Holiday Hotel & Casino

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carda Hotels, Inc., d/b/a Holiday Hotel & Casino and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Cases 20-CA-9797-1, 20-CA-9803-4, 20-CA-9853-4, 20-CA-9869-4, 20-CA-9897-4, and 20-CA- 9905-4 March 21, 1977 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On December 22, 1976, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,I and the Charging Party filed an answer to Respondent's exceptions, and the General Counsel refiled its brief to the Administra- tive Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Reno , Nevada, on June 29, 1976. The six charges herein, filed and amended on various dates 1 by Hotel-Motel-Restaurant Employees & Barten- ders Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO (herein called the Union), allege violations of the National Labor Rela- tions Act, as amended, by Carda Hotels, Inc., d/b/a Holiday Hotel & Casino (herein called Respondent) and other employers not involved in this hearing. To distinguish this hearing from those under the same docket numbers involving other employers, suffixes (-4 and -1) have been added to the case numbers as reflected above in the caption. The complaint on which this matter was heard issued on October 3, 1975, was amended on May 26 and June 18, 1976, and during the hearing, and alleges that Respondent violated Section 8(a)(5) and (1) of the Act. The parties were permitted at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and for Respondent. 1. ISSUES The issues are whether Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union on and after December 15, 1974; and violated Section 8(a)(1) by its no-solicitation rule. 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, Carda Hotels, Inc., d/b/a Holiday Hotel & Casino, Reno, Nevada, its officers, agents, successors, and assigns, shall take the actions set forth in the said recommended Order. MEMBER WALTHER, dissenting in part: For the reasons enunciated by me in my dissenting opinion in Tahoe Nugget, Inc., 227 NLRB No. 72 (1976), I dissent from 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 and carries over to the newly created single employer unit. Accordingly, in the absence of proof of majority standing, I would dismiss the 8(aX5) allegations of the complaint. I Respondent's request for oral argument is hereby denied , as the record and beefs adequately present the issues and positions of the parties. 228 NLRB No. 108 U. JURISDICTION Respondent operates a hotel, restaurant, bar, and casino in Reno, Nevada. It annually receives revenues exceeding $500,000, and purchases and causes to be delivered across state lines goods and materials valued in excess of $10,000. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 II. LABOR ORGANIZATION The Union is a labor organization within Section 2(5) of the Act. I The charge in Case 20-CA-9803 was riled on December 16, 1974, and amended seven times, most recently on June 2,1975. That in Case 20-CA- 9853 was filed on January 13, 1975, and amended on June 17,1975. That in Case 20--CA-9869 was filed on January 16, 1975, and amended on June 17, 1975. That in Case 20-CA-9897 was filed on January 23, 1975, and amended on June 17, 1975. That in Case 20-CA-9905 was filed on January 27, 1975, and amended on May 7 and June 25, 1975. That in Case 20-CA-9797 was filed on December 16,1974, and amended on June 26, 1975. 2 Respondent's argument is rejected that Board jurisdiction over it should not be asserted because of the extensive state regulation of the gaming industry in Nevada. Nevada Lodge, 227 NLRBNo. 73 (1976); Grand Resorts, Inc., 221 NLRB 539 (1975); El Dorado, Inc., d/b/a Eldorado Club, et al, 151 NLRB 579 (1965). HOLIDAY HOTEL & CASINO 927 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a)(5) Facts. Respondent became a member of the Reno Employers Council (herein called the Council) in 1955. As such, it was subject to a succession of multiemployer unit labor contracts between the Council and the Union 3 covering the bar and culinary employees of the Council's several employer-members, the most recent running from February 16, 1972, through February 15, 1975. The record does not disclose the number of bar and culinary employees employed by Respondent at the times now in question. By letters dated November 15, 1974, Al Bramlet, an official of the Union, informed the Council and its members, including Respondent, of the Union's desire "to change and modify for the period following February 16, 1975, the terms and conditions of our current Collective Bargaining Agreement with you." The letters requested that the employers "communicate with the undersigned for the purpose of arranging for collective bargaining negotia- tions." By letter to the Council dated December 12, 1974, copy to the Union, Respondent stated: This is to notify the Reno Employers Council ... of our desire to, and by this means do, hereby withdraw our authorization for ... the Reno Employers Council .. to represent us in connection with collective bargaining or labor relations matters. And, by letter to the Union dated December 12, Respon- dent stated in relevant part: This is to. . . notify you in accordance with the existing Reno/Sparks Collecitve Bargaining Agreement that we desire to, and do, hereby terminate said Agreement effective as of the end of the term thereof. The Union received a similar letter of the same date from the Council. By letter to Respondent dated December 13, the Union's attorney, Philip Bowe, wrote: As you know, our office represents Hotel-Motel-Res- taurant Employees and Bartenders Local 86. Although a contract reopener letter concerning your bar and restaurant agreement was mailed to you on November 15, 1974, with a request for you to contact Mr. Bramlet to arrange for negotiations, no response has been received to date from you or from your Association representative. Unless you contact Mr. Bramlet immediately, refusal to bargain charges will be filed with the National Labor Relations Board without further notice. Bowe sent similar letters of the same date to other recently withdrawn members of the Council, and to the Council itself. It is established by the pleadings, as amended at the hearing, that Respondent has refused to recognize and bargain with the Union since December 15,1974. Al Ferrari, Respondent's president and general manager, testified that Respondent's refusal to recognize the Union was based upon his belief that the Union did not represent a majority of Respondent's bar and culinary employees in late 1974. Ferrari continued that his belief derived from several factors: Ferrari cited two articles appearing in Reno papers, one on August 20, 1974, the other on August 22. The August 20 article quoted from a piece written by Bramlet for the Union's monthly magazine in which he deplored working conditions in the bar and culinary industry in the Reno area. The August 22 article, after stating that the Union was engaged in "a full-scale campaign to organize Reno and Lake Tahoe food and beverage workers," also quoted Bramlet as deploring working conditions in the area and as saying that "Las Vegas is 98 per cent unionized while Reno- Tahoe is less than 20 per cent." The August 22 article closed with this paragraph: lie [Bramlet] said, however, union strength is growing fast in the north and that the real test will come in November when the northern local contract expires at Lake Tahoe. He said the Reno contracts expire in February and that, by then, he hopes to have many more culinary workers in the area unionized. Neither article mentioned Respondent, or any other em- ployer, by name. Both mentioned that Bramlet had been appointed "international trustee" of the Union. Ferrari testified that the newspaper articles inspired him to ask Respondent's payroll clerk to ascertain the extent of employee turnover in the previous "approximately two years." The clerk reported back, according to Ferrari, that turnover "was in excess of 100 percent." Ferrari testified that, between about August 20, 1974, and early December, he had "many conversations; maybe every other day or third day," with Food Manager Bailey and Bar Manager Turner concerning the Union's status. Without recalling any specific conversation, Ferrari asserted that "Mr. Bailey stated to me on many occasions we had very few culinary and bartenders who belonged to the Union"; and that "Mr. Turner stated to me we had very few bartenders or cocktail waitresses who were members of the Union." Neither Bailey nor Turner testified. There is no evidence that any of the employees voiced displeasure with being represented by the Union. Ferrari also testified that he arrived at his belief of the Union's lack of majority in part because "we never had any unfair labor practices filed against us, or any grievances filed." The Union in fact had filed an unfair labor practice charge against Respondent on August 15, 1974, alleging that it had unlawfully denied union agents access to its premises.4 Regarding the absence of grievances, Ferrari conceded on cross-examination that Respondent at all 3 And the Union's predecessors. The Union came into being in 1968, the 4 Case 2G-CA-WI. result of a merger of two unions. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times had "lived up to" the contract and that he was "not aware of any violations" of it. Ferrari further testified that his belief was influenced by Nevada's being a right-to-work state, and "the fact we had no dues check-off system, and we did not have a closed shop arrangement." Finally, according to Ferrari, he was influenced by there never having been a representation election among Respon- dent's employees. The refusal-to-bargain aspect of this case is a mirror image of Nevada Lodge, 227 NLRB No. 73 (1976), and Tahoe Nugget, Inc., 227 NLRB No. 72 ( 1976). Issuance of this decision was delayed, pending issuance of those decisions by the Board, because of their obviously control- ling impact over the present situation. The Board held in Nevada Lodge and Tahoe Nugget, Inc. that "the presumption of majority status flowing from the contract in the multiemployer unit survives Respondent's timely withdrawal from that unit and carries over to the newly created single-employer unit." Nevada Lodge, fn. 3. The Board further held in both cases, adopting the conclusions of Judge Taplitz without comment, that the assorted grounds advanced by Respondents in those cases, and this, to overcome the presumption - the newspaper articles, employee turnover, employee nonmembership in the Union, minimal grievance activity by the Union, Nevada's being a right-to-work state, the absence of a representation election, etc. - did not accomplish that purpose. It is concluded, therefore, that Respondent's refusal to recognize and bargain with the Union after its withdrawal from multiemployer unit bargaining violated Section 8(a)(5) and (1) of the Act. B. The Alleged Independent 8(a)(1) Violation For some years past, Respondent has had a posted rule stating : "Solicitation on company premises by employees after employees' shift has been completed is prohibited." Employees are permitted to remain on the premises after shift completion for other purposes . Some are encouraged to do so by the availability of free drinks. In M Restaurants, Incorporated d/b/a The Mandarin, 221 NLRB 264 (1975), the Board stated that a rule prohibiting solicitation by off-duty employees "is presumptively invalid and unlawful" when off-duty employees are allowed on the premises for other purposes. See, also, East Bay Newspapers, Inc., d/b/a Contra Costa Times, 225 NLRB 1148 (1976). The presumption applies in this case , and Respondent has done nothing to overcome it. Respondent's rule banning post-shift solicitation on the premises therefore violates Section 8(a)(l). CONCLUSIONS OF LAW 1. Carda Hotels, Inc., d/b/a Holiday Hotel & Casino is an employer engaged in and affecting commerce within the meaning of Section 2(2),(6), and (7) of the Act. S All outstanding motions inconsistent with this recommended Order hereby are denied. 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 2. Hotel-Motel-Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent Carda Hotels, Inc., d/b/a Holiday Hotel & Casino in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the above-named labor organization has been the duly designated and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 15, 1974, and at all times material thereafter, to bargain collectively and to recognize the Union as the exclusive bargaining representa- tive of Respondent's employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain collectively and to recognize the Union, and by maintaining a rule which prohibits employee solicitation on company premises after shift completion, Respondent has interfered with, re- strained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Carda Hotels, Inc., d/b/a Holiday Hotel & Casino, Reno, Nevada, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and to bargain collectively in good faith concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment with Hotel-Motel-Restaurant Employees and Barten- ders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by Carda Hotels, Inc., d/b/a Holiday Hotel & Casino in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other employees, guards and supervisors as defined in the Act. 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. HOLIDAY HOTEL & CASINO 929 (b) Maintaining any rule prohibiting its employees from soliciting on company premises after their shifts have been completed unless such prohibition is demonstrably neces- sary to maintain production, discipline, or security. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Reno, Nevada, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 20, after, being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Hotel-Motel-Restau- rant Employees and Bartenders Union , Local 86, Hotel and Restaurant Employees and Bartenders Internation- al Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT prohibit our employees from soliciting on company premises after their shifts have been completed unless such a prohibition is demonstrably necessary to maintain production, discipline, or securi- ty. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by Carda Hotels, Inc., d/b/a Holiday Hotel & Casino in its bar and culinary operations at its Reno, Nevada, place of business, excluding all other employees, guards and supervisors as defined in the Act. CARDA HOTELS, INC., D/B/A HOLIDAY HOTEL & CASINO