Hacienda Hotel and Casino

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hacienda Hotel and Casino and Willow P. Bowe. Cases 31-CA-11264 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On July 21, 1982, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hacienda Hotel and Casino, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent's request for oral argument is hereby denied as, in our opinion, the record in this case, including the exceptions and brief, ade- quately presents the issues. DECISION STATEMENT OF THE CASE GERAL D A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in Las Vegas, Nevada, on March 16, 1982. The charges in Cases 31-CA-10521, 31-CA-10690, and 31-CA-11264 were filed on October 9 and Decem- ber 8, 1980, and June 22, 1982, respectively, by Willow P. Bower, an individual. On August 11, 1981, the Regional Director for Region 31 of the National Labor Relations Board (herein called the Board) issued an order consolidating cases, second consolidated amended complaint and notice of hearing, alleging a violation by Hacienda Hotel and Casino (herein called Respondent) of Section 8(a)(l) and (3) of 264 NLRB No. 88 the National Labor Relations Act, as amended (herein called the Act). The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Counsel for the General Counsel argued the matter orally at the close of the hearing, and counsel for Respondent has filed a brief. Upon the entire record, and based upon my observa- tion of the witnesses and consideration of the argument advanced and brief submitted, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Nevada corporation with an office and principal place of business located in Las Vegas, Nevada, where it is engaged in the operation of a hotel and gaming casino. In the course and conduct of its busi- ness operations, Respondent annually purchases and re- ceives goods or services valued in excess of $2,000 di- rectly from suppliers located outside the State of Nevada, and annually derives gross revenues in excess of $500,000. It is admitted, and I find, that Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Culinary Workers Union, Local 226 (herein called the Union) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue raised by the pleadings is whether Respondent discharged and otherwise discriminated against employee Willow P. Bowe on various occasions in 1980 as a result of her union activity and/or because she filed charges or gave testimony under the Act, in violation of Section 8(a)(1), (3), and (4) of the Act. 1. Background On January 13, 1981, the Board issued its decision in Hacienda Hotel and Casino, 254 NLRB 56 (1981). The Board's decision was enforced by the Ninth Circuit in a memorandum opinion issues on March 29, 1982 (petition for rehearing denied on June 8). The Board found, inter alia, that Respondent herein had unlawfully terminated and otherwise discriminated against Willow Bowe, the Charging Party herein, because of her union activity. The events involved in the instant proceeding began on May 24, 1980, during the pendency of and about 3 months following the unfair labor practice hearing in the aforementioned matter. 656 HACIENDA HOTEL AND CASINO 2. The May 24, 1980, incident Bowe has been a cocktail waitress for Respondent since May 24, 1974. On the evening of May 24, 1980, as she was clocking out, Bowe was handed a warning notice by the timekeeper. The notice states, inter alia, "Poor job habits-Employee was observed take [sic] a break in an unauthorized area-lounge." It was signed by Tom Gross, assistant food and beverage manager. Gross testified that, when he came to work on the afternoon of May 24, he observed Bowe sitting at a table located in the center area of the Island Bar Lounge, a cocktail lounge within Respondent's facility, with her feet propped on a chair, talking to a gentleman who was wearing a large hat. According to Gross, the bar was open, tended by a bartender named Michelle Boudraie. There were no customers in the bar. Gross testified that the lounge was not an authorized employee break area at any time, absent permission. Occasionally, according to Gross, if permission is given to take a break in the lounge in order to enable the cocktail waitresses to watch a sporting event on television while the bar is open, the waitresses must sit behind a curtained area, away from the customers. Gross said that other employ- ees have requested permission to sit in the lounge, and named several employees including Cynthia Norman and Charlene Knight. He further testified that Bowe's con- duct on the occasion in question violated three specific written rules which had been posted; namely, beverage department rules and regulations, rule numbers 191 and 282 effective April 11, 1980, and department rules- cocktail waitress, rules number 11II, effective February 5, 1979. 3 Gross testified that he issued the warning slip to Bowe before checking to determine whether Bowe had re- ceived permission from another supervisor to take her break in the lounge. Bowe's testimony could hardly be more diverse. Thus, Bowe testified that, during her break on May 24, she sat alone at the same table by the window that employee Cynthia Norman regularly occupies during her breaks, that she was not talking to anyone as no one else was present, that she did not have her feet propped on an- other chair, and that the bar was not open. Moreover, she did not request permission to take her break in the lounge area, as she was unaware of any rule regarding this. Charlene Knight, a current employee, testified that sometime in 1980 it was brought to her attention by a posted memo that the lounge was not an authorized area for taking breaks, absent permission to do so. Thereafter she obtained permission to take breaks in the lounge area, testifying that during the football season she some- times wanted to watch the game on TV in the lounge, and at other times she chose to go to the lounge during Breaks are to be taken in an authorized area only Waitresses are to remain on their station at all times unless filling an order at the service bar. 2 All bar employees will keep their feet off all furniture and bar equip- ment. Close all refngerator doors, storeroom doors, etc. with your hands. s Avoid personal friends contacting you while on duty except for emergencies. Interruptions may interfere with your performance and that is not fair to management. her breaks in order to sit and relax and read the newspa- per. Employee Mary Martin testified that Cynthia Norman has taken breaks in the lounge area several times a week for the last several years, and further testified that the bar does not open until 8 p.m., except perhaps on Satur- day. 3. The May 28, 1980, discharge On the morning of May 28, 1980, at or about 10:20 a.m., Bowe phoned William Kelly, food and beverage di- rector, and told him that she would be late to work ex- plaining the nature of an emergency situation she needed to take care of. Kelly asked how late she would be, and Bowe answered that she did not know and would get there as soon as she could. She was scheduled to work from II a.m. to 7 p.m. Kelly agreed, but instructed her to call him before she came in. Bowe testified that she attempted to call about noon, but the hotel operator said that Kelly was not in the building. She called back an hour later and was again told by the operator that Kelly was not in the building and would not return until about 3 p.m. She called a third time at 3 p.m. and after being advised by the opera- tor that Kelly was not in she asked that her call be trans- ferred to the Island Bar phone. Thereupon, Bowe spoke with Charlene Knight, advised her that she was unable to contact Kelly, and asked Knight to give him a mes- sage. Knight said she did not think she should be the one to relay a message and advised Bowe of certain events that had transpired. Thus, Knight told Bowe that Gross had come by the bar asking whether Bowe had come to work yet. Knight said no, and Gross said, "Oh, well, what I can do, no-show/no-call, I got to terminate her." Knight asked whether Bowe wanted to talk to Gross, and Bowe said yes. Thereupon, she was connected not with Gross, but with Kelly who indeed was in the build- ing. Bowe asked Kelly whether she could come to work, and Kelly said it was obvious that she was still extremely upset as a result of the family crises that morning. She agreed that she was. He said, according to Bowe, "Well, in your emotional state you would be no good to the hotel or to yourself. I would prefer that you stayed home today, get your personal business in order, and punch in in the morning." The next day, when Bowe re- ported for work, the timekeeper presented her with a termination slip. Bowe testified that at a grievance meeting on June 17, 1980, the union representative questioned Kelly, who maintained that Bowe should have been at work by 1:30 p.m. on May 28, and asked Kelly how he had arrived at the 1:30 p.m. deadline for Bowe to be at work. Kelly re- sponded that he deemed that to be a reasonable length of time for Bowe to attend to her emergency situation, but agreed that Bowe had not committed herself to any par- ticular deadline. Kelly, at the hearing herein, readily volunteered that his recollection of the conversation with Bowe on the morning of May 28, 1980, was "confused." He testified that he could not "verify" that he told Bowe she would 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD need to be in by 1:30, and further testified that "I can't recall it exactly, except that it seemed to me that I was going to give her approximately two-and-a-half to three hours to accomplish something." He does recall, howev- er, telling Bowe to call in first before she came in, be- cause he "wanted to give her the benefit of the doubt," permitting her to call in if necessary and advise him that she would not be at work until perhaps 15 or 20 minutes beyond the deadline which Kelly had established. Imme- diately after the phone call, Kelly decided to bring in a person to cover Bowe's shift. Gross testified that Kelly had previously made a luncheon appointment with his wife, and had asked Gross to fill in while he was gone. However, the lunch- eon appointment was canceled because of the phone call from Bowe, so that both Gross and Kelly could remain at the hotel to handle the situation. Gross explains what transpired thereafter: It was around 2:00, 2:15. We were discussing it, and we said, "We have to be sure that everything is the way it is supposed to be with this termination be- cause it has to be correct. We don't-it is a no call/no show, and it has to be just the way it is sup- posed to be. So, Bill [Kelly] and I checked with the time office. He checked with the telephone operators, I remember that. And we were both actually-his office was upstairs and mine was down, and we were both going different directions, but we were in constant contact to be sure that neither one of us had received a phone call from Willow or anything at that time. Kelly testified that, at or about 1:40 p.m., he contacted the hotel operators to find out whether Bowe had called. This was not a normal practice, but Kelly readily ad- mitted that he was very cautious in his dealings with Bowe. Upon determining that Bowe had not called, he immediately wrote out her termination slip and took it down to the time office. Kelly testified: Then, knowing the background of Willow and the challenges that we had prior, I then called the-be- cause I realized this was a very crucial moment be- cause if I was going to take the responsibility of ter- minating Willow, I had to-in my own mind-had to be absolutely 100 percent positive that it was a no called/no show factor, because I didn't want to be sitting here where I am today, quite frankly. Kelly further testified that he received Bowe's call at 3 p.m., and that "she was very upset." Indeed, according to Kelly, Bowe was so upset that, after she told him what had transpired, he did not want to cause her any more pain by advising her that she had been terminated. Therefore, he told her not to worry about coming to work for the remainder of her shift, and said he would talk to her the next day. He also told her Becky Chan- dler had been called in to substitute for Bowe. At the aforementioned grievance meeting on June 17, Respondent required proof of Bowe's claim that she had an emergency situation. The matter was not resolved since Kelly would not accept verification of her story by a witness, Lonnie Pittman, whom Respondent had previ- ously terminated for reasons not material herein. Follow- ing the grievance meeting, Kelly wrote a letter to Bowe, dated July 1, stating that "if you can immediately bring in sufficient verification to show you had just cause for your absence, I will again review the situation and your discharge status. I invite you to come forward with such information at once." Apparently, the Union acquiesced in this disposition of the matter. Thereafter, it appears that Bowe attempted to present Respondent with addi- tional verification, but Respondent apparently deemed it to be insufficient. 4. Bowe's reinstatement and subsequent events Bowe filed a charge with the Board on October 9, 1980, alleging that her May 24 warning and May 28 dis- charge were unlawful. On or about November 3, 1980, Bowe left for Nassau to visit her exhusband and attempt to find work, as her financial circumstances were such that she could no longer live in Las Vegas. Respondent was advised that Bowe had moved to Nassau, and short- ly thereafter Bowe received a telegram from Respondent offering her unconditional reinstatement to her former position with full seniority and at her former rate of pay. She immediately accepted the offer and returned to work on November 29, 1980. Bowe testified that on the evening of November 29, 1980, her first day back at work, she attended the Black and White Ball which was held at Respondent's hotel. Other employees were also present. On the evening of November 30, Bowe was handed an employee warning notice dated November 29, signed by Gross, stating, "Employee observed in the hotel after her normal work hours without permission from company management. Hotel Rule No. 31." Gross gave another employee, As- cencion Brown, a warning for the same reason. As a result of a grievance meeting involving the afore- mentioned warnings issued by Gross, the notices were voided as Gross had apparently not realized that employ- ees had been given permission by higher management of- ficials to attend the Black and White Ball. On December 1, 1980, there was a layoff of various employees for economic reasons and, as a result, Bowe was transferred to the graveyard shift. Ted Tedesco, business agent for the Union, testified that he was aware of the layoff and the shift changes that were made, and that he frequently monitored the situation to ensure that whatever action Gross took in this regard was in accord- ance with the terms of the collective-bargaining agree- ment between the parties. Tedesco said that, although there were a number of employees who did not approve, the Union believed that the shift changes Gross was making, including Bowe's transfer to the graveyard shift, were not contrary to the provision of the contract. Bowe testified that, while on graveyard shift she was given the "outside" area to service, as specifically noted on her posted work schedule, while a coworker was as- signed the "pit." The pit area includes all 21 and crap tables. The outside area encompasses the slot machines, keno, poker, and the dining rooms, and is a much less lu- 658 HACIENDA HOTEL AND CASINO crative area to service in terms of tips, particularly on the graveyard shift. To Bowe's knowledge, there had never before been specific assignments of either the pit or the outside area. Rather, both cocktail waitresses on the graveyard shift would work the pit, and take turns servicing customers in the outside area. Charlene Knight corroborated this testimony. Gross agreed that cocktail waitresses servicing the pit would probably received more income from tips. Al- though he testified that as far as he was concerned there was always an "outside" position, he further stated that the assignment schedule did not distinguish between pit and outside areas, and that if the waitresses "split each other up or something, that is their business and I don't have nothing to do with that. The two girls work to- gether on graveyard." 5. Bowe's December 24, 1980, termination On December 23, 1980, Bowe became ill on the grave- yard shift. At 6 a.m. the shift manager, Al Morenda, told her to call Gross at home and advise him that he should get a replacement for Bowe, as Morenda was not author- ized to do so. Bowe called Gross at home. She explained that she was very ill and could not complete her shift. Gross said, "Yeah, all right," and hung up. Gross ap- peared at the hotel about 2 hours later, but detoured around Bowe's area. About 15 minites later Bowe con- tacted Gross by phone at the hotel and asked if he was going to come down to sign her "early out" slip which would enable her to leave the premises before the end of her shift. Gross "screamed" yes, and hung up. About 15 minutes later, Bowe approached Gross in the casino and handed him the early out slip for his signa- ture. Gross said. "I suppose I will get a call like this again at 5:00 in the morning." Bowe said that would not be the case as she was too ill to come to work for the graveyard shift that night and advised him that she would not return to work until December 27, as she was not scheduled to work on December 25 or 26. Gross directed her to bring a doctor's slip upon her return and she replied "No sir. I am entitled to five days off, without a doctor's excuse," and added that he could give her Christmas present to Charlene Knight. Gross abruptly walked away, and Bowe left the premises. Bowe did not come in to work on December 27, but attempted to phone Gross to advise him that she had not yet recovered from her illness. However, Gross would neither accept nor return her call. Gross testified that he was aware that Bowe had called on December 27 and 28, but stated that he refused to accept the calls as he would not speak to Bowe "one on one" anymore. Bowe testified that, on December 30, she tricked Gross to the phone by using a fictitous name, and asked him what her work schedule was. Gross advised her that she had been terminated for "no show/no call" on De- cember 24. She said, "Mr. Gross, you know that is not true," and Gross hung up. Gross testified that, because of his reluctance to speak with Bowe, he did not have any conversation with her on the morning of December 23. Rather, he waited until her replacement came to work and then, without any discussion, signed the early out slip which Bowe handed him, anticipating that Bowe would be at work that night. Gross specifically denied that Bowe stated she was too ill to work her shift that night, or would not return until after her days off. Thereafter, in the early morning of December 24, he received a call at home from the cock- tail waitress who was on duty, advising that no one was there to relieve her. After determining that Bowe had not called in, he discharged her. B. Analysis and Conclusions In Hacienda Hotel and Casino, supra, 254 NLRB at 62, it was found that Respondent's higher management har- bored "extreme hostility" toward Bowe, and exhibited a "predisposition" to discharge her because of her repeated successful use of the Union's grievance procedure. Re- spondent's discrimination toward Bowe took the form, inter alia, of written warnings, a change in her work as- signment, and even the discharge of two other employ- ees in order to "lend verisimilitude to Bowe's discharge." Hacienda Hotel and Casino, supra at 56, fn. 2. The events involved in the instance case, commencing 3 months after the close of the hearing in the aforemen- tioned proceeding, appear to be but the succeeding chap- ters of a continuing saga of discrimination toward Bowe, abundantly demonstrating not only a predisposition, but also a preoccupation to rid itself of her. The warning notice issue to Bowe on May 24 was ob- viously discriminatorily motivated. I credit Bowe's testi- mony and find that she was quietly sitting in an area of the Island Bar Lounge which is customarily used by other cocktail waitresses for their breaks. I further find, as Bowe testified, that the bar was not open for business and that she was not talking with anyone while on her break. Clearly and admittedly, Respondent was antago- nistic toward Bowe to the point of paranoia, and had she been sitting in the bar area while it was open for busi- ness, talking to someone without permission, there is no doubt that Gross would have included such rule infrac- tions in the warning slip he issued. Rather, the warning slip states only that Bowe was seen taking a break in an unauthorized area. I find that Gross' testimony about the bar being open and about Bowe being with a gentleman wearing a large white hat were fabrications utilized to bolster what was otherwise clearly a feeble excuse for is- suing the warning. The record is clear that cocktail waitresses use the area in question for breaks. While it appears that permis- sion to so use the lounge is required, it is clear that such permission is perfunctorily granted. Nevertheless, Gross admittedly issued the warning before even checking to ascertain whether Bowe had received such permission from other supervision. Had he been genuinely interested in enforcing the rules in a nondiscriminatory manner, the reasonable course to follow would have been to ask Bowe whether she had received permission and, if not, to request that she obtain it prior to taking her break in the lounge. I thus find that Gross' overreaction to, at the most, a minor and innocuous breach of the rules was discrimina- torily motivated in violation of the Act, Bowe's union and/or concerted protected activity having been abun- 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dantly established as a result of the proceedings in the prior case. The March 28 discharge of Bowe was engineered by Kelly and Gross. While there were varying stories about the precise nature of Bowe's emergency situation which precluded her from coming to work on time, Kelly freely admitted that during his several conversations with Bowe she was extremely upset, and that he believed her request to be late for work was legitimate. More- over, Kelly's testimony, in effect, corroborated that of Bowe who told Kelly, I find, that she did not know when she would be in. Thereafter, Kelly and Gross set an arbitrary time of 1:30 p.m. for Bowe to appear at work and effectuated her discharge at 1:40 p.m. I credit Bowe and find that she did attempt to phone at noon and again at 1 p.m. but was told by the operator that Kelly was not in.4 Even assuming that Bowe did not phone in at noon and again at I p.m. as she testified, it is clear that she was not required to phone in by any time certain, as her prior conversation with Kelly, I find, left the matter very indefinite. Moreover, following her initial conversa- tion with Kelly, a replacement had been called in to work Bowe's shift. Obviously, Kelly told Bowe to call in after her emergency situation was resolved in order to advise her whether to come in for the remainder of the shift in the event he was unable to get a substitute. No other reason appears plausible. Indeed, as Bowe's uncon- tradicted testimony shows, once a substitute is called in the substitute must work the entire shift. The fact that Kelly obtained a substitute for Bowe is strong evidence that he did not expect Bowe to come to work that day. I conclude from the foregoing that the May 28 dis- charge of Bowe was discriminatorily motivated regard- less of the precise nature of Bowe's emergency situation, there being no justifiable reason for discharging Bowe under the circumstances found herein. I am mindful of the fact that at the grievance meeting on June 17, 1980, Respondent apparently agreed to "review the situation and [Bowe's] discharge status," as embodied in Kelly's letter to Bowe on July 1, 1980, pro- vided Bowe proffer verification of "just cause" for her failure to report to work. However, under the circum- stances, it makes no difference whether such verification exists, as Bowe was allegedly discharged because she did not call in or appear at work by 1:30 p.m., rather than because of any doubt at the time about the legitimacy of her emergency situation.6 Nor is there any contention that the matter should be deferred to the contractual grievance machinery. See Spielberg Manufacturing Com- pany, 112 NLRB 1080 (1955). Bowe accepted Respondent's reinstatement offer, obvi- ously much to the chagrin of Respondent, and returned to work on November 29, 1980. That very evening, Bowe and another employee were issued similar warning notices. As the warnings were rescinded following a grievance meeting, I find it unnecessary to determine 4 Respondent did not proffer the testimony of any hotel operators to corroborate the testimony of Kelly and Gross that Bowe did not call in. 5 It is indeed highly improbable that Bowe would have fabricated an emergency situation in order to be excused from her shift, as she could have achieved the same result by simply calling in ill. whether Bowe's warning was discriminatorily motivated, particularly in view of the conclusions reached herein. Contrary to the position of the General Counsel, I find the record evidence insufficient to conclude that Re- spondent's placing Bowe on the graveyard shift in De- cember, and transferring other employees in order to ac- complish this result, was discriminatorily motivated. Indeed, the testimony of the union representative, Tedesco, shows that Respondent's interpretation of the ambiguous contractual provisions governing such matters was not incorrect. However, the record is clear, and I find, that Bowe was discriminatorily given the "outside" area to service. Even Gross admits that because there is considerably less business in the outside area during the graveyard shift and therefore the tips are commensurately less, it is cus- tomary for the graveyard shift cocktail waitresses to jointly service the pit and outside areas. There being no justifiable reason asserted for specifically assigning Bowe to the outside area contrary to established practice, I find that such assignment was discriminatory.6 I credit Bowe and find that on the morning of Decem- ber 23, 1980, she advised Gross that because she was ex- ceedingly ill, she would not be able to work her shift that night. I do not credit Gross who claimed that there was no such conversation. Respondent's total treatment of Bowe demonstrates that it would go to any lengths to rid itself of her, including deception, fabrication, and the discharge of other employees. Moreover, Bowe appeared to be a credible witness with a vivid recollection of the December 23 conversation and, being entirely cognizant of the fact that Respondent was seeking any means possi- ble to effectuate her discharge, it is unlikely that she would have failed to call in prior to the start of her shift had she not previously advised Gross that she would be absent due to illness. On the basis of the foregoing, I find that Bowe's De- cember 24, 1980, discharge was also discriminatorily mo- tivated in violation of Section 8(a)(1) and (3) of the Act. As the remedy recommended herein would not be mate- rially affected, and as there is no direct evidence that Re- spondent's discrimination against Bowe was in reprisal for filing charges with the Board or giving testimony under the Act, I deem it unnecessary to determine whether Respondent's conduct is also violative of Sec- tion 8(a)(4) of the Act, as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) and (3) of the Act by issuing a written warning to employee Willow Bowe on May 24, 1980. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by discharging employee Willow Bowe on May e Further, this is precisely the type of discriminatory treatment accord- ed Bowe in the prior case, when certain crap tables were removed from Bowe's assigned area, having the effect of reducing her tips. 660 HACIENDA HOTEL AND CASINO 28 and December 24, 1980, and by assigning her to the outside area on the graveyard shift in December 1980. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMFDY Having found that Respondent violated and is violat- ing Section 8(a)(1) and (3) of the Act, I recommend that it be required to cease and desist therefrom and from in any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights under Section 7 of the Act, and take certain affirmative action described herein, including the posting of an appropriate notice. Having found that Respondent unlawfully discharged employee Willow Bowe on two separate occasions, namely, May 28 and December 24, 1980, and unlawfully changed her work assignment to her economic detri- ment, it is recommended that Respondent make her whole, with interest, for any loss of pay she may have suffered as a result of the discrimination against her, and offer her immediate reinstatement to her former position without loss of seniority or other benefits. Said backpay is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It is further recommended that Respondent expunge from its records the warning notice issued to Bowe, and also expunge from its records any reference to the dis- charges of Bowe. See Sterling Sugars, Inc., 261 NLRB 472 (1982). Based on the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 7 The Respondent, Hacienda Hotel and Casino, Las Vegas, Nevada, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Giving written warnings to employees in reprisal for their union activity. (b) Assigning employees to less lucrative positions in reprisal for their union activity. (c) Discharging employees because of their union ac- tivity in filing grievances under the contract or engaging in other legitimate union activity. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: 7 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed wai\'ed for all purposes (a) Offer reinstatement to employee Willow Bowe and make her whole in the manner set forth in the section of this Decision entitled "The Remedy." In this connection, Respondent shall preserve and, upon request, make avail- able to the Board or its agents, for examination and copying, all records, including the payroll records of other employees, necessary to analyze and compute the amount of backpay due. (b) Expunge from its records the warning notice given to Bowe on May 24, 1980, and any reference to the two discharges of Bowe on May 28 and December 24, 1980. (c) Post it its Las Vegas, Nevada, hotel and casino copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 31, after having been duly signed by Respondent's representative, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply therewith. 8 In ihe event that this Order is enforced bh 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 "Posled Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLIOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI ATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board has again found that we violated the National Labor Re- lations Act and has ordered us to post this notice and to obey its provisions. The Act gives employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through representatives of their own choosing To act together for collective bargaining or cther mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge employees for filing grievances with Culinary Workers Union, Local 226, or for engaging in other union activity. WE WILl NOT issue warning notices to employ- ees or assign them to inferior jobs because of their union activity. 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL offer employee Willow Bowe immedi- ate reinstatement to her former position, and make her whole, with interest, for any loss of earnings she may have suffered as a result of our discrimina- tion against her. WE WILL expunge from our records any refer- ence to the May 24, 1980, warning given Willow Bowe and any references to her various discharges, and WE WILL notify her that this has been done and that such references will not be used as a basis for future personnel actions. HACIENDA HOTEL AND CASINO 662