Primadonna Club

PRIMADONNA CLUB 111 Primadonna Hotel , Inc., d/b/a Primadonna Club and American Federation of Casino and Gaming Employees . Cases 20-CA-3733 and 20-CA-3901 May 31,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 16, 1966, Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and a brief in answer to the General Counsel's cross- exceptions. The General Counsel filed a brief in answer to the Respondent's exceptions, cross- exceptions to the Trial Examiner's Decision, and a brief in support of cross-exceptions. 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. 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 entire record in this proceeding, including the Trial Examiner's Decision, the Respondent's exceptions, the General Counsel's cross-exceptions, and the briefs, and hereby adopts the findings,' conclusions, and recommendations' of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Primadonna Hotel, Inc., d/b/a Primadonna Club, Reno, Nevada, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. i On October 15, 1966 , after the close of the hearing but prior to issuance of the Trial Examiner's Decision on November 16, the Charging Party , in a telegram to the Trial Examiner , asserted that it had "information that testimony of two witnesses in support of the complaint in these cases was in part untrue " Thereafter, by letter dated October 28, the Regional Attorney for Region 20 requested the Charging Party to -advise him immediately of any such information This request was repeated on November 17 and December 5 We have been advised by the Regional Attorney that the Charging Party's attorney , on December 29, reviewed the transcript of the hearing and advised the Regional Attorney "that he did not intend to take any further action in this case because the Trial Examiner had discredited the testimony of the witnesses which allegedly had testified falsely " By letter dated January 10, and served on all the parties , the Regional Attorney requested the Board to proceed with the processing of these cases in light of the Charging Party's failure to furnish information substantiating its assertion On January 26, 1967, the Respondent filed its exceptions and supporting brief attached to which is an undated , unsigned document purporting to be a "Memorandum of Charging Party in Support of Respondent's Exceptions to the Trial Examiner's Decision " This "Memorandum ," inter alia, asserts that "evidence available to the charging party indicates" that Florence Dyer, found by the Trial Examiner to have been discharged by Respondent in violation of Section 8(a) 3), "was not discriminatorily discharged and that evidence given at the trial that she was is untrue " On February 20, the General Counsel, in his answering brief, states that the Respondent, not the Charging Party, furnished Region 20 with this "Memorandum " poor to the filing of the Respondent's exceptions, and again points out that "The Union has not at any time offered any specific evidence to support its assertion that it believed that two witnesses had lied " On the basis of our analysis of the entire record , we conclude that there is no evidence warranting reversal of the Trial Examiner's credibility resolutions with respect to the discharge of Dyer or in any of the other respects urged by the Respondent Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F 2d 362 (C A. 3). L We deem it unnecessary to decide whether the Respondent engaged in certain 8(a)(1) violations in addition to those found by the Trial Examiner, as urged by the General Counsel's exceptions, as such violations , if found, would be cumulative , and as such findings would, in any event, not enlarge the scope of our Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, J R., Trial Examiner: This proceeding was heard before me in Reno , Nevada, on March 15-18, 21-25, and 29-31 and April 1, 19, and 20-22, 1966.' The consolidated amended complaint (issued February 16, 1966), as further amended at the hearing, alleges that Primadonna Hotel, Inc., d /b/a Primadonna Club 3 has engaged in numerous specified violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . Respondent' s answer4 admits certain jurisdictional facts, but denies the allegations as to the ' Charges were filed in Case 20-CA-3733 on August 10 and 16 and November 29, 1965 A charge was filed in Case 20-CA-3901 on December 30, 1965 i The consolidated amended complaint was further amended during the hearing on March 23, 1966 (over objection of Respondent), by adding on the fourth line of paragraph IV, subparagraph (d) after the words " providing for" the words "paid vacations " 9 The legal name of Respondent as corrected at the hearing ' Respondent 's answer was amended at the hearing to correctly reflect its legal name , and to apply to both Cases 20-CA-3733 and 20-CA-3901 165 NLRB No. 14 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filing and service of the charges,5 that Respondent is engaged in commerce or operations affecting commerce within the meaning of the aforesaid Act, that the Union is a labor organization within the meaning of said Act, and the commission of any alleged unfair labor practices. Respondent also moved at the hearing to dismiss paragraph VI of the complaint on the ground that there was no charge filed pursuant to Section 10(b) of the Act, upon which the detailed allegations thereof could be based. This motion was denied. The charges upon which the complaint is based allege certain discharges were in violation of the Act and "by the above and other acts and conduct, the employer has interfered with, restrained and coerced employees in the exercise of rights guaranteed them under Section 7 of the Act."6 Respondent contends that his charge is too general to support paragraph VI. Both the Board and the courts have held otherwise,' and I find that the charges are sufficiently related thereto to permit the allegations of paragraph VI. The Charging Union had sought to have the Regional Director dismiss the allegations of violation of Section 8(a)(1) contained in paragraph VI of the complaint, which request was denied by the Regional Director. Respondent, at the hearing requested me to dismiss these allegations based on the same request of the Union. This was denied. Respondent apparently contends that such was tantamount to a request to withdraw the charge so there was no charge on which paragraph VI of the complaint could be based. This contention also is without merit and was rejected at the hearing and is herein.8 5 Although denying the allegations as to filing and service of the charges, at the hearing, Respondent stated that it had no question as to service of the formal papers Moreover, the formal papers received in evidence containing verifications of the individuals serving the charges by registered mail, together with the post office return receipts therefore, establish that said charges were served on or about the times alleged in the complaint To the extent there may have been any variances from the exact dates alleged, they are immaterial to any issue herein " Respondent also sought to introduce other withdrawn charges filed against it by the same union which had been more detailed and specific These were rejected as immaterial r N L R B v. Raymond Pearson Inc, 243 F 2d 456 (C A 5); Texas Industries v N.L.R B., 336 F.2d 128 (C.A 5), Raser Tanning Company v N L.R.B., 276 F 2d 80 (C A. 6), N.L.R B. v Kohler Company, 220 F 2d 3 (C.A 7) " Once a proper charge is filed, action to be taken thereon is within the sound discretion of the General Counsel acting through his representatives-in this case , the Regional Director "who proceeds not in vindication of private rights, but as representative of an agency entrusted with the power and the duty of enforcing the Act in which the public has an interest " New York Central Transport Company, 141 NLRB 1144; Local No. 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (New Mexico Building Branch, Associated General Contractors of America), 120 NLRB 1658 In its brief, Respondent cites the recent Board Decision in Local 638, United Association of Journeymen, Plumbers (Rowland Tompkins, Inc.), 158 NLRB 140, for the authority of a Trial Examiner to grant a Charging Party's motion to withdraw charges even over objections of the General Counsel. No such question was here presented, since the Charging Party did not appear at the hearing or file such a motion with the Trial Examiner " No testimony having been adduced as to subparagraph (q) of paragraph VI of the complaint, it was dismissed upon motion of Respondent without objection at the conclusion of the General Counsel's case On August 8, 1966, the General Counsel filed a motion to correct the record in certain detailed respects On August 29, Respondent filed a motion joining in the General Counsel's motion with the exception of five items which Respondent opposed and one which Respondent agreed to with a change. Upon the record, including consideration of briefs filed by the parties, and upon my observation of the witnesses, I hereby make the following:9 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Nevada corporation, operates a restaurant, bar, and gambling casino in Reno, Nevada. It annually receives revenue in excess of $500,000 from these business operations and in the course thereof, annually purchases and receives goods valued in excess of $50,000 from outside the State of Nevada. Respondent contends alternately that the business involved, i.e., "Gambling" does not affect commerce within the meaning of the Act, and if it does, that it will not effectuate the policies of the Act to assert jurisdiction over such business. The Board has carefully considered like contentions in other cases involving this industry in Nevada and asserted jurisdiction.10 I find that the business of the Respondent affects commerce within the meaning of the Act and that, within current Board jurisdictional standards, it will effectuate the policies of the Act to assert jurisdiction over it. I 1 II. THE LABOR ORGANIZATION INVOLVED American Federation of Casino and Gaming Employees is, and contrary to Respondent's denial, has been at all Respondent also moved to correct the record in certain additional respects as to which no opposition has been filed The foregoing motions and opposition have been duly considered and the court reporter consulted as to accuracy of transcription of notes relative to page 281, line 11; page 1520, lines 5 and 9, and page 2000, line 20 Based on the foregoing, the General Counsel' s motion is denied as to changes requested on page 47, line 22, page 281, line 11, page 1520, lines 5 and 9, page 2000, line 20, and page 2265, line 10 which appears to be gramatically accurate as is However, in passing, I note that page 281, line 11 , may make better sense as $25 instead of $45, but, it is not entirely clear, from the context, what was intended Also, page 2000, line 20, would seem to make better sense with the word"promise" than the word " guarantee " With respect to the following, the General Counsel's motion is granted so as to correct the second "she" on page 249, line 24, to "he", to correct the second "you" on page 419, line 3, to "he", and at page 1177, line 9, to correct "$25" checks to "twenty $5 checks " In all other respects, the General Counsel's motion to correct the record is granted Respondent' s motion to correct the record is granted in all respects requested. [Additional corrections in the record have also been made sua sponte.] All of the record corrections as made pursuant to the above are set forth in Appendix "A" [not published] 10 El Dorado Inc., d(b)a El Dorado Club, 151 NLRB 579; NLRB v Harrah's Club, 362 F 2d 425 (C A 9) " The facts set forth are admitted Respondent presented additional evidence similar to that considered in the El Dorado cases which was received without objection Respondent sought to introduce still other evidence consisting of a compilation of data as to racing revenues in other States of the United States which at first rejected as hearsay, was ultimately rejected as immaterial In its brief, Respondent again requested that this material be considered, asserting that it's rejection was erroneous The rejection, on ground of immateriality, is hereby affirmed Respondent also on July 5, 1966, filed a motion to reopen the record for the purpose of receiving additional evidence on the jurisdictional issue on the ground that receipt of such was necessary because of the Decision of the Court of Appeals for the Ninth Circuit in Harrah's Club supra, fn 10. A like motion was presented to the Board in that case and denied on July 18, 1966 The aforesaid motion filed herein is accordingly denied PRIMADONNA CLUB times material herein , a labor organization within the meaning of Section 2(5) of the Act." III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges some 18 items of violation of Section 8(a)(1) of the Act by officials or supervisors of Respondent, including threats of discriminatory treatment for joining the Union or engaging in union activity, promises of benefits, or announcement of plans for benefits after the Union started an organizing campaign, interrogation of employees concerning signing of union authorization cards and union activities, illegal restrictions on soliciting for the Union on company premises, instigation of informing as to union contacts, etc. The complaint further alleges violation of Section 8(a)(3) of the Act by discharging four employees, three on August 6 and 7, 1965, and one on November 22, 1965. Respondent denies commission of any violations of Section 8(a)(1), although in some instances, through testimony, admitted that certain conduct occurred. There is no issue as to the occurrence of the discharges on or about the dates alleged, but in each case, valid cause is asserted and discriminatory motive denied. Respondent also denies knowledge of any union activity on the part of any of the persons discharged. Supervisory status of persons, where material, is stipulated or conceded. B. Supervisory Status Accordingly, it is found that at all times material to the issues herein, the following named persons occupied the positions set forth opposite their respective names, and have been at all times material herein, agents of the Respondent acting on its behalf and are supervisors within the meaning of Section 2(11) of the Act: Ernest J. Prim, Respondent's president; Allen Roberts, general manager and vice president; George Piazza, shift manager; Herb Grellman, shift manager; and William R. Troye, assistant shift manager or shift manager. C. Background and Commencement of Union Activity According to Union Treasurer Emery, organizational activities commenced in Reno at the gambling casinos including the Primadonna about the middle of March 1965. The campaign at the Primadonna, among the casino employees, appears to have been active during April, with the record reflecting signed union authorization cards beginning with dates of April 9 and 10. The Respondent admits learning of organizational activity on April 17, when George Piazza, shift manager, saw three women employees in the alley between the Primadonna gambling casino and its restaurant. Piazza asked what the white cards were that they were holding, and was shown blank union authorization cards. Piazza reported this to General Manager Roberts that day. The following day, April 18, Roberts observed a union organizer, Mahan, in the alley and about the same time, spoke to three other persons " El Dorado Club, supra, fn 16 of that Decision In addition, the constitution of said organization and testimony in the record establish that it is an organization "in which employees participate and which exists for the purpose in whole or in part of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work " 113 whom he identified as union representatives, in the bar of the Primadonna. One of these, according to Roberts, told him that when "this is organized" they would get rid of the women and then the men would not have any trouble getting a job. The Union continued its activities and a number of women employees signed union authorization cards on April 23 and 24. D. Alleged Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) of the Act 1. The April 24 discussion with Roberts On Saturday, April 24, an incident occurred involving Roberts as to which the testimony is in dispute. According to Lucille Hagemeyer (who voluntarily terminated her employment May 24), she had signed a card on April 23. The following day, in the presence of Molly Turnbow and Marjorie Curtis, Roberts, while sitting at a "21" table in the casino and holding an authorization card, pointed out that the card had no local union number, that they were authorizing the Union to use them in any way it wanted, were actually signing their "jobs" away, and "that we could be replaced by men dealers." According to Hagemeyer, Roberts also said "he knew most of us had signed those cards and he didn't think that his girls could be so stupid as to let these people use us in that way." Molly Turnbow13 (who finally terminated her employment September 7), testified that Roberts, while holding a card in his hand and talking to her, Curtis, and Hagemeyer, asked them if they had signed cards and said: "I give you credit for having more sense than that. Don't you know you have just signed your `lives' away?" and then said "you can be replaced by men dealers." Roberts also mentioned that there was no local union number on the card. According to Molly Curtis," a witness for the Respondent, who has been employed by the Primadonna for 4 years, on the afternoon of April 23, 1965, Roberts came up to her table and stood beside her while Molly Turnbow was at the table behind her facing the opposite direction. Curtis stated she did not see Hagemeyer,15 that Roberts asked her if she signed a card, to which she answered "Yes" and he asked "Why?" She replied, "All the girls were signing them, and one was handed to me and they asked me if I would sign it." According to Curtis, Roberts also said, "there is no price on this card, they can charge you anything they want to join this union." Curtis denied that Roberts had said they could be replaced by men dealers, or that they "just signed their `lives' away" or "He did not think the girls were so stupid as to let the Union use them" in this way. Roberts testified that he was reading a card which had been obtained from organizer Mahan when Curtis came up and asked where he got it and then volunteered that she had just signed one. Roberts asked: "What organization was it, what is the number of your local? You have now joined the Union"; to which Curtis replied, "No, I signed it just in blank and I can get it back." According to Roberts, Turnbow said it was for the purpose of getting materials to show what the Union will get them. Roberts then read from the card which read: "I hereby designate the American " Turnbow signed a card April 24. " Curtis signed a card April 24. 's On cross-examination , in response to a question , "Do you recall seeing Mrs Hagemeyer there9" Curtis answered, "yes " There was no amplification of this, and it is not clear whether Curtis was changing her previous testimony. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federation of Casino and Gaming Employees, Local Union No. to represent me for the purpose of collective bargaining. . . " and said, "I thought my girls were too smart to sign a piece of paper in blank and hand it to anyone. You have now signed your `rights' away for these people to represent you." (Emphasis supplied.) He stated that Hagemeyer was not present and denied saying that the girls were signing their jobs away, or they could be replaced by men dealers, or that they had signed their "lives" away, but rather he had used the word, "rights." Roberts also denied saying they could be replaced by men dealers, but when questioned by Respondent's counsel, admitted he may have mentioned, "That the men were only trying to get the Union organized around there ... so they could scoot the girls out like they did in Vegas and take their jobs." Later, when asked by the General Counsel, Roberts denied that he had relayed this conversation to the girls. Significantly, bearing on this reference to replacing women with men dealers, is the fact that it is mentioned in both a release distributed by Respondent to its employees on or about April 27, and another issued soon thereafter. The April 27 document addressed to "employees" reads: "Why should an outsider from Las Vegas suddenly become interested in my welfare? [in Las Vegas there is an ordinance preventing women from working as dealers]." The other release addressed to all casino employees poses the following question: "Ask the Union representative about the surplus of male 21 dealers in Las Vegas. Do they intend to put them to work in Reno?" It is evident from these documents that the Respondent had in mind, as part of its presentation in opposition to the Union, this potential threat of replacement of women by men dealers. Roberts knew of this before speaking to the girls on April 24, and it is emphasized in both the above releases. Whether used in the context of "signing `jobs' away" (Hagemeyer), "signing `lives' away" (Turnbow), "signed `rights' away" (Roberts), it is logical to assume that some additional reference or specificity was asserted such as a statement, "You can be replaced by men dealers." That this was made in such context is accordingly supported, not merely by the testimony of Hagemeyer and Turnbow in this respect, which I credit, but also by the timing of this conversation shortly after Robert's meeting with the organizers, and shortly before the releases. In addition, I considered Turnbow's testimony throughout to be forthright and reliable. Assuming the statement that the women "could be replaced by men dealers" was made in the context of "signing away `jobs' or `lives' or `rights'," is there any material difference in result as to its impact or effect herein, which of these was said? I think not. Does it imply a threat to the jobs of the girls to whom it was addressed? Since Respondent has control over employment, it is evident, although not specifically I so stated, that any one of the quoted statements as to the effect of signing when coupled with the assertion that the women could then be replaced by men, is the equivalent of a threat that by so signing, the employees were subjecting themselves 16 LMRA as amended 29 U S C Sec 151, et seq , particularly 158 (a)(3) and 158 (b)(2) " Nev Rev Stat 613 230 to 613 300 18 See also the fair employment provisions of the Civil Rights Act of 1964 (Public Law 88-352) effective commencing July 1965 i" Insofar as Respondent sought to renew its motion to dismiss this allegation in its brief, it is denied to discharge. This conclusion is further supported by the fact that, neither under the LMRA as amended," nor the Nevada right to work law," could the Union have legally brought about such a result.'' I accordingly find, as alleged, that on or about April24, 1965, Respondent threatened employees with discharge for signing union authorization cards in violation of Section 8(a)(1))9 2. The April 26 discussion with Prim and the matters of insurance, vacations, and holidays Ernest Prim, president and principal stockholder of Respondent, testified that he first learned of the union organization from George Piazza about April 19 or 20. On April 26, a discussion, which related to the Union, took place in the "21 Pit"20 between Prim and the dealers who were waiting to go to work. Present were: Prim and employee-dealers, Lucille Hagemeyer,VirginiaiMcKeehan, Verda Wilson, Jean Hansen, and Molly Turnbow, who were witnesses for the General Counsel, and Lorraine McSkimmings, Marie Bennett, and Marjorie Curtis, who were witnesses for Respondent. There is considerable conflict in the testimony as to what was said by Prim and how he appeared and acted. According to Hagemeyer, Prim told them to ask anything they wanted about the Union, that the Union could not guarantee them job security, that, as to paid vacations, paid holidays, group insurance , and other benefits, this "Union was offering us, we did not need a Union to give us these things, that he could give them to us himself." Hagemeyer further testified that McKeehan asked Prim why he waited until the Union came in to tell them about these things, to which Prim replied that the club had been in the process of getting insurance for them. Prim then went on "to tell us about Hanley's gang and what a mobster gang they were and how he had been in jail and wanted to know if this was the kind of leader we wanted, if this was the kind of union we wanted." Hagemeyer then said Prim made a statement "to the effect that he could get any number of people to say that we were thieves and that we could all be replaced at any time and then see what kind of a situation we would be in." According to McKeehan, when Prim came in, he was very red-faced and waving his arms and asked in a loud voice "who signed up for the Union? I have reports that all my swing shift signed for the Union." She stated that someone asked about job security, which the Union was promising, and Prim said the Union could not get us job security, "that only the employer could give us job security." She then asked about reasons for termination, and Prim said he always gave reasons. Marie Bennett asked what about the termination of George Redican, to which Prim replied, this had nothing to do with the conversation. The subject of job security was again discussed, and Prim was quoted as saying, "If I want to fire anybody, I can do so and I can get 15 people to swear or testify that they are a thief, then let's see them get a job." According to McKeehan, Lorraine McSkimmings came in, put her arm around Prim and said, "What are you '0 The "21 Pit" is that area in the casino where the blackjack or "21" game tables are located Respondent operates from 15 to 17 tables (depending on the time of year ) located on either side of an aisle which runs the length of the pit Supervisors constantly watch and supervise the play , either by standing by or walking back and forth PRIMADONNA CLUB going to do for us Big Daddy?" to which Prim replied, "Oh, I'm going to take care of all of you." McKeehan added that Prim said he was going to get us insurance and paid vacations, and showed pictures of Hanley stating, "Is this the kind of people you want to run your jobs? They are nothing but a bunch of hoods and racketeers and all they want from you is your money." Verda Wilson testified that Prim said, "I have been told that all of the swing shift people signed cards ... all you have to do is come to me. You don't need a union to do these things. . . . I am going to give you paid vacations. I am going to see to it that you have insurance and other benefits. I will do all these things for you. I have been making plans and you will all receive a letter about this tomorrow." According to Molly Turnbow, Prim said that we didn't need a union; that he could give us all the things that a union could. Hagemeyer, McKeehan, and practically all witnesses for both General Counsel and Respondent testified that, prior to this time, no one from management had mentioned paid vacations, paid holidays, or hospitalization. Prim stated that when he came in, the girls were looking at clippings taken from Las Vegas newspapers referring to the Union. He was asked about job security and replied he had never heard of job security in a gambling house. He told them they were going to get health insurance , "we had already started it." As to job security, he said, "the Union could guarantee [promise?] them anything, but couldn't guarantee them anything unless I agreed to it." Prim said he couldn't give seven holidays. "I might get in two," and "I told them that I could do anything for them that the Union could do for them." With respect to union leadership, while the girls were looking at clippings (which referred to alleged violence and criminal charges involving certain union officials), Prim said "that's the type of union that you might be involved with here." Prim denied asking about who signed up for the Union, and denied saying that he had reports that all of his swing shift signed up for the Union. He further denied any statement to the effect that he could fire anybody he wanted to, and could get any number of people to testify "they were a thief." Prim stated he told the girls they would get a letter the next morning outlining the Company's position. Those matters as to which testimony is in conflict which may be material are: (1) Whether Prim asked who joined and said he had been told all or most of his swing shift had; (2) whether, and to what extent Prim promised paid vacations, paid holidays, and paid insurance ; (3) whether Prim stated he could fire anyone he wanted and have witnesses who would testify he (or she) was a thief. Further, if such statements were made, in what context? And what do they signify? In addition to the testimony of McKeehan and Wilson, that Prim said the swing shift signed cards, Respondent's witness Curtis testified she believed Prim said, "He had heard most of the club signed up" and McSkimmings, a Respondent witness, testified "he (Prim) said that he had heard rumors that a great deal of us had signed." The foregoing indicates , contra to Prim's denial, that he had " In July 1964, by resolution of the Board of Directors, the Company had adopted, effective immediately, a vacation plan for the maintenance department, keno department , slot machine mechanics, and casino cashiers Previously, only business office employees and employees covered by contract with Bartenders Local 86 and Culinary Workers Local 45 had received vacations Chairman Prim expressed a desire to extend vacations to the rest of personnel "in gradual steps as financial condition of company 115 asserted that all or most of his swing shift had joined, and I find that he made such a statement. If he asked, "Who signed up?" (as testified to by McKeehan) followed by a reference to "I have reports that all my swing shift signed up for the Union" it would appear at most, to be part of a total statement rather than an attempt at interrogation. However, I do not find that Prim said "who signed up" since it is not referred to by any other witness who testified in detail. While the assertion of knowledge as to the swing shift signing, is not alleged or found to be an unfair labor practice, it does indicate knowledge by the Respor?-nt of union activities and membership of its employees. As set forth, Prim admitted stating that the employees were going to get health insurance and that he had said he could not give seven holidays, but might "get in two." Testimony of practically all of General Counsel witnesses and of Respondent witnesses, Curtis and McSkimmings were that he said he was working on, and they would have paid vacations and insurance. According to Respondent witness Bennett, Prim said insurance was in the making, and he would like to give vacations. Respondent witness, McSkimmings, on cross- examination, testified as follows: Q. Did Mr. Prim tell you at that meeting you didn't need the Union to get vacation benefits and insurance? A. Yes. Q. He said that he could get them for you, right? A. Yes. Q. All you had to do was go to him and ask him, right? A. He didn't say we had to come to him and ask him. We did ask him. We would like to have insurance. Q. Didn't he said at the meeting that the benefits you wanted could be obtained by asking him without going to the Union? A. Yes. The testimony of Hagemeyer, Wilson, Turnbow, and Curtis was to similar effect. As set forth, Prim himself admitted saying, "He could do anything for employees the Union could do." By itself, this may be nothing more than a proper declaration of fact, but in connection with other assertions and context, it can be construed as a promise to do certain things the Union had promised to do as an alternative to union organization. Respondent, however, contends otherwise and says it was introducing an insurance program and proposing vacations and holidays in accord with plans previously considered and adopted by other departments, and in order to meet competition. It offered evidence that it adopted a vacation program for certain other employees by action of the Board of Directors in July 1964,2 t but did not apply it to all employees because of financial limitations, and that the same prevented the introduction of a participating insurance program which Prim had purportedly discussed as early as 1963. However, no showing of improved financial position was made, and no participating insurance program or vacation permitted " Consideration of a participating group like insurance plan "was deferred for future action due to financial commitments of the Company " No further meetings of the Board of Directors relative to insurance benefits, vacations (or holidays), were held prior to the discussions and announcements relating thereto in April and May 1965 set forth above and the introduction of participating insurance in May and June 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or holiday proposal covering casino employees was instituted or proposed until after the Union commenced organizational activities. Respondent's Secretary- Treasurer Mooney was asked who brought up the subject of a group insurance plan in 1965 and when. Mooney replied he believed Prim did in May.22 As for the alleged loss or threat of loss of employees to competitors because of lack of these programs, the record shows that the programs at two of its largest competitors have been in effect for years. One, Harold's Club, had a paid vacation plan for employees since 1960 and a participating group insurance for approximately 13 years,23 and the other, Harrah's, has given participating group insurance, vacations, and holidays to casino employees for several years. Further testimony indicated that practically all present employees of Primadonna were formerly employed at other clubs. There is no testimony that the Respondent was actually unable to obtain help during the summer peak season, and in fact, as set forth hereinafter, it terminated three employees on one shift within 2 days, early in August during the busy season. From the foregoing and the entire record, it is manifest that no definitive plans to put into effect participating insurance, vacations, or holidays had been projected prior to the advent of the Union.24 Moreover, even discussion of extension of participating insurance and vacations to employees here involved had been shelved because of financial commitments, and there is no evidence of any change in this respect. Nor was there indicated any competitive pressure in 1965 different from that existing for several years prior thereto which was not shown to have resulted in any inability of Respondent to obtain an adequate staff.25 Accordingly, I find Prim on April 26, 1965, made such promises relating to insurance, vacations, and holidays, as stated by McSkimmings, et al., supra, to cause employees to abandon the Union or not to join or participate in the Union or its activities. I do not find any promise to grant pay increases other than the statement that he could do anything for the employees that the Union could do, which, apart from a more specific context, I do not infer as a promise to give a pay increase. On or about April 27, Respondent distributed to all employees the announcement previously referred to in which it stated: ... Management of the Primadonna Club over the past several months has been planning a fringe benefit program which consists of paid vacations, hospitalization, insurance benefits, and paid holidays. We are starting with two paid holidays-(Thanksgiv- ing Day and Christmas Day.)26 This plan is in process of being finalized. We want you to clearly understand that we were working towards these plans prior to this attempted organization , and in fact portions of these it Actually, the letter from Respondent to employees dated April 27, following the discussion between Prim and certain employees on April 26, 1965, supra, also refers to group insurance as well as vacations and holidays as set forth tnfra. 21 It appears that the first knowledge by Primadonna of details of the plan at Harold's Club was obtained during the course of the hearing in this case 24 Hence, cases cited by Respondent such as T L. Lay Packing Company, 152 NLRB 342, and Derby Coal & Oil Co, 139 NLRB 1485, are inapropos. 25 Here too, cases cited by Respondent dealing with benefits granted, due to competitive pressures, are inapplicable is These holidays were not put into effect on advice of counsel following the filing of a petition with the NLRB Regional Office by plans have heretofore been put into effect in regard to other departments in the Club. In the event you are represented by the Union, these matters will be subject to negotiation. (Emphasis supplied.) I find the promise of benefit contained in this announcement as well as Prim's statements of April 26 to the effect that the employees would be given insurance benefits, paid vacations, and paid holidays to constitute interference with, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1). About May 10 and 14, 1965, Respondent caused and permitted representatives of an insurance company to solicit employees enrollment in a participating group health insurance plan, and on June 1, 1965, said plan became effective pursuant to an announcement of Respondent issued late in May which read: "We are pleased to notify you that the group insurance plan recently discussed with you goes into effect June 1, 1965. As you knew, the Primadonna Club is paying half the premium on this plan...." I find that by causing such solicitation for enrollment in said plan, Respondent further interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) thereof. Respondent vigorously denies that Prim, on April 26, said he could "fire anyone and have 15 persons say he was a thief" or words to such effect. A preliminary issue is whether or not it is necessary to resolve credibility in this respect. The General Counsel contends this statement supports an allegationL7 that Prim "threatened to fire all union members and hire nonmembers of the Union in their stead." I have carefully analyzed the testimony as to the context in which this alleged statement was made, some of which is set forth above. Respondent claims any discussion as to right or ability to terminate related to one Redican and to no union issue. While not precisely "pinned down" in the testimony, the alleged discussion as to discharge or termination appears to relate, follow, or be connected to a discussion of union security.28 Accordingly, the claimed assertion would seem to be at most a threat that the Union could or would not be effective in dealing with discharge grievances. There is no allegation in the complaint as to such. Rather, the General Counsel contends that by such statement, Prim threatened to discharge employees for joining the Union. I am unable to draw such an inference from the testimony relating to the discussion with Prim on April 26. 3. Conduct of George Piazza Subparagraph (e) of paragraph VI of the complaint alleges that on or about April 27, 1965, George Piazza, shift the Union April 28, which Respondent learned of April 30 t' Subparagraph (b) of paragraph VI is Although in accord that Prim had said words to the effect that he could fire a person and get witnesses to say the person was a thief, the witnesses for the General Counsel could not all place the context of such claimed assertion . Hagemeyer and Wilson could not recall what preceded it. McKeehan , Hansen, and Turnbow testified that it followed a discussion of job security in which Prim asserted only the Employer could give it. Respondent witnesses Bennett and McSkimmmgs had no recollection of any discussion of job security Respondent witness Curtis and Prim himself admitted a discussion of job security , but they, Bennett and McSkimmings , denied that Prim made any statement about "firing" and having witnesses who would call a person a thief PRIMADONNA CLUB manager, interrogated an employee concerning his signing a union authorization card. Employee lone Paulk testified that Piazza interrogated her on April 25. She said he asked her on that date whether she had signed an authorization card, and after trying to avoid answering him, she replied that she had. Piazza admitted interrogating Paulk, but claimed that it took place on April 18, and that she had refused to answer whether or not she had joined the Union. Piazza admitted that he had interrogated practically everyone on his shift, and named six persons specifically whom he had questioned. One of these, Turnbow, testified that Piazza had questioned her on April 21 after she had signed a card, and that she admitted signing it . Piazza testified that he had questioned her, that she had admitted signing a card, but claimed that the date of the interrogation was April 18. It is evident from the card in evidence, dated April 21, that if Turnbow answered "yes," as testified to by both her and Piazza, then the conversation must have occurred on or after April 21. In the light of this and the testimony of Paulk, I am convinced that Piazza is in error, and the conversation with Paulk occurred on April 25, and was as testified to by her. This is sufficiently related to the allegation in the complaint to support a finding that Piazza interrogated her as alleged in subparagraph (e) of paragraph VI of the complaint.20 I so find and that such was in violation of Section 8(a)(1). Subparagraph (f) of paragraph VI of the complaint alleges that George Piazza threatened an employee who had signed a union authorization card on or about April 27, that he would have the employee "blacklisted" in the gambling industry in Las Vegas, Nevada. The evidence in support of this consists of the testimony of lone Paulk that on April 27, Piazza asked her why she had signed an authorization card and if she would sign a deauthorization card, to which she responded, she did not know; that she asked him why he was picking on her, to which he replied that he was not, but was talking to her as a friend; she then said he wasn't her friend because she had just met him. Whereupon he said "You know in Las Vegas, there is a list of people who belong to the Union and they can't get jobs anywhere." She looked away and Piazza laughed. Piazza admitted having a conversation which he said he could not recall, but denied seeking to obtain a deauthorization, and denied any reference or statement about blacklisting in Las Vegas. The question is, does this statement , if made, constitute a threat on his part to blacklist Paulk in Las Vegas. One related item which may be pertinent, is a statement that Piazza allegedly made to another employee, Molly Turnbow, who said that Piazza asked her, "if the Union didn' t get in , where did we think that we would be able to work." She said that she didn't answer him. Piazza denies making such a statement to Turnbow. Was the statement to Paulk (whose testimony I credit in this respect)30 a thinly veiled threat to blacklist her in Las Vegas, or was it merely an observation made in the hope that it might have an effect? Piazza was a lesser representative of the Company; what his connections in Las Vegas would be, are conjectural. Prim, the head of the Company, according to testimony, did have connections in 25 As indicated, Piazza also had interrogated practically everyone on his shift at one time or another, and some of them within a short time period in relation to April 27 30 Paulk appeared to be a disinterested and credible witness, while Piazza was an interested supervisor of Respondent Piazza, also on numerous occasions, admittedly manifested a direct interest in union activities and his opposition thereto 31 (See In 30, supra, re Piazza) It should be further noted that 117 Las Vegas. On the other hand, the individual to whom the statement was made, Paulk, continued in the employ of the Company up to the time of the hearing without any apparent repercussions. While not free from doubt, I think that the ambiguity here should be resolved in favor of the Respondent, and, accordingly, I do not find that the statement, as made, amounted to a threat to blacklist. Subparagraph (j) of paragraph VI of the complaint alleges that on or about May 24, George Piazza threatened an employee that, if the employee solicited for the Union at any time and at any location on Respondent's premises, the employee would be discharged. It appears that on May 24, an employee, Lucille Hagemeyer had stopped to discuss the Union with one or more employees who were on duty, and then proceeded to the ladies' dressing room. Piazza saw her and ascertained that there was a discussion with respect to the Union. He subsequently proceeded to the ladies' dressing room, knocked on the door, and when Hagemeyer came out, told her, according to her version, that she was not to solicit on behalf of the Union at any time and "I mean it." Hagemeyer said she had spoken to just one employee who was at work. According to Piazza, she had spoken to several employees who were working, and he had told her that she was not to solicit or bother employees while they were at work. He denied that he told her that she was not to solicit at any time and denied saying "I mean it." Hagemeyer quit her employment that day, asserting that, if she couldn't speak to fellow employees, she didn't want to work there any more. There is no evidence (other than the McGoldrick employment incident post) that the Company prevented employees from discussing the Union during their nonworking time or during their break periods, and in fact there is testimony from several employees that they discussed the Union during such periods. In addition, there is no question that Hagemeyer had discussed the Union with at least one employee who was at work, following which, Piazza had spoken to her. Under these circumstances, there are two questions: (1) was Piazza's statement (which I find was made as claimed by Hagemeyer) 31 the equivalent of a threat of discharge, or merely an implied warning that, in the event she persisted in such conduct, certain unspecified consequences might follow; (2) was Piazza's statement improper as applied to the factual situation which gave rise to it. I have difficulty in finding that the statement was anything more than a warning or possible threat of certain nondesignated consequences in the event of continuation of solicitation, but not necessarily of discharge. Here again, the burden is on the General Counsel to establish more clearly the consequences that could be expected to flow from such a statement. I do not think he has done so. In addition, the statement made in relation to the incident as it occurred, would be proper, that is to restricting or limiting employees from such discussion during actual work time. Considering this, the fact that the Respondent had not (except in the McGoldrick hiring incident) restricted employees' discussion of the Union during nonwork time, and the ambiguous nature of the alleged it is unlikely, unless specifically so instructed, that Piazza, in response to the solicitation of employees by Hagemeyer, would distinguish between work and nonwork time, and it would not be unusual for him or anyone else to be emphatic in seeking to prevent interference with work While Hagemeyer may have been somewhat bitter, upon consideration of the foregoing and her testimony, as a whole, I credit her version 299-352 0-70-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat (even accepting the statement as set forth by Hagemeyer), I would find that there was no violation as alleged in subparagraph (j) of paragraph VI of the complaint. 4. Conduct of Herbert Grellman Subparagraph (h) of paragraph VI of the complaint alleges that on or about May 2, Herbert Grellman interrogated an employee as to the identity of other employees who had signed union authorization cards. Subparagraph (k) of paragraph VI alleges that, on unknown dates between May 1965 and August 6, 1965, Grellman threatened employees that the working conditions of employees who joined the Union would be adversely affected thereby. The testimony of Lee Eulert, an alleged discriminatee, was to the effect that in about the third or fourth week of April, she had a conversation with Grellman in which he asked her "If I knew if any of the girls on our shift had signed cards with the Union and I told him that I did not know if they had or not." Grellman admitted, "I asked her if she knew anyone who had signed the union card and she says `no' and that was it." While this latter is literally not identical with the allegation of the complaint in that it does not purport to request the identity specifically of employees, it was a question directed toward knowledge as to other employees signing authorization cards and hence, within the ambit of the allegation of the complaint and obviously litigated as such. Eulert also testified that she had had a conversation with Grellman about the second week in April in which they were talking about the Union. She asked him what he thought about their joining it, and "he told me that he would advise us not to fool with it because if we did we would be in trouble with our jobs." Grellman denied any such conversation. Reta Bowen, one of the alleged dischargees herein, testified that sometime between June 8 and July 4, she had a conversation with Grellman involving the Union, and told him: "Well I don't see how it could do any harm. It might do a lot of good." Subsequently she added that she was willing to take the chance that it might. Grellman told her as he was leaving, "Well, you'd better be careful, it just might not be smart to get mixed up in that sort of thing." Grellman denied making this latter statement, but admitted having a conversation with Bowen at the time indicated in which Bowen said she couldn't see how the Union "could do any harm."32 Grellman's testimony, at certain times, was somewhat confusing, particularly with respect to dates of occurrence of events as to which he made assertions and subsequently changed his position, yet denied he had given the changes any thought. On the other hand, with respect to identification of an individual at the table of Lee Eulert in connection with an incident pertinent to her discharge, Grellman was positive as to the identification of a man whom he had seen for only a relatively brief time on that particular evening. His exact identification as will be set forth in more detail subsequently, was contradicted by the definite but less positive identification of the same it Respondent contends that since Prim and Roberts issued instructions about April 30, that its supervisors were not to discuss the Union with employees, that neither supervisors nor they would discuss it thereafter This incident, and numerous others, which I find herein occurred thereafter, indicate that, although such instructions may have been given (as testified to by Respondent officials), they were not always followed individual by Respondent's Shift Supervisor Troye, and by the identification made by Eulert. In addition, Grellman, as set forth hereafter in certain instances during his testimony, appeared to be either unduly hesitant or evasive, and in others to vary answers, depending on which counsel was interrogating. On the other hand, I consider the testimony of Eulert to be forthright and honest. The testimony of Bowen was also presented in a direct manner and without hesitation. I' credit the testimony of Eulert and Bowen as to the conversations with Grellman, and find by such interrogation and threats, Respondent violated Section 8(a)(1).''" 5. Additional conduct of Roberts Subparagraph (o) of paragraph VI of the complaint alleges that Allen Roberts, about June 1965, interrogated an employee concerning the union activities of Respondent's employees, and subparagraph (p) of paragraph VI alleges that Roberts, about June 1965, instructed an employee to inform him if the employee was contacted by the Union. The evidence, in support of these allegations, consists of the testimony of Florence Dyer that about June 2, Roberts asked her whether she had been confronted by any union organizers, and she told him she hadn't. Roberts said this wasn't the right union, and she told him she belonged to a union before, and thought the Union would be good if there wasn't the right-to-work law. When she left, Roberts asked her to inform him if she were approached by any union organizers in the future. Roberts denied having any such conversation with Dyer. With respect to the allegation of subparagraph (o) of paragraph VI of the complaint, the foregoing does not appear to constitute interrogation concerning the union activities of employees generally, but may be viewed as interrogation of Dyer within the meaning of that subparagraph. The latter part of Dyer's testimony would support the allegations of subparagraph (p), assuming that it is credited. For reasons more fully set forth hereafter in connection with other matters relating to Dyer and the discharges of Bowen and Eulert in which Roberts is involved, I credit the testimony of Dyer as to the above conversation, and find by such interrogation and request, Respondent violated Section 8(a)(1). 6. Additional conduct of Prim The remaining allegations of violation of Section 8(a)(1) contained in paragraph VI of the complaint involve alleged statements or actions by Ernest Prim, president of Respondent. These will be taken up seriatim. The first one, subparagraph (g) of paragraph VI of the complaint, alleges that about April or May 1965, Prim asked the spouse of an employee whether the employee had been contacted by the Union, and told the spouse to advise the employee that the employee would be discharged if the employee joined the Union. This relates to a conversation purportedly involving one Darius Dyer, the husband of Florence Dyer, one of the alleged discriminatees herein. Dyer testified initially that about the latter part of April 1965, he had a conversation with President Ernest Prim, iR Although subparagraph (k) alleges unknown dates between May and August 6, and the testimony of Eulert, set forth above, relates to the middle of April, the matter was fully litigated at the hearing, is within the scope of the allegations of subparagraph (k), and is clearly covered under Section 8(a)(1) of the statute which is allegedly violated under the complaint, and, hence, will support a finding in this case PRIMADONNA CLUB who had slipped on the ice that same day and injured his arm, which was in a sling. Subsequently, after evidence was adduced that Prim had injured his elbow and seen a doctor on March 24, Dyer changed his testimony to place the conversation as occurring on March 24. Dyer testified that he first spoke to Prim and asked him how he hurt his arm, that Prim asked him if his wife had been approached by union members or union organizers, to which he replied, not to his knowledge; that Prim then told him that his wife was a good employee and a good worker and asked him to talk to her and tell her not to become involved with the Union; that he also told him to tell her not to become affiliated with the Union because, if she did, that she would be fired. "They would fire anyone that did become affiliated with the Union." Prim, not only denied the conversation, but denied that he had ever met Dyer or seen the man before. On the other hand, Dyer testified he first met Prim in 1958 and talked to him many times, and had driven Prim to the airport in a cab on many occasions during 1958-59." Testimony also indicated that Dyer had been in the club to pick up his wife on quite a few different occasions, and that he had been seen speaking to Prim on some of these. Eulert so testified, and Dyer's daughter testified that Prim had come over and spoken to them on a particular occasion in 1964. Whether or not Prim had a very good recollection of Dyer, is a matter that may be debatable, particularly where a good many of the alleged incidents in which he had purportedly seen or talked to Dyer occurred some years ago, and in view of the numerous, thousands of people Prim sees in the course of business operations. However, I conclude that Prim had seen and spoken to Dyer. Accordingly, to the extent that he denies having seen or talked to Dyer, I would not credit Prim's testimony As to whether Prim had the alleged conversation with Dyer, there is a more difficult problem raised by the fact that Dyer first testified to its occurring late in April at a time when it could reasonably have occurred, but subsequently, changed his testimony following submission of the medical records relative to the time when Prim injured his arm. This resulted in placing the alleged conversation on March 24. The General Counsel claims that Prim was well aware of union activity at that time. The only evidence to indicate this is that Prim knew of the Union's activity in Las Vegas where an election had been ordered at the El Dorado by the National Labor Relations Board by a decision issued on March 11. The only other testimony as to union activity in Reno was from the union's secretary- treasurer that union activities had commenced in Reno about March 15, but he did not specify that any occurred at the Primadonna. The record contains repeated references to organizing activities at the Primadonna in April, but none prior thereto. The first cards that were signed, which are in evidence, are dated April 9 and 10. The first conversations " Dyer recounted details about conversations with Prim, re how Dyer's wife and baby were, one about his becoming a dealer, and one about Pnm's wife "Donna going to some type of school" (see fn . 36, infra, for rebuttal testimony that Prim had not had a wife named "Donna"), and a conversation with Prim on one of the "at least two times" that Prim cashed checks for him Dyer admitted that, on at least one occasion, Prim declined to cash a check from out of State 35 She spoke to Grellman, infra, about the end of April, her conversation with Roberts was about the beginning of June and she did not join the Union until June 36 Dyer testified that Prim, during a conversation, had referred 119 or alleged conversations or discussions by management with individuals appear to have occurred about the middle of April and to have become more extensive from about April 18 until the end of the month. Based on the foregoing, it is exceedingly difficult to see why Prim would have made the alleged statement to anyone on March 24. In addition , it is not clear why he would have made it to Dyer about Mrs. Dyer at that time. There is no evidence of her interest in the Union until much later.35 Further, while Dyer indicated and may have thought that he and Prim were very friendly, the testimony as a whole does not support this, including particularly the refusal on Prim's part to cash a check for Dyer, the termination of Mrs. Dyer in 1959 when her baby was sick and Dyer's referral to Prim's wife's name as Donna.36 Based on the foregoing, I am compelled to find that the alleged conversation between Prim and Darius Dyer did not take place, and I accordingly so find. Subparagraph (1) of paragraph VI alleges that about June, Prim interrogated an employee as to the identity of other employees who had signed union authorization cards, and subparagraph (n) of paragraph VI alleges that about the same time Prim threatened an employee that any employee who signed a union authorization card would be fired. The testimony in support of this is of Lee Eulert. As set forth, supra, Eulert told Grellman in May she had signed a card. About a month later in June, according to Eulert, she had a conversation with Prim in which they were the only ones present; she was on a break, and Prim was standing by a cigarette machine and called her over. Prim asked her if she knew that the girls on the graveyard shift were signing cards for the Union. She told him she did not, and that it was not her job to find out. According to Eulert, Prim grew red in the face, waved his arms around, and said that he would advise us, "Not to fool with that because if we did, he would eventually find an excuse to fire everyone that did sign a card." Prim denies the incident in its entirety. It appears logical that Grellman, who had admittedly asked Eulert about whether she had joined the Union, would convey such information to Prim, and that Prim might thereafter inquire of Eulert concerning union activities. This is particularly true at the time involved, about the middle of June, at which time a Labor Board representation hearing involving Primadonna37 was in process. In addition, Eulert, throughout her testimony, appears to be a credible, forthright, and reliable witness. Also, as previously set forth, I have found, contrary to Prim's denial, that he told a group of girls on April 26 that he had heard most of his swing shift had joined, and contra to Prim's denial, that he was acquainted with Darius Dyer. Further, Prim, on occasions involving important matters, changed his testimony after first making positive assertions.38 to Prim's wife named "Donna." Rebuttal testimony of Company Treasurer Mooney indicates Prim at no time had a wife or any children (so far as he knew) named Donna (Perhaps the "Donna" in Primadonna misled Dyer) 3' The Labor Board hearing was held June 15-18 's Illustrative are the following Prim first said he discussed the discharges of McGoldrick and Bowman with Roberts in person, and subsequently altered this to testify that the discussion was by telephone Also, Prim testified to certain restrictions as to McGoldrick' s organizing for the Union while employed at Primadonna, and subsequently varied his testimony as to such restrictions (See, infra, for a fuller discussion ) 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fact that the asserted threat to Eulert was not in fact applied to all persons, does not prove it was not made-threats are often made for effect without intention of completion, or for that matter, even partial execution. In evaluating the testimony as a whole, I credit the testimony of Eulert as to this incident, and find such interrogation and threats violated Section 8(a)(1). Subparagraph (m) of paragraph VI of the complaint alleges that about June, Prim stated, in the presence of an employee, that everyone having anything to do with the Union would be fired. The testimony in support of this allegation is that of Florence Dyer, who said that a week or two or three after she claimed to have the conversation with Roberts concerning the Union, about June 2, that she was sitting at an empty "21" table about 2 feet from one occupied by Roberts and Prim when she overheard Prim say something derogatory about the union leaders, and that he would "fire anyone having anything to do with the Union." Dyer said all she heard was this statement, which was in a louder tone of voice. After hearing the foregoing, she got up and left. Roberts and Prim deny that any such conversation ever took place. Respondent contends that Dyer is fabricating this testimony, and that it could not possibly have occurred when she said it did. Respondent points out that it could not have occurred 2 or 3 weeks after the conversation on June 2, since Roberts at such time, was in the hospital. The General Counsel contends that Dyer's testimony is to the effect that it was from 1 to 3 weeks after the incident of June and that Roberts did not go into the hospital until June 13, so that the conversation could very well have occurred within the time specified by Dyer, who was not positive as to just when it took place. Respondent also claims that the casino was much too noisy for Dyer to have overheard any conversation, that at 9 o'clock in the morning in June, it was a bedlam of noise. Actually, Dyer was seated within 2 feet of Roberts and Prim, according to her testimony,39 and it would appear to be possible to hear a conversation, particularly if voices were raised. Obviously, if this were not so, the dealers could not hear what the players had to say, and vice-versa, so that as to this facet of the matter, I would conclude that it was possible for Dyer to hear. But as to whether or not the alleged conversation occurred, there are some other questions. It is evident from the testimony of Dyer, that it was possible for this conversation to have taken place before June 13, so that as to that aspect, I would conclude that it could have occurred. The difficulty is, why would Prim make such an assertion to Roberts? It is argued by the General Counsel that Roberts had spoken to Dyer about June 2, and that the statement by Prim was intended to influence Dyer, who had indicated that she would not be averse to the Union except for the Nevada right-to-work law. It is also true, that the representation proceeding was impending about this time, and a hearing therein was held a few days later. On the other hand, Dyer could recall nothing that preceded the conversation and nothing that occurred thereafter. It is argued that she wasn't paying attention, and noticed this conversation only because it was in a louder tone of voice. The question is still why such assertion. One possible explanation is that Prim was seeking to influence Dyer by such statement, and that his voice was raised for this purpose. Other than this contention, there appears to be no particular reason why Prim would make such a statement to Roberts at the time. Prim and Roberts did not carry out any such threat as to employees generally, and there is no direct evidence to indicate that they meant to influence Dyer at that time in connection with her assertion of apparent support for the Union, which as stated by Dyer, was somewhat qualified because of the Nevada right-to-work law.40 Here again, the burden is on the General Counsel to prove the case. The circumstances and situation were such that it would seem that Dyer would hear something other than this particular assertion, and there does not appear to be a clearly manifested purpose in making such a statement in the manner claimed. While I recognize that a similar statement was made by Prim to Eulert, which I have credited as having been made, this is a two-edged sword. On the one hand, it can support the contention that Prim made the threat as stated by Dyer. On the other hand, if Prim made the statement directly to Eulert, as I have found, why did he not likewise make the same statement directly to Dyer if he intended to influence her? In evaluating all the evidence in this incident, I conclude that the statement was not made as claimed by Dyer. Subparagraph (r) of paragraph VI of the complaint alleges that about July, Prim informed job applicants that employees must agree to refrain from any union activity as a condition precedent to employment by Respondent, and subparagraph (s) of paragraph VI alleges that, about the same time Prim told an employee that the employee was not to solicit for the Union at any time on the Respondent's premises. The evidence, as to these alleged incidents, relates to the employment of one Mike McGoldrick, of whom more will be said subsequently in connection with the discharge of Ronald Bowman. McGoldrick was employed by the Respondent pursuant to the instance and request of one Anita Newman, who had at one time worked at the Primadonna, and was a friend of Prim. Prim subsequently helped her obtain a job at the El Dorado in Las Vegas. She thereafter engaged in organizational activities for the Union at the El Dorado, which had evidently resulted in certain comments to Prim from the El Dorado management. McGoldrick was known as a (nonpaid) union organizer. When Newman suggested to Prim that her friend McGoldrick be employed, Prim mentioned to her that she had caused him embarrassment at the El Dorado, and that McGoldrick was an organizer. A discussion then ensued at which the question of McGoldrick's organizing for the Union was considered. According to McGoldrick, Prim said, "He said he would employ me if I did not organize or talk on behalf of the Union while I was working in the Primadonna during the working hours of the shift." McGoldrick agreed to these terms, and Prim then got him an application blank. Several days later, Prim met McGoldrick and Newman in the restaurant of the Primadonna, and a discussion ensued as to McGoldrick's employment. According to Newman, Prim said that he would take McGoldrick over and introduce him to Roberts and "reminded him at that time that he should not speak union in the store during working hours or sign up his people" to which McGoldrick agreed, and they went over to see Roberts. Thereafter, McGoldrick was employed. 1" The tables are 2 feet, 2 inches apart, so if Dyer were that 40 It undoubtedly did indicate a favorable attitude toward the close, she would have had to be at the end of the table nearest to Union, which would be important, particularly in the event of an the end of the table where Roberts and Prim were, with them at election, which was imminent at the time of Dyer's termination on the closest end of that table August 7, discussed infra. PRIMADONNA CLUB According to Newman, about 10 days or 2 weeks later, she had a conversation on the phone with Prim who said that one of his bosses had told him that McGoldrick was talking about the Union, and that he "wanted to remind Michael not to talk about the Union." According to Prim, at the time of his first discussion with Newman and McGoldrick he said, "How can I give him a job? You just got through organizing one place for the Union. If I put him in there, he is going to organize my place." Further quoting Prim, Newman replied, "No, he will not do that. He will not try to organize it as long as he is working." Prim then said, "All right, as long as he is working in there and don't try to organize my place. When he goes outside that place he can do whatever he wants to do. That's your business and his business." Subsequently, at the time that Newman and McGoldrick had the discussion with Prim in the restaurant , according to Prim, he had a further discussion with McGoldrick about the Union as follows: "He said that he would not discuss the union as long as he was working in the place and I said `that's all I want, that's the only thing as long as you are working in the place don't try to organize my place."' After McGoldrick had been employed for a time (and apparently was an acting supervisor), he had a conversation relating to the Union with McKay, a supervisor. McKay reported this to Prim who said he told McGoldrick, "I told him `Mike you gave me your word, Mike. You told me you wouldn't organize my place"' and that McGoldrick replied "I haven't." Following an overnight recess during which Prim admitted having spoken with his counsel, he testified as follows: "I told Mr. McGoldrick that I didn't want him organizing my club while he was on duty. After his duties were over, and he was off shift, he could do anything he wanted to. But as long as he was on shift, and on shift and working on the table, I did not want him discussing it with the other dealers. Now after he walked outside, he could do whatever he wanted to do or walk any place in the place as long as he was not working at that particular moment." The foregoing is set forth in detail because of the evident ambiguity in the original testimony on the part of McGoldrick as to what was told. It is evident from all of the testimony and particularly Prim's statement with respect to McGoldrick's promise or alleged promise not to organize that Prim in employing McGoldrick had in mind that McGoldrick would not do any organizing in the club. While he probably gave no particular thought to the question of working time or nonworking time, it appears clear that he did not contemplate any organizing by McGoldrick during the time that he would be working in the club or during the club's working hours regardless of whether it was working or nonworking time. As previously indicated, the club did not enforce any rule against union discussion or union solicitation during nonworking time and I do not consider that it had any such rule. However, in the case of McGoldrick, I conclude and find that a condition of his employment was that he would not organize in the club during the working hours of the club4t whether he was on work time or nonwork time. In his subsequent testimony, as set forth, Prim tried to qualify the restriction of McGoldrick as limited solely to when he was supposed to be actually working. But it i1 This would ordinarily be 24 hours a day 41 Piazza admitted to questioning practically all of the shift and specifically Turnbow, Hagemeyer, Wilson, Curtis, McSkimmings, and Bennett. Piazza denied telling Wilson that her union boyfriend had been picked up and he also denied stating to her or 121 appears evident from his earlier testimony and from the remark previously referred to about McGoldrick's organizing in spite of his promise not to organize, that Prim had not expected McGoldrick to do any organizing in the club. I do not find that the Respondent intended to invoke any general rule against solicitation, but I find that by conditioning McGoldrick's employment on his not organizing or soliciting for the Union at any time on its premises, Respondent violated the Act as alleged in subparagraph (s) of paragraph VI of the complaint, and that such was in violation of Section 8(a)(1). However, I do not believe that the evidence will support a finding that McGoldrick or anyone else had to agree to refrain from any union activity as a condition of employment, and accordingly do not find any violation as alleged in subparagraph (r) of paragraph VI of the complaint. E. Alleged Discriminatory Discharges in Violation of Section 8(a)(3) and (]) of the Act 1. General discussion In resolving cases of alleged discriminatory discharge, certain elements ordinarily should be considered. First, was there evidence of interference, restraint, and coercion under Section 8(a)(1) of the Act? As set forth supra, I have found such by the following; threats by Roberts of discharge for signing union cards, promises by Respondent officials of vacations, insurance, and holiday benefits following union organizational activities, and as inducement to employees not to participate in or support such activities, solicitation of participation in a participating group insurance plan, interrogation of numerous employees by Supervisor Piazza concerning union membership, interrogation of employees by Supervisor Grellman concerning union membership and union activities, threats by Supervisor Grellman of loss of job or reprisal for joining the Union, interrogation by owner Prim of an employee concerning whether she knew certain employees had joined the Union, a threat by Prim to an employee of discharge of everyone who signed a union card, interrogation by General Manager Roberts of an employee concerning union membership together with a request by Roberts to inform him if contacted by the Union or union representatives and, also the aforesaid limitation of McGoldrick upon his employment to union organizational activity outside the employer's premises. In addition, although not specifically alleged in detail, the record reflects interrogation by Piazza of practically everyone on his shift and repeated indications of heckling of employees on his part, including: commenting to the girls about a Las Vegas union election result; constantly requiring one of the dealers (Verda Wilson) to listen to remarks concerning the Union and its officials and, commenting concerning a purported union friend of hers who was arrested by the police one evening; referring to employee Molly Turnbow as "Union Molly"; and (according to Hagemeyer) to girls who were wearing shop stewards buttons as having their "union alls" on.42 With respect to the foregoing matter, where there is conflict between the testimony of Piazza and Hagemeyer, Wilson and Turnbow, I have credited the latter. Piazza anyone else anything about having "your union ails on " As to the conversations with Wilson and Turnbow, Piazza said he had been friendly with both of them for years and Wilson was also a good friend of his wife 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was trying too hard when testifying to convey an impression of objectivity toward the Union , while at the same time it was obvious that even after purportedly receiving instructions about April 30 not to discuss the Union , he continued to do so constantly and to manifest his opposition thereto. (See also footnote 30.) The record further reflects the Respondent's opposition to the Union in the general remarks of Prim at the discussion of April26 and the four releases distributed commencing April 27 and following.43 While I do not find these to be violative of the Act as such , they bear on the intent and state of mind of Respondent , particularly as to its opposition to this Union.44 Respondent contends that other items , acts, and conduct reflect that it had no discriminatory motivation or intent. It cites the hiring of Michael McGoldrick, a known union organizer, to be discussed more fully post; the employment of Russ Jones, allegedly a union adherent, and contracts with Reno Local Joint Executive Board of Bartenders and Hotel and Motel Service Workers, AFL-CIO, the Musicians Union , and the American Guild of Variety Artists, the latter covering certain employees irregularly or temporarily employed by it, as evidence of its nondiscriminatory motivation . In addition , it points to numerous persons who signed cards who were not terminated or threatened , many of whom it knew had so signed. Each of these contentions requires consideration. Are these real evidence of intent or only superficially so? In the case of McGoldrick, admittedly a (nonpaid) union organizer, his case and that of alleged discriminatee Bowman will be discussed in detail post. His employment by Prim at the instance of Anita Newman, a friend of Prim, was referred to in some detail supra. Newman and McGoldrick were close friends and he needed a job. Prim employed McGoldrick over the asserted opposition of his pit bosses and he commenced work as a crap dealer on August 11 . That Newman was the influential factor in his employment is manifest from the record . Subsequently, when Roberts sought to terminate Ronald Bowman, who was a friend of McGoldrick, and also of Newman, she intervened with Prim to have Bowman reinstated , and she made the phone call to have him come back to work. I do not consider the employment of McGoldrick, under the circumstances, to establish an attitude on the part of management of any general willingness to hire union employees-let alone organizers. Jones was hired after the terminations of Dyer, Eulert, and Bowen . While he volunteered shortly after employment at Primadonna that he had been a union member when employed at Las Vegas and had gone out on strike with others, he does not appear to have been particularly active. In my opinion , management was not concerned that he would be a strong union protagonist in any event , if at all. Jones' testimony was quite obviously friendly to Respondent. The absence of pertinent significance in the fact that the Respondent had certain union contracts was shown by the cross-examination of the General Counsel which established that the Musicians Union contract was necessary to obtain certain musicians , the Variety Artists contract was a prerequisite to obtaining performers, and the Bartenders and Culinary workers contract resulted 41 G C Exhs 4, 5, 6, and 7 ( Distributed to its employees ) 44 This is in no way intended as a criticism of nor an evaluation of Respondent's position vis-a-vis the Union Both the First Amendment to the Constitution of the United States and Section from the Respondent being part of an association of casinos which negotiated an associationwide contract in the area. Under these circumstances, I do not consider these contracts significant in establishing lack of antiunion motivation. The fact that the Respondent had knowledge of a number of union card signers who were retained in its employ, may require the General Counsel to show some other reason for discriminatory action than the mere signing of cards with company knowledge. Further, it appears from the evidence in the record that the Company was informed of the signing of union cards by the alleged discriminatees only by Eulert who said she so informed Grellman. There is no direct evidence that the Company was aware that any of the other alleged discriminatees had signed a card. While it may be possible to infer this from the questioning on the part of Piazza, who admitted to questioning all on his shift, to the assertion of Prim who' stated that practically all of the swing shift had signed, to the questioning on the part of Grellman, and to the questioning on the part of Roberts, the General Counsel has set forth other basis for discriminatory motivation in the cases of Eulert, Dyer, and Bowen, and also Bowman. He points to certain statements allegedly made by Eulert, Dyer, and Bowen to officials or supervisors of the Respondent, particularly to Herbert Grellman in the cases of Eulert and Bowen and to Grellman and General Manager Roberts in the case of Dyer. Assuming that the statements were made by them as previously and hereafter set forth, were similar ones made by other employees who are still employed by the Respondent? The record does reflect statements by two other employees as to their signing of authorization cards or their interest in the Union, which I will consider. However, I do not believe that these are comparable to those made by Dyer, Eulert, and Bowen The General Counsel asserts that the following statements were such as to form a basis for discriminatory motivation and action on the part of the Respondent. In the case of Dyer, the General Counsel refers first to a conversation involving her and Grellman about the end of April in which Dyer testified that she said "Well, as far as I can remember he mentioned that the union was trying to organize and asked [emphasis supplied] me how I felt about it, and I told him that I thought the union would be a good thing if the right-to-work law wasn't in, because I had belonged to the union in California, and the union gives you a lot of good and that I would join it if the right-to-work law wasn't in." Grellman denies questioning Dyer, but under examination by Respondent Counsel'45 admitted that Mrs. Dyer stated she had belonged to a union in California and it did a good thing or it was a good thing and that Mrs. Dyer stated she would join the union if it wasn't for the right-to-work law in the State of Nevada. However, under further cross-examination by the General Counsel, Grellman denied that Mrs. Dyer made such statements.46 For reasons set forth both supra and post as well as the obvious effort on the part of Grellman just indicated to tailor his testimony according to who was examining him, I do not accept Grellman's denial, but credit Dyer's testimony in respect to the aforesaid conversation. As previously set forth in the examination of the testimony respecting subparagraph (o) and (p) of paragraph VI of the 8(c) of the Act protect Respondent's right to express its views 45 See page 906 of the transcript of testimony 46 See page 1066-67 of the transcript of testimony. PRIMADONNA CLUB complaint, Dyer told Roberts substantially the same with respect to her feeling that the Union would be good if there wasn't the Nevada right-to-work law, which testimony I have previously credited. In the case of Reta Bowen, the statement which she made to Grellman indicating her position as to the Union, was previously set forth in connection with subparagraph (h) of paragraph VI of the complaint. Bowen stated that the Union might do a lot of good, and Grellman threatened that it might not be smart to get mixed up in it. I have previously credited Bowen's version as against Grellman's where conflicting. In the case of Eulert, in addition to the conversations with Grellman discussed in connection with subparagraphs (h) and (k) of paragraph VI of the complaint, Eulert testified she told Grellman about a week after May 2, that she believed that the Union could do us some good because it had the clubs worried, that she thought they would be a strong union and that she had signed a card. Grellman's denial is not credited for reasons previously indicated. The General Counsel relies on the foregoing as motivation for the Respondent's actions." In addition to the foregoing, General Counsel as evidence pertinent to establishing motivation points to a union handbill issued on August 1, which was sent by mail to an employee and presented by her to Piazza at the time stating in part: "All of the legal paper work concerning the NLRB election hearings recently held here in Reno is before the Regional Director in San Francisco. You can expect the Director to order representation elections within the next two to three weeks in the seven Reno casinos involved." Subsequently, an election was in fact ordered by the Acting Regional Director on August 10, but never conducted. In connection with the retention of Curtis and Paulk and the termination of Dyer, Eulert, and Bowen, a question may occur as to why were Curtis and Paulk retained if antiunion motivation were a consideration? One possibility is that their statements were not deemed to be as indicative of prounion attitude as those of Dyer, Eulert, and Bowen. Certainly, in the case of Curtis, there is an indicated reluctance to join or sign for the Union. In the case of Paulk, her position may have indicated union support, but it was not as strongly positive as the assertions of Dyer, Eulert, and Bowen. Also, she did not work on the graveyard shift. Another possibility is that Paulk and Curtis performed their work satisfactorily and Bowen, Dyer, and Eulert did not, as claimed by the Respondent. Still another could be that some union adherents or supporters were to be eliminated and these three, Dyer, Eulert, and Bowen who were all on the same ar The record reflects two other individuals who discussed the matter of joining the Union with supervisors One is lone Paulk, a witness for the General Counsel, whose testimony in part is referred to in the discussion of subparagraphs (e) and (f) of paragraph VI of the complaint, supra Paulk (now on day shift but employed on swing shift for a few months after March 5, 1965) said Shift Supervisor Piazza asked her whether she had signed and she finally admitted she had Piazza asked her why and she said she told him, "I don't know " Piazza asked her if she would sign a deauthorization card and she said, "I don't know " She then pointed out that, according to a company letter (release) she was to be free of pressure from the Company in connection with union activities Paulk is still employed by the Respondent As previously set forth, Piazza admitted a conversation He could not recall details, but denied seeking to obtain a deauthorization Margie Curtis, a witness for Respondent , employed on swing shift, testified that she told Roberts (at the discussion with him on April 24 supra) she had signed a card and he asked why and she said "Well, I don't know" and then said , "all the girls were signing them and one was handed to me and they asked me if I 123 shift were deemed most available or likely subjects. In order to fairly appraise what inference or inferences should be drawn, it is necessary to determine the validity of the alleged grounds for discharge. No doubt an employer may discharge for any nondiscriminatory reason or no reason with the burden of proof on the General Counsel to show discriminatory reason or motivation. Merely showing that the stated reason is not the true reason or that there is no valid reason would not be sufficient by itself. However, where is present violation of the Act such as interference, interrogation, threats, or promises of benefit coupled with other evidence of antiunion attitude together with knowledge of prounion conduct or prounion sentiments and later no valid reason or an untrue one is shown for the discharge, then a finding of discriminatory discharge may be reached. In such case, a proper finding may be made if there is no asserted reason for the discharge, if the alleged reason for the discharge is not true or if it is not the real reason for the discharge as shown by the evidence as a whole.48 Accordingly, a full evaluation of the testimony as to the discharges of Bowen, Dyer, and Eulert is in order. First, all three were terminated on August 6 and 7 from the same shift and at the height of the season when employees, according to Respondent, are difficult to obtain. The Respondent, when asked by me for an explanation , answered in its brief that this was due to the illness of General Manager Roberts, who had been either in the hospital or home from June 13 until August 5, so that no action had been taken on certain disciplinary problems until his return, when it was decided to terminate these three employees. This explanation could be a plausible one if supported. However, it should first be noted that Troye, shift supervisor, testified that at no time during the period of 2 years in which he had been a supervisor for the Respondent on the graveyard shift, had it terminated as many as two people at the same time or on consecutive days. Further, while the aforesaid explanation might be plausible under certain circumstances, here, the incidents that allegedly gave rise to the discharges all supposedly occurred within a 2-day period, two of them on the same night after Roberts returned. So that we are actually dealing with three allegedly serious incidents in 2 nights on the same shift ! This gives a different posture to the contention that Roberts' illness was a factor in the three discharges occurring within 2 days. Actually these appear to be either a most unusual coincidence of events, or an indication of some other motivation on the part of the Respondent, than that stated. would sign it " She also said that she wouldn't be bothered to go to a nearby studio-bar but insisted on the card being brought so that she could sign it in the club Roberts' version, which differs somewhat, but does not appear to be basically inconsistent, is set forth supra Curtis is still employed by Respondent In the case of Curtis, her statement indicates a reluctance to sign or at least that she was not anxious to do so In the case of Paulk, it is somewhat less clear what her attitude was other than that she had signed and that she did not want to be pressured into signing a deauthorization These differ substantially from the statements made by Bowen, Eulert, and Dyer, all of whom were on the graveyard shift "" See Shattuck Dean Mining Corporation v N L.R B , 362 F 2d 466 (C A 9), enfg 151 NLRB 1328, where the court said "If he [the Trial Examiner] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference (Emphasis supplied ) 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharge of Bowen What reason or explanation, if any, does Respondent give for the termination of Bowen on August 6, and Dyer and Eulert on August 7? The decision to terminate was made by Allen Roberts, general manager, who as stated had been ill from June 13 to about August 5 when he returned to work for short periods. In analyzing the validity of asserted reasons for discharge, the facts and circumstances involved in the making of the decision to terminate and its execution are pertinent as well as the actual incidents or acts upon which it may have been purportedly based. The former may throw light on whether the latter were really significant considerations or not in effecting the discharge. Accordingly, I shall start with the "decision making process" here involved in the case of each dischargee. Reta Bowen was employed by the Respondent in June 1964. She worked on the graveyard shift from 2:50 a.m. to 11 a.m. regularly, except during the university school year, when she worked weekends only. Also, during the summer months of 1965, she worked a split shift on 3 days from 10 p.m. to 6 a.m., thereby encompassing part of the swing shift and part of the graveyard shift. Bowen was working this latter shift the night of August 5-6 following which she was terminated. Roberts testified as follows concerning Bowen's discharge: Q. (By Mr. Magor) Who made the decision to terminate Rita Bowen? A. I did, after the report that the men brought to me at my house. * * * * * Q. Now, you say you received various reports about Miss Bowen? A. Yes. Q. From whom did you receive the reports? A. Mr. Grellman and Mr. Troye. Q. Do you recall when it was now that you received those reports? A. Well, they came to my house pretty regularly, Mr. Grellman did, almost every day, or every other day after my getting out of the hospital. He also came to the hospital on several occasions, and they would make reports and then Mr. Piazza made the final report which I then started to check into it thoroughly in regards to her insulting the lady at the table plus a night or two before, she had stopped dealing and turned to the dealer on the wheel and said something, some remarks in regards to people not tipping her beings they had won some money and didn't leave anything for the dealers. Q. Who did you receive that report from? A. From Mr. Piazza. Q. And you received a report about her insulting a lady, I believe you testified? A. From Mr. Piazza. Q. When did you receive those reports? A. I received the other reports from Mr. Troye and Mr. Grellman. Q. Let's go back. Which was the first report you received, the best you can remember today? A. I believe the first report I got was in regards to mistakes, but that was not the initial time. You see, they had made lots of corrections on her and what we do, we try to correct our help instead of just saying, "You are fired," because that's not the way you do in any business. Q. (By Mr. Magor) Let's take the report that you got from Grellman and Troye. Do you recall when they were in relation to the time she was terminated, Mr. Roberts? A. Well, the morning at the meeting, we discussed her and we discussed things in general. That was the day of her dismissal. Q. The day of her dismissal? A. Yes. Q. Who were you discussing this with? A. Mr. Grellman and Mr. Troye. Q. Where did this take place? A. This was after their shift. Q. Where were you talking to them? A. In the back part of the pit. Q. Tell us what was said. A. Well, they just made a general report as to how she was completely out of hand and would not observe any of the rules or regulations or anything and that she had made the remark that she did not care because she was quitting anyway. Q. Now, did they indicate what rules and regulations? A. Well, you have your rules and regulations in regards to dealing, in regards to being nice to customers, and she at that time was very rude to customers there at the last. Q. Now, you say there was a report with respect to a remark she made regarding tipping? A. Yes. Q. Who did you receive that report from? A. From Mr. Grellman. Q. What did he tell you about it? A. He said that she had stopped while she was dealing and turned herself completely around to the wheel behind her and made a remark in regards to the people winning a certain amount of money and didn't leave a thing for the dealers, in front of all these customers. Q. Do you recall when Mr. Grellman made that report to you? A. I am not positive . It was he or Mr. Troye. Q. Do you recall when? A. That was in the general reports which they gave me. I couldn 't say dust exactly when. Q. Now, you indicated that there was a report with respect to Miss Bowen insulting a customer. From whom did you receive that report? A. Well, I received the other one from Mr. Piazza, when she insulted a customer. You see, they changed a shift from 10:00 o'clock p . m. to 6 :00 a.m. and she preferred that shift and this lady, who is a very desirable and a long standing customer , started to sit at her table-is this what you want me to tell you? Q. I want to know how many other reports you got. A. And she called the pit man and said , "Do I have to deal to this shill," a shill meaning a house player, and so the lady got up and moved away from her table and took another table, but complained about it Q. Now, do you recall when it was in relation to the time that Miss Bowen was terminated, that Mr. Piazza told you about this? A. Well, it was matter of a few days, but just exactly how many, I cannot tell you. PRIMADONNA CLUB 125 Q. Who reached the final decision to terminate Miss Bowen? A. I did. Q. Did you discuss this with anybody? A. I explained it to Mr. Prim, just exactly why that I thought that she should be terminated. Q. What did Mr. Prim have to say? A. He agreed with me and left it up to me. Q. How was she notified of her termination; did you do it? A. No, I had-I believe-Mr. Grellman. I think I had him call. * Q. (By Mr. Magor) Did you give the person who called Rita Bowen the reason why she was being terminated? A. I did not. Q. Did you tell Mr. Troye and Mr. Grellman that Miss Bowen was being terminated? A. No, sir. Q. Was Rita Bowen terminated at all because of any union activity? * * * * * THE WITNESS: No, sir. * * * * * Q. (By Mr. Magor) Before Miss Bowen was terminated, did you tell Mr. Troye and Mr. Grellman that she was being terminated? A. I told Mr. Grellman to call her and tell her she was being terminated. It is manifest from the above that Roberts who was in attendance during most of the hearing, had difficulty in formulating just why or when he decided to terminate Bowen or when he received what information from whom, or even how and by whom he effected her termination. From his testimony, it appears either he had some rather vague (undefined) reports from Grellman and Troye about Bowen during the time he was in the hospital and at home or he received them the morning of the discharge-as set forth, Roberts changed his testimony as to when he got the reports. It should also be noted that Roberts says at one point he made the decision to terminate Bowen "after the report the men brought to me at my home" (referring to Grellman and Troye presumably) and at another . . and then Mr. Piazza made the final report which I then started to check into it thoroughly in regards to her insulting the lady at the table plus a night or two before, she had said something, some remarks in regards to people not tipping her....' and at still another in response to a question about when he got "the report" from Grellman and Troye, the answer was, . . that was the day of her dismissal." At still another point, in response to a question of from whom did he receive the report about tipping, the answer was "Mr. Grellman." Roberts recited what Grellman purportedly reported and then said "I am not positive. It was he or Mr. Troye." The preceding as well as the following specifies wherein Roberts' testimony varied not only as to when he got reports, but as to from whom, and also as to when he decided to terminate Bowen. In response to a question of when did Piazza tell him about the "shill" incident, Roberts' answer was, "Well, it was a matter of a few days; but just exactly how many, I cannot tell you." (If this were so, it would have to be sometime after Bowen was terminated, since that "incident" occurred the night before her discharge.) Also, Roberts stated that Grellman and Troye, when they left, did not know Bowen was going to be terminated, but then he stated he told Grellman to call and tell her she was being terminated.'`' If the above were not conflicting and confusing enough, Grellman testified that the last time he spoke to Roberts about Bowen (prior to her termination) was when Pat Mooney's daughter was married about 30 or 35 days before Bowen's discharge-contra to Roberts' assertion that he was receiving continual reports from Grellman and Troye up to the time of Bowen's termination. Neither Grellman nor Troye refer to any conversation with Roberts after his return or the night or day immediately preceding her discharge. Further, while Roberts said he told Grellman to call Bowen to terminate her, it is clear50 that he in fact told Piazza who then called Bowen. (She later called Grellman and this may have confused Roberts who was present at the hearing a large part of the time.) Roberts also stated that he decided to terminate Bowen and discussed it with Prim who, according to Roberts, agreed with him. Prim, however, testified he did not know Bowen was going to be discharged before it occurred. To still further becloud the matter, Piazza's version was that he told Roberts that Bowen had insulted a customer (a Mrs. Rohlfing) by asking him in Rohlfing's presence why he put that "G-Damn shill on my table for?"51 Piazza further testified he told Roberts he had removed Bowen from the table52 and talked to Grellman and Troye about her other violations and "we had decided to recommend her dismissal." According to Piazza, Grellman and Troye agreed with this recommendation. According to Grellman, he did not recommend Bowen's discharge nor was he told of it before it occurred. Troye stated he did not recommend her discharge to Grellman, and the first he learned of it was from Piazza afterward, who didn't tell him the reason. Grellman told Troye (later) the main reason was for "mistaking a regular customer for a shill." The foregoing reflects rather emphatically that Respondent either had no valid reason to terminate Bowen, or was not in a position to assert one if it existed. When viewed in the light of its antiunion conduct and attitude previously found, coupled with Bowen's expressed prounion position, there appears a pretextual discharge with discriminatory motivation in violation of the Act. Without unduly belaboring the matter, a brief consideration of the alleged grounds (which evidently are not the real ones) will be conducted. First, is the so-called shill incident. According to Piazza's version, Bowen, in his 'y Roberts was not entirely well at the time of the events in August following his heart attack, but presumably was capable of making the requisite management decisions I am also aware that, although Roberts was working regularly, he was not entirely well at the time of the hearing However, he appeared fully competent during his testimony, and was afforded every opportunity to rest as requested or appeared necessary. 50 See testimony of Piazza , Grellman , and Bowen 51 As set forth infra, Bowen admitted she may have referred to a "damn shill," contending the reference was later , but not being certain when it was said Note Rohlfng's version contra to Piazza, Infra 51 Bowen's version is that she was not removed from the table over this incident Bowen indicated her table was changed because her luck was bad 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presence had called Mrs Rohlfing, a regular customer, a shill and Mrs. Rohlfing had heard it and angrily left the table. Piazza also said that afterwards Mrs. Rohlfing told him "She said she was highly insulted about being called a shill [emphasis supplied] and that she said the girl was real nasty to her while she was playing at the table; like throwing her cards at her, money at her." Piazza added that when he saw Rohlfing 15 or 20 minutes after she had left Bowen's table, he went over and apologized "for what the girl called her...." Piazza also said he reprimanded Bowen later that evening for stating what she had about Mrs. Rohlfing. Bowen claimed she made a remark about a shill to Piazza later as she left to go on a break53 and Piazza did not tell her Rohlfing had complained to him about her, nor did anyone from management speak to her after she went on her break.54 While there is a great deal of detail about this incident, the simple answer to Piazza's version of Mrs. Rohlfing allegedly having heard the statement, complaining about it and his apologizing to her that night, is furnished by Mrs. Rohlfing, called as a witness by Respondent. Mrs. Rohlfing testified that she had been disturbed by the way Bowen dealt to her, telling her not to turn her cards up, and throwing out both the cards and money so they were not in the same place twice. Rohlfing said she saw Piazza standing nearby where he could observe and she assumed he would take whatever action was necessary. However, as to the "shill" reference relied on by Respondent, Rohlfing testified: "Well, she said something about a shill. I don't know if she was talking to me or not, but when I got away from the table I thought, `Maybe she just thought I was a shill,' but I didn't know whether she did or not." Significantly, and contrary to Piazza, Rohlfing was asked if she reported the matter to management and she answered "No, I didn't." She was asked on cross-examination if she spoke to Piazza "at all that night" and replied "Not that night, No." She was asked "Did he say anything to you when you left the table?" and replied "Not a word. I didn't even know whether he noticed it or not until after he told me about it a day or two later." I credit Rohlfing's version of her conversations or lack thereof with Piazza. This further supports the conclusion that the so-called shill incident was part of a pretextual discharge. Another alleged incident relating to Bowen involved a statement Bowen admitted making to another dealer about a customer who had won $500 without leaving a dime and asking "how cheap can a customer be." Bowen denied she made the remark in front of the customer. Two of Respondent's supervisors, Troye and Chapman, testified the player was still standing near the table when the remark was made loud enough for him to hear. Troye said he told Bowen she could not talk that way and that she told him she didn't care. Bowen couldn't recall Troye telling her not to be rude to customers but denied telling him she didn't care. Bowen was not removed from her table and it does not appear that she was ever spoken to by management about this incident other than Troye's asserted cautioning. Moreover, Troye admitted he had never heard her gripe about not receiving a tip before. Chapman, an assistant shift supervisor, testified he had heard other dealers gripe about tips on perhaps five or six occasions over a period of 12 or 13 years. In addition to the above, Respondent claimed that Bowen dealt two-handed instead of one-handed and had been reprimanded for this constantly-almost daily. Bowen denied she did so except to "change her luck." Respondent offered substantial evidence to the contrary and evidence indicating that this was a matter of considerable importance to it and dealers and customers in preventing cheating. Even if it weren't important, Respondenntt could lawfully enforce almost any rule it might invoke or apply so long as it was not discriminatorily applied or motivated. But assuming arguendo that the rule has a legitimate and important purpose the question arises why allow its constant violation for over a year and then seek its enforcement at the height of the season when help according to Respondent is hard to obtain? The same applies to Respondent's testimony about Bowen's allegedly talking to friends and letting customers wait (which Bowen denied), to Troye's testimony that at least once a night he had an argument with Bowen about changing the deck of cards, and to her practice of taking her shoes off and dealing in her stocking feet and taking her sweater off and putting it on again, etc. The latter, the shoe and sweater items, admittedly occurred with Bowen claiming the club was superstitious and approved this and even two-handed dealing (if her luck was running bad), while Respondent denied approving these and asserted Bowen was superstitious. Although some of Bowen's acts and conduct aforesaid might constitute a valid basis for termination under certain circumstances, the question to resolve is whether such is the case here. I think it is obvious that it is not. The whole pattern including Roberts' own conflicting assertions, the conflicts in testimony between Respondent witnesses Roberts and Grellman, Roberts and Piazza, Roberts and Prim; Piazza and Grellman and Troye, and the conflict between Piazza and Respondent witness Rohlfing concerning the allegedly vital "shill" incident all point to the same conclusion. Further the so-called tipping incident is obviously an added item to which little significance was attached at the time and as to the remaining incidents to paraphrase "Respondent doth protest too much me thinks." If these latter were so important, why were allegedly almost daily occurrences allowed to continue for over a year?55 From my analysis of the testimony and the record as set forth above, I find and conclude that Bowen was discharged in violation of Section 8(a)(3) of the Act. 3. The discharge of Eulert Eulert was employed at Primadonna commencing February or March 1965 as a "21" dealer on the graveyard shift until her termination August 7, 1965. She had worked there on previous occasions. Roberts testified as follows concerning Eulert's termination: (Questioning by Mr. Magor continued) Q. And why was she terminated? A. Well, the reports which had come in to me before, as I say, came back to me-when I came back 5' At another point in her testimony she indicated that the "shill" remark could have occurred when Mrs Rohlfing was at the table 54 For obvious reasons and particularly in view of Rohlfing's testimony infra, I credit Bowen 's version ss Substantial testimony was adduced concerning whether or not Bowen planned to leave about the beginning of September It appears that if she could do so, she intended to obtain additional schooling I do not consider it necessary to resolve this because if the Respondent were desirous of eliminating her as a union participant or protagonist at the time involved, it would not appear to matter whether or not it knew she intended to leave about early September or later , or not at all PRIMADONNA CLUB to work, had been several and which were completely out of order for a dealer who had been there as long as she had. It all added up to where we decided we would replace her. Q. What reports had you received and from whom? A. Well, the first report I received was-let me say, we have the $20 chips, the $5 chips and the $1 chips, and a fellow gave her a $100 bill and she took the green chips and dealt out 20 of those, which was $400, and someone stopped her from that. Then, later on in my reports, I had words that she had given change for another $100 bill and had given four greens and 20 yellows, which is $180 for a $100 bill. Now this supposedly happened before I had come back and the morning in which I came back-I was there those few minutes-the report was that someone had bet $100 in one hand and $140 in another, which she was supposed to call a floorman and didn't and he had a double down 56 which is a 10 or 11 for this, which would have been $280 and $100 here, and he won the bet; the player did, and she called no one's attention to the play and it is a strict rule that they call attention to the floorman of anything $50 or up and so I knew that she knew better than that, but that was the final thing in regards to her that morning. Roberts said he did not recall whom he had call Eulert (to notify her she was terminated). On cross-examination, Roberts testified he learned about the large bet incident involving Eulert from Troye and Grellman on the day she was discharged; that Troye reported it and he believed Troye and Grellman were together (but was not sure). He was asked: (Questioning by Mr. Weintraub continued) Q. Now, when did you learn that,Miss Eulert had given $180 for a $100 bill? A. That-I possibly got a report on that-it wasn't that morning, but I had gotten a report on it but when, I couldn't tell you. Q. A. Q. A. Q. A. Q. A. Q. you? Well, approximately how long before? I would have no way of knowing. Who was the report from? It came from, I believe, Mr. Troye on that one. Was that in the club? You mean the report? Yes. It seems like I got that before I got to the club. Could that have been Mr. Grellman who told A. It could have been either of them. Subsequently in further cross-examination Roberts testified: Q. Now, when did you get this report about Miss [sic] Eulert giving someone $400 for a $100 bill? A. Well, that would have-I'd have to almost believe that was all that morning. Q. Was it at the same time that you learned that at another time she had given $180 for a $100 bill? A. I think I learned all of that that morning. They were compiling all of her mistakes and errors. sb Where a player has a point total of 10 or 11 on two or more cards he may turn them over, take the next card down, and double his bet 127 Q. Who told you that she had given $400 for a $100 bill? A. Mr. Troye. Q. Did he tell you when she had done that? A. About a week or so prior, before. Q. Did he tell you that she had given $180 for a $100 bill? A. That, also, was Mr. Troye, I believe. Q. Did he tell you when she had done that? A. Yes, just a night or two before this incident or dust-it wasn't too long before. Roberts questioned by me thereafter testified: Q. It is your testimony now that they gave you these incidents as they happened? A. No. The morning that this all happened, they told me about these other incidents and the approximate time that they had happened. And then stated: Q. What was the mistake that Mrs. Eulert had made that day? A. The one they reported to me, which did not happen that day, first, was a man bought $100 worth of chips, which is $25 (twenty $5)57 chips, or we have green chips that are $20 apiece, and she just spread out 20 greens for $100 which is the greens and the yellows, and we accepted that as a mistake. Mr. Troye, I believe it was Mr. Troye, went over and corrected her. Then, it was a week or so later that another party was buying a hundred dollars worth of chips. She gave him four greens and 20 yellows which is $180. She should have given four greens and the $20 ones.58 We also accepted that as a mistake because we did know that she's been dealing a long time and she had worked for me for four or five times and the morning that the final thing happened, as I recall correctly, a man was betting $100 in one hand and $140 in the other, and whether it was money or chips, I do not know, but anyway, she was supposed to call the attention to a floorman and she didn't and this man had a double down which is $140 for making the $280 and by the time the floorman got down there, who was Mr. Troye, she had already picked up the cards, paid the $280, which made the total of $560. Now, what happened with this hand here, I don't know whether he won that or not. I don't recall whether they said he did or he didn't, but anyway, that was the final mistake. Subsequently, when further cross-examined Roberts testified: (By Mr. Weintraub) Q. Will you tell us again when you first learned that Mrs. Eulert had made the mistake of getting ready to pay $400 for $100? A. The morning-this was all reported to me the morning I was there. Q. The morning of the discharge? A. Yes, sir. Q. And is that the same time that you first learned that Eulert was going to make the mistake of paying $180 for $100? A. Yes, sir. I believe that was the first time I had talked to those gentlemen down there, because they 51 As corrected 18 Twenty, dollar ones 7 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't come to see me as often after I got out of the hospital and it was mighty close to the first morning I was there. Roberts again is not clear when he first heard reports about Eulert. He starts by testifying as to reports "which had come in to me before ... came back to me-when I came back to work, had been several [emphasis supplied]...." Then he refers to a first report of someone stopping her from giving $400 for a $100 bill, then later a report that she had given $180 for another $100 bill. These supposedly happening before he came back and then the morning he came back a report that she took and paid a large bet that morning without calling a floorman (as required) which was the final thing. Roberts said that Troye reported it but he was not clear whether Troye or Grellman were together. Subsequently Roberts changed his testimony to conclude that he learned about all of the mistakesgot the reports the morning that the large payoff (without calling the floorman) had occurred, that the incidents were close to when he came back-the $400 mistake in payment a week before and the $180 one a day or two before. To add to the confusion Roberts places the large bet incident as being on the morning he returned. Since this incident was on the last day Eulert worked or August 7 it would date Roberts' return as August 7. Yet Roberts had testified he returned on August 5 and subsequently that he was in the Primadonna discussing the Bowen "shill" incident the morning after it occurred or on August 6. To further complicate the picture is Troye's testimony that he told Grellman about the $100 bill incident about a week after it occurred contrasted with Grellman's that Troye told him about it the day it occurred. It should also be noted that Roberts first said he learned of the large bet payoff either from Troye alone or Troye in the presence of Grellman and later Roberts said he learned of it from Troye and then called Grellman. Troye said he discussed this with Prim and Roberts in the company of Grellman about 10 a.m. but Grellman testified he told Prim and Roberts at 8:30 a.m. and Troye was not there. If this weren't enough inconsistency the testimony as to the alleged mistake or mistakes in payment add thereto. According to Roberts he had learned of two incidents where errors in payment by Eulert almost occurred-one a week before involving a situation where $400 was about to be paid instead of $100 and the other "just a night or two before this incident" where $180 was about to be paid instead of $100. However, supposedly these both were prevented by Troye but Troye only testified as to one incident occurring about a week prior to Eulert's discharge-which Troye described as involving a started payment of $180 but Eulert described as involving a started but not completed payment of $400. Betty Stantliff, another dealer, who testified as a witness for Respondent described this incident as involving a started payment of $400 in payment of a $100 bill. It appears evident that in actuality there was just the one incident (although Grellman to further complicate the matter referred to an alleged "almost" payoff a couple of months earlier of $400 for $100-which I find was either the same one testified to 50 Although there was some confusion initially in her testimony about whether she was paying out $180 or more, it became evident shortly that Eulert had picked up 20 green chips which amounted to $400 when she caught the error (The confusion as to amount apparently arose from her at first not fully comprehending the question on cross -examination ) by Troye, Eulert, and Stantliff or didn't happen at all). There is dispute as to just what was said. Eulert originally testified that she called Troye and said "That isn't right is it?" and that Troye replied, "No, it isn't." Subsequently on rebuttal Eulert testified that she said "That is too much wasn't it?" and that Troye kind of laughed and said "Yes" and then made a joking remark to the customer and that was all there was to it. Eulert claimed that she had caught the mistake immediately and then made the proper payoff.59 She also said that the player did not leave the table for some time. According to Troye he viewed the particular incident, Eulert did not call him over, he was standing about 9 or 10 feet away, she had placed the money closer to the player than to herself and was about to pay him $180 instead of $100. According to Troye, Eulert was about to give him 20 yellow $5 "checks" (chips) and 4 green "checks" (chips) or $20 "checks" (chips), a total of $180. (Note that Eulert had previously testified that she had started to give the player 20 green chips of $20 each.) Troye testified that he had walked over, taken the money from in front of the player, set it in front of the rack, and asked Eulert to check it again. Eulert looked at the money, claimed it was correct, and he again asked her to check it at which time she did so and agreed that it was incorrect, that she had given the player $80 too much. Troye said she then agreed there was an error and that the player left the table. (As set forth, Eulert stated that the player remained at the table for some time.) Troye testified that he reported the incident to Grellman about a week later and repeated that Eulert had not called him to the table on that occasion.60 Respondent witness, Stantliff, testified that she saw an incident where a man came up, put down a $100 bill, and Eulert had reached in her tray and counted out 4 stacks of $20 chips and started to hand them to the customer, that as she did so, Troye who was standing in back of her, walked up and touched her on the hand and that Eulert said "oh, what am I doing?"-and brought the chips back and then counted out $100 in yellow chips. In response to a question of where were Eulert's hands at the time Troye touched her, Stantliff said, in front of the customer. Eulert had reached out to hand the chips, which were $20 green chips, to the customer. According to Stantliff, there were 4 stacks of 5 green or $20 chips totaling $400. Stantliff also testified that Troye was standing to the side of Eulert where he could see the action. Stantliff said she did not notice or hear any conversation between Troye and Eulert at the time. She also stated that Eulert's hands were still on the money and had not left them and the customer remained at the table. She did not notice Grellman around at all. The incident was a few days before Eulert was terminated. Based on the testimony of Eulert and in part that of Stantliff, I credit Eulert's version of the incident including particularly that she did "call" Troye. It is also evident that since Troye (whom I credit as against Grellman in this respect) did not report it until the date of discharge, that Troye did not consider the incident of major importance. This brings the matter to the alleged incident of August 7 where Eulert supposedly did not call a foreman to observe the dealing of a substantial and subsequent 60 On cross-examination , Troye said he could not remember any other time that Eulert had failed to call him when making change He also said he did not take her off the table for that incident since "she said it was an honest error and I accepted her at her word." PRIMADONNA CLUB payoff. Eulert's version was that she did "call" Troye which she later corrected to say that she saw him standing nearby and that he was observing the action-she explained that a "call" may be made orally or by nodding or by checking to see that someone has or is observing the proceeding. Eulert further testified that Grellman was at a cage some distance away but that he came over to observe the action while play was going on. Eulert denied that at any time did anyone raise any question about this bet or was she taken off the table. She further testified that the individual who made the bet was an Oriental.s' Troye's version of the incident was that somewhere between 5 and 6 a.m. he was standing about 20 feet from Eulert's table, at which time did not see Grellman but did see a large sum of money on the table and hurried over. He observed that Eulert had "gone broke" and was in the process of paying a player on two different bets totaling $380 so that the player was to receive and did receive $760. He asked Eulert "How come you didn't call anybody on this action?" and that Eulert replied, "Herb is here. He should have seen it from where he's at." According to Troye, he noticed that Grellman was 25 to 30 feet away checking at a table with his back to Eulert. He allowed Eulert to continue to pay the bet and called Grellman over. Grellman said he didn' t see the action and told Troye to get another dealer and replace her which was done. Troye said that Eulert had not signaled to him to observe the bet and that she had never paid off a large bet before without calling him to the table. He said that he reported the incident to Mr. Roberts and Mr. Prim without recommendation. Grellman testified that he was closing out a table at the end of the pit and that he turned and saw Troye standing by Eulert's table and saw a large sum of money in front of a player. He proceeded to the table where Troye told him there had been action without anyone having been called including himself. According to Grellman, Troye asked him if he had been called. Grellman replied he had not. Troye then described the bets and added that Eulert had been paying them off as he stepped up to the table after she had gone broke. According to Grellman, he then told Troye to take her out of the game and she was replaced by Mae West. (Eulert denied that she was replaced.) On cross-examination Grellman stated that he first noticed the money on Eulert's table as he was proceeding down the pit. He said that Troye had just stepped up to the table as he was walking toward it and that as soon as he got there before anything else had been said that he told Troye to take her off the table. 81 Respondent makes a point of the fact that Eulert originally testified that both of the pit bosses saw the action and that she subsequently testified that Grellman came over during the course of the play This is an instance of what may appear to be an inconsistency and yet viewed in its context , I do not consider that it is because in fact if Eulert 's testimony is credited, then Grellman did see part of the action As indicated infra, I am crediting Eulert's testimony as to this incident for reasons set forth 61 In addition to the reasons outlined before, I also note the following items in connection with Grellman 's testimony which raise serious question as to his credibility There is the difference between Grellman's testimony and Piazza's with respect to the discharge of Dyer as to whether Grellman did or did not speak to Piazza which is set forth infra, there is the difference between Grellman's version with respect to the discharge of Dyer as compared with the testimony of Roberts and also that of Prim And I also noted in observing Grellman's response to certain questions the following On one day Grellman testified as to certain matters occurring in July After an overnight recess he 129 Apart from the conflicts between the testimony of Eulert, Troye, and Grellman, and the conflicts between Troye and Grellman as to whether Troye had called Grellman over which Grellman indicated in his testimony was not the case and the variance between Grellman's original version of what he saw and when and his subsequent version on cross-examination, there occurred another conflict in testimony between Grellman and Troye which is rather significant. Eulert had testified that the man at her table was an Oriental. Grellman and Troye were called in rebuttal as to this testimony. After Grellman had described the man as an Italian, Troye was excused from the courtroom while Greuman testified further as to his description. According to both Troye and Grellman, the player was not an Oriental but an Italian. Grellman described the man as wearing a dark blue-gray jacket with a shirt and no tie. Grellman said that the man was 58 or 59 years old, shorter than he was, stocky and had wavy, salt and pepper colored hair. Troye described him as being as tall as Grellman, thin, about 50 years old and wearing a suit and tie. At first Troye could not recall what his hair was like, but then described it as being straight and black. This conflict indicates rather clearly that Grellman and Troye were not describing the same individual or, if they were, certainly one of them was not giving an accurate description. Eulert's description of the man as an Oriental obviously conflicts with both Grellman and Troye. In this instance, I am crediting Eulert's version as to the description of the individual as an Oriental and finding that the description as given by either Grellman and Troye was not a description of the individual at the table, at least not in one or more material respects. The testimony given by Grellman in this instance of a man whom he had seen briefly, was so positive and detailed as to raise serious doubts as to its credence in the first place. Troye was detailed and definite but not quite as positive in his description of the man whom he purportedly saw at the table. However, he joined with Grellman in describing the individual as an Italian. As in certain other instances for reasons previously set forth, I find Grellman is not to be credited.az Further in view of the conflicts of testimony between Grellman and Troye, and the fact that I considered Eulert's testimony to be credible and reliable, I am crediting Eulert's version as to the alleged incident on the date that she was terminated and find that it did not occur as claimed by Respondent. Accordingly, with respect to Eulert, I find that there was only one incident involving a purported or started overpayment to a customer involving testified that they occurred about in April which put them in a time sequence where they more logically would appear to fall. Grellman was asked by the General Counsel whether he had a chance last evening to "refresh your recollection as to certain dates9" Grellman frowned in response to this and then in a somewhat belligerent answer responded "I never gave it any thought after walking out of this court " Both the answer and the manner of giving it indicated a lack of candor in response to this question In a similar vein , Grellman was asked, "Did Mrs Dyer make any more mistakes than any other dealer" He hesitated and then responded "I'd say yes." Subsequently he qualified this by answering : "Yes, sir, small mistakes, they didn 't mean too much." He was shortly thereafter asked "Q . Is the incident that took place on August 7th the only serious mistake in your estimation that Mrs Dyer made? A. It was the most serious, yes. Q Is it the only serious mistake that you observed7 " Grellman here again hesitated before answering and finally said, "yes " These questions were propounded by the General Counsel and as previously set forth , Grellman's responses appear to vary depending on which counsel was asking the questions 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $400 which had been taken out of the drawer to pay for a $100 bill. I further find that in this instance the payment had not been made, but that Eulert still had her hand on the money, that when Troye called her attention to it, she had immediately realized the mistake and taken the money back. I also find that she had called Troye to observe the payment that was being made, either directly or by signaling, or noting that he noticed the action that was taking place. I also find that this incident was not considered to be of importance by the Respondent since it was not even reported until the day she was terminated. As to the bet incident on that final evening, I have concluded and find that Eulert's version is correct, that she had signaled to Troye who noted the action and that it occurred as stated by her. I have, as indicated, discredited the conflicting versions of Grellman and Troye as to this alleged incident. It is also claimed that Eulert supposedly had been guilty of some other matters which were not even referred to by Roberts as reasons for her termination. Eulert was said to have looked at her "hole"63 card the wrong way so as to bend the card. She had been corrected on it many, many times, according to Grellman. Troye testified he had to call her about this at least a couple of times a week, but that there was never any change after he mentioned it to her. Eulert testified that she had looked at her "hole" card as she had been taught at Primadonna and denied that she had been reprimanded on many occasions for not so doing. If the matter were as serious as Respondent indicate S64 then, it would seem that something should have been done about this long before this time to any dealer who was violating a rule with respect to it to such an extent that it would be necessary to call the dealer's attention to this infraction of the rules as much as twice a week for the past 6 months, and, presumably, before that time. Accordingly, this latter appears to be a purely pretextual matter which has no substance. Also introduced by the Respondent at the hearing were certain records as to the hours of work by Eulert which supposedly indicated that her work record was not as it should have been. The first answer to this appears to be in the testimony of both Mooney, the secretary-treasurer, and Grellman, that actually neither they nor anyone else in the management hierarchy had checked to determine how many hours Eulert had actually worked, and that the records of this were kept in Mooney's office. Mooney testified that neither Prim nor Roberts had come to look at the records, and he had not been asked to go over or determine the records with respect to time worked by Eulert, or for that matter Bowen or Dyer as to whom something will be said subsequently. Nor could he recall any request being made to his office for such information. The record also reflects that, during the period from July 14 through 23, when Eulert was not working, that she had been absent with the measles and Grellman knew about this. Here again the effort to bring in the records of time worked, as a basis or additional basis 6 i A down card held by but not shown by the dealer while play is in progress 64 Respondent contends and offered evidence that a bent "hole" card can be used by customers to determine what cards to play es There are various other discrepancies and differences in the testimony of Grellman and Troye set forth in the record as to this incident 66 It should be noted in connection with the operations of the gambling casinos that testimony was elicited to the effect that warnings were not given and that at times discharge has been for termination becomes purely specious. These were not referred to by Roberts as a basis for her termination, but rather the alleged incidents of purported improper payoff and claimed failure to call a floorman to observe the action in the case of a player involving a large sum. The foregoing indicates that the Respondent's purported reasons for discharge of Eulert were not the real reasons, but were asserted as a pretextual basis of discharge. This is particularly evident from the contrast between Roberts' initial testimony of when and from whom he received reports about the "claimed improper payoff or payoffs" and other incidents with his later version; the conflicting testimony of Grellman and Troye as to when and with whom they reported what to whom; the conflicting versions of Troye and Grellman as to when the payoff incident was reported by Troye to Grellman; the conflict between Grellman and Troye involving the incident of the large bet as to such matters as to whether Troye called Grellman or not, as to the identity of the man at the table and as to various other details contained in the record;65 the significant discrepancy in the testimony of Troye and Respondent witness Stantliff as to the $100 bill incident previously detailed, etc. These and the previously detailed testimony as to Eulert including conversations between Grellman and Eulert, and Prim and Eulert together with the numerous violations of the Act by Respondent, previously found herein, and the timing of the discharge at the height of the season during the period between an NLRB hearing and immediately before a direction of an election, make it clear that Eulert was discharged contrary to the Act. Accordingly, for all of the reasons set forth above, I find and conclude that Eulert was discharged in violation of Section 8(a)(3) of the Act. 4. The discharge of Dyer Florence Dyer began work for Primadonna, her last time, in February 1965 as a "21" dealer on the graveyard shift. Her supervisor was Herbert Grellman. She had previously worked at the Primadonna some years before and had been then laid off for not coming in on a weekend.66 As previously set forth, I have credited Dyer's testimony with respect to a conversation with Roberts about June 2 relative to union organizers and organization, in which she stated or told Roberts that the Union would be a good thing except for the right-to-work law. In so doing, I consider this to be in line with the general nature of prior inquiry by Roberts on April 24, the activities and inquiries of Piazza and Grellman67 and the general position of Respondent with respect to union activities, etc. Roberts testified that he decided to terminate Dyer based on a report received from Prim and Grellman on August 7. According to Roberts, Prim and Grellman reported to him about her dealing, that she started to pay a blackjack which was to be paid at one and a half to one and peremptory I find it unnecessary in resolving the issues herein to evaluate the significance of lack of warnings but, for the purpose of this matter, will assume, particularly in view of the uncontradicted testimony, that warnings are not customarily given in gambling casinos, and in any event, have not been given at the Primadonna, so that absence of warnings would not form a basis for finding of improper motivation 6r Also as previously stated , supra, Dyer had made a similar statement to Grellman in April in response to his asking her how she felt about the Union PRIMADONNA CLUB she got up to $150, which was three to one, that they both jumped at the same time to stop her and Grellman paid the bet. She then, according to Roberts, walked off from the table and they put another girl in her place, and this was the report that he got. He thereupon decided to replace her. Roberts then testified that he thought Grellman made a call to tell her that she was terminated, but it could have been Piazza. According to Roberts, Grellman did not tell him that he would like to terminate Dyer Roberts subsequently testified on cross-examination that Grellman, in addition to telling him about the blackjack incident on August 7, had made other complaints. But whether these were told him that particular day or not, Roberts did not recall because he said Grellman had visited him at home a couple of times a week. According to Roberts, Grellman complained about Dyer's bad counting mistakes and her inefficiency as a dealer and said he thought something was troubling her. Subsequently, later during his testimony Roberts stated that he had checked and it showed that Piazza made the phone calls to terminate the girls, including Dyer .6B Roberts repeated his previous testimony about the report that he had about the alleged payoff, repeated that Dyer had been taken off the table, said he had received various reports about her over a period of time, and that she had made numerous mistakes. When asked what mistakes, he answered, "Pushing. When she wouldn't have the bet won, I would correct her on it Also on paying off Blackjacks she seemed to have trouble with the three to two, which is the correct amount on a Blackjack."69 He stated that her problem with "pushing" was in her counting, so that she didn't know when she should collect or not collect. Roberts added that they had numerous other reports and she had so many troubles that she didn't seem to be able to get her mind on the game. Grellman testified that he had a conversation with Roberts and Prim in which he told Roberts how she had made the overpayment on the blackjack, and Prim had corroborated it since he had seen it. Grellman said that he also told Roberts that many times before Dyer had been in a faraway state of mind, that her mind wasn't on the game, and that it looked like she had been taking medicine that made her drowsy. Grellman then testified that he said to Roberts and Prim, "I think we should terminate the girl," and that they agreed with him. It should be noted that Roberts said that Grellman did not make such a recommendation. Prim, when questioned, also testified that Grellman did not make such a recommendation. Grellman stated that Dyer called him about her termination the same day, that he expressed surprise at her termination70 and he told her that he did not know anything about the matter, that he did not know that she had been fired or why but would try to find out.71 Grellman explained he so told Dyer because he gave no reason as to why people were terminated and the clubs that he had worked in typically did not give any reason. Grellman also testified he had complaints with respect to Dyer which were "that many a time she'd come 6' This testimony was elicited by me 89 I e , to pay $3 for each $2 bet if the player has a blackjack or " 0 Grellman said, "You're kidding " 11 Note this is the same statement Grellman made to Eulert when she called 72 The only conversation Grellman mentioned specifically in that respect occurred (according to him) 2 or 3 months before Dyer's termination Grellman also said Dyer called him about 3 or 131 in to work tired and had problems on her mind." Grellman said that due to the fact she was tired and was taking some sort of medication , he overlooked certain small errors she had been making. Dyer's big problem, according to Grellman, concerned her daughter who had left town on a number of occasions .'' He also stated that Dyer would phone in and say that she couldn 't come in due to being sick, and at other times , asked to get off on short notice to go to California to see if she could find her daughter. Grellman testified as to problems that were involved in replacing persons on short notice , particularly on the graveyard shift . He said that Dyer told him that she was taking medication for about 3 months before her discharge , and she told him periodically to "watch her a little bit tonight" as she had had to take some medicine. Grellman admitted that he never sent Dyer home during the last few months of her employment. Dyer (who did not testify in rebuttal ) said that so far as she could remember she only called in two or three times to be off. She denied that she told Grellman on many occasions that she was under a doctor 's care and had to take medication to calm her nerves, although she admitted that at one time earlier she had told him this. Dyer stated she did not take medication while at work. Grellman claimed that Dyer made small mistakes but conceded that no one was perfect . He was asked, as indicated before, whether Dyer made any more mistakes than any other dealer, and he answered , "I'd say, yes." He estimated that she made maybe a dozen or so during the course of her employment . As previously set forth , supra, Grellman was asked: Q. Is the incident that took place on August 7th the only serious mistake in your estimation that Mrs. Dyer made? A It was the most serious, yes. Q. Is it the only serious mistake that you observed? After considerable hesitation, Grellman responded: A. Yes. According to Grellman , on August 7, he recommended to Roberts that Dyer be terminated . The reason he gave was that she had made a great error in the blackjack payoff and that he, in addition, told Roberts that she was not the best person to have, that she was under medication 73 mostly and had to be watched carefully, that they had to devote too much time to watching her. Grellman said he told Roberts about Dyer's condition concerning medication prior to August 7. According to Grellman , Mrs. Dyer had to go to California three or four times to locate her daughter. It should be again noted that Roberts denied that Grellman recommended the discharge and there is no indication in Roberts ' testimony that he was told about the need for medication , nor does Roberts' testimony reflect Dyer's having been off a good deal or having interfered with the operation of the casino because of her alleged trips to California. 4 weeks before her discharge to tell him she had to go to California to try to locate her daughter " Respondent inquired of Dyer whether she was using tranquilizers and she said she did not believe she was during the "last period" of her employment but testified she had for a while used "water pills" (presumably diuretic in nature) to remove water from her system Although Respondent requested and obtained the name of her doctor and druggist, it did not seek to adduce additional testimony as to the foregoing 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grellman, in his testimony, also added at one point that Dyer had engaged in two-handed dealing on numerous occasions and had to be warned about that. Here again, there is no reference to two-handed dealing in Roberts' testimony On the other hand, it should also be noted that there is no reference to "pushing" in Grellman's testimony. The question of the relative inconsistency of testimony on the part of Roberts and Grellman, is again involved here as it has been in the cases of Bowen and Eulert. Note again according to Prim, Grellman did not recommend that they discharge Dyer, but Grellman did tell them that he had a lot of trouble with her, and that she was making a lot of mistakes. This brings us to the one matter which apparently is the only one of real consequence; that is the alleged incident on the night of Dyer's termination which purportedly resulted in her discharge.74 With respect to the alleged incident on the night of her termination, this appears to have been a matter which occurred in the sense that it may have looked like Dyer was about to make a mistake. As to the details of this particular matter, they appear to be as follows: Dyer testified that the player had a blackjack; that he had nearly all of her dollar chips; and that she was low on dollar chips, so she brought out $5 chips; that she had to pay off a $25 blackjack, so she cut the dollar chips down to show there was $25, and then she took out the $5 chips and cut a stack down but before she could finish putting the money up, Grellman came in and said she was paying it wrong. She wasn't too sure as to whether she had more money on the table or in her hand than the bettor had won because she said she hadn't finished cutting all the money out. According to Dyer, she had "cut the dollar chips down to $5 stacks which showed he had $25 there, which he would have had $25 coming to him of his own money plus, I paid him $25 plus $12.50 which makes $37.50; and I had put down $50 in five-dollar chips which meant that he had in front of him more money definitely at that time; but I hadn't picked up the dollar chips." According to Dyer, she was giving the player or about to give him $25 for his $1 stack of chips that she was going to pick up after she finished paying him his money but before she could do so, Grellman came in and told her she was paying wrong. At this point she went blank and Grellman made the payoff. Dyer said she continued on the table, took a break, and then finished out the shift that night. According to Grellman, he had been watching Dyer and one bet was for $50 on which she made an overpayment of a blackjack. He stepped up and told her that she made an error and pulled the money back and made the payment himself. Grellman testified that the amount overpaid was $50, that the money was in front of the player in the players' circle, and that Dyer said she was confused and he told her that he would make the payoff which he did. Grellman stated that Prim was with him at the time and observed the action. Grellman also stated that Dyer continued on the table which is contrary to Roberts' statement that she was taken off the table. According to Troye, he too observed the incident and testified as ''' The reference to hours worked as in the case of Eulert and Bowen is obviously one that was not considered of any importance and is explained in part by illness at a particular period in April and otherwise answered insofar as a basis for discharge by the fact that no check was made as to these hours prior to termination but apparently only in connection with the trial of the case 75 He points out for instance that Troye claimed that he was in one position and Grellman stated that he was in another position and that the evidence indicates an inconsistency in this respect follows: He said that he observed the player betting $50, the player turned over blackjack and he observed Dyer paying him $125 in $5 chips, whereas the proper amount would have been $75. He stated that the $125 when he saw it was in the players' circle, and he saw Grellman reach out and bring back $50 and place it back in the rack. Troye added he did not hear anything that was said, he saw Prim slightly behind Grellman and that dealers were not supposed to make change of money in the players' circle. This referred to Dyer's statement that she was making change in part for dollar chips and that this explained the amount of money that was in the circle at the time. Troye testified, on cross-examination by the General Counsel, that he had seen previous overpayments by dealers at the Primadonna Club and when asked whether it was an uncommon thing, he answered, "No." The General Counsel takes the position that Dyer was actually making a correct payment when Grellman interfered and took over what was obviously a correct action on the part of Dyer. The General Counsel also points to certain alleged inconsistencies in the testimony between Grellman and Troye as to their versions of what occurred.75 Here Dyer's statement in response to a question from me as to whether Grellman had ever come over before is pertinent. Dyer said that Grellman had not previously come over when she was making a payoff. Dyer was making a payoff which evidently looked to Grellman as being improper-testimony indicates, among other things, that she was not supposed to be making change at the same time she was making a payoff. It may well be that Dyer thought that she was properly handling the matter. The bet may have involved $25 instead of $50, but apparently it looked to Grellman as if Dyer was making an erroneous payoff of a bet. It also appears that Dyer became confused when Grellman came over and to this extent may not have been able to accurately recall exactly what was involved or happened. In any event, Grellman, Troye, and Prim evidently felt that she was about to make an improper payoff although she may not have been. The more important question is whether this incident was really a matter of great import. I am of the belief that it was part of the same series of incidents that allegedly occurred that evening and the preceding evening involving Bowen, Eulert, and Dyer. I reach this conclusion for several reasons: (1) Troye's testimony that this type of incident was not uncommon; (2) Dyer was allowed to remain on the table and was not removed therefrom; (3) although Roberts had testified that Dyer was removed from the table, this was not the case, according to either Dyer or Grellman; (4) the other incidents supposedly involving Dyer were not originally listed by Roberts in his initial testimony as to the reason for her discharge but were only advanced later; (5) there is no mention or report by Grellman of Dyer's alleged "pushing" problem related by Roberts; and (6) Grellman's versions conflicting in other aspects with those of Roberts (such as Grellman's testimony that he recommended Dyer's discharge and Roberts' that Grellman did not). The foregoing strongly Also that Troye claims that he saw Grellman put back $50 whereas Grellman claims that he had to entirely reconstruct the bet However, while there may be some inconsistency in these respects, it also appears that Troye who admitted that he did not see the incident in its entirety still witnessed enough to see that Grellman was taking care of it I do not think that the aforesaid variations affect the conclusion that Grellman believed something was amiss as indicated in the text above PRIMADONNA CLUB 133 indicates that Dyer's discharge was pretextual. When to these reasons are added the relatively minor nature of the items asserted as grounds (of which some such as the alleged time off could not be a reason)76 and Grellman's admission that the payoff incident was "the only serious item," which as shown above was not uncommon and did not even result in Dyer's removal from the table, it becomes even more apparent that the discharge was pretextual. When to this is added the fact that this item, the items allegedly involving Eulert, and the alleged item involving Bowen were not really as claimed by Respondent, and that they all purportedly occurred within two evenings on the same shift, it becomes even more evident that Respondent was seeking an excuse to eliminate certain persons for a reason other than that stated. Finally when this discharge (and those of Bowen and Eulert) occurring shortly before an order directing a union representation election are viewed, in the light of the Respondent's antiunion conduct in violation of the Act, its expressed antiunion statements, and the indicated prounion attitude of Dyer, the conclusion is that Dyer (as were Bowen and Eulert) was discharged for expressing a view in support of and favorable to the Union. For all of the reasons set forth above, I find and conclude that Dyer was discharged in violation of Section 8(a)(3) of the Act. 5. The discharge of Bowman Ronald Bowman was employed early in May 1965 as a crap dealer and promoted to a boxman77 about the end of June 1965. He joined the Union on August 15 but there is no evidence that the Respondent knew he had done so. The General Counsel predicates his case not on Bowman's union activity, but on the fact that he was a close friend of Mike McGoldrick '711 and contends that McGoldrick was fired because of his union activities and Bowman because of his close association with McGoldrick. The General Counsel asserts that although no case can be brought on behalf of McGoldrick because he was a supervisor at the time of his discharge that since, according to General Counsel, McGoldrick was terminated because of his union activities and Bowman because of his close association with McGoldrick, that Bowman was illegally terminated. According to General Manager Roberts, Bowman was terminated because of "his refusal to cooperate with the management and tell them everything that went on." He would not answer how a game was going on according to reports Roberts got "and the day that I asked him in regards to the toking79 he absolutely refused to answer me. The evidence as to the alleged lack of cooperation is scanty80 and as we shall see there are some conflicts in Roberts' testimony as to when and how the final decision to terminate Bowman was reached. This leaves the "toking" incident and its aftermath, together with the relationship of Bowman's discharge to McGoldrick's discharge, and the reasons for McGoldrick's termination as matters to be considered in deciding Bowman's case. However, it should be kept in mind that the General Counsel has the burden of proof. Hence, if Bowman's discharge can be justified by Respondent the General Counsel does not establish a case. Likewise, even if Respondent cannot justify Bowman's discharge, since he has not demonstrated union activity independent of his association with McGoldrick, the General Counsel must establish that his association with McGoldrick was involved in his discharge. Finally, the General Counsel must show that McGoldrick was terminated because of his activities for or interest in the Union and not for some other reason or reasons-and inferentially that such motivation as to McGoldrick is presumed to apply to Bowman's termination. Carl Brafford, a pit boss, testified that one Tuesday night in late October 1965 from the "peek" upstairs he saw Bowman and another boxman, Worrell, take money from the table to "toke" a cocktail waitress for coffee. Brafford testified he had never seen this done before and reported it to Piazza. Brafford said he also reported this to Roberts. Piazza also reported to Roberts that McGoldrick,"' Bowman and Worrell were toking cocktail waitresses when they brought free coffee.82 Roberts said he received these reports on Tuesday night but did not speak to Worrell or Bowman until Saturday because he didn't see them until then. He called Worrell and asked who authorized him to toke. Worrell told Roberts no one had but he saw others do it. When asked who the "others" were Worrell replied Bowman and McGoldrick. When Bowman came in, Roberts asked him who authorized him to "toke." Bowman refused to answer Roberts but admitted he had been toking the waitresses. Bowman testified he refused to answer because he felt Roberts was out to get McGoldrick and wanted to use him to do it. Roberts testified he told Bowman to go home and he would check it later. Bowman's understanding was that he was terminated. (However, no termination slip was made out.) In any event, there ensued thereafter that day phone conversations via long distance between Prim and Roberts, and between Prim and Newman. Roberts' version is that he called Prim and asked if Prim had authorized toking waitresses, and that Prim said he had not. Roberts told him of the incident and Prim told him to check further with supervisors on vacation. Prim left it to 76 Since not definitely ascertained until the hearing " A boxman watches over the crap tables to see that the games are being properly conducted Boxmen were included in the unit found appropriate on August 10, 1965, in Case 20-RC-6379 involving the Primadonna 78 See reference to incident of employment of McGoldrick, supra rs Tipping 80 From Roberts ' subsequent testimony, it appears that the only report about Bowman concerning general uncooperative conduct was one from Piazza Roberts himself had never seen this nor cautioned Bowman about it nor does there appear to be testimony from any supervisor including Piazza about Bowman being uncooperative. Bowman testified he was never told this and he always followed orders given to him 81 McGoldrick was an acting supervisor during vacation periods At the time of the toking incident he was acting as supervisor in place of Ray Webster sr The record contains a great deal of testimony about alleged toking of cocktail waitresses and others for various purposes. Suffice it that for several months before November 1965 coffee was delivered free to pit personnel Earlier for a period pnor to July it had been paid for by supervisors from a "kitty " of small change and apparently on occasion may have been paid for from the table However, this was not a "toke " but payment for coffee While there may also have been some instances of paying for newspapers or on occasion aiding a customer who went "broke" to get home , I conclude from credited testimony and the record as a whole that there was no general practice of taking money from the table and none to "coke " for coffee and certainly none at the time here involved 299-352 0-70-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts whether to call Bowman back, which Roberts Aid. Newman learned of Bowman's "termination" on October 30 from him. She and McGoldrick then went to a phone and she called Prim in Palm Springs. According to Newman, she told Prim what had happened and asked since when did a boxman get fired for toking cocktail waitresses. Prim told her that is what he said to Roberts and not to worry, Bowman would be put back to work. Later McGoldrick asked Newman if she had Bowman's phone number and told her Roberts wanted her to call Bowman to come back to work. She called Bowman and he returned. According to Prim, Roberts called him in Palm Springs about the "toking" incident including Bowman's refusal to answer. He suggested checking further into the matter before assessing blame, said they could discuss it further in a couple of days when he would be in Reno, and otherwise corroborated Roberts' testimony. Prim said that about the same time or shortly afterwards he spoke to Newman who had called to tell him Roberts had fired Bowman for taking chips off the table which everybody else was doing. He told her he would look into it and that meanwhile Roberts was calling Bowman back to work. Print said he could not remember her asking "when did boxmen get fired for toking cocktail waitresses" and denied saying that this was exactly what he had said to Roberts. Bowman remained at work until November 22. Roberts checked further and found from McGoldrick's admission83 that McGoldrick had authorized the toking by Bowman. Roberts found no other authorization or practice of so doing. According to Roberts, he kept Bowman and McGoldrick (whom he considered undesirable for reasons set forth, infra) on the job84 for some additional time because of a request by the Reno Police Department to retain McGoldrick while they investigated a matter.85 Roberts said he also waited for Webster, the regular supervisor, to return from his vacation about November 7 to ascertain if Webster had ever authorized such toking. Webster had not. The General Counsel argues that Bowman was not specifically mentioned by the Reno police who were not aware of him at the time they asked Roberts to retain McGoldrick so they could conduct an investigation. Roberts, however, apparently construed the request to do nothing that would disturb the status quo in relation to McGoldrick. Certainly Bowman was an important part thereof. In fact, the General Counsel's case is predicated on the claimed close friendship of Bowman and McGold- rick.S6 He cannot have it both ways. Then after the check with Webster and a wait because of the request by the Reno police and also to discuss this toking incident further with Prim,87 Roberts let them both go on November 22. As previously set forth, according to Roberts, Bowman was terminated for generally refusing to cooperate with management and for specifically refusing ea McGoldrick when questioned by Roberts readily admitted that he as acting supervisor had authorized Bowman to toke cocktail waitresses for bringing coffee. "This would be even after he and Prim finally decided to let them go See discussion infra of Roberts' explanation as to sequence of events, etc 85 The investigation did not reveal anything improper 88 The record is replete with testimony that Bowman and McGoldrick were close friends and that Respondent knew this See direct testimony of Roberts, Prim, Hogan and of McGoldrick and Bowman as to remarks by Piazza In fact, one of Roberts' complaints about them was that they were taking their "breaks" together to answer who authorized him to toke. Roberts testified that McGoldrick was terminated for "partially the same thing and another thing he would not stay on his job." When a boxman left to eat, McGoldrick, according to Roberts, failed to fill his position and "He would pay no attention to our rules and regulations." Roberts subsequently said he figured Bowman knew why he was being terminated. Roberts referred to Bowman's association with McGoldrick and then added "that the main reason for letting him go was because he refused to answer management about what was going on." According to Roberts' recollection, he waited until Prim came back sometime after the 7th and then discussed it and decided for the betterment of the club to eliminate Bowman and McGoldrick. This was about 5 to 7 days after November 9. He reported to Prim what he had been "getting" from the swing shift, etc., about McGoldrick. Roberts said they waited about 7 to 9 days after the Reno police had requested to hold up termination (of McGoldrick) before doing so. This occurred 1 or 2 days after he and Prim decided to let them go. Prim at first testified he met with Roberts in Reno to discuss McGoldrick's termination but later said it was considered in a telephone conversation. According to Prim, Roberts told him McGoldrick would leave the pit whenever he wanted to do so, threatened to "pistol whip" two different fellows and had a fight with one of them in the pit and Brafford stepped in and stopped the fight and that he was just a troublemaker.88 Roberts told him Bowman refused to cooperate and after admitting he took the money off the table refused to say "who else took it off."89 Prim said he and Roberts agreed they should not keep a man who refused to answer such a question. Prim said after McGoldrick was terminated he telephoned him in Palm Springs. Prim told McGoldrick he was sorry, he did the best he could for him but he caused so much trouble there and that all his pit bosses were against him, the he didn't want to "get involved in the case any more" that he didn't feel good.90 That Bowman's discharge was in part , at least , related to McGoldrick's is evident not only from the foregoing including particularly Roberts' reference to Bowman's relationship to McGoldrick but also Piazza's like reference. Piazza told Bowman that if anybody wanted to hire him, he would recommend him and "I told him that I was sure he was just a victim of circumstances being associated with this fellow McGoldrick." There appears to be little doubt from the record including Prim's testimony that his "pit bosses" particularly Roberts and Piazza did not want McGoldrick. They evidently were reluctant to have him in the first place and ultimately succeeded in eliminating him. But whether the real reason was that McGoldrick was a (nonpaid) union organizer or some other reason is another question. The General Counsel stresses what he argues in tl7 Prim was supposed to have come to Reno but evidently did not at this time See Infra 88 The reference to a fight is to an incident involving McGoldrick and Fontana in the pit in which each claimed the other challenged him to a fight A heated verbal but nonphysical exchange occurred The alleged "troublemaker" claim will be discussed further infra 88 Apparently this refers to Bowman 's refusal to say who told him he could toke ' Prim said "I can't cope with the situation anymore and I don't want to get involved " PRIMADONNA CLUB detail to be the allegedly specious nature of several of the incidents relied on by Respondent to terminate McGoldrick.9' In further support of his contention is the statement allegedly made by Prim to McGoldrick that Roberts and Piazza did not want him because "Well, he told me they were down on the Union. They didn't want me in there to begin with. That is all. He told me that when I walked over to him "92 It is not entirely clear what time McGoldrick is referring to but this appears to relate to what he claims Prim told him when he was hired. Prim was not called in rebuttal but had denied any discharge of McGoldrick because of his union activities. Even assuming that Roberts and Piazza "were down on the union " and didn't want him to begin with, this would not necessarily establish that McGoldrick was discharged because of his union relationship. Nor would the conclusion (which I do not reach) that all of the Respondent's alleged incidents and contentions about McGoldrick were specious or spurious, necessarily result in a finding of illegal discharge. In addition to the matters discussed supra including fns. 88 and 91 on which a valid discharge might or might not be predicated, there is still the question: Even assuming no valid reason appears, was union activity the cause? A crucial key to this appears in the testimony of McGoldrick himself who was asked "Is it your testimony Mr. Roberts instigated his pit bosses to harass you; is that right?" A. "Yes." Q. "Tell you-" A. "Mr. Roberts instigated it. If you will check the records you will notice that everybody Mr. Prim put to work is not there no longer. Would you like some names?" While the latter is not proof of the fact, it advances another plausible explanation of why the pit bosses might not have wanted McGoldrick. It is not unusual for management not to want or to resent persons employed through the owner as a result of personal friendship or otherwise. If that individual has any problems they tend to become magnified and if he refers to his connection this may be a further irritant. In McGoldrick's case, this is reflected in the Fontana incident (see fns. 88 and 91), where, according to Fontana, McGoldrick said "`I don't know where you get your juice, but,' he said, `the big man hired me."' And then, when Fontana said he was going to report the matter to Roberts, McGoldrick replied he didn't care who he reported it to yi According to Respondent , McGoldrick on various occasions threatened to "pistol whip" persons McGoldrick admitted he might have referred to "pistol whip" but denied that he ever said he would "pistol whip" anybody The General Counsel points to his size (about 124 pounds) and to various discrepancies or alleged discrepancies in the testimony of Respondent witnesses While I do not believe there was involved at any time a real threat with any intention of execution on the part of McGoldrick (nor does it appear that anyone so understood ), I conclude from the varied and extensive references thereto that such expression in the form of a threat had been used by McGoldrick There is the toking incident previously referred to, and two alleged incidents involving McGoldrick and crap dealer or boxman Russell Jones One involved a refusal by Jones to sign a fill slip and the other the use of a dice stick at the table-in both of which considerable abusive language was used by McGoldrick according to Jones but denied by McGoldrick There appears no point in detailing or resolving this since Jones testified he never reported anything about McGoldrick to Roberts, Piazza, or Prim. Another incident involved McGoldrick and floorman Donald Fontana-where Fontana had relieved McGoldrick and some money had been lost at the dice table which McGoldrick apparently thought was greater than it was An argument subsequently ensued with varying versions as to what was said and who threatened to fight whom , etc I see no necessity to resolve fault or the varying versions other than that there was a 135 and repeated "The big man hired me." While McGoldrick denies this reference, I do not credit his denial. In addition to my observation of the witnesses in this respect, I think it pertinent to note McGoldrick's answer to the following: Q. Do you know what the word "juice" means? A. That means if you are put to work by someone, he is your juice. Q. Didn't you feel you had juice in the club? A. Well I felt that it would take Mr. Prim to fire me, if that is what you meant. This attitude on McGoldrick's part coupled with those incidents that did in fact occur (regardless of whose version is credited), together with the toking incident and an attitude by others in management toward employees hired through Prim's influence, could explain the termination apart from union considerations. It should also be noted that although the representation petition was still pending, there was no election impending, no evidence of any substantial union activity at Primadonna on McGoldrick's part at the time, and little indication of substantial union activity in general at Primadonna at the time.93 Based on the foregoing, I do not consider that the General Counsel has met his burden of establishing a discriminatory discharge in the case of McGoldrick, let alone Bowman. Without such a finding as to McGoldrick, the case of Bowman must fail. I might add that although I am not impressed by Roberts' version as to Bowman, I am also compelled to the conclusion that an employer need not retain an employee who refuses to tell the employer who authorized him to spend his money (even though he had in fact been authorized by his supervisor and the amount involved was small). I conclude that the General Counsel has failed to make out a case for Bowman, and shall therefore recommend that the complaint be dismissed as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations dispute and a rather heated argument between McGoldrick and Fontana (Same incident referred to supra , fn. 88.) 4d One other matter to be mentioned is that there is reference throughout the record to "heat" or "steam" on McGoldrick with McGoldrick claiming his "heat" came from his union affiliation and Newman testifying that Prim said he was skeptical about hiring him "because he had a lot of steam over him about the union " Prim did not mention this in his testimony According to Piazza, he told McGoldrick and Bowman that McGoldrick had a lot of heat on him , that by heat he meant "Mike's past has been real poor " Piazza added he had been terminated at places he had worked Supervisor Hogan testified McGoldrick had told him he was getting "heat" which meant someone was giving him trouble but he didn't say whom or what kind of trouble The foregoing indicates that there may have been some "heat" or pressure on McGoldrick I do not conclude what it resulted from except I cannot find on the basis of this record that it was caused by his union affiliation (As indicated "heat" or trouble or pressure could be for different reasons or for more than one reason.) 91 The only indicated union activity was a reference by Roberts to McGoldrick, then a supervisor, about his friend Newman's "harassment" of (according to Roberts), "signing up" of (according to McGoldrick) girls at a place down the alley from the Primadonna 136 DECISIOINS OF NATIONAL LABOR RELATIONS BOARD described in section I, above, have a close, intimate, and substantial relationship 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 has been found that Respondent has engaged in certain unfair labor practices. It will, therefore, be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against Reta Bowen, Lee Eulert, and Florence Dyer by discharging them, it will be recommended that Respondent offer said employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges. It will also be recommended that Respondent make said employees whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount she normally would have earned as wages from August 6, 1965, in the case of Bowen, and from August 7, 1965, in the cases of Eulert and Dyer to the date of Respondent's offer to reinstatement to each of said employees, less their respective net earnings during said periods. Loss of earnings shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest, at the rate of 6 percent per annum, shall be added to the backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate computation of backpay. In view of the nature and extent of the unfair labor practices engaged in by Respondent as found above, it will further be recommended that Respondent be ordered to cease and desist from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Primadonna Hotel, Inc., d/b/a Primadonna Club, is an employer engaged in commerce, and in a business affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Casino and Gaming Employees, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Reta Bowen, Lee Eulert, and Florence Dyer, to discourage membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(3) and (1) of the Act. 4. As found above by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to prove by a preponderance of the evidence that Respondent discharged Ronald Bowman in violation of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is hereby recommended that Respondent, Primadonna Hotel, Inc., d/b/a Primadonna Club, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in American Federation of Casino and Gaming Employees or in any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Unlawfully interrogating employees with respect to union membership or activities. (c) Threatening employees with discharge or reprisal for signing union cards or participating in union activities. (d) Conditioning employment on agreement not to solicit for a labor organization at any time on its premises. (e) Granting or promising benefits in order to cause employees to abandon the above-named labor organization or any other labor organization or to cause employees to refuse to join or participate in activities of said labor organization or any other labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to join, form, or assist labor organizations, including the above-named labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer Reta Bowen, Lee Eulert, and Florence Dyer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Make Reta Bowen, Lee Eulert, and Florence Dyer whole for any loss of earnings they may have sustained as a result of the discrimination against them in the manner prescribed in section V of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Notify Reta Bowen, Lee Eulert, and Florence Dyer if presently serving in the Armed Forces of the United States of their 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. (e) Post at its place of business located at Reno, Nevada, copies of the attached notice marked PRIMADONNA CLUB "Appendix."94 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."') IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. " 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 " "' In 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 Respondent has taken to comply herewith " APPENDIX Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in American Federation of Casino and Gaming Employees, or any other labor organization, by discharging, laying off, or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT unlawfully interrogate employees with respect to union membership or activities. WE WILL NOT threaten employees with discharge or reprisal for signing union cards or participating in union activities. WE WILL NOT condition employment on agreement not to solicit for a labor organization at any time on our premises. 137 WE WILL NOT grant or promise benefits in order to cause employees to abandon the above-named labor organization or any other labor organization or to cause employees to refuse to join or participate in activities of said labor organization or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to join, form, 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, as guaranteed in Section 7 of the Act. WE WILL offer Reta Bowen, Lee Eulert, and Florence Dyer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make Reta Bowen, Lee Eulert, and Florence Dyer whole for any loss of wages or other earnings they may have suffered as a result of the discrimination against them. WE WILL notify the above- named employees if presently serving in the Armed Forces of the United States of their 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. All our employees are free to become or remain, or to' refrain from becoming or remaining , members of the above-named labor organization or any other labor organization. PRIMADONNA HOTEL, INC., D/B/A PRIMADONNA CLUB (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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.