occurred within six months before the filing of the charge." In the instant case, the complaint alleges an impression of surveillance and inter- rogation in violation of Section 8(a)(1) well within the 6-month period *before the filing of the charge herein and accordingly part (b) of the rule established in the ,Dinion case is satisfied. .,It is also apparent that part (a) of the Dinion rule is also met here. As; surveil- lance (or the impression thereof ) and interrogation are normally 8(a)(1),preludes to 8(a)(3) discriminatory discharges, it follows and I so find, that the impression of,surveillance. and the interrogation pleaded in paragraph 5 of the amended,com- plaint "are closely related to the violations named [a discriminatory discharge of an employee] in the charge" and accordingly part (a),of the rule in the Dinion case is also 'satisfied. As will be shown below, the evidence, adduced by General Counsel shows that the sole subject of the alleged surveillance and interrogation was the alleged discriminatee, Frank -Yockmen. This further shows that the 8 (a) (1) viola- tions charged by the complaint are, indeed, very closely and intimately related to the 8(a)(3) violation set forth in detail in the Union's charge and in the complaint issued thereunder. The fairly recent decision of the Board in Champion Pneumatic Machinery Co., 152 NLRB 300, cited by Respondent in support of its contention, is obviously inap- posite here because it involved a wholly different set of facts which reveals on its face that the amendments to the complaint offered in that case were wholly unre- lated to the allegations contained in the Union's charge in that case. Respondent's motion, taken under advisement at the hearing, for a dismissal of the 8 (a) (1) violations alleged in paragraph 5 of the complaint , as amended, on the ground that they have not been specifically described in the charge as filed by the Union, is denied. D. Background facts Respondent's Tropicana Hotel, one of the showplace hotel casinos on the Las Vegas "Strip," has accommodations for 700 guests and employs from 600 to 700 employees. The casino has the usual gambling devices common to all gambling establish- ments in the Las Vegas area, such as roulette, craps, blackjack, keno, and cards, all of which are open to the public 24 hours a day. , In addition the Tropicana maintains 180 slot machines on its playing floor for the use of patrons at all hours of the day and night. The machines are, kept in repair by 10.slot machine mechanics, the chief personnel of which are involved in this proceeding , and serviced by 20 female change booth cashiers who make change for customers and assist in 'seeing that jackpots are paid off . This crew of mechanics and change girls works in shifts around the clock. The issues in the case revolve around the Tropicana's former head slot machine mechanic, Frank Yockmen, the alleged discriminatee, who has had some 14 years 'of experience as a slot machine mechanic. Yockmen was hired by Harry Farnow, supervisor of Tropicana's slot mechanic department, on March 18, 1962. He was also discharged by Farnow on September 1, 1964, under the circumstances described below. Farnow with 24 years experience as a slot machine mechanic supervisor at various casinos in Las Vegas has been supervisor of the slot machine mechanics at Tropicana since 1957. Prior to his employment at the Tropicana, Yockmen had worked briefly under Farnow's supervision some 10 years ago at another ,casino. Yockmen became a charter member of the Union on April 7, 1964. He was subsequently elected to the position of recording secretary of the Union, and on July 17, 1964, became a member of its executive board. In May of 1964, the Union filed a petition with the, Board seeking to represent a unit of 'gaming employees at the Tropicana. A hearing was held on the petition HOTEL CONQUISTADOR 1225 (20-RC-5956 ) as consolidated with other petitions (20-RC-5951 and 20-RC- 5953 ) before Hearing Officer Kintz , but before the completion of the consolidated hearing the Union withdrew its petition (20-RC-5956 ) to represent the involved unit at the Tropicana with the approval of the Regional Director for the Region involved . The approval of the withdrawal was announced by the said Hearing Officer Kintz at a resumed hearing held at Las Vegas on the consolidated petitions on July 14, 1964. Yockmen's testimony establishes that he actively engaged in organizing for the Union at the Tropicana. He solicited authorization cards from the change girl cashiers, the floormen, and the slot machine mechanics . He contacted all of the• 30 employees in the slot machine department and obtained about 18 cards from them. Yockmen in late May 1964 also solicited his colleague Phillip Daly, who occupied a position of special trust with Supervisor Farnow as will be shown below. Daly's status as a 'supervisor at the times here material has been placed in issue by the pleadings , but the evidence shows that he became assistant slot mechanic department supervisor on an unspecified date in August 1964 . Yockmen, it will be recalled, was terminated on September 1, 1964. Daly declined Yockmen's solicitation to become a member of the Union . The solicitation is' established by the testimony of both Yockmen and Daly. Yockmen's union activity at the Tropicana became directly known to his super- visor, Farnow, on or about June 1, 1964, when Yockmen and Farnow were alone in the slot -machine repair shop in the casino. Farnow, pointing to a copy of- the aforementioned representation petition of the Union on the shop wall, inquired' of Yockmen if he "knew anything about this." Yockmen replied that he was a' member and officer of the Union . Farnow received this news without comment ,and walked out of the shop. From the above evidentiary findings and other similar evidence of record, I find and conclude that Respondent had knowledge of Yockmen 's union activities at the Tropicana at all times herein material. E. Issue as to surveillance The complaint charges that Respondent by its ' agent and supervisor, George Harvey, gave an unnamed employee, identified at the hearing as the aforesaid' Frank- Yockman,'the' impression that,the Respondent' was engaging in-surveillance of employees' union activities . ' This ^ is denied • by Respondent's 'answer! Harvey, an employee of the Tropicana for over 8 years, holds -the position of blackjack pit foreman and in this capacity he supervises the dealers in the Tropi- cana's blackjack pit who play for the house from - their places -inside the pit or enclosure from which the public is excluded . Although Harvey is an acknowledged supervisor, his supervision ' relates exclusively to the blackjack dealers who work under him. . Harvey and Yockmen have known 'each other'for about 3 lyears. On or about August 6, 1964, Yockmen stopped ' at the blackjack station , for a brief chat withe Harvey. There is disagreement in' the testimony given by Yockmen and Harvey as to what was said on this occasion which will be resolved below. Prior to the- conversation, information had reached Yockmen that' a list of union officers and others active in, the Union -had come into the possession of casino interests and' was being distributed to all the casinos ; that his name (Yockmen's), marked by two stars, was on the list; and that all persons whose names were on the list and marked by stars were scheduled for discharge on account of their union activities. Yockmen testified as follows as to what transpired at his chat of August 6 with Harvey. ' Referring to the aforementioned list of names of union participants, Yockmen said to Harvey, "I hear there is a list in the pit." Harvey acknowledged that he had such a list and volunteered that Yockmen's name was on'the list and' was marked ' by two stars. Expressing disheartenment over this news; Yockmen inquired as to the maximum number of stars after the names of the persons on the list. When told that three stars was the maximum , Yockmen wryly remarked that his name should have been marked with three stars as he was on the executive board of the Union. - Harvey laughed and Yockmen continued on, his rounds. Harvey in his testimony admitted having conversed with Yockmen on or about the above-indicated date at his blackjack pit station, but testified that the only sub- ject of conversation between Yockmen and himself on that occasion was Yock- men's solicitation that he become a member of the Union. He was not specifically asked and did not specifically deny that the conversation between Yockmen and himself related to the aforementioned list of union participants. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From my observation of the straightforward testimony and demeanor of Yock- men and from the obvious high regard Respondent's witnesses held for Yockmen 'both as to his honesty and as a person, although reluctantly admitted as company witnesses, I credit Yockmen's testimony as related above as to what was said in the conversation he had with Harvey and discredit Harvey's version of the conversation. Discussion and Conclusions The evidentiary findings set forth above not only show that the Respondent had in its possession in the forepart of August of 1964, a list of employees in the casino industry who were prominent in union activities, but also that the list had been duplicated and distributed to its supervisors, as there would otherwise be no explanation of the fact that such a list was in the possession of Tropicana's black- jack pit boss Harvey. Harvey's frank acknowledgement to Yockmen that he had such a list and his voluntary statement that Yockmen's name was on the list and marked by two stars clearly gave Yockmen, an avowed union advocate, the impression that the Com- pany was engaging in surveillance of its employees' union activities, as his testi- mony plainly reveals. In my opinion it is immaterial that this impression of surveillance would not have come about if Yockmen had not initiated the inquiry about whether Harvey had the list at his blackjack station. Similarly it is immaterial that Yockmen was given this impression of surveillance by a man who was not his direct supervisor. The pertinent fact is that Yockmen as an employee was given the impression by Respondent through one of its responsible agents (Harvey) that the Company was ,engaging in surveillance of the union activities of its employees and particularly that of Yockmen; whop-was discharged some 3 weeks., later; uncjert;,gircumstances charged by the complaint as being discriminatory, hereafter considered.. Under these circumstances, I find and conclude that the Respondent by its said agent and supervisor, George Harvey, unlawfully gave its employee, Frank Yock- men, the impression that the Respondent was engaging in surveillance of employ- ees' union activities in violation of Section 8(a)(1) of the Act. F. Issues as to interrogation The complaint, as amended, alleges that the Respondent on or about June 1, 1964, unlawfully interrogated its aforementioned employee Frank Yockmen about his union activities through its Agent and Supervisor Harvey Farnow. The Respond- ent in its answer denies the charge. As heretofore noted, Farnow is Tropicana's slot machine department supervisor. He was the man who hired Yockmen in 1962 and discharged him on September 1, 1964, under circumstances charged by the complaint as being discriminatory. Dur- ing much of his tenure at the Tropicana and at his termination, Yockmen was head slot machine mechanic. As head of the slot machine mechanic department, Far- now was Yockmen's supervisor during all of Yockmen's tenure with the Company. The slot machine department has a shop on the premises of the Tropicana where slot machines are taken for repair. As heretofore noted, the Union sometime in May of 1964 filed a petition with .the Board for an election in which it sought to represent a unit at the Tropicana. Shortly thereafter a copy of the petition was posted in the slot machine repair shop. As shown above in another connection, Farnow was alone with his head mechanic Yockmen in the shop on or about June 1, 1964, when pointing to the petition on the wall, Farnow asked Yockmen if he "knew anything about this." Yockmen answered "Yes" immediately, adding that he was a member and officer <of the Union. Farnow, making no reply thereupon walked out into the casino. Within an hour or so, Yockmen learned from Farnow's closest associate in the department, the aforementioned Phillip Daly, that Farnow had expressed some ,disturbance or agitation that Yockmen had not revealed to him his union interest .and activities prior to the filing of the Union's representation petition. It is inferred from this that Farnow had knowledge of the filing of the Union's petition for sometime prior to his inquiry of Yockmen as to what he knew about the Union's ,petition. Discussion and Conclusions The issue here is Farnow's motivation in questioning Yockmen as to what he .knew about the Union's petition for a representation election. HOTEL CONQUISTADOR '-) • 1227 The Respondent contends that the question was asked'ouvof sheer curiosity and as such the inquiry is-protected by the "free speech" provision of the Act. General Counsel on the other hand contends "that supervisor Harry Farnow took advantage of finding Yockmen alone during working hours to question him about the Union's organizational campaign." I am of the opinion that the form of the question indicates an intention on the part of Farnow to inquire of Yockmen as to his union activities. This is made evident by the fact that this was the way Yockmen interpreted the inquiry because he immediately acknowledged that he "knew" about the petition and added that he was a member and officer of the Union. That the inquiry was not put to Yockmen by Farnow out of mere curiosity is evident from the fact that Farnow shortly thereafter expressed concern to a close associate that Yockmen had not advised him about his union interests and activities prior to the filing of the Union's petition. Under all the circumstances of record herein on the issue, I find and conclude that the Respondent on or about June 1, 1964, unlawfully interrogated its employee Frank Yockmen through its Supervisor Harry Farrow in violation of Section 8(a)(1). G. Issue as to supervisory status of Phillip Daly Under the complaint, as amended, it is alleged that Phillip Daly was an agent of the Respondent and its assistant slot machine mechanic department supervisor at all times here pertinent. The Respondent in its answer admits that Daly is an agent of Respondent, but denies that he was a supervisor within the meaning of the Act at any time material herein. The •issue, thus raised, is covered by General Counsel's brief, but does not appear to be argued in Respondent's brief. As heretofore shown Harry • Farnow has been the Tropicana's slot machine mechanic department supervisor since 1957, with jurisdiction over 20 change girl cashiers and 10 slot machine mechanics, who work in three shifts around the clock. From testimony adduced by Respondent, it is found that Phillip Daly, a Tropi- cana slot machine mechanic of some 7 years' standing, officially became Farnow's first assistant at an undisclosed date in August 1964, with the title of assistant slot mechanic department supervisor, and in this capacity had the power to assign work and discharge, among others, but not to hire. Yockmen, it will be recalled, was discharged on September 1, 1964. It is accordingly found that Daly was a super- visor within the meaning of the Act at the time Yockmen was discharged and for at least a portion of the month preceding Yockmen's discharge. Prior to his acquisition of the title of assistant supervisor of the slot machine department in August 1964, Daly was entrusted with certain duties and responsi- bilities not conferred on any of the other employees in the department. In the absences of Farrow which were not infrequent, Daly took Farnow's place in the department, but did not have Farnow's authority to hire or discharge. In Far- now's hospitalized illness of August 1964, Daly kept Farrow advised on the progress of the department. Besides Farnow, Daly was the only other person in the department entrusted with the master key to the moneyboxes of the slot ma- chines. Similarly,, besides Farnow, Daly was the only person in the department authorized to countersign slips utilized to authorize- a customer, who had just won a large jackpot, to proceed to the cashier and to claim the amount of cash repre- senting the difference between what the slot machine actually paid out and what the jackpot was worth. Most importantly, the change girls in the department took directions from Daly in their work. Conclusion From the evidentiary facts shown above, it is found and concluded that Phillip Daly was at all times herein material employed by Respondent as a supervisor within the meaning of that term under the Act. H. Issue as to whether Frank Yockmen was discriminately discharged The complaint alleges that Respondent discharged the aforementioned Frank Yockmen on or about September 1, 1964 because of his union activities or other concerted activities for the purposes of collective bargaining or other mutual aid or protection. Respondent's answer denies that the discharge was discriminatory. The record shows that the Tropicana discharged Yockmen, its head slot machine mechanic, on September 1, 1964. The reason given for his discharge on his ter- 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mination slip was a "reduction in force" which Respondent 's witnesses acknowledge is a euphemism employed by the Company for whatever reasons it may have for a discharge. Respondent's ;stated , defense at the hearing was'that Yockmen was discharged because he had become a "security risk " by reason of indebtedness incurred by gambling. The record shows that the term "security risk," as used by the Respond- ent with reference to Yockmen, means that the Respondent allegedly became fearful that Yockmen would be tempted to steal the uncounted coins he found in slot machines he was called on to repair because of his alleged gambling indebtedness. Because large amounts of money are handled by its gaming employees, the Tropicana has procedures , which - appear to be common among all Las Vegas casinos, designed to • prevent employee defalcations of casino funds. The chief procedure appears to be a system which requires at least two persons to be present in the handling of house funds , one of which is generally a guard. The Tropi- cana also has a so-called "eye-in-the-sky" to detect any suspicious conduct on the part of employees on the gambling floor . The "eye-in-the-sky" is an observer stationed in an enclosure above the gambling floor who can look down in all directions at the gambling operations but himself cannot be seen or observed from the floor. The record shows, and official notice is also taken , that under local law, a casino may not hire a prospective employee until he is first cleared by local authorities as a person who does not have a criminal record. The only - access Yockmen had to casino money was to the limited amount of coins contained in the working parts , of the slot machines he was called on to repair; these represent a mere fraction of the total coins in the slot machine chassis. Each slot machine has a locked box at its bottom to which coins that have been played and lost by patrons work their way; thesef contain substantial amounts of coins after the machine has been played for any considerable length of time. - The only persons in the slot machine department who have access to the locked coin boxes are the department's aforementioned supervisor and assistant supervisor, Harry Farrow and, Phillip Daly, who have the only keys in the depart- ment to the machines . Thus Yockmen did not have access to the machines' locked moneyboxes. ' , ' In -addition to the locked moneybox, 'each slot machine' also has in its interior a coin tube' of uncounted coins which have' not yet worked their way into the locked moneybox at the bottom of the machine. The coin tube in the machines may, contain from 10 to 30 coins in nickels, dimes, quarters, or 50-cent pieces. These coin tubes are not under lock and key and are accessible to any mechanic who opens the slot machine for adjustment or 'repairs. These tube coins are the coins Yockmen had'aecess to when called upon to repair a machine. Repairs on slot machines are frequently made at their locations on the casino floor in the presence of many people. Where more extensive repairs or adjust- ments are required, the machines are taken to the repair shop. Yockmen often worked alone in the shop fixing slot machines 'In making such shop repairs, it is frequently necessary to remove the uncounted coins in the coin tube in order to get at the mechanism. Coins so removed are kept in a cup on the shop bench and 'returned to the machine upon completion of the repair or adjustment. Whenever Yockmen found it necessary to bring a slot machine into the shop for repair, he made it a practice to show the coin level of the coin tube in the machine to,one of his supervisors or a guard, both before taking the machine off the casino floor and after its return to the casino. The testimony of Supervisor Farnow and Assistant Supervisor Daly show that they never at any time had reason to believe or even entertain the slightest suspicion that Yockmen was stealing from the coin tubes of the machines he repaired. Yock- men had approximately 12 years of experience as a gaming employee before taking up employment at the Tropicana in 1962. Supervisor Farnow, with nearly a quar- ter of a century of experience as a slot machine supervisor in the Las Vegas area, acknowledged that if there had been any reports or rumors in the industry reflecting on Yockmen's integrity, he would have heard about it, but no such reports or rumors ever reached him. The record shows that Yockmen was regarded by Supervisors Farnow and Daly as an able and conscientious worker who,did not drink, was never late, got along well with others in the department and casino, and was well liked Respondent's witnesses, particularly Farnow and Daly, left a strong impression on me of the underlying high regard they had for•Yockmen's integrity and their HOTEL CONQUISTADOR ' 1229 liking for him as a person , notwithstanding their testimony in behalf of their employer. I also detected in the demeanor of Respondent 's witnesses a latent dis- taste for the testimony they were giving against Yockmen. Yockmen's testimony shows that some 10 months before his discharge he lost approximately $1,000 in what appears to have been a single spree of gambling at casinos other than the Tropicana. Thereafter, finding himself short of money to pay outstanding nongambling debts, he approached Assistant Supervisor Daly, told him he had "lost" some money, and asked who he could see about getting "advances" against his salary. Daly referred him to the casino's paymistress; Lucretia Rozelle. Yockmen's further testimony shows that he- saw the paymistress, told her that he had lost about $1,000 -in gambling, and requested advances against his salary to help him meet nongambling bills incurred subsequent to his gambling losses. The paymistress agreed to let him have advances and thereafter Yockmen requested and received such advances for a period of some 6 or 7 months until his discharge on September 1, 1964. The advances were received in checks distinctively different in appearance than regular payroll checks. The paymistress would prepare Yock- men's advance checks. and take them "upstairs" for the signature of Respondent's chief auditor. These advances were given to Yockmen, notwithstanding a sign on the paymistress' door which reads "Positively no advances in wages." The record shows that the only persons in the Company with authority to authorize advances, to employees against salary were the Company's president, its chief auditor, and the paymistress. The "advances" received by Yockmen against his salary were actually draws on salary or wages already earned, and not payments against wages not yet earned. The Tropicana pays its employees every 2 weeks, but always withholds a week's salary which is paid the employee upon the termination of his services with the Company. The draws received by Yockmen were each in the amount of $200, representing 10 days of earned pay. Supervisor Daly's testimony shows that sometime in the spring of 1964 he noted a nonpayroll check on Yockmen's timecard. He asked Yockmen about this and was told by Yockmen that the check 'was a draw against his salary which he required because of gambling losses Although Daly also testified that Yockmen on this occasion had also told him that he had "markers around town" (i.e. IOU's), I credit Yockmen's flat denial of the truth of this statement. Respondent produced no independent evidence of such "markers" from other casino owners or any other source. Daly's testimony also shows that sometime in August of 1964, he saw exposed in Yockmen's pocket another nonpayroll check. He asked Yockmen if the check was another advance and Yockmen acknowledged that it was. Some days later, Daly had occasion to see the paymistress of the casino on some matters and while speaking to her incidentally inquired if Yockmen was still receiving advances. She said that he was and indicated that the need for the advances had been brought on by gambling losses Yockmen had suffered. Two days later, on August 31, 1964, Daly called at the hospital where Farnow was then hospitalized to report to 'him on the operation of the Tropicana's slot machine department. Daly testified that during this visit he mentioned to Farnow that Yockmen was "still" drawing advances because of gambling debts and that Farnow upon receipt of this information immediately instructed him to prepare a termination slip for Yockmen, showing discharge due to a reduction in force, which some hours later upon Farnow's signature, resulted in Yockmen's discharge as of September 1, 1964. Farnow testified substantially to the same effect, but professed to have had no knowledge prior to Daly's visit with him at the hospital that Yockmen had been receiving advances because of alleged gambling debts or that Yockmen had been gambling. Daly also testified that at the time Farnow ordered Yockmen's discharge he had no knowledge as to the extent of Yockmen's alleged indebtedness for gambling losses or for how long a period Yockmen had been receiving advances from the Company. Farnow ordered the discharge of Yockmen without checking with Respondent's paymistress as to the reasons for Yockmen's advances or for how long a period they had continued. Farnow testified that after the discharge "I asked Lucretia Rozelle [the paymistress] if it was true that Yockmen had been taking advances on his salary, and she informed me at that time that he had, and he had told her that he needed the money to pay off gambling debts." 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As shown above, Yockmen's own testimony, contrary to what the paymistress was reported to have told Farnow, shows that he told the paymistress that he was requesting advances to pay up nongambling debts incurred after he had lost approx- imately $1,000 in gambling. Respondent did not-call the paymistress to refute this testimony by Yockmen. Although she had been in attendance at the hearing for a portion thereof, Respond- ent's counsel advised me that they had excused her because they "felt that we had no need for her testimony." Pursuant to request of General Counsel, a subpena was issued for her appearance, but Government counsel advised that he was unable to find her to effectuate service of the subpena and at the hearing concluded without her testimony. Under these circumstances, I credit Yockmen's testimony that he took advances from the Company for the purpose of meeting nongambling debts although the basic need for the advances arose from the fact that he had gambled away funds, which if not so lost, could have been used to pay his nongambling debts. The, record shows that other gaming employees of the Tropicana, not here involved as parties, engage in such forms of gambling as playing the slot machines and betting on horse races. Daly's testimony shows that in terminating Yockmen, he gave him no reason for the action, but simply said: "Your termination slip is on the time clock. Your checks are ready for you." Daly's testimony further shows that Yockmen replied "I have been expecting it." Yockmen had occasion to see the paymistress some 2 weeks before his discharge. At that time she asked him rather sharply what the union representative, a man named Thomas B. Hanley, "had to do with this place?" The question was asked in apparent criticism of the fact that Hanley had requested the Nevada Industrial Commission to investigate an industrial accident Yockmen had suffered at the, Tropicana. Discussion and Conclusions From the detailed evidentiary findings set forth above, I conclude that the Respondent discharged its chief slot machine mechanic, Frank Yockmen, because of his union activities. It is readily evident that Respondent had knowledge of the fact that the Union' was seeking to organize a unit of its employees at the Tropicana from the mere fact that the Union had filed a representation petition with the Board some time in May 1964. As was stated, the Company opposed the petition which, after a hearing thereon ^ had opened, was withdrawn by the Union with the consent of the Regional Director. The record also shows that Respondent had knowledge of Yockmen's prominent connection with the Union. This is evident from the fact that the Tropicana's blackjack pit foreman, George Harvey, had at his pit in August 1964 a list of prominent union members which included Yockmen's name, flagged with two stars to especially single out members who were union leaders. The Company, how- ever, is presumed to have had knowledge of Yockmen's union activities many weeks before Yockmen discovered that there was such a list in the possession of the Respondent because, as the record shows, Yockmen actually solicited Daly, his assistant departmental head, to become a member of the Union as early as May 1964, and in the following month openly acknowledged to his departmental chief, Harry Farnow. upon inquiry, that he knew something about the representa- tion petition the Union had filed with the Board and further volunteered that he was an officer of the Union. Finally it was again forcibly brought home to the Respondent some 2 weeks before his discharge that Yockmen was a union man when Respondent learned that the Union's business agent, Hanley, had injected himself into its affairs by reporting to the Nevada Industrial Commission an industrial accident suffered by Yockmen at the Tropicana. Thus the Respondent was fully aware of Yockmen's deep involvement in the Union's efforts to organize the Tropicana at the time it discharged him as a "secu- rity risk." The reason given for Yockmen's discharge-that he was a security risk because of gambling-does not stand scrutiny. Respondent's paymistress knew that Yock- men was in financial difficulties by reason of past gambling losses and authorized' advances or draws against his earned wages for some 6 or 7 months prior to his discharge. She was one of only three persons in management who had the author- ity to authorize advances, the others being the president and the chief auditor of the Company. She made these advances notwithstanding the Company's rule. HOTEL CONQUISTADOR 1231 against advances Up to the time Yockmen was peremptorily discharged by Farnow there was uo intimation that she had recanted her decision of months ago, to help Yockmen out of his financial troubles by giving him advances against his wages. The record is thus clear that for months prior to his discharge as a "secu- rity risk" because of gambling, the Company had condoned or forgiven Yockmen for the financial difficulties he had gotten himself into from what appears to have been a single fling at gambling and was helping him out of his troubles by giving him advances. In .the face of this higher echelon condonation, Supervisor Farnow's abrupt discharge of,Yockmen as a ",security risk," without even seeming consultation with his, superiors, must be regarded as a pretext for Yockmen's termination at the Com- pany's direction because of his union activities. The deduction must be made that word had come down to Farnow from above that he was to get rid of union activist Yockmen immediately. Looked at from another point of view, it is obvious that Yockmen was not in any sense a "security risk" under the facts established in this record. He had fallen behind about $1,000 by his single fling at gambling. Many a wage earner owes twice that much on his automobile. But Yockmen was not a "security risk" in a deeper sense. His immediate supervisors, Farnow and Daly, openly admitted that they had no reason at any time to suspect Yockmen's honesty or integrity. Yock- men went out of his way to protect himself against any possible suspicion as to his honesty by exhibiting the uncounted coin level of the coin tubes in the slot machines he was called upon to repair, both before and after repair. In the 14 years Yock- men worked in the gaming industry in the Las Vegas area, there was never a report or rumor reflecting on Yockmen's honesty. His competence as a mechanic and a satisfactory employee is admitted. In summary, I find and conclude that the Respondent discharged Frank Yock- men, its head slot machine mechanic, because of his union activities in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section' 8(a)(1) and (3), it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer employee Frank Yockmen immediate and full reinstatement to his former or substantially equivalent position, without prejudice to seniority and other rights and privileges, and make him whole for any loss of earnings as he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of offer of reinstatement less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. It will be further recommended, in view of the nature of the unfair labor prac- tices the Respondent has engaged in, that it cease and desist from infringing in any manner on the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following. ' CONCLUSIONS OF LAW 1. The Respondent, Hotel Conquistador, Inc., d/b/a Hotel Tropicana, Las Vegas, Nevada, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of the Act. 3. By discriminating in regard to the hire or tenure of employment of Frank Yockmen, thereby discouraging membership in the above Union, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section .8(a)(1) and (3) of the Act. 4. By engaging in the conduct set forth in the section III, E and F, dealing with :8(a) violations by way of an impression of surveillance and by way of interroga- tion, respectively, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent, Hotel Con- quistador, Inc., d/b/a Hotel Tropicana, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in the American Federation of Casino and Gam- ing Employees, or any other labor organization, by discharging, laying off, or other- wise discriminating in regard to the hire or tenure of employment of employees, ,or any term or condition of employment (b) Interrogating its employees as to their membership in, or activities on behalf of, the Union, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (c) Creating the impression of surveillance of union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual ,aid or protection, or to refrain from any or all such activities. 2. Take the following -affirmative action which will effectuate the policies of the Act: (a) Offer to Frank Yockmen immediate and full reinstatement of his former •or substantially equivalent position without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him, as set forth in that section of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces ,of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision as set forth in "The Remedy" section of this Decision. (d) Post at its premises in Las Vegas, Nevada, including all places where notices to employees are,customarily posted, copies of the attached notice marked "Appen- dix." 5 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 5In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words , "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States ,Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." SWIFT & COMPANY 1233 (e) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith.6 6In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the American Federation of Casino and Gaming Employees, or any other labor organization of our employ- ees, by discharging employees for engaging in protected concerted activity, or in any other manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment except as authorized in Section 8(a)(3) of the Act. WE WILL offer to Frank Yockmen immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8(a)(1) of the Act. WE WILL NOT create the impression of surveillance of our employees with respect to their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. HOTEL CONQUISTADOR, INC., d/b/a HOTEL TROPICANA, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the ;above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-2043. Swift & Company and Clyde C. Clements. Case 11-CA-2755. June 24, 1966 DECISION AND ORDER On November 26, 1965, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommending 159 NLRB No. 88. 243-084-07-vol. 159-79