Mapes Hotel, Inc.

MAPES HOTEL, INC. Mapes Hotel, Inc. and Hotel-Motel-Restaurant Em- ployees & Bartenders Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Cases 20-CA-9803, 20-CA- 9853, 20-CA-9869, 20-CA-9897, 20-CA-9905, 20-CA-10037, and 20-CA-10216 June 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 7, 1977, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 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, Mapes Hotel, Inc., Reno, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent asserts that the Board should refuse to assert jurisdiction over the gaming industry under the same rationale by which we decline to assert jurisdiction over the horseracing industry. For reasons previously expressed, we do not consider the two industries analogous. See El Dorado Inc., d/b/a El Dorado Club, 151 NLRB 579 (1965). 2 In the absence of exceptions thereto, we adopt pro forma the Administrative Law Judge's conclusion that the discharge of Anna Diane Parker did not violate Sec. 8(aX3) and (I) of the Act, and that the interrogation of Margaret Tuma by Respondent's housekeeper, stipulated to be a supervisor under the Act, did not violate Sec. 8(aXI) of the Act. In any event, we would not adopt the Administrative Law Judge's reliance on Bonnie Bourne, d/b/a Bourne Co. v. N.LR.B., 322 F.2d 47 (C.A. 2, 1964). Additionally, we find in agreement with the Administrative Law Judge that Respondent did not violate Sec. 8(aX3) and (I) of the Act by failing to hire Margaret Tuma in view of the fact that Tuma was a nonemployee applicant for a supervisory position. Pacific American Shipowners Association, 98 NLRB 582, 597-598 (1952). In this light, we find it unnecessary to resolve the dispute over whether or not Tuma had formerly been a supervisor while she held the position of assistant housekeeper. 3 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, 230 NLRB No. II 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. DECISION STATEMENT OF THE CASE JAMES T. RASBuRY, Administrative Law Judge: Based upon charges and amended charges filed in the above cases by Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, hereinafter referred to as the Union, an amended consolidated complaint issued on September 24, 1975.' This amended complaint alleges Mapes Hotel, Inc., Respondent herein, to have violated the National Labor Relations Act, as amended (herein Act), by (1) interrogating an employee from mid-November through December 1974 regarding the employee's support for the Union; (2) by implementing and discriminatorily enforcing an unlawful no-solicitation rule from November 12, 1974, in violation of Section 8(aXI) of the Act; and (3) by discharging employee Anna Parker on December 6; and (4) by laying off employee Margaret Tuma on February 3, 1975, and thereafter refusing to reemploy Tuma, because of their respective interests and activities on behalf of the Union in violation of Section 8(aX3) and (1) of the Act. Respondent's answer, filed on October 1, 1975, denied the commission of any of the alleged unfair labor practices.2 This hearing was first opened in Reno, Nevada, on July 26, 1976, Administrative Law Judge James Jenson presid- ing. Without evidence ever having been received an indefinite continuance was granted because of the unex- pected illness of counsel for the General Counsel. Pursuant to due notice, the hearing was reopened in Reno on August 10 before me and evidence taken on August 10, 11, 12, and 13, 1976. Upon the entire record and from my observations of the demeanor of the witnesses I hereby make the following: 3 Charges in the above-listed cases were filed as follows: (I) in Case 20- CA-9803 on December 16, 1974, and amended on December 17, 23, and 30. 1974, January 2 and 3, May 8, and June 2, 1975; (2) in Case 20-CA-9853 on January 10, 1975, and amended on June 16. 1975; (3) in Case 20-CA-9869 on January 15, 1975, and amended on June 16, 1975; (4) in Case 20-CA- 9897 on January 23, 1975, and amended on June 16, 1975; (5) in Case 20- CA-9905 on January 27, 1975, and amended on May 6, and June 24, 1975; (6) in Case 20-CA-10037 on March 7, 1975, and amended June 19, 1975; (7) in Case 20-CA-10216 on May 6, 1975, and amended on June 19, 1975. Based on these numerous charges which included multiple-party respon- dents in addition to the Mapes Hotel, an order consolidating cases and a consolidated complaint was issued on August 27. 1975, by Natalie P. Allen. the Regional Director for Region 20 in San Francisco. Thereafter, on September 4, 1975, counsel for each of the various named respondents served a motion to sever and requested separate trials for each of the respective respondents. On September 18, 1975, an order issued by the Regional Director for Region 20 granted the Respondent's motion for severance. As indicated in the text above, the amended consolidated complaint relating to the charges against Mapes Hotel was then issued and served on this single Respondent on September 25, 1975. 2 A number of minor amendments to the complaint were permitted at the beginning of the hearing and Respondent stipulated to certain data regarding interstate commerce and supervisor status of several employees. The real issues were joined as set forth in the text above. 3 The facts found herein are based on the record as a whole, upon my (Continued) 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION The first issue raised by the Respondent which must be resolved relates to assertion of jurisdiction by the Board. The Mapes Hotel, herein Respondent, is a corporation engaged in the operation of a large hotel that has on its premises three restaurants, three banquet rooms, two bars, and a large casino area for gambling. During the past calendar year in the course and conduct of its business operations, Respondent received gross revenues in excess of $500,000. During that same period Respondent admitted receiving goods and materials valued in excess of $10,000 which originated outside the State of Nevada. While Respondent's counsel has admitted these facts, nevertheless counsel argues logically and vigorously that assertion of jurisdiction by the Board in this instance is arbitrary and capricious and thus contrary to law. Respondent submitted several exhibits 4 showing the close scrutiny of the State of Nevada over the gaming operation and argues the similarities between gaming and the dogracing and horseracing operations wherein the Board has refused to assert jurisdiction. The Board has heretofore considered the argument that the gambling industry is no different from horseracing and has also given consideration to the extensive state regula- tions of the gaming industry by the State of Nevada in El Dorado Inc., et al., 151 NLRB 579, 583-584 (1965). In that case the Board said: The Employers urge that the Board follow its decision in Walter A. Kelley, [139 NLRB 744] where, under Section 14(c), we declined to assert jurisdiction over the horse racing industry. However, the Kelley case does not require us to forsake jurisdiction herein. In Kelley, it was our conclusion that "The Board's limited resources can be better devoted to industries and operations where labor disputes are likely to have a more substantial impact on commerce than disputes in the racing industry." In the instant matter, as we have already sought to make clear, a labor dispute in an industry which directly employs a large number of employees in the dominant industry in the State and is dependent upon substantial and closely related inter- state activity could disrupt commerce substantially. Upon consideration of all the foregoing, we conclude that it would effectuate the purposes of the Act to assert jurisdiction over the Employers whose gross annual revenue from gambling operations is in excess of $500,000. [Footnotes omitted.] The Board has more recently been presented with the issue of whether to assert its jurisdiction over the opera- tions of a jai alai fronton adjacent to the MGM Grand Hotel in Las Vegas, Nevada, in Grand Resorts, Inc., 221 observation of all of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.LR.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404 (1962). As to those witnesses testifying contrary to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in NLRB 539 (1975). In Grand Resorts the Board applied the El Dorado rationale and concluded (at 540) that: "In the circumstances of this case we see no reason why the foregoing rationale should not be applied here and therefore reject the contention that we should decline jurisdiction because of the extensive degree of regulation exercised by the State over the Employer's jai alai operation." As indicated earlier, although counsel for Respondent has presented an interesting and logical argument as to why jurisdiction should not be asserted by the Board in this case, nevertheless, because of the Board's clear and unmistakable assertion of jurisdiction over similar gaming operations, I am bound by precedent to find that 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 that it will effectuate the policies of the Act for the Board to assert jurisdiction herein.5 I1. THE LABOR ORGANIZATION INVOLVED At the hearing the Respondent's counsel stipulated to the allegation contained in paragraph IV of the complaint and I herewith find the Union to be, and at all times material herein to have been, a labor organization within the meaning of Section 2(5) of the Act. 1II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. What were the true motivating factors which caused the discharge of Anna Diane Parker? 2. What caused the termination of Margaret Tuma from her employment at Respondent's hotel and was she unlawfully denied reemployment because of her union activities? 3. Did Respondent, through the activities of the head housekeeper, Catherine Appleberg, interrogate an employ- ee in violation of Section 8(aX 1) of the Act? 4. When was Respondent's "no-solicitation rule" estab- lished and made known to the employees and does it infringe upon the employees' rights of self-organization in violation of Section 8(a)(1) of the Act? B. The Evidence 1. As related to Anna Parker Anna Diane Parker was first employed by Respondent as a hostess in the coffeeshop on February 2, 1974. At the time she was hired, Donovan was manager of the coffeeshop and remained so for a period of approximately 3 months, after which Jack Seaver was manager of the coffeeshop; after Seaver was promoted, Marchesi became the coffeeshop manager. It was during the time Marchesi and of itself incredible and unworthy of belief. All testimony and exhibits have been reviewed and weighed in light of the entire record. 4 See Resp. Exhs. 24-27. 5 See also The Anthony Company, d/b/a El Dorado Club, 220 NLRB 886 (1975); Sparks Nugget, Inc., d/b/a John Ascuaga's Nugget, JD-SF-284-76 1230 NLRB 275 (1977)1, and cases cited therein; Tahoe Nugget, Inc., 227 NLRB 357 (1976). 62 MAPES HOTEL, INC. was the coffeeshop manager that Ms. Parker was dis- charged on December 6, 1974. Ms. Parker testified that she became a member of the Bartenders and Culinary Workers Union, Local 86, in 1973 and continued as a member during the period of her employment with the Respondent. 6 On December 6, 1974, according to the testimony of Ms. Parker, she received a telephone call from Marchesi's secretary asking her (Parker) to come to Marchesi's office at the conclusion of her shift. There, in the presence of the secretary, Daphne Pettel, Marchesi told her, "Ms. Parker, I am letting you go because you are working for the Union, you are on the Union payroll, and you are soliciting for the Union." According to Ms. Parker, she protested and told Marchesi he was mistaken, but to no avail; she was discharged. There is no serious dispute between the parties or in the evidence presented to the court that Respondent has consistently maintained that Ms. Parker was discharged because of violating the Company's no-solicitation rule. Raelene Houston, a waitress formerly employed by the Respondent, testified that in October, shortly after she was employed, she engaged in a conversation about the Union with Ms. Parker. At the time she (Houston) was on duty and Ms. Parker was seated at the coffeeshop lunch counter just before assuming her working duties for the Respon- dent. Pursuant to that conversation, Houston later received a union card from Ms. Parker and, after completing the card, she returned it with part of the first month's dues to Ms. Parker, again during a period of time she (Houston) was on duty. Houston also testified that, at the request of Marchesi, she had given him a written statement generally setting forth this information to which she testified (see Resp. Exhs. 30 and 31). It was while armed with this kind of information against Ms. Parker that Marchesi proceeded to discharge Parker on December 6, 1974. It should be noted that Mary Ann Lee [sic] thought she reported this incident a week or so after it occurred - late October - but Parker was not fired until December 6. The General Counsel contends the discharge of Ms. Parker was a violation of the Act because (1) the discharge occurred pursuant to a presumptively invalid no-solicita- tion rule; (2) the discharge violated the Act because there was no showing that the solicitation incident interfered with either work or discipline; and (3) the discharge of Ms. Parker constituted discriminatory enforcement of the no- solicitation rule. If I were to accept as credible the reason advanced by the Respondent as the cause of the discharge of Ms. Parker, then it would be necessary to more deeply consider and s Because of the numerous charges that have been filed against the many casinos and restaurants in the Reno-Lake Tahoe area (see the numerous charges herein and appearing as part of the General Counsel's formal papers in Exh. l(a)-l(pp)), and the multiple complaints that have issued, it is rather common knowledge that, following the withdrawal of a number of employers from the Reno Employers Council, a period of unsettled labor relations has followed. The pnmary union involved has accused the various respondents of assuming an antiunion attitude and generally seeking to evade and escape their collective-bargaining responsibilities. The most recently expired collective-bargaining agreement which was applicable to this Respondent covered the period for 1972 75 and expired on February 15. 1975. 7 The issue regarding the validity of Respondent's "no-solicitation rule" analyze the contentions made by the General Counsel.7 However, I am convinced from all of the testimony that Marchesi seized upon this pretextual reason for discharging Ms. Parker in order to give some aura of respectability to his real reason - namely; to hire his girlfriend, Candy Kanada. While Marchesi's conduct might very well be a violation of the Federal Age Discrimination in Employment Act and certainly is not conducive to good employee relations, it is not violative of the National Labor Relations Act. I am convinced of the accuracy of this determination as to why Parker was discharged because of the following extremely revealing and candid - albeit inadvertent - testimony of Jack Seaver, the General Counsel's principal witness. At the time of the discharge Seaver was the assistant manager of the Respondent's operation. [Cross-examination of Seaver by Magor.] Q. Who is this Candy? A. Candy Kanada was a Keno writer and runner at the Mapes Hotel. Mr. Mapes felt that she was dating a Teamster official and wanted her out of the hotel, and he told Ken Sanders, "Get rid of Candy. She is a troublemaker." This is an assumption; I don't know; but Sanders told Marchesi he had to get rid of Candy. So, Marchesi put Candy to work; in Parker's place or not, it was none of my business, I wasn't concerned with it. Anyway, Candy went to work as the day hostess. JUDGE RASBURY: That occurred shortly after Ms. Parker had been discharged, however. THE WITNESS: No, sir. There was about a week there that Marchesi knew that Candy was going to have to be out of a job. You see, she worked with the casino operation, not the hotel operation. One day she pops up, Parker is gone and Candy is working. So, I went to Mapes. I said, "Look, we have got a problem. We have got that redhead down there working as a hostess, and she is going with Marchesi." Marchesi had gone to the airport, him and her, drunk, and raised heck out there. The chef and Kramer came to the office and were upset at the way Candy handled herself down there. So, Mapes ordered Marchesi to get rid of Candy, and Marchesi couldn't do it; he would not do it. So, four or five days went by and I went up and I told Mr. Mapes, "Look, she is still here. She is a troublemaker; the employees in the restaurant are shall be discussed later herein and will be found under sec. I11. B. 3. Moreover, Respondent's contention that Parker had the authority to hire and fire and thus is a supervisor under the Act is supported by numerous personnel transaction forms bearing her signature as the initiating supervisor (Resp. Exhs. 2-14). This evidence is persuasive, even though General Counsel argues Parker's role was a routine ministerial act. The testimony of Leary, the hotel manager at the time of the hearing, lends further support to Respondent's contention when he testified regarding the duties and authority of the hostesses. Had I not deemed it important and significant to identify the real reason for Parker's discharge, I would have dismissed the allegation relating to her on the basis that she was a supervisor and not an employee under the Act. 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coming up to me. Why don't you get involved in this? You are our boss." He said, "I am not your boss. You have a department head, Marchesi." I said, "Hell, he is going with her. What can you do with him? She is a little Hitler." Q. (By Mr. Magor) Is this what you told Mr. Mapes? A. Yes. Q. Tell us what else you told him. A. He called Marchesi in and he said, "I -" Q. Were you present? A. Yes, I was right there. Q. All right. Go on. A. He said, "I want her out, gone. Do you understand?" Vince's head was down like this, and he said, "Yes, sir." That was all: "Dismissed, both of you." So we walked out - Ray Brown was there also, Mr. Magor. We walked out of the office. I walked down to my office, Marchesi went in with Brown and said, "I want to see the old man again." He went back in, told Mapes he was giving him two weeks' notice, and Mapes said, "You don't have to give me two weeks' notice. Get out of here today." With that, they both left. Q. That is Marchesi and Candy? A. Yes. Q. Did Marchesi discharge Parker so he could put Candy in the coffee shop? A. I cannot truly answer that, Mr. Magor. That is what Parker told me, but I don't know that. Q. When did Parker tellyou? A. The next day. Q. When you called her up and told her to come down and meet you? A. Yes, I asked her what the problem was. Q. What did she tell you? A. She said he wanted to put his girlfriend to work. Q. This is what Parker told you? A. Yes. Q. Did she say anything else? A. She may have, Mr. Magor - concerning that? Q. Did she ask you why was she discharged? A. That is what she told me. Q. So you asked her why she was discharged, and Parker told you - A. That Marchesi wanted to put his girlfriend to work. Q. Marchesi wanted to put his girlfriend to work; is that right? A. Yes, sir - I cannot say "yes, sir" to that, Mr. Magor, but I think that was it; all right? Q. This is what Parker told you? A. Yes, I think that is what she told me. [Emphasis supplied.] The accuracy of the above-quoted testimony as revealing the true motive for Parker's discharge is supported by the I The complaint did not allege Respondent's failure to rehire Parker as a violation and at the hearing Parker testified she was not interested in reinstatement or further employment with Respondent. testimony of George Psaros who stated that he heard Vince Marchesi tell Mike Luonga - at that moment the coffeeshop manager - to find a reason to get rid of Diane Parker because he (Marchesi) wanted to bring in his own people. On the basis of this undenied and undisputed candid testimony which I have concluded reveals the real reason why Ms. Parker was discharged, I shall recommend dismissal of that allegation contained in the General Counsel's complaint at paragraph VII (a), alleging the Respondent to have discharged Ms. Parker because of her membership in or activities on behalf of the Union.8 2. As related to Margaret Tuma a. Interrogation and payroll "severance" Margaret Tuma was first employed by the Respondent as a waitress in July 1973 and worked in that capacity until she voluntarily severed in July 1974. After working at the El Dorado, another restaurant and casino in the Reno area, Tuma went to work for The Money Tree on September 24, 1974, as a waitress. (The Money Tree is a separate and distinct corporation from the Respondent herein, although the record indicates that the ownership of The Money Tree, Mapes Enterprises - which apparently has the gambling and restaurant concessions at the Reno, Nevada, airport - and the Mapes Hotel is the same for all three corporations.) In mid-November 1974, while working as a waitress at The Money Tree, Tuma was asked by Jack Seaver if she would be interested in the position as assistant housekeeper at the Mapes Hotel. The parties stipulated that on November 15, 1974, Tuma was "transferred" to the Respondent and assumed the position as assistant house- keeper. It was during this period of time - mid-November 1974 through December - that General Counsel has alleged Margaret Tuma was interrogated by her supervisor, Catherine Appleberg, concerning her union interests and activities and allegedly laid off Margaret Tuma because of her union activities. I am of the opinion that General Counsel has not proven either of these allegations. If it were necessary to do so, I would find that during the period of time Margaret Tuma was the assistant house- keeper she was a supervisor under the Act. I reach this conclusion because the evidence and testimony is undis- puted that (1) she was paid on the basis of a monthly salary; (2) Respondent paid for and carried some form of insurance on her as it did for other members of manage- ment; (3) she assumed the duties of Catherine Appleberg during her absence and directed the efforts of the maids during that period of time; and (4) on at least one occasion, she was the only person to sign a personnel transaction form relating to the termination of a maid (Resp. Exh. 20). However, regardless of her supervisory or employee status, I can find nothing within her testimony relating to the conversations she had with Catherine Appleberg that are of an interrogative nature tending to interfere with, restrain, or coerce Margaret Tuma in the exercise of rights guaranteed in Section 7 of the Act. 64 MAPES HOTEL, INC. Margaret Tuma testified that she had been a business agent for the Union in 1972, during which time she had become well known to many of the managerial employees of Respondent because she was frequently in and out of the hotel collecting dues, signing up new employees, and generally handling the employees' grievances and the usual duties associated with the administration of the labor agreement. It is hard to conceive that under such circumstances her membership, sympathies, and activities on behalf of the Union were not fully known to the Respondent at the time she assumed the position as assistant housekeeper in 1974. It is against this background that one must evaluate and consider Tuma's own testimony as to how and in what manner she was "interrogated" by Appleberg. For exam- ple, Tuma testified: Kathryn [sic] Appleberg said, "You are in culinary. You have been in culinary all your life." I said, "Yes." Then she said, "You are no doubt Union." I said, "Yes, that is right." She said, "That is all right." She had been in Union all her life. Then she said, "What would you do in the event of a strike?" I said, "Well, Kathryn, [sic you could hardly expect me to walk through a picket line. I have been a Union member for over 30 years." Another innocuous conversation between Appleberg and Tuma was elicited by the General Counsel to the effect that Appleberg had told Tuma about one of her (Tuma's) friends being in to see her. On this occasion Appleberg told Tuma that Charles Launius, a union business agent, had been in the hotel inquiring concerning the whereabouts of Tuma. On another occasion, according to Tuma, Apple- berg asked her just how she (Tuma) had benefited from the Union and, "How do you really feel about the Union?" to which Tuma stated she replied, "Well, Kathryn, [sic] I think if something gets too much power, too much money, it could lead to a form of, like, dictatorship, and then bad management will ensue. And if we have our union that they can help us." According to the testimony of Appleberg the subject of the Union was first mentioned some 2 or 3 weeks after Tuma was employed as an assistant housekeeper and it stemmed from the fact that she had on one or two occasions seen strangers in the housekeeping area of the hotel which she (Appleberg) knew to be against the hotel rules. Appleberg told Tuma if she saw any nonemployees in areas of the hotel where they were not permitted that she should report it to Appleberg immediately. Appleberg also acknowledged that on one occasion she spoke to Tuma about collecting dues during working hours because she had learned that one of the night maids was leaving her dues for "Maggie" (Tuma) to take care of. Catherine Appleberg appeared to me to be an extremely capable, hard-working, conscientious, and honest individual who sought to convey to the court exactly the relationship that 9 Tuma acknowledged having received $50 from the Union in December existed between Margaret Tuma and herself. This relation- ship is exemplified by the following portion of the transcript testimony which occurred during questioning of the witnesses by Respondent's counsel. Q. Did you have a conversation with Maggie Tuma at any time while she was in the housekeeping department in which you stated to her or asked her in words or substance, "I want to know something: What has the Union done for you? How do you feel about the Union?" A. Once I knew Maggie was Union - which she stated - I backed off completely. As a department head, I realized I must do this. Q. Did she ever state to you at any time in words and substance, the Union is good because sometimes management gets too big? A. Maggie talked of the Union, but it was in an adult, sensible way, and she gave her feelings the way she thought about it. She was very proud of the Union. Q. That is what the judge wants to know: What did she tell you her feelings were, in her words, to the best you recall. A. She felt the Union could do quite a lot for maids, and people she felt was underpaid for the type work they did, and overall the Union was a good thing to belong to. Q. Were these statements she made to you? A. Yes; this is the way Maggie felt. JUDGE RASButRY: Was she making such statements to you in response to your questions of her? THE winNEss: No, I did not ask any questions of her. Maggie made the statements to me that she was definitely Union. She said, "Of course, you know I am Union." I said, "No, Maggie, I didn't know." JUDGE RASBURY: These are statements that she volunteered to you? THE wrTNEss: Yes. In accepting Catherine Appleberg's version of the conver- sation between her and Maggie Tuma as the more accurate, it is not intended to discredit or cast dubious shadows on the integrity of Tuma. It was obvious, however, that Tuma was an excitable, concerned, and ill-at-ease witness whose testimony was oftentimes difficult to follow and understand. I believe Appleberg's testimony reflects the more accurate tenor and tone of the conversations. There are other factors that cause me to believe that these union conversations were not violative of the Act. At the time of the alleged wrongful interrogation, Respon- dent's employees were represented by the Union and a collective-bargaining agreement was in effect. Maggie Tuma had been, for a number of years, an active and vocal union adherent, well known to many of the managerial employees of Respondent and, in my opinion, not the kind of individual who would be inclined to suppress her feelings for the Union regardless of who might be within the sound of her voice.9 In Bonnie Bourne, an individual d/b/a Bourne Co. v. N.LR.B., 332 F.2d 47 (C.A. 2, 1964), 1974, 5200 from the Union in January 1975. and $150 from the Union in (Continued) 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the court stated that interrogation, itself not threatening, is not an unfair labor practice unless it meets certain fairly severe standards which include: (I) The background, i.e., is there a history of employer hostility and discrimination? (2) The nature of the information sought, i.e., did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g., was the employee called from work to the boss' office? Was there an atmosphere of "unnatural formality"? (5) Truthfulness of the reply. Applying these standards to all of the evidence intro- duced by the General Counsel to support the allegations contained in paragraph IV (a) of the complaint compels the conclusion that said allegation must be dismissed and I shall so recommend. 0 The evidence is unmistakably clear from the testimony of Margaret Tuma that she was not laid off from her job as assistant housekeeper, as alleged by the General Counsel, but rather she quit upon the advice of her own doctor. The following questions and answers appear in the transcript from the witness, Margaret Tuma, under cross-examina- tion by Respondent's counsel: Q. You say you left the job in the housekeeping department due to doctor's orders; is that correct? A. Yes. Q. And this was a chest pain? A. First it was a chest pain, very severe chest pain here. I went to the Washoe Medical and they asked me if I had any heart trouble and they examined me and gave me something for muscular spasms. I went home, I waited a couple of days, it fell on my days off and I went to my own doctor. Q. And did you get a slip from your doctor telling what your condition was? A. Yes. Q. What happened to that slip; do you know? A. No. I gave it to Mr. Seaver, I think I gave it to Fred Turner, and I don't know what happened to it. Following several pages of similar testimony this ques- tion was then propounded: JUDGE RASBURY: Is it your testimony, Ms. Tuma, that the doctor's note which you turned over to Mr. Seaver, indicated that you should no longer work in the housekeeping department because of the tensions? THE WITNESS: Yes. In addition to the above testimony, which should satisfy even the most skeptical as to why Margaret Tuma severed her relationship with the Respondent as an assistant housekeeper, the following appears in an affidavit, or February 1975. According to Tuma this money was not paid to her as a salary but as reimbursement for expenses she incurred by paying for lunches, dinners, taxicabs, etc. for employees she was encouraging to become members of the Union. io Although the standards set forth in the text up above were taken from the Second Circuit Court of Appeals' decision, they have found support in other circuits. See Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, IBT v. N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974). statement of facts, signed by Margaret Tuma in connection with her claim for unemployment compensation: I was advised by my doctor that I would be unable to continue working as assistant housekeeper and my doctor even sent a letter to my employer advising them that I should be reinstated in my usual occupation as a waitress because I could not take the pressure as assistant housekeeper. [See Resp. Exh. 21.] Respondent's Exhibit 22 is a personnel transaction form relating to "TurMA, MARGAREr L." which indicates that she was "terminated" as assistant housekeeper for the follow- ing reason: "Due to doctor's orders was forced to terminate." There is not the slightest doubt but that Margaret Tuma elected to terminate from her position as assistant house- keeper with the Respondent on or about February 2 or 3, 1975, because of her own desires as she followed the recommendation of her physician. Insofar as the complaint alleges a wrongful "layoff," I shall recommend dismissal of that allegation, because of the total absence of any proof. However, the allegation regarding the refusal to rehire Tuma as a hostess is a different matter and shall be considered herein below. b. The alleged failure to rehire as a hostess Tuma testified concerning her efforts to find reemploy- ment with Respondent following her resignation as assistant housekeeper including her conversations with Gregg Rivet, at the time personnel assistant for the Mapes Hotel, who she said expressed willingness to hire her as a waitress if and when a vacancy occurred. A portion of her testimony concerned her efforts and conversations with Mr. Black at The Money Tree with innuendoes that after some early encouragement of a probable job she was later brushed aside with the comment that they were curtailing their night shift. Tuma stated that The Money Tree did hire another waitress about this same time.1I Mrs. Tuma further testified that on or about February 8 or 9 at or about 8 p.m. she received a call from George Psaros whom she identified as the person then in charge of the coffeeshop at the Mapes Hotel who offered her a relief shift job as a hostess in the coffeeshop. According to Tuma, while it was not a waitressing job which she desired, she accepted saying that she would take anything and Psaros asked her to come in about 1:30 p.m. the following day and he would be able to tell her of her working hours. On the following day she met Psaros at the coffeeshop and was told that she was not going to go to work. In Tuma's own words taken from the transcript, this is what occurred: Q. [By the General Counsel] And where were you when you saw George [Psaros ]? " In addition to this self-serving declaration by a witness who had much to gain from the suggested conclusion, but which is not otherwise supported in the record by a single piece of factual evidence, I have tried to totally ignore it because it is directed toward an entirely different corporate entity from the Respondent herein. 66 MAPES HOTEL, INC. A. I went into the coffee shop, saw him, and sat down in the first booth on the side. Q. Will you tell us what was said, and by whom, in your conversation with George Psaros? A. I sat down, and I said, "When do I go to work?" He said, "You are not going to work." I said, "Well, George, you could have at least extended me the courtesy of calling me and telling me. It took time and money, because I had to take a cab, to get down here. What happened?" Then he said, "I am going to tell you the truth." He was a little upset. I said, "What happened?" He said, "I talked to Chef LaFontan, and Mr. Leary, and Daphne, about your coming to work. And when the chef said, 'No, she is pro-Union. I don't want her. We are having enough trouble. She is trouble.' " He said something about Bill Leary - I was very angry - and I said, "George, I don't want to get you into any trouble." He said, "They are going to tell you they have five applications, or other applications, to consider." I said, "You go get Bill Leary and Gregg Rivet." Gregg Rivet and Bill Leary were at the table. The chef walked up. The chef said something to George, he just looked at me and walked right away. I asked him why I wasn't coming to work. Mr. Leary looked right at me and said, "I have other applications to consider." I said, "You are discriminating against me." I still didn't want to say that I knew anything. Gregg says - I don't remember who was there at the time but it was Gregg and Larry I am sure in the booth. I said, "This is my state. My children were born here. I am going to stay here." It was just as if nothing, "we will consider the other applications." I said, "I am qualified and competent." They said, "We will consider the other applications." Then Gregg was very kind and he said, "You come back and see me again." I don't know if he said in a day or two but, "We will then know." Q. Will you explain to us, very briefly, what was chef LaFontan's position? A. He was the head chef. Q. And what was Mr. Leary's position? A. Mr. Leary, at that time I think, was food and beverage director.12 George Psaros, who is no longer employed by Respon- dent and appeared to testify for the General Counsel pursuant to a subpena, stated that he was first employed by Respondent in February 1974 and in February 1975 he was manager of the coffeeshop and as such supervised the busboys, waitresses, cashiers, hosts, and hostesses for the 12 Parties stipulated that at the time of the conversation above as related by Tuma that chef LaFontan was a supervisor. Respondent's counsel was unwilling to stipulate that Leary was a supervisor but provided the following information regarding Leary's employment status: He was hired May 1970 as a purchasing agent; on February 19, 1975, he was acting food and beverage director; on March 1,. 1975., he was food and beverage director; and on May 26, 1976, he was made the hotel manager. The supervisory three shifts. Psaros further testified he had the authority to hire and fire employees and when he was first promoted to coffeeshop manager he reported to Jack Seaver and later to Bill Leary. Psaros testified that he first learned from Jack Seaver that Tuma was looking for work and later had a conversation with Maggie Tuma and learned directly from her that she was anxious to return to work. The latter information was obtained shortly after Seaver left his employment with the Respondent. According to Psaros when it worked out that he finally had a hostess job opening he checked with Gregg Rivet and Bill Leary regarding offering the job to Maggie. At that time, Rivet said, "There was no reason why we could not hire her [Tuma] back, and that he himself was looking for some place to put her either at The Money Tree or the Mapes, and that it would be great because he was looking too. And it would take the burden off him." Rivet asked Psaros to check with Leary whom Psaros stated was the purchasing agent and also the acting food and beverage director at the time. Accordingly, Psaros spoke to Leary and "We discussed if Maggie could come back to work there, I explained to him who she was because he had heard the name before but he was trying to remember the face to go with it, I think. And after I reminded him that she was a maid previously and had just left the Mapes he did remember who she was, and remembered there was a maid. And he said that she was qualified, she had worked as a waitress, and there was no reason to acknowledge [sic] why she couldn't perform that job." Whereupon, according to Psaros, he called Tuma and explained to her that there was a relief hostess job available that would only work 4 days a week and after Tuma expressed her interest he asked her to come in the next day about 1:30 p.m. and he would give her the exact time of her hours and days to work. Psaros then related the following as his version of what had happened the following day regarding Tuma coming to work: A. That morning I had been looking for Bill Leary to tell him that Maggie was coming in and that I was going to give her the hours and days at that time, and I found him in the food and beverage office. And at that time there was also Daphne Pettel and Chef LaFontan was there. I started to tell him she was coming in that afternoon. Then the chef mentioned he was surprised because she was a very strong Union member, Union organizer, and he didn't feel that would be somebody Mr. Mapes would want us to hire. Daphne agreed she had heard she was a Union member. Bill Leary said, "Well, you are right. I have enough problems. I really don't want any new problems, so, let us tell her when she comes that we want to interview status of George Psaros was disputed by Respondent and will be discussed and considered hereinafter. It was further stipulated that Gregg Rivet at this time was a personnel representative in the personnel department. On March I. 1975. he was made personnel director. These people changed jobs and titles so frequently that it is difficult to follow all the changes; however, I have concluded that both Rivet and Leary were supervisors at the time of the above-related conversation. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some other people and check some other people out and not hire her right now." And we would probably bring somebody up from the maids department. I went on to say, "Well, I am not going to tell her that she doesn't have a job because I told her last night she had a job. You said yesterday it was all right. I checked with you and I checked with Greg and no one said no. Now, you tell me no. I am not going to tell her. You tell her." He said, "Fine. When she comes get ahold of me and I will tell her she doesn't have a job." Q. Did you talk with Ms. Tuma that afternoon? A. Yes, I talked with her when she came to the hotel. Q. Where did the conversation take place? A. It took place in the coffee shop in a booth behind counter two. Q. And who was present? A. Initially Maggie and myself. Q. What was said and by whom? A. The greetings, hello, how are you?, and that type thing. She asked me when she starts and I said, "You are not going to start, Maggie." She asked why and I said, "Bill Leary would like to interview some people for the job." She said, "But you told me I had the job yesterday." I said, "Yes, I did, but Bill Leary wants to check some other things out, and wants to be sure because this will be the first hostess that we will be hiring and he wants to get the person he wants for the job." She said, "You said I had it." I said, "Yes, I did." She said, "Something else happened. What is it?" I didn't want to tell her but she kept asking and asking and I finally then told her what had happened up in the office. That the chef had remarked that she was a Union organizer and because of the chefs comments Bill Leary decided he did not want to hire her for that reason, and that is why we are going to interview other applicants. And that is what Bill Leary wanted to talk to her about. Q. Then what happened? A. Well, she said, "Well, where is Bill Leary?" Immediately. I don't know if I mentioned to him earlier that she was going to come in but in any event he did come and sit down. Q. Were you present when Mr. Leary sat down? A. I was present at first during the beginning of the conversation. Q. What was said, and by whom, during the time you were at the table? A. Bill Leary then told her what I had told her earlier, what he said he was going to say in the office, that she did not have the job and that he was going to interview other people for the position. Maggie said, "You are discriminating against me. George said I had the job and now you say I don't. I don't understand what is going on. Are you discrimi- nating against me?" At that point I got up and left. Psaros further testified that after a short while he returned to the booth and overheard a portion of the conversation between Rivet and Tuma. According to Psaros he heard Rivet express some surprise that Tuma was not going to get the job and heard Rivet say that he would "talk to Bill Leary and find out exactly what happened." Bill Leary confirmed the incident in the coffeeshop relating to speaking to Maggie Tuma regarding possible employment as a hostess, but he denied that he ever said anything more to her other than "she would be considered along with other applications which they had on file." Leary specifically denied that Psaros had told him that he (Psaros) had offered the job as relief hostess to Tuma and further added that Psaros never had the authority to offer Tuma a job. Leary denied ever having knowledge that Tuma was, or had been, a union organizer and specifically denied that chef LaFontan had informed him that Tuma was a union activist and organizer who should not be employed. Leary further testified that Caroline Esser, who at that time was the assistant housekeeper, was transferred to the job of hostess. When asked why Margaret Tuma was not hired, Leary replied, "because I believed at that time that is a job for a young girl. It is the girl who greets the people, and I think it is more enticing to have a younger person." Gregg Rivet testified that he recalled having a conversa- tion in one of the booths in the coffeeshop with Margaret Tuma and George Psaros sometime around February 10, 1975, but it was his recollection that both he and Psaros were merely indicating to Tuma that they would assist her in getting a job with Respondent if and when there were openings. Rivet had no recollection of the fact that Tuma was there at the specific request of Psaros and for the purpose of telling her the hours on a job which she had accepted. Rivet further denied that he had ever heard chef LaFontan condemn Margaret Tuma as being a union activist and union organizer. Rivet's testimony was not particularly enlightening as to why Tuma was not rehired, but it did reveal his view of the employment status of Psaros when he said, "George and I, as one manager to another, were saying; 'what are we going to do about this lady?' "(Emphasis supplied.) Neither chef LaFontan nor Daphne, the secretary, who supposedly heard the discriminatory remark by chef LaFontan, is presently employed by Respondent and their whereabouts are not known. Respondent is not to be faulted for failing to produce these witnesses. Respondent argues (1) Tuma was a paid union organizer and not a bona fide employee or applicant within the intent of Section 2(3) of the Act, and thus under the court's holding in N.LR.B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (C.A. 6, 1974), is not entitled to reinstatement or backpay under the provisions of the Act; (2) Tuma was a deceitful and evasive witness who should not be believed and Respondent points to the fact that Tuma did not claim in her statement to the Nevada employment department that she was denied the relief hostess job because she was union activist or union organizer; (3) the hostess job is a supervisory position and the failure of Respondent to hire a known union sympathizer and union organizer into a 68 MAPES HOTEL, INC. supervisory position does not violate either Section 8(aX1) or (3) of the Act. The fact that Tuma received certain reimbursements for out-of-pocket expense money from the Union during the time of her employment as assistant housekeeper with the Respondent' 3 is readily distinguishable from the facts in Elias Brothers Big Boy. In the cited case the employee was denied backpay and reinstatement because she had been sent to the place of employment by the union for the specific purpose of attempting to organize the employees. In this case there is no proof that Tuma was anything other than a bona fide employee exercising her legally permissi- ble Section 7 rights. Nor am I disposed to accept Respondent's argument that, because Seaver went to work for the Union within 2 or 3 weeks following his quitting the job as assistant manager for Respondent, or the fact that Tuma was a union activist for 30 years and a known off-and-on business agent during the 70's, or the mere fact that Psaros went to Seaver seeking a job after he had been discharged by Respondent, as justification for perceiving these events as a conspiracy worthy of discrediting and rejecting all of their testimony. Psaros no longer lives in Nevada. He lives and works in the Los Angeles, California, area. His testimony regarding his supervisory role and authority as coffeeshop manager, the fact that he offered the job as hostess to Margaret Tuma, and his testimony that Leary told Psaros to advise Tuma that the final decision had not been made after he (Leary) learned that Tuma was a former union business agent and organizer are truthful and are to be fully credited. Appleberg's testimony that Leary talked to her regarding the qualifications of Caroline Esser does not conflict with the above conclusion, because there was no time fixed as to when the Leary-Appleberg conversation occurred. I have concluded it was after Leary had decided to deny Tuma the job because of her union activities.' 4 However, in spite of accepting Psaros' testimony as truthful and the concomitant rejection of Leary's denial of the testimony linking him with refusal to hire Tuma in the hostess job because she was a union organizer and troublemaker, I am forced to reject the General Counsel's contention that this conduct is violative of Section 8(aX3) and (1), because the weight of the evidence causes me to conclude that the hostess job was supervisory. This determination may seem harsh in light of the relatively low-paying job classification involved, but the statute does not differentiate between highly skilled, high-paid supervi- sors and relatively unskilled, low-paid supervisors.,5 In addition to the numerous personnel transaction forms which appear in the record reflecting that the hostess initiated "hiring" and "discharging" employees in the busboy category, the record clearly supports the conclusion 13 Although I hasten to add that the rather large sums in round dollar figures paid to Tuma for the reimbursement of expenses has caused me some mental anguish. 14 I should have noted earlier herein that Appleberg is no longer employed by Respondent and had nothing to gain by slanting her testimony in a manner designed to be helpful to Respondent. 15 Sec. 2(1 1) of the Act provides the definition of a supervisor: that the hostesses and hosts had the responsibility to direct the busboys and waitresses in their daily routine. As indicated earlier, while the exercise of this authority does not require superb craft skills or a college degree, nevertheless a certain level of mature judgment and common sense is required and is more than merely routine or clerical in nature. I have heretofore found that Tuma voluntarily, and in accordance with the request of her doctor, resigned her position as assistant housekeeper, thus she was in the position of an applicant applying for a supervisory position. I know of no instance where the Board has ever found an 8(aX3) or (1) violation because an employer has discriminatorily refused to hire an applicant (nonemploy- ee) directly for a supervisory position. Discriminatorily refusing to hire directly into a supervisory position is readily distinguishable from discriminatory conduct in refusing an applicant a rank-and-file job. I shall recom- mend dismissal of the allegation relating to the discrimina- tory refusal to employ Margaret Tuma as set forth in paragraph VII (b) of the complaint. 3. Relating to the "no-solicitation" rule Gregg Rivet testified that he caused the Respondent's no-solicitation policy to be included with or attached to the payroll checks of all employees during the week of November 12, 1974 (see Resp. Exh. 18). The Respondent's no-solicitation rule as distributed to all employees by Gregg Rivet read as follows: 1. Solicitation of any type by employees during working time is PROHIBITED. 2. Solicitation on company premises by employees after employees' shift has been completed is PROHI- BITED. 3. Distribution of literature of any type or descrip- tion by employees during working time is PROHIBIT- ED. 4. Distribution of literature of any type or discrip- tion [sic] in working areas is PROHIBITED. 5. Violation of any of the above rules will result in IMMEDIATE DISCIPLINARY ACTION, including DISCHARGE. The General Counsel's allegations regarding the no- solicitation rule as contained in paragraph VI (c) of the complaint would seem to charge Respondent with an untimely and unlawful publication of the no-solicitation rule as well as an allegation that the rule is presumptively invalid and unlawful. Rivet testified that he caused the Respondent's no- solicitation rule to be dispersed and made available to all employees by having it either attached to or included with the paychecks they received from Respondent during the The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [Emphasis supplied.l 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week of November 12 (see Resp. Exh. 18). Nothwithstand- ing the fact that a number of employees and even some supervisors may have been unaware of the Respondent's no-solicitation policy, I cannot regard that lack of knowledge as overcoming the direct testimony of Rivet. He testified that he re-published the Respondent's policy which was taken from the files and had been in existence for a number of years. Rivet's testimony regarding the "age" of the policy was corroborated by Merle Winburn, the Respondent's engineer, and Ray Brown, Respondent's controller, whose testimony regarding this point I herewith credit.16 However, the Respondent's rule appears to be invalid and a violation of Section 8(aXl) of the Act. In M Restaurants, Incorporated, d/b/a/ The Mandarin, 221 NLRB 264, the Board found identical language with that contained in the no-solicitation rule here involved (see par. 2 of Resp. Exh. 18) invalid, stating: The rule in the instant case was directed solely at employee solicitation. In fact Respondent permitted off-duty employees to wait for fellow employees to finish work, to pick up their paycheck on their days off, and to return to the premises to eat with their coworkers. Under these circumstances and particularly in view of the majority's holding in Lenkurt, it is evident that even under the standard enunciated in that case Respondent's no-access rule is presumptively invalid and unlawful. In GTE Lenkurt, Incorporated, 204 NLRB 921 (1973), the Board had found lawful a no-solicitation rule that "An employee is not to enter the plant or remain on the premises unless he is on duty or scheduled for work." The Lenkurt case, however, involved a manufacturing establish- ment where the public is not normally permitted. This case is more similar to the Mandarin case. While Respondent's employees were not encouraged to remain on the premises when they were off duty, neither were they told that they should not remain and the evidence clearly supports the conclusion that many of the employees enjoyed various aspects of Respondent's hospitality during their off-duty hours. Again in East Bay Newspapers, Inc., d/b/a Contra Costa Times, 225 NLRB 1148 (1976), the Board found the employer's no-solicitation policy which was identical to the no-solicitation here involved (see Appendix A attached to the Board's decision) invalid. The Board's opinion sought to explain the difference between the Mandarin decision and the Lenkurt decision by stating: . . . where a rule also prohibited solicitation on company premises by employees after employees' shift had been completed, there is an obvious difference in emphasis between such rules. The rule here, and in Mandarin, is directly aimed at solicitation, while the Lenkurt rule is directly aimed at employees who "enter . . . or remain on the premises" when not "on duty or scheduled for work." Consequently, the validity of the "t See Ramada Inns Incorporated, 190 NLRB 450 (1971). As earlier indicated herein, the fall of 1974 was a critical and active period of "organizing" the employees in the restaurant, hotel, and casino industry instant rule must be determined in accordance with the standard applicable to no-solicitation rules, and it is well established that employer rules which infringe upon the employees' right to solicit union support during nonwork time while on their employer's premis- es are presumptively unlawful. Also as noted by Chairman Murphy in Mandarin, the rule there, as here, applies even in situations where the employees have completed their shifts but are nevertheless still lawfully and properly on company premises pursuant to the work relationship, whereas the Lenkurt rule applied to employees who were not lawfully and properly on the company premises pursuant to the work relationship. The significance of this distinction is that, in a case like this one and Mandarin, the employees' right to self-organization is to be balanced against the employer's interest in produc- tion, safety, or discipline but in the Lenkurt situation the employees' right was balanced against the employ- er's private property rights. [Fn. omitted.] Accordingly, inasmuch as Respondent has not established that the no-solicitation rule in question was necessary for protection, safety, or discipline, it violated Section 8(aX 1) of the Act. Any proof that Respondent's very broad no-solicitation policy was necessary for protection, safety, or discipline was wholly lacking and I herewith find Respondent's action in maintaining such a rule or policy to be violative of Section 8(aX I) of the Act. 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 operation of Respondent as described in section 1, 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 has engaged in an unfair labor practice, 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. Respondent's no-solicitation policy has been found to be presumptively unlawful, and Respondent shall be required to post notices that are adequate to inform employees of their Section 7 rights. CONCLUSIONS OF LAW I. 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. operating within the Reno-Lake Tahoe, Nevada, area, because of the aforementioned withdrawal of a number of the employer-members from the Reno Employers Council. 70 MAPES HOTEL, INC. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining a no-solicitation policy which prohi- bits its employees from soliciting on company premises after their shifts have been completed, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. Contrary to the allegations of the complaint issued herein, the Respondent has not, except as specifically found above, violated 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 '7 The Respondent, Mapes Hotel, Inc., Reno, Nevada, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Maintaining any rule or regulation prohibiting its employees from soliciting on its premises after their shifts have been completed until and unless such prohibition is demonstrably necessary to maintain production, discipline, or security. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Reno, Nevada, facility copies of the attached notice marked "Appendix." 18 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. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) 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. 17 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. is In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT prohibit our employees from soliciting on our premises after their shifts have been completed unless such a prohibition is demonstrably necessary to maintain production, discipline, or security. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the National Labor Relations Act. MAPES HOTEL 71