Riverside Hotel

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reno's Riverside Hotel, Inc. d/b/a Riverside Hotel and American Federation of Casino and Gaming Employees. Cases 20-CA-4080 and 4083 June 30, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 17, 1967, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions and the General Counsel filed cross-exceptions to the Deci- sion and supporting briefs. The Respondent filed a brief in answer to the General Counsel's cross-ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings.' conclusions, and recommenda- tions of the Trial Examiner, with the following modifications: The Trial Examiner found that Respondent Pres- ident Richter did not promulgate a rule prohibiting employees from engaging in union activity on com- pany property on nonworking time We do not agree. According to Richter's credited testimony, shortly before both the first and second elections, he instructed his supervisors to inform the em- ployees that they were not to discuss, or campaign for, the Union in the hotel 24 hours before the elec- tion. There is no doubt that the employees were so informed. We find that the Respondent thereby promulgated a broad and unlawful no-solicitation rule in violation of Section 8(a)(1) of the Act, in- asmuch as the prohibition extended to nonworking as well as to working time. This violation is not ex- cused by any misunderstanding the Respondent may have had of the Board 's Peerless Plywood rule,2 particularly in view of the fact that implemen- tation thereof occurred as late as May 1, 1966, 1 month after the second election , by the unlawful in- structions given to Artz and McGarry by both DeSimone and Lagano. CONCLUSIONS OF LAW Amend the Trial Examiner's Conclusions of Law by inserting the following as paragraph number 6, renumbering the present paragraphs numbered 6 and 7 to 7 and 8. respectively , and deleting from the latter reference to allegation V(e) of the complaint. "6. By promulgating, maintaining, enforcing, and applying a rule that prohibits employees from en- gaging in union activities on the Company's premises during the employees' nonworking time, the Respondent violated Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Reno's Riverside Hotel, Inc. d/b/a Riverside Hotel, Reno, Nevada. its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following paragraph as paragraph (c) to the Trial Examiner's Recommended Order, the present paragraphs (c) and (d) being relettered as (d) and (e). "(c) Promulgating, maintaining, enforcing, or ap- plying any rule or regulation prohibiting employees from engaging in union activities on Company's premises during the employees' nonworking time." 2. Amend the second indented paragraph of the Trial Examiner's recommended notice to read as follows: WE WILL NOT threaten our employees with economic reprisal because they have joined the above-named labor organization or any other union. 3. Insert the following paragraph as the third in- dented paragraph in the Trial Examiner's recom- mended notice: WE WILL NOT promulgate, maintain, en- force, or apply any rule or regulation that prohibits employees from engaging in union ac- tivities on company premises during the em- ployees' nonworking time. ' The Trial Examiner granted Respondent's motion to strike portions of the General Counsel's brief unng an 8(a)(1) violation based on Respond- ent's attempt to deprive McGarry of his vote in the March 31 election by assigning him as a pit boss for one shift and subsequently challenging his ballot as supervisor based on that assignment The General Counsel has excepted to this ruling We do not adopt the Trial Examiner' s discussion of the motion or his disposition thereof However, in view of the Respond- ent's numerous violations of Section 8(a)(1), we find it unnecessary to decide whether or not this conduct further violated the Act 2 107 NLRB 427 166 N LRB No. 47 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RIVERSIDE HOTEL DAVID F. DOYLE, Trial Examiner: This proceeding, brought under Section 10(b) of the Act, was heard at Reno, Nevada, on December 7 and 8, 1966, pursuant to due notice to all parties.' The complaint dated August 12, 1966, was based on a charge filed by the Union on May 18 and amended on August 10, 1966, and a second charge filed on May 20 and amended on August 10, The complaint in sub- stance alleged that the Company had violated Section 8(a)(3) and (1) of the Act by unlawfully discharging em- ployees Kenneth Artz and Edison F. (Chow) McGarry because of their membership in or activities on behalf of the Union and had violated Section 8(a)(1) of the Act by certain conduct which the General Counsel claimed was interference, restraint, and coercion in violation of Sec- tion 8(a)(1) of the Act. The Company duly filed an answer denying all charges of unfair labor practice. At the hearing all parties were represented and were af- forded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. The General Counsel and counsel for the Company filed scholarly briefs which have been duly considered. Upon the entire record of the case and upon my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE COMPANY In its answer the Respondent admitted that it is, and has been at all times material to this proceeding, a cor- poration duly organized and existing under the laws of the State of Nevada and is engaged in the operation of River- side Hotel, a gaming casino, restaurant, and bars located within the hotel at the city of Reno, Nevada. At the hear- ing, it was established by stipulation that Respondent has annual gross revenue of more than $500,000 and annual indirect inflow exceeding $50,000. In addition to the above facts, at the hearing the General Counsel requested that the Trial Examiner take official notice of the Board's decision in Harrah's Club, 150 NLRB 1072, enfd. 362 F.2d 425 (C.A. 9); El Dorado Inc., et al. 151 NLRB 579; Harrah's Club, 143 NLRB 1356, enforcement denied on other grounds 337 F.2d 177 (C.A. 9); Carson City Nugget Casino, Inc., 161 NLRB 532; Sparks Nugget, Inc., 161 NLRB 1195; and the certification of the Union herein as representative of the Company's gaming employees in Case 20-RC-6642 (General Counsel Exh. 2) issued June 23, 1966, pursuant to instructions of the Board. The Trial Examiner has taken official notice of the named cases in which the Board asserted jurisdiction over various employers, in- cluding Respondent herein, who are engaged in gambling casino operations in the State of Nevada. On his own motion the Trial Examiner has also taken official notice of the Board's Decision and Order involv- ' In this Decision, Reno's Riverside Hotel is referred to as the Com- pany, the Casino, or the Respondent American Federation of Casino and Gaming Employees as the Union, the General Counsel of the Board and his representative at the hearing, as the General Counsel ; the National 427 ing the same parties, reported ati163 NLRB 280, inwhich the Board also found that this Respondent was an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the facts as set forth above and the legal authori- ties it is found that the Respondent is an employer en- gaged in commerce within the meaning of the Act and is one of those Respondents who are engaged in gambling casino operators in the State of Nevada over whom the Board has asserted jurisdiction. Motion to Reopen Record On March 22, 1967, counsel for the Respondent filed a motion with the Trial Examiner to reopen the record for the purpose of receiving additional evidence on the ju- risdictional issue raised at the hearing. The basis for the motion was that the United States Court of Appeals for the Ninth Circuit in N.L.R.B. v. Harrah's Club, 362 F.2d 425, rendered a decision which made it clear that addi- tional evidence on the jurisdictional issue would have to be produced in Nevada gaming casino cases. Counsel has stated that it was the purpose of the Respondent to take the deposition of the secretary of the National Associa- tion of State Racing Commissioners and of officers of Churchill Downs, Belmont Park, and one or two other racetracks in New York, Maryland, Florida, and Califor- nia, as well as the depositions of racetrack and State offi- cials of the State of Nevada. It is his contention that these dispositions will bear upon the issue of jurisdiction and will be directed toward showing that the Board' s asser- tion of jurisdiction over the gaming industry, while the Board declines to assert jurisdiction over racetracks, is prejudicial to and in violation of the constitutional rights of the owners of the gaming industry. On March 29, 1967, the General Counsel filed a brief in opposition to the reopening of the record. The General Counsel placed his opposition to the motion on the fol- lowing grounds: (1) That the decision of the court in N.L.R.B. v. Harrah's Club, supra, was issued on June 14, 1966, long before the hearing herein; (2) that the U.S. Supreme Court has in effect approved the Harrah's Club decision, by its denial of certiorari on February 13, 1967, 362 U.S. 425; and (3) that the questions basic to the in- stant motion were raised before the Board in the second Harrah's Club case, reported at 158 NLRB 860, by a mo- tion to remand to the Trial Examiner and reopen record dated June 20, 1966, which motion the Board denied as lacking in merit on July 18, 1966. Upon a consideration of the motion papers, and the fil- ing thereof as exhibits in this case, marked "Exhibits on Motion," the motion is hereby denied on the ground that the Board has considered the Respondent's contentions in prior proceedings and ruled adversely to Respondent. No new contention is raised herein by the instant motion. II. THE LABOR ORGANIZATION INVOLVED In paragraph III of the complaint the Respondent de- nied that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. However, the record contains uncontradicted testimony that the Union is an organization in which employees participate, which Labor Relations Board as the Board; and the Labor Management Rela- tions Act, as amended, as the Act. 8 All dates in this Decision are in the year 1966 unless specified other- wise. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deals with employers concerning wages, hours, and work- ing conditions of employees and which has labor agree- ments with various employers in the State of Nevada, and which has been certified by the Board as the representa- tive of employees of this Respondent and of other em- ployers in the State of Nevada. The Trial Examiner has taken official notice that the Union has been found by the Board to be a labor organization within the meaning of Section 2(5) of the Act in many cases, including El Dorado Inc., et al., 151 NLRB 579, 584; Carson City Nugget Casino, Inc., 161 NLRB 532; Sparks Nugget, Inc., 161 NLRB 1195. It is found therefore anew that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Undisputed Background It is undisputed that the Company operates the River- side Hotel and the gaming casino, restaurant, and bars located within the hotel at Reno, Nevada. At the hearing it was stipulated that the following named persons were supervisors acting for the Company at the time covered by the complaint. Bernard Richter oc- cupied the position of secretary-treasurer and general manager and was a principal owner of the Company. An- drew DeSimone was vice president of the Company and a part owner. He was the casino manager and had charge of all operations in the casino. These two officials of the Company testified. Elmer T. Beverly and Felix Lagano both occupied the position of pit boss, a supervisory posi- tion. Both of these men are the immediate superiors of the dealers and others employed in the casino. Although Beverly and Lagano are mentioned by witnesses in the course of this proceeding, they did not testify. Casino Manager DeSimone and McGarry, one of the employees named in the complaint, had been personal friends for some 16 years. It is undisputed that McGarry was hired by DeSimone in early September 1965 to work as a crap dealer in the Riverside Casino. Prior to this hiring, Mc- Garry had worked for DeSimone during the summer for 5 years at the Bal Tabarin Casino at Lake Tahoe. Artz was hired by DeSimone on the recommendation of a friend in August 1965. Throughout the period with which we are concerned, Artz and McGarry both worked as dealers at the same crap table on the swing shift, under the supervision of DeSimone and Pit Bosses Beverly and Lagano. Their pay, as dealers, was $22.50 per day plus the "tokes" or tips which were given to them by players. These "tokes" are collected in a toke box and divided equally among the dealers at the end of each shift. The tokes are a substantial part of a dealer's income amount- ing to approximately $10 per day during the summer on good days, and varying amounts lesser at other times. It is undisputed that the Union launched an organizing campaign among the casino employees at the Riverside Hotel during September and October 1965. Artz had previously joined the Union and had become a member of its executive board in 1965 before he was employed at the Riverside Hotel. Artz passed out authorization cards among the employees on the premises and recruited some members of the Union off the premises. Among the mem- bers he recruited was McGarry. On January 18, 1966, the Board's Regional Office (San Francisco) conducted an election among the casino employees of the Company. At this election, Artz was the observer for the Union and actively participated as a representative of the Union in the preelection conferences which preceded the election. Artz testified without contradiction that he was appointed business agent of the Union in January 1966 after the first election and that the appointment was confirmed in writ- ing on February 21, 1966. The election of January 18, 1966, was set aside by the Board because of certain illegal conduct on the part of the Union in the 24-hour period prior to the election. McGarry testified and it is uncontradicted that he became a member of the Union in late September or early October 1965, and he immediately became active in the organizing campaign soliciting employees and obtaining signatures on authorization cards. He was an observer for the Union at the second election in the unit which was or- dered to take place on March 31, 1966. During February 1966, McGarry had been nominated as the sole nominee for president of the Union and was officially elected pres- ident on May 11, 1966. This date is 4 days prior to the discharge of McGarry and Artz. The Disputed Testimony Incidents Before the Alleged Discharges The only witnesses for the General Counsel were the two dischargees, McGarry and Artz. The principal wit- ness for the Respondent was Andrew DeSimone, the casino manager, who is alleged to have discharged both McGarry and Artz. In addition to DeSimone, Bernard Richter, the general manager of the Company, Bard DeSimone, Andrew's wife, and another employee, Michael (Mandy) Rizzo, testified on behalf of the Com- pany. There is a general conflict between these two sets of witnesses. Kenneth Artz testified that 2 or 3 days after he became business agent of the Union, he told DeSimone, Beverly, and Lagano of his appointment to that position. When Artz gave Lagano a business card, Lagano said that he had already received one of those from Tom Hanley, an official of the Union. In his testimony, DeSimone ad- mitted that he knew Artz was the business agent of the Union before the termination of Artz, but he denied that Artz ever told him that he was the business agent of the Union. DeSimone also said that he knew that Artz was a member of the Union at the time of the preelection con- ferences and that Artz was a union observer at the first election. DeSimone in the course of his testimony ad- mitted that he learned around May 8 that Artz had gone to Las Vegas with McGarry to attend a union meeting. In his testimony, Richter said that he did not learn that Artz was an official of the Union until he learned it at the hearing. However, he admitted that he had reason to be- lieve that Artz was a member of the Union because Artz had attended two preelection conferences as a represent- ative of the Union at which Richter represented the Company. Richter also testified that he had seen Artz with Union Leader Tom Hanley on many occasions in the hotel and at both the preelection conferences. McGarry testified that on May 8, he and Artz went to Las Vegas, Nevada, to attend a meeting of the Union. When McGarry next went to the casino, DeSimone ad- dressed him as, "Mr. President," and inquired if they had accomplished anything at the meeting. McGarry replied that they had, and went to work. DeSimone testified that it was about this date that he first learned that McGarry was a member and president of the Union. RIVERSIDE HOTEL McGarry testified that on or about January 16, approx- imately 2 days before the first election, he was in the gam- bling casino with DeSimone when the latter told McGar- ry that if the Union won, he would close up some of the casino gaming tables, let the dealers go, and put the super- visors to work dealing. According to McGarry, DeSimone appeared to be serious when he made the threat. In the course of his testimony, DeSimone said that he had made the statement about shutting down some of the tables, but he explained that he was "just kidding" and laughed about it when he said it. DeSimone then ex- plained that he could not run three shifts of gambling with five supervisors and he could not close down the tables and put supervisors to work without the approval of his partners. McGarry testified that about January 17, DeSimone told him that Richter had told DeSimone that inasmuch as McGarry was a longtime friend of DeSimone that Mc- Garry should be loyal to "the joint" and that the super- visors had seen McGarry talking to Union Agent Hanley in the coffee shop of the hotel and that McGarry should not talk to union officials on the Company's premises. This conversation and the admonition given McGarry was denied by DeSimone but he admitted that, in a con- versation between Richter and DeSimone, Richter had said that since McGarry was a friend of DeSimone, he should befor the Company. Michael (Mandy) Rizzo, one of the dealers, was called as a witness for the Company. He testified that he was present on the occasion when DeSimone said that he would close down some of the tables, let the dealers go, and put the supervisors to work. He testified that DeSimone was laughing about it. On one shift on the night of March 8, 1966, Pit Boss Beverly was to be absent. DeSimone testified that he chose McGarry rather than Rizzo to take Beverly's place because McGarry was more experienced and because DeSimone had plans to make McGarry a pit boss later on. On the following day, when Beverly returned to work, McGarry and Beverly -net in the pit of the casino. Ac- cording to McGarry, Beverly said that the Union "just lost another vote, that they had set McGarry up, and put him on as a supervisor, so that his vote would be canceled out in the election." Artz testified that on the same night, Beverly spoke to him saying that the Union had lost another vote since they had made McGarry a supervisor on his night off, so the Union could not count on his vote. It is undisputed that in the March 31 election, McGarry's vote was challenged by the Company's observer on the basis of his having worked one shift as a supervisor. The challenge was subsequently overruled by the Regional Director. McGarry testified that when he finished his work as observer in the March 31 election, he returned to his table in the pit. At that time, DeSimone asked him who had won the election, the Union or the Company. Mc- Garry replied, "We did." According to both McGarry and DeSimone, DeSimone then said, "I thought you was my friend, that is a fine thing to do. I treated you pretty nice, didn't I?" According to McGarry, DeSimone con- tinued, saying that he couldn't understand how McGarry could do this to him after all he had done for McGarry over the years, adding, "How could you screw me this way?" Artz testified without contradiction that on May 13 he spent one of his coffeebreaks with Hanley in the cof- feeshop and on the next break talked to Hanley in the 429 hotel lobby and then went with Hanley by elevator to Hanley's room. Upon his return to the casino, Pit Boss Lagano told him that Richter was pretty hot at him for being with Hanley. Artz said that it was too bad; that the time he spent was his own time. Lagano then said that he was only telling Artz what DeSimone had told him. A few minutes later DeSimone came into the pit and told Artz that he should know better than to be seen with Hanley, and told Artz to walk up to the second floor to take an elevator to Hanley's room and return the same way. Artz replied that he was not ashamed of being seen with Han- ley and would rather have management see him getting on the elevator with Hanley than sneaking around the back way. The Complaint About Tokes; the Discharge of McGarry and Artz On this topic, Artz, McGarry, and Rizzo are the only witnesses to one important conversation. Their versions of what occurred leading up to the termination of Artz and McGarry are not at variance except on minor details. It is undisputed that on May 15 about 2 a.m., Artz, Mc- Garry, and Rizzo finished working their shift and met in the hotel's Corner Bar, a cocktail lounge. The tokes had been counted and divided among the dealers on the shift. After some discussion about other things, Artz said that the token "weren't so hot." Both McGarry and Rizzo agreed with him. Then, according to Artz, he said that he "wasn't satisfied with this money that he was getting, and McGarry said neither am I." According to Artz, Rizzo also stated that he was not satisfied either. Artz said that when he referred to money, he was referring to the tokes. In his testimony, Rizzo said that on this occasion Artz said that the tokes weren't so hot and that Rizzo agreed with him. Then Artz said, "I'm not satisfied here and Mc- Garry said, me too." Rizzo remained silent and then Mc- Garry and Artz said they were going home. Rizzo testified further that as he left the bar and was walking through the lobby, he met DeSimone, manager of the casino, coming out of the office. DeSimone asked Rizzo how the tokes were and Rizzo said, "Not so hot." At that, DeSimone "kind of smiled" and Rizzo told him Artz wasn't satisfied and neither was McGarry, but DeSimone didn't say anything to that. Both men said goodnight and went their separate ways. The Discharges of May 15 Artz testified that about 11:30 a.m. on May 15 DeSimone, the casino manager, telephoned him at his home. DeSimone said, "I understand you are not satisfied. You told someone you were not satisfied." Artz said, "Yes." DeSimone said, "You told someone you were going to quit. I can't use you anymore. Don't come in." Artz asked, "Who told you that?" DeSimone said, "I can't tell you." Artz replied, "If I was going to quit, I'd tell you." DeSimone said, "I can't use you. I'm the boss." Artz said, "You are the boss, Andrew." DeSimone said, "That's right. That is the way it's going to be." Artz replied, "That's good enough for me." McGarry testified that around 11:30 on the morning after he had discussed the question of tokes with Artz and Rizzo, DeSimone phoned him at his home. DeSimone told McGarry that he should quit, that DeSimone could no longer use him at the Riverside. McGarry replied that he wouldn't quit and then DeSimone said, "That is the 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way it is going to be. I am the boss. That was it." McGar- ry said, "Well, if that is it, that's it." McGarry testified that he neither asked DeSimone for any reason why he wanted McGarry to quit, or for any reason why he was firing McGarry. A few minutes after McGarry's conver- sation with DeSimone on the telephone, Artz called Mc- Garry on the telephone. Artz told McGarry what DeSimone had said to him and McGarry explained to Artz what DeSimone had said to him. The two employees then agree to go to the Riverside Hotel that night to get their checks. That evening, Artz and McGarry went to the cashier's office, but at that place they were told by the young lady in charge that she did not have their checks. The two em- ployees then proceeded to the pit and asked DeSimone where their checks were. McGarry said that inasmuch as they were being fired, that State law required that their checks should be paid them "right now." DeSimone countered this by asking, "Are you trying to start trouble, Chow? You know the bookkeepers don't work Sundays." DeSimone said that their checks would be ready the next day. On the following day, they went to the casino and received the checks which were waiting for them. McGarry testified further that on May 17 he applied for State unemployment benefits. He went to the office of the department and filled out an application. McGarry testified that he gave as the reason for his termination by the Company that DeSimone had called him on the telephone and fired him for union activities. Later, Mc- Garry went back to the unemployment office and in- spected the form signed by DeSimone. The General Counsel introduced into evidence the application of Mc- Garry for unemployment benefits and Notice to Last Em- ployer of Claim Filed, which contained a statement by DeSimone on behalf of the Respondent. The exhibit established that McGarry, in the space of explaining why he left his job with his last employer, stated the following, "Mr DeSimone called me on the telephone and said I was let go, it was for union activities." The Notice to Last Employer, signed by Andrew DeSimone, stated the fol- lowing in the space entitled "Reason for the Employee's Separation from employment" - "Claimant was paid in full. Claimant was dissatisfied with job. He was replaced." Artz also testified that he applied for unemployment benefits on May 17, 2 days after his discharge. Artz gave as the reason for his leaving his last employer as, "Ter- minated for union activities. No -reason given." Artz testified that he first put on the form, terminated for union activities, but the interviewer told him that if the Em- ployer had given him no reason he should state,-no reason given. Upon that advice, Artz struck out the words "for union activities" and inserted the words "no reason given." In connection with the claim of Artz, DeSimone filled out the State form in the same way as he had filled out the form for McGarry, stating, "Claimant was paid in full. Claimant stated that he was dissatisfied with the job. He was replaced." The form to be filled out by the employer is noteworthy because of another factor. On each form to be filled out by the employer, there is a box which should be marked to indicate the reason for termination of the employee. These boxes are marked as follows, "He was fired; He quit voluntarily; Other (reason)" On these forms filled in by DeSimone, none of these boxes are checked. The Nevada Employment Security Department found that the employees were "discharged for reason other than misconduct connected with the work within the meaning of Section 612.385 of the Nevada Revised Statutes," and the employees were paid their benefits. DeSimone's testimony as to the events leading up to the termination of Artz and McGarry and the events which constitute the termination is not greatly at variance with the testimony of Artz and McGarry, but it will be noted that DeSimone's testimony is marked by a vague- ness and a cryptic explanation which I deem to be entire- ly inadequate. Upon direct examination, DeSimone testified that Artz and McGarry worked the shift beginning at 6 p.m. on May 14 and ending 2 a.m. on May 15, and that he also worked that shift. At the end of the shift, he was busy with his partner Richter in the counting room or office of the casino. Around 3 a.m. he left the of- fice and ran into Mandy Rizzo. Rizzo told him that Artz and McGarry "were dissatisfied with working there, about the tokes or something like that" so he did not say anything, but he proceeded on his way home. He ex- plained that because McGarry was a friend of his and because he had put McGarry to work, he didn't like the fact that McGarry was dissatisfied. On the following morning, a little after 11, he called Artz and said, "You said to Mandy you were dissatisfied. If you're dissatisfied, we will leave it that way." According to DeSimone, at that point Artz tried to say something to the effect that he had not said he was dissatisfied but DeSimone said, "I know you did , that I have proof." Artz tried to tell him something else, but DeSimone couldn't understand him, so he hung up. When he was asked directly if he told Artz who had told him that Artz was dissatisfied, DeSimone testified that he had said it was Mandy Rizzo. After talking with Artz, DeSimone phoned McGarry to whom he said, "I hear you are dissatisfied with the job- and the tokes. If you are, we will leave it that way." Ac- cording to DeSimone, McGarry started to mumble, but DeSimone could not understand what he was talking about, so DeSimone said again, "As long as you are dissatisfied, we will leave it that way." At that point, DeSimone testified, "So that was all. We just hung up, and they did not show up for work." DeSimone testified that in his conversation with McGarry , he did not tell Mc- Garry that he should quit or that DeSimone couldn't use him any longer. Nor did McGarry say in that conversa- tion that he would not quit. DeSimone also denied that he said to McGarry, "That is the way it will be. I'm the boss." DeSimone also denied that he told Artz that he could not use Artz anymore. DeSimone testified that later in the day, around 8 or 9 p.m., he had a conversation with both men in the casino. Both men came to DeSimone in the pit and McGarry said, "Have you got my check ?" DeSimone said he didn't have the check and said, "You know today is Sunday, and the bookkeepers don't work on Sundays." Then Mc- Garry asked if he would get it on Monday and DeSimone said he would; there was no further discussion. DeSimone testified that on one occasion , Richter told him that since McGarry was a friend of DeSimone's that McGarry should be "for the joint." DeSimone denied that he had ever told McGarry or Artz not to be seen in the hotel with Hanley or any other union official. Also, he never told any employee to walk up to the second floor to get on the elevator with Hanley or any other union offi- cial. DeSimone stated that on one occasion he said if the Union was going to picket the outside of the club he would put floormen to work as dealers, but at the time he RIVERSIDE HOTEL 431 said it he was laughing and kidding. DeSimone also said that a few days before the first election (January 18) he said that if the Union won, he would close up some of the tables, let the dealers go, and put the supervisors to work, but when he said that, he was just "kidding around." DeSimone explained that you could not put five foremen to run three shifts at gambling tables so everybody had to know that he was kidding. DeSimone said that before he telephoned either Artz or McGarry on May 15, he did not confer with Richter or his other partners in the hotel. On cross-examination, DeSimone was asked why he chose McGarry to fill in as pit boss on occasion when Beverly was absent. He testified that Richter wanted to place Mandy Rizzo in the job but he overruled it and told Richter to put McGarry as pit boss because he had more experience than Rizzo. DeSimone said that after the second election, when McGarry came to the pit, he asked him who had won the election. McGarry replied, "We won." Then, DeSimone said, "I don't think that was a nice thing. You have been my friend for a long time, and I treated you pretty nice, didn't I?" According to DeSimone, McGarry put his head down on his chest and walked away. A few moments later, DeSimone said that he had told McGarry on this occasion that he had treated McGarry pretty nice for years and he didn't think Mc- Garry should have done that to him because he was such a good friend of his. DeSimone said he was angry when he said this to McGarry. DeSimone said that he learned that McGarry belonged to the Union on Mother's Day, May 8. McGarry went to Las Vegas with Artz. While they were away, Artz' wife told a third party that the two men had gone to Las Vegas to a union meeting and that McGarry was president of the Union. This is when he learned that McGarry was the president . DeSimone ad- mitted that when McGarry returned from Las Vegas he greeted him with the salutation, "Mr. President." DeSimone said that when he said this, he was smiling and so was McGarry, who made no reply; that they were kidding. DeSimone admitted that he knew that Artz was the business agent of the Union some time before May 15. Later, in the course of his cross-examination, DeSimone stated that Rizzo told him of the dissatisfac- tion of McGarry and Artz in the early morning hours of May 15. Then he testified as follows: "The more I thought of it, I got kinda mad to myself, and I went home after three o'clock. Of course it takes about 15 minutes to get home so I didn't want to ring them up then, disturb them at that time. So I rang them up the next morning. so I told them in that conversation that if they were dissatisfied just to let it stay that way." In the course of his cross-examination, DeSimone was asked the follow- ing: Q. Why did you call them? A. If anybody is working for me and is dissatisfied, I should let them know about it. So I told them if they were dissatisfied, we would leave it that way. So the next day they didn't show up for work. Q. Neither of them showed up for work? A. No, sir. Q. Were they both scheduled for work? A. Yes, sir-no, only one, because Chow was off on Sunday and Monday. Q. So Chow McGarry was not due to show up for work until Sunday evening in any event; is that right? A. That's right. Q. So your purpose in telephoning him if I un- derstand your testimony is to let them know that you heard they were dissatisfied? A. That's right. Q. Was there any other purpose in making this call? A. No. As to McGarry, DeSimone testified, "I rang him up and told him that I had heard that - "You and Artz are dissatisfied with the tokes and the job," and I says, "If you are, we will leave it that way." When he was asked if he had not called McGarry and Artz for the purpose of terminating them, he answered, "I did not terminate them. I said, we will leave it that way ." When asked if he expected the men to report for work after this conversa- tion, the witness replied, "I don't know." DeSimone also said that he was not surprised that McGarry and Artz asked for their checks that night. Toward the end of his cross-examination , the General Counsel asked DeSimone directly if it was his position that McGarry and Artz quit their employment at the casino. DeSimone answered, "I think they quit on their own, yeah." The Trial Examiner then interrupted the cross-examination of the witness to try to clear up the ambiguity in his testimony. At that point, the following colloquy occurred: TRIAL EXAMINER: Now, let me ask a question here. You said, according to your testimony to these men, "I hear you are dissatisfied with the tokes." And another place you said you heard they were dissatisfied with the tokes and the job, "Let's leave it that way." Did you intend to convey to them that they were fired? THE WITNESS: I did not say they were fired. TRIAL EXAMINER: Did you intend they should understand that they were fired? THE WITNESS: I says, "We will leave it that way." TRIAL EXAMINER: All right. Let me ask you this: What did you mean by that? When you said, "We will leave it that way," what did you mean? THE WITNESS: When a man is dissatisfied with a job, why, he-why does he want to come back to work for- Would you want a man that is dissatisfied in your- TRIAL EXAMINER: Well, this is what I am getting at. Is that what you had intended, that if they were dissatisfied, that they wouldn't come back? THE WITNESS: I hoped they wouldn't come back. TRIAL EXAMINER: But you did not intend to fire them by that? THE WITNESS: No, I think if they would have come back, I think I would have taken them back, maybe. I don't know how I would have felt about it. Mrs. DeSimone in part corroborated the testimony of her husband as to what he said over the telephone on the morning when he phoned both Artz and McGarry. Bernard Richter, the principal owner, secretary-treas- urer, and general manager of the Company, also was called as a witness by the Respondent. Richter testified that James Lloyd held the position of president and An- drew DeSimone was vice president of the Company. Richter said his primary function was direct charge of the hotel, bars, entertainment, the casino , the slots, the cash- ier's cage, and engineering. He also handles, as resident 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager, public relations, labor relations, and general operation of the hotel, advertising promotions, and other functions. He lives at the hotel and is about the premises daily. Since he lives at the hotel, Richter said that he eats at the coffee shop, usually three meals a day, and he frequently goes into the coffee shop to see that the service of patrons and the food served is good. Richter testified as to how the gaming operations of the casino are under the regulation of the State Gaming Control Board of the State of Nevada and how that supervision is exercised. Richter testified that he first received notification that the Union claimed to represent some of his employees when he received a letter from the National Labor Rela- tions Board stating that the Union had filed a petition for an election. After that, he consulted his counsel who in- structed him as to what he could and could not do in re- gard to the organizational drive of the Union. Richter stated that he never issued any instructions to supervisors to instruct employees that they were not to discuss the Union or talk to union officials during their nonworking time. Richter stated that on the night before the first elec- tion, he met with representatives of the Reno Local Joint Executive Board of Culinary Workers and Motel, Hotel Service Workers and a representative of the Union and he represented the Company and was accompanied by his counsel, Robert V. Magor. Employee Artz represented the Union as did Tom Hanley, one of its officers, who did most of the talking. Richter testified that after the preelec- tion conference on this evening, he found certain election pamphlets in the hands of employees in the pit and com- plained to Hanley about this. Later, the Regional Director, on the basis of the Company's objections, on February 17, set aside the election and ordered a new election to take place on Thursday, March 31. Prior to that date, there was a preelection conference on the night before the election. At this meeting, employees Artz and Hanley represented the employees. At the election of the next afternoon, McGarry was one of the observers for the Union at the election. Richter testified that on March 8, McGarry was placed temporarily as pit boss in the place of Beverly who was to be absent. Richter made the decision, based upon a recommendation of DeSimone. Richter said that he in- structed all the employees, all supervisors, that they were not allowed to discuss any labor matters with employees 24 hours before any election and that the Company would not allow anybody to discuss any labor matters with any of the Company's employees who were working in the establishment on their working time. Richter de- nied that he gave any instructions saying that employees could not discuss the Union while they were not working or in the coffeeshop or any other place while on their own time. Richter said that he had seen McGarry in the presence of Hanley on many occasions. Hanley was a frequent guest in the hotel and he saw the men together frequently. He said that he may have seen McGarry with Hanley in the coffeeshop, but could not remember any in- cident in particular, and he denied that in any way he was keeping any of the union officials or the employees of the Company under surveillance. Richter denied he ever told Lagano or any other supervisor to tell any employee, in- cluding Artz and McGarry, that if they were going to see Hanley, they should go up to the second floor to catch the elevator to Hanley's room, and when they left, they were to come down in the elevator and get off on the second floor. Richter also denied that he told Lagano to tell Artz that he was "hot" at Artz for being seen with Hanley. Richter testified that on one occasion he told Artz that the management was not mad at anyone because of their interest in the Union. Richter told Artz that Artz believed in unionism and the casino management did not, but there would be no hard feelings about their positions. Richter also testified to the frequency of Hanley and other union officials' visits at the Hotel. Between November 18, 1965, and November 20, 1966, Hanley and/or other offi- cials were guests of the Hotel on approximately 13 occa- sions, during which Hanley or other officials stayed for periods of from 1-7 days. Apparently all bills were paid except a small bill for the last rental of a room. Some- times, Hanley was accompanied by A. M. Dreyer, coun- sel for the Union, and sometimes by some other officer of the Union. Michael Rizzo, also referred to in the transcript of testimony as Mandy Rizzo, was also called as a witness by counsel for the Respondent. Rizzo stated that he was a wheel dealer at the casino, on the same shift with Mc- Garry and Artz. He was also under the supervision of DeSimone. On or about January 18, 1966, the casino had six tables in operation. The pit boss on the swingshift was Elmer Beverly. DeSimone, as the manager, was also on duty and they generally stayed in the pit. Rizzo said that in the period before the election, there was a good deal of conversation among the dealers when they were in the coffeeshop on their breaks, etc., but no one in manage- ment had ever told them that they could not discuss the Union on their own time. Rizzo also testified that on another occasion, he was in the pit and heard DeSimone say that if the Union would come in, he was going to close up some of the tables and put some of the supervisors to work; "But I believe he said it in jest, because he was laughing, and I started laughing about it." Rizzo's testimony as to his conversation with Artz and McGarry in the early morning hours of May 15 has been reviewed previously. Motion To Strike Paragraphs of General Counsel's Brief The General Counsel in his brief contends that the Trial Examiner should find that the Company committed an unfair labor practice by its "threat and attempt to deprive McGarry of his vote in the March 31, election by assigning him as a pit boss for one shift and subsequently challenging his ballot," although this conduct is not al- leged in the complaint. He claims that the Respondent did not avail himself of its opportunity to refute or rebut the testimony presented at this point, so "the matter should be considered as fully litigated." Counsel for the Respondent, on February 14, 1967, moved to strike the paragraphs of the brief dealing with this question on the grounds of surprise, since no motion to amend the complaint to include an appropriate allega- tion was made at the hearing and at this stage of the proceeding, Respondent had no opportunity to answer or defend against the contention. The order to strike these paragraphs is hereby granted. It is clear that the evidence proffered by the General Counsel was admitted as a part of the sequence of events comprising the controversy. Since there was no ap- propriate allegation in the complaint, the Trial Examiner took it for granted and without objection by the Respond- ent that such conduct shed light on the motivation of the Company as to other conduct alleged `in the complaint. Common fairness requires that at this late date, the RIVERSIDE HOTEL evidence cannot be held to establish an unfair labor prac- tice not alleged in the complaint. The Trial Examiner must state that upon reviewing the transcript of testimony in the light of the General Counsel's contention , he too is "surprised" and deems that contention untenable. Recently, in Russell-Newman Mfg. Co., Inc. v. N.L.R.B. 370 F.2d 980 (C.A. 5), the court had occasion to review the Board's decision in that case . What the court said there, is applicable here. We cannot approve of this action of the Board. It necessitates denial of enforcement of its Order as of this time. The governing principles are to be found in Morgan v. United States (1938), 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed 1129. This was a case involving an order of the Secretary of Agriculture fixing the max- imum rates to be charged by commission men at stockyards. The order was held void for failure to allow the full hearing required by the applicable statute. The Court held that in administrative proceedings of a quasijudicial character the liberty and property of citizens must be protected by fair and open hear- ing, that such a hearing embraces not only the right to present evidence, but also a reasonable opportuni- ty to know the claims of the opposing party, and to meet those claims. Due process in an administrative hearing includes a fair trial, conducted in accordance with fundamen- tal principles of fair play and applicable procedural standards established by law. Administrative con- venience or necessity cannot override this require- ment, Swift and Co. v. United States, 7 Cir., 1962, 308 F.2d 849, Hornsby v. Allen, 5 Cir., 1964, 326 F.2d 605. The second part of Respondent 's motion to strike is directed to certain arguments of the General Counsel which Respondent claims are in support of matters on which the General Counsel introduced no evidence. The motion is denied as to these matters, since they are en- compassed in the scope of "argument" in the brief. Concluding Findings The central issue in this case, whether employees Artz and McGarry were discharged or not, must turn on the credibility finding between the principals involved. All three of these men are engaged in the business of profes- sional gambling. These men are "sharp" and keenly aware of how their personal interest may be affected by their testimony and the testimony of others. However, McGarry and Artz testified in an apparently straightfor- ward manner and each of these corroborated the testimony of the other. There was a tendency on the part of McGarry to exaggerate and to add emphasis to parts of his testimony, but I am satisfied that the version of DeSimone's telephone call to these two men on Sunday morning, May 15, has been correctly furnished by these two employees. On the other hand, DeSimone was evasive, equivocal, and ambiguous . Throughout his entire testimony it was unclear just what DeSimone claimed in regard to the ter- minations of Artz and McGarry. He was far from candid or forthright. Through direct examination and cross-ex- 3 It should also be noted that paragraph V(c) was dismissed at the hear- ing at the close of the evidence , on motion of the Respondent on the ground that there was absolutely no testimony that Richter told em- 433 amination, his testimony was not clear as to whether he claimed they were terminated as a result of a misun- derstanding, quit of their own volition, or were discharged. His cryptic statement that he told the men that "You are dissatisfied and we'll leave it that way," af- forded absolutely no rational explanation of the termina- tion. However, in my judgment , DeSimone's testimony clearly shows that his intention was to fire McGarry and Artz who were the two leading union adherents. On the witness stand, he could not admit that he told the men, "I cannot use you anymore , don't come in," so he had to resort to the cryptic vagueness of, "You're dissatisfied, let's leave it that way." Finally, under cross-examination and upon an examination by the Trial Examiner, the wit- ness said that after he told the men "they were dissatisfied, they would leave it that way," that he "hoped they wouldn't come back." Then, he further stated, "No, I think if they would have come back, I think I would have taken them back, maybe. I don't know how I would have felt about it." In the light of all the evidence, it ap- pears crystal clear to me that, during the election cam- paign, DeSimone held his feelings pretty well in check, but when the Union was successful, his anger toward Mc- Garry, his longtime friend and new president of the Union, could not be restrained. He felt that McGarry had betrayed him and was an ingrate for previous employ- ment. At that point, DeSimone's temper took over and he called the two men and told them, as they have related, "You are dissatisfied , I can't use you any longer. Don't come in." This is buttressed by DeSimone's statement on the unemployment forms, "Claimant states he was dissatisfied with the job . He was replaced." Upon all the evidence, I find that the Company discharged employees Artz and McGarry on May 15, 1966, because of their activity on behalf of the Union. This conduct is a violation of Section 8(a)(1) and (3) of the Act. Upon the credited testimony of McGarry, it is found that DeSimone, on the night before the second election, March 31, told McGarry that if the Union won the elec- tion, he would close down some of the tables, let the dealers go, and put the supervisors to work at the tables. Although DeSimone and Rizzo both testified that this statement was made in an atmosphere of "kidding," I am not persuaded that it was innocent. What may be a laughing matter or a joke to one person , may not be the same to another. Here, the employees were about to cast their ballots, and statements like this, even when made with a smile, can, and do, have an inhibiting effect upon employees. I find that the making of this statement was a violation of Section 8(a)(1) of the Act as alleged in the paragraph marked V(f) of the complaint. The General Counsel alleges in the complaint that the same threat as found above was made on another occa- sion before the first election. As I read the testimony, all the witnesses appear to agree that it was made before the second election and, to some extent , there exists confu- sion among them as to whether the threat was made or not before the first election . In the light of this confusion, I find that the threat was made as found above, and not otherwise. Therefore, paragraph of the complaint marked V(d) is dismissed. In dismissing this paragraph of the complaint, what is written herein as to the credibility of Bernard Richter should be noted.3 ployees that pay raises would be withheld from employees because of the Union's organizing campaign. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In paragraph V(a) the General Counsel alleges that on January 4, 1966, Andrew DeSimone told employees that the Respondent was engaging in surveillance of their union activities. The testimony to support this allegation was given by McGarry, who said that a couple of days be- fore the first election on January 18, DeSimone told him that Richter had said that since he, McGarry, was a friend of his, DeSimone, he "should be loyal to the joint." Also, that DeSimone said that the management had seen Mc- Garry in the Corner Bar talking to Hanley, and that Mc- Garry shouldn't talk to them on the premises at all. I do not credit this testimony of McGarry. DeSimone denied that he made any statement to McGarry to the effect'that he should not be seen in the company of Hanley or talking to Hanley on the premises. And Richter, who was a most credible witness, testified that he saw McGarry and Han- ley on many occasions in the hotel. It is undisputed that during the period with which we are concerned, Hanley was a guest of the hotel on no less than 13 occasions and stayed for lengths of time from 2-7 days. He talked frequently to McGarry and other persons interested in the Union and since they talked in the coffee shop, bar, casino, or rooms of the hotel, company officials from Richter and DeSimone on down could not help but ob- serve them talking. Apparently there was no attempt by anyone to stop this meeting and association on the premises of the hotel when the dealers were off duty, so I conclude that in this instance McGarry is stretching the truth. I believe that Richter may have said to DeSimone that since McGarry was a friend of DeSimone's, he ex- pected McGarry to be loyal to the Company. But such a statement made by Richter to DeSimone, even if re- peated to McGarry, does not constitute a violation of Section 8(a)(1).4 Therefore, the paragraph marked V(a) of the complaint is dismissed for lack of credible evidence. On the basis of the credited testimony of Richter, I find that there is no credible evidence supporting para- graph V(b) of the complaint, which alleges that Richter directed employees not to associate with union agents on Respondent's premises on their nonworking time. Also on the basis of Richter's credited testimony, it is found that the evidence is insufficient to support paragraph V(e) that Richter, on January 15, 1966, inaugurated a rule prohibiting employees from engaging in union activity on Respondent's premises on employees' nonworking time. Paragraph V(i) which alleges that on or about May 12, 1966, DeSimone interrogated employees concerning their union activities is hereby dismissed. The testimony alleged to support this allegation is that of McGarry, par- ticularly, and Artz, that on the day the two employees returned from a union meeting at Las Vegas, Nevada, DeSimone greeted McGarry as, "Mr. President," and asked "if they had accomplished anything?" The em- ployees replied that they had accomplished something and went to work. I find that this question addressed to the employees did not imply any threat of reprisal or force or imply any promise of benefits, so it does not amount to interference, restraint, or coercion within the meaning of Section' 8(a)(1) of the Act. According to all witnesses to this incident, the question addressed to the employees was made in a bantering fashion, and there is no evidence of other interrogation.5 Upon the undisputed and credited testimony of Mc- Garry and Artz, it is found that on March 30, 1966, Pit Boss Felix Lagano directed employees not to engage in union activity on the Company's premises during their nonworking time. It is also found upon the same testimony that on or about May 1, 1966, DeSimone and Lagano gave the same direction to employees as set forth above. This conduct constitutes two violations of Section 8(a)(1) of the Act as alleged in paragraphs of the com- plaint marked V(g) and (h). 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 set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Since it has been found that the Respondent has en- gaged in certain unfair labor practices , it will be recom- mended that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Respondent unlawfully discharged employees Edison F. McGarry and Kenneth Artz on May 15, 1966 , it will be recommended that the Respondent offer to the two named employees immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , discharging, if necessary, any other employees hired since May 15, 1966 , to fill the positions of the two named employees. It will be recommended also that the Respondent make whole Edison F. McGarry and Kenneth Artz for any loss of pay they may have suffered by reason of the dis- crimination against them, by payment to each of a sum of money equivalent to that which each would have nor- mally earned as wages from May 15, 1966, the date of their discharge , to the date of their reinstatement, less any net earnings during said period. Said backpay is to be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon, as computed in Isis Plumbing and Heating Co., 138 NLRB 716. Because of the nature and extent of the unfair labor practices engaged in by Respondent , which evinces an at- titude of opposition to the purposes of the Act in general, I deem it necessary to recommend that the Respondent cease and desist from in any other manner infringing upon the rights of employees guaranteed under Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions and upon the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. Reno's Riverside Hotel, Inc. d/b/a Riverside Hotel is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4 Blue Flash Express, Inc., 109 NLRB 591. 1 See footnote 4,supra. RIVERSIDE HOTEL 435 2. American Federation of Casino and Gaming Em- ployees is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By discharging Edison F. McGarry and Kenneth Artz because of their activities on behalf of the above- named Union and for the purpose of discouraging mem- bership in and activity on behalf of the above-named Union, the 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. By threatening the employees with the loss of their jobs in the event they chose the Union to act as their col- lective-bargaining representative, Respondent has inter- fered with, coerced, and restrained its employees in viola- tion of Section 8(a)(1) of the Act. 5. By forbidding employees to engage in union activity on the Company's premises during their nonworking time, the Respondent has interfered with , coerced, and restrained its employees in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 7. The Respondent did not commit the unfair labor practices alleged in paragraphs V(a), (b), (c), (d), (e), or (i) of the complaint. RECOMMENDED ORDER Upon the above findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Reno's River- side Hotel, Inc. d/b/a Riverside Hotel, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership and activities on behalf of American Federation of Casino and Gaming Em- ployees, or any other labor organization of its employees, by discharging employees, or in any other manner dis- criminating in regard to the hire or tenure of employment, or any term or condition of employment. (b) Threatening employees with loss of employment because of their activity on behalf of the above-named Union, or if they support the said Union in an election. (c) Forbidding employees to engage in union activities on the Company's premises during the employees' non- working time. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named labor organization, 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 bargain- ing or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, 8 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer Edison F. McGarry and Kenneth Artz im- mediate and full reinstatement to their former or substan- tially equivalent employment, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of wages they may have suffered as a result of the Respondent's discrimination against them, in the manner set forth in the section entitled "The Remedy," above. NNotify Edison F. McGarry and Kenneth Artz 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.] (b) Post at its hotel and casino at Reno, Nevada, co- pies of the attached notice marked "Appendix."6 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by representatives of the Respondent, shall be posted by the Respondent im- mediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that, unless the Respondent shall, within 20 days from the date of receipt of this Trial Examiner's Decision, notify said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid.7 ' 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 the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership of any of our employees in American Federation of Casino and Gaming Employees, or any other union, by discharging, transferring, or laying off employees or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten our employees with economic reprisal because they have joined the above-named or any other union, nor will we promise 436 DECISIONS OF NATIONAL our employees economic benefits to induce them to renounce the above-named Union or any other union. WE WILL NOT forbid our employees to engage in union activity on our premises during their nonwork- ing time. WE WILL offer Edison F. McGarry and Kenneth Artz full and immediate reinstatement to their former positions or one substantially equivalent thereto without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make whole Edison F. McGarry and Kenneth Artz for any loss of pay they may have suf- fered as a result of our discrimination against them. All our employees are free to become and remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agree- ment requiring membership in the labor organization as authorized in Section 8(a)(3) of the Act. LABOR RELATIONS BOARD RENO'S RIVERSIDE HOTEL, INC. D/B/A RIVERSIDE HOTEL (Employer) Dated By (Representative) (Title) NOTE: 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. 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, Telephone 556-3197.