Nevada Lodge

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nevada Lodge - and Hotel-Motel-Restaurant Employ- ees & Bartenders - Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-t IO. Cases 2O-CA=9648' and 20- CA-9847 December 16, 1976 DECISION AND ORDER ployer unit survives Respondent's timely withdrawal from that unit and carves over to the newly created single-employer unit. Respondent has excepted to the Board's-asserting jurisdiction in this proceeding. It argues that the Board's assertion of jurisdiction over, the gaming industry is arbitrary and capricious when compared to the Board's refusal to assert jurisdiction over the horseracing and dogracing industries The Board has in previous cases considered and rejected arguments identical to those now raised by Respondent El Dorado Inc. d/b/a El Dorado Club, 151 NLRB 579 (1965); The Anthony Company d/b/a El Dorado Club, 220 NLRB 886 (1975). We adhere to our approach in those cases and accordingly affirm the Administrative Law Judge's decision asserting jurisdiction over Respondent. BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On March 8, 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 support of the Decision. 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, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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, Nevada Lodge, Crystal Bay, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER WALTHER, dissenting: For the reasons enunciated by me in my dissenting opinion in Tahoe Nugget, Inc., 225 NLRB No. 112, I dissent from my colleague's conclusion that the presumption of majority , status flowing from the contract in the multiemployer unit survives Respon- dent's timely withdrawal from that unit and carries over to the newly created . single-employer unit. Accordingly, in the absence of proof of majority standing, I would-dismiss the complaint. 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. Respondent has moved to strike the Charging Party's brief on the ground that the brief makes certain assertions which are misleading and unfounded in fact. We consider Respondent's motion to be without merit and hereby deny it ' The 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 credibili- ty 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. 3 For the reasons enunciated in our decision in Tahoe Nugget, Inc, 227 NLRB 357 (1 976), we agree with the Administrative Law Judge that the presumption of majority status flowing from the contract in the multiem- 227 NLRB No. 73 . DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was heard in South Lake Tahoe, California, on October 21 and 22, 1975. The charge, and the first, second, third, fourth, and fifth amended charges in Case 20-CA- 9648 were filed on October 16, November 13 and 18, and December 26, 1974, and February 27 and June 2',' 1975, respectively, by Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employ- ees'& Bartenders International Union, AFL-CIO, herein called the Union. The charge in Case 20-CA-9847 was filed by the Union on January 9, 1975. The complaint,- which issued on August 13, 1975, and was amended at the hearing, alleges that Nevada Lodge, herein called Respondent, violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. ISSUES The primary issues are as follows: 1. Whether Respondent violated Section 8(a)(1) of the Act by .announcing and granting increases in pay and employee benefits in order to induce employees to abandon their support for the Union. 2. Whether Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from and refusing to bargain with the Union as the'collective-bargaining repre- sentative of its bar and culinary employees. Subsidiary issues with regard to that allegation are: (4) Whether the'rebuttable presumption of the Union's continued majority status, which flowed from a contract in a multiemployer bargaining unit, survived Respondent's timely withdrawal from that unit and was applicable to a single-employer bargaining unit. (b) 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 bases for reason- ably doubting the Union's continued majority. A further issue is whether the Respondent has engaged in any conduct tending, to encourage employee disaffection from the Union. 3. Whether Respondent violated Section 8(a)(5) and,(]) of the Act by unilaterally- instituting a dental insurance plan without prior notification to, or consultation with, the Union. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which NEVADA LODGE 369 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 my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the operation of a restaurant, hotel, and gaming casino at Crystal Bay, Nevada. During the past calendar year Respondent's gross revenues' were in excess of $500,000, and during that-year Respondent purchased and received-goods valued in excess of $10,000 which originated outside of Nevada. 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, 200 NLRB 886 (1975), and cases cited therein. its- terms until September 4, 1957. That contract covered employees of the Tahoe Biltmore. who came under the jurisdiction of the Union. The, complaint does not allege not did the General Counsel prove that Respondent is a successor-employer. who would be bound by Tahoe Bilt- more's collective-bargaining relationship with the Union. However, Respondent joined the Association and became a party to the multiemployer bargaining agreement.thatwas executed on December 4, 1960.5 Respondent continued to be a party to the successive contracts through the one that expired on November 30, 1974. . - - On September 17, 1974, Respondent timely withdrew its membership from the Associations On October 25, 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 sought 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- 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_ avoluntary association of employers engaged in the casino, restaurant, and other industries. The Associa- tion- exists, ,i-n part, for the purpose of representing its member-employers in collective bargaining and in adminis- tering 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 The employees covered by, that contract were those in the employers' bar and culinary operations at Lake Tahoe. Respondent _ purchased -its facility, which had formerly been operated as the Tahoe Biltmore, in November 1957. The establishment was then closed for substantial recon- struction. It opened in July 1958 with all new employees. The Tahoe Biltmore had a single-employer collective- bargaining agreement with the Union that was effective by I Local 45, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, was also party to that contract. Subsequently, Local 45 merged into Local 86, the Union herein. 2 In some of those contracts new member-employers of the Association were added and other employers were deleted 3 Nevada is a right-to-work State and none of the contracts contained a union-security clause 4 The signatory employers were Barney's Club, Harvey's Resort Hotel, 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. In September 1974 Respondent announced and granted across-the-board wage increases for its cooks, waitresses, and busboys, all of whom were employed in the bargaining unit. The wage increases were announced and granted without prior notification to, or: consultation with, the Union. Respondent contends that the increases were lawful pursuant to the then outstanding collective-bargaining contract which stated in part: ARTICLE I, SECTION 6. EMPLOYER MAY INCREASE BENEFITS, PRIVILEGES AND WAGES WITHOUT PREJUDICE. The _ employer is granted the right to increase any privileges, benefits or wages provided for by this Agreement. In the event the Employer does increase any such benefits, wages or privileges he may, without prejudice, reduce said benefits, wages or, privileges at any time he may choose to do so, provided that, under no circumstances, will any, employee covered thereun- der be paid, or given less than the minimum benefits, wages and privileges provided for herein. The complaint does not allege nor , does the- General Counsel contend that the increase in wages violated Section 8(a)(5) of the Act. It is contended, however, that the increase was unlawful in that it was announced and granted in order to induce employees to abandon-their support'for the Union. After the Respondent withdrew recognition Respondent, Sahara-Tahoe, and Tahoe Nugget 5 Respondent's general manager, Carlton Konarske, testified that to his knowledge there was no contract when Respondent opened in 1958' He also testified that shortly after the opening Respondent agreed to recognize the Union, but that he did not know whether that ^ was before or after Respondent joined the Association B The General Counsel concedes in its complaint that the withdrawal was timely 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Union and after the contract expired, Respondent announced and granted a number of employee benefits, which are set forth in detail below. The General Counsel contends that all of those benefits were intended to undermine the Union in violation of Section 8(a)(1) of the Act. Also, after the expiration of the contract; Respondent instituted-dental insurance plan without notification to, or consultation with, the Union. The General Counsel alleges thafihat=action- violated Section 8(a)(5) of the Act. B. The Refusal To Bargain 1. , The facts- a. . The-testimany,-of Staff - Alfred E. Staff is the bar manager for the Overland Hotel in Reno. From early July 1973 to June -7, 1974, when the Union was placed under trusteeship, Staff was president of the Union.7 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 those events took place before the trusteeship, and the sequence of events set forth below is keyed to the June 7 trusteeship date. Otherwise, the following findings are based on Staff's 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. The Union had approximately 1,000 'members, of whom between 700 and 800 were paid up in -their dues.8 In the spring of 1974, the Union sent Business-Manager Tucker to the headquarters of the International in Cincinnati to see if he-could obtain money to help the Union organize. The executive commit- tee of the Union had discussed the need to obtain more members and to build up the membership 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 Union money to organize if the officers resigned, theUnion went into -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 the trusteeship was imposed on June 7, 1974. Al Bramlet was appointed International trustee. During the summer of 1974, Tucker told Staff that there were about 30,000 employees in the Lake Tahoe and Reno areas who were employed in categories over which the Union had jurisdiction. " T 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 Umon in the Lake Tahoe area, testified that the trusteeship was imposed on June 7, 1974. I credit Lawrence. 8 At another point in his testimony, Staff averred that there,were about 700 to 750 paid-up members and in addition there were about 150 other people who were on the membership rolls who were not paid up, but who Conversations with Tucker and Staff's review of'member- ship records led-Staff to believe that of the approximately 900 or 1,000 union members in May 1974, about 20 percent were in the Lake Tahoe area and the balance were in Reno. Staff appeared confused in his testimony with regard to the distinction between union members and employees repre- sented by the Union. His testimony read as a whole clearly indicates that when he was referring. to the approximately 900 or 1,000 employees and to the 20-percent figure, he was referring to members and not to all employees who were represented through coverage-by outstanding contracts. - In the spring of 1974, the Union-placed announcements in local newspapers stating that the Union would hold a meeting to discuss with employees what, it would ask in contract negotiations and to see if it could get more people interested in an expansion of the Union. The employees invited were those in the Lake Tahoe area. No employees showed up for the scheduled meeting and it was not held. During the time that he was president, Staff spoke to some union bartenders whom he worked with at the Overland Hotel in Reno 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," and "What's the sense of joining a Union." He never received any compliments on the performance 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 employee of Respondent expressed dissatisfaction with the Union to Staff. Staff did not communicate any of the matters related above to Respondent and there' is no indication in the record that Respondent knew, of the substance of those matters at the time that it refused to bargain with the ,Union. Apparently Respondent is relying on Staff's testimony solely for the purpose of attempting to prove that the Union, in fact, did not have majority status.9 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. b. Remarks by employees of Respondent, conversations between supervisors, and the newspaper articles In early September 1974, when Respondent was review- ing its turnover rates with a view toward questioning the were not suspended The highest number of members during Staffs term of office was about 1,200 9 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 majority status must be predicated on information it had at the time of its refusal to bargain. See also Orion Corporation, 210 NLRB 633 (1974), enfd. 515 F 2d 81 (C.A. 7, 1975) NEVADA LODGE 371 Union's majority status, Respondent employed 165 or more 10 employees -in the bar and culinary unit. The decision to question the Union's majority status was made by Respondent General Manager Carlton K. Konarske. Konarske received certain direct and indirect reports concerning the attitude of some of the employees in that unit toward the Union. In early August 1974, waitress Leona Gau toldKonarske that she had no interest in the Union and most of the girls were, not interested in_ belonging to the Union. In a second conversation a short time later, . Gau told Konarske that there was going to be a union meeting and, though she was not interested in going, she was curious. Within the next week or two, Konarske ;saw three or four employees wearing union pins. About that time Gau told Konarske that she objected- to the Union's forcing the pins on employees and she objected to the Union's trying to induce busboys to join the Union because the busboys were going to college and wouldn't be there very long. She also told Konarske that she had- no intention of supporting the Union."' In late August or, early September, pantryman Louis Ronzo told Konarske that the Company should not be concerned about the Union because the Umon got little support from . the cooks., He also told Konarske that he (Ronzo) had no-respect for the Union, that the Union didn't do'the cooks any good, and that they were satisfied and pleased with working conditions as established by management.12 - In August 1974, cocktail waitress Ellen Dungan told Konarske that he did not have to worry about the cocktail waitresses and busboys because, with one exception, none of them was concerned about the Union. She said that they didn't feel that the Union was necessary for their welfare and that she did not want to pay dues to the Union. Konarske testified that in late August 1974 he spoke to bartender Max DeCaminada, who told him that he was not interested in the Union and was not going to join. At the time of the, hearing DeCaminada was still working for Respondent. DeCaminada paid a reinstatement fee of $35 to the Union on June-27, 1974, and continued to pay his dues through January 1975. DeCammada testified that he had no conversation with_Konarske concerning the Union ,in 1974. DeCaminada, while he was testifying, impressed me as: a fully credible witness. His testimony was consistent with the, fact that he was a dues-paying member of, the Union. As between Konarske and DeCaminada I credit DeCaminada. - On September 21, 1974, Konarskereceived a report that a union representative was in the kitchen. He went to the kitchen and asked Union Representative Bob Hart what he was doing there. Hart replied that he had been speaking to baker William Schu. Konarske told Hart that Hart was not allowed in that area without permission and Hart left. Konarske then spoke to Schu in the presence of another baker, Paul Harbaugh. Schu told Konarske that the Union had no right to come back there and that he wished the Company would keep "these pests" out of there. Schu also said that he was not interested in the Union and he was getting fed up with them. Harbaugh said that he was satisfied with every condition there and he did not want the Union back there bothering his department. Harbaugh also said that there was no advantage- to belonging to the Umon.13 - Near the end of September 1974, cook Jim Curreo told Konarske that the Company did not have to worry about the cooks supporting the Union and that almost everybody was against the Union. He also 'told Konarske that they were satisfied with management's working conditions. 'In- addition to receiving reports "from- the employees mentioned above, Konarske had conversations with two supervisors concerning the Union. They were Bar Manager Dutch Connor and Hotel and Food Manager Ross Hender- son.14 In August 1974, Konarske asked Connor about the status of the employees under his' jurisdiction at, the bar. Connor replied that there was no problem among the cocktail waitresses or busboys, but that he was uncertain whether or not the bartenders would support the Union. In mid-September 1974, Konarske asked Henderson whether Henderson knew about the Union and the help downstairs. Henderson replied that he didn't think they ,had a thing to worry about and that the girls were not supporting the Union at all. Henderson reported to Konarske a conversation that he (Henderson) had with Executive Chef Dave Rightman 15 in which Right-man said that there would be no problem with the Union in relation to the girls and busboys and there would be no support for the Union from them.16 Henderson had several conversa- tions with Konarske in which he (Henderson) said it was his opinion that the Union lacked support in the culinary workers unit and there was a lack of interest in the Union. 10 At one point in his testimony Konarske testified that there were about 165 culinary workers and 26-or 27 cocktail waitresses, barboys, or barten- ders Later he indicated that there were about 165 employees in the -entire unit. 11 These findings are based on the uncontradicted testimony of Ko- narske. Union records show that Gan joined the Umon on September 9, 1974; and paid her dues for October They also show that she paid $3 50 on September 14, 1974, for a union pin. However, those facts do not warrant the discrediting of Konarske. Gau-did not testify and it may well be that Gau told Konarske what she thought Konarske wanted to hear even though she was in favor of the Union. 12 These findings are based on the credited testimony of Konarske Union records establish that Ronzo was a union member and paid his dues from 1970 until he died in October 1974 while the matters in those records shed some doubt on, Konarske's credibility, once again this may be a situation where an employee was attempting to curry favor with his employer. 13 These findings are based on the credited and uncontradicted testimony of Konarske. Neither Schu nor Harbaugh testified. Union records show that Harbaugh Joined the Umon on June 26, 1974, and paid his dues for July through October, 1974. He was suspended in December 1974. For the reasons set forth above, I do not believe that the matters set forth in the union records warrant the discrediting of Konarske 14 At all times material herein Henderson was hotel manager. Henderson testified that he was given the additional title of food manager in September 1974. Konarske testified that the additional title was given October 1, 1974. 1s Rightman had authority to hire and fire employees and he was a supervisor within the meaning of the Act. 16 These findings are based on the credited' testimony of Konarske. Henderson credibly testified that Rightman told him that there was very little 'interest shown in union activity and that a flyer had come around advertising a union meeting, which had ended up in the wastebasket. Henderson did not mention the flyer to Konarske Rightman has nothing to do with the bar and he was speaking to Henderson only about coffeeshop employees. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In early, July 1974, Konarske read an article in the Nevada State Journal or the Reno Gazette which indicated that the Union was having financial difficulties, that it was undergoing a trusteeship, and that Al Bramlet was being put in charge. Sometime in the summer of 1974, he read another article in a Reno paper concerning the Union's reorganizing. In July 1974 he heard a report on the radio' to the effect' that the Union `was having financial difficulties, that it was going to be placed into-trusteeship by the International, and that Al- Bramlet was going to be the trustee.17 c. The decision to withdraw recognition Respondent acknowledges that on or about October 25, ;1974, it refused to bargain with the Union and that it has withdrawn recognition from, the Union. Respondent con- tends that at the time, it refused to bargain it had sufficient objective bases for reasonably doubting the Union's contin- ued majority. The remarks of 'certain employees concerning their attitude toward the, Union and various conversations between supervisors relating to the employees' attitudes are discussed above. Also, as indicated above, Konarske obtained information concerning the Union's trusteeship and the financial difficulties of, the Union. In addition, Konarske knew that Nevada is a right-to-work State. He also knew that an election had never been held in the bar and culinary unit. Konarske testified that in early September 1974 he reviewed the Company's turnover rate for employees in the bar and culinary unit and came to the conclusion that the rate was about 100 percent per year. He averred that that was an educated guess and later he was of the opinion that the rate Was even higher. At the time there were 165 or more employees in the unit. He testified that the percentage of turnover was less in the bar area, which was more stable. Konarske was very vague with regard to the method he used to evaluate the turnover rate, but I credit his assertion that the turnover rate was very substantial. Konarske' credibly testified that to his knowledge there had been no grievances filed from 1958, when Respondent opened the-premises, until after October 25, 1974, when Respondent refused to bargain, and that he never received any oral grievances. He also credibly testified that he was familiar with, the collective-bargaining contracts, that he operated the -business in conformity with those contracts, and that he never consciously violated them. He' also averred that no violations were ever brought to his attention. ' - In mid-June 1974, Howard Lawrence, the Union's executive officer for the Lake Tahoe area, visited Respon- dent's premises and spoke to the employees. He was told that seven employees were scheduled to be terminated because of a company rule that prohibited relatives from working together. The following day he held a meeting with 15 or 18 employees at Carpenters Hall in Kings Beach and the proposed terminations were discussed. On June 18 or 19, 1974, he met with Executive Chef Dave Rightman at Respondent's premises and, he protested the discharges. Rightman made a phone call and then agreed to rehire five of the seven employees. During Lawrence's meeting with the employees there were complaints from employees that the 10-minute breaks and half-hour lunches were not being provided. Lawrence gave _ them a grievance form which was signed by the employees. The grievance form was sent to the Nevada Labor Commission and the matter was later resolved. The only written grievance-filed by the Union related to the discharge of two employees, Alicia Faulkner and 'Brenda Randall. That grievance was filed on November 15, 1974. Lawrence discussed the matter with Konarske. Later, Lawrence received a letter dated November 23, 1974, from Respondent Hotel Manager Henderson, advising him that Clinton Knoll of the Association would contact him with regard to a board-of adjustment hearing.18 It appears that the Union did not process any formal or informal 'grievances from- the time Respondent opened the premises in 1958 until about June 18 or 19 , when Lawrence contacted Executive Chef Dave Rightman concerning the seven discharges. However, there is no evidence that the Union abandoned the bargaining unit or failed'zo represent the unit employees during -that period. Konarske knew of the outstanding collective-bargaining contracts and was unaware of any violations. There is, ' no indication that the Union was aware of any company practices that violated the contract. Konarske credibly, testified that through the years he met several business agents at Respondent's premises. Though he also testified he did not meet them very often, they were apparently there at times. In June 1974, Lawrence was at the premises.speaking to employees and later in the month he was there protesting certain discharges to Respondent Executive Chef Rightman. On September 21, 1974, Konarske saw Union Representative Bob Hart on the premises. At all times through November 30, 1974, the collective-bargaining contract was in effect. Respondent withdrew from the Association on Septem- ber 17, 1974. Konarske testified that Respondent became a single employer rather than ' remain in the multiemployer bargaining unit because he did not believe the Union continued to represent a majority of Respondent's employ- ees and, if Respondent continued in the Association, there might be some groups that would sustain the Union's majority. He further averred that it would not be to Respondent's advantage to stay in the Association. Shortly before or after September 17, 1974, Respondent retained an attorney and, according to the testimony of Konarske, the attorney "was to use any necessary method to get- us disassociated with the Union." d. The Union's demand for negotiations, Respondent's refusal, and the petition for an election The last contract expired by its terms on November 30, 1974. By letter dated July 22, 1974, Union International Trustee Al Bramlet notified Respondent of his desire to 11 Union Executive Officer Howard Lawrence credibly testified that the International wished to retain control of that money, and that the money was Union was solvent and able to pay its bills , that the International felt that given on condition that there be a trusteeship. additional organizing efforts had to be made, that additional sums of money 18 The letter was dated November 23, 1974. It is noted that Respondent had to be put in, that the money would come from the International, that the withdrew from the Association on or about September 17, 1974. NEVADA LODGE 373 modify and change the contract and sought to arrange for collective-bargaining negotiations. On September 17, 1974, Respondent withdrew from the Association and on the same date Meta K. Fitzgerald, one of the owners of Respondent, wrote to the Union enclosing a copy of a letter it had sent to the Association and notifying the Union that Respondent terminated the collective-bargaining agree- ment as of the end of the term thereof. On September 27, 1974, Philip Bowe, the Union's attorney, wrote to Respon- dent acknowledging receipt of the September 17, 1974, letter (which notified the Union of Respondent's withdraw- al from the Association) and requesting that Respondent immediately contact Bramlet to discuss a convenient time and place for negotiations. By a letter to the Union dated October 10, 1974, Respondent, through Meta Fitzgerald, stated that Respondent had -never dealt with Bowe or Bramlet and asked about Bramlet's relation with the Union. By letter dated October 15, 19.74, Bowe explained to Respondent that Bramlet was.the International trustee and that Tucker, who had been secretary-treasurer of the Union, was now Bramlet's assistant. - By letter dated October 18, 1974, Bowe demanded that Respondent begin negotiations. By letter dated October 25, 1974, Respon- dent's attorney, Nathan Berke, reminded the Union that Respondent had timely withdrawn from the multiemployer unit and was handling its own collective bargaining. The letter went on to state: - If the ambiguity in Mr. Bowe's letter is considered 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 an uncoerced majority of its employees in an appropriate unit. If following _a validly conducted election in an appropriate unit under the aegis of the National Labor Relations Board, your Local should be selected as the bargaining agent, our client will at such time fulfill whatever legal obligation it may then have. Should you file - a petition with the Board for an election, our client will cooperate looking toward an election in accordance with the Labor-Management Relations Act, as amended and the Board's applicable rules and regulations. - The Union filed a first amended unfair labor practice charge on November 13, 1974, in which it alleged, that Respondent unlawfully refused to bargain with it. Respon- dent admits that commencing on or about October 25,1974, it has refused 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 refusal-to-bargain charge, Respondent filed a petition for an election with the Board. The petition was blocked by the unfair labor practice charge and was thereafter dismissed. 2. Analysis and conclusions with regard to the refusal to bargain 19 a. The presumption of majority As the Board held in Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852 (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 Dairy, Inc., I 19NLRB 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), In the instant case, the presumption of continued majority status is based on a contract in a multiemployer bargaining unit. The complaint allegeaa 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 must 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 (C.A. 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 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 court 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), 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 Corp. precedent. In Richard W. Kaase Co., 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 court once again refused to enforce the Board's order, holding: "the ambiguity inherent in the multi-employer election here "' Much of the legal analysis set forth below is the same as that which is contained in my decisions in Sahara-Tahoe Corporation. d/b/a Sahara-Tahoe Hotel, 229 NLRB 151 (1976), Tahoe Nugget, Inc, d/h/aJtm Kelley's Tahoe Nugget, 227 NLRB 357 (1976), and Barney's Club, Incorporated, 227 NLRB 414 (1976), cases that involved many of the same legal principles. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 contract was in a multiemploy- er bargaining unit and the succeeding contracts to which Respondent was a party were multiemployer bargaining contracts .20 However, I believe that the presumption of continued majority flowing from the multiemployer con- tracts 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 majority of an employer's employees desire representation by a union, that employer may not lawfully force representation on them by joining a multiemployer bargaining arrangement. Mohawk Business Machines Cor- poration, 116 NLRB 248 (1956); Dancker & Sellew, Inc., 140 NLRB 824 (1963), enfd. 330 F.2d 46 (C.A. 2, 1964). Thus, Respondent would have violated the Act in 1960 when it became party to the multiemployer collective-bargaining agreement if a majority 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 bargaining 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):2i Section 10(b) of the Act confines the issuance of unfair labor practice complaints to events occurring 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 of Bryan, has since held that Section 10(b) is applicable to a refusal-to-bargain defense that the bargaining relation was unlawfully estabhshed.5 3 Local Lodge No 1424, IA M, AFL-CIO [Bryan Manufacturing Co I v N L.R B, 362 U S. 411 (1960). 4Id at 429, citations omitted. 5 Barrington Plaza and Tragmew, 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. b. The attempt to rebut the presumption (1) The background law In James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507, 508 (1975), the Board summarized the existing law, holding: 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 umon^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.7 To establish sufficient objective bases, however, re- quires more than the mere assertion thereof based upon the employer's subjective frame of minds Furthermore, the employer must -not have engaged in any conduct tending to encourage employee disaffection from the union.9 s Cf N L R B v Frick Company, 423 F.2d 1327 (C.A. 3, 1970); Keller Plastics Eastern, Inc, 157 NLRB 583 (1966). 7 Celanese 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 System, Inc, supra 20 It is also noted that, unlike the instant situation, both those cases 2 1 See also Stanwood Threftmart, supra involved conflicting representational claims by rival unions NEVADA LODGE 375 In Bartenders, Hotel, Motel and Restaurant Employers Bargaining Assn. of Pocatello, supra, 215 NLRB at 652, 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 ofrebutting it rests on the party who would do so ...: . (2) 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-$I 1,000 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. Even if Staff were correct in his estimate that there were about 30,000 employees in the Lake Tahoe and Reno areas who were employed in categories over which the Union had jurisdic- tion, that figure would not give any insight into how many employees the Union in fact did represent. About that time the Union had approximately 900 or 1,000 members, of whom perhaps 20 percent were from the Lake Tahoe' area. 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 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 Company, 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. dented 398 U S. 929, N LR.B v. Gulfmont Hotel Company, 362 F.2d 588, 592 (C.A. 5, 1966) The fact that employees in the industry at the Lake did not attend a union meeting ' after announcements were placed in newspapers may indicate some apathy on the part of employees who happened to see the announcements. It does not indicate that a majority of Respondent's employ- ees no longer desired to be represented by the Union. 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 the Union 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. 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. (3) The alleged reasonably based doubt of the Union's majority status 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 also in the context of the filing by Respondent of a petition for an election. Respon- dent withdrew from the Association more than a month before it refused to bargain with the Union in the single- employer unit. Respondent contends that at the time of the withdrawal from the Association it doubted the Union's majority in the single-employer unit and disassociated itself from the Association because it thought that there might be some groups in the multiemployer unit that would sustain the - Union's majority. Respondent's general manager, Konarske, believed that it would not be to Respondent's advantage to stay in the Association. About the time of the withdrawal from the Association, Respondent's attorney, according to Konarske, "was to use any necessary method to get us disassociated from the Union." Respondent did not see fit to file a petition for an election until some 9 months after it refused to bargain with the Union. Konarske, the official who made the decision to refuse to bargain with the Union, knew that Nevada was a right-to- work State. However, no inference can be drawn from that concerning whether or not the , Union represented a majority of Respondent's employees. Cf. Wald Transfer & Storage Co., supra. Konarske also knew that no election had 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever been held among its employees. However, the pre- sumption of majority can be based on either certification or voluntary recognition and, where an employer voluntarily recognizes a union, it cannot use that fact as a basis for doubting the union's majority. Cf. Bartenders, Hotel, Motel and Restaurant Employers Bargaining Assn. of Pocatello, supra. Konarske read in the newspapers and heard on the radio that the Union was in trusteeship and that the Union had financial difficulties. He could also gather from his conver- sations with supervisors -and employees and from his observation of employees' union pins that the Union was engaging in organizational activities during the summer of 1974. The fact that the Union was undergoing internal revisions does not indicate whether or not it continued to represent a majority of Respondent's employees. 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. - Konarske knew that there was a very substantial turnover among the bar and culinary employees. At first, he estimated that turnover at or about 100 percent a year and later he' concluded that it was even higher. High turnover is one circumstance , among others, that must be considered in determining whether an employer has a reasonably based doubt as to a union's majonty status. Peoples Gas System, Inc., 214 NLRB 944 (1974); Convair Division of General Dynamics Corporation, 169 NLRB 131 (1968); Kentucky 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 a union in the same ratio as those they may replace. Strange and Lindsey Beverages, Inc., et al. d3b/a Pepsi-Cola- Dr. Pepper Bottling Co., 219 NLRB 1200 (1975); King Radio Corporation, 208 NLRB 578 (1974), enfd. 510 F.2d 1154 (C.A. 10, 1975). Konarske knew that some of the employees were dissatis- fied with the Union, Employee Gau told Konarske that she had no interest in the Union and that she had no intention of supporting the Union. Employee Ronzo told Konarske that he (Ronzo) had no respect for the Union. Employee Dungan told Konarske that she did not feel that the Union was necessary and that she did not want to pay dues to the Union. Employee Sc]iu told Konarske that he (Schu) was not interested in the Union and was getting fed up with them. Employee Harbaugh, told Konarske that he (Har- baugh) was satisfied with conditions and that there was no advantage to belonging to the Union. Employee Curren told Konarske that they were satisfied with management's working conditions. In all, there were six employees who expressed some dissatisfaction with the Union to Konarske. Four of those employees also told Konarske that other employees were dissatisfied. Gau told him, that most of the girls were not interested in belonging to the Union. Ronzo told him that the Company should not be concerned about the Union because _the Union got little support from the cooks and they were satisfied and pleased with working conditions as established by management. Dungan told him that he did not have to worry about the cocktail waitresses and barboys because, with one exception, none of them were concerned about the Union and they didn't feel the Union was necessary for their welfare. Curreo told him that the Company did not have to worry about the cooks supporting the Union and almost everybody was against the Union. Respondent contends that it had reasonable bases for doubting the Union's continued majority. It cannot suc- -cessfully support that contention through the testimony of Konarske that four employees told him that unnamed other employees were displeased with the Union: Under the circumstances, Konarske could have had no way of evaluating whether those four employees were basing their opinions as to the other unnamed employees on fact, conjecture, or rumor. Six named employees did express, some displeasure with the Union to, Konarske. Even if these expressions- of displeasure can be equated with a desire on behalf of those employees' not to be represented by the Union,22 Respon- dent has fallen far short of establishing that a majonty of the employees in the bargaining unit did not want the Union to represent them. Out of the 165 or more employees in the bar and culinary unit 6 expressed displeasure with the Union to Konarske. The number that had expressed displeasure was insubstantial in relation to the overall employee complement 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,' Cornell of California, Inc., 222 NLRB 303 (1976). Konarske also spoke to supervisors concerning the status of the Union. Bar Manager Connor told"Konarske that there was no problem among the cocktail waitresses or busboys, but he was uncertain whether or not the barten- ders would support the Union. Hotel and Food Manager Henderson told Konarske that they didn't have a thing to worry about and the girls were not supporting the Union. Henderson reported to Konarske, a remark made by Supervisor Rightman to the effect that there would be no problem with the Union in relation'to the girls and busboys and there would be no support for the Union from them. In addition, Henderson told Konarske that in his (Hender- son's) opinion the Union lacked support in the culinary workers unit and there was a lack of interest in the Union. However, the subjective evaluations of supervisors cannot be used as a basis for reasonably doubting a union's majority. As the Board held in Terrell Machine Company, 173 NLRB 1480, 1482 (1969), enfd. 427 F.2d 1088 (C.A. 1970), cert. denied 398 U.S. 929 (1970):23 To be of any significance, the evidence of dissatisfaction with a validly recognized incumbent Union must come from the employees themselves, not from the employer on their behalf. 22 See Strange and Lindsey Beverages, supra, in which the Board held that 23 In finding a violation in the Terrell case, the Board noted "that the statements by employees that they did not want to pay money to the union or Respondent could have filed a petition for an election, or asked that the that they did not want to get involved did not indicate that those employees Union do so, in order to resolve its alleged doubt,,but it took no such steps," no longer wanted to be represented by the union NEVADA LODGE 377 The Union did not process any formal or informal grievances from the time Respondent opened in 1958 until about June 18 or 19, 1974, when Union Representative Lawrence contacted Supervisor Rightman concerning cer- tain discharges. However, there is no showing that there were any contract violations calling for grievances or that the Union was inactive in representing the employees in the unit at any time. Lack of activity by a union is one factor to be considered in evaluating whether a company has a reasonable doubt of the union's majority. Taft Broadcast- ing, WDAF-TV, AM-FM, 201 NLRB 801 (1973). However, other than the lack of grievances, Respondent has not established such a lack of activity. Union agents were on the premises throughout the years and successive contracts were in effect until Respondent refused to bargain. There is' no showing that the Union failed- in its responsibility to represent the employees. In United Supermarkets, Inc., 214 NLRB 958 (1974), the Board found that an employer, did not have a reasonable doubt based on objective facts as to the union's continued 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 an 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 the factors set forth above, I conclude that Respondent did not have substantial and reasonable grounds for believing that the Union had lost its majority status. Respondent's assertion in that regard was based on subjective rather than objective considerations. 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 Respondent had a sufficient objective basis for reasonably doubting the Union's continued majority.24 In addition, as found below, Respondent violated Section 8(a)(1) of the Act by announc- ing and -granting across-the-board wage increases for its cooks, waitresses, and busboys in September 1974 in order to induce employees to abandon their support for the Union. Thus, at the time of the refusal to bargain, Respondent was engaging in conduct tending to encourage employee disaffection from the Union.25 Cf. James W. Whitfield d/b/a Cutten Supermarket, 220 NLRB 507 (1975). 1 find that Respondent refused to bargain with and withdrew recognition from the Union in violation of Section 8(a)(5) and (1) of the Act as alleged in the complaint. C. The Other Violations Alleged in the Complaint 1. The alleged independent 8(a)(1) violations The parties stipulated, and I find, that on an unknown date in September 1974 Respondent announced and granted across-the-board wage increases for its cooks, waitresses, and busboys. The contract that was in effect at that time provided in part: 26 "The Employer is granted the right to increase any privileges, benefits or wages provided for by this Agreement." The General Counsel does not contend that the increase constituted a violation of the contract or a refusal to bargain with the Union. He does contend, however, that the increase violated Section 8(a)(1) of the Act in that it was announced and granted to induce employees to abandon their support for the Union. Respon- dent did not give prior notification-to, or consult with, the Union prior to the increase. Respondent's general manager, Konarske, testified that the increase was granted on about September 17, 1974, because a competitor, the North Shore Club, had opened near Respondent, that club had attracted some of Respondent's kitchen employees and waitresses, and Respondent had to do something to counteract the competition. Konarske also testified that article I, section 6, of the contract permitted Respondent to do so. The parties stipulated, and I find, that' on an unknown date in December 1974, Respondent announced and later on or about January 1, 1975, put into effect, certain employee service recognition pay, holiday pay, and birth- day pay programs. The announcement of the recognition pay program indicated that a recognition program had previously been in effect, which paid service pay each Christmas and that the new program changed the time of payment to the employees' anniversary date and extended the program to provide for employees who worked 30 or more years. Another announcement related to holiday and birthday pay and provided that a new benefit was to be effective January 1, 1975, that granted time-and-a-half pay to employees who worked on seven named holidays. It also provided that in addition to the holiday pay all employees would receive as a birthday bonus either double-time pay for their birthday if their birthday fell on a regular workday and they had to. work, or straight time pay if their birthday fell on their normal day off and they did not work. All these benefits were granted without prior notification to, or consultation with, the Union. Respondent offered no evidence with regard to the reason for granting those benefits. The parties stipulated, and I find, that on an unknown date in January 1975 Respondent announced and granted to employees in the bargaining unit time-and-a-half pay for a sixth consecutive day worked, whereas prior to that time the employees in the unit had received straight time for having worked an additional sixth day. The increase was announced and granted without prior notification to, or consultation with, the Union. Respondent offered no evidence concerning the reason for the increase. The parties stipulated, and I find, that on an unknown date in February 1975 Respondent announced and on February 15, 1975, instituted a dental insurance plan covering its employees, including those employees in the bargaining unit. The plan was announced and instituted without prior notification to, or consultation with, the 24 Cf. N L R B v A W Thompson, Inc., 525 F 2d 870 (C.A. 5, 1976). 25 The other violations of the Act found below occurred after October 25, 1975, when Respondent claimed to doubt the Union's majority status and refused to bargain. 26 The full text of art. I, sec 6, of the contract is set forth above. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Respondent offered no evidence with regard to the reason for the institution of the plan. Whether or not the Union waived its right to bargain about increases in employee benefits during the term of the contract, Respondent was still subject to the provisions of Section 8(a)(1) of the Act., It could not lawfully grant benefits in order to induce employees to abandon their support for the Union. Respondent granted the across-the-board wage increases for its cooks, waitresses, and busboys on about September 17, 1974. It was on September 17, 1974, that Respondent withdrew from the Association. Respondent believed that it would not be to its advantage to stay in the Association and Respondent General Manager Konarske acknowledged that Respondent's attorney "was to use any necessary method to get us, disassociated from the Union." Ko- narske's own choice of language clearly establishes that he was strongly motivated to avoid continued unionization. That animus was manifested about the same time that Respondent granted the across-the-board wage increases for its cooks, waitresses, and busboys. Konarske's bare assertion that Respondent had to meet competition from another club was unconvincing. There is no evidence in the record concerning the competitor's wage structure, nor is there enough detail in Konarske's testimony with regard to Respondent's competitive position to give that testimony meaningful weight. Respondent introduced no testimony to shed light on its past practices or established procedures with regard to wage increases. In December 1974, Respondent changed and improved its service recognition pay program and provided holiday pay and birthday pay. In January 1975, Respondent improved the pay for sixth consecutive day worked. In February 1975, Respondent instituted a dental insurance plan. Respondent introduced no evidence with regard to the reasons for those changes. Nor did Respondent introduce any testimony to shed light on past practices or established procedures with regard to improvements in benefits. Under all these circumstances, I find that Respondent announced and granted the wage increases and the employ- ment benefits described above in order to induce employees to abandon their support for the Union, thereby violating Section 8(a)(1) of the Act. 2. The alleged unilateral change violation of Section 8(a)(5) of the Act The complaint also alleges that Respondent refused to bargain in violation of Section 8(a)(5) of the Act by unilaterally instituting the dental insurance plan described above. As is set forth above, article I, section 6, of the contract that expired on November 30, 1974, provided that the Employer was granted the right to increase any privileges, benefits, or wages provided for by the agreement. In addition, article II, section 4 A, of that contract provided: The Employer agrees that all employees covered by this Agreement shall be entitled to and shall receive the same insurance benefits provided for the other employ- ees of the Employer working at the establishments and/or locations referred to herein. The General -Counsel argues that article I, section 6, of the contract has no application to Respondent 's institution of a dental insurance plan because that benefit was newly created and was not an increase in "benefits ... provided for by this agreement." I believe that the General Counsel's reading of the contract is unduly restrictive . The contract provides for a number of benefits. Anything additionally granted to employees is an increase in those benefits. For example, if two benefits are provided in a contract, a third benefit, even if it is entirely new, is an increase in the benefits already provided for by the contract. As the heading- of article I, section 6, states; "Employer May Increase Benefits, Privileges and Wages Without Prejudice." I do not believe that the contract can be fairly read to mean that the Employer could freely raise wages in any amount but was narrowly restricted in the type of benefits it could add. In addition, the institution of the dental insurance plan was permitted by another section of the contract. Article II, section 4 A, which is set forth above, provides that all employees covered by the agreement shall be entitled to and receive the same insurance benefits provided for the other employees of the Employer working at the establish- ment. It was stipulated that the dental insurance plan covered Respondent's employees, including those employ- ees in the unit. Thus, it appears that nonunit employees also received the dental insurance benefits . The contract, therefore, not only allowed Respondent to grant the same insurance benefits to the unit employees but required that it be granted. However, the Union's contractual waiver of its right to bargain about the dental insurance plan was not in effect in February 1975 when the plan was announced and instituted. The contract expired on November 30, 1974, and the contractual waivers contained in article I, section 6, and article II, section 4 A, of the contract also expired at that time. As found above, Respondent unlawfully refused to bargain with the Union on October 25 , 1974. Respondent's obligation to bargain in good faith with the Union is a continuing one and was in effect after November 30, 1974, when the contract expired. Once the contract expired, Respondent had the obligation to maintain existing wages and benefits while bargaining in good faith with the Union concerning any changes . There was no contract outstand- ing and therefore 'Respondent could not rely on any contractual right to make unilateral changes . Even if the waiver provisions could be considered part of the wage and benefit package that had to remain unchanged and subject to bargaining after the expiration of the contract, Respon- dent could not use those provisions to justify a unilateral change while unlawfully refusing to recognize and bargain with the Union. In addition, that change in benefits was one of many changes that were unlawfully made to induce employees to abandon their support for the Union. In the circumstances described above, Respondent unilaterally NEVADA LODGE 379 and without .prior notification to, or consultation with, the Union instituted the dental insurance plan.27 By doing so, Respondent violated Section 8(a)(5) and (1) of the Act 28 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON,COMMERCE The activities of Respondent as 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 commerce 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 is engaged in unfair labor practi ces, 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. Nothing contained in the recommended Order will require or permit Respondent to withdraw or discontinue any wage increase or other employee benefit already granted. Having found that Respondent violated Section 8(aX5) 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, bargain in good faith with the Union as the exclusive representative of its employees in that unit. 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. By announcing and granting wage increases, by announcing and granting improved pay for service recogni- tion, holidays, birthdays, and a sixth consecutive day worked, and by instituting a dental insurance plan, all to induce employees to abandon their support for the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. 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, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the 27 The complaint does not allege nor does the General Counsel urge a finding that the other wage and benefit changes were in violation of Sec 8(a)(5) of the Act. Therefore, no findings are made in that regard 28 Cf Guerdon Industries, Inc., Armor Mobile Homes Division, 218 NLRB 658 (1975); N. L. R. V. v Benne Katz, d/b/a Williamsburg Steel Products Co, 369 U S 736 (1962); Mosher Steel Company, 220 NLRB 336 (1975). aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 6. By withdrawing recognition-from, the-Union and by refusing to bargain with the Union, -Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By unilaterally instituting a-dental insurance plan without notification to, or consultation with, the Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(aX5) of the Act. 8. By the foregoing conduct, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, thereby, engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. 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:- ORDER 29 The Respondent, Nevada Lodge, Crystal Bay, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Announcing or granting any wage increase or employee benefit to induce employees to abandon their support for the Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employ- ees & Bartenders International Union, AFL-CIO. Nothing contained in this Order will require or permit Respondent to withdraw or discontinue any wage increase or other employee benefit already granted. (b) 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. (c) Unilaterally instituting any employee benefit without bargaining in good faith with said Union. (d) 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 of the 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- 29 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. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive representative of its employees in the unit described- above. (b) Post at its Crystal Bay, Nevada, facility copies of the attached notice marked "Appendix." 30 Copies of said 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. Rea- sonable steps shall be taken by it 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 herewith. 30 In the event that the Board's Order is enforced by a Judgment of a United States Count of Appeals, the words ui 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 announce or grant any wage increase or employee benefit to induce employees to abandon their support for the Hotel-Motel Restaurant Employ- ees & Bartenders Union, Local $6, Hotel-& Restaurant Employees & Bartenders International Union, AFL- CIO. Nothing contained herein will require or permit us to withdraw or discontinue any wage increase or employee benefit already granted. 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 the exclusive representative of our employees in the following 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 unilaterally institute- any employee benefit without bargaining in good faith with said Union. 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 theAct: WE WILL recognize. and, upon request, bargain in good faith with=said Union as the exclusive representa- tive of our employees in that unit. NEVADA LODGE