Dunes Hotel

M & R INVESTMENT CO, INC. 725 M & R Investment Co., Inc ., d/b/a Dunes Hotel and United Casino Employees Organizing Committee, AFL-CIO, affiliated with Seafarers International Union of North America , AFL-CIO M & R Investment Co., Inc ., d/b/a Dunes Hotel and Las Vegas Casino Employees , Local 7, AFL-CIO, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO M & R Investment Co., Inc ., d/b/a Dunes Hotel and International Association of Machinists and Aero- space Workers , AFL-CIO. Cases 31-CA-734-1, 31-CA-734-2, 31-CA-739, and 31-CA-733 November 12, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 24, 1968, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support of its exceptions. The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions,' and recommendations of the Trial Examiner. supervisor as it is clear from the record that Duckworth's entire remarks to Whiting on April 17 were couched in such a manner as to elicit information as to Whiting's union activities and sympathies and thereby violative of Section 8(a)(1) of the Act. We find that the complaint is sufficiently broad and the matter sufficiently litigated to justify basing our conclusions upon the entire conversation between Whiting and Duckworth rather than , as the Trial Examiner concluded , upon only that portion of the conversation relating to George Laird's activities TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner This case was heard at Las Vegas, Nevada, on October 9, 1967, and February 29, 1968,' upon an amended consolidated complaint issued on August 31, 1967,2 alleging that the Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended In its answer, Respondent denied the commission of unfair labor practices. The issues presented are whether or not (1) Respondent interfered with, restrained, and coerced its employees in the exercise of protected rights, and (2) the admitted discharges of five employees were motivated by their union activities. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel, the Respondent, and Local 7, one of the Charging Parties, I make the following- FINDINGS AND CONCLUSIONS3 1. THE UNFAIR LABOR PRACTICES A The Section 8(a)(1) Allegations 1. The evidence Respondent is a Nevada corporation engaged in the business of operating a nonresidential hotel and gaming casino in Las Vegas. In late February or early March 1967,4 employees decided to organize. Employees Choltko and Strohlein ob- tained authorization cards from the Seafarers Union, and passed them out to other employees. Strohlein passed them out at Respondent's premises as well as elsewhere; and at his request, Employee Perez signed a card. Sometime during the first two weeks of March, a number of Respondent's em- ployees met at Strohlein's home. Among those present, in addition to Strohlein, were Choltko, Perez, and Truman Scott, an organizer for the Seafarers Union. Toward the end of the ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, M & R Investment Co., Inc., d/b/a Dunes Hotel, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Trial Examiner describes George Laird as an employee and the Respondent contends that Laird is a supervisor within the meaning of the Act It is unnecessary to determine whether Laird is in fact a 1 The hearing was continued on the first-mentioned date to permit the General Counsel to seek enforcement of subpenas ad testificandum served upon two of the discriminatees named in the complaint, Eugene C Strohlein and William F Choltko. 2 Based upon charges filed on June 7, 8 , and 13, 1967. 3 No issue of commerce is presented The complaint alleges and the answer admits facts which , I find, establish that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent admitted at the hearing, and I find, that Local 7, the Machinists, and United Casino Employees Organizing Committee are each labor organi- zations within the meaning of Section 2(5) of the Act . I also take official notice that Local 7's parent body, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (also known as the Culinary Workers Union ), and that the Seafarers Union, with which United is affiliated , are labor organizations within the meaning of that Section. 4 All dates hereafter referred to relate to 1967 unless otherwise stated. 173 NLRB No. 109 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, after some of the participants had left, Supervisor Ettinger5 dropped in, exhibited surprise, and said, "Don't worry, fellows I don't see nothing." Choltko testified that he and Scott were the only ones there at the time, Strohlem having left to pick up his wife. Perez testified that he, Strohlem, Choltko, another employee, and Organizer Scott were still present. Based on Choltko's reluctance to testify, discussed below, his demeanor and that of Perez, I credit the latter Thereafter, Perez passed out a few Seafarers authorization cards to employees, including one to an employee during the latter's rest period. Strohlein continued to pass out cards each day. In early April, Supervisor Cutler told Strohlein that he had heard that the latter was organizing at Respondent's casino, that he should not be doing it, and that Sid Wyman, one of Respondent's owners, was a little annoyed with the union activities then going on.6 During the same month, Employee Dambrogio learned that Local 7 was attempting to organize Respondent's casino employees, went to see that union's secretary, Bramlett, obtained information and authori- zation cards, and thereafter solicited Respondent' s casino employees during rest periods on behalf of that Local On April 17, the date of the hearing in a representation proceeding involving Respondent, Supervisor Duckworth told Employee Whiting that organizing for the Seafarers Union was no way to repay him for giving Whiting a lob, asked the latter whether Employee Laird was signing up employees; stated that Whiting's work was good and that as far as he was concerned Whiting had a permanent job with Respondent, but added that if Whiting had a better chance with Organizer Scott of the Seafarers and would prefer to work with him, he should take his choice. Whiting told Duckworth that he was organizing for the Seafarers, and continued to pass out cards and literature to employees during their rest periods subsequent to his conversa- tion with Duckworth.7 Respondent discharged Strohlein on April 29, Whiting on June 4, Choltko on June 5, Perez on June 7, and Dambrogio on June 9 About 2 weeks before the election scheduled to be held among Respondent's employees on June 23, Wyman asked Employee Ostrander how he felt about unions. When Ostrander stated that he intended to vote for the Seafarers, Wyman appeared perturbed, replied that he hoped Ostrander would vote for him and, in the course of the ensuing conversation, stated that he was going to get all the employees a raise and that Ostrander need not worry about his job. About a week or two before the scheduled election, Wyman told Employee Campbell that he had already talked to some of the dealers, expected to talk to all of them, did not want "the union" in, and wanted his vote in the election; stated that Campbell had a job at the casino as long as he desired; and promised to give a 10-percent raise to the employees as soon as he completed negotiations with the Culinary Union, stating that the latter would not agree to accept a 6 percent raise if he gave the casino employees a raise of 10 percent. About a week before the election, Wyman told Employee Hix that he was against the competing unions and would like to win the election, asked him how he was going to vote, and stated that he had proposed a 10 percent raise for the casino dealers but had refrained from putting it into effect because Respondent was negotiating with the Culinary Workers. 2 Concluding findings I find that on April 17, Duckworth interrogated Whiting regarding Laird's union activities; and that about a week before the election scheduled for June 23, Wyman interrogated Hix as to how he was going to vote Since such interrogations were coercive, I find that they violated Section 8(a)(1) I make no finding of violations based upon Duckworth's coercive statement to Whiting that he must choose between working for Respondent or for Organizer Scott of the Seafarers, upon Cutler's coercive remarks to Strohlein regard- ing Wyman's views relating to union activity, and upon Wyman's coercive conduct in holding out to Employees Ostrander, Campbell and Hix the possibility of a pay raise if the employees voted against unionization at the scheduled election Such violations were not alleged in the complaint and it does not appear that they were fully litigated at the hearing. The complaint contains allegations that certain other statements by Wyman, Cutler and Zahlout constituted viola- tions of Section 8(a)(l), but I find that there is no evidence to support such allegations. B The Discharges 1. Contentions, evidence, and analysis The General Counsel contends that the five above-named employees were discharged because of their union activities This contention is predicated upon Respondent's knowledge of such activities, the union animus which it exhibited, and the timing of the discharges Respondent does not seriously dispute, and I find, that it was aware of their union activities 8 There is no doubt that Respondent opposed unionization. Indeed, it engaged in unlawful interrogation and other anti- union conduct which would be found unlawful had it been alleged in the complaint Moreover, Strohlein was discharged on April 29 and the remaining four during the period from June 4 through 9, i.e within a brief period of time, during one of Respondent's busy months, and shortly before an election scheduled by the Board. I find that such timing lends support to an inference of unlawful motivation9 and that the timing, when combined with the other considerations already men- tioned, establishes a prima facie case of unlawful discrimina- tion against the five employees. Respondent's position is that the General Counsel has failed to sustain his burden of establishing unlawful motivation in 5 Perez, who lived 4 or 5 blocks from Strohlein 's home, testified that Ettinger "is a neighbor, and he is a friend " 6 Neither Cutler nor Wyman testified 7 Duckworth did not testify 8 Supervisor Ettinger saw Strohlem , Choitko and Perez at the meeting with Organizer Scott Supervisor Cutler told Strohlem that he had heard of the latter's solicitation at the Dunes Supervisor Reggio admitted that Whiting's prior activities on behalf of another union had received newspaper publicity and were well known. Whiting told Supervisor Duckworth of his organizing activities at the Dunes. At the time Dambrogio was discharged , Supervisor Zahlout told him that his union activity was affecting his work Zahlout admitted that he had heard rumors that Perez and Choltko were members of "the Union," and that Dambrogio had often boasted that he had been a lifelong member of the Culinary Workers Union. 9 N.L.R.B. v. Tennessee Packers, Inc, 390 F.2d 782 (C.A. 6). M & R INVESTMENT CO., INC. connection with the discharges which, it contends, were for cause The facts surrounding the discharges are discussed below. a Eugene Strohlein Strohlein was discharged on April 29. He testified that on that day, Supervisor Saul stated to him, "We're not going to fire you for any Union activity, but have you ever taken any customers out of the Dunes2", that Saul also mentioned something about borrowing money from customers, that Strohlem denied both accusations, and that Saul then stated that he was terminated. Saul testified that he was instructed by his superior, Duckworth, to let Strohleini ° go at the end of his shift for taking a customer, Wahlmack, from the Dunes to other places and borrowing money from him, and that Saul then informed Strohlein that he was terminated for those reasons In his testimony, Strohlem denied that he had taken any customer of the Dunes to other places and that he had borrowed from any customers He admitted, however, that he had met Wahlmack by accident on one occasion at another casino, the Silver Slipper; that they had a drink together; that Strohlern engaged in gambling on that occasion as Wahlmack's agent and with the latter's money, with the expectation of receiving a gratuity if he won, and that he never told Respondent about the incident. Strohlein further admitted that dealers were not permitted to borrow money from, or even fraternize with, customers, that for dealers to become friendly, drink and go out gambling with customers was not approved of, but was not unheard of; that such conduct was "usually" cause for "immediate" discharge, and that even a suspicion that a dealer has borrowed money from a customer or has engaged in the conduct which Strohlein admitted was a ground for discharge. Finally, he testified that the single occasion on which he engaged in his admitted conduct occurred about 4 or 5 months before his discharge; that after his encounter with Wahlmack, the latter returned to Respond- ent's casino and gambled at Strohlein's table; and that Strohlern was never reprimanded for any violation of rules Although Strohlern violated Respondent's rules and could lawfully have been discharged therefor, I reject Respondent's contention that he was discharged because of his infraction The record establishes that an infraction like that committed by Strohlern was "usually" a cause for discharge. That being so, it was incumbent upon Respondent to go forward with evidence showing in which circumstances such an infraction was not punished by discharge and how Strohlein's situation differed from those circumstances, inasmuch as such informa- tion was "most accessible" to Respondent NLRB v. Great Dane Trailers, Inc , 388 U S 26; Standard Container Co , 171 NLRB No. 59. Moreover, it is undisputed that Strohlein's infraction occurred 4 or 5 months prior to his discharge. Since the infraction was usually cause for "immediate" discharge, it was similarly incumbent upon Respondent to go forward with evidence showing how and when it received the information which led to Strohlein's discharge on April 29 10 Although the transcript of testimony contains the name "Choltko" at this point in Saul's testimony , it is evident from the context that Saul was referring to Strohlem. 11 If anything , the record suggests earlier knowledge of the infraction The logical source of information relating thereto would 727 Respondent has not gone forward with such evidence. I cannot assume that the circumstances involving Strohlem were not such as to except him from Respondent's usual practice Nor does the record contain any basis for an inference that Respondent learned of the infraction immediately or even shortly prior to Duckworth's instructions to Saul to fire Strohlem, and that it took prompt steps to effectuate its policies as soon as it learned of the infraction.'' In addition, the record shows that Strohlein was reluctant to testify on his own and the General Counsel's behalf at the hearing and that enforcement of the subpena against him was required For this reason, I am inclined to credit his testimony, which supports the General Counsel's position, that Saul began his discharge statement by stating, "We're not going to fire you for any Union activity " Saul's very negation of union activity as a motive suggests that such activity was very much on his mind Otherwise there would have been no reason for Saul to make the remark. b John Whiting Whiting was hired by Respondent as a dice dealer on July 10, 1965. In the early spring of 1967, he expressed to Supervisor Reggio and Personnel Director Koteas his interest in returning to school, and requested their help in obtaining a job which he could hold while going to school in Los Angeles Both agreed to try to help him Reggio testified that "after that" Whiting's work started slipping, i.e., he was less attentive to his work and made constant mistakes; that Reggio and other supervisors expressed criticism of his work, that "this went on for a couple of weeks"; that finally on June 4, which was a Sunday and a very busy day, his mind was not on his work and he made too many mistakes to be tolerated, and that Reggio so advised him and discharged him on that day. As already found above, Duckworth told Whiting on April 19 that his work was good Whiting testified that he had never been reprimanded because of unsatisfactory work prior to his discharge. He further testified that when Reggio informed him of his discharge, the latter stated that he did not know the reason; that so far as he was concerned, Whiting's work was satisfactory; but that one of Reggio's superiors felt that his work was no longer satisfactory. Koteas testified that he understood that Whiting had gone back to school. Respondent contends that Whiting was discharged because subsequent to his disclosure of his desire to return to school, he became inattentive to his work and made constant mistakes I am not persuaded that this was the true motive for the discharge There is no disagreement that Whiting's work was good both prior to such disclosure and between the disclosure and the two-week period before his discharge Reggio testified only that Whiting's lack of attention, his mistakes and the reprimands continued for a couple of weeks until he was finally discharged. The disagreement relates to whether or not Whiting became inattentive, made frequent mistakes and was reprimanded therefor during that two-week period; to whether or not Whiting performed slipshod work on the day of his discharge, and to whether Reggio told him that his work was have been Wahimack He returned to gamble at Respondent 's casino sometime between Strohlem's infraction and discharge , and it would seem likely that Wahlmack at that time disclosed to Respondent his encounter with Strohlem. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or was not satisfactory at the time he discharged him 12 Whiting had worked for Respondent for two years and was considered a good dice dealer No reason has been suggested to explain why he should suddenly become inattentive to his work. If he still hoped to receive help from Respondent in obtaining another job, it is improbable that he would have permitted his work to deteriorate. Even if he had given up hope of help from Respondent, there is nothing to show that he had nevertheless decided to quit his job and had accordingly lost interest in his work. Moreover, in view of his past experience in union activity, it is equally improbable that he would have permitted his work to deteriorate at a time when he was engaging in union activity and thereby deliberately furnish to his employer a basis for discharging him Respond- ent's explanation thus does not seem to have the ring of plausibility. For this reason, as well as the demeanor of the witnesses, I accord greater credence to Whiting's testimony in resolving the conflict, and reject Respondent's explanation for the discharge c. William F. Choltko Choltko had been served with a subpena requiring him to testify as a witness for the General Counsel on October 9, the date on which the hearing began, but he failed to respond thereto Thereafter, an order enforcing the subpena was obtained and Choltko appeared as a witness when the hearing was resumed on February 29, 1968. He testified that he had failed to respond to the subpena because he had requested that "my charges" be withdrawn and had concluded that it would be unnecessary to appear ;13 that his withdrawal request was made because the Board agent who obtained a prehearing statement from had failed to include therein information given him by Choltko regarding several arguments with Supervisor Saul concerning his work; and that the statement accordingly did not contain the entire truth. He admitted, however, that the statement contained "a sentence that says something about a formal reprimand," but stated that he assumed that the sentence referred to a formal reprimand by one of Respond- ent's owners Choltko was hired by Respondent as a blackjack dealer in December 1963 On direct examination, he testified that he had had three or four arguments with Supervisor Saul concerning his work; that a few days before June 5, while he was staring into space as he was dealing, Saul told him to keep his eyes on the game, that during his next rest period, he went to Saul and told him to "go to hell", and that on the latter date, Supervisor Ryan gave him a termination slip, stated, "I'm sorry to see you go. As far as I'm concerned, you're a good worker," and said that he would recommend Choltko for a job at any place.' 4 On cross-examination, Choltko testified as follows. He had been reprimanded twice by Saul's superior, Zahlout, and had been reprimanded at least three or four times by Saul during the 2-month period preceding his discharge. When he uttered the above-mentioned profanity to Saul, the latter responded to the effect that he ought to fire Choltko then and there. On the following day, Zahlout asked him about the argument with Saul, informed him that Saul had recommended his suspension for a week, and reprimanded him. On the next day, June 5, he was discharged Had he been a supervisor, he would have immediately discharged an employee who used such profanity to him Inasmuch as he had not been discharged within a day after the incident with Saul, he assumed that everything was all right and was surprised by the termination.' 5 At the time he received his termination slip, he did not believe that his work had been unsatisfactory, but after thinking things over, he had concluded that he was at fault. A dealer whose eyes wander while working is a bad dealer He considers himself a good dealer when his mind is on his work Saul testified that on several occasions he had warned Choltko about looking around while working, that cheating by customers is possible when the dealer's eyes are not on the table, that after "the last time [he] warned" Choltko, the latter told him to "go to hell" and stated that his eyes were his most valuable possession; that Saul then replied that he would give Choltko some time off so he could rest his eyes, that the next day Saul recounted to Zahlout the exact conversation and recommended a week's suspension; that Zahlout replied that he should either fire Choltko or give him one last chance. Finally, Saul testified as follows- Q. I see. Did he tell you to terminate Mr. Choltko? A. Because he did it again and two days later is when I let him go. Q. I see. Did you, in fact, terminate him? A. I think so. I'm not sure. Q. Do you recall telling Mr. Ryan- A Mr Ryan Q. -you terminated him? A. He told me to let him go. Q. I see. And this all occurred in a period of two or three days. A. Between two or three days Zahlout testified that he had reprimanded Choltko several times for glancing all over the room while shuffling cards and not paying attention to customers and the money being wagered, that on June 4, Saul had recommended a week's suspension because of Choltko's lack of attention to his work, but that Zahlout replied that he should either be fired or given one last chance, that when he asked Choltko about the incident with Saul, Choltko told him that he had been reprimanded several times by Saul, and that when he subse- quently heard about, and questioned Choltko regarding, his profanity to Saul, Choltko admitted it. Respondent contends that Choltko was discharged as the result of his poor performance which led to several arguments with Supervisor Saul, the last one having occurred shortly before the discharge. I do not agree. Like Strohlem, Choltko was a reluctant witness. His alleged reason for failing to i 2 If, as Whiting testified , Reggio in fact said that his work was satisfactory , it follows that Whiting did not perform slipshod work on the day of his discharge Accordingly, Whiting's testimony relating to Reggio's discharge statement contains an implicit denial of slipshod work 13 The charge which named Choltko, as well as Strohlem , was filed by the United Casino Organizing Committee. 14 The termination slip gave unsatisfactory work as the reason for the discharge The record shows that in the gaming industry, it is customary to refrain from stating the true reason for a discharge and to state only that the employee's work was unsatisfactory or that the discharge was due to a change in personnel. 15 Choltko testified "Mr Saul's the type that you can argue with and tell him to go to hell and everything else and, well, I guess I went too far with him that time." M & R INVESTMENT CO., INC respond to the subpena is patently incredible. His eagerness to admit that his work had been unsatisfactory, particularly in view of his contrary belief when given his termination slip, strains credulity. Indeed, his self-denunciation because of misconduct was somewhat reminiscent of the admissions of guilt by defendants at trials conducted under other systems of law. I therefore accord no weight to Choltko's admissions of misconduct. In addition, it is undisputed that Supervisor Ryan, at the time he informed Choltko of his discharge, expressed the opinion that the latter was a good worker and agreed to give him a recommendation Moreover, Saul's testimony is that he told Zahlout about Choltko's profanity and suggests that it was such profanity that prompted him to recommend a week's suspension for Choltko.16 Saul's testimony thus contradicted that of Zahlout, who testified that Saul recommended suspen- sion because of Choltko's lack of attention, and that he learned of the profanity after Saul's recommendation. In view of Choltko's lack of credibility, the conflict in testimony between Saul and Zahlout, and Ryan's view of Choltko's work, I find that Respondent's explanation for the discharge is unpersuasive. d Armando Perez Perez was hired as a roulette dealer by Respondent on August 20, 1961. He testified that at about 2.00 a in on June 7, during an idle moment in his shift, Supervisor Zemel informed him that he was discharged Zemel testified that Supervisor Zahlout had instructed him to terminate Perez but did not disclose the reason for the order, that he then terminated Perez, and that this occurred at the end of his shift. Zemel further testified that sometime prior thereto, Supervisor Duckworth had pointed to Perez, asked who he was, and stated that the latter had just "spit" on the floor; that Zemel did not know "what to think of it" and could not imagine him "spitting on the floor"; and that he could not remember when the incident occurred, but thought it was close to the date of the discharge. Zahlout testified that shortly before he went home at about 2 a m on June 7, he saw Perez walk to his work station with a cigar in his mouth, place the cigar under the table, and "spit" on the floor, that Zahlout turned to Zemel, who was standing next to him, and said "Terminate that fellow tonight. We're not going to make a pigpen out of this place." Zahlout further testified that a week or two earlier, Supervisor Duckworth had reprimanded and almost terminated Perez for "spitting" on the floor. Perez testified that he is a habitual cigar smoker but had never entered the roulette pit with a cigar in his hand; that on one occasion about 6 or 7 months before his discharge, at a time when he was not smoking, Duckworth had told him "Listen, don't spit on the floor, because you don't do it in your house", and that he did not know whether he had actually "spit" on the floor at that time, but might have. Respondent contends that Perez was discharged for his "vile" and "disgusting" conduct in expectorating on the casino floor. Perez did not deny that he did "spit" on the casino floor on the two occasions, and I find that he engaged in that 729 conduct. There is, of course, no doubt that a discharge for such conduct would be lawful if that was the reason for it. However, I am not convinced that it was. Asserting that the Dunes Hotel is one of the most luxurious hotels in the United States and a source of pride to both its owners and employees, Respondent argues that "to suggest that an employee who spits on the floor is deserving of continued employment is incredible." This position is entirely reasonable. But in view of that position, the fact that Perez was not discharged for "spitting" when observed by Duck- worth suggests that consideration must be given to the fact that the term "to spit" may be used with imprecision and can, for example, merely mean to eject a minute piece of tobacco from the mouth. If that is what Perez did, the reprimand rather than discharge on the first occasion becomes under- standable, and the discharge on the second occasion becomes suspect Since the facts were most accessible to Respondent, it had a duty to go forward with evidence showing the severity of the misconduct committed by Perez. No such evidence was adduced, and I cannot assume that his misconduct involved expectoration in the full sense of that word Illumination regarding Respondent's motivation in dis- charging Perez on the second occasion may be obtained from a comparison of the dates of his misconduct If the first occasion occurred shortly before the second, I would have no difficulty in finding that the discharge was for cause But if it occurred before Perez and others began their union activities, it is difficult to escape the conclusion that the misconduct became intolerable to Respondent only after the advent of such activities and the scheduling of a Board election. Zemel's testimony involved nothing more than a guess and sheds little light on that date. Zahlout testified that it occurred a week or two before the discharge. Perez testified that it occurred 6 or 7 months before the discharge. I credit Perez. In this connection, I note that Zemel contradicted Zahlout's testimony that he told Zemel the reason for his order to discharge, that Saul contradicted Zahlout's testimony relating to Choltko's dis- charge (see discussion, supra), and that Zahlout gave conflict- ing testimony relating to Dambrogio's discharge (see discus- sion, infra) Accordingly, I regard Zahlout as a less reliable witness than Perez, who testified in a straightforward and convincing manner. For these reasons, I reject Respondent's explanation for the discharge of Perez, an employee for almost 6 years e. Attilko J. Dambrogio Dambrogio was hired by Respondent as a 21 dealer on February 28, 1965. He testified on direct examination that when he returned from a rest period with three other dealers at about 7 p.m. on June 9, Supervisor Zahlout discharged him, stating. "I am firing you right now. You have been passing out too goddamn many union cards in here. I am going to terminate you right now. Go and turn in your stuff " On cross-examination, he added that Zahlout also told him that he was not paying attention to the tables. Dambrogio further testified that prior thereto, he had never been reprimanded regarding his work by Respondent, and that Zahlout had never theretofore told him to pay more attention to his work. 16 Choltko apparently felt that it was the profanity which might lead to his discharge 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Moose, a witness for the General Counsel, testified that "the Union" had become a constant topic of conversation with Dambrogio, that he would gather employees around him during and on the way back from rest periods to discuss the Union, that Dambrogio had become lax in returning to his work station, that it was very important for dealers to return on time in order to permit other dealers to take their rest periods promptly, and that Zahlout had reprimanded Dambrogio about failing to return from rest periods on timer 7 Moose further testified that on the day of the discharge, he was returning from a rest period with Dambrogio and several dealers to relieve other employees, that Dambrogio was talking about "the Union" and the group were walking at a very slow pace, that Zahlout was standing at the pitl8 and angrily said to Dambrogio, "You're meddling around, you're taking part in too much Union activities around here, and it's affecting your work And so, therefore, I'm going to fire you."' 9 Zahlout testified as follows Dealers must return promptly from rest periods to avoid disrupting the entire work schedule and causing considerable confusion and complaints from other dealers Dambrogio was "always" late in returning from his rest periods and Zahlout had reprimanded him several times therefor Dambrogio was also a chronic complainer. On the day of his discharge, Dambrogio returned from a rest period with three other dealers They were due to resume work at 7 p in , but at a minute or two after that hour, they remained standing nearby Zahlout waved for them to come to the pit to relieve other dealers At one point, he testified- "And I'm waving to them, and they're starting to walk slow and they're still talking " Elsewhere he testified that "Dambrogio was doing the talking." Zahlout was angry and when the group reached him, he said to Dambrogio, "Attilho, you're through .. I'm tired of this . Your work has suffered, and I don't want no more part of you here " Although the other three dealers with Dambrogio were also late, Zahlout did not discharge them. Other dealers have been late, but he could not estimate how often, testifying as follows A They might go through one day without being late, and the next day they might be late two or three times Q. There might be a whole day when no one is late but- A. It's possible Q How often would you say that would happen? A I can't answer that question, sir Q. (By Mr Davis) Well- A. Because it's too matter-of-fact for me to be able to pinpoint anything like that. Q. All right. Let's get back to the point again. How often in one week would you estimate that people are late by one or two minutes? A. I wouldn't estimate it. Q. How often9 You wouldn't estimate it Can you i7 Moose did not specify how many times Dambrogio had been reprimanded 18 Moose did not know whether or not Zahlout had waved to the dealers to indicate that they should hasten their return to their work stations 19 On cross-examination , Moose testified that Zahlout had stated to Dambrogio the remarks set forth in Moose's preheating statement, i e., "Now, you're handing out those union cards and its affecting your work " estimate it? A. No, I can't estimate it. Q Well, would it be once a week that one person might be late one or two minutes, or could it be ten people? A. It could be ten people. Q Could it be fifty? A It could be one Q. Could it be fifty people A It could be fifty. Zahlout further testified that he selected Dambrogio for discharge because of his "repeated" lateness, because of "a series of being late " On further interrogation, he testified as follows Q. That was a series of being one or two minutes late. You didn't say you discharged him for anything else, did you? A I said-yes, I did. I said it was a series of continual gripes. Q. Did you tell him that you discharge him for continually griping? A I didn't give him any reason at all I don't have to give no reason for discharging. Finally, Zahlout testified that he knew of no one else who had been discharged by Respondent for lateness in returning from a rest period Respondent contends that the record establishes Dambrogio's lateness and prior reprimands therefor, that he was late once too often, and that he was discharged for that reason Like the General Counsel, Local 7, one of the Charging Parties, contends that the discharge was motivated by Dambrogio's union activity In this connection, Local 7 points out that Zahlout made no reference to Dambrogio' s lateness at the time of the discharge I find that Dambrogio had frequently been late in returning from rest periods because of conversation with other employ- ees regarding unionization, and that he had been reprimanded several times therefor. Based on the credited testimony of Moose, I further find that in effect, Zahlout's discharge statement indicated that Dambrogio's union activities had resulted in his lateness If such lateness was the true reason for the discharge, it would, of course, have been lawful I am, however, unable to conclude that it was the true reason Although there appears to have been considerable lateness among the dealers, there is no evidence that any other employee had ever been discharged by Respondent because of lateness, or indeed that anything was said about being late to the three dealers who returned from their rest period with Dambrogio In addition, Zahlout gave conflicting testimony as to whether Dambrogio was the only one of the group who was doing the talking after he waved to them to return more promptly, and as to whether Dambrogio's chronic complaints played a part in causing the discharge I am, therefore, contrained to find that Respondent had been willing to overlook lateness among its dealers; but that when such lateness was caused by union activity, it was no longer tolerable. 2. Concluding findings Upon a consideration of the entire record, including the demeanor of the witnesses, I conclude that Respondent has failed to rebut the puma facie case made by the General Counsel I accordingly find that the Respondent discharged Strohlem, Whiting, Choltko, Perez, and Dambrogio because of M & R INVESTMENT CO., INC. their union activities , and that such discharges constituted unfair labor practices violative of Section 8(a)(3) and (1) of the Act It. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, and that it take certain affirmative action, specified below, which I find necessary to remedy and to remove the effects of the unfair labor practices. I shall recommend that Respondent offer to Eugene Strohlem, John Whiting, William F. Choltko, Armando Perez, and Attillio J. Dambrogio immediate and full reinstatement to the positions which they held at the time of the discrimination against them or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. I shall further recommend that Respondent make each of them whole for any loss of earnings suffered because of its discrimination against them by paying to each a sum of money equal to that which he would have been paid by Respondent from the date of the discrimination against him to the date on which Respondent offers reinstatement as aforesaid, less their net earnings, if any, during the said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716. CONCLUSIONS OF LAW 1 By Duckworth's interrogation of Employee Whiting and Wyman's interrogation of Employee Hix, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging Employees Strohlem, Whiting, Choltko, Perez, and Dambrogio on the dates found because of their union activity, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 4 Respondent did not violate the Act by any conduct not found herein to be an unfair labor practice RECOMMENDED ORDER Respondent, its officers, agents, successors, and assigns, shall A. Cease and desist fiom 1. Unlawfully interrogating employees concerning their union desires, sympathies and activities. 2 Discharging employees or otherwise discriminating in regard to their hire, tenure of employment, or any term or condition of employment, because of their protected union activities 3 In any other manner interfering with, restraining, or coercing employees in the exercise of Section 7 rights. B Take the following affirmative action I Make Employees Strohlem, Whiting, Choltko, Perez, and Dambrogio whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section herein entitled "The Remedy " 2. Preserve and make available to the Board or its agents on request, for examination and copying, all payroll records, social security payment records, timecards, personnel records 731 and reports, and all other records necessary to analyze the amount of backpay due under the terms of the Recommended Order. 3 Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces 4 Post at its place of business in Las Vegas, Nevada, copies of the attached notice marked "Appendix."20 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material 5 Notify the Regional Director for Region 31, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith .21 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 20 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further even that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT unlawfully discriminate against Eugene Strohlem, John Whiting, William F. Choltko, Armando Perez, Attrllio J. Dambrogio, or any other employee, because of their union activity WE WILL offer to the above-named employees imme- diate and full reinstatement to their old jobs, and pay them for all back earnings lost as a result of the discrimination against them. WE WILL NOT unlawfully interrogate our employees concerning their union desires, sympathies and activities, or in any other manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the Act. M & R INVESTMENT CO., INC. d/b/a DUNES HOTEL (Employer) 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By amended, after discharge from the Armed Forces. This Notice must remain posted for 60 consecutive days (Representative) (Title) from the date of posting, and must not be altered, defaced, or covered by any other material. Note We will notify the above-named employees, if If employees have any question concerning this Notice or presently serving in the Armed Forces of the United States, of compliance with its provisions, they may communicate di- their right to full reinstatement upon application in accordance rectly with the Board's Regional Office, 215 West Seventh St , with the Universal Military Training and Service Act, as Los Angeles, Calif , 90014, Telephone 688-5850