Casino Operations, Inc.

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Casino Operations, Inc. and American Federation of Casino and Gaming Employees. Cases 20-CA-3234-2 and 20-CA-3508 January 24, 1968 DECISION AND ORDER On March 30, 1966, Trial Examiner Eugene K. Kennedy 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 also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed excep- tions to the Decision with a supporting brief, and the General Counsel filed cross-exceptions with a supporting brief. The Respondent also has filed an answering brief to the General Counsel's cross-ex- ceptions. The Intervenor filed a brief in response to the Respondent's exceptions and to the cross-ex- ceptions of the General Counsel. On January 13, 1967, the Board ordered that the record in this proceeding be reopened and that a further hearing be held before the Trial Examiner for the purpose of adducing further evidence bear- ing on the question of the authenticity of the authorization cards of certain employees, which the Trial Examiner had found were properly authen- ticated and therefore countable toward establishing the Charging Party's majority status. The Board further ordered that evidence be admitted with respect to the scope of the unit appropriate for col- lective bargaining with particular reference to the inclusion or exclusion of change girls and slot cashiers who the Trial Examiner had found should be excluded from the unit requested by the Charg- ing Party. The Board also ordered that, upon con- clusion of such further hearing, the Trial Examiner issue a Supplemental Decision containing findings of fact, conclusions of law, and recommendations upon the evidence received. Following a supplemental hearing, conducted pursuant to the above order, the Trial Examiner is- sued, on July 20, 1967, his Supplemental Decision, reaffirming his finding in his initial Decision that a majority of the Respondent Employer's employees in an appropriate unit had signed valid cards authorizing the Charging Party to represent them for purposes of collective bargaining, as set forth in the attached Trial Examiner's Supplemental Deci- ' In addition to the jurisdictionalI`acts found by the Trial Examiner we further find, in accord with our finding in El Dorado Inc., 151 NLRB 579, 580, that the Respondent had a gross annual income in excess of $500,000, from its gambling operation. 2 The Respondent has requested oral argument . This request is hereby sion. No evidence was adduced with respect to the inclusion or exclusion of the change girls and slot cashiers from the unit, but the Trial Examiner after reconsideration recommended, contrary to his ini- tial Decision, that they be included in the unit requested by the Charging Party. Thereafter the Respondent and the Intervenor filed exceptions to the Trial Examiner's Supplemental Decision with supporting briefs, and the General Counsel filed a brief in support of the Trial Examiner's Supplemen- tal Decision. The Board has reviewed the rulings made by the Trial Examiner at the initial and supplemental hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion and Supplemental Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, with the following modifications and additions.2 1. The Trial Examiner found that "it is argu- able" that the demotion of Danny Foster on August 2, 1964, from his job. as a part-time foreman, a su- pervisory position, to full-time rank-and-file em- ployee, was a violation of Section 8(a)(1), but he found it unnecessary to pass upon the question since he found it would be cumulative to the viola- tions of Section 8(a)(1) already found "and would not affect the proposed remedy." We do not agree. It is clear from the conversations between Casino Manager Seideman and Foster and between Floor man Morgan and Foster, set forth in detail in the Trial Examiner's Decision, that Foster's demotion was occasioned by his testimony adverse to the Respondent at the prior hearing. It is now well established that punitive action against a supervisor because he has testified at a Board hearing contrary to his employer's interests is a violation of Section 8(a)(1) of the Act.3 It is equally well established that, in order adequately to remedy the violation, it is necessary to restore the status quo with respect to Foster. We shall therefore order that he be rein- stated to his former position as a part-time boxman and be reimbursed for such losses as he may have incurred due to the Respondent's violation of Sec- tion 8(a)(1). 2. The Trial Examiner found that there was "direct" evidence that 15 employees were dis- criminatorily discharged while at work and that 6 others were discriminatorily discharged while on strike. He further found that the "probabilities of a discriminatorily motivated discharge against" 21 other employees was "very strong" and in the absence of a plausible explanation by the Respond- denied because the record , the exceptions , and the briefs adequately present the issues and the positions of the parties. 3 Oil City Brass Works, 147 NLRB 627, 629-630 enfd. 357 F.2d 466 (C.A. 5); Leas & McVitty, Incorporated, 155 NLRB 389, reversed on other grounds 384 F.2d 165 (C.A. 4). 169 NLRB No. 43 CASINO OPERATIONS, INC. 329 ent he likewise found their discharges to be viola- tive of Section 8(a)(1) and (3) of the Act. We agree with the Trial Examiner that all 42 of the employees were discriminatorily discharged, but we do not agree with his findings that, as to 21 of the dischar- gees, the violations are supported only by the "probabilities." To us such a finding is supported by direct and clear evidence that these employees were terminated because of their protected union activities.4 The Respondent's Timebook, in which it kept a record of its employees' hours and wages and its personnel actions, shows that all 42 employees were terminated in the period from'September 19, the first day of the strike, to September 22, the day that the employees made an unconditional offer to return to work. The record also shows that at least 23 of the 42 employees were either threatened with discharge if they participated in the strike or were told that such participation was the reason for their discharges. Thus Casino Manager Ben Seideman told employee Frank Bakes, when he reported for work on September 20, "you didn't cross the picket line so you no further are employed here"; told em- ployee Tom Collins on the same day that anyone who had "participated in the picket line was auto- matically terminated"; told employee Ray Donan that "you have been terminated along with the rest of the boys who did not cross the picket line as of yesterday"; and made numerous other remarks, set forth in the Trial Examiner's Decision, which made it clear that participation in the strike would result in automatic termination of employment. In like vein, Jack Seideman, manager of the slot depart- ment, told employee Doane on September 19 that "the powers that be have had a meeting and decided that all people who participated in the picket line were automatically terminated," and identified the "powers that be" as Bayley, the Respondent's pres- ident and chairman of the board, Ben Seideman, and Mulconnery, a part owner. Mulconnery himself told employee Love on September 19 that "anyone that didn't cross the picket, and didn't come to work was automatically terminated" and on the same date, after asking employee Piersanti why he was not out on the, picket line with his friends, warned Piersanti that "if you do you are fired." These, and other statements detailed in the Trial Examiner's Decision, made contemporaneously with the discharge of the employees, provide direct evidence that all of the employees, and not merely those to whom the remarks were addressed, were discharged because of their participation in the strike. Any doubt remaining regarding the Respondent's motivation in the discharge of all 42 employees is dissipated by an examination of subsequent events. Thus in early October 1964 employee Meyers asked Ben Seideman if he could return to work. Seideman told him, "No I told you when you left the Hacienda, when you went out with those men, you could never come back." In February 1965, when employee Mandelbaum also applied for work, Seideman told him, after refusing to employ him, "That's what the union will get you." And in December 1964 employees McLean and Robert Jewell were told, after asking Mulconnery if there was a chance that they might go back to work, that those who had walked out could not go back to work. These statements made subsequent to the strike, together with the threats and warnings made to employees during the strike, are convincing evidence that the Respondent discharged the 42 employees because they had engaged in a strike, an activity clearly protected by the statute. We there- fore find that the Respondent's conduct in discharg- ing all 42 employees was violative of Section 8(a)(1) and (3) of the Act. 3. In his initial Decision the Trial Examiner found that the change girls and slot cashiers should be excluded from the appropriate unit; that the Charging Party represented a majority of the em- ployees in such a unit; and that the issuance of a bargaining order as a remedy for the Respondent's numerous violations of Section 8(a)(1) was there- fore justified. In his Supplemental Decision the Trial Examiner found that the change girls and slot cashiers should be included, rather than excluded, from the appropriate unit, but found that the Charg- ing Party also represented a majority in this larger unit. We agree with the Trial Examiner's latter find- ing that the appropriate unit should include the change girls and slot cashiers and that a majority of the employees in the unit had designated the Charg- ing Party as their collective-bargaining representa- tive. There would seem to be little question that the duties of the change girls and slot cashiers are such that they have a community of interest with the other employees employed in the Respondent's gaming operations.5 The Intervenor contends, how- ever, as it did at the time the Board ordered an elec- tion in a unit of the Respondent's employees,6 that a collective-bargaining contract it entered into with Las Vegas Hacienda, Inc., in 1964 is binding upon the Respondent, Casino Operations; and Respond- ent's change girls and slot cashiers are covered by the terms of that contract and hence the contract is a bar to their inclusion in the unit here asserted as appropriate by the Charging Party. Essentially the 4 In similar fashion the Trial Examiner found that the circumstances established "the probability" that the Respondent's unfair labor practices were partially responsible for the strike which began September 19. We find without reference to "probabilities" that the evidence clearly shows that the strike was, in fact, caused by such unfair labor practices. 5 Change girls and slot cashiers make change for those patrons engaged in playing slot machines 6 El Dorado Inc, 151 NLRB 579 The election was not held because of the charges of unfair labor practices filed in this proceeding 330 DECISIONS OF NATIONAL Intervenor's contention is grounded on its assertion that Hacienda, Inc., and Casino Operations are a single employer and that Roy Flippin, who represented Hacienda, Inc., and the other resort hotels in contract negotiations, thus represented the Respondent, Casino Operations, and that Respond- ent is therefore bound by the resulting contract. In our Decision in the representation case we found the evidence insufficient to determine whether the contract with Hacienda, Inc., covered change girls and slot cashiers and therefore ordered that they be permitted to vote subject to challenge. Our doubts then stemmed from deficiencies in the proof of the single employer status of Hacienda, Inc., and Respondent Casino Operations and the authority of Flippin to represent the Respondent at collective-bargaining negotiations , especially as the record discloses that Flippin expressly disclaimed such authority at the time he signed the supplemen- tal agreement covering change girls and slot cashiers on behalf of the resort hotels, and Flippin's disclaimer of authority was corroborated by the Respondent's president, Bayley, at the hearing. At the initial hearing in this case the only evidence presented on the appropriateness of the unit consisted of excerpts from the prior representa- tion proceeding introduced by the Intervenor. No additional evidence was introduced at the supple- mental hearing although the terms. of the Order re- manding this case specifically provided for the presentation of evidence on the question of the in- clusion or exclusion of change girls and slot cashiers in the appropriate unit. The burden of showing that a contract is a bar rests on the party making the contentionj and we now find that the Intervenor has not met that burden. In the absence of any reason compelling their exclusion, we shall therefore include the change girls and slot cashiers in the unit which we find appropriate for collective bargaining as sought by the Charging Party.8 As has been indicated above, we also agree with the Trial Examiner that the Charging Party represents a majority of the employees in an ap- propriate unit which includes the change girls'and slot cashiers. The record shows that on September 13, 1964, there were 106 employees in the unit.9 At the initial and supplemental hearings the General Counsel introduced the authorization cards of 62 employees. Of these the Trial Examiner found 60 cards to be valid authorization cards which designated the Charging Party as the collective-bar- gaining representative of the employees in the unit. 7 Tyre Nursery Furniture Company, 72 NLRB 1427, 1428. We particularly note that on July 25, 1966, in an action brought by the Intervenor to compel Hacienda, Inc., and Casino Operations to arbitrate the status of the change girls and slot cashiers under the contract, the United States District Court for the District of Nevada found that Ha- cienda, Inc., and Casino Operations were separate entities ; that Flippin did not represent Casino Operations in negotiating the contract on behalf of Hacienda, Inc., and the resort hotels ; and that Casino Operations was therefore not bound by the contract. This decision was affirmed by the LABOR RELATIONS BOARD We agree with the Trial Examiner's finding. The cards found to be valid were authenticated either by the employee who had signed the card, by conces- sion of the Respondent, or by union organizers and employees who had participated in the Charging Party's organizational campaign. We therefore find, as did the Trial Examiner, that the Charging Party represented a majority of the Respondent's employees in an appropriate unit on September 13, 1964. 4. The Respondent contends that the charge is insufficient to support most of the allegations in the complaint issued in Case 20-CA-3234-2 and that such allegations should therefore be dismissed. The charge in question was filed on August 21, 1964. It alleged that the Respondent "has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) subsections (1), (3), and (4) of the National Labor Relations Act." Under the caption "Basis of the Charge" it alleges: The above named Employer has between July 16, 1964 and the date of this charge dis- criminated against Danny Foster in regard to the terms and conditions of his employment (1) for the purpose of discouraging membership in the below named labor organization and because of his sympathy for and activities on behalf of the below named labor organization, and (2) because he gave testimony under the Act, (a) by demoting him from the position of part-time boxman, (b) by changing his shift or working hours to a less favorable shift or work- ing hours and (c) by reducing his wages or earnings by reducing his work week from six days to five days. The Respondent's contention is that this charge is an inadequate foundation for the issuance of the complaint alleging particularly threats, interroga- tion, and other violations of Section 8(a)(1) not directly involving Danny Foster, and that such violations do not fall within the purview of a second charge filed on March 15, 1965, because of the 6- month limitation imposed by Section 10(b) of the Act. It is now well established that the Board's com- plaint is not restricted "to the precise violations specified in the charge."10 If the allegations in the complaint are closely related to the violations set forth in the charge, and if the violations alleged in the complaint occurred within 6 months of the filing of the charge, the requirements of Section 10(b) are satisfied. United States Court of Appeals for the Ninth Circuit in Las Vegas Local Joint Executive Board of Culinary Workers and Bartenders v. Las Vegas Hacienda, Inc., 383 F.2d 667. 9 The Trial Examiner found that there were only 102 employees in the unit. From the payroll records introduced at the hearing, however, we find that there were 106 in the unit. 11 N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F .2d 393, 401 (C.A. 2), cert. denied 347 U.S. 953. CASINO OPERATIONS, INC. Both of these requirements are met herein. The harassment of Danny Foster for testifying at the Board's representation hearing, which began on July 16, 1964, and culminated in his demotion on August 2, 1964, was an integral part of the Respon- dent's violent antiunion campaign which had begun shortly before, at the outset of the Union's or- ganizational activities. Moreover, the threats and other forms of intimidation employed against Danny Foster were of the same genre as those al- leged in the complaint with respect to other em- ployees. Clearly the charge filed gave the Respond- ent ample notice of the locale and general nature of the violations for which it might be held ac- countable if the Board investigation set in motion by the charge should reveal other conduct in viola- tion of the Act. As for the second requirement, the initial conduct alleged in the complaint occurred in June 1964, and was thus clearly encompassed by the charge filed on August 21, 1964. We therefore find that the allegations of the complaint in Case 20-CA-3234-2 are supported bey the charge as required by Section 10(b) of the Act.11 THE REMEDY Having found in agreement with the Trial Ex- aminer that the Respondent engaged in and is en- gaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that part-time boxman, Danny Foster, was demoted on August 2, 1964, because of his testimony in a Board representation proceed- ing in violation of Section 8(a)(1) of the Act. The Trial Examiner found, and we agree, that Danny Foster, as' a rank-and-file employee, was discharged on September 20, 1964, because of his union activities in violation of Section 8(a)(1) and (3) of the Act. In order to restore the status quo in- sofar as possible, we shall order that Foster be com- pensated for his loss of earnings for the period Au- gust 2, 1964, to September 20, 1964, the date of his discharge, because of his illegal demotion, and that he be compensated after the latter date likewise for any loss of the earnings he would have had if he had continued to be employed as a part-time boxman. We shall, of course, also order his -reinstatement to his former position of part-time boxman, or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges. The Trial Examiner found numerous instances of interference with, restraint, and coercion of the em- ployees in the exercise of rights guaranteed by Sec- 11 Hotel Conquistador, Inc., d/bla Hotel Tropicana, 159 NLRB 1220 12 In finding that Boxman Bill Waggoner threatened employee Robert Land with a knife in an altercation over the Union, the Trial Examiner ap- parently relied, at least in part, on the testimony of Land that Pit Boss Set- 331 tion 7 of the Act, but failed to specify the nature of the violations found. We shall therefore amplify the Order and Notice to particularize the violations found in the Trial Examiner's Decision and in our own Decision herein.12 CONCLUSIONS OF LAW 1. Respondent is and has been at all material times an employer within the meaning of the Act. 2. The Charging Party is and has been at all material times a labor organization within the mean- ing of the Act. 3. All of Respondent's gaming casino em- ployees, including dealers, shills, slot department floormen, slot department mechanics, change girls, and slot cashiers, but excluding pit floormen, box- men, the slot department manager, cage cashiers, guards, and supervisors as defined in the Act con- stitute and have at all times material constituted a unit appropriate for the purposes of collective bar- gaining within the meaning of the Act. 4. The Charging Party was, as of Septmeber 13, 1964, and has been at all times since, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of the Act. 5. The strikes against Respondent were caused by the unfair labor practices of Respondent. 6. By discharging the employees set forth in the section of the Trial Examiner's Decision entitled "The Remedy," Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) of the Act. 7. By demoting part-time boxman Danny Foster to a full-time rank-and-file position because he gave testimony under the Act, Respondent interfered with, restrained, and coerced employees in the ex- ercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By the foregoing conduct, by interrogating employees regarding their union membership and activities, by threatening that employees would be discharged for their union activities, by offering discharged employees their jobs back if they would abandon their picketing, by threatening that the em- ployees would have difficulty in obtaining employ- ment in Nevada if they did not abandon their picketing, by refusing to rehire employees because of their union activities, by stating that anyone who participated in picketing was automatically ter- minated, and by threatening employees with physi- cal harm because of their union activities, the Respondent has engaged in and is engaging in unfair pas had admitted outside the hearing room that the knife incident had oc- curred although Serpas denied it on the stand. We do not find that the record supports such an admission and therefore do not rely on the in- cident in finding that the Respondent violated Section 8(a)(1) of the Act. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relation Board hereby orders that the Respond- ent, Casino Operations , Inc., Las Vegas , Nevada, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its em- ployees in the Union or in any other labor organiza- tion by discharging or otherwise denying employ- ment to any employee, or in any other manner dis- criminating against any employee in regard to his hire and tenure of employment, or any other term or condition of employment. (b) Discharging or in any other manner dis- criminating against any witness with respect to his hire or tenure of employment or any term or condi- tion of employment because of his giving testimony under the Act. (c) Interrogating employees regarding their union membership and activities , threatening that employees would be discharged for their union ac- tivities, offering discharged employees their jobs back if they would abandon their picketing, threatening that the employees would have difficul- ty in obtaining employment in Nevada if they did not abandon their picketing , refusing to rehire em- ployees because of their union activities, stating that anyone who participated in picketing was auto- matically terminated , and threatening employees with physical harm because of their union activities. (d) In any other manner interfering with, restraining, or coercing employees in the right to self-organization ; to form, join, or assist any labor organization ; to bargain collectively through representatives of their own choosing ; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer to each of the individuals named in Ap- pendixes A and B , attached to the Trial Examiner's Decision , immediate and full reinstatement to his former or substantially equivalent position without prejudice to such individual 's seniority and other rights and privileges , and make each such individual whole , together with interest and in the manner and according to the method set forth in the section of the Trial Examiner's Decision entitled "The Remedy." The backpay for employees in Appendix A shall run from the date of their discharge. The backpay for employees in Appendix B shall run from September 22, 1964, the date of the offer to return to work. (b) Offer Danny Foster immediate and full rein- statement to his former or a substantially equivalent supervisory position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the Respondent's unlawful conduct in the manner set forth herein in the section entitled "The Remedy." (c) Upon request bargain collectively with American Federation of Casino and Gaming Em- ployees, as the exclusive representative of em- ployees in the bargaining unit described above, with respect to their rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an agreement is reached, embody it in a signed contract. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due, if any, and the rights of em- ployment under the terms of this Order. (e) Notify the aforementioned 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. (f) Post at its Casino in Las Vegas, Nevada, co- pies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by the Respondent's representative, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate CASINO OPERATIONS, INC. the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership of any of our employees in the American Federation of Casino and Gaming Employees or in any other labor organization by discharging or otherwise denying employment to any em- ployee, or in any other manner discriminating against any employee in regard to his hire, terms of employment, or any term or condition of employment. WE WILL NOT interrogate our employees re- garding their union membership and activities. WE WILL NOT threaten our employees with discharge for their union activities. WE WILL NOT offer discharged employees their jobs back if they will abandon their picketing. WE WILL NOT threaten our employees with statements that they will have difficulty in ob- taining employment in Nevada if they do not abandon their picketing. WE WILL NOT refuse to rehire employees because of their union activities. WE WILL NOT threaten that anyone who par- ticipates in picketing is automatically ter- minated. WE WILL NOT threaten employees with physical harm if they engage in union activities. WE WILL NOT discharge or in any other manner discriminate against any witness with respect to his hire or tenure of employment or any term or condition of employment because he had given testimony under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in their right to self-organization; to form, join, or assist any labor organization; to bargain collec- tively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual, aid or protection; or to refrain from any or all such activities. WE WILL, upon request, bargain collecively with American Federation of Casino and Gam- ing Employees as the exclusive representative of a bargaining unit consisting of all gaming casino employees, including dealers, shills, slot department floormen, slot department mechanics, change girls, and slot cashiers, but excluding pit floormen, boxmen, the slot de- partment manager, cage cashiers, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an agreement is reached, embody it in a signed contract. WE WILL offer Danny Foster immediate and full reinstatement to his former or a substan- tially equivalent supervisory position, without 333 prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of our conduct found unlawful by the Board, as provided in the National Labor Relations Board's Decision and Order. WE WILL offer the following individuals im- mediate and full reinstatement to their respec- tive former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and reimburse them for any loss of pay they may have suffered by reason of the fact that we have discriminated against them. Frank Bakes Stanley Butler John Byrd Joseph Capra Tom Collins Murray Cooper Phil Cuccia John Doane Ray Donan Mike Dunn Danny Foster Robert Gianoulakis Sol Hannan Bruce Harrell Asby Harvey John Hart Nathan Hoberman Marvin Hullett Vincent Javoric Robert Jewell Russell Jones Dated By Robert Love Al Kauffman Joe Kirschbaum John Koelker Bruce McLean Jack Mandelbaum Sydney Meyers William Moore Paul Pelofski Joseph Piersanti Aaron Powell Frank Richards George Roberts Max Solis Jack Strickland Thomas Thomas Steve Volrich Gene Walker John Whiting Forrest Young Richard Zappulla CASINO OPERATIONS, INC. (Employer) (Representative) (Title) Note: We will notify the above-named em- ployees, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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 consecu- tive 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, San Francisco, California 94102, Telephone 556-3197. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: This con- solidated proceeding was heard in Las Vegas, Nevada, on various dates between October 5 and November 4, 1965. The issues litigated were whether the Respondent had violated Sections 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended (herein the Act), by certain conduct more fully described hereinafter.' Upon, the entire record, a consideration of the briefs filed by all parties participating, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD Casino Operations, Inc., herein Respondent and herein sometimes called the Hacienda, in the course and con- duct of its normal business operations during the year 1963, purchased goods and products valued in excess of $17,000, which goods and products were received by Casino Operations, Inc., from suppliers located outside the State of Nevada. In the course and conduct of its nor- mal business operations , Respondent purchased and received from the Hacienda Hotel goods and products valued in excess of $90,000. During 1963, Respondent purchased and received from suppliers in Nevada goods and products valued in excess of $29,000. In a Decision issued March 11, 1965 (El Dorado Inc., 151 N LRB 579), the Board asserted jurisdiction over Respondent. It is found Respondent is engaged in commerce and in a busi- ness affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Casino and Gaming Em- ployees, herein the Union, is a labor organization within the meaning of the Act. El Dorado Inc., supra. III. THE UNFAIR LABOR PRACTICES A. Background In June 1964, the Union filed a petition with the Na- tional Labor Relations Board seeking to represent the employees of Respondent, Case 20-RC-595 1. On March 11, 1965, the Board asserted jurisdiction over Respon- dent and directed an election.2 The composition of the unit is in issue and will be considered below. The election was not held due to the current unfair labor practice proceeding. The General Counsel presented evidence of a large number of incidents reflecting intense and bitter opposi- tion to union organization on the part of Respondent. The Respondent offered evidence which in large part con- travened the evidence of the General Counsel. The al- ' In Case 20-CA-3508, the initial charge was filed on March 16, 1965. Thereafter a first amended charge was filed on March 22, 1965; a second amended charge filed on April 12, 1965; a third amended charge filed on August 27, 1965; and a fourth amended charge filed on September 8, 1965. The complaint issued September 3, 1965, and was amended Sep- tember 20, 1965. In Case 20-CA-3234-2, the charge was filed on August 21, 1964, the leged episodes and statements reflecting opposition to union organization on the part of Respondent for the most part occurred during the period from July to September 1964. The Union initiated a strike on September 19, 1964. The Respondent thereafter terminated 43 em- ployees and, with one exception, none of those ter- minated were permitted to return to work by Respondent. The strike on September 19, 1964, was halted by a tem- porary restraining order and resumed on September 22, 1964, when the temporary restraining order was dis- solved. By early November 1964, apparently the picket- ing had ceased and thereafter some of the strikers made unsuccessful individual attempts to return to work. At issue is whether a general offer of a return to work had been made on behalf of all the striking employees by Union President Hanley on or about September 22, 1964. Also at issue is whether the strikes of September 19 and 22, 1964, were economic or unfair labor practice strikes. This record is replete with conflicts on important is- sues. In general the testimony offered by the General Counsel seemed more credible. The individual versions of the events by a large number of General Counsel's wit- nesses seemed spontaneous and reliable. The testimony offered by Respondent did not possess the same proba- bility of truth. Against the background of undisputed events the versions of the General Counsel's witnesses generally seemed more believable than the denials. An important factor in evaluating the conflict is that with one exception none of the 43 strikers were permitted to return to work after September despite individual and general applications to return to work.3 The credibility of Respondent's case is also diminished by the testimony of Ben Seideman, its principal witness and principal actor in the events concerning Respondent. One aspect of his testimony centered around the com- position of Respondent's payroll as of September 13, 1964. The General Counsel introduced names of employees in classifications within the bargaining unit employed as of September 13, 1964. At the hearing on October 18, 1965, Seideman testified there were additional employees as of September 13, 1964. He was requested to obtain the additional names from his records. On October 19, 1964, Seideman testified he had not looked at the records and had no idea how many additional names there were in ad- dition to the names the General Counsel had submitted in evidence. On October 21, 1964, it developed that Seideman did not have any additional records reflecting names other than those the General Counsel had sub- mitted in evidence. In view of the fact this information was peculiarly within the knowledge of Seideman, the lack of candor reflected by his testimony on this subject is regarded as a substantial factor in discrediting his testimony where there is a conflict. Another illustration of evidence adversely affecting the impression of Respondent's case may be found in the testimony relating to a meeting Seideman called for the dealers after a representation petition for an election had complaint issued on May 12, 1965, and was amended September 3, 1965. z El Dorado Inc., supra. 3 The question of a general offer on behalf of all strikers to return to work is in dispute. For the reasons noted herein , the version of Hanley to the effect that Hanley told Mulconnery on or about September 22, 1964, that the employees were applying for reinstatement is credited. CASINO OPERATIONS, INC. been filed with the Board. Seideman started the meeting saying there would be no discussion of the Union. He then proceeded to make it plain that working rules would be strictly enforced and that no one could tell him whom he could hire or fire.4 Respondent's efforts to make it ap- pear that meetings for dealers were a regular occurrence and the one in 1964 was not called because of the union organizational campaign dissolved in a maze of vagueness and contradictions. Seideman contended some meetings occurred in 1963 and 1962, but had no recollection of the number of meetings during those years. Mulconnery, coowner and comanager with Seideman, testified that similar meetings were held every 3 or 4 months. Morgan, a witness for Respondent,' recalled that meetings were held twice yearly. Respondent's witness, Thurnblad, who had been in its employ for 5 or 6 years, could not recall when a prior meeting was held and testified "They called them-never at a specific date-it might be nine months. It might have been a year and a half; it might be two months." Gerald Musser, who had been first employed by Respondent in 1955 or 1956, testified that similar meetings were held about once a year. Finally there is the credited testimony of John Byrd, a rebuttal witness for the General Counsel, to the effect that in his 7-112 years of employment at the Hacienda the first dealers' meeting he attended was in August 1964 after the Union organiza- tional campaign had commenced. This attempt by Respondent's witnesses to fabricate testimony is another factor leading to a rejection of Respondent's testimony where it conflicts with that of the General Counsel. B. Interference, Restraint, and Coercion A consideration of alleged violations of Sections 8(a)(1)5 of the Act will be made independently from state- ments allegedly indicative of discriminatory discharges in violation of Section 8(a)(3) of the Acts In June 1964, Gianoulakis, a dealer, was asked by Mul- connery whether he was for or against him and whether he belonged to the Union. About 2 weeks later, Mulcon- nery said to Gianoulakis "I am going to run your... back to East St. Louis." In the context in which these two statements were given, the interrogation was unlawful and the threat was related to the union activity of Gianou- lakis, and it is so found. On or about August 20, 1964, Shift Manager Edwards asked dealer Donald Jewell if he were a paid-up member of the Union. On the following day, part owner and Comanager Ben Seideman told Donald Jewell that he had considered making him a part-time boxman but had heard bad reports about him, and then Seide man said, "the or- ganizing is going to die a horrible death." Previously that day, Sidman had told, a meeting of the dealers that no outsider was going to tell him whom he could hire or fire. In late August 1964, Comanager and part owner Mul- connery asked dealer Robert Jewell and boxman Land "What's this union ... about?"7 and then he asked Jewell 4 This is established by the credited testimony of Thomas Thomas and Donald Jewell , although denied by Seideman. 5 "(a) It shall be an unfair labor practice for an employer - (1) to inter- fere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; .. . 6 "(a) It shall be an unfair labor practice for an employer - . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....." 9 The record contains many vulgarities and obscenities . Ellipses herein 335 if he had signed a card and Jewell replied in the affirma- tive. In early September 1964, Mulconnery said to dealer Powell and two other dealers and boxman Land, "You ... here I go to bat for you.... I protect your jobs ... And you go and join this ... union." In July 1964, Floorman Val Snead asked dealer Max Solis whether he belonged to the Union. Snead also stated he was surprised to hear Solis belonged and that "these people have been very good" and that, if he got fired, Solis would have a difficult time getting another job. On or about July 16, 1964, dealer and part-time boxman8 Danny Foster testified adversely to the position of Respondent in the NLRB representation hearing. On or about July 19, 1964, Ben Seideman accused Foster of stabbing him in the back and stated that he did not see how Foster could be a good employee in view of his testimony. These events are a background for a conversa- tion between Seideman and Foster on July 23, 1964, with Thomas Morgan, a floorman present. Seideman asked Foster why he wanted the Union. Foster explained the reasons. Then Seideman asked Foster why he didn't have the guts to come to him and form a company union. Seideman also told Foster that he had planned to make him a full-time boxman9 but in view of his testimony and union activities, this would not be done.10 After Seideman left the locality, Floorman Morgan told Foster he was sorry he had got into trouble and asked him why he had not been smart enough to dummy up and keep his mouth shut and stay out of trouble and why did he give testimony at the hearing and stir up trouble. On his direct testimony, Morgan admits he may have mentioned something about Foster's testimony and stirring up trou- ble, although he denies mentioning the Union. Morgan gave a statement to an agent of the Board containing the following: I know that Seideman held the conversation and I stayed on with Foster for a few minutes during which time I told Foster that he had put himself right in the middle. I stated that he should have just joined, and not put himself in the middle. By this, I meant that he should not have come on strong for the union, or got- ten involved in the hearing, or taken so active a part on behalf of the union. In answer' to a question as to whether he had made the statement, Morgan testified "Something to that effect but it wasn't the way I meant it to Mr. Foster. I thought I was - I never thought that he would bring it up and fire it against me, bring it up in an NLRB hearing," In the latter part of August 1964, Comanager and part owner Mulconnery asked dealer John Byrd whether he was a member of "this union." Byrd asked him if he was talking about the Union and Mulconnery acknowledged he was and Mulconnery said, " . . . you have !been work- ing here some time" and Byrd replied he had been work- ing close to 7 years, and Mulconnery' stated' to him "If you didn't like your job, why didn't you quit? ... The are used in hen of the actual words used where the context is not affected 8 In the El Dorado case, 151 NLRB 579, the Board found that a box- man was a supervisor within the meaning of the Act. 0 A boxman at the time of the events herein was paid at the rate of $40.00 a day while dealers were paid at the rate of $22.50. Foster worked only as a dealer after August 2, 1964. 10 Inasmuch as in the El Dorado case, supra, the Board held that a box- man was a supervisor. The testimony relating to statements made to Foster are not set forth herein as unfair labor practices , but as an indica- tion of Respondent's attitude towards union organization 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first mistake you make you are going to be fired." About 15 minutes later, Mulconnery came to where Byrd was working and stated, as testified by Byrd, "He says like I told you awhile ago that the first mistake you make, you are going .... If I don't catch you, the eye in the sky or one of the floormen will catch you." On or about August 5, 1964, boxman Blake, who has previously acted as a floorman, said to Danny Foster in the presence of Cooper, that he better not make any mistakes or he would be run outside and added "Let's see what this union can do for you then." Blake then turned to Cooper and said, "I never heard of a union in this racket." After the strike had been called by the Union on Sep- tember 19, 1965, and a picket line was established in front of Respondent' s premises, the testimony of several witnesses" establishes that Seideman offered the pickets their jobs back if they would abandon the strike and cease picketing and, if not, their employment opportunities would be adversely affected in the State of Nevada or for Respondent. In June 1964, Seideman asked dealer Sydney Meyers whether he had joined that mob or union. In August 1964, Seideman asked Meyers, "Are you still with that mob?" On or about September 21, 1965, Seideman took Meyers into his office and said, "I spoke to you before about this. You are still with that mob?" Meyers replied, "Yes" and Seideman said, "Well you are stubborn. I can't make you see the reasons this Union will never become anything. . They are nothing but rubbish, and we don't intend to bother or talk to people like that." Seideman also told Meyers, " I am giving you a warning now, if you go out with these boys, you cannot come back through these doors again." On or about September 19, 1964, the last days of Meyers' employment, boxman Bill Waggoner "whipped out a revolver" and he pointed it at Meyers and used profanities about the Union. Meyers' version is sup- ported by the credible testimony of Robert Land, a wit- ness for the General Counsel. On that same evening when dealer Jack Mandelbaum was present, Waggoner told Land that the Union had caused a lot of trouble and had gotten a lot of guys terminated and Waggoner pulled out a switch blade knife and at this juncture a pit boss stepped in and said, "This is no time for any arguments, or beefs or anything" and he says, "There is enough heat in the joint over the union."12 On September 19, about 8 a.m., Danny Foster, accompanied by Truman Scott, a union organizer, walked into the Hacienda Casino and announced the strike. They were then ushered out by Shift Manager Chet Edwards. A picket line was then formed outside and continued that day until a temporary restraining order caused the picketing to cease. Foster went to work at the Hacienda about 9 p.m. that same evening. At about 12:25 a.m., September 20, Shift Manager Edwards stopped at the crap table where Foster 11 Donald Jewell , Robert Jewell , Murray Cooper, Jack Mandelbaum. 12 Waggoner denies the revolver and knife incident but is not credited. Serpas, the pit boss present at the knife incident , was called by Respon- dent and denied it occurred. The General Counsel recalled Robert Land who testified to a conversation with Serpas outside the hearing room prior to Serpas giving his testimony . Serpas admitted the knife incident but told Land he could not testify to it. Land's account was supported by a wit- ness, Vickery. Respondent moved to strike the testimony of Land and Vickery because at the start of the hearing a motion to exclude witnesses was was working and said , "You had guts enough to come back in here .... You are responsible for getting three men fired off the graveyard shift .... How did you have guts to come back in ?" Foster replied, "And I answered him that I was obeying the Restraining Order that had been placed against our Union and Edwards said `You had not better be here when I get back !' A few minutes later Edwards again stopped and said `I see you are still here. You are nothing but a ... piece of garbage."' The rest of the crew on the crap table, where Foster was working, was permitted to go home. However, Ed- wards said to Foster, in the presence of several other dealers, "The rest of the crew, can go home , and I am going to keep you here and put you on the front line where everyone can see you and what kind of piece of ... you are." Also at about 1 a.m. on September 20, Ed- wards pointed at Foster and said to dealer Robert Gi- anoulakis , "There is the man who got you fired . See if he can get you hired." After Foster had announced the strike on the morning of September 19, Edwards said "anyone who left his job at this time will never work for this company again." Sometime in early October 1964, dealer Sidney Meyers met Ben Seideman at a food market and asked him if he could return to work. Seideman told him "No I told you when you left the Hacienda, when you went out with those men, you could never come back." On or about February 22, 1965, Jack Mandelbaum ap- proached Ben Seideman about returning to work . He said to Seideman, "I heard you put a couple of boys back to work. I am broke, I need a job . In fact I am behind on my child support . I need a job." Seideman replied, "`Well the blind follow the blind.' He says `just like why Hitler took over during the War,' he said `People followed him. They didn't know what was going on. That is why they ended up killing six million Jews."' Mandelbaum did not get a job and checked back about a week later with Seideman and again was unsuccessful, and Seideman said to him "That's what the union will get you." About the first week of December 1964, Robert Jewell asked Mulconnery if he could return to work, and was in- formed by him that no one who had walked out would be put back to work. In March 1965, Donald Jewell also sought to return to work and unsuccessfully asked Seideman for a job. He checked back about 30 times without obtaining employ- ment. It is regarded as unnecessary to make a determination as to whether the record warrants a finding of additional 8(a)(1) violations, as they would be cumulative and of the same nature and the recommended remedy would be the same whether or not additional violations of this type are found. Murray Ohio Manufacturing Company, 156 NLRB 840; J. M. Machinery Corporation, 155 NLRB 860. granted, and they were present when Serpas testified . Having considered the motion to strike, it is hereby denied. The prime reason for the rule was effected in this case. Unless, otherwise eligible, witnesses were excluded and were not able to hear the testimony of other witnesses on the same subject matter. Here Land and Vickery were not present, while General Counsel's witnesses were testifying. The reason for the rule would not ex- clude them here while witnesses hostile to their cause were testifying, and there was no occasion offered for corroborative fabrication of testimony, which the rule is designed to prevent. CASINO OPERATIONS, INC. C. The Alleged Unlawful Discharges The complaint alleges Respondent discharged 43 em- ployees because of their union or other protected con- certed activities." There is direct evidence with respect to 21 employees establishing they were discharged for their participation in the strike . The testimony supporting this is credited over the denials by Respondent's wit- nesses for the reasons set forth above occasioning a rejec- tion of the version of Respondent and a crediting of the testimony of the witnesses of the General Counsel. Frank Bakes Frank Bakes reported for work on the morning of Sep- tember 20, 1964, and told Ben Seideman he was ready for work. Seideman informed him, "you didn't cross the picket line, so you no further are employed here." Bakes asked Seideman if he was fired because he did not cross the picket line and Seideman answered in the affirmative. Stanley Butler Stan Butler was a member of a crew reporting for work with dealer Aaron Powell, on the evening of September 19. Powell said to Seideman, "We're reporting for work." Seideman said "You're fired." Powell informed Seideman he was a member of the Union and Seideman replied, "I don't give a damn, you're fired." Tom Collins Tom Collins did not cross the picket line on September 19, 1964. He reported for work by September 20 in the morning. He was told before he signed in "he would have to talk to Mr. Seideman." Collins asked if he should re- port for work and Seideman said that anyone who had not shown up for work or had participated in the picket lines was automatically terminated. Murray Cooper Respondent's time records show that Cooper last worked for Respondent on September 21, 1964. On that evening , Mulconnery asked him "How come you are not outside picketing with your friends; aren't you a union man?" Cooper replied that he was and that he would wait. Mulconnery said "You don't have to wait, you are fired. You can go out and picket right now." John Doane On September 19, 1964, Doane came to work between 8:30 and 9 a.m. and joined the picket line, where he stayed for 3 or 4 hours . About 5:30 that evening he re- ported for work. On his way to the cashier's cage to sign in he encountered Jack Seideman , manager of the slot de- partment for whom he worked. He was told by Jack Seideman, "Don't bother , the powers that be have had a meeting and decided that all people who participated in 13 Ralph Peterson, on motion of the General Counsel, was stricken from the complaint as an alleged discriminatee 14 Jack Seideman denied this statement and testified that he told Doane he was fired for being late He initially testified that he had never fired anyone for being late When recalled as a witness, he remembered one in- stance when an employee was 2 hours late and was fired . He also testified 337 the picket line were automatically terminated." In answer to a question as to the identity of the powers that be, Jack Seideman stated, "Mr. Bayley, Mr. Seideman and Mr. Mulconnery."r4 Ray Donan Donan went to the Hacienda on the morning of Sep- tember 19, 1964. Because of the picket line he returned home. Donan telephoned the Hacienda and talked to Ben Seideman. He explained that he was a member of the Union and did not feel like crossing the picket line. Seideman replied that the Union was illegal; that it had not been recognized in the State of Nevada; and that if Donan did not cross the picket line and come to work im- mediately he would be terminated. On the next day, Sep- tember 20, 1964, Donan went to the Hacienda at about 8:30 a.m. He did not find the work sheet to sign and did not find out about his status. About an hour later he talked to Ben Seideman and asked him, "Ben, what is it?" Seideman replied, "Ray ... [Y]ou have been terminated along with the rest of the boys who did not cross the picket line as of yesterday . . . I explained on the phone to you that the picket line was illegal The Union was not recognized as such, and that anyone that didn't report to work would be terminated .... I feel you are being led around like a bunch of sheep." Danny Foster Danny Foster was the individual who had announced the strike on the morning of September 19, 1964. He also was the victim of extreme verbal abuse by Shift Manager Edwards in the early morning of September 20, 1964. About 3 p.m. on September 20, 1964, his wife received a call from Ben Seideman, who asked for Danny Foster. When told he was sleeping, Seideman told her "Just tell him not to come in tonight and tell him he's terminated and pick up his pay check." Robert Gianoulakis Gianoulakis was known to Respondent's management as a union supporter. On the morning of September 19, 1964, shortly after the strike was called and the picketing commenced, Edwards said to Gianoulakis, "Hurry up and get your ... out of here. I will see to it that you never work again." Gianoulakis then went outside and joined the picket line. On September 20, 1964, about 12:45 A.M., Gianoulakis reported for work. Edwards, the shift manager, pointed to a crap table where Danny Foster was working and said "There is the ... who got you fired and see if he can get your job back."15 Bruce Harrell Bruce Harrell reported for work on the same crew with Aaron Powell. Powell said, "We're reporting for work" and Ben Seideman replied, "you're fired." In the context of the events of September 19, 1964, it is clear that the he had terminated Doane some 15 minutes to an hour before he reported and that he did not ask him why he was late Doane was due to report for work at 6 p m and reported between 7 and 7-30 p.m. It appears clear that Doane was not fired for being late, but because he engaged in picketing 15 This portion of the transcript is corrected from " . see if you can get youriob back." 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were being fired for supporting the Union, en- gaging in picketing , or refusing to cross the picket line. Harrell was a participant in picketing. The Respondent's time records show Harrell was terminated September 20, 1964. Nathan Hoberman Hoberman reported for work about 8:30 a.m. at the Hacienda, on September 19. He saw the pickets and returned home. About 10 a.m., Ben Seideman telephoned him and told him he was supposed to be at work at 9 o'clock. Hoberman told him he was a union member and could not cross the picket line. Seideman then stated, "Then you're through." Late in December 1964, Hoberman met Ben Seideman at another casino and said, "I'd like to go back to work" and Seideman replied, "Nat, you made your decision. You preferred the union." Donald Jewell He was on the picket line on the morning of September 19, 1964. In the early morning of September 20, 1964, Shift Manager Edwards accused Donald Jewell of lying to him when he denied being a paid-up member of the Union. He did not come to work the next 2 days because of illness, and on the third day there was a picket line which he did not choose to cross. In the last week of March 1965, Donald Jewell asked Ben Seideman if he could come back to work and was told to check back, which he did for about 30 times without obtaining em- ployment. Respondent's timebook shows that on Sep- tember 16, 1964, Donald Jewell worked as a day box- man, and had been doing so for 3 or 4 weeks. In the El Dorado case, supra, boxmen were held by the Board to be supervisors. It seems probable Donald Jewell should be classified a supervisor when terminated on September 21. United States Gypsum Company, 127 NLRB 134. Consequently he is not eligible for being classified as a discriminatorily discharged employee. RobertJ ewell Jack Mandelbaum Mandelbaum was in the casino on the morning of Sep- tember 19, 1964, when Danny Foster announced the strike. Shift Manager Edwards then said "Anyone who walks out will never work for this organization again." Thereupon Mandelbaum walked out and joined the pickets. On that evening when he reported for work, Floorman Val Snead showed him the timebook and the word "terminated" opposite his name. As previously set forth, Mandelbaum had two subsequent conversations with Ben Seideman during which he was in effect in- formed that he was discharged because of his union sup- port. Sydney Meyers Meyers was warned by Ben Seideman on his last day of work, "I am giving you a warning now. If you go out with these boys you cannot come back through these doors again." Thereafter Meyers did not cross the picket line. About 3 weeks later he met Ben Seideman and asked for his job. Seideman replied, "No, I told you when you left the Hacienda, when you went out with those men, you could never come back." William Moore About noon on September 19, 1964, Ben Seideman called Moore at his home. Moore had days off on Sep- tember 17 and 18, 1964. Seideman asked Moore if he was coming to work and Moore replied "Why sure." Seideman then said, "All right then, don't let the picket scare you." Moore then informed him he did not know about the picketing, and Seideman asked him if he be- longed to the Union and Moore replied he did. Seideman then said, "I guess you won't be in here" and Moore agreed he would not. On September 20, 1964, about noon, Moore went to the Hacienda and informed. Ben Sideman he was reporting for work. Seideman told him "You terminated yourself when you failed to show up yesterday." On September 19, 1964, Robert Jewell was on the picket line. On September 22, 1964, about 5 p.m., he was going to work but did not do so because the picket line was again present. He returned home and telephoned Ben Seideman and informed him he was a member of the Union and could not cross the picket line. Seideman in- formed him that if that was the case he was terminated. In December 1964, Robert Jewell returned to the Hacienda and spoke with Comanager Mulconnery and asked him if there was any chance to go back to work, and Mulcon- nery said he could not put anyone back to work who had walked out. Robert Love Love picketed on the morning of September 19, 1964. He went to work on September 20, 1964 at about 7:30 a.m. and found his name had been erased from the schedule. He informed Mulconnery of this and asked if he were still working. Mulconnery asked him if he had re- ported for work the day before and Love replied that he had not. Mulconnery asked him why and Love told him he had joined the picket line outside. Mulconnery then told him "Anyone that didn't cross the picket, and didn't come to work was automatically terminated." Paul Pelofski Pelofski either picketed on the morning of September 19, 1964, or did not cross the picket line-On September 20, Pelofski reported for work and noticed his name had been erased from the work schedule. He inquired from Shift Manager Edwards and was informed that he was terminated for not showing up for work. It is found that the reason for Pelofski's termination, at least in part, was based on his refusal to come to work when there was a picket line at Respondent's premises. Joseph Piersanti On September 19, 1964, Mulconnery asked Piersanti if he were a member of the so-called Union and if he was he had better look for work elsewhere. Piersanti did not respond. On September 22, 1964, Piersanti was about to sign in for work. Mulconnery asked him "How come you are not out there with your picket friends?" and "If you do you are fired." Piersanti then proceeded to the picket line and joined the pickets. CASINO OPERATIONS, INC. 339 Aaron Powell Powell went to the Hacienda about 10 a.m. on Sep- tember 19, 1964, and talked to the men on the picket line and then returned home. About 4:30 p.m., Powell returned to work at the Hacienda and so informed Ben Seideman. Seideman told him he was fired. Powell said to Seideman, "You know I am a member of the American Federation of Casino and Gaming Employees" and Seideman replied, "I don't give a damn, you're fired." George Roberts Robert Love September 20, 1964 William Moore September 20, 1964 Paul Pelofski September 20, 1964 Aaron Powell September 19, 1964 Thomas Thomas September 20, 1964 Forrest Young September 19, 1964 The record contains direct evidence of the following in- dividuals being discharged while on strike: Danny Foster September 20, 1964 Nathan Hoberman September 19, 1964 Jack Mandelbaum September 19, 1964 Sydney Meyers September 19, 1964 Joseph Piersanti September 19, 1964 George Roberts September 20, 1964 On September 20, 1964, about 6:30 p.m., Roberts was at the Hacienda and was asked by Ben Seideman whether he was a member of the Union, and Roberts replied in the affirmative. On September 22, 1964, Roberts telephoned to Ben Seideman and told Seideman that he could not cross the picket line and would not be able to come to work. Seideman then told Roberts he was fired. Thomas Thomas Thomas, on September 19, 1964, was working the graveyard shift and was due to finish work at 9 a.m. After Foster announced the strike at about 8 a.m., Edwards, the shift manager, said anyone who left his job at this time will never work for this Company again. Thomas thereu- pon went outside and joined the pickets. On September 20, Thomas reported for work at about 2:45 a.m. and was told by Floorman Snead that he would have to see Mr. Edwards and that he could not go to work because his name was on the list. Thomas spoke with Shift Manager Edwards who told him "You weren't fired; you quit." Ed- wards then pointed at Foster at one of the crap tables and said "There's the man who got you fired. Let's see if he can get you hired." Forrest Young On September 19, 1964, when Young reported for work, there was a picket line in front of the Hacienda. Young joined the pickets for about 5 hours. On the next day, Young reported for work and went to the casino cashier's cage to sign in. Ben Seideman called him and said, "Your check is ready .... You are all a bunch of .... When you didn't cross that picket line you fired yourselves." Although the majority of the discriminatees were discharged while on strike, several were discharged while working or when they had presented themselves for work. The following were discharged while at work as op- posed to being on strike on the dates indicated: Frank Bakes September 20, 1964 Stanley Butler September 19, 1964 Tom Collins September 20, 1964 Murray Cooper September 21, 1964 John Doane September 17, 1964 Ray Donan September 20, 1964 Robert Gianoulakis September 20, 1964 Bruce Harrell September 19, 1964 Robert Jewell September 22, 1964 16 Harvey testified as a witness for Respondent. He said he had got "messed up in the strike." He was the only striker reemployed by Respon- dent. He is listed in the complaint as Harvey Ashy The significance is merely that the remedy for those on strike commenced on the date of the offer to return to work. In addition to the above employees, the complaint lists the following as being discriminatorily discharged on or about September 19, 1964. In the absence of contrary evidence, it will be assumed these individuals were fired after they went on strike. Respondent's time records reflect the last scheduled dates of employment for each. Asby Harvey'° September 20, 1964 John Byrd September 21, 1964 Joseph Capra September 20, 1964 Phil Cuccia September 20, 1964 Mike Dunn September 19, 1964 Sol Hannan September 19, 1964 John Hart September 19, 1964 Marvin Hullett September 19, 1964 Vincent Javoric September 19, 1964 Russell Jones September 19, 1964 Al Kauffman September 19, 1964 Joe Kirschbaum September 19, 1964 John Koelker September 19, 1964 Bruce McLean September 19, 1964 Frank 'Richards September 21, 1964 Max Solis September 19, 1964 Jack Strickland September 22, 1964 Steve Volrich September 20, 1964 Gene Walker September 21, 1964 John Whiting September 21, 1964 Richard Zappulla September 19, 1964 The fact that a temporary restraining order against the picketing went into effect September 19, 1964, and the fact that some employees had days off no doubt accounts for the fact that the mass layoff was spread over a 2- or 3- day period. Some employees who were on strike on Sep- tember 19, 1964, returned to work for brief periods after the temporary restraining order against picketing went into effect and before it was terminated. The 21 employees listed above who were included in the mass layoff all participated in the picketing during the first week of the strike as well as did the 21 employees concerning whom there is direct evidence of discrimina- tion. There is no direct evidence of discrimination relating to any of these 21. However, the probabilities of a dis- criminatorily motivated discharge against these em- ployees is very strong. As set forth above, the record con- tains many references attributable to Respondent that any participation in the strike or failure to cross the picket line would be grounds for discharge. Supporting the in- 350-212 0-70-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference of discrimination is the fact all 21 acted as pickets either before or shortly after their discharge. No plausible explanation for the discharge at about the same time is made by Respondent. The terminations are most probably explained as discharges because of the strike. Even without any evidence creating an inference of dis- crimination such as exists here, there would be a basis for finding the discharge of all 21 employees discriminatory as well as the 21 employees who were fired with direct evidence of unlawful discrimination attending their discharge. At the very least the situation here warrants a finding that the entire group was discharged because of the demonstrated protected activity of part of the group. Such a mass discharge discourages union activity of all employees and violates Section 8(a)(3) and (1) of the Act. Arnoldware, Inc., 129 NLRB 228, 229. D. The Appropriate Unit and the Union Majority Although there was no request for bargaining on behalf of the Union, the General Counsel contends this is an ap- propriate case for a bargaining order, citing Western Alu- minum of Oregon, Inc., 144 NLRB 1191, where no 8(a)(5) violation was found, but the Board entered a bar- gaining order. The necessary conditions for such an order indicated in Western Aluminum are present here; that is where the Union has a clear majority prior to the unlawful discharges and the Respondent engaged in unfair labor practices destroying the Union's majority and evidencing a disposition to evade its duty to bargain. The unfair labor practices have been set forth above. The Union's majori- ty and the composition of the appropriate unit remain to be spelled out. In El Dorado Inc., et al., supra at 590, the Board found an appropriate bargaining unit of respondent's employees as follows: All gaming casino employees, including dealers, shills, slot department floormen, and slot department mechanics, but excluding pit floormen, boxmen, the slot department manager, cage cashiers, office cleri- cal employees, guards, and supervisors, as defined in the Act. The El Dorado decision also states: The Intervenor17 alleges that a 1964 contract with each Employer, except Diamond Jim's Nevada Club, operates as a bar to the inclusion of change girls and change booth cashiers located on the floor of the casino. The record plainly supports this con- tention as to all Employers except Casino Opera- tions, Inc. We shall therefore exclude the change girls and change booth cashiers from the respective appropriate units at those Employers' operations. As for Casino Operations, Inc., we are unable to deter- mine to our satisfaction from this record whether a contract which admittedly covers employees of the Hacienda Hotel should also be held to apply to the change girls at Casino Operations, Inc. In view thereof, we shall permit the change girls and slot cashiers at that location to vote subject to challenge in the election conducted among the employees of Casino Operations, Inc. The above-quoted language is read as in effect stating that the record before the Board in the El Dorado case does not establish one way or the other whether the change girls and slot cashiers are to be included or ex- cluded from the appropriate bargaining unit. The record in this unfair labor practice proceeding is identical to the one before the Board in the El Dorado case. The General Counsel must affirmatively establish all elements of his case by an adequate measure of proof. The Board on the same evidence has held no determination could be made with respect to the inclusion or exclusion of slot cashiers and change girls in the appropriate unit. Being bound by that holding in this proceeding, it necessarily follows the General Counsel has not met his burden of proof with respect to the inclusion of the slot cashiers or change girls in the appropriate unit. The Intervenor urges a finding excluding the slot cashiers and change girls from the appropriate unit. The Intervenor also noted that the Board postponed the find- ing on this question, stating it could be raised by chal- lenges at an election. As an alternative to a finding in favor of the Intervenor in this proceeding, and as an alter- native to a challenge at an election, it is urged this question be determined by the arbitration process. This proposal as an alternative to a resolution of the question by challenges to an election appears meritorious. The Intervenor filed a petition to compel arbitration in the United States District Court for the District of Nevada on April 13, 1965, and is now pending. i$ This ac- tion seeks arbitration on the question of inclusion and ex- clusion of slot machine cashiers and change girls within the terms of an existing collective-bargaining agreement between Intervenor and Respondent. Since the deter- mination of this issue by election challenges as envisaged by the Board in the El Dorado case appears remote because of this unfair labor practice proceeding and since the holding in the El Dorado case on the identical record in this proceeding in effect establishes the General Coun- sel has not met his burden of proof as to the inclusion in the unit of the disputed classifications, a resolution of the question by arbitration at the present time offers the most favorable prospect for a reasonably expeditious deter- mination. In view of the foregoing, it is found that the appropriate unit of Respondent's employees is the same as found by the Board in the El Dorado case with the added specific exclusions of slot machine cashiers and change girls. The record reflects that there were as of September 13, 1964, 95 employees with classifications included in the appropriate unit consisting of 82 dealers, 6 shills, and 7 slot floormen. There were introduced into evidence 61 cards authorizing the Union as the bargaining representa- tive of the signatory employees. General Counsel's Ex- hibit 152 is an authorization card signed by Joseph Crumby. Since it was established he never worked for Respondent, his card is not included in those indicating the Union was the authorized bargaining agent of the signatory to this card. The record also reflects that Lillian Katsarkis and Naida Merling were slot cashiers and therefore their cards will not be counted. There is a dispute as to whether or not the card of Gerald Musser should be counted. Respondent contends as of September 10, 1964, he was promoted to be a box- man and hence a supervisor and therefore not eligible for lY Culinary Workers Union, Local 226, Hotel and Restaurant Em- ployees and Bartenders International Union, AFL-CIO SS Las Vegas Local Joint Executive Board of Culinary Workers and Bartenders; Culinary Workers Union, Local No 226; and Bartenders Union, Local No. 165 v. Las Vegas Hacienda, Inc, and Casino Opera- tions, Inc CASINO OPERATIONS, INC. 341 inclusion in the bargaining unit. Musser testified and claimed he first became a boxman in the first or middle part of August. Respondent's timebooks show he worked September 19, 1964, as a boxman but not the previous days. Respondent's other pay records show Musser's rate of pay was changed to that of a boxman on September 10, 1964, but the amounts received by him indicate his rate of pay was not changed until about September 19, 1964. As of September 13, it would appear he was still a dealer and his card will be included. His card does not affect the majority and as a boxman he will not be included in the bargaining unit. Because Donald Jewell was found to be a supervisor, his card will not be counted either. There are 57 valid authorization cards and 95 em- ployees in the bargaining unit as of September 13, 1964, and hence the Union's majority is established as of that date. Consequently, for the purposes of this proceeding, it is found that an appropriate unit of Respondent's em- ployees for the purposes of collective bargaining consists of: All gaming casino employees, including dealers, shills, slot department floormen, slot department mechanics, excluding pit floormen, boxmen, the slot department manager, cage cashiers, office clerical employees, change girls and slot cashiers, guards and supervisors as defined in the Act. In February of 1965, Foster was assigned as a part- time boxman for 2 days a week. On July 16, 1965, he testified at an NLRB representation hearing. As of Au- gust 2, 1965, he was no longer employed as a boxman and reverted to a full-time dealer. As noted elsewhere herein, the daily rate of a boxman was $40.00 while that of a dealer was $22.50. The General Counsel contends that, in addition to a violation of Section 8(a)(3) and (1), the conduct of Respondent with respect to its treatment of Foster after he testified was a violation of Section 8(a)(4).19 As set forth above, since Foster was a supervisor and not an employee when demoted, it is apparent that he is not entitled to the statutory protection afforded em- ployees by Section 8(a)(3) and (4) of the Act. It is argua- ble the conduct of Respondent with respect to the demo- tion of Danny Foster violates Section 8(a)(1) of the Act General Engineering, Inc. & Harvey Aluminum v. N.L.R.B., 311 F.2d 570 (C.A. 9). However, as noted above, a finding of additional 8(a)(1) violations in this matter would be cumulative and would not affect the proposed remedy. Murray Ohio Manufacturing Com- pany and.I. M.Machinery Corporation, supra. F. The Nature, of the Strike and the Offer to Return to Work Respondent claims the strikes were purely economic in origin and there was no unconditional offer to return to work on or about September 20, 1964. As in the case of most strikes, the ones involved here were precipitated, at least in part, by economic considera- tions. The pertinent question is whether there was also a casual relationship between Respondent's unfair labor practices and the strikes. The variety of statements catalogued above attributable to Respondent before the strike reflected to the various employees that Respondent had no intention of recognizing the Union under any cir- cumstances. One of the picket legends reflected this be- lief on the part of the Union. These circumstances establish the probability that the unfair labor practices of Respondent were in part responsible for the strike. On September 22, 1964, Thomas Hanley, business manager of the Union, went to the Hacienda and spoke with Mulconnery "for the purpose of trying to adjust the grievances and disputes, and we wanted to offer to rein- state the men that-that went out on strike and had been discharged by management." Mulconnery replied that Seideman had made the decision to discharge the em- ployees and that he could not discuss it or do anything about it. Hanley handed Mulconnery a letter offering to return the people to work and expressing a desire to ad- just grievances. The statement and letter of Hanley to Mulconnery are not interpreted as conditioning the return to work upon the settlement of grievances. The expres- sions are regarded as communicating a desire to have the men reinstated and also to commence discussions bearing on the desires of the Union.20 Accordingly, it is found that on September 22, 1964, there was an unconditional offer on behalf of the unfair labor practice strikers to return to work, which was re- jected by Respondent. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the fol- lowing conclusions of law: 1. Respondent is and has been at all material times an employer within the meaning of the Act. 2. The Union is and has been at all material times a labor organization within the meaning of the Act. 3. All of Respondent's gaming casino employees, in- cluding dealers, shills, slot department floormen, slot de- partment mechanics, but excluding pit floormen, boxmen, the slot department manager, cage cashiers, office clerical employees, change girls and slot cashiers, guards and su- pervisors as defined in the Act constitute and have at all times material constituted a unit appropriate for the pur- poses of collective bargaining within the meaning of the Act. 4. The Union, as found above, was as of September 13, 1964, and has been at all times since, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the mean- ing of the Act. 5. The strikes against Respondent were caused by the unfair labor practices of Respondent. 6. By discharging the employees set forth above, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act as found above, the Respondent has en- gaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 19 Section 8(a)(4) It shall be an unfair labor practice for an employer - .. (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act; . . 20 Although Mulconnery denied the conversations with Hanley and was corroborated by a witness, Hopper, Hanley's version appeared truthful and is credited 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. The aforesaid unfair labor-practices are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. Because of the nature, range, and scope of the unfair labor practices found above, an order will be recom- mended which will have the effect of requiring Respond- ent to refrain in the future from abridging any of the rights guaranteed employees by Section 7 of the Act.21 The employees who were discharged prior to going on strike are listed in Appendix A together with the dates of discharge. The employees who were discharged after going on strike are listed in Appendix B together with dates of discharge. It is recommended Respondent offer the individuals named in Appendix A immediate and full reinstatement, each to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and that Respondent make each of them whole for any loss of pay suffered by reason of the discrimination against him by payment to such in- dividual of a sum of money equal to the amount of wages he would have earned but for the said discrimination between the date of the individual's discharge and the date of an offer of reinstatement together with interest thereon as provided below. It will be further recom- mended that Respondent make each of the employees named in Appendix B similarly whole by payment to each of a sum of money equal to the amount of wages he would have earned but for the discrimination against him, between September 22, 1964, the date of the uncondi- tional offer to return to work, and date such individual is offered reinstatement, and such reinstatement shall be without prejudice to seniority or other rights and privileges. In order to effect this recommendation for reinstatement, Respondent shall discharge, if necessary, any employee hired after September 19, 1964. The loss of pay any individual may have suffered by reason of Respondent's discrimination shall be computed in ac- cordance with the method and formula prescribed by the Boardin F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that, as of September 13, 1964, the Union represented a majority of Respondent's em- ployees in an appropriate unit and that the discharges were an indication evidencing a disposition to evade Respondent's bargaining obligation, it will be recom- mended that, upon request, Respondent bargain with the Union as the representative of the employees in the ap- propriate unit described above. Western Aluminum of Oregon, Inc., supra. [Recommended Order omitted from publication.] E1 N.L.R.B. v. Entwistle Mfg. Co, 120 F 2d 532 (C.A. 4). Murray Cooper September 21, 1964 John F. Doane September 19, 1964 Ray Donan September 20, 1964 Robert Gianoulakis September 20, 1964 Bruce H. Harrell September 19, 1964 Robert Jewell September 22, 1964 Robert Love September 20, 1964 William Moore September 20, 1964 Paul Pelofski September 20, 1964 Aaron Powell September 19, 1964 Forrest Young September 19, 1964 Thomas Thomas September 20, 1964 APPENDIX B Danny Foster September 20, 1964 Nathan Hoberman September 19, 1964 Jack Mandelbaum September 19, 1964 Sydney Meyers September 19, 1964 Joseph Piersanti September 19, 1964 George Roberts September 20, 1964 Asby Harvey September 21, 1964 John Byrd September 21, 1964 Joseph Capra September 20, 1964 Phil Cuccia September 20, 1964 Mike Dunn September 19, 1964 Sol Hannan September 19, 1964 John A. Hart September 19, 1964 Marvin Hullett September 19, 1964 Vincent Javoric September 19, 1964 Russell Jones September 19, 1964 Al Kauffman September 19, 1964 Joe Kirschbaum September 19, 1964 John Koelker September 19, 1964 Bruce McLean September 19, 1964 Frank Richards September 21, 1964 Max Solis September 19, 1964 Jack Strickland September 22, 1964 Steve Volrich September 20, 1964 Gene Walker September 21, 1964 John Whiting September 21, 1964 Richard Zappulla September 21, 1964 SUPPLEMENTAL DECISION EUGENE K. KENNEDY, Trial Examiner: On March 30, 1966, following a hearing on the issues in this proceeding, I issued a Decision containing findings , conclusions, and a recommended order. The Board on January 13, 1967, entered an order remanding the case and reopening the record for a further hearing for the purpose of adducing additional evidence relevant and material to the following issues: 1. The unit of Respondent's gaming casino employees appropriate for purposes of collective bargaining, with particular reference to whether or not at times material herein, Respondent's change girls and slot cashiers were represented in another unit by Culinary Workers Union Local 226. 2. The authenticity of the union authorization cards purporting to be those of employees Vincent Javoric, Ashy Harvey, G. Lazaro, John Whiting, Richard Zappul- la, and E. E. Bold.I - APPENDIX A Frank Bakes September 20, 1964 Stanley Butler September 19, 1964 Tom Collins September 20, 1964 ' The following corrections are made in the original Decision- p 3, 1. 23 should read "October 19,1965" instead of "October 19,1964", p- 3, 1 20 should read "October 21, 1965" instead of "October 21, 1964", and p. 5, 1. 59 should be corrected as follows: "... was a supervisor. The testimony CASINO OPERATIONS, INC. 343 1. The unit question In the original Decision the appropriate unit found ex- cluded change girls and slot cashiers. In a representation hearing, El Dorado Inc., dlbla El Dorado Club, 151 NLRB 579, the Board did not include the change girls and slot cashiers in the unit but permitted them to vote subject to challenge. No election was held due to this un- fair labor practice proceeding. This approach was taken because the intervening party in this proceeding, Las Vegas Local Joint Executive Board Culinary Workers Local 226, who had a collective-bargaining contract with the Hacienda Hotel located on the same premises as Respondent, claimed the employees of Respondent were covered by this agreement. On the record before it, the Board could not determine whether this was a fact. At the initial hearing, in this matter contrary to the position of the Intervenor, the General Counsel took the position that the change girls and slot cashiers should be included in the unit. Respondent's counsel at that time took no position on this issue. In the reopened case Respondent's associate counsel, appearing in the case for the first time, stipulated that the unit should include the change girls and slot machine cashiers as contended by the General Counsel. Moreover, since the close of the original hearing the United States District Court for the District of Nevada, in a memorandum decision issued June 17, 1966, held that Respondent Casino Operations, Inc., was not bound by Intervenor's contract with Las Vegas Hacienda, Inc.2 These factors add support to a finding that the change girls and slot cashiers were not represented by Culinary Workers Union Local 226. Inasmuch as the record reflects the change girls and the slot cashiers work in the same area and are engaged in the same general work as the balance of the employees in the unit, it is found they also should be included in the appropriate unit. As found in the original Decision as of March 30, 1966, there were 95 employees in the appropriate unit consisting of 82 dealers, 6 shills, and 7 slot floormen. It was found there were 57 valid authorization cards among the 95 employees in the bargaining unit as of September 13,1964.3 The inclusion of the change girls and slot machine -cashiers in the unit requires a reexamination of the Union's majority. The record establishes that Lillian Katsarkis and Naida Merling, classified as slot cashiers, signed union authorization cards. Mary Ann Moppert, listed as a change girl, also signed a union authorization card. There were five employees listed as slot cashiers as of September 13, 1964, who had not signed union authoriza- tion cards. The effect of this addition of classifications of change girls and slot cashiers results in increasing the size of the unit to 102 employees with 60 valid authorization' cards, and hence the Union's majority in the appropriate unit is established as of September 13, 1964. 2. The authenticity of employee union authorization cards The Board's Order calls for taking further evidence on the authenticity of the union authorization cards of em- ployees Vincent Javoric , Asby Harvey, G. Lazaro, John H. Whiting, Richard Zappulla, and E. E. Bold. Respondent concedes the authenticity of the cards of Asby Harvey, John H. Whiting, and E. E. Bold. Respondent also concedes the authenticity of the card of Zappulla, but urges that, since he withdrew it after Sep- tember 13, 1964 , it should not be counted. This conten- tion is rejected as the card was valid on the date the majority question was resolved. Concession by the Respondent is also made as to the validity of the union authorization cards of G. Lazaro and Vincent Javoric, but contends they are supervisors and hence these cards should not be counted . In response to this it is noted the Board characterized these individuals as employees and the probability that this term was deliberately used is that it chose to take evidence on the authenticity of the cards when it had before it the payroll records reflecting the extent which these individuals worked as boxmen which is a supervisory position. For these reasons the cards of Lazaro and Javoric are ac- cepted as authentic employee union authorization cards. On the entire record, the original Decision in this matter is amended with respect to classifications in the appropriate unit, and paragraph 3 of the Conclusions of Law is amended to include change girls and slot cashiers rather than excluding them and to similarly correct the description of the appropriate unit in Appendix C, Notice to all Employees. With respect to the authenticity of the union authoriza- tion cards of employees Vincent Javoric , Asby Harvey, G. Lazaro, John H. Whiting, Richard Zappulla, and E. E. Bold, the findings in the previous Decision are affirmed. 2 The decision is on appeal. 8 In its brief Respondent raised the question as to why September 13, 1964, was picked as the date upon which the Union's majority status was determined. This date was included in the payroll period just prior to the strike and the mass termination of employees, and appears as a logical date to utilize for this purpose.