Sparks Nugget, Inc.

SPARKS NUGGET, INC. 1195 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, 1040 Boat- men's Bank Building, 314 North Broadway , St. Louis, Missouri 63102, Telephone 622-4156. Sparks Nugget, Inc. and American Federation of Casino and Gaming Employees. Case 20-CA-3741. November 18, 1966 DECISION AND ORDER On July 11, 1966, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respond- ent 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 cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief. 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 [Chairman McCulloch and Members Brown and Zagoria]. 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, briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner concluded that the Respondent violated Sec- tion 8(a) (1) of the Act of promulgating a rule forbidding union activities during nonworking time. The complaint alleges, however, that it is the Respondent's maintenance of this rule which constitutes a violation of the Act; the complaint does not allege that the promul- gation, which occurred prior to the limitation period of Section 10(b) of the Act, is such a violation. As the Trial Examiner also found, and I The Respondent's motion to reopen the record for the purpose of receiving additional evidence with regard to the Board' s jurisdiction herein is hereby denied. See Carson City Nugget Casino, Lee , 161 NLRB 532. 161 NLRB No. 111. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the record shows that the Respondent maintained this rule during- the 10 (b) period as alleged in the complaint, we find that the Respond- ent thereby violated Section 8(a) (1) of the Act.2 2. In view of the limited nature of the violations found herein, we do not agree with the Trial Examiner that a broad cease-and-desist order is warranted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Sparks Nugget, Inc., Sparks, Nevada, its officers, agents,. successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining rules forbidding union activities during nonwork- ing time. (b) Granting paid vacations for the purpose of counteracting the- union activities of its employees; provided, however, that nothing- herein contained shall be construed as requiring the Respondent to revoke any vacation benefit it has heretofore granted. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist American Federa- tion of Casino and Gaming Employees, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in 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 the Board finds necessary to effectuate the policies of the Act : (a) Post at its premises at Sparks, Nevada, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 See Higgins Industries, Inc., 150 NLRB 106, 107, footnote 2. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." SPARKS NUGGET, INC. 1197 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 maintain rules forbidding union activities during nonworking time. WE WILL NOT grant paid vacations for the purpose of counter- acting the union activities of our employees, but we are not required to revoke any vacation benefit we have heretofore granted. We WILL NOT in any like or related 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 American Federation of Casino and Gaming Employees, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. SPARKS NUGGET, 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 Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard before Trial Examiner Martin S. Bennett at Reno, Nevada, on February 15 and 16, 1966 . The complaint 1 alleges that Respondent, Sparks Nugget, Inc., has engaged in unfair labor practices within the meaning of Section ,8(a)(1) of the Act. Able briefs have been submitted by the General Counsel and Respondent? 1Issued November 16, 1965 , amended at the hearing , and based upon charges filed August 16 and November 3, 1965, by American Federation of Casino and Gaming Employ- ees, herein called the Union. 2 Subsequent to the close of the hearing , the General Counsel and Respondent jointly moved for the correction of certain errors in the transcript of testimony . The motion is hereby granted and the pleading is received in evidence as Trial Examiner 's Exhibit 1. Other errors , including the transposition of speakers , are present ; further corrections are ,not deemed necessary because a perusal of the record reflects the true sense thereof 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Sparks Nugget, Inc. is a Nevada corporation maintaining a place of business at Sparks, Nevada, where it operates a gaming casino and, on the same premises, cock- tail lounges, a theater restaurant, restaurants, and motel accommodations . It enjoys annual gross revenues in excess of $500,000 and purchases and receives goods and materials valued in excess of $50,000 per annum from firms which receive same directly from points outside the State of Nevada. Respondent contends that the Board lacks jurisdiction over these operations because its business is wholly intrastate in character. It urges further that, assum- ing jurisdiction, the Board should decline to assert it because gaming is no different than horseracing over which the Board has declined to assert jurisdiction. See, e.g., Walter A. Kelley, 139 NLRB 744. Respondent has adduced evidence that the tax revenues of a number of States from horseracing are far in excess of the gaming revenues enjoyed by Nevada. It points to the extensive regulation of gaming by the State of Nevada and stresses that these operations, unlike horseracing, are confined to one State without inter- state movement of equipment, personnel such as trainers and jockeys, parapher- nalia and trucks. However, a recent decision by the Board treats extensively with most of the fac- tors raised by Respondent. El Dorado, Inc., 151 NLRB 579. The Board there noted that the gaming industry in Nevada directly employed 39,000 persons and supplied income indirectly to an additional 77,000, was instrumental in attracting over 2& million tourists annually to the State by a vaiiety of interstate carriers, and gener- ally supported 60 percent of the economy of the State. I deem this expression of policy by the Board to be binding upon me and find that the operations of Respond- ent affect commerce within the meaning of Section 2(6) and (7) of the Act. See N.L.R B. v. Barrah's Club, 362 F.2d 425 (C.A. 9). II. THE LABOR ORGANIZATION INVOLVED In El Dorado, Inc., supra, the Board expressly found, and the present record likewise discloses, that American Federation of Casino and Gaming Employees is a labor organization in which employees participate and that it exists for the purpose of dealing with employers concerning wages and other conditions of employment. I accordingly find that the Union is a labor organization within the meaning of Section 2(5) of the Act. See Space Services International Corp., 156 NLRB 1227. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Respondent has approximately 981 employees in its gaming casino. Except for approximately 449 culinary workers engaged in food and bar operations and who are represented by another labor organization, these employees were not organized prior to the period under consideration herein when the newly formed Union under- took an organizational campaign among various gaming casinos in the State of Nevada; this case, it would seem, is one of many stemming from this organiza- tional campaign. An indication of the size of Respondent is the fact that it operates various gam- bling games, approximately seven restaurants, a theater restaurant with top name entertainers which seats approximately 750, and approximately 700 slot machines with attending mechanics and change girls. Respondent's officials include, in descending authority, President and major stockholder John Ascuaga; General Manager Lee Frankovich; Assistant General Managers Glenn Carr and Harold Pepple; and Frank Arostegui and John Busby, respectively, casino and keno department managers. While the evidence in this area is far from definitive, according to Secretary- Treasurer Donald Emery of the Union, organizational activity at various casinos in the Reno area commenced in January or February of 1965 . In March an office was opened in Reno. In January 1965, Leroy Grant became an organizer for the Union. He variously testified that he commenced organizational activities among the employees of SPARKS NUGGET, INC. 1199 Respondent "in the middle of April"; that he started talking with dealers on April 14; that he engaged in organizational activity at the premises of Respondent on April 14 or 15; that he obtained signed authorization cards from a substantial number of employees, this number rising to over 100 by April 28; and that he obtained most of these cards on one day, approximately April 14 or 15. Respond- ent in turn contends that it first learned of these union activities at approximately 8:15 p.m. on April 15 when organizers were observed on its premises. It also points to the fact that a petition for certification of representatives, in Case 20-RC-6378, was not filed until April 28, 1965. The issues raised here are whether (1) on or about April 15, 1965, Respondent announced a vacation program effective May 1 for certain of its employees in order to induce them to refrain from engaging in union activities; (2) on or about April 15, 1965, Respondent threatened employees with a reduction in profit-sharing and health benefits in order to induce them to refrain from union activities; and (3) Respondent has maintained a no-solicitation rule which violates the Act because it impinges upon union activities on Respondent's premises during nonworking time. B. The no-solicitation rule During 1964, Respondent posted at various bulletin boards throughout its prem- ises the following notice: COMPLAINTS REGISTERED BY SOME OF OUR EMPLOYEES REGARDING CONTACTS MADE BY SOLICITORS DURING WORKING HOURS IN WORKING AREAS REQUIRE THAT THIS STATEMENT BE AGAIN ISSUED TO REAFFIRM THE NUGGET'S POLICY REGARD- ING SUCH MATTERS. EMPLOYEES OF THE NUGGET ARE ALLOWED TO SOLICIT OR TO DISTRIBUTE LITERATURE ONLY ON THEIR OWN TIME IN NON- WORKING AREAS. SOLICITATION OR DISTRIBUTION OF LITERA- TURE BY NON-EMPLOYEES IS, OF COURSE, PROHIBITED ON THE NUGGET PREMISES. These were removed or disappeared at an undisclosed date prior to February 1965. On or about February 15, 1965, Respondent posted the following notice at all seven bulletin boards on its premises: TO ALL NUGGET PERSONNEL: WE WANT TO AGAIN REMIND ALL PERSONNEL, THAT IT IS STRICTLY AGAINST MANAGEMENT'S POLICY TO HAVE ANY SOLIC- ITATIONS OF ANY NATURE IN THE PREMISES OF THE NUGGET AT ANY TIME, WITHOUT PRIOR APPROVAL OF MANAGEMENT. THIS APPLIES TO ALL KINDS OF SOLICITATIONS SUCH AS: DONA- TIONS FOR CHARITIES, DANCES, INDIVIDUALS, ORGANIZATION MEMBERSHIP, OR ANY BENEFITS WHATSOEVER. IF ANY INDIVIDUAL FEELS THAT SOMETHING IS EXCEPTIONALLY WORTHWHILE, HE SHOULD FIRST MAKE HIS REQUEST TO MAN- AGEMENT TO GET PRIOR APPROVAL BEFORE ANY ACTION IS TAKEN. THIS HAS BEEN A STRICT HOUSE RULE FOR A LONG TIME, SO PLEASE COMPLY WITH IT AS WE DO NOT WANT TO CAUSE EMBARRASSMENT TO ANYONE. Pursuant to advice from a local employer's council, five of these were removed in May 1965. During an inspection of the premises in September, the other two were discovered and removed ; it would seem that these had been overlooked in May. The notice has not been posted since and it is this 1965 rule which the Gen- eral Counsel attacks herein. General Manager Frankovich claimed that the 1965 rule was posted to put a stop to numerous requests for donations which interfere with Respondent's business. He cited the Red Cross, Boy Scouts, and United Fund as examples. He claimed fur- ther that the notice was aimed at outside representatives and nonemployees and had nothing to do with union activities. Frankovich was asked to explain why the 1964 notice was changed in 1965 so as to prohibit all solicitations on company premises without employer approval, but answered only that the big problem was the outside solicitations . This of course ignores the fact that the entire thrust of the 1964 notice was to employees; that 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no organizational campaign in 1964; that there was one in 1965 although Respondent disputes knowledge thereof at the time of posting of the notices; and that the notice makes specific reference to "organization membership." Respondent has not made any announcement , oral or written, to employees gen- erally which revokes or modifies the rule or assures employees of the right to solicit on their own time in behalf of the Union or otherwise . See Stoddard-Quirk Manu- factu,ing Co., 138 NLRB 615. Indeed , the mere physical removal of an invalid no-solicitation rule does not dispel its inherently coercive effect. See G & V Elec- tric Specialty Co. v. N.L.R B., 360 F.2d 873 (C.A. 7); Matthews & Co. v. N L.R.B., 354 F.2d 432 (C.A 8); and Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96 (C.A. 7). True, there is evidence that employee Rosager was reprimanded in July 1965 for speaking to another employee while the latter was on duty and that on the follow- ing day, Rosager was told by management to confine her discussions of unions to nonworking time. The simple answer still is that the inherently restraining and coercive effect of the rule has not been disavowed to the employees in general, the precise group originally subjected thereto. Respondent has argued in its brief that because of the special nature of its busi- ness, not unlike a retail department store, it could preclude all solicitations within the gaming casino itself at all times. I believe that the present record does not pre- sent a square issue to me of a choice between business and nonbusiness , gaming or nongaming, or selling or nonselling areas. Accordingly, I do not treat with that as such herein . I similarly do not decide whether a coffee shop open to the public in this gaming casino may be equated with a department store selling area in which union conversations by off-duty employees may be restricted and pass only on the rule as promulgated .3 I find that Respondent's 1965 rule is too broad, impinges upon the rights guar- anteed employees under Section 7, and is violative of Section 8(a)(1) of the Act. See Brewton Fashions, Inc., A Division of Judy Bond V. N.L.R.B., 36 F.2d 8 (C.A. 5), enfg. 145 NLRB 99, and American Coach Co., 158 NLRB 415. C. The vacation plan For several years prior to May 1965 , all of Respondent's employees received paid vacations except those in the keno , casino, and stage departments . As of May 1, 1965, this last group totaled 193, consisting of 68 keno, 112 casino, and 13 stage employees. The employees then receiving vacations numbered 788. This was a uni- form plan with 1 week's paid vacation after 1 year of employment and 2 weeks after 2 years or more. The General Counsel claims that Respondent extended this plan to the keno, casino, and stage employees to counteract the union organizational campaign. Respondent contends that the matter had long been considered and that with improved business conditions in 1965, a decision was made to extend vacation bene- fits to the remaining employees . It has adduced evidence that supervisors in the casino and keno departments had for some years complained to owner John Ascu- aga about this disparity and had regularly been told by him that the matter would be considered when business conditions so warranted .4 Respondent's independent accountant and financial counselor , Carlos Brown, tes- tified that this topic had long been discussed and recalled a conversation with Ascu- aga in February 1964. At that time, because of poor business in the 4-month period ending January 31 , 1964, Ascuaga decided to hold the matter in abeyance. One year later, on or about February 15, 1965 , according to Brown, Ascuaga announced his decision to go ahead with the plan because of greatly improved busi- ness and instructed Brown to work out a plan together with Comptroller George Vucanovich ; the latter did not testify herein. This was considered a major project because, according to General Manager Frankovich , "A decision of this nature takes a lot of planning." And the testimony adduced by Respondent is to the effect that it did receive much planning, although the precise details are sparse. Thus, in addition to Brown, Frankovich and Carr were personally assigned to the development of a plan by Ascuaga. All worked on the problem and at least four separate formulas were given time by Assistant Gen- 3 There is a bare reference in the record to an employees' coffee shop. 4 As testified by General Manager Frankovich, Casino Manager Arostegui, Assistant General Manager Carr, and Keno Manager Busby. SPARKS NUGGET, INC. 1201 eral Manager Pepple, Floor Manager Sheehan, Comptroller Vucanovich, and Ron Shearer, head of the payroll department. It would seem that the plan Brown was to develop would have been a fifth, but he did not carry through. The various witnesses for Respondent pegged the arrival at a vacation plan for- mula in the vicinity of April 15. According to Frankovich, the problem had been "licked" as of the time Ascuaga left on a trip several days before April 15, and "Mr. Ascuaga" was going to announce it when he returned. Arostegui testified simi- larly about a management meeting 2 or 3 days before April 15 "when all the plans were formulated into one final plan," with May 1 as the effective date. Assistant Manager Pepple testified that the plan was close to finalization at the end of March, and that as far as he knew, a "final" formula had been worked out as of April 15. The employees were advised of the vacation plan at five employee meetings held between 10 a.m. and 7 p.m. on April 15. Each meeting took approximately 30 min- utes and various topics including the vacation plan were discussed. Although origi- nally testifying otherwise, Frankovich ultimately testified that the employees attend- ing these meetings included not only the keno, casino, and stage employees, but also employees of other departments although not all. He did recall employees of the slot machine department being present, they totaling approximately 139 in number. This is consistent with the testimony of Assistant General Manager Carr that employees of the slot machine department as well as other employees attended. At these meetings, which are held irregularly two to four times a year, Owner John Ascuaga customarily addresses the employees. On this occasion, Ascuaga decided to leave town to visit his mother and assigned this chore to Frankovich about 2 days before April 15. According to the latter, and I so find, Ascuaga stated the topics he wished discussed and Frankovich made appropriate notes thereof in his own writing. This list is in evidence and reflects (1) an explanation why Ascuaga was not pres- ent; (2) a summary of prospective developments with six specific topics, including profit-sharing but not the vacation plan; (3) a discussion of the areas in which employees were to park their cars; (4) a criticism of employees who had taken a bad check in payment of gambling losses in the amount of $2,000; and (5) a note to have Carr present because he was familiar with Respondent's profit-sharing plan. Frankovich had this list with him at the five meetings on April 15, together with two other sheets of paper. One was the new show schedule; the other separate sheet of paper bore the topic of paid vacations; this indicating that Frankovich was to announce the new vacation plan. He testified at one point that Ascuaga wanted him to discuss this vacation plan first. According to Frankovich, he followed the same procedure at all five meetings. He went down the list and explained why Ascuaga was absent; he discussed the new shows coming in, Respondent's new convention hall, and explained Respondent's profit-sharing plan for the benefit of new employees. He next explained Respondent's group insurance plan. He then either discussed the summer competition at Lake Tahoe or the vacation plan. As is readily apparent, this is a departure from his prior testimony that Ascuaga wished him to treat initially with paid vacations because it was the most important item. He then discussed the remaining items on the list. Frankovich admitted that at one of these meetings on April 15 an employee asked if "union activity" had anything to do with the announcement of paid vaca- tions. His answer was that it did not, that Respondent had been working on this plan for a long time and "It had nothing to do with it as far as the Union was con- cerned. It was up to them [presumably the employees]." 5 After the last meeting, at approximately 8:15 p.m., Frankovich was advised that someone in the hall adjacent to the rear entrance used by a majority of employees 5 This apparntly was not in incident concerning which employee Paul Hayes testified. Hayes, a keno writer, attended the 7 p in. meeting and complained about low earnings. To this, Frankovich allegedly replied "you cannot afford to gamble. Even if you get a union, there will be no pay raises because we cannot afford to give one." Frankovich's version was solely that he told Hayes that he would get a raise in due course and he generally denied referring to the Union at any of these meetings. Carr, who was present, testified that Frankovich, in effect, made no reference to the Union. As noted later, this query appar- ently took place at the 11 a.m. meeting. 264-188-67-vol. 161-77 1202 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD was contacting employees . Frankovich and Assistant Manager Severson spoke with the man, organizer Leroy Grant, ascertained that he represented the Union, and told him that he could not carry on this activity on company premises . Grant rounded up two colleagues and left. Two days later, Frankovich and Carr forbade the union representatives to conduct organizational activities on Respondent's parking lot and they immediately transferred their activities to the street. Around the end of April, the following was posted on the plant bulletin board: IMPORTANT NOTICE TO: ALL CASINO AND KENO EMPLOYEES EFFECTIVE MAY 1, 1965 THE NUGGET WILL HAVE THE FOLLOWING VACATION POLICY FOR ALL CASINO AND KENO EMPLOYEES: .. THOSE OF YOU WITH ONE YEARS EMPLOYMENT AS OF MAY 1sT WILL RECEIVE ONE WEEKS PAID VACATION. . THOSE OF YOU WITH TWO YEARS OR MORE AS OF MAY 1ST WILL RECEIVE TWO WEEKS PAID VACATION. . DUE TO THE FACT THE SUMMER TOURIST SEASON WILL SOON BE HERE, IT MAY BE NECESSARY FOR SOME OF YOU TO TAKE YOUR VACATION DURING THE FALL. (S) JOHN J. ASCUAGA Several days later the following notice was posted in the same area: TO: ALL EMPLOYEES FROM: JOHN ASCUAGA SUBJECT: VACATIONS MANAGEMENT IS ANXIOUS TO HAVE OUR VACATION SCHEDULES AT THE MOST PRACTICAL TIME FOR EVERYONE. DUE TO THE NATURE OF THE BUSINESS, AND IN ORDER THAT ALL SHIFTS WILL BE PROPERLY SCHEDULED AND MANNED, VACA- TIONS SCHEDULES SHOULD BE SET FROM OCTOBER 15 THROUGH JUNE 15. IT IS SUGGESTED THAT EMPLOYEES DISCUSS WITH THEIR DEPARTMENT HEADS, THE BEST POSSIBLE TIME DURING THIS PERIOD FOR THEM TO SCHEDULE THEIR VACATIONS. EFFECTIVE JULY 1, 1965, ALL VACATION CHECKS WILL BE ISSUED AT THE TIME YOU LEAVE ON YOUR VACATION. YOU SHOULD PLAN TO GO WITHIN ONE YEAR FROM THE DATE IT IS EARNED. THE PERIOD FROM OCTOBER 15 TO JUNE 15 GIVES EVERYONE A LONG LEEWAY TO SCHEDULE THEIR VACATION AT A MOST CON- VENIENT TIME FOR THEM. YOUR COOPERATION IN THIS MATTER WILL BE APPRECIATED. It is undisputed that this plan is the identical plan enjoyed for some period of time by the other employees in this operation. Conclusions While I believe that requests for the extension of paid vacations to those not receiving them had long been made by some , there are a number of factors which cast considerable doubt on Respondent's explanation that this was done on April 15 pursuant to a long considered plan and developed over a period of 2 months. Indeed, there is much evidence demonstrating that the plan was devised and announced most hastily without details, precisely contrary to Respondent 's basic premise. ( 1) Despite the plethora of evidence that much activity had been carried on by a number of management representatives on four or five separate plans, the simple fact is that on April 15 , Respondent did not have the details of the plan. Indeed, as Frankovich testified, he told all the assembled employees that he "didn't have all the details." But the actual plan in theory was quite simple , with 1 week of vaca- tion after 1 year of employment and 2 weeks of vacation after 2 or more years of employment and this could be stated most briefly and succinctly. (2) The absence of vacations from the list of topics prepared by Frankovich as he conferred with Ascuaga prior to April 15 is significant . For, according to Franko- vich, the new vacation plan was "the principal reason for the meeting ," although he SPARKS NUGGET, INC. 1203 later broadened it to one of the principal reasons. The placing of the plan on a separate sheet of paper, no longer in existence, is obviously more consistent with a hasty decision to announce a plan with, significantly, no details. (3) Throwing further light on the foregoing is the testimony of Assistant Mana- ger Arostegui, one of those who sought vacation benefits for some years, that at a meeting 2 or 3 days before April 15, all the plans were formulated into one final plan, and "There was a discussion of what day the eligibility . . . would start." He made reference to the specific details of the plan with a May 1 eligibility date. Yet, this was not forthcoming to the employees until approximately May 1. (4) To the same general effect, is the testimony of Assistant Manager Pepple that, in the last part of March, the plan was "very close to the finalization" and that, so far as he knew, a final formula, although not definite, had been worked out as of April 15. (5) Contrary to all the forgoing was the testimony of Assistant General Manager Glen Carr who attended the April 15 meetings, that a definite vacation plan was not "set" until the third week of April and about a week after the April 15 meeting. (6) This presents for consideration the work product of Carr in developing his plan and introduced in evidence by Respondent. It is a curious document consisting of four pages; the first and second pages are not numbered, the third and fourth are numbered page two and page three, respectively. It is readily apparent that page one is superimposed upon page one of a three-page document. Page one bears the fol- lowing caption: SUBJECT: Vacation Plan for Casino and Keno Employees TO: JOHN ASCUAGA Page two bears the identical caption with the two lines transposed. Three of four references [typewritten] to 1964 on the first page have been altered in ink to 1965. Carr's explanation that this might actually be page four is untenable. I am unable to accept this as substantial evidence of a plan prepared by Carr in March 1965. (7) In addition to the absence of details of the plan for employees prior to May 1, I take note of the fact that employees were later asked not to take their vacations until after October 15. This is consistent with the General Counsel's argu- ment that the unseemly haste in announcing the nondetailed plan, not to be enjoyed for 6 months, logically stems from conduct calculated to counteract the Union's cur- rent organizational efforts then reaching a peak. (8) It is undisputed that employees of other departments who already enjoy paid vacations were present at the April 15 meetings. And the topics listed by Frankovich on his list of matters to be discussed were companywide in their application. With paid vacations purportedly listed on a separate sheet of paper, this is more consistent with the last minute addition of a suddenly relevant and timely topic to the agenda of a previously planned meeting for employees in general. The very fact that five meetings were deemed necessary so indicates. Compounding the foregoing is the claim that this topic, paid vacations, was the most important to be discussed that day. Yet, it was absent from the planned agenda. (9) On May 1, after some months of concerted and concentrated efforts by many, Respondent publicized on its bulletin board a plan which was in all respects identical with the long existing plan covering the remainder of its employees. I am at a loss to comprehend why the details of this plan, if they existed, were not at least stated on April 15. This ties in with the testimony of Frankovich that he did not then have the details. As the top representative of management, next to the owner, and indeed the top representative on the scene on April 15, the inference is warranted that if the details had been set he would have been privy to this informa- tion. This lends support to the claim of the General Counsel that the details were not then established and were in the process of hasty formulation. (10) Aside from certain statements attributed to Frankovich by witnesses for the General Counsel which establish knowledge of the union campaign, there is also the following: Assistant Manager Arostegui, who manages the casino proper on one shift, admitted that he was aware of the organizational campaign by the Union after "the latter part of March, the early part of March-somewhere in March." This was based upon rumors as well as the conduct of employees who abandoned con- versations as he approached them. (11) As noted, Frankovich admitted that at one meeting on April 15, an employee asked whether the granting of paid vacations was related to union activities and replied that it did not because the matter had long been under consideration. This corroborates the testimony of Christa Lee, a keno writer who attended the 11 a.m. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, that Frankovich was asked this question and replied "No, it has nothing to do with it," that Respondent had long planned this move and that it had not pre- viously been able to do so. The General Counsel points out that Frankovich's response is not consistent with that of one who had no knowledge of union activities and urges that it reflects knowledge of union activities. It would seem, as he contends, that one ignorant of union activities among his employees, would have responded with a query such as "What union activities?" rather than tacit acceptance of a statement indicating that they were being carried on. (12) Respondent presented the testimony of Arostegui that, upon returning from a vacation in late December 1964 or early January 1965 , he complained to Ascuaga that his vacation had been expensive . Ascuaga replied "Well, maybe this time next year it will be better." Arostegui assumed that Ascuaga was referring to paid vacations. Inasmuch as Respondent has -a continuing program of cost control and a continu- ing audit with accountant Brown on which Brown meets with Ascuaga quite often, I consider this statement to be nonprobative . Stated otherwise, it lends itself equally to the expression of a hope that as of December 1965 or January 1966, paid vaca- tions would have been extended to all employees . Indeed, this tends to disclose the haste behind the April 15 announcements. To sum up, organizational activity by the Union came to a rapid head on April 15 with a number of employees signed up either that or the previous day. There is an abundance of evidence disclosing that Respondent came up most hastily with this vacation plan, contrary to its contention that it was the culmination of a long effort. True, I believe that Respondent had given consideration for some time to the broadening of its vacation plan, but it had kept the matter in abeyance . The fact that no details were available on April 15, and that as of May 1, Respondent came up with the identical plan already in existence throughout the remainder of its oper- ations supports this view. It is obvious that the employees affected by the announcement of this plan would be strongly susceptible to union blandishments in this area . I find, on a strong pre- ponderance of the evidence, that Respondent instituted this vacation plan on April 15 to counteract the union activities of its employees and that it has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guar- anteed by Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, and N.L.R.B. v. Universal Packaging Corporation, 361 F.2d 384 (C.A. 1).6 D. Threats,of loss of benefits The complaint was amended at the hearing to include an allegation that Respond- ent threatened employees with reduced profit-sharing and health benefits to induce them to refrain from engaging in union activities. Here as well, reliance is placed by the General Counsel solely upon statements allegedly made by Frankovich on April 15, 1965. The evidence discloses the following: Paul Hayes, a keno writer on the swingshift, attended the 7 p.m. meeting and estimated 100 to 200 to have been present. He attributed the announcement of a vacation plan, previously discussed, to Frankovich who then stated that if a union entered the picture and made demands, Respondent "may have to cut back" on existing benefits such as profit sharing and hospital insurance. However, Hayes conceded that the profit-sharing plan is regularly mentioned at employee meetings so that new employees can be acquainted with these benefits. This ties in with the testimony of Frankovich as to the purpose of the reference. Frankovich also testified that the testimony attributing to him a reference to cut- ting back on these benefits was "100 percent falsehood." The record further discloses that Hayes furnished an affidavit to the General Counsel on September 2, 1965, well before his testimony herein. Therein, he deposed that Frankovich said something about the fact that Respondent "had a health insurance plan and a profit sharing plan, and we needed no union . . . I do not recall that Frankovich made any statements to the effect that if the union came in, the management would have to reduce the existing benefits." 'Hayes then testi- fied that discussion with fellow employees, subsequent to his giving the affidavit, 6It is not intended by this finding to bring about any changes in existing conditions of employment. SPARKS NUGGET, INC. 1205 had served to refresh his recollection and that he now recalled the statement'he attributed to Frankovich. Betty Rosager, a blackjack dealer on the swingshift who apparently attended a different meeting than Hayes,7 testified that she was at a meeting "before the middle of April" when someone asked if paid vacations could be granted. She first learned that they had been granted through an announcement on the bulletin board near the end of April. Her recollection is obviously amiss because, on this occasion, she attributed to Frankovich the statement that paid vacations were impossible but might be worked out in the near future. This, of course, was not so because it is undisputed that Respondent announced paid vacations on April 15. It was at this meeting that Frankovich allegedly expressed awareness of the organizational campaign. He stated that the employees had a "good deal," pointing to the profit-sharing and insurance benefits. He then added that with a union they might not be "better off we might be worse off, and take less pay, and be out on strikes, not working for a long time." I do not believe that her testimony lends substantial support to this allegation of the complaint. ' Finally, Christa Lee, a keno writer on the swingshift, testified about the 11 a.m. meeting she attended on April 15. She claimed that Frankovich made a reference to the union activities, referred to a policy of no-solicitation during working hours and proceeded to announce the paid vacations. He then allegedly said that if the Union came into the picture with higher wages, there was a possibility that some existing benefits such as the profit-sharing plan would have to be cut if the budget did not permit and "if there is a need to do it." Here, as well, Frankovich denied the remarks, testifying that questions on insurance and profit sharing had been turned over to Carr for response. The latter testified that Frankovich made no threats of reduced benefits in this area. In my view, the testimony of Rosager is of little help to the General Counsel herein and that of Hayes is substantially weakened by his affidavit. I do not con- sider the remaining testimony to constitute substantial evidence in support of this allegation and believe that it would constitute straining to rely thereon. And, in any event, the remedy hereinafter recommended would be relatively unchanged. I shall, therefore, recommend that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III and occurring in connection with its operations set forth in section I, above, have a close, intimate, and sub- stantial 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As heretofore set forth, Respondent strongly urges that it is not in commerce and, further, that the Board is engaging in class legislation by asserting jurisdiction over its operations. Assessing the above-found unfair labor practices against this background, it is concluded that a broad cease-and-desist order is warranted in order to effectuate the policies of the Act and to prevent further violations thereof. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Sparks Nugget, Inc., is an employer within the meaning of Section 2(2) of the Act. 1. American Federation of Casino and Gaming Employees is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By promulgating a rule forbidding union activities during nonworking time, and by granting paid vacations in the context of a union organizational campaign, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. T Hayes attended the 7 p.m. meeting. It would seem, but it is not clear, that Rosager attended one at 6 p.m. 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not otherwise engaged in unfair labor practices. [Recommended Order omitted from publication.] Madison Brass Works, Inc., and Surf, Inc., Respondents and Lodge No. 1406, International Association of Machinists and Aerospace Workers, AFL-CIO, Charging Party. Case 30-CA- 312. November 18, 1966 DECISION AND ORDER On May 25, 1966, Trial Examiner Melvin Pollack issued his Deci- sion in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondents filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief as well as a brief in support of the Trial Examiner's Decision,,- and an answering brief was thereafter filed by the Respondents. 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 made by the Trial Examiner 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 Respondents' exceptions and brief,2 the General Counsel's cross-exceptions and brief, the Respondents' answering brief to the General Counsel's cross-exceptions and brief, and the entire rec- ord in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.3 [The Board adopted the Trial Examiner's Recommended Order.] 1 Respondents filed a motion to strike the General Counsel 's brief in support of the Trial Examiner's Decision as not being timely filed . Respondents' motion is hereby granted, it being clear the aforesaid brief was not filed within the period prescribed by the Rules and Regulations of the Board. 2 The Respondents have excepted to the credibility findings of the Trial Examiner on the basis that they are contrary to the evidence . After a careful review of the record, we conclude that the Trial Examiner ' s credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly , we find no basis for disturbing them. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 3 Member Brown agrees with the Trial Examiner ' s findings that all the authorization cards are valid and establish the Union 's majority status , but does so for the reasons set forth in his separate statement in the case of Dan Howard Mfg. Co., and Dan Howard Sportswear, Inc., 158 NLRB 805. 161 NLRB No. 104.