Carson City Nugget Casino, Inc.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become or remain, or to refrain from becoming or remaining members, of any labor organization. DALE IRWIN, WOODY IRWIN, AND GRANVILLE E. WAFFORD d/b/a IRwIN & WAFFORD, 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, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon 97204, Telephone 226-3361. Carson City Nugget Casino, Inc. and American Federation of Casino and Gaming Employees . Cases 20-CA-357-/f and 3574-3. October 27, 1966 DECISION AND ORDER On June 9, 1966, Trial Examiner Lowell Goerlich issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 'practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged 'in certain unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent filed exceptions and a brief and the General Counsel filed cross-exceptions and a brief. A brief in answer to the General Counsel's cross-exceptions was also filed by Respondent. 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 these cases to, a three-member panel [Chairman McCulloch and Members Fanning 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 Exam- iner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in these cases," and hereby adopts the findings, conclu- I While these cases were pending before the Board, Respondent filed a Motion to Remand to Trial Examiner and Reopen Record for the purpose of adducing further evidence in support of Respondent's contention that the Board should not assert jurisdiction over enterprises engaged in the gambling industry . This contention has been urged before the Board in prior cases and we have concluded that no reasonable basis exists for excluding gambling establishments from the coverage of the Act. See El Dorado, Inc., d/b/a El Dorado Club, 151 NLRB 579. Accordingly , Respondent 's motion is hereby denied. 161 NLRB No. 40. CARSON CITY NUGGET CASINO, INC. 533 sions, and recommendations 2 of the Trial Examiner, as modified herein. [The Board adopted the Trial Examiner's Recommended Order with the following modifications [1. Delete the words "like or similar" from paragraph 1(b) and substitute the word "other." [2. Substitute the following for paragraph 2(c) of the Trial Examiner's Recommended Order : [" (c) Make whole Forest Young for any loss of pay he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis Plumbing c0 Heating Co., 138 NLRB 716. [3. As the State of Nevada has a right-to-work law, delete the pro- viso "except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as amended," from paragraph 1(b) of the Recommended Order and from the third indented paragraph of the notice to be posted. Also delete the proviso "except as authorized in Section 8(a) (3) of the Act, as amended" from the second indented paragraph of the notice to be posted.] 2 Both the Respondent and the General Counsel except to the Trial Examiner 's recom- mendation that employee Forest Young be denied backpay if he fails or refuses to accept an offer of reinstatement . We find merit in these exceptions. See The Rushton Company, 158 NLRB 1730, footnote 2. Accordingly , we adopt section V of the Trial Examiner's Decision , entitled "The Remedy," only to the extent that it provides for the award of back- pay and reinstatement under the usual terms and conditions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On charges filed by the American Federation of Casino and Gaming Employees, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board by the Acting Regional Director for Region 20 on September 15, 1965, issued an order consolidating cases amended , and consolidated complaint and notice rescheduling and setting hearing. Carson City Nugget Casino , Inc., was named the Respondent in the amended and consolidated complaint which alleged that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a)(1) and (3) of the National Labor Relations Act, as amended , herein called the Act. The Respondent filed timely answer denying that it had engaged or was engaging in the unfair labor practices alleged. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principal issues which have been presented to the Trial Examiner for con- sideration are: 1. Whether the Respondent violated Section 8(a)(1) of the Act (a) by promising employees insurance benefits if they refrained from participating in union activities; (b) by offering employees meal tickets at a 20-percent discount if such employees refrained from participating in union activities; (c) by promising to install and subsequently installing booths or tables in its restaurant for employees if they refrained from participating in union activities; and (d) by promising to provide employees with additional furniture and a door in its dealers' room if they refrained from participating in union activities. 2. Whether the Respondent on or about October 28, 1965, discriminatorily dis- charged its employee, Forest Young, because of his membership in or activities on behalf of the Union or because he engaged in other union or concerted activities for the purpose of collective bargaining or other mutual aid and protection On the issues framed by the amended and consolidated complaint and pursuant to notice, this case was heard by Trial Examiner Lowell Goerlich, in Carson City, Nevada, on March 3 and 4, 1966, and on April 5 and 6, 1966. At the hearing each party was afforded a full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally upon the record, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by me. On the record as a whole, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , Carson City Nugget Casino , Inc., sometimes referred to as the "Nugget," is now and has been at all times material herein, a corporation organized and existing under the laws of the State of Nevada with a place of business located at Carson City, Nevada, where it is engaged in the operation of a gaming casino. During the past year in the course and conduct of its business operations, the Respondent received gross revenue in excess of $500,000 and during the past year in the course and conduct of its business operations , the Respondent purchased and ieceived supplies valued in excess of $5,000 from other enterprises located within the State of Nevada, and which enterprises received goods and supplies directly from outside the State of Nevada I The Respondent is now , and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It will effectuate the purposes of the Act for juiisdiction to be exercised in this matter.2 II. THE LABOR ORGANIZATION INVOLVED American Federation of Casino and Gaming Employees is, and contrary to Respondent's denial, has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.3 111. THE UNFAIR LABOR PRACTICES The Alleged Violations of Section 8(a)(1) of the Act The General Counsel alleges in paragraphs VI and VIII of the amended and consolidated complaint that sometime in April 1965, the Respondent violated Sec- tion 8(a)(1) of the Act by promising employees insurance benefits, by offering employees a meal ticket that included a 20-percent discount on its restaurant food, by promising and installing booths or tables in its restaurant for employees, and by promising to provide employees with additional furniture and a door in its i These facts are drawn from a stipulation approved by the parties. 2 El Dorado, Inc., d/b/a El Dorado Club, 151 NLRB 579. 3 El Dorado, Inc, supra, footnote 16 of that decision. CARSON CITY NUGGET CASINO, INC. 535 dealers' room if its employees refrained from participating in union activities. Pertinent evidence relating to these allegations is as follows: On January 1, 1964, the Respondent acquired the Carson City Nugget Casino from W. Howard Adams and his brother, L. H. Adams. Each of the brothers is presently a stockholder of the Respondent and together own the Casino premises which is leased by the Respondent. While L. A. Stephan," president of the Respond- ent, and his son, Robert, own 131/2 percent and 271/2 percent of Respondent's stock respectively, no stockholder holds controlling interest in the Respondent. L. A. Stephan, Robert E. Stephan, G Rynd Miller, W. H. Adams, and L. H. Adams compose the board of directors. According to Donald K. Emery, secretary-treasurer of the Union, the Union commenced organizing the Respondent's employees in the middle of March 1965. These of ganizational activities occur i ed at the Respondents' snackbar during business hours. At the time Emery advised Casino Manager Ward that he was "there to solicit authorization cards." Ward replied that he "thought it would be a good thing for his employees as tar as he was concerned" and that "he thought they should have an organization " Ward also told Emery that he was a minor stock- holder of the club and that it was "all right for the Union to have a free hand as far as he was concerned " About 50 authorization cards were procured by Emery and Union Agent Woods. On March 29, 1965, a petition 5 for an election was filed with the National Labor Relations Board. Within the next day or two after the petition was filed, Emery contacted Casino Manager Ward. A meeting was held at which Ward was told that the Union had filed a petition with the National Labor Relations Board and that it represented a majority of the Casino employees and that it wanted to meet with the Respondent's representatives for the purpose of negotiating a contract. Ward replied that he was not the man who could enter into such an agreement. He referred the union representatives to L. A. Stephan. At this meeting Emery stated that Ward mentioned "that he did not oppose an organizing campaign in the estab- lishment In fact, he thought the employees did need such an organization." 6 On March 30, 1965, a meeting of the board of directors was held in the Sierra Room of the Nugget. The meeting was called to "clear the air." According to Adams the stockholders were engaging in considerable "bickering"'l and certain relatives of members of management were causing dissension, "ill feeling and mis- understanding" by "lies and stuff that they would bring or tell another employee." The continued bickering, which commenced at the time the Respondent acquired the Nugget, caused the Respondent's employees to become concerned and appre- hensive about their status. The meeting sought to effect rapport among the board members and the owners The minutes of the board of directors' meeting disclose that "[d]iscussion was held with the department heads for the business concerning business practices and procedures." A resolution was passed as follows- "Resolved: (1) All policy in operation of the corporate business shall be made by the board of directors. (2) The Department Heads of the corporation are directly responsible to and under the Board." It was further resolved that "The President and General Manager are authorized to suspend without pay any Department Head until the next regular Board meeting. If the Board determines the Department Head should be reinstated, such Department Head shall have full pay for the time suspended." The action of the board of directors further provided for the discharge of several employees who apparently were those to whom witness Adams had referred as causing dissension. 4 The spelling "Stephan" appears in the official corporate minutes of March 30, 1965, but appears in the record as "Stephens " 5 The Regional Director approved the withdrawal of the petition on April 5, 1965. Thereafter the Union demanded recognition on April 9, 13, and 15, 1965. Recognition was refused on April 19, 1965. The initial charge in the present case was filed on April 20, 1965 A second petition for an election was filed on April 23, 1965. 8 Ward's accolade of the Union at this time appears to negate the inference that Re- spondent was engaging in activities about the same time to cause its employees to refrain from union activities as alleged in the amended and consolidated complaint 7Adanis testified, "Well, there are nine owners and we were all going in nine different ways. Every one of us had his own idea, I guess, of running, the club without any real guide from the board of directors " 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the next day, according to Adams, a meeting was held with the casino employees 8 at 10 o'clock in the Sierra Room.9 About 50 employees were present among whom were dealers, pit bosses , boxmen, and shills. Present also were Howard Adams, Casino Manager Ward, and General Manager Bill M. Green. According to the credible testimony of George H. Chadwick, Adams opened the meeting by stating that, "he wanted to assure all Casino personnel that all dis- sension among the stockholders had been taken care of the day previous to that,1° that there wouldn't be this wholesale firing and hiring that had been going on previous to that; that we were going to get everybody straightened out." Chadwick also quoted Adams as saying that "[h]e wanted to tell us about the hiring and firing. We could quit worrying about that." The management had their discussion the day previous and had everything straightened out. "Andy Ward was going to run the casino, because they felt he was the best man for the job. We won't have any more worries about bad people 11 upstairs, about bad stories coming down stairs to get someone fired." Adams indicated that this situation would be corrected, stating, "Don't worry. We will take care of this now, because we have all our grievances settled with the owners." After Adams had concluded his remarks the meeting was opened for questions. During the question period, employee Georgetta, a dealer, asked about health insurance. Adams told the employees that the Respondent had "studied different policies down the last 2 or three years." 12 In this connection Adams said that one of the employees made a statement that if the employees joined the Union they would obtain a health insurance plan. Adams replied, "No doubt you will. If you got a health insurance plan at the Union, you wouldn't need a plan we would put in. If they are not in, we are still going to pursue this health and accident and try to get some health insurance for you people." 13 During the meeting employee- Williams asked why the employees could not receive a 25-percent discount for meal tickets since other clubs were allowing that amount. General Manager Green explained that the Respondent sold a meal ticket for 10-percent discount. Green said he "would look into it." After the meeting Green allowed a 20-percent discount on meal tickets for all Respondent's employees. .8 Casino employees refer to the unit of employees for which the Union petitioned, to wit: Included All casino employees employed by the employer at its Carson City, Nevada location. Excluded All employees of the employer covered by other valid collective bargaining agree- ments, all non-casino employees , office clerical employees , guards and supervisors as defined in the Act. 9 Adams explained that the meeting was being called because the employees had be- come "disturbed , unhappy" and "unsure of their jobs ," and that it was "necessary to let them know that our trouble was all settled" and that "peace and harmony among the members of the Board liad been achieved." Adams said that it was hoped that such in- formation would satisfy the employees and "everybody would settle down and go to work again." 10 Such testimony supports Adams' statement that the meeting was convened on the day following the board of directors' meeting. 11 "Bad people" referred to the "Eye in the Sky " who was stationed "up stairs" to observe and "protect the game" and "keep the employees from making mistakes." Appar- ently employees had complained of the alleged incompetence of the "Eye in the Sky." 12 The record reveals that since 1963 the Respondent has considered a health insurance plan for its employees . Surveys had been conducted among the Respondent's employees and bids for plans had been submitted to Respondent by various insurance companies. The plans were not limited to casino employees of the Respondent but included hostesses, cock- tail waitresses, waitresses , janitors, busboys, and all other employees . Since the Casino was sold about January 1, 1964, a health plan was not adopted. Shortly after the first of the year, 1965, the new owners of Respondent met with insurance agents to discuss a health insurance plan. A survey was again conducted among all employees of Respondent to submit to various insurance agencies so that they could present their proposals for a plan. An insurance program was not instituted by Respondent for its employees because of the charges filed against Respondent by the Union. 13 At this point in Adams' testimony I Inquired whether anything else had been men- tioned about the Union at the meeting. Adams replied: I said a little more, not much ; but kind of as a closing deal I wanted it made clear that the management didn 't care whether you joined the Union or not. It is your own business . Join it if you want to. We don't care. CARSON CITY NUGGET CASINO, INC. 537 According to Green someone at the meeting "mentioned that the food . . . was lousy in the restaurant , plus the service was worse than the food." Green replied that the Respondent was having problems in the restaurant and that it was trying to correct them. He said that the Respondent was trying to serve better food and that he would see what could be done "about fixing it to where [the employees] could get better service." At the time of the meeting , two booths and two stools at the counter were reserved for the employees . About a month after the meeting, two tables were reserved for the employees at the back section of the coffeeshop. According to Adams the eating location was changed because the Respondent "didn't feel that the employees should have the first table that you look at as you come into the coffee shop . and [t]hey are closer to the so-called service station and they get their coffee and their stuff quicker ." Under the new arrangement 12 employees rather than 8, as was the case under the old arrangement , were served at the same time. At the meeting, one of the employees mentioned that the dealers' room or employees' lounge, which was located directly above the entertainment stage, was too noisy and "needed a door on it." The employee was advised that the Respond- ent would "look into it." Later a door was installed . The Respondent had received no prior complaints about the noise. Adams testified that within the next few days similar meetings were held with employees of the Keno department , restaurant, kitchen, and bartenders, slot mechanics, and janitors. The purpose of these meetings ,14 likewise, was to let the employees know that there was "peace and harmony among the Board members and owners of the club ." Questions were also solicited from these employees. Upon the basis of the record I find no reason for doubting the veracity of Adams,15 and he is credited . Thus I find that the casino employees' meeting was called for the purposes recited by Adams. The fact that the date of the meeting occurred during the Union's organizational campaign and about the same time as the Union filed its first petition for an election on May 29, 1965, was coincidental rather than deliberate. I find no support in the record for the inference that the casino employees' meeting or any alleged benefits flowing therefrom were intended or utilized for the purpose of causing employees to refrain from participating in union activities . The record is barren of any proof that the Respondent at the time of the meeting possessed any union animus. Indeed , at the casino employees' meet- ing Casino Manager Ward, who allowed the Union to freely solicit on the Respondent's premises and thought the employees needed a union organization, was confirmed in full authority over the Casino. Any alleged benefits to employees resulting from the meeting were in furtherance of the Respondent's objective to restore peace and harmony which had been disrupted by bickerings and dissensions and was not for the purpose of causing employees to refrain from participating in union activities . The preponderance of the testimony does not support the allega- tions in paragraph VI and VIII of the amended and consolidated complaint; I recommend dismissal thereof. The Discharge of Forest Young Forest Young was hired 16 on September 22, 1965, as a security guard and was discharged on October 28, 1965.17 Assistant General Manager Reinhardt testified that the security guard's duties were twofold . The duties encompassed "the treat- ment of customers and the maintaining of proper order and demeanor throughout the club" and "internal security with regard to [the Respondent 's] employees in the handling of money and their integrity and honesty ." Elaborating upon these duties Reinhardt testified, "The security officer is required to constantly circulate 14 The amended and consolidated complaint makes no mention of any alleged unfair labor practices occurring in connection with any of these meetings 15 At the time the casino employees ' meeting was convened , Adams was in the process of retiring and spent very little time at the Respondent's establishment 16 Assistant General Manager Ray Reinhardt hired Young . Young had held four previous jobs as a dealer . When asked by Reinhardt why he had applied for the guard 's job, he answered "I need the work. The security job is fine." Reinhardt told Young that the uni- form they were using at the time was "a pair of black trousers , a white shirt, a black tie, and black shoes." The employee furnished the clothes. 17 Notice of Young's discharge was delivered to his home on the morning of October 28, 1965 , by Supervisor William Joseph Riordan as directed by Assistant General Manager Reinhardt. Riordan gave Young no reasons for his discharge. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD throughout the premises, observing-the patrons while they are enjoying themselves with our entertainment. Those who appear to be drinking to excess or becoming loud or boisterous or what have you are asked to quiet down so that any difficulty that might arise can-be spotted in advance and stopped before any trouble really begins. "There are also a number of doors and places throughout the club that are to be checked periodically. The doors are to be locked after certain hours of the day. Any time anyone goes to our warehouse area, past the swing shift time, the security officer is to go there and unlock the door and observe what is taken out and see that it is signed for and also see that the doors 'are relocked again upon departure of the person. "'He also is the person involved if there is any accidents, illness, or injury that occurs within the club, whether it be an employee or a customer. He is immedi- ately to make out a report with respect to the accident or illness and to do what- ever he deems necessary as far as relieving any injury or first aid or what have you or contact the management. If necessary, he calls an ambulance for the person and they are taken to the hosiptal. "[H]e will be of assistance in the transfer of money to increase or raise the slot bank in the slot cashiers' booth. The money will be transferred to him from the manager on duty from the vault . . . . he normally takes it to the slot booth and the cashier then signs for the same transaction. "He also would be involved in filling what we call the drawers or the individual change girl's banks. The cashier counts out the money-to him. He checks it. He puts it in the drawer and signs his name and the time and the date as to what security officer fills what bank at what time and how much money." The, security guard also assists the floor manager in the removal of the money from slot machines and stacks the bags of money in the money cart. He also helps the floor manager in. counting nickels, a task which is done by machine. He helps distribute and collect bingo cards. He is paid $2 an hour. Reinhardt testified' that, as "the last straw" incident, Young was discharged for discourteous behavior on October 23, 1965,18 in connection with the escorting of three elderly ladies from the club and out the back door. These ladies had been sitting in the club for a considerable time without purchasing anything. Reinhardt said the other reasons for Young's discharge were "criticism of his personal appear- ance,19 his nonperformance of his duties with respect to standing around, talking excessively, and the incident of having to ask him more than once to remove his badge from his belt and wear it on his shirt where it was supposed to be worn." '' The Respondent's reasons for discharge, of course, even if valid, are immaterial if the Respondent was also motivated by'unlawful discrimination.20 On October 25 and 26,' 1965, Young had engaged in union activities on the Respondent's premises during business hours. Young testified that on these dates he had asked "a few people at the club whether they would sign an authorization card." On one occasion Young talked to one of the change girls while off duty at the bar. Another time, while Young was on break, he talked to one of the Keno runners. On another occasion he talked to a girl while she was on duty and he was off duty. Young gave one of the girls a card. Several other employees also con- tacted Young. One of the girls whom Young solicited was Juanita Quartz. Juanita Quartz had been employed by the Respondent between June and Novem- ber 1965. Quartz testified that a "few days" before Young was discharged, Young asked her if she "wanted to join the Union." Quartz reported the incident to Assist- ant Manager Reinhardt.21' According to Quartz' testimony she told Reinhardt that 'B Nevertheless , Young continued work on October 25 and 26, 1965. 'B On the witness stand Young appeared as a courteous , neat, well-groomed person. 20 Even though a lawful cause for discharge is available it "is no defense where the em- ployee is actually discharged because of his union activities." N L.R B. v. Ace Comb Com- pany and Ace Bowling Co., Division of Amerace Corp ., 342 F.2d 841 , 847 (C.A. 8). We have repeatedly held that "if the discharge is because of union activity it is a violation of the Act even though a valid ground ' for dismissal might exist." AT L.R B. V. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). 21 Betty Pennington, Quartz' supervisor, testified that Quartz had reported the incident to her. Pennington advised her to "talk to Ray [Reinhardt ] or Bill [Green]." Pennington testified that Quartz "probably" mentioned an employee 's name in connection with the union solicitation. CARSON CITY NUGGET CASINO, INC. 539 she "had been approached and asked if [she] wanted to join the Union by Forest [Young]." She said she had been told "maybe it would be best if [she] talked it over with him first for fear that [she] would probably lose [her] job . . . ." Quartz asked Reinhardt what he thought she should do. Reinhardt replied, "I will take care of it." Reinhardt admitted that Quartz told him "that she had been approached to join the Union to sign a card" and had asked him whether it would "have any effect on her job" and "what should she do about it." Reinhardt replied, that "certainly it couldn't get her fired, because in the first place [he didn't] think her position had any jurisdiction in iegard to the Union," that she was "not classified as a casino employee," that she should "disregard it," and he "would take care of it." 22 Reinhardt did not specifically deny that Quartz had not mentioned Young's name as the union solicitor. In respect to the incident I credit the testimony of Quartz and find that prior to Young's discharge the Respondent possessed knowledge of Young's union partisanship.23 Jo Ann Frances Young, Forest Young's wife, likewise testified credibly.24 Mrs. Young testified that the Youngs entertained Marcel Salomon and his wife, Anai,25 at dinner at their home on the evening of October 27, 1965.26 During the course of the evening, according to Mrs. Young, Young asked Salomon "what he thought of the union." Salomon replied that "he had just come from a meeting that they had held at the Nugget" at which "[t]hey were just discussing the union." Salomon continued, "In fact, they were discussing Forest and his affiliation with the union." Young observed that "he didn't feel that they knew about his union activities" and that "he was going to discuss his union activities with Mr. Rein- hardt" who, he felt, liked him. Salomon replied that "they were discussing firing him . . because he was connected with the union and they knew this." 27 Mrs. Young further testified that the next morning Supervisor Riordan appeared around 7 o'clock at the Young's home. As Mrs. Young approached Riordan in the Young's living room, Young was "telling him he already knew what he was there for." 28 Mrs. Young related the conversation: Bill [Riordan] said he was sent there to let him go. My husband wanted to know why just to see if he might tell him. He said that he didn't know. Forest said, "It is because I am connected with the union. I had Marcel [Salomon] over for dinner last night He kind of gave me the hint . . . So, I told my husband why didn't he go in anyway-go to work-but this is when Bill Riordan said, `I was definitely sent over here to tell you not to come in to-night.' " 23 Supervisor Pennington testified that she heard Quartz say, "Will I lose my job over this"' and Reinhardt replied, "No." Pennington was "busy" and did not hear all of the conversation. 21 Such credibility resolution is based upon Quartz' demeanor, her lack of personal in- terest in the outcome of the litigation and the failure of Reinhardt to specifically deny that the name of Young was mentioned by Quartz. 21 Mrs. Young appeared as an honest, forthright witness whose attitude while on the witness stand disclosed a careful consideration for the truth It is my view that these factors outweighed any personal interest in the outcome of the litigation which she may have possessed. 21 Salomon and his wife have since become divorced. 20Marcel Salomon was the Respondent's floor manager, an admitted supervisor. n Salomon admitted that he visited the Youngs with his wife on the night of October 27, 1965 Salomon testified that he mentioned the visit to Reinhardt before he left work on October 27, 1965. According to Salomon, Young asked him what he "thought of the union " Young said, "that he thought of going to Ray Reinhardt" ; that he "thought Ray Reinhardt liked him, and he wanted to go up to Ray and tell him that he was secretary of the union." Young asked Salomon's opinion Salomon said he "didn't think that it would help him one way or the other." Salomon said that he "didn't see the purpose of it." Salomon denied any conversation relating to Young's impending discharge. Salomon reported his conversa- tion with Young to Reinhardt. 28 Riordan was asked, "Did Mr. Young make a statement to the effect he already knew he was being discharged." Riordan answered, "I think Forest did say something about it . ." Riordan was also asked whether Young indicated that he knew the reason for his discharge. Riordan responded, "Well, he might have had an idea " Whereupon Riordan was asked, "Did he relate it to you?" Riordan answered, "I do not recall." Riordan im- pressed me as an evasive witness. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing credited testimony and the record as a whole, I find that the Respondent discharged Forest Young because he engaged in orga- nizational activities for the Union while occupying the position of security guard. Controlling factors in this respect are: (1) the Respondent's knowledge of Young's' union activities; 29 (2) the timing of the discharge immediately after Young was discovered as a union partisan;30 (3) Supervisor Salomon's statement on Octo- ber 27, 1965, that "the Respondent was discussing firing [Young] . because he was connected with the union"; (4) the failure of the Respondent to give Young a reason for his discharge either at the time of his discharge or thereafter; and (5) the precipitous manner of notifying Young of his discharge. The Respondent's "real motive" 91 in discharging Young seems obvious; the Respondent did not want one of its guards 32 soliciting its employees for membership in the Union. In an establishment where the integrity of its employees is highly essential, it is under- standable, in view of the duties assigned to security guards, that the Respondent would demand absolute loyalty from its guards and would resist to the point of discharge a guard's allegiance to a union admitting to membership employees of the Respondent other than guards. A like persuasion no doubt influenced the House to include "police" within the definition of "supervisor" in the Taft-Hartley amend- ments to the National Labor Relations Act. The House observed ". . . there must be in management and loyal to it persons not subject to influence or control of unions . " 33 and ". . no one, whether employer or employee, need have as his agent one who is'obligated to those on the other side, or one whom, for any reason, he does not trust." 94 The Senate, however, disagreed with the House and a compromise was effected. As stated by Senator Taft: . the Senate rejected a provision in the House bill which would have excluded plant guards as employees protected by the act . . . Under the lan- guage of clause (3), guards still retain their rights as employees under the National Labor Relations Act, but the Board is instructed not to place them in the same bargaining unit with other employees, or to certify as bargaining representatives for the guards a union which admits other employees to mem- bership or is affiliated directly or indirectly with labor organizations admitting employees other, than guards to membership.35 Thus security guard-Young, as an employee within the meaning of the Act, was entitled to the rights and privileges set forth in Section 7 of the Act. Hence I find that the Respondent, by discharging Forest Young, was, in violation of Section 8,(a)(1) and (3) of the Act. - 2D In the light of the testimony of Quartz, Young, Reinhardt, and Pennington, I fix the date when the Respondent first gained knowledge of Young's union activities as October 26, 1965, upon which date Quartz reported Young's union activities to Reinhardt. Young testi- fied that he first solicited on October 25 and 26. Quartz testified, "After I told Ray Rein- hardt about being approached by Forest, well, he was fired the next day. The next day he wasn't at work." (October 27, was Young's day off.) 80 I have considered as incredible the Respondent's claim that the decision to discharge Young was reached, on October 23, 1965, the date of the "last straw" incident. Cf. Dixie Broadcasting Company, 150 NLRB 1054. Indeed the sequence of events negates such a claim. On October 25 and 26, 1965, Young first solicited employees for union membership on the Respondent's premises ; on October 26, 1965, the Respondent first learned of Young's union activities ; on October 27, 1965, Young was not at work (it was his day off) ; on October 27, 1965, the Respondent discussed discharging Young because of his union activities ; on the evening of October 27, 1965, Young revealed his union connections to Supervisor Salomon ; and on the morning of October 28, 1965, Young was notified at his home by a messenger sent for such purpose by Assistant Manager Reinhardt that he was discharged. 81 It is the "real motive" of the employer which, is decisive in an 8(a) (3) violation. N.L.R.B. v. Brown Food Store, 380 U.S. 278, 287. 82 The Respondent's antipathy toward exsecurity guard Young' s organizational efforts appeared in its order to security guard Love to escort Young, as 86'd, from the Respond- ent's premises while he was seated at the employees' table on November 5 or 6, 1965, shortly after his discharge. According to Love "86'd mean[t] . . . persons who are a nuisance, a bother, some constantly drunk . ... Except for his union affiliation, Young fitted none of these categories. Reinhardt described 86'd as referring to "a person being barred from the club . [o]n an indefinite basis." sa H. Rept. 245 on H.R. 3020, 1 Leg. Hist. 307 (LMRA) (1947). 84 Id. at 308. ' Remarks of Senator Taft, 2 Leg. Hist. 1541 (LMRA) (1947). CARSON CITY NUGGET CASINO, INC . 541 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations set forth 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 commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having also been found that the Respondent unlawfully discharged Forest Young on October 28, 1965, and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that Respondent remedy such unlawful conduct. It is rec- ommended that the Respondent'offer to Forest Young immediate and full reinstate- ment to his former or a substantially equivalent position and 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, by pay- ment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said periods to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis-Plumbing & Heating Co., 138 NLRB 716. However, for the same reason stated by the Trial Examiner in The Rushton Company, 158 NLRB 1730, 1737 which are set forth below,36 I recommend that if Forest Young is employed by an employer other than the Respondent on the date when* he is made a lawful offer of reinstatement and he fails or refuses, except in case of mental or physical disability, to accept such lawful offer of reinstatement, but chooses to continue in the employ- ment of such employer or another employer, he shall be barred from backpay for 31 "The thrust of every proceeding before the Board is to'effectuate the purposes of the Act. In Local 833, International UAW v. N.L.R B , 300 F.2d 699, 703 (C.A.D C.), it is said "reinstatement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy the Union . . . ... The United States Court of Appeals for the Fifth Circuit has said "Ob- viously the discharge of a leading union advocate is a most effective method of under- mining a union organizational effort" N L R.B. v. Longhorn Transfer Service, sup; a, at 1026. When an employee who is discharged because of his union sympathies refuses rein- statement, other employees are left with a sense of insecurity and lack of assurance that they, in fact, may join a union and remain an employee of the employer The return to employment of a union adherent is not only the final achievement of the Act's protection in respect to such employees but it is the most realistic and articulate demonstration of the Act's paramount protection to other employees. So important was the concept to the framers of the Act that reinstatement was specifically mentioned as a means of effectuating the policies of the Act ; backpay is discretionary." It follows, therefore, that the remedy of reinstatement does not produce the desired remedial effect unless the dis- criminatee (in this case [Young] accepts reinstatement and returns to employment. It seems equitable that the discriminatee, for whom the Act is invoked, should also con- tribute to the achievement of its purposes by accepting reinstatement, especially where, as here, without reinstatement, the remedy falls short of securing the correctives intended. The realities of the industrial world confirm that If the discriminatee refuses reinstatement, except for the deterrent visited upon the employer by the payment of backpay (which is sometimes of doubtful value), little is accomplished and the remedy "fizzles out." . . . To grant backpay under these circumstances . . . in this case-hardly results in the dissipation of the effects of the prohibited action. Cf. Local 60, United B,otherlwod of Carpenters and Joiners of America (Mechanical Handling Systems ) v. N.L.R.B., 365 U.S. 651, 655. In this case the deterrent to the Respondent resulting from the payment of backpay without the actual reinstatement of [Young] is outweighed many times in statutory accomplish- ment by [his] actual reinstatement." %s Section 10(c) of the Act which provides in part: . .. the Board . . . shall issue and cause to be served on such person an order requiring said person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or with- out back pay, as will effectuate the policies of this Act [Emphasis supplied.] 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the period of time that he was in the employment of such employer. I further recommend that if Forest Young is unemployed on the date when he is made a lawful offer of reinstatement and he fails or refuses, except in the case of mental or physical disability, to accept a lawful offer of reinstatement, he shall be barred from all backpay. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By unlawfully discharging Forest Young on October 28, 1965, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed them by Section 7 of the Act the Respondent has engaged 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 mean- ing of Section 2(6) and (7) of the Act. 6. The Respondent has committed no alleged unfair labor practices which have not been specifically found to have been unlawful herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any employee because of membership in or activities on behalf of the American Federation of Casino and Gaming Employees or any other labor organization. (b) In any like or similar manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist American Federation of Casino and Gaming Employees or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which it is found will effectuate the poli- cies of the Act: (a) Offer Forest Young immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Notify Forest Young if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Forest Young for any loss of pay he may have suffered by reason of Respondent's discrimination against him in accordance with the recom- mendations set forth in "The Remedy" herein. (d) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, social security records, timecards, personnel records and reports, and all other records relevant and necessary to deter- mination of backpay due and to the reinstatement and related rights provided under the terms of this Recommended Order. (e) Post at its Carson City, Nevada, establishment, copies of the attached notice marked "Appendix." 37 Copies of said notice, to be furnished by the Regional Direc- 3 In 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." CARSON CITY NUGGET CASINO, INC. 543 tor for Region 20, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered , defaced, or covered by an other material. (f) Notify the Regional Director for Region 20, in writing , within 20 days from the date of this Recommended Order, what steps Respondent has taken to comply herewith.38 IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges viola- tions of the Act other than those found in this Decision. 38In 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL offer Forest Young 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 to which he may be entitled by reason of the discrimination against him. WE WILL NOT discourage membership in American Federation of Casino and Gaming Employees or any other labor organization of our employees 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, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist the above -named or any other labor organiza- tion, 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 except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. All our employees are free to become or remain , or to refrain fiom becoming or remaining, members in good standing of American Federation of Casino and Gaming Employees or any other labor organization. CARSON CITY NUGGET CASINO, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-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 accordance with the Selective Service Act and the Universal Military Training 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 pro- visions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco , California 94102, Telephone 556-0335.