Jim Kelley's Tahoe Nugget

JIM KELLEY'S TAHOE NUGGET 357 Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe Nugget and Hotel-Motel-Restaurant Employees & Barten- ders Union, Local 86, Hotel & Restaurant Employ- ees & Bartenders International Union , AFL-CIO. Case 20-CA-9738 December 16, 1976 DECISION AND ORDER On January 28, 1976, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. General Counsel and the Charging Party filed briefs in opposition to the exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs 1 and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, but for the reasons set forth below rather than for the reasons set forth in his Decision. On August 3, 1959, the Reno Employers Council, a voluntary association of employers engaged in the casino, restaurant, and other industries, recognized and entered into a contract with Local 86 on behalf of its member-employers in the Lake Tahoe area. Respondent, Tahoe Nugget, thereafter in 1962 joined the Council and became a party to the 3-year multiemployer contract then existing between the Council and Local 86. Respondent continued to be a party to successive contracts between the Council and Local 86, including one that was due to expire on November- 30, 1974. On September 18, 1974, Respondent timely with- drew from the multiemployer arrangement and subsequently refused to bargain with Local 86, claiming that it had a reasonably grounded doubt as to Local 86's majority status among its own employ- ees. We agree with the Administrative Law Judge that the presumption of majority arising from Respon- dent's voluntary recognition of a labor organization 1 Respondent's request for oral argument is hereby denied, as the record and the briefs adequately present the issues and the positions of the parties. 2 Mohawk Business Machines Corporation, 1116 NLRB 248 (1956); Dank- er & Sellew, Inc, 140 NLRB 824 (1963), enfd. 330 F.2d 46 (C.A. 2, 1964). 3 Local Lodge No 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Co.] v. N .L RB 362 U.S. 411 (1960). 4 North Bros. Ford, Inc., 220 NLRB 1021 (1975), and cases cited therein. 5 Shamrock Dairy, Inc , Shamrock Dairy of Phoenix, Inc., and Shamrock Milk Transport Co, 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (C A.D.C., 1960), cert. denied 364 U.S. 892 (1960); Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974) (Member Kennedy dissenting). 6 We think our dissenting colleague reads too much into Sheridan Creations, Inc., 148 NLRB 1503 (1964), and Mor Paskesz, 171 NLRB 116 (1968), which involved the lawfulness of the employers' withdrawal from 227 NLRB No. 72 as the exclusive collective-bargaining representative of its employees continued after its withdrawal from a multiemployer unit and reversion to its original status. We nevertheless take this gpportunity to clarify and precisely define our rationale for so joining in the Administrative Law Judge's conclu- sion. Unless a majority of an employer's employees desire representation by a union, an employer cannot lawfully force representation on them by joining a multiemployer bargaining unit .2 Respondent would thus have violated the Act when it became a party to its multiemployer contract if a majority of its employ- ees had not desired representation by Local 86. The Board has held, in light of the Supreme Court's decision in Bryan Manufacturing Co., 3 that a respon- dent may not defend against a refusal-to-bargain allegation on the ground that original recognition, occurring more than 6 months before charges had been filed in the proceeding raising the issue, was unlawful.4 Any such defense is barred by Section 10(b) of the Act, which, as the Court explained in Bryan, was specifically intended by Congress to apply to agreements with minority unions in order to stabilize bargaining relationships. That means that Respondent cannot now attack the Union's majority status among its employees in the single-employer unit when recognition was originally extended and that we must accept as a fact that the Union represented a majority in that unit at that time. The Board has consistently presumed that a volun- tarily recognized union continues to be the majority representative of the unit employees.5 This presump- tion is carried throughout the life of the collective- bargaining contract and thereafter. We do not think that a different result should obtain in this case.6 To rebut the presumption of continued majority status properly, the employer must show either that the union in fact no longer enjoys majority status or that its refusal to bargain was predicated on a reasonably grounded doubt as to the union's contin- ued majority status.? If the employer desires to challenge the union's majority status, it may file a multiemployer bargaining units. There the Board held that, until the employers timely withdrew from the multiemployer unit, their bargaining obligations were based on the majority status of the union representing all the employees in the unit. This holding was grounded on the principle that the multiemployer unit, once established, remains the appropriate unit for all the employees and employers until lawfully disestablished or modified These cases, therefore, say nothing about the presumption of majority status existing originally among the employees of each employer . Once an employer lawfully withdraws from the unit , of course, it is free to justify a withdrawal of recognition by successfully rebutting the presumption. 7 See Celanese Corporation of America, 95 NLRB 664 (1951), Laystrom Manufacturing Co., 151 NLRB 1482 (1965), enforcement denied on other grounds 359 F.2d 799 (C.A. 7, 1966); Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 (1970); Barrington Plaza and Tragmew, Inc, 185 NLRB 962 (1970); Automated Business Systems a Division of Litton Business Systems, Inc., a (Continued) 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition with the Board seeking an election. To hold otherwise, as does our dissenting colleague, would mean that formation or dissolution of, or any entry into or departure from, a multiemployer unit would, standing along, establish objective and substantial reason to doubt the previously existing majority. But the dissent sets forth neither facts nor reasons why this should be the result. Such result would permit the questioning of majority on every change in the composition of the multiemployer unit, would deter the formation of such units, and would inhibit stability in bargaining. Before we depart from prece- dent to venture in this direction, far more cogent reasons are required than we perceive here .8 Since we are in agreement with the Administrative Law Judge that Respondent has failed to prove that Local 86 no longer in fact enjoys majority status or that Respondent's refusal to bargain was predicated on a reasonably grounded doubt as to Local 86's majority status, we find that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. 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, Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe Nugget, Crystal Bay, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. MEMBER WALTHER, dissenting: I take issue with my colleagues' conclusion that the presumption of majority status flowing from the contract in the multiemployer unit survives Respon- dent's timely withdrawal from that unit. By a process resembling alchemy, my colleagues have concocted the existence of majority status with only the thinnest support in legal reason and have, in complementary fashion, ignored valid distinctions between the pre- sumptions applicable to single-employer and mul- tiemployer units. It was some 14 years ago that Respondent in 1962 voluntarily joined _ a multiemployer bargaining unit and recognized Local 86 as the representative of its employees. No election has ever been held either in Subsidiary of Litton Industries, Inc, 205 NLRB 532 (1973), enforcement denied 497 F.2d 262 (C.A. 6, 1974); Walter E Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852 (1975); James W. Whitfield d/b/a Cutten Supermarket, 220 NLRB 507 (1975). 8 The presumption that a bargaining relationship, lawfully established, lawfully continues is embedded in the statute and precedent. Unrepresented and represented 'employees are both presumed to desire continuation of the existing status in the absence of proof to the contrary. Were there objective the multiemployer unit or in a unit of Respondent's own employees, nor has Respondent ever recognized or bargained with Local 86 on a single-employer basis. Thus, at no time during the course of Respon- dent's 14-year bargaining relationship has there been any attempt to ascertain the majority sentiments of Respondent's employees. I cannot accept my col- leagues' assertion that in these circumstances Local 86 should be presumed to be the majority representa- tive of Respondent's employees once Respondent secedes from the multiemployer unit. My colleagues argue that unless a majority of Respondent's employees in 1962 desired representa- tion by Local 86 Respondent could not lawfully have forced representation on them by joining the mul- tiemployer unit. They further - note that Respondent cannot now attack Local 86's majority status among its own employees at the time of original recognition because of Section 10(b). From this my colleagues, citing cases which deal with the presumption of majority status in single-employer units, construct two entirely distinct and severable presumptions which in turn give birth to yet a third presumption. Starting with (1) a valid presumption of majority status in the multiemployer relationship, they turn back, and (2) interweave a second presumption of former majority status in the single-employer unit based upon the 10(b) prohibition against finding conduct which occurred years ago to be unlawful. From the interweaving of these two presumptions the majority manages to conceive yet a third presumption of current majority status in the single-employer unit which otherwise has no basis in fact or in logic. While I do believe that the Board can and should base violations of Section 8(a)(5) upon legitimate legal presumptions, a violation predicated upon a pre- sumption arising not out of fact but out of the intermarriage of two other presumptions is, in my view, not a proper basis upon which to establish a violation. It must never be forgotten that an 8(a)(5) finding effectively prevents employees from exercis- ing their right to a free choice in the selection of a collective-bargaining representative-a right 'these employees have never had an opportunity to exercise. My colleagues' argument conveniently ignores the critical fact that, contrary to the situation in a single- employer unit, the relevant majority in a multiem- evidence here sufficient to raise a reasonable doubt of the Union's continuing majority, there would be no need to consider the propriety of any presumption. Although, as our colleage argues, had the Union lost its majority among the employees of any single employer it could nonetheless have compelled bargaining in the multiemployer unit, he suggests no reason to believe that it had lost that majority At best, his argument begs the question and replaces the common expectation of continuity with one of change. JIM KELLEY'S TAHOE NUGGET 359 ployer unit is the majority of employees within the entire multiemployer unit.9 Thus, notwithstanding the constraints' imposed on the. employer at the point of initial recognition (constraints which may perhaps support a presumption that the- union was majority representative of the employer's employees at the time of original recognition), once the employer joins the multiemployer unit, it does not in theory violate the law by continuing 'to bargain3 with a union which does not have majority status among its own employ- ees. Indeed, unless the employer .has timely with- drawn from the multiemployer unit, it is required to bargain with any union representing a majority of employees within that multiemployer unit, regardless of the union's standing among the employer's' own employees.10 Consequently, the presumption of con- tinued majority in the, multiemployer, • situation pro- vides no basis in-fact or in law for a:presumption of majority in the single-employer unit, since the former presumption exists regardless of, or even contrary to, actual majority status on a single-employer basis. It should be recognized that the presumption of continued majoritystatus-is in fact nothing more than a convenient legal fiction employed by the Board to insure the stability off the collective-bargaining rela- tionship - by preventing frivolous And unnecessary interruptions of that relationship. As stated by the Board in Terrell Machine Company, ``[t]his presump- tion is- designed to promote stability in collective- bargaining relationships, without -impairing the free choice -of employees. " 11 Since they are essentially legal fictions, however, presumptions should not be employed where they fail utterly to mirror reality (as when the probability of the fact presumed to, be in existence diminishes to nothingness) or when their use comes up , against some. important, countervailing policy, consideration (such as employee free choice). In my opinion,- the majority has here extended an acceptable and useful fiction (the presumption of continued majority status) to the point where `it no' longer 'reflects `probable reality and, instead of promoting-bargaining stability, works to the detriment-of employee free choice. ' While Respondent did not engage in any potential- ly improper interrogation of its employees, it -did place- in the record the evidence available to, it supporting its position that there is a doubt as to the Union's -majority status. This included: (1) evidence of Local 86's poor financial picture, (2) association- wide, figures concerning Local 86 membership, (3) newspaper reports that Local ,86 was reorganizing, (4) evidence of a high employee turnover rate, (5) reports of employee dissatisfaction with Local 86, and (6) reports of Local 86's inactivity. Clearly the record does not support any finding of bad faith on the part of Respondent in doubting Local 86's majority status. I would accordingly refuse to presume that Local 86 continues to be majority representative of Respon- dent's employees and would require Local 86 to come forward with its own evidence of majority. As Local 86 has not done so, I would dismiss the complaint, thereby leaving the parties and, most importantly, the employees to the Board's representation procedures if there- exists a question _concerning-representation in the single-employer unit. 9 Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245 (C.A., 2, 1966), cert. denied 385 U S. 1005 (1967); Mor Paskesz, 171 NLRB 116 (1968). 10 See Sheridan Creations, supra 11 173 NLRB 1490,1481 (1969). DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was heard in South _ Lake Tahoe, California, on September 23, 24, and 25, 1975. The charge was filed on November 19,1974, by Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employees '& Bartenders International Union, AFL-CIO, herein called the Union. The complaint issued on August 13, 1975,- and alleges that Tahoe Nuggett, Inc. d/b/a Jim Kelley's Tahoe Nugget, herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Issues The ultimate issue -is whether Respondent, violated Section 8(a)(5) and (1) of the Act by withdrawing recogni- tion from and refusing to bargain with the Union as the collective-bargaining representative-of its bar and culinary employees. The subsidiary issues are: - - - -1. Whether the rebuttable presumption of the Union's continued majority status which flowed from a contract in a multiemployer bargaining unit survived Respondent's time- ly withdrawal from that unit and was applicable to a single- employer bargaining unit. 2. If .the presumption did apply, whether Respondent has rebutted that presumption by affirmatively establishing, that the Union had, in fact, lost its,majority or by showing that Respondent had sufficient objective basis for reason- ably doubting the Union's continued majority. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross -examine witnesses, to argue orally, and toafile briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent; and the Charging Party. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the operation of a gaming casino at Crystal Bay, Nevada. During the year immediately preceding issuance of complaint , Respon- dent's gross revenue was in excess of $500,000, and during that same year, Respondent purchased and received goods and materials valued in excess of $10,000, which directly originated outside of Nevada. In addition to employing gaming control personnel, Respondent in its busy season employs about 52 employees in its bar and culinary operation. In its low season, Respondent employs about 35 or 40 employees in that group. The culinary classifications include cooks, waitresses, busboys, bartenders, and porters. Thus, it appears that Respondent, in addition to operating a gaming casino, has bar and restaurant facilities. i Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act for the Board to assert jurisdiction. See The Anthony Company d/b/a El Dorado Club, 220 NLRB 886 (1975), and cases cited therein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background The Reno Employers Council , herein called the Associa- tion, is a Nevada corporation with an office in Reno, Nevada. It is a voluntary association of employers engaged in the casino, restaurant, and other industries . The Associa- tion exists, in part, for the purpose of representing its member-employers in collective bargaining and administer- ing collective-bargaining agreements, with various, labor organizations including the Union. The Union . and the Association entered into a multiemployer collective-bar- gaining contract on August 3, 1959. The Association agreed to the contract on behalf of employers it represented in the Lake Tahoe area. Succeeding contracts followed,2 with the last effective from December 1, 1971, through November 30, 1974.3 That contract was between the Union and the Association on behalf of the individual members thereof signatory thereto. Five employers were signatory to the contract, including Respondent.4 Employees covered by that contract were those in the employers ' bar and culinary operations at Lake Tahoe. Respondent opened for business on July 2, 1962: Respon- dent joined the Association, and became a party to the i In a petition for an election filed by Respondent, it describes its type of establishment as "food service and gaming casino " 2 In some of these contracts new employer-members of the Association were added and other employers were deleted 3 Nevada is a right-to-work State and none of the contracts contain a umon-security clause. 4 The signatory employers were Barney's Club , Harvey's Resort Hotel, Nevada Lodge, Sahara-Tahoe, and Respondent. s The General Counsel concedes in its complaint that the withdrawal was timely multiemployer bargaining agreement between the Associa- tion and the Union that was effective from November 30, 1962, through November 30, 1965 ..Respondent continued to be a party to the successive contracts through the one that expired on November 30, 1974. On September 18, 1974, Respondent timely withdrew its membership from the Association.5 On October 23, 1974, Respondent refused to bargain with the Union, and Respondent has withdrawn recognition from the Union. On July 25, 1975, Respondent filed a petition for an election with the Board. That petition , seeks an election among Respondent's culinary and bartender employees in a single-employer unit. The complaint alleges a refusal to bargain in that single-employer unit. The complaint alleges, the answer admits, and I find that the appropriate bargain-, ing unit is: All employees employed by the Respondent in its bar and culinary operations at its Crystal Bay, Nevada operations, excluding all other employees, guards and supervisors as defined in the Act. - B. The Testimony- 1. The testimony .of Staff and -the LM-2 forms Alfred E. Staff is the bar manager for the Overland Hotel in Reno . From early July 1973 to June 7, 1974, when a trusteeship was imposed on the Union , Staff was president of the Union.6 During that time, Staff, in addition to being union president, was a full-time bartender. The only full- time paid union officer was Secretary-Treasurer and Business Manager E. W. Tucker. Staff testified that a number of events occurred during the summer of 1974. However, it is apparent that these events took place before the trusteeship was imposed, and the sequence of events set forth below is keyed to the June 7 imposition of the trusteeship. Otherwise, the following fmdings are based on Staffs credited testimony . In June 1974, the Union had about $11,000 in its treasury, and that amount was decreasing. However, the Union's liabilities did not exceed its assets. About that time, the Union had approximately 1,000 members, of whom between 700 and 800 were paid up in their dues.? Sometime before the trusteeship was im- posed, the Union sent Business Manager Tucker to the headquarters of the International in Cincinnati to see if he could obtain some money to help the Union organize. The executive committee had discussed the need to obtain more members and to build the membership up to a point where the Union could have some strength when it met with the employers to negotiate the next contract . Tucker went to Cincinnati and discussed the matter with representatives of the International. He then returned and reported to the executive committee that the International would give the 6 Staff was unsure on his dates. He averred that he believed the trusteeship was imposed in August, but that it might have been in June. Howard Lawrence; a business representative who is the chief executive officer of the Union in the Lake Tahoe area, testified that the trusteeship was imposed on June 7, 1974. I credit Lawrence. T The highest number of members during StafFs term of office was about 1,200. JIM KELLEY'S TAHOE NUGGET 361 Union money to organize if the officers resigned, the Union went into a trusteeship, and the International administered the Union. The executive committee decided to let the International take over. The matter was brought up at the next regular meeting of the Union, and a majority of the membership voted to accept the trusteeship. The officers resigned, and on June 7, 1974, the trusteeship was imposed. Al Barmlet was appointed international trustee and former Business Manager Tucker became his assistant. During the time that he was president, Staff spoke to some union bartenders he worked with at the Overland Hotel, and he received comments from them to the effect that they were discouraged with the Union, that the Union didn't do anything for them, and that they did not like the way the Union was being run. Some bartenders said, "when is the Union going to be able to do anything for us," "they never do nothing for us," "what's the sense of joining a union." He never received any compliments on the perfor- mance of the Union. In addition to talking to bartenders at the Overland Hotel, he spoke to some culinary workers at various clubs in the Reno area in an attempt to organize them. However, there is no evidence in the record that any employees of Respondent expressed dissatisfaction with the Union to Staff. At the end of the hearing, Respondent offered in evidence certain LM-2 forms for the years 1972 through 1974 which the Union had filed with the Department of Labor. Those exhibits were received in evidence. No testimony was offered to explain or interpret the exhibits. The report for 1974 states that the Union was placed under an international trusteeship on June 7, 1974, and that Bramlet was appointed international trustee. The reports show that the Union received $84,891 in dues in 1974; $74,142 in 1973; and-$77,117 in 1972. There is no evidence in the record that Respondent knew of the existence of the LM-2 forms at a time when it decided to withdraw recognition from the Union. In a similar vein, there is no indication in the record that Respondent knew of the substance of the matters testified to by Staff at that time. Respondent did not rely on those matters in deciding to withdraw recognition from the Union, and apparently Respondent is relying on them solely for the purpose of attempting to prove that the Union, in fact, did not have majority status.8 With regard to the matters set forth below, Respondent contends that it did have a reasonably based doubt as to the Union's majority, upon which it acted in withdrawing recognition. 2. The remarks by employees of Respondent and the Newspaper articles Dale McHatton is Respondent's manager .9 In early September 1974, McHatton overheard Dave Wilmurth, who at the time was employed by Respondent as a cook, speaking to Union Representative Hart. Wilmurth told 8 As the Board held in Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho, and its Employer-Members 213 NLRB 651 (1974), an employer's reasonably based doubt of a union's ma o status must be predicated on information it had at the time of its refusal to bargain. See also Orion; 210 NLRB 633 (1974), enfd. 515 F 2d 81 (C.A. 7, 1975) 9 The complaint alleges, the answer admits, and I find that McHatton is a supervisor within the meaning of the Act. Hart that he was making over scale without paying dues and he asked Hart what the Union could do for him. Wilmurth then said to McHatton, "if I don't have to pay any dues and I'm making over scale now, what good are they going to do, isn't that right, Dale." McHatton replied that it was Wilmurth's problem.1° The same day, McHatton reported the incident to Respondent Secretary-Treasury and Comptroller Francis R. Cannon. About the same date, McHatton overheard waitress Pat Tucker, talking to another waitress. He heard Tucker say, "I'm not going to join until I find out if they can do more than what the employer is doing for me now." McHatton also reported that incident to Cannon, who replied that Tucker had made similar remarks to him. In July or August 1974, Tucker had told Cannon-that she had never belonged to the Union and that she couldn't see where the Union could do anything. During the period between July and October 1974, McHatton overheard bits and pieces of other conversations between employees about the status of the Union and how many people the Union had. He testified that-he could recall conversations but not the people involved. He averred that they talked about the Union going broke, the Union not having enough organized people, and their feeling that the Union could not do anything for them. He reported those bits and pieces of conversations to manage- ment officials. Howard Schlegel was swing-shift manager for Respon- dent from May through December 1974.11 In mid-Septem- ber 1974, he overheard a conversation between two women in a restaurant booth at the club. One of them was Evelyn Drew, one of Respondent's casino cashiers.,He heard Drew say that she didn't care for union activities and she couldn't understand what they would do for her. As a casino cashier, Drew was not within the bar and culinary employees bargaining unit. Schlegel reported the incident to Cannon. Schlegel testified that-he overheard other conversations by employees in September, but that he didn't recall any specific statements or any particular persons. All of the incidents that were reported to Cannon were, in turn, reported by Cannon to Respondent General Manager Miltonberger and Respondent President Kelley. Cannon credibly testified that sometime after July 22, 1974, he read articles in the Reno Journal and in the Gazette which reported that the Union was reorganizing and had brought in organizers. 3. The conversations between Respondent's supervisors and the decision to withdraw recognition Cannon, in his testimony, was very vague on dates. He averred that he had had a number of conversations with McHatton and Schlegel between the end of July and the early part of October 1974, but that he didn't remember io This finding has been based on the credited and uncontradreted testimony of McHatton. The Union's records show that Wilmurth applied for membership in the Union and paid initiation fees and dues on September 20, 1975. However, that fact does not refute McHatton's assertion that Wilmurth made the remarks set forth above. ii Schlegel was a supervisor within the meaning of the Act. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dates. On one occasion he asked McHatton if there had been any union activity -around, and McHattori said that there had been people in there.12 Cannon asked McHatton if McHatton heard any information from the' employees about the Union. McHatton replied that there had been some discussion with people and remarks were made to the 'effect that they couldn't see whit the Union could do for them. Cannon had a similar discussion withSchlegel. After expressing considerable ambiguity on the dates, Cannon averred that he had a discussion with Respondent President Kelley and General Manager Miltonberger during the first part of August 1974. Kelley asked Cannon whether there ever had been any grievances filed, and Cannon replied that to his knowledge there had been none.13 They also discussed the amount of turnover among Respondent's employees. The turnover ratio was about 4 to 1 a year, with four employees being hired for every one that remained per year.14 Kelley asked Cannon whether Can- non thought the Union hid sufficient membership in the operation at the lake. Cannon replied that he didn't think the Union had controlling membership because of the amount of personnel turnover. He also told Kelley that he had been informed by McHatton and Schlegel that they had been told that the Union couldn't do anything for the employees. In addition, he said that the rumor was that the Union had about 800 to 1,000 members in the entire area. Cannon also told Kelley that they had never had any correspondence as far as an election was concerned. On September 10 or 12, 1974, Cannon, Kelley, and Miltonberger had another meeting. At that meeting Kelley asked Cannon whether they should withdraw from the Association. Cannon replied that management felt that the Union didn't have enough employees to win an election, and he recommended to Kelley that they withdraw recogni- tion from the Union. He also said that the Association should be notified that they were withdrawing. He told Kelley that the rumor was that the Union-was in trouble financially and that the Union was trying to organize and obtain funds from out of State in order to continue their organizing. Miltonberger said that he felt the same as Cannon, and that the Union did not represent the majority of the employees at that time. Cannon, Miltonberger, and Kelley met again on Septem- ber 16, 1974. Cannon said that he didn't think that the Union represented the employees and that based on the information he had received, both directly and indirectly, they should challenge the Union as far as an election was concerned. He said that the turnover was so great that he could not see how the employees would bring in a vote for the Union. At that meeting, the three of them made the decision that the Union's majority status should be chal- lenged.- 12 McHatton testified that he couldn't "recollect" whether he had seen union business agents on the premises for business purposes during the 13 years he was day-shift manager before September 1974. Schlegel testified that during the time he worked on the premises between May and December 1974, he saw one union representative in September, and that was Bob Hart. Business Representative Lawrence testified that he had several conversations with Schlegel on the premises between June and September 1974, as well as two or three such conversations after September. I credit Lawrence. 13 Cannon testified that he didn't recall anything being filed showing violations, that he was not aware of any contract violations, and that it was Respondent's policy to abide by the contract. 4. The Union's demand for negotiations and Respondent's refusal The last contract expired by its terms on November 30, 1974. By letter datedJuly 22, 1974, Union International Trustee Al Bramlet notified Respondent of his desire to change and modify the contract and sought to arrange for collective-bargaining negotiations. By letter dated Septem- ber 18, 1974, to the Association, Respondent resigned its membership in the Association and withdrew its authoriza- tion for the Association to represent it in connection with collective bargaining or labor relations. A copy of that letter was sent to the Union with a covering letter dated September 18, 1974, notifying the Union that the outstand- ing contract was terminated effective as of the term thereof. By letter dated September 27, 1974, Phillip Bowe, the Union's attorney, acknowledged Respondent's September 18, 1974, letter withdrawing from the Association and requested Respondent to contact Bramlet to discuss a convenient time for negotiations. By letter dated October 11, 1974, Respondent informed the Union that it had never dealt with either Bowe or Bramlet, that it understood that Bramlet represented a local in Las Vegas, and that it did not understand the Union's request. Bowe responded by letter dated October 15, 1974, in which he told Respondent that Bramlet had been appointed international trustee and that Tucker was Bramlet's assistant. On October 18, 1974, Bowe once again wrote to Respondent demanding that negotia- tions begin. By letter dated October 23, 1974, Respondent's attorney, Berke, reminded the Union that Respondent had previously withdrawn from the multiemployer unit and notified the Union that it its demand for bargaining was a request to bargain in a single-employer unit: "then at the instructions of our client, we inform you that our client has a genuine doubt that your local represents on uncoerced majority of its employees in an appropriate unit." The letter went on to state that Respondent would fulfill whatever legal obligations it had if the Union won a Board-conduct- ed election. The Union filed the unfair labor practice charge on November 19, 1974, in which it alleged that Respondent unlawfully refused to recognize and bargain with it. Respondent admits that commencing on or about Octo- ber 23, 1974, it has refused and continues to refuse to bargain collectively with the Union and has withdrawn recognition from the Union. On July 25, 1975, which was about 9 months after the refusal to bargain and about 8 months after the filing of the 14 Though the turnover ratio varied considerably with different groups of employees, it was approximately 4 to 1 among the culinary employees as well as the average for the employees as a whole The turnover for cashiers was small, but for dishwashers it ran about 10 to 1, for bus personnel, 6 or 8 to 1, for porters, 8 to 1, and for cooks, 4 to 1. A compilation from Respondent's records, which was prepared shortly before the hearing, showed that of approximately 102 culinary employees who were on Respondent's payroll sometime in 1974, 21 had been employed at some point in 1973, and 10 had been employed at some point in 1972. Respondent's average employee complement in its peak season was about 87, and in its low season about 55, with the high in the culinary unit about 52 and the low about 35 or 40. JIM KELLEY'S TAHOE NUGGET 363 charge, Respondent filed a petition for an election with the - Board.15 C. Analysis and Conclusion's 1;--The presumption of majority As the Board held in Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852, 853 (1975): A contract, lawful on its face, raises a presumption that the contracting union was the majority representative at the time the contract was executed, during the life of the contract, and thereafter.2 2 Shamrock Diary, Inc., 119 NLRB 998,1002 (1957), and 124 NLRB 494, 495-496 (1959), enfd. 280 F.2d 665 (C.A.D.C.), cert. denied 364 U S. 892 (1960). The legality of the Union's initial recognition by Respon- dent is not subject to attack in this case. In Stanwood Thriftmart, the Board said: The Board has held that events time-barred by the limitations provision of Section 10(b) of the Act may not be used to overcome the presumption of majority status raised by a contract valid, on its face. The contract contains a clause which recognized the Union as majority representative and a lawful union-security clause. The legality of the Union's initial recognition by Respondent was precluded by Section 10(b) of the Act from being attacked at the time of Respondent's termination of the contract and withdrawal of recogni- tion from the Union. Therefore, we find that Respon- dent may not defend its refusal to continue to recognize and bargain with the Union by an attack on its initial recognition of the Union. [Footnote omitted.] In the instant case, the presumption of continued majority status is 'based on a contract in a multiemployer bargaining unit. The complaint alleges a refusal to bargain in a single-employer bargaining unit-. A serious question is presented as to whether the presumption of continued majority which flowed from the existence of the multiem- ployer contract survived the withdrawal of Respondent from the multiemployer unit and can be applied to the newly created single-employer unit. There has never been any contract between Respondent and the Union in the single-employer unit and, therefore, any presumption of majority mush flow from Respondent's inclusion in the multiemployer contract that expired on November 30, 1974. In Downtown Bakery Corp., 139 NLRB 1352 (1962) enforcement denied in pertinent part 330 F.2d 921 (CA. 6, 1964), a successor employer refused to bargain with a union where that union was the Board-certified representative of the employees in a multiemployer bargaining unit which included -a predecessor employer. In that case the predeces- sor employer had signed a separate collective-bargaining 15 That petition mistakenly .shows the contract expiration date as February 15, 1975. In fact, the contract expired on November 30, 1974. 16 Much ofthe legal analysis set forth below is the same as that which is contained in my Decision in Sahara-Tahoe Corporation, d/b/a Sahara Tahoe Hotel, 229 NLRB No. 151 (1976), a case that involved many ofthe same legal principles agreement with the -union. Relying on a presumption of continued majority, the Board found that the successor employer violated Section 8(a)(5) of the Act by refusing to bargain with the union in the single-employer unit.-The Sixth -Circuit refused to enforce the Board's bargaining order, holding in part that there was not sufficient evidence in the record- to support a finding of majority status of the union. In The Richard W.- Kaase Company, 141 NLRB 245 (1963)i enforcement denied in pertinent part 346 F.2d 24 (C.A. 6, 1965),'a similar factual pattern was presented,' and the Board followed its Downtown Bakery precedent. In Richard W. Kaase Co. case, a union was certified as the collective-bargaining agent of the employees of employers in a multiemployer bargaining unit which included a predecessor employer. That employer executed a separate collective-bargaining agreement. Thereafter, a successor employer continued to recognize the predecessor's contract but later withdrew' recognition. The Board found that the successor violated Section 8(a)(5) of the Act. The Sixth Circuit once again refused to enforce the Board's order, holding: "the ambiguity -inherent in the multi-employer election here relied on vitiates its efficacy to prove a majority as to any single employer." The Board law established by the Downtown Bakery and Richard W. Kaase Co. cases is not directly applicable to the instant situation. In each of those, cases, the individual employer had signed separate collective-bargaining con- tracts with the union and the presumption of continued majority could flow from those contracts rather than from the multiemployer certification. In - the instant case, the initial collective-bargaining relationship was in a multiem- ployer bargaining unit and the contracts to which Respon- dent was a party were multiemployer bargaining contract.'? However, I believe that the presumption of continued majority flowing from the multiemployer contracts requires a derivative presumption of the Union's majority status ,which is applicable to each of the employer-members of the multiemployer bargaining unit separately. Unless a majori- ty of an employer's employees desire representation by a ,union, that employer may not lawfully force representation on them by joining a multiemployer bargaining arrange- ment. Mohawk Business Machines Corporation, 116 NLRB 248 (1956); Dancker & Sellew, Inc. 140 NLRB 824 (1963), lenfd. 330 F.2d 46 (CA. 2, 1964). Thus, Respondent would have violated the Act in 1962 when it became party to the multiemployer collective-bargaining agreement if a majori- ty of its employees did not desire representation. Any unfair labor practice charge relating to such a violation would have had to have been filed within 6 months from that time. Respondent may not now either attack the initial bargain- ing relation or use it to establish a defense to a refusal-to- bargain complaint. As the Board held in North Bros. Fora Inc., 220 NLRB 1021(1975):18 Section 10(b) of the Act confines the issuance of unfair labor practice complaints to events occurring 17 It is also noted that, unlike the instant situation, both those cases involved conflicting representational claims by oval unions. 18 See also Stanwood Thrift mart, supra. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the 6 months immediately preceding the filing of a charge and has been interpreted by the Supreme Court to bar finding any unfair labor practice, even though committed within that period, which turns on whether or not events outside that period violated the Act. Bryan Manufacturing, Co. 3 The Court,, holding that maintenance and enforcement of a contract more than 6 months after recognition of a minority union did not violate the Act, relied in part on the legislative history indicating that Congress specifically intended Section 10(b) to apply to agreements with minority unions in order to stabilize bargaining relations. Noting that labor legislation traditionally entails compromise, the Court observed. that the interest in employee freedom of choice is one of those given large recognition by the Act as amended. But neither can one disregard the interest in "industrial peace which it is the overall purpose of the Act to secure." 4 The Board, in light ofBryan, has since held that Section 10(b) is applicable to a refusal-to-bargain defense that the bargaining relation was unlawfully established 5 3 Local Lodge No. 1424, JA M, AFL-CIO [Bryan Manufacturing Co.] v NLRB, 362 U.S. 411 (1960). 4 Id at 428, citations omitted. 5 Barrington Plaza and Tragniew, Inc, 185 NLRB 962 (1970), enforcement denied on other grounds sub nom Tragmew, Inc., and Consolidated Hotels of California v N.LR B., 470 F 2d 669 (C.A. 9, 1972); Roman Stone Construction Company, and Kindred Concrete Products, Inc., 153 NLRB 659, fn. 3 (1965). Respondent may not; at this late date, attack either the initial recognition of the Union by Respondent or the initial contract. It cannot defend against the refusal-to-bargain complaint on the ground that the original contract was entered into at a time when the Union did not represent a majority of the employees of Respondent. Nor can it defend on the ground that the Union did not represent a majority of the employees in the overall multiemployer bargaining unit. That contract must be considered valid on both those grounds. The presumption of majority status which continued over the years based on successive contracts applies both as to the employees of Respondent and to the employees in the multiemployer unit. I therefore find that the General Counsel has properly relied on that presumption to establish the Union's majority in the unit in question. It remains to be considered whether Respondent has successfully rebutted that presumption. 2. The attempt to rebut the presumption a. The background law In James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507 (1975), the Board summarized the existing law, holding at 508: It is well settled that Section 8(a)(5) and Section 8(d) of the Act require an employer to recognize and bargain in good faith with the bargaining representative selected by a majority of its employees. That recognition establishes a presumption of majority status which, in circumstances such as this, may be rebutted.6 The employer may lawfully refuse to bargain with the union if it rebuts the presumption by affirmatively establishing that the union has in fact lost its majority status, or shows that it has sufficient objective bases for reason- ably doubting the union's continued majority status.? To establish sufficient objective bases, however, re- quires more than the mere assertion thereof based upon the employer's subjective frame of mind.8 Furthermore, the employer must not have engaged in any conduct tending to encourage employee disaffection from the union-9 6 Cf N L.R B v. Frick Company, 423 F.2d 1327 (C A. 3, 1970), Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). 7Celanese Corporation ofAmerica, 95 NLRB 664, 672 (1951), Peoples Gas System, Inc, 214 NLRB 944 (1974). 8 Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement denied 359 F.2d 799 (C A. 7, 1966), Automated Business Systems, Inc, a Division of Litton Business Systems, Inc, 205 NLRB 532 (1973), enforcement denied 497 F.2d 262 (C.A. 6, 1974). 9 Peoples Gas Systems Inc., supra. In Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer- Members, 213 NLRB 651, the Board held that these principles are equally applicable whether the union was certified by the Board or was recognized without Board certification. In that case, the Board held that the existence of a prior contract, lawful on its face, raised a presumption that the union was the majority representative at the time the contract was executed and also raised the presumption that the union's majority continued at least through the life of the contract. The Board held that "Following the expiration of the contract . . . the presumption continues and, though rebuttable, the burden of rebutting it rests on the party who would do so. . . .. The complaint does not allege that Respondent engaged in any unfair labor practice other than the refusal to bargain. There is no contention that Respondent engaged in any other conduct tending to encourage employee disaffection from the Union. b. The alleged actual loss of majority For the reasons set forth above, the presumption of continued majority which flowed from the contract, sur- vived the change in the bargaining unit and applied to the single-employer unit. It follows that the change in the unit is not in itself proof that the Union no longer represented a majority of Respondent's employees. In June 1974 the Union had about $11,000 in its treasury and that amount was decreasing. However, the Union's liabilities did not exceed its assets, and even if they did the Union's financial condition would not indicate how many employees the Union actually represented. About that time the Union had approximately 1,000 members, of whom between 700 and 800 were paid up in their dues. Those are industrywide figures and there is no way to tell from them how many of Respondent's employ- ees were union members. Even if Respondent had estab- lished that a majority of its employees were not members of the Union, such a showing would not be the equivalent of establishing a lack of desire of those employees for union JIM KELLEY'S TAHOE NUGGET 365 representation. Employees may desire representation with- out wanting to join a union or pay dues. Orion Corporation, 210 NLRB 633 (1974), enfd. 515 F.2d 81 (C.A. 7, 1975). As the Board stated in Wald Transfer & Storage Co., 218 NLRB 592 (1975): _ It has been clearly established that a distinction exists between union membership and union support, fore- closing relying upon one as evidence of the other. Here, union membership being voluntary in this right-to-work State emphasizes that distinction. Many employees while approving of the Union may not choose to give it their financial support or participate as members .3 3 See Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 ; N.L RB. v Gulfmont Hotel Company, 362 F.2d 588, 592 (C.A. 5, 1966). The Union sought ' funds from the International to organize -employees in the industry and to build up its membership so that it would have strength in negotiating the next contract. The Union also accepted International trusteeship. Those facts, however, do not indicate whether or not -Respondent -represented a majority-of Respondent's employees. The Union wanted to obtain more members in the industry and it engaged in some internal revisions, but it would be sheer speculation to make an evaluation based on those facts as to the number of Respondent's employees the Union actually represented. Some of the bartenders at the Overland Hotel in Reno told Staff, in substance, that they were dissatisfied with the Union. There is no evidence in the record that any of the employees of Respondent ever expressed dissatisfaction with the Union to Staff. There is nothing in the LM-2 forms filed by the Union that can be read to indicate that a majority of Respondent's employees did not want representation by the Union. The above matters 'in themselves and when considered in connection with the matters set forth below relating to Respondent's claimed reasonable doubt as to the Union's majority, fall short of establishing that the Union in fact did not represent a majority of Respondent's employees. c. The alleged reasonably based doubt of the Union's majority status Respondent made its decision to question the Union's majority status on September 16, 1974. That decision was made while Respondent was still part of the multiemployer bargaining unit and still bound by the multiemployer contract. At the same time that it decided to question the Union's majority, Respondent also decided to withdraw from the Association . The withdrawal from the Association took place 2 days later on September 18, 1974, and both Respondent and the Union were notified. However, Re- spondent did not notify the Union that it' questioned the Union's majority status until October 23 , 1974. Respondent did not file a petition for an election until July 25, 1975. The Board has long held that questions relating to an employer's reasonably based doubt as to a union's contin- ued majority cannot be resolved by the application of any mechanical formulas and can only be answered "in the light of the totality of all circumstances involved in a particular case." Celanese Corporation of America, 95 NLRB 664 (1951). In the instant case Respondent has raised a number of matters on which it claims to have based a reasonable doubt as to the Union's majority. These matters must be considered in the context of the major disruption in the bargaining unit which occurred when- Respondent with- drew from the Association and the filing by Respondent of a petition for an election. Also to be considered, however, is the fact that Respondent made the decision to question the Union's majority before it withdrew from the multiemploy- er bargaining unit and the fact that Respondent did not see fit to file a petition for an election until some 10 months after it decided to question the Union's majority. At a meeting during the first part of August 1974, Respondent Secretary-Treasurer and Comptroller Cannon told General Manager Miltonberger and President Kelley that the rumor was that the Union had about 800 to 1,000 members in the entire area. Membership in the Union is one factor to be considered. People's Gas System, Inc., 214 NLRB 930 (1974); Convair Division of General Dynamics Corporation, 169 NLRB 131 (1968). -However, Cannon's remarks were not only based on rumor but were keyed to union membership in the industry as a whole rather than to membership among Respondent's employees.-In addition, as, is set forth in more detail above, a lack of employee membership cannot be equated to a lack of desire of employees for union representation. Orion Corp., supra; Wald Transfer & Storage Co., supra. Sometime after July 22, 1974, 'Cannon read articles in local newspapers which reported that ' the ' Union was reorganizing and had brought in organizers. Cannon's testimony with regard to those newspaper articles gives little support for his contention that he reasonably doubted the Union's majority status. - At a meeting on September 10 or 12, 1974, Cannon reported to the other company officials that the rumor was that- the Union was financially in trouble, and that the Union was trying to organize and obtain funds from out of state. Rumors are not objective criteria. In any event a union may have financial difficulties'-whether or not it represents a- majority, and -organizational activity, only indicates that a union desires more members than it has. At the meeting in the first part of August 1974, Cannon told-the other officials of Respondent that, to his knowl- edge, no grievances had ever been filed by the Umon.19 A union's lack of activity is one factor that must be evaluated in-determining whether a company has a reasonably based doubt of a union's majority. Taft Broadcasting, 201 NLRB 801 (1973). However, in the instant case there is no showing that the filing of grievances was warranted, and-there is no showing, that the Union failed to actively represent the employees in the past. Cannon testified that sometime between the end of July and early October 1974, he asked Supervisors McHatton and Schlegel if there had been any union activity around and McHatton told him there had been people in there. Apart from that testimony and Cannon's assertion that no grievances had been filed, there 19 Cannon also said that there never had been any correspondence as far as an election was concerned. As is set forth above, the presumption of majority can be based on either certification or voluntary recognition. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no evidence that Cannon believed that the Union had been inactive in the past or that the Union's activity during the summer of 1974 was substantially different than it had been before.20 In the first part of August 1974, Cannon spoke to Kelley and Miltonberger about the turnover rate of its employees. The rate was about 4 to I a year, with four employees being hired for every one that remained per year. Cannon said that he didn't think the Union had a controlling member- ship because of the amount of personnel turnover. At the meeting of September 16, 1974, at which the decision to question the Union's majority was made, Cannon told the other officials of Respondent that-the turnover was so great that he could not see how the, employees would bring in a vote for the Union. High--turnover is one circumstance among others that must be considered. People's Gas System, supra; Convair Division of General Dynamics, supra, Ken- tucky News, Incorporated, 165 NLRB 777 (1967). However, high employee turnover in itself is insufficient to establish a. reasonable doubt as to-a-union's majority, and the Board has repeatedly.held that new employees will be presumed to support the Union in the same ratio as those they may replace- Strange and Lindsey, Inc., etc., d/b/a, Pepsi-Cola- Dr. Pepper Bottling Co., 219 NLRB 1200 (1-975); King Radio Corporation,:-208 NLRB 57& (1974), enfd. 510 F.2d 1154 (C.A. 10,,1975):, - Cannon knew that some of the employees were dissatis-, feed with, the Union. Waitress Tucker told Cannon that-she had never belonged to- the Union- and that she couldn't see where the Union could do anything. Tucker made a.similar remark to McHatton which was passed on to Cannon. McHatton also passed on to Cannon the remark by employee Wilmurth that Wilmurth didn't see what good the Union was -going to do.21 In addition, McHatton told management officials about bits and pieces of conversa- tions he heard from other employees, the names of whom he ,could not recall, concerning the Union going broke, the Union not having enough organized people and their feeling that the Union could not do anything for -them. Schlegel-told Cannon that he overheard, casino cashier Drew say that she didn't care for union-activities and she couldn't unders-tand whatthe-Union could do for her. Drew was not within the bar and culinary employees bargaining unit. Respondent's evidence thus establishes that Cannon had reason to believe that three named employees, one of whom was not a member of the;bargaining unit in question, had expressed disapproval of the Union. In addition, he was informed that bits and pieces of overheard conversa- tions by, an undisclosed number of other employees, also indicated-dissatisfaction. There were between 35 and 52 employees in the bar and culinary employees unit. The evidence adduced by Respondent falls far short of estab- lishing that a majority of the, employees in the bargaining unit expressed displeasure with the Union. The number of employees who expressed displeasure -with the Union was insubstantial with relation to the overall employee comple- 20 McHatton testified that he couldn't "recollect" whether he` had seen Union business agents on the premises for business purposes before September 1974: Schlegel testified that when he worked at Respondent's premises between May and December 1974, he saw one union representative in September. That testimony does not establish a lack of union activity. In addition, there is no evidence that those supervisors communicated such information to Cannon. ment in the unit and Respondent -could -not base a reasonable doubt of majority on such a limited number of remarks. Cf. Strange and Lindsey Beverages, supra In United Supermarkets, Inc., 214 NLRB 958 (1974), the Board held that an employer did not have a reasonable doubt based on objective facts as to the Union's continuing majority status. The Board held: -A showing of such doubt requires more than an employer's mere assertion of it, and more than proof of the employer's subjective frame of mind. The assertion must be supported by objective considerations, that is, some substantial and reasonable grounds for believing the Union has lost its majority status. [Footnotes omitted.] After considering all of the factors set forth above, I conclude that Respondent did not have substantial. and reasonable, grounds for believing- the Union had lost its majority, status. Respondent's assertion in.that regard was based on subjective rather than objective considerations.22 In sum, I find that the- presumption of continued majority has not been rebutted either by-a showing that the Union in fact lost its majority status or by a showing that-Respon- dent had a sufficient objective basis for reasonably doubt- ing the Union's continued majority. I find that Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the complaint. ' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection' with the operations of Respondent described in section I 'above, have a close, intimate, and substantial relationship to trade, traffic, and comnierce among the several States and tend to lead'to labor disputes burdening and obstructing commerce and the free flow of commerce. - - V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist -therefrom and to take certain affirmative action designed to effectuate the policies'of the Act. Having found that Respondent violated Section 8(a)(5) and (1)-of the Act by unlawfully withdrawing recognition from the Union and by refusing to bargain with the Union as the exclusive;, representative of its employees in the aforesaid appropriate unit, ,I shall recommend that Respon- dent be ordered.to recognize and, upon request, to bargain in good faithwith the Union as the exclusive representative of its employees in that unit. 21 It is noted that Wilmurth applied for membership in the Union and paid his initiation fees and dues. 22 Cannon's remark that turnover was so great that he could not see how the employees would bring in a vote for the Union was merely one example of Respondent's subjective approach. JIM KELLEY'S TAHOE NUGGET 367 CONCLUSIONS OF` LAW 1. Respondent is an employer engaged in commerce within' the meaning of Section 2(6) and (7) of the Act, and it will effectuate-the policies of the Act for the Board to assert jurisdiction. 2. The Union is a labor organization within the mean- ing of Section 2(5),of the Act, 3. All employees employed by Respondent in its bar and culinary operations at its Crystal Bay, Nevada, operations, excluding all.-other employees, guards and supervisors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a)-of the Act. 5. By withdrawing recognition from the Union and by refusing- to bargain with the Union, Respondent has engaged in unfair labor,practices withm with meaning of Section 8(a)(5) of the Act: 6. " By the foregoing-conduct, Respondent has interfered with, restrained, and coerced employees in, the exercise of rights-guaranteed in Section 7 of the Act, thereby engaging, in unfair labor practices Within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER23, The- Respondent, Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe Nugget Crystal Bay, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and 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 following bargaining -unit: All employees employed by it in its bar and culinary operations at its Crystal Bay, Nevada, operations, excluding all other employees, guards and supervisors as defined in the Act. (b) In any like -or related manner, interfering with, restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the ' following affirmative action which' is necessary to effectuate the policies ofthe Act (a) Recognize and, upon request, bargain in good faith with Hotel-Motel-Restaurant Employees & Bartenders Union, Local- 86, Hotel - & Restaurant Employees & Bartenders ,International Union, AFL-CIO, as the exclu- sive representative of its employees, in the unit described above. (6) Post at its Crystal.Bay, Nevada, facility copies of the attached notice marked "Appendix." 24 Copies of the notice on forms provided by the Regional Director for Region 20, after being duly signed by its authorized representative, shall be posted by it 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. (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 here with. 23 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. 24 In the event 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 hereby notify you that: WE WILL NOT refuse to recognize and bargain in good faith with Hotel-Motel-Restaurant Employees & Bar- tenders Union, Local 86, Hotel & Restaurant Employ- ees &-Bartenders International Union, AFL-CIO, as bargaining unit: All employees employed by us in our bar and culinary operations, at our Crystal Bay, Nevada, operations, excluding all other employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE wu.L recognize, and, upon request, bargain in good faith with said Union as the exclusive, representa- tive of our employees in that unit. TAHOE NUGGET, INC. D/B/A JIM KELLEY'S TAHOE NUGGET