Silver Nugget

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.V. Casino Corporation d/b/a Silver Nugget and American Federation of Casino and Gaming Employees. Cases 31-CA-819-1, 31-CA-819-2, and 31-RC-596 January 8, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA On September 23, 1968, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, N.L.V. Casino Corporation d/b/a Silver Nugget, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election held on September 8 and 9, 1967, among the Respondent's employees, be, and it hereby is, set aside, and that 'Under the established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all relevant evidence convinces us that they are incorrect, we find no basis for disturbing the credibility findings in this case Standard Dry Wall Products, Inc, 91 NLRB 544, enfd , 188 F,2d 362 (C.A 3) Case 31-RC-596 be remanded to the Regional Director for Region 31 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of second election2 omitted from publication.] 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 31 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236 TRIAL EXAMINER'S DECISION MAURiCE ALEXANDRE, Trial Examiner : On June 8, 1967,' United Casino Employees (hereafter called United Casino)' filed a petition for certification as bargaining representative of Respondent's casino employees.3 At the hearing on the petition , three other unions were permitted to intervene . International Association of Machinists and Aerospace Workers, AFL-CIO (hereafter called Machinists), Las Vegas Casino Employees, Local 7' (hereafter called Local 7), and American Federation of Casino and Gaming Employees (hereafter called AFCGE). Also at that hearing, the Hearing Officer granted the motion of Machinists to amend the petition to show that union as a joint petitioner with United Casino. Following the hearing on the petition the Regional, Director, on August 2, issued. a Decision and Direction of Election in which, inter alia, he found that Respondent was engaged in commerce within the meaning of the Act, affirmed the ruling permitting the Machinists to appear as joint petitioner, found either explicitly or implicitly that United Casino, Machinists , Local 7 and AFCGE were each labor organizations within the meaning of Section 2(5) of the Act, and ordered an election in a unit consisting of Respondent's casino employees . On August 11, Respondent filed with the Board a Request for Review of the Decision and Direction of Election, and on August 14 it filed a supplement to that request . In those documents, Respondent attacked the assertion of jurisdiction over it as well as the ruling which gave the Machinists status as joint petitioner . On September 7,-the 116MiBenied the requests for review on the ground that "they raise no substantial issues warranting review." On September 8 and 9, an election was held at which the em y6y6es voted as follows: For joint petitioners 14 For AFCGE 4 For Local 7 0 Against all unions 49 On September 13, AFCGE filed its objections to conduct affecting the results of the election, setting forth five separate objections. All dates hereafter mentioned refer to 1967 unless otherwise stated. 'Affiliated with Seafarers International Union of North America, AFL-CIO (hereafter called Seafarers). 'Case No 31-RC-596. The above caption reflects a change in parties in that case made during the course of the instant hearing. See fn 29, infra. 'Affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO 174 NLRB No. 8 N.L.V. CASINO CORP. On November 30, the Regional Director issued a consolidated complaint5 alleging that Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening reprisals if the AFCGE won the election, and by promising benefits to its employees if they refrained from becoming or remaining members of that union or from supporting it. On December 5, the Regional Director issued a Supplemental Decision and Order Directing Hearing on Objections, in which he overruled objections 1, 2, 3 and 56 but ordered a hearing on objection 4, which read as follows: 4. After the notice of the election had been posted, the Employer unilaterally placed into -effect an insurance plan for the benefit of the employees eligible to vote at the election. On December 8, Respondent filed an answer in which it admitted the jurisdictional facts alleged in the consolidated complaint, failed to plead to the jurisdictional conclusions alleged therein, failed to plead to the allegation that the AFCGE is a labor organization within the meaning of Section 2(5) of the Act, failed to plead to the allegations regarding the supervisory status of four named individuals,' and denied the commission of unfair labor practices. On December 13, the Regional Director amended his consolidated complaint,' and on the same day he issued an order consolidating the complaint proceeding with the proceeding on objection 4 in Case 31-RC-596 "for the purpose of hearing, ruling, and decision by a Trial Examiner."' On December 20, Respondent filed an answer to the amendment to the consolidated complaint in which it denied the allegations therein. The consolidated proceedings were heard on February 27 and 28 and on May 21 and 22, 1968. At the close of the General Counsel's case, Respondent moved to dismiss the complaint upon several grounds. That motion is disposed of in accordance with the findings and conclusions made below.10 Upon the entire record, my observation of the witnesses, and consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS L JURISDICTION At the hearing, Respondent was permitted to amend its answer so as to deny the jurisdictional facts1:vand conclusions alleged in the consolidated cgynplqint. 'im v,-- 'Based upon two charges filed on September 8 by AFCGE. 'Those objections alleged that Respondent had placed names, of nonemployees on the list of eligible voters, had instructed certain employees how to vote, had made a misleading speech to employees during the 24 hours immediately preceding the election , and had distributed misleading campaign literature. 'Meyer Rovinsky, Bob Baker, Douglas H Bent, and Eugene DiCillo. 'So as to , allege a repetition of an unlawful threat by Rovinsky on an additional date. 'The consolidation order further provided that following such decision by the Trial Examiner, Case 31-RC-596 should "be transferred to and continued before the Board in Washington , D.C.... "In its brief, Respondent renews its motion , made at the hearing, to sever the complaint and representation proceedings on the ground that it is improper to combine a hearing on objection 4, in which the General Counsel's role is that of a neutral, with an unfair labor practice proceeding, in which his role is that of an advocate Since the complaint and objection 4 contain common allegations , I adhere to my denial of the motion N L.R.B. v. Gerry, Inc., 355 F.2d 727 (C.A. 9). 43 However, Respondent stated that the jurisdictional facts had not changed, that the record relating thereto was complete," and that no additional evidence thereon was necessary . In its brief, Respondent contends that jurisdiction cannot and should not be asserted over its operations . This contention is rejected . Although the existence of statutory jurisdiction may be raised at any time,' 3 the Board ' s determination of that issue in the representation case is binding in the instant ' proceeding since Respondent has failed to, present newly discovered or previously unavailable facts which require a different conclusion. Green County Farm Bureau Cooperative Assn., Inc. v. N.L.R.B., 317 F.2d 335 (C.A.D.C.). II. THE LABOR ORGANIZATION INVOLVED In his Decision and Direction of Election, the Regional Director implicitly determined that AFCGE is a labor organization within the meaning of Section 2(5) of the Act. Respondent's request for review of that decision, which was denied, did not attack that determination. In its original answer to the complaint herein, Respondent failed to plead to, and thereby admitted, the allegation of paragraph 4 of the complaint that the AFCGE is a labor organization within the meaning of Section 2(5) of the Act. At the hearing, Respondent sought to change its plea so as to deny that allegation. It then conceded that AFCGE is a labor organization within the meaning of the Act, and represented that it did not intend to contest the finding on that issue in the representation proceeding and that it was unnecessary for the General Counsel to adduce any evidence relating thereto in the instant proceeding. I find that in the circumstances, the determination in the representation proceeding - that AFCGE is a labor organization within the meaning of the Act - is binding in the instant proceeding. III. THE UNFAIR LABOR PRACTICES A. The Gonzalez Incident 1. The evidence Sometime in July, i.e., the month following the filing of the petition for certification, Betty Gonzalez, a dealer at Respondent's casino, was discharged by her supervisor and sought help from Hanley, business manager of AFCGE. A meeting was held at Respondent's premises during the first week of August, at which time those present included Gonzalez, Hanley, Hill (AFCGE president), Rovinsky (Respondent's vice president), and Bent (Respondent's general manager). Toward the end of the meeting, after discussion of Gonzalez, it was decided to put her back to work but on a shift other than that of her supervisor. Gonzalez was so informed, left momentarily to obtain her husband's consent, returned and agreed. The record contains conflicting evidence as to what was then said at the meeting. Gonzalez testified that Rovinsky stated in her presence "that if the union did happen to get into the - was voted in at the Silver Nugget that he would pull out the 21 tables, the crap table, and just make it into a slot place, put slots down the middle of the pit." "The transcript of testimony and the exhibits received in Case 31-RC-596 were made a part of the record in the instant proceeding. "See N.L.R.B. v Peyton Fritton Stores, Inc., 336 F.2d 769 (C.A. 10). 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She further testified that Rovinsky did not name any union, and that, he did not, seem to be angry at the time. However, in her prehearing affidavit, she had stated that he did seem angry. Hanley testified that Rovmsky became provoked during the course of the meeting, that Rovinsky, in the presence of Gonzalez, made a statement substantially similar to that testified to by the latter; that after the meeting,' Hanley told Rovinsky that if he continued to make such threats, the AFCGE would picket Respondent and -file unfair lauor practice charges, and that Hanley later made a similar statement to Respondent's president and chief stockholder, Major Riddle. Hill testified that upon her return to the meeting, Gonzalez asked Rovinsky whether her shift could later be changed, and that Rovinsky replied that "he wouldn't worry about the shift too much, because in the event they lost the election out there they would probably close the pit because they,wouldn't be able to afford it." Rovinsky denied the threat attributed to him by Gonzalez and Hanley. He testified that neither he nor Hanley became heated or had any argument at the meeting, that the, Board election was not discussed, that there was no discussion about Respondent being "in the red" or, about a wage increase resulting from an election victory by "the Union", and that the only matter discussed was Gonzalez. Finally, he testified that he did not recall Hanley's telling him that the AFCGE would picket Respondent if it continued to threaten to, close down to keep "the Union" out. Although Bent testified that the threat attributed to Rovinsky was not made, he further testified, in contradiction of Rovinsky, that there had been an argument during the meeting. In addition, he gave equivocal, confusing and self-contradictory testimony as to whether Rovinsky had said anything at the meeting, and as to whether Rovinsky had stated during the meeting that Respondent was "in 'the red" or that a wage increase would result if "a Union got in." Following the meeting, Gonzalez returned to duty and was still employed at the time of the hearing. 2. Concluding findings I reject the testimony of Rovinsky and Bent and find that the former did say something, in the presence of Gonzalez, about replacing the pit with slot machines. If Rovinsky" made the statement attributed to him by Gonzalez and Hanley, Respondent is guilty of an unlawful threat; i.e., that it would voluntarily closedown a portion of its business if its employees should unionize. M. G. Inman, Sr., etc., dba Modern Chevrolet Co., 169 NLRB No. 117." If, on the other hand, Hill correctly described Rovinsky's remarks, no violation resulted since the remarks merely conveyed the view that unionization might force a financial shutdown of the pit. They thus constituted nothing more than a prediction of possible economic consequences and did not imply that Respondent would use its economic power to make the prediction come true. Wagner Industrial Products Company, Inc., 175 NLRB No. 157, and cases cited therein. The question thus presented is whether or not the General Counsel has sustained his burden of establishing that Rovinsky made the threat attributed to him by Gonzalez and Hanley. In view of the failure of the General Counsel-'s witness to agree on what was said at the meeting, I find that he has not sustained his burden. "Respondent stipulated that Rovinsky is a supervisor within the meaning of the Act. B. The Baker and Bent Incidents 1. The evidence Former employee Kimberlin testified that in late July or early August, during a conversation with Pit Boss Baker, the latter stated that he understood that "the old man would close the place up if the Union got in there." When asked whom Baker referred to as the "old man," Kimberlin testified, "I suppose Major Riddle because he is the old man that had authority to close it up." Kimberlin further testified that in middle or late August, during a conversation with General Manager Bent," the latter stated that "the old man said if the Union won the election, if he lost the election, he was going to take the pit out or close the joint, take the pit out." According to Kimberlin, Bent did not identify whom he meant by the "old man." Baker testified that although he had discussed the election with Kimberlin- several times, and although Riddle's name may have come up, he never made the statement attributed to him or any similar thereto, did not recall Riddle's name being mentioned during the conversation described in Kimberlin's testimony, normally calls Riddle "the Major", and could not remember using the term "old man" when referring to him. Bent gave testimony substantially similar to Baker's. 2. Concluding findings The General Counsel and Respondent each assert that their witnesses should be credited. Although Baker and Bent could not recall the details of their conversations with Kimberlin, I find that the latter was a less reliable and credible witness than they were Whereas Kimberlin testified that Baker attributed the statement of intention to close the casino to the "old man", his prehearing affidavit, which was made a part of the record, stated that Baker attributed the intention to "Major Riddle". Whereas Kimberlin testified that Bent ascribed to the "old man" an intention either to take out the pit or close the casino, his prehearing affidavit referred only to an intention to close the casino. In addition, as noted more fully below, Kimberlin was an unreliable and incredible witness as to other matters. For these reasons, I reject Kimberlin's testimony and credit that given by Baker and Bent. Accordingly, I find that the General Counsel has not sustained his burden of establishing that unlawful threats were made by either of the,,jwo supervisors.' 6 ' ^ iggy "The record shows that Gonzalez had been offered and had accepted a job on the graveyard shift at the time of Rovinsky's alleged remarks Accordingly, I find that she was an employee of Respondent at that time But even if she were regarded only as an applicant for employment at the time, a threat made in her presence would constitute an unfair labor practice Tucson Ramada Caterers , Inc., 154 NLRB 571, 575; Flora Construction Co , 132 NLRB 776, 788. "Respondent stipulated that Baker and Bent were supervisors within the meaning of the Act. "There is a dispute as to whether Bent, in a conversation with Hanley, made a threat to convert the pit into a "slot joint" if "the union" won the election. However, there is no evidence that any rank and file employee was present at the time or that any employee learned of the alleged threat. Moreover, the General Counsel's brief does not assert that the alleged threat constituted an unfair labor practice Accordingly, it is unnecessary to make any determination regarding the matter. N.L.V. CASINO CORP. 45 C. The Truman Scott Incident 1. The evidence On or about September 1, Hanley and Hill of the AFCGE entered Respondent's casino where they encountered Truman Scott, a former agent for the Seafarers. Scott informed them that he was looking for a job at the casino and inquired whether they had any objections. Hanley and Hill replied that they had none and would accompany him. The three then approached Rovinsky and Casino Manager Bennett, who admittedly were standing directly in the center of the pit surrounded by employees working in the immediate vicinity, and Scott asked Rovinsky for a job. Hill testified that the conversation was primarily between Bennett, Hanley and Scott, that Bennett and Rovinsky both rejected the request for employment, and that Rovinsky told Scott "not to worry about a job too much because if they lost the election they were going to make a slot joint out of it." Hanley testified that Bennett refused to hire Scott on the ground that if he did, the Seafarers and AFCGE would object; that Hanley replied that his union had no objection; that Rovinsky then stated that Scott "had been too closely associated with the unions"; and that Bennett agreed, explaining that Scott had been associated with the Seafarers and that Respondent had been having trouble with that and other unions. Hanley further testified that Bennett also stated the following: Q. Anything else mentioned in the conversation by the management representatives? A. Only by Mr. Bennett, where he said he didn't think they would need any dealers. If the union came in there, the pit would be taken out and slot department made of it. In effect, there would be no need for dealers if the union came in. He never described the action that they would make a slot joint out of it. Employee Wittway testified that he and other employees were on duty close to the group, that he did not recall Bennett's presence, and that he heard a portion of the conversation in which Rovinsky said that "if he lost the election, he would take the slot - take the pit out and borrow $6,000 from the Dunes Hotel and make a slot joint out of it." Rovinsky denied making the threats attributed to him, and testified that he did not hear Bennett say that: Scott would not be hired because of his union affiliations. Rovinsky also testified that it was "silly" to suggest that he could borrow $6,000 from the Dunes Hotel, with which he had no relationship whatsoever. On cross-examination, he testified that Riddle, the president and major stockholder of Respondent, is president and a minority stockholder of the Dunes Hotel. 2. Concluding findings As already indicated, it is an unfair labor practice for a supervisor, in the presence of one or more employees, to threaten to close down a portion of the business if the employees should unionize. I find that such a threat was made, but the problem presented is the identity of the maker. If it was Rovinsky, Respondent violated Section 8(a)(1). If, however, Bennett made the threat, no violation may be predicated thereon in view of the stipulation made by the parties that no finding of unfair labor practices should be predicated upon conduct by Bennett." I find that the General Counsel has not sustained his burden of establishing that it was Rovinsky who made the threat. For although Hill and Wittway agreed that it was Rovinsky, Wittway did not even recall the presence of Bennett who, according to Hill, did most of the talking to Hanley and Scott. In addition, Hanley attributed the threat to Bennett. In view of these contradictions, I find that the record does not establish that it was Rovinsky rather than Bennett who made the unlawful threat. D. The DiCillo Incident 1. The evidence Employee Wittway testified that on or about September 1, he asked Employee DiCillo why he was measuring the dealers' pit in the casino, and that DiCillo replied, "To see how many slot machines we can get down through the center of the pit, if the Union wins the election." On direct examination, Wittway testified that Employee Kimberlin was present when DiCillo made the statement. On cross-examination, Wittway testified that he was not sure whether it was Kimberlin or Employee Alexander who was present. Alexander testified that "about a week after the election," he saw DiCillo measuring the pit, that Kimberlin and other employees were present at the time, that one of them asked DiCillo what he was doing, that the latter replied "that he was measuring in case the union won they were going to take out the pit and put slot machines in", and that Alexander then had a conversation about the remark with Employee Kimberlin In a prehearing affidavit executed September 27, Kimberlin had stated that on August 27 or September 2, he noticed DiCillo doing some measuring in one of the casino pits, that Kimberlin asked employee Todd, a boxman, the purpose of _the measuring, that Todd replied that he had been told that its purpose was to ascertain how many slot machines could be installed if the pit was taken out, but that Todd did not say anything to indicate that the possible change was related to the forthcoming election. During his testimony, Kimberlin stated, and later repeated, that Todd told him that he had been told that the pit would be taken out if "the union" won the election. When the inconsistency was brought to his attention, Kimberlin admitted that his testimony was erroneous.' ° In his prehearing affidavit, Kimberlin had also stated that he did not remember Wittway and DiCillo talking to each other about the latter's measuring activities and, indeed, was uncertain whether Wittway was present at the time of the statement attributed to DiCillo. In his testimony, Kimberlin stated that Wittway was present, that he overheard only part of a conversation between Wittway and DiCillo, that he heard the latter "say something about putting in the slot machines and taking out the pit if the union won the election," and that Kimberlin and Alexander commented on the remark. Although admitting that his memory was better when he executed the affidavit on September 27, Kimberlin testified that his memory respecting Wittway had been "Respondent stated on the last day of the hearing that Bennett, its last witness, was ill and would not be available to testify until 2 days later. In order to conclude the hearing without further delay, the General Counsel and Charging Party entered into the above stipulation. '.Todd testified that he did not relate the purpose of the measuring to the election. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refreshed by questions put to him by the General Counsel during preparation for the hearing shortly before it opened. DiCillo admitted that he had measured the pit on or about September 1, but denied having made the statement attributed to him. He testified that since the casino had opened in 1965, he had measured the pit and other public areas at least 50 times in connection with Respondent's plans for relocating various facilities, some of which plans had been carried out and some of which were in contemplation." 2. Concluding findings The General Counsel contends that DiCillo's act of measuring the pit shortly before the election itself constituted an implied threat of reprisal since, when considered in the context of Respondent's other unfair labor practices, it was designed to impress upon employees that Respondent might close the pit if it lost the election; but that even if DiCillo was measuring for legitimate business reasons, his statement to Wittway constituted an express threat of reprisal; and that since DiCillo was a supervisor within the meaning of Section 2(11) of the-Act, his threat constituted a violation of Section 8(a)(l). Respondent contends that the measuring was for legitimate business reasons, that DiCillo was not a supervisor, and that he did not make any threats I find that the General Counsel has not sustained his burden of establishing that DiCillo made the threat in question. Kimberlin's testimony relating to statements made to him by Todd and DiCillo was inconsistent with his prehearing affidavit. As to DiCillo's statement, Kimberlin gave an unsatisfactory explanation for the inconsistency; and as to Todd's statement, he admitted that his testimony was incorrect. In addition, Kimberlin's testimony seemed somewhat evasive at times, and his demeanor while testifying was not such as to instill a feeling of confidence.'" Wittway gave contradictory testimony as to whether Kimberlin was present at the time in question. Alexander placed the event as having occurred a week after the election; i.e., at a time when such a threat would have been meaningless Accordingly, I am unable to rely upon the testimony of Kimberlin, Wittway or Alexander. "General Manager Bent and Comptroller Thom gave corroborating testimony "In attempting to impeach Kimberlin's testimony that his memory had recently been refreshed and that he now recalled DiCillo's statement to Wittway, Respondent offered in evidence a portion of a prehearing affidavit, executed by Wittway on September 25 and identified as Respondent's Exhibit 6, in which he stated that Kimberlin was present and heard DiCillo's statement . Respondent pointed out that when the same field investigator questioned and obtained an affidavit from Kimberlin 2 days later, the latter's recollection was not refreshed regarding Wittway's presence Respondent contended at the hearing, and renews the contention in its brief, that if the questions of the field investigator, who was armed with Wittway's affidavit, did not refresh Kimberlin's recollection at a time when the events were fresh in his mind, it is unlikely that his memory would have been refreshed shortly prior to the hearing. Although the affidavit would establish that the field investigator had Wittway' s then version of the events at the time Kimberlin gave a contrary version, that fact is insufficient by itself to justify an inference that Kimberlin's recollection should have been refreshed at the time he was interviewed by the field examiner The affidavit thus has insufficient probative value to warrant its receipt in evidence. In any event, the affidavit is unnecessary in view of my rejection of Kimberlin's testimony. Accordingly, Respondent's Exhibit 6 is hereby rejected and it is ordered that the said exhibit be placed in the rejected exhibit file In view of the above finding, it is unnecessary to determine whether or not DiCillo was a supervisor. It is also unnecessary to determine whether or not DiCillo's measuring activity was motivated by an unlawful purpose. For even if it was so motivated, there is nothing to show that the employees were aware of such a purpose. It is uncontradicted that DiCillo had frequently measured. the pit and other public areas in the past in connection with possible plans for relocating various facilities. So far as the record shows, there was nothing unusual about the taking of measurements by DiCillo on or about September I and no reason why the employees should regard his conduct as out of the ordinary and as carrying with it an implied threat. Accordingly, I find that the General Counsel has not sustained his burden of establishing that DiCillo's conduct constituted an unlawful implied threat. E. The September 1 Letter Relating to Employee Insurance 1. The evidence Prior to the filing of the petition for certification on June 8, Respondent's employees were covered by a group life, accident and medical insurance policy which Respondent had purchased from New England Mutual Life Insurance Company (hereafter called New England), and which had become effective July 1, 19.66. During the following May, Respondent' s insurance broker, Oswald, informed Respondent's Comptroller, Thom, that claims under the policy had been excessive and that he anticipated an increase in premium. For that reason, he requested and received permission from Thom to solicit bids from other insurance carriers. At the same time, Thom requested Crosato, an agent for Prudential Life Insurance Company (hereafter called Prudential), to obtain a bid from his company. According to Thom, his instructions were that Respondent wanted a bid "similar" to the New England plan then in effect. Thom testified that beginning in June, he began to receive bids from carriers which had been solicited.21 Sometime during August, Crosato's group manager, Ortiz, telephoned Thom to inquire about Respondent's decision, and Thom replied he wished to wait until the latter part of August to permit other bids to arrive. In all, Thom received bids from Prudential and two other carriers. In the latter part of August, Ortiz again telephoned to ask which carrier had been selected and Thom told him that it was Prudential. According to Thoiii;tiidential received the award because its bid was the lowest Thom further testified that Respondent changed its insurance carrier for economic reasons and that the change was in no way related to the forthcoming Board election. The Prudential plan became effective on September 1 and on or about that date, Respondent sent to its employees a letter, dated September 1 and signed by General Manager Bent, informing them of the new Prudential insurance plan effective September 1, and listing what the letter called a "concensus of coverages" of the plan. Among other benefits listed in the letter was the following "lst 300 00 at 100% for accident benefit - this "Crosato testified that Prudential's bid was submitted at the end of May and that it contained an insurance plan which , for the premium range which Respondent was willing to pay, was as close as possible to that provided in New England 's policy. N.L.V. CASINO CORP. is an additional benefit." Bent testified that although he signed the letter, he did not compose it. Thom testified that it was composed by Prudential, and that he had nothing to do with inserting the reference to the "additional benefit" in the letter. Crosato testified that preparation of such a letter by Prudential was normal procedure. On direct examination, Crosato testified that it was Prudential which selected the September 1 effective date, that that date was selected rather than a later date because Respondent's New England contract was on a fiscal year basis, and delay beyond September 1 would have resulted in renewal of that contract, thereby compelling Respondent to wait another year before changing carriers. On cross-examination, he testified that he assumed that after the July 1, 1967 anniversary date of the New England contract, Respondent's coverage under that contract continued on a month-to-month basis. Thom testified that although the anniversary date of New England contract was July 1, 1967, it was a continuing contract and had no termination date; that after its bid was accepted, Prudential took over the matter of implementing the insurance plan; and that it told him that it wanted the plan to become effective September 1. According to Thom, Ortiz went to Las Vegas twice to talk to him sometime between the summer of 1967 and September 1, and telephoned him in late August, at which time Thom stated that Prudential's bid had been accepted. At one point, Thom testified that Ortiz told him about the September 1 date during that conversation. At another point, he testified that shortly after the conversation, Crosato informed him that Prudential wanted to make the contract effective September 1, and that Thom had never discussed any effective date with anyone. By letter dated September 2, Respondent formally terminated the New England contract as of August 31, thereby confirming its prior oral termination which, according to Thom, was given somewhere around August 20. 2. Concluding findings The General Counsel argues that the employee benefits in the Prudential plan were superior to those provided in the New England plan, that it was Respondent rather than Prudential which selected September 1 as the effective date of the new plan and the date for sending out the letter advising the employees that such superior benefits had been purchased for them, and that Respondent selected that date as part of its campaign to defeat the AFCGE at the Board election scheduled for Septermber 8. By conferring additional benefits upon its employees for that purpose, the General Counsel contends, Respondent violated Section 8(a)(1) of the Act. Respondent denies that the Prudential benefits were superior, that it selected the September 1 date, and that it entered into its contract with Prudential for unlawful reasons. Its position is that it decided to change its insurance carrier prior to the filing of the petition for certification and, solely for economic reasons, that Prudential selected the September 1 date and prepared the contents of the letter sent on that date to the employees, and that Respondent merely accepted Prudential's decisions. I find that it is unnecessary, if indeed possible on the record here presented, to determine whether or not the Prudential contract was in fact superior to New England's."" For whether or not the Prudential plan was superior, I conclude that Respondent's conduct in the 47 matter of insurance violated Section 8(a)(1). Although the record establishes that Prudential prepared the contents of the letter, I reject the testimony of Crosato and Thom that Prudential selected September 1 as the effective and the announcement date of the new plan. Crosato's explanation for the selection - that a later date would have resulted in renewal of the New England contract for another year - was contradicted by Thom's testimony that the New England contract had no automatic renewal clause and would have continued on a month-to-month basis until terminated by either party thereto Moreover, Crosato's answers to questions and his manner of testifying gave the distinct impression that he was attempting to give testimony which he thought was desired by Respondent." Thom gave self-contradictory testimony as to when and by whom he was informed of the selection of that date. In addition, it appeared from his testimony and demeanor that he was not making a full and candid disclosure of all the circumstances surrounding the selection of the September 1 date. I find that it was Respondent which selected the September 1 date. Since Respondent's denial that it made the selection falls, a legitimate reason for such selection is lacking. On the other hand, the record discloses circumstances which suggest that the selection was made for illegitimate reasons."" First, it was apparently customary to complete necessary paperwork and to enroll the bulk of the employees prior to the effective date of a Prudential plan.25 Yet Thom testified that the employees were given enrollment forms after the September 1 effective date, i.e. about the middle of September. No explanation appears for this apparent deviation from custom. Moreover, Thom and Crosato both agreed that no employee was covered by the Prudential contract until he executed an enrollment card. It would thus appear, so far as this record shows, that during the period from September 2, when Respondent formally terminated its New England contract, until about mid-September, when it distributed the enrollment cards, its employees were not covered by insurance. No explanation appears for this unusual circumstance. Since Respondent had no legitimate reason "=The evidence relating to that question consists of testimony by Crosato and Thom, the September 1 letter, and the New England and Prudential contracts. Crosato's testimony is of no value Some of it was self-contradictory; some answers were given in reply to leading questions; and he admitted that he had little familiarity with the benefits provided in the New England plan. Similarly, no help may be obtained from Thom's testimony. He testified that whereas the Prudential accident benefit merely reimbursed employees for all of the first $300 in medical expenses, the New England accident benefit provided for 80 percent coverage to a maximum of $ 10,000, with "no $300 limitation", and accordingly that even though the September 1 letter described the Prudential accident benefit as an "additional benefit", the New England accident benefit had in fact been superior. It would appear, however, that the Prudential accident benefit was superior since it seems to cover not only 100 percent of the first $300 of medical expenses, but also 80 percent of the excess over and above a deductible of $50. But even if Thom was correct , his testimony relates to only one of many items covered in the two plans A proper evaluation of the two plans would, in my opinion, require the benefit of expert testimony which analyzes all of their esoteric and complicated provisions "For example, on cross-examination by the General Counsel, Crosato testified that the $300 benefit referred to in the letter was in fact an additional benefit over and above the New England plan On redirect examination , in response to an inquiry from counsel for Respondent as to whether he wished to correct his testimony , Crosato testified "It is comparable, if that is what you want " "Crosato testified that it was not necessary to make the contract effective on the first of any month , and that it could begin at any time "Crosato testified that it was his impression that Prudential 's bid was accepted near the end of July or beginning of August , and that an August 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for selecting September 1 as the effective and announcement date for the Prudential plan, I agree with the General Counsel that the timing of Respondent's action was not coincidental. Based on these considerations, and taking into account Bent's admission that Respondent opposed all the unions on the ballot, I am persuaded and find that Respondent selected September 1 as the effective and notification date for the Prudential plan in order to influence its employees to vote against unionization at the election scheduled for September 8. Cf. United States Railway Equipment Co., 172 NLRB No. 51 I further find that after reading the letter, an employee familiar with the New England plan could reasonably believe that enrollment in the Prudential plan would result in an improvement of his benefits.26 It follows, and I find, that if the Prudential benefits were in fact superior to those in the New England contract, Respondent violated Section 8(a)(l) by engaging in "conduct immediately favorable to employees which [was] undertaken with the express purpose of impinging upon their freedom of choice I effective date was not possible because the paperwork and enrollments "had to be done." Although Crosato was mistaken as to the acceptance date, which occurred in late August, this does not affect his testimony regarding what had to be done before the effective date. "The following is a comparison of the New England benefits and those set forth in the September I letter: New England Sept. I Letter Life insurance coverage $2000 $5,000 Reimbursement for 100 of first $975 of first hospital charges $500, plus $1000, plus 80 80 of excess of excess Reimbursement for 80 100 of fees set surgical expenses forth in fee schedule (maximum of $900), plus 80 of excess Reimbursement for 80 100 of first medical expenses $300. Letter resulting from accident stated that "this is an additional benefit " Deductible $100 $50 Total cumulative major $10,000 $40,000 medical reimbursement Reimbursement for 80 of expenses $80 of expenses major medical in excess of in excess of $50 $100 deductible deductible for or against unionization and {was] reasonably calculated to have that affect." N.L.R.B. v. Exchange Parts Co., 375 .U.S. 405; N.L.R.B. v. Newman-Green, Inc., 401 F.2d I (C.A. 7). Although Respondent decided to solicit bids from Prudential and other insurance carriers before the petition was filed, it made its final decision after the filing date and shortly before the election, "while in a position to refrain from granting the increase" in insurance benefits until after the election. Crown Tar & Chemical Works v. N.L.R.B., 365 F.2d 588 (C.A. 10). Respondent "is charged with knowledge of the Act's concern about employee freedom in the exercise of [industrial] rights, and has offered no explanation of the timing of its announcement which would compel a finding that [its] action was not designed to affect the election. When the employer chose to announce the insurance program at the time and under the circumstances here, it took the risk that its conduct could justify the inference that the preparation of the insurance plan and its promulgation was timed to induce, or did induce, votes against the Union." N.L.R.B. v. Newman-Green, Inc., supra. If, on the other hand, the Prudential benefits were not superior to New England's the fact remains that the September 1 letter gave the impression that they were superior and was thus misleading - a circumstance which must have been apparent to Respondent, and one for which Respondent must accept responsibility That Prudential drafted the letter does not decrease that responsibility, since Respondent was not compelled to adopt the draft as its own. If, as Respondent contends, the Prudential and New England plans were comparable, it could have sent its employees a letter which reflected that fact. Since it chose to send a letter which, if its premise regarding comparability is adopted, was misleading, I find that it did so in order to induce the employees to vote against unionization at the forthcoming election. The Act prohibits a material misrepresentation of facts for an unlawful purpose. Haynes Stellite Co., 136 NLRB 95. For the foregoing reasons, I find that Respondent, shortly before the election and for an improper purpose, either increased the benefits of its employees or led them to believe that their benefits had been increased, and thereby interfered with, restrained or coerced its employees in violation of Section 8(a)(1).27 In its brief, Respondent contends if any unfair labor practices were committed, they were isolated occurrences which should not ; ggtreated as Section 8(a)(1) violations. This conteptii1 is without merit. In N.L R.B v. Exchange Parts 5Co., supra, in enforcing a cease and desist order based' on a finding that the employer had unlawfully sought to induce an antiunion vote by granting birthday holidays and overtime and vacation benefits to employees, the Supreme Court rejected the defense that the illegal conduct was isolated, stating that "an employer is not free to violate Section 8(a)(1) by conferring benefits simply because it refrains from other, more obvious violations." Those words have equal application to Respondent's unlawful conduct. "In support of its position that its conduct was lawful, Respondent cites the decisions in TMT Trailer Ferry, Inc, 152 NLRB 1495, T L Lay Packing Co., 152 NLRB 342; and Divco-Wayne Industries, 154 NLRB 974. Those cases are distinguishable on their facts. N.L.V. CASINO CORP. 49 IV. OBJECTIONS TO THE ELECTION As found above, Respondent' s September 1 letter could have led its employees, reasonably to believe that the Prudential plan provided benefits superior to those in the New England contract. Accordingly, I find that whether Respondent in fact increased the benefits of its employees or merely led them to believe that their benefits had been increased shortly prior to the election , its conduct had a tendency to interfere with a free choice in the election, and that Objection 4 should be sustained . Cf. N.L R.B. v. Tennessee Packers, Inc., 379 F.2d 172 (C.A. 6), Haynes Steltite Co , supra. 28 There is no merit to Respondent's contention that if any misconduct occurred , it was too isolated to have affected the results of the election. The September 1 letter was sent to all employees and can hardly be regarded as having had only isolated impact. V. THE REMEDIES I shall recommend that Respondent cease and desist from its unfair labor practices, and that it post the usual notices. I shall also recommend that the election of September 8 and 9 be set aside .21 CONCLUSIONS OF LAW 1. Respondent interfered with, restrained and coerced its employees, in violation of Section 8(a)(1) of the Act, by sending to its employees the September 1 letter, relating to employee insurance, which had the purpose and tendency to induce the employees to vote against unionization. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. "The cases relied on by Respondent are inapposite In Trent Tube Co , 147 NLRB 538, the Board held that the employer's preelection letters could clearly be evaluated by the employees as partisan electioneering. In Shure Brothers Inc, 147 NLRB 43 and in American Greeting Corp, 146 NLRB 1440, the Board held that the unions involved had ample opportunity to present their case to the employees and hence that the employers' alleged preelection misrepresentations produced no substantial impairment of employee freedom of choice In the instant case, Respondent's letter cannot be regarded as partisan electioneering which could have been neutralized by counterpropaganda. Moreover , there was no reason for the employees to suspect that the letter might be misleading and, therefore, no reason to attempt to ascertain the facts "During the recess in the hearing herein between February 28 and May 21, i e by letter dated April 10, 1968, the Regional Director denied the request of the joint petitioners in Case 31 -RC-596 for withdrawal of the petition for certification, and over Respondent's objection, he approved the joint petitioners' alternative request for permission to withdi Lafrom participation as a party to the representation proceeding , foillii d `upon investigation that AFCGE "has submitted a showing of interest sufficient to maintain the petition in its own right ", and ordered that "it is so maintained." By letter dated April 19, 1968, Local 7 advised the Regional Director of its assumption that its status as intervenor continued In its brief, Respondent renews its contention, made at the hearing, that contrary to the Charging Party's position , the Trial Examiner lacks authority to direct a new election because of the Charging Party's failure to make the ptoper 30 percent showing of interest required by the Board, and the alleged illegality of permitting the Charging Party to maintain the petition in its own right. It is unnecessary for me to make a recommendation respecting the holding of a new election For one thing, since I "merely acted as the Regional Director 's hearing officer with respect to the representation matter in the consolidated case" (Chelsea Clock Co, 170 NLRB No, 21), I am bound by the Regional Director's administrative determinations in his letter of April 10, 1968 In addition, the decision as to whether a new election should be held may be predicated upon administrative considerations which are wholly unrelated to the matters litigated in this proceeding , and as to which I have no information. 3. The record fails to establish that Respondent engaged in any alleged unfair labor practices not found above. RECOMMENDED ORDER 1. Respondent, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Informing or giving the impression to its employees that their insurance benefits have been increased in order to induce them to vote against unionization Provided, however, that nothing herein shall require Respondent to vary or revoke any insurance benefits which it has heretofore granted to its employees. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Post at its place of business in Las Vegas, Nevada, copies of the attached notice marked "Appendix."'" Copies of said notice, on forms provided by the Regional Director for Region 31, shall, after being duly signed by an authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith." II. It is recommended that the complaint be dismissed insofar as it alleges any unfair labor practices not found herein. III. It is recommended that the election held on September 8 and 9, 1967, in Case 31-RC-596 be set aside. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify 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 inform our employees, or give them the impression, that their insurance benefits have been increased in order to induce them to vote against unionization. However, we are not required to vary or revoke any insurance benefits which we have heretofore granted. WE WILL NOT in any like or related manner interfere 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with, restrain or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. N. L. V. CASINO CORPORATION D/B/A SILVER NUGGET (Employer) Dated By (Representative) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 215 West Seventh Street, Los Angeles , California, 90014, Telephone (Title) Number 688-5850. 11 'l