Ponderosa Hotel & Casino, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ponderosa Hotel & Casino, Inc. and Hotel-Motel- Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Cases 20-CA- 9803, 20-CA-9853, 20-CA-9869, 20-CA-9897, and 20-CA-9905 October 21, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 23, 1977, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and Charging Party filed a letter in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, brief, and answering letter and has decided to affirm the rulings, findings,I and conclusions of the Administra- tive Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Ponderosa Hotel & Casino, Inc., Reno, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Further, we find no merit in Respondent's exception to the adequacy of the Administrative Law Judge's reasons for his credibility findings. The Administrative Law Judge made independent credibility resolutions for each witness, and while we do not adopt his comment on the adequacy of counsel's questioning of witnesses, we find that, independent of those comments, his credibility resolutions meet the requirements of our recent decision in Maremont Corporation, 229 NLRB 746 (1977). We have further considered Respondent's contention that the Administrative Law Judge's credibility findings reflect a bias against Respondent. We have carefully considered the record and the attached Decision, and we have determined that there is no ment to Respondent's contention. 2 Sierra Development Company)' d/hb/a Club Cal-Neva, 231 NLRB 22 (1977). 233 NLRB No. 18 DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This case was heard at Reno, Nevada, on July 21 and 22, 1976. The amended consolidated complaint, issued September 22, 1975, and based upon seven charges filed in Case 20- CA-9803 on various dates between December 16, 1974, and June 2, 1975; upon two charges filed January 13 and June 17, 1975, in Case 20-CA-9853; upon charges filed January 16 and June 17, 1975, in Case 20-CA-9869; upon charges filed in Case 20-CA-9897 on January 23 and June 17, 1975; and upon charges filed January 27, May 7, and June 25, 1975, in Case 20-CA-9905, all by Hotel-Motel- Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, herein the Union, alleges that Respon- dent, Ponderosa Hotel & Casino, Inc., herein Ponderosa, has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Extensive briefs have been received from the parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent, Ponderosa Hotel & Casino, Inc., is a corporation engaged in the operation of a hotel, restaurant, bar, and gambling casino in Reno, Nevada. It enjoys gross revenues in excess of $500,000 per annum. Respondent has disputed an allegation that it purchases and receives goods and materials valued in excess of $ 10,000 per annum which originate outside the State of Nevada. There is no evidence to support said denial and, indeed, Respondent ultimately admitted this allegation without conceding that the Board has jurisdiction over the gaming industry in Nevada. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Hotel-Motel-Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction, the Issues The amended complaint alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. This is one of a number of cases tried in the Reno-Lake Tahoe area resulting from the breakdown of associationwide bargaining into an alleged refusal to bargain by Respondent and other casinos on an individual employer basis, plus allegations of interference, restraint, and coercion. Issuance of this Decision has been deferred pending a definitive declara- tion by the Board in related cases as to the quantum of 92 PONDEROSA HOTEL & CASINO, INC. evidence sufficient to support a purported good-faith doubt by an employer of majority representation by a labor organization. As of the date of this writing, I am not aware that this has been specifically or definitively spelled out by the Board. B. Sequence of Events The Reno Employers Council, herein REC, is a Nevada corporation with its office in Reno, Nevada. It has at all times material herein represented employers engaged in the casino and restaurant industry in collective bargaining, negotiating, and administering collective-bargaining agree- ments with labor organizations including the Union. From 1956 through 1975, REC voluntarily recognized the Union as the representative of all bar and culinary employees of its members and, at least since 1959, in behalf of its members who have shifted, has been party to a series of multiemployer collective-bargaining contracts with the Union. Respondent voluntarily joined REC in 1958, absent any showing of majority representation by the Union, and thereafter automatically became subject to the terms of the 1969-72 contract.' A subsequent contract ran from 1972 through 1975 and Respondent, as well as other casinos, timely withdrew from REC on December 10, 1974. This followed a request by one, Bramlet, the International trustee of the Union under the previous contract, for negotiation and modification of a new contract. On December 12, 1974, President Lawrence Tripp of Respondent further advised the Union of its intent to terminate the contract upon its expiration and REC similarly wrote to the Union that the contract would be duly terminated on February 15, 1975, and, further, that it was no longer authorized to represent Respondent for collective-bargaining purposes. On December 13, 1974, the Union wrote Respondent, as well as REC, referred to the prior communications from the Union, and asked that they contact the Union as to further negotiations. This was repeated in a December 17 letter wherein the possibility of unfair labor practice charges was raised. Counsel for Respondent responded on December 20 with a letter expressing a "genuine doubt" that the Union represented a majority of its employees in an appropriate unit. Respondent has since withdrawn recognition from the Union as the representative of its bar and culinary employees and has refused to bargain with the Union in behalf of same; this, in essence, is the gravamen of the instant case, although there are also some allegations of independent interference, restraint, and coercion. C. Interference, Restraint, and Coercion 1. Waitress Dolores O'Melveny of the dining room testified, and I find, that on or about December 6, 1974, she was directed at the end of her shift to appear at the office of Vice President and General Manager Kathy Tripp, the wife of President Lawrence Tripp of Respon- dent. The record amply demonstrates that both Tripps are supervisors under the Act. I Nevada is a right-to-work State. 2 The former, if agreed to, would perforce violate the Nevada right-to- work law. O'Melveny placed employee Joan Hale upon the scene. The latter is a reservations clerk for Respondent and is stationed in a two-desk office behind the reservations desk. She did recall one occasion when O'Melveny spoke to Mrs. Tripp in her presence. O'Melveny testified that Mrs. Tripp told her on this occasion that she, Mrs. Tripp, was calling in the girls to ascertain whether they wished a union or a nonunion house.2 Mrs. Tripp asked for the views of O'Melveny, a member of the Union, who in turn replied that she had been prounion all her life and had no desire to change; she further expressed her pleasure with various union benefits over the years. Mrs. Tripp next asked O'Melveny to indicate on a writing pad her name, the time and date, and whether or not she desired representation by a labor organization. O'Melveny expressed reluctance to depose her true sentiments in fear of incurring the wrath of Respondent. Mrs. Tripp responded that Respondent was a family hotel and that it would attempt to provide improved insurance benefits. O'Melveny referred to union benefits such as dental insurance, eyeglasses, and improved retirement benefits. Mrs. Tripp asked O'Melveny again to record her preference; the latter again asked for an expression protecting her against discharge if she put down a truthful response. Ultimately, O'Melveny agreed to record her name, the date and hour, but nothing further; she did so. 3 Joan Hale in turn testified that, commencing in Decem- ber 1974, a number of employees came to the office she occupied behind the front desk. They stated that they understood they were to sign a document reflecting whether or not they were in favor of the Union. Hale allegedly responded that Respondent, after contact by the Union, wished to ascertain their prounion or antiunion preferences and that the employees were not required to sign anything; she added further that they were not even required to talk with her. However, if the employee so indicated, Respondent would accept a response. Hale admitted knowing O'Melveny, but had no recollection of any conversation when Mrs. Tripp and they had participated in any discussion. She modified this thereafter to reflect that other employees might have been present with Mrs. Tripp, O'Melveny, and herself. She did recall occasions when other employees entered the office and stated that they understood that they were to advise Mrs. Tripp whether they were in favor of or opposed to the Union. But she recalled only one occasion on an afternoon when O'Melveny was on the scene. I find that this was consistent with the testimony of the latter. Hale further testified that O'Melveny stated she understood it was in order for her to sign a statement supporting or rejecting the Union. According to Hale, Mrs. Tripp denied this and added that signing the statement or refusing to do so would in no way jeopardize the position of O'Melveny. Mrs. Tripp vaguely recalled only one occasion when O'Melveny spoke with her about the Union, allegedly in 3 O'Melveny was discharged by Respondent or quit in September 1975. Her termination is not at issue herein. 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the presence of Hale and others who did not testify herein. O'Melveny allegedly asked, "what's all about this union," and Mrs. Tripp asked what O'Melveny wished to know. On her version it would seem that this ended upon an impasse. As indicated, the version of O'Melveny, upon my observa- tion of the witnesses, impresses me as the more reliable. 2. Bertha Walker worked for Respondent as a waitress from May 1973 until she left its employ in November 1975. She claimed that James Wireman, as Mrs. Tripp, general manager and vice president of Respondent, told her, was the maitre d' of the dining room and Walker's supervisor; that he was in charge and the host; and that he seated the guests. Wireman, according to Walker, made out the work schedules and, indeed, when she was terminated it was Wireman who made out her termination slip. On occasion, when a patron was dissatisfied with the entree, she observed that Wireman would "comp" the bill, this meaning approval of the bill at the expense of the house, or he would present another dish without additional cost. Wireman also, upon occasion, did authorize overtime for Walker. Respondent disputes this, but I find, on a preponderance of the evidence, that Wireman meets the definition of a supervisor within the meaning of the Act. His contrary testimony as to his status during his tenure is less than impressive and is therefore not credited. The record does disclose that he effectively recommended the discipline or discharge of employees. It further discloses that he hired an employee, as described below, without the advance approval of Mrs. Tripp. During July 1974, according to Walker, she chanced to enter the office of Mrs. Tripp. The latter stated that she wished to talk with her and asked, "What do you hear from the Union?" Mrs. Tripp stated further that the club operators in the area had held a meeting and agreed that any employees who went on strike "couldn't come back to work." No one else was present. Mrs. Tripp recalled that Walker had been a waitress with Respondent. She previously had denied any talk with an employee named Walker concerning union activity. She denied having a talk with any employee in July 1974 concerning the possibility of termination in the event of a strike. Walker impressed me as an honest witness and the questioning of Mrs. Tripp by counsel for Respondent left something to be desired. I therefore credit Walker. 3. Eva Nancy Tramaglino, a waitress from August 13 through December 7, 1974, testified that she received her instructions in the dining room from Wireman, who had hired her.4 Tramaglino testified, and I find, that late in November 1974 Wireman approached her in the dining room as she waited for an order or orders and stated that everyone who joined or belonged to the Union would be "automatically terminated and I mean fired." Wireman denied such a conversation with any employee in November 1974 or for 4 She was interviewed by him on August 13, and he handed her a work application; he told her to fill it out, to return it and commence work at 5 p.m. that day. She did submit the work application upon her appearance at the casino at 5 p.m. that day. I find that he hired her upon his own authority. 5 Wireman, I note, now works full time in the public relations area for Respondent. Paradoxically, the General Counsel ultimately managed to that matter having a conversation with any employee on or about December 3, 1974, concerning union activity, this bearing upon the testimony of Veronica De Santis, treated below, which attributes certain remarks to Wireman.5 4. Veronica De Santis entered the employ of Respon- dent in 1966 or 1967, quit for some months in 1972, returned in December of that year as a waitress, and was discharged in December 1974. On or about December 3,6 in the presence of De Santis and several other employees, Wireman asked if they were "for or against a union." De Santis replied that she had belonged to a labor organiza- tion "[a ]l my life and could not speak for the other girls." Wireman, as she testified, promptly left the scene. To sum up, I find the conduct of Mrs. Tripp and Wireman, as specified above, to be attributable to Respondent and violative of Section 8(aXI) of the Act. Some statements in the record are attributed to President Lawrence Tripp but these, in my judgment, clearly fall within the protection of Section 8(c) of the Act and no findings adverse to Respondent are based thereon. D. The Refusal To Bargain I. The appropriate unit The complaint alleges that all bar and culinary workers of Respondent, excluding all other employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. There is ample recent authority by the Board supporting this view, cited below, and I so find. 2. Majority representation in the appropriate unit The Board has, in a number of recent cases, held, in effect, that a presumption of majority status flowing from a union contract in a multiemployer unit, as was the fact here, survives timely withdrawal from that unit and carries over to a newly created single-employer unit. As set forth above, this was the precise sequence of events herein. I find therefore, subject to the establishment of a good-faith doubt as to majority status in the single-employer unit, also treated below, that the Union was presumptively the majority representative of these employees within the meaning of Section 9(a) of the Act. See Nevada Lodge, 227 NLRB 368 (1976); Tahoe Nugget, Inc., d/b/a Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976); Silver Spur Casino, 228 NLRB 1147 (1977); and Carda Hotels, Inc., d/b/a Holiday Hotel & Casino, 228 NLRB 926 (1977). In another context, this view has recently been adopted by a circuit court of appeals. See Nazareth Regional High School v. N.LR.B., 549 F.2d 873 (C.A. 2, 1977). establish that Wireman receives no compensation from Respondent and is paid by the motels whose patronage Ponderosa, not a motel, solicits as part of tours. Be that as it may, I nevertheless find that Wireman was a supervisor for Respondent at the time material herein. 6 The transcript incorrectly reflects the year as 1975. 94 PONDEROSA HOTEL & CASINO, INC. 3. The attempt to rebut the presumption of majority representation Respondent has advanced a number of reasons as to its purported good-faith doubt, from August 1974 through mid-December of that year, that the Union represented a majority of the employees in the above-described appropri- ate unit. These are as follows: President Tripp relied on daily terminations in the entire enterprise beyond the instant unit, although mostly in the culinary department, these being at a rate of 300 percent in 1973, in excess of a rate in 1972. The Union lost an election in 1968 for a unit of employees other than those in the unit involved herein. The Union never won an election for the employees in the unit involved herein. In August 1974, a Reno morning newspaper attributed to Bramlet a statement that the Union enjoyed but a 20- percent representation in establishments organized in this area. No grievances had been filed concerning the working conditions of employees at Respondent. Respondent was located in a right-to-work State and perforce there could not be compulsory union membership. A number of employees in the culinary department queried Mr. Tripp during the period from August through December 1974 concerning union membership. Twelve to 15 employees, and he named several of them, were involved. Mr. Tripp allegedly was questioned concerning the company insurance benefit as contrasted with the union plan. He allegedly replied that they did not have to make a choice; Mr. Tripp added that two or three employees questioned the requirement that union dues be paid. Mr. Tripp further testified that his wife told him that during the first 10 days of December 1974, "a very vast majority" of the employees in the indicated unit expressed disinterest in the Union. Mr. Tripp further relied on the fact that there was no checkoff of union dues. Mr. Tripp testified that he was duly advised by named counsel in San Francisco, after telling him of his belief that there was little interest in the Union, that an election should be held; the record demonstrates that such an effort by Respondent was abortive. Respondent also relies on the fact that the Local had been placed under trusteeship by its International and that, pursuant thereto, the Union strove, at the time material herein, to enroll members. It would appear to be manifest, on the basis of the cases cited above, that the Board considers this to be qualitative- ly insufficient to support a good-faith doubt by an employer that it would not honor an assertion by a labor organization that it represented a majority of the employ- ees in the appropriate unit. It therefore follows that I am constrained to reject the defense of the employer herein and I accordingly find that the employer has refused to bargain in good faith within the meaning of Section 8(a)(5) and (I) of the Act.7 CONCLUSIONS OF LAW 1. Ponderosa Hotel & Casino, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Hotel-Motel-Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All bar and culinary workers of Respondent at its place of business in Reno, Nevada, excluding all other employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union was and now is the majority representative of the employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union as the representative of the employees in the above- described appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing, by questioning employees concern- ing their union sympathies, by asking employees to record their desires as to union representation, by asking employ- ees what they heard from the Union, by stating that any employees who went on strike would not be rehired, and by stating that anyone who joined or belonged to the Union would be discharged, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has violated Section 8 (aX5) and (1) of the Act by unlawfully withdrawing recognition from the Union and by refusing to bargain with said Union as the exclusive representative of its employees in the above-described appropriate unit, I shall recommend that Respondent be ordered to recognize and, upon request, bargain in good faith with the Union as the exclusive representative of its employees in said unit and, if an understanding is reached, embody such understanding in a signed agreement. Upon the foregoing findings of fact, conclusions of law, and on the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: But cf. Star Manufacturing Co., Division of Star Forge, Inc. v. N LR. B.. 536 F.2d 1192 (C.A. 7, 1976). 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER8 The Respondent, Ponderosa Hotel & Casino, Inc., Reno, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Hotel-Motel-Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the representative of its bar and culinary workers, excluding all other employees, guards, and supervisors. (b) Questioning employees concerning their union sympathies, asking employees to record their desires for union representation, telling employees that any employees who went on strike would not be rehired, and telling employees that everyone who joined or belonged to the Union would be automatically discharged. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Recognize and, on request, bargain in good faith with Hotel-Motel-Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the exclusive represen- tative of its employees in the unit described above and, if a contract is reached, sign same. (b) Post at its premises in Reno, Nevada, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by a representative of Respondent, shall be posted by it, immediately upon receipt thereof, and 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 ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 9 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Hotel-Motel-Restau- rant Employees & Bartenders Union Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the exclusive representative of our bar and culinary workers, excluding all other employees, guards, and supervisors. WE WILL NOT question employees concerning their desire for union representation, ask employees to record such desires, tell employees that any employees who went on strike would not be rehired, or tell employees that anyone who joined the above-named labor organization would be automatically discharged. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL, upon request, recognize, and bargain with the above-named labor organization as the exclusive representative of all employees in the bargaining unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. PONDEROSA HOTEL & CASINO, INC.