Aladdin Hotel And Casino

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N & T Associates, Inc. d/b/a Aladdin Hotel and Casino and Harvey Kerin and Steven R. Dalen. Cases 31-CA-11999 'and 31-CA-12381 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMER—MAN AND HUNTER On 13 January 1984- Administrative Law Judge Harold A. Kennedy issued the attached deeision. The Respondent filed- exceptions and a supporting brief and the General Counsel has filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and' briefs and has decided to affirm the judge's rulings, findings,2 I On 19 August 1983 the General Counsel filed with the Board a motion to stnke the Respondent's exceptions In its motion the General Counsel asserts that the Respondent's statement of exceptions fails to meet the specificity requirements of Sec 102 46(b) of the Board's Rules and Regulations We hereby deny the motion Member Hunter notes that when the Board's Office of the Executive Secretary received the Re- spondent's exceptions and brief it advised the Respondent's attorney that the brief exceeded the page limitation set forth in the Board's Rules and Regulations and that, as a result of this discussion and with the approval of the Executive Secretary's Office, the Respondent modified its brief He further notes that during this discussion the Executive Secretary's office made no reference to the Respondent's statement of exceptions In these unique circumstances, Member Hunter finds it appropriate to deny the General Counsel's motion to strike Member Zimmerman, while noting the lack of specificity of_the excep- tions themselves, nevertheless finds that the exceptions, coupled with the Respondent's brief and supporting arguments supplied therein, suffice to set forth those parts of the judge's decision that the Respondent claims are erroneous Roofers Local 66 (Sierra Employees Assn ), 267 NLRB 601 (1983) Chairman Dotson would grant the General Counsel's motion He finds that the Respondent's statement of exceptions contests the legal conclu- sions of the judge but fails to except specifically to any part of the judge's decision or allege with any degree of particularity what error, mistake, or oversight the judge committed Chairman Dotson finds that the Respondent's statement of exceptions is indistinguishable in terms of lack of specificity from the statements of exceptions the Board found did not comply with Sec 102 46(b) of the Board's Rules and Regulations in Ditch Witch of Illinois, 248 NLRB 452 (1980), and Altoo Painting Corp, 238 NLRB 366 (1978) In light of the Board's heavy caseload and the corresponding need to narrow the issues for review so that the Board may expedite the review process, Chairman Dotson believes that the Board's minimal requirements for the filing of exceptions should be strict- ly enforced Accordingly, Chairman Dotson adopts in the absence of ex- ceptions, the findings, conclusions, and recommendations of the judge The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Pmducts, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif 1951) We have carefully examined the record and find no basis for reversing the findings and conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, N & T Associates, Inc., d/b/a , Aladdin Hotel and Casino, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following as paragraph 2(b) and relet- ter original paragraphs 2(b) through (d) according- ly. `:(b) Expunge from our files all references to the layoffs, and notify all laid-off employees in writing that this has been done and that their layoffs will not be used as a basis for future action against them." 2. Substitute the attached notice for that of the administrative law judge. 3 Member Hunter adopts the judge's finding that the Respondent vio- lated Sec 8(a)(1) of the Act based on certain threats made by Supervisor Dinino to employee Dalen Member Hunter finds it unnecessary to pass on the judge's finding that such threats also violated Sec 8(a)(4) of the Act since the finding of such additional violations would not materially affect the Order 4 The Order is modified to require that the Respondent expunge from its records evidence of its unlawful layoff of employees and that they be so notified in writing See Sterling Sugars, 261 NLRB 472 (1982) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT lay off or otherwise discriminate against employees for filing or preparing griev- ances. WE WILL NOT lay off or otherwise discriminate against employees , for giving a statement to the Na- tional Labor Relations Board. WE WILL NOT threaten employees for filing a grievance. WE WILL NOT tell employees that laid-off em- ployees will be recalled when one or more of them obtains other employment or when the recall rights of one or more of them expired. WE WILL NOT tell an employee that he is on the "shit list," that he is on the "barbecue," or other- 273 NLRB No. 41 ALADDIN HOTEL & CASINO 271 wise threaten him for going to the National Labor Relations Board. WE WILL NOT in any other ' manner interfere with, restrain, or coerce you in the exercise of the rights gtiaranteed you by Section 7 of the Act. WE WILL offer to Jess Atkinson, Harley Kerin, Maurice McBride, Joseph .Washington, Ronald Achzet, George Nicholson, and Steven Dalen im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges; and WE WILL make them whole for any losses of earnings and benefits suffered because of our discrimination against them as a result of their union activity. . WE WILL expunge from our files all references to the layoffs, and notify all laid-off employees in writing that this has been done and that their lay- offs will not be used as a basis for future action against them. N & T ASSOCIATES, INC. D/B/A ALADDIN HOTEL AND CASINO DECISION HAROLD A. KENNEDY, Administrative Law Judge. This case was tried before me on February 17 and 18, and May 2 and 3, 1983, on a consolidated complaint issued on October 28, 1982, by the Regional Director for Region 31 of the National Labor Relations Board. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act) by laying off six employees on or about November 20, 1981; violated Section 8(a)(1), (3), and (4) of the Act by laying off another employee on or about August 6, 1982; and violated Section 8(a)(1) as a result of certain state- ments made by two of Respondent's officials. Certain of the statements also allegedly violated Section 8(a)(4).' Respondent concedes jurisdiction, and many facts are not in dispute. Respondent admits in its answer a number of relevant matters, including the following: 1. Respondent N & T Associates, Inc., d/b/a Aladdin Hotel and Casino (Aladdin) is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent is a Nevada corporation with its principal place of business located in Las Vegas, Nevada, where it operates a hotel and casino. Respondent grosses over $1 million annually. Respondent annually purchases and receives goods or services valued in excess of $5,000 directly from suppliers located outside Nevada. 2. The Professional, Clerical and Miscellaneous Em- ployees, Local Union 995, affiliated with the Internation- al Brothcrilood of Teamsters, Chauffeurs, Warehousemen 1 A complaint issued on May 6, 1982, in Case 31-CA-11999, based on a charge filed by an individual named Harley Kenn on March 19, 1982 That complaint was superseded by the consolidated complaint that issued following the filing of charges by another individual, Steven R Dalen, in Case 31-CA-12381 on August 9 and September 21, 1982 and. Helpers of America (Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times relevant, the following persons held the positions indicated and were agents and supervisors of Respondent: Connie Kennington, personnel director; John Grandi, director of building maintenance; and Chris P. Dmino, labor foreman. 4. During the relevant period Respondent was bound by a 1980-1983 collective-bargaining "Labor Agreement Between and Professional, Clerical and Miscellaneous Employees, Local 995" (G C. Exh. 3). 5. A grievance was filed on or about November 12, 1981 (G.C. Exh. 2). 6. On or about July 30, 1982, certain employees pre- pared and submitted a grievance to the Union (which was later withdrawn). 7. On or about August 6, 1982, Respondent laid off six employees—Jess Atkinson, Harley Kenn, Maurice McBride, Joseph Washington, Ronald Achzet, and George Nicholson—and has not since that time recalled them. 8. On or about August 6, 1983, Respondent laid off Steven R. Dalen, Charging Party in Case 31-CA-12381, and has not since recalled him. Respondent denies that the layoff of the six employees was unlawful—i e., that they were laid off either becaiise a grievance was filed in November 1981 or because they engaged in union or other protected concerted activities as alleged. Respondent also denies that its layoff of Dalen was unlawful—i.e., that he was laid off because of the July 1982 grievance, because of union or other pro- tected concerted activities, or because employees filed charges or gave testimony under the Act as alleged. Respondent also denies that it violated the Act through statements allegedly made by two of its supervi- sors and agents, John Grandi and Chris Dinino. Grandi allegedly made unlawful statements as follows. 1. On or about November 18, 1981, near the engineer- ing section of Respondent's facility, impliedly threatened to lay off certain maintenance employees because of the filing of the [November 12, 1981] grievance and .because _ one employee had engaged in other union or protected concerted activities (par. 8(a)). 2. On or about November 20, 1981, in Grandes office at Respondent's premises, impliedly informed an employ- ee that Respondent was laying off certain maintenance employees because of the union or other protected con- certed activities of a particular maintenance employee (par 8(b)(1)). 3. On or about November 20, 1981, informed an em- ployee that Respondent would recall to work said main- tenance employees when the employee who had engaged in union or other protected concerted activities had ob- tained other employment (par. 8(b)(2)) 4. In or during December 1981 or January 1982, a more precise date presently unknown to the General Counsel, in Grandes office at Respondent's premises, during a discussion with an employee, impliedly refused to recall to work the maintenance employees laid off on November 2, 1981, and because a particular maintenance employee had filed the [November 12, 19811 grievance 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and because said employee had engaged in other union or protected concerted activities (par. 8(c)). 'Dinino allegedly made unlawful statements as follows 1. On or about November 18, 1981, at Respondent's premises informed Respondent's maintenance -employees that they were being laid off because an employee had filed numerous grievances during the past month (par. 9(2)(1)). 2. On or about November 18, 1981, in the hallway on the north end of Respondent's casino, informed an em- ployee that Respondent had decided to lay off certain maintenance employees because one such employee had filed the [November 12, 1981] grievance and because said employee had engaged in other union or protected con- certed activities (par. 9(a)(2)). 3. In early January 1982, a more precise date presently unkown to the General Counsel, during a telephone con- versation with an employee, informed the employee that, as soon as the employee who had filed the [November 12, 1981] grievance had obtained a job with another em- ployer, the other maintenance employees laid off by Re- spondent on November 20, 1981, would be recalled - to work by Respondent (par 9(b)). 4. In early March 1982, during a telephone conversa- tion with an employee, informed the employee that Re- spondent intended to wait for 1 year before recalling to work the maintenance employees laid off on November 20, 1981, because the employee who filed the [November 12, 1981] grievance would then lose his seniority -and recall rights under the terms of the Union's contract with Respondent (pai. 9(c)). 5: On or about April 5, 1982, in back of Respondent's Performing Arts Theater, threatened an employee with layoff because Respondent believed that said employee had given testimony to the National Labor Relations Board in connection with Case '31-CA-11999 (par. 9(d)). 6. In or about mid-July 1982, and on other occasions, the exact dates being presently unknown to the General Counsel, at Respondent's 'premises, impliedly threatening an employee with discharge by stating that said employ- ee was on the "shit" list and "on the .barbeque,” because Respondent believed that said employee had given testi- mony to the National Labor Relations Board in connec- tion with Case 31-CA-11999 (par 9(e)). • All of the alleged statements of Grandi and Dinino, according- to the complaint, violated Section 8(a)(1) of the Act. The statements which Dinino allegedly made in -April and in mid-July 1982 and on other occasions (par. 9(d) and (e)) also violated Section 8(a)(4) of the Act, ac- cording to the complaint, since they were made because employees filed charges or gave testimony under the Act (pars. 13(b) and (15)). Background Summary of Case Respondent operates a 1105 room hotel in Las Veg'as, Nevada, which includes a casino, a cocktail lounge, a showroom, a theater for the performing arts, seven res- taurants, and a convention center Respondent's facilities, except for the hotel portion, were closed between July and October 1980. On October- 1, 1980, Edward Torres became general manager and 'the facilities reopened Re- spondent's maintenance department includes engineers, carpenters, painters, maintenance laborers, gardeners, and truckdnvers. Local 995 represents the maintenance la- borers employed by Respondent. During all relevant times, John Grand: , has been the chief engineer of the mainienance department; Chris Dimino has been the su- pervisor of the maintenance laborers and drivers, and Jess Atkinson was, until his layoff in November 1981, the union steward for the maintenance laborers. - Maintenance laborers move furniture and equipment, including slot machines, operate . jack hammers and heavy -equipment, dig trenches, remove carpeting, drive trucks and loaders, and perform general demolition and cleanup work. They also assist other trades by hauling their supplies, setting scaffolding, cleaning up, and haul- ing debns. In October 1980, the maintenance department included nine laborers, plus the supervisor, Dmino The laborers were Terry Atwood, Elmer Parolini, Robert Mayhall, , Steven Dalen, Jess Atkinson, Joe Washington, Ronald Achzet, Harley Kenn, and Maurice McBride. Four new hires employed in 1981 were laid off in August of that year, but one of them, George Nicholson, was rehired 3 months later On November 20, 1981, Respondent laid off six labor- ers—Atkinson, Washington, Achzet, Kerin, McBride, and Nicholson The laborers were laid off by seniority except Chris Dinino, who has been a management em- ployee at all times relevant Of the six, Atkinson had the most seniority. On August 6, 1982, Respondent laid off Steven Dalen, the laborer then working with the least se- niority ' The' General Counsel maintains that in addition to making various threats and statements, Respondent insti- tuted the November layoffs in retaliation for a work as- signment grievance which was filed by Jess Atkinson on November 12, 1981, and which was signed by Mayhall, Dalen, Atkinson, Washington, Achzet, Kerin, and McBride The„gist.of the General Counsel's argument is that Respondent- laid off five employees with less seniori- ty than Atkinson-in order to "get" Atkinson. The Gener- al Counsel also'maintains that, in addition to threatening Dalen, Respondent- laid off Dalen because in March 1982 Dalen provided an- affidavit to the NLRB concerning the November layoffs and because he participated in a work assignment dispute on or about July 30, 1982. Respond- ent denies making the alleged statements and threats and maintains that the layoffs were part of a general reduc- tion in the work force which was ordered by General Manager Torres without regard to, or knowledge of, the work assignment disputes or Dalen's contact with the National Labor Relations Board. The Evidence Thirteen witnesses testified, eight for the General Counsel, one of whom (Robert Mayhall) was recalled as a rebuttal witness, and five for Respondent, one of whom (Chris Dinino) was recalled as a surrebuttal witness. The testimony of the witnesses will be summarized in the order of their appearance. Jess Atkinson, who was not employed at the time of the hearing, went to work at the Aladdin Hotel in April ALADDIN HOTEL & CASINO 273 1976: He said he became a full-time employee in 1977. His job at the hotel was also maintenance laborer. He had been laid off at different times but had been thereaf- ter recalled except for the most recent layoff occurring on November 20, 1981. In 1981 Atkinson was designated shop steward for the hotel's maintenance laborers and gardeners. Atkinson testified that November 11, 1981, Veterans Day, was a holiday for the laborers. He received a tele- phone call at home from a fellow employee who told him that maintenance engineers were performing labor- ers' work at the Aladdin. Specifically, Atkinson was told the engineers drove a truck to the Marina Hotel, picked up a dance floor, and delivered it back to the Aladdin._ Atkinson drove to the Aladdin, noticed that the truck was not parked in the place where the laborers had last left it and that the truck contained a dance floor. Atkin- son spoke to a security guard about who had driven the truck and they went to see John Grandi, the director of building and maintenance, 2 and asked Grandi_ why engi- neers had driven the truck contrary to the union agree- ment. Grandi became angry and asked who the "stool pigeon" was. Grandi told Atkinson that "if you don't have anything better to do, get out of my mother-fuck- ing office and go play union elsewhere "3 On the follow- ing morning Atkinson met with the other laborers, and it was decided that it would be in the best interest of the crew to file a grievance. The grievance (G.0 Exh 2) was filed with the Union and, within a week, Respond- ent made a monetary payment to settle the grievance 4 Several days later, on or about November 18; Atkin- son's immediate superior, Chris Dinino, approached At kinson in the work area. Dinino appeared upset and said that Grandi was going to lay off all the laborers up to and including Atkinson, the most senior laborer, because of the grievance At the suggestion of Dinino, Atkinson tried to talk to Grand' about the layoffs but without suc- cess. Atkinson "approached" Grandi about the layoffs as the latter passed through the work area, but Grand' re- plied that there was nothing to talk about Atkinson and five other laborers, Maurice McBride, Joe Washington, Harley Kerin, Ron Achzet, and George Nicholson, were laid off on November 20, and on that date Atkinson asked Dinino if the layoffs were a result of the grievance that had been filed. Dinino replied, in part, "Well, you know, Mr Grandi will cool off by a couple of weeks and we'll get this straightened out."6 Atkinson explaned on cross-examination that Respond- ent undertook some major renovation projects soon after the Aladdin reopened in October 1980. (Atkinson indi- cated that the casino was closed in 1980 and that it was around that time, he thought, that he heard that "Mr. 2 Grand' is in charge of the maintenance department, but was not At- kinson's immediate supervisor 3 Grandes version of the confrontation was not too different, as indi- cated infra 4 Checks were made out to the two laborers with the most seniority, Bob Mayhall and Steve Dalen. but the money was divided among those who had signed the grievance 5 As indicated Infra. Dunn° denied making the statement Atkinson stated that no grievance was filed over the November 20 layoff, someone at the Union had told him that "it's a right of management to decide their working force' Torres and Mr.- Newton" had purchased the Aladdin.) According to Atkinson, the laborers helped ' to moye, among other things,. the baccarat tables, remodel four' restaurants, move the marquee, redo the carpets in the casino and lobby area, and install a new health spa. Be- cause the restaurants were completely gutted and moved, some temporary laborers were hired in 1981. 6 The res- taurants opened sometime in the summer of 1981, on a staggered basis, and the new health spa was opened about mid-November that year: Atkinson estimated that he spent about 65 percent of his time working on the renovation projects while they were in progress. Atkin- son said he operated a jackhammer, moved dirt by wheelbarrow, and performed other "renovation and clean-up" work. Harley Kerin, on active duty with the United States Marines at .the time of the hearing, testified that he was hired by Respondent on October- 10, 1980, and was laid off December 26, 1980, and again on November 20, 1981. He was recalled within 'a 'couple of weeks after being laid off in December 1980, but he- was not called back after being laid off in November 1981 Kenn testified that in December 1980 Respondent wanted to lay off Brian Hesse, who was at the time working under the su- pervision of Hesse's father, but had no legitimate reason to do so. "So what they did was," according to Kenn, "they laid off three other employees to get to Hesse"— Ron Achzet, Joe Washington, and Kenn. The laid-off employees, other than Hesse, were told, Kenn said, that as soon as Hesse got another job they would be recalled Hesse obtained a job at Caesars Palace, and the other laid-off employees were immediately recalled.7 Kenn stated that he was a member of Local 995 and worked as a maintenance laborer while employed at the Aladdin. Kenn said he was told when hired that he would be "full-time" and was assigned to a crew to help with the remodeling of the hotel. He helped install car- peting and performed "mostly cleanup" work. Kenn re- called that others, including Nicholson, Neal, Leavitt, and Smith, were hired in early 1981 and that some of them were laid off in August of the same year.. _ Kerin said he was told of his November 29, 1981 layoff by Dinmo on that date. There was talk earlier of the possibility of a layoff because -of the filing of griev- ances. Said Kenn: "Chris Dinino had mentioned that if we don't quit filing them, that something is going to happen." Kenn said Dinino told him and others in the break area around 1 or 1.15 p m., on November 20, that they were being laid off "because our shop steward was filing grievances against the hotel for workers doing our job" Achzet asked Dimino at the time, Kenn testified, "if 6 Nicholson, Neal, Smith, and Leavitt were identified as the temporary hires All four were laid off in, August 1981, but Nicholson was recalled shortly thereafter and laid off again on November 20, 1981 7 A number of witnesses testified that they understood the collective- bargaining agreement to provide that employees were to be recalled ac- cording to seniority, that recall rights expire after a year, and that an em- ployee could accept another job without losing recall rights Dinino denied making such a statement but agreed that Hesse had been laid off under circumstances similar to those described by Kerm Dinino denied, however, that the November 1981 layoff was similar to the Hesse situation or related to a grievance 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was going to be another Hesse situation," and Dinmo agreed, "yes, it was." Dinino sent Kerin to speak with Grandi on November. 20 concerning Kenn's question about the length of the layoff. Grand" told Kerin that "he was sorry to see us go, but he wasn't going to let some smart-mouth punk tell him how to run his business And as soon as he got another job, we would all be back to work again." Kerin agreed that some of the remodeling of the hotel had been completed at the time of the November 20, 1981 layoffs but stated there was further remodeling work yet to be completed. At the time of the layoff Kenn said he was averaging about 20 hours of overtime every 2 weeks. Kenn said he went to the Union to complain about the November 1981 layoffs, but he was unaware of whether the Union filed a grievance protesting the layoffs.9 Ronald Achzet, a member of the Union, testified that he was hired by Dmino on October 8, 1980, and was laid off on November 20, 1981 Two days earlier, on Novem- ber 18, 1981, Dinino had told him and Kenn that "you guys are going to get laid off" because of grievances filed by Atkinson. Either Achzet or Kerin (Achzet was not sure which one) asked Dinino if this were another "Hesse situation," and ,Dinino replied that It was.1° Achzet testified that after the November 1981 layoff he had three conversations with Dinino in 1982. In early January 1982, he telephoned Dimno and asked whether the laborers were going to be recalled, Dinino said "yes," as soon as Atkinson had gotten a job. Achzet again called Dinino in March to ask about coming back to work. Dinmo said that "they were going to wait for Jess Atkinson's recall rights to run out" and then the la- borers would be called back without regard to seniority rights. On April 7 Achzet again inquired by phone whether the laborers would be recalled. Dinino respond- ed, Achzet said, by telling "me that my name was on Grandes desk, naming me in a suit that Harley Kenn had. filed." Achzet understood Dinino to be refernng to the charge leading to the instant case. Achzet asked if he could get his job back if he took his name off the suit. Dinino told Achzet that Achzet would have to talk to Grandi.11 George Nicholson testified that, sometime during the week prior to the November 20 layoff, John Grand' spoke with a number of the laborers just prior to quitting time. Grand', according to Nicholson, said, "I hate to let a few good guys go to get to one guy." Although Nich- olson did not understand at that time whom Grand' was 9 Respondent offered in evidence an affidavit of Kerm (R Exh 1), but I find no significant contradictions between it and his testimony 1 ° Achzet said he was among four employees laid off for 2 weeks on December 26, 1980 At that time Dintno stated that as soon as Hesse got a job the workers would return to work Achzet said that there were two or so hired shortly after his recall in January 1981 and that there were layoffs around August 1981 " Dnuno denied the essence of Achzet's testimony Dimno did recall one postlayoff phone conversation with Achzet According to Dunn°, Achzet called and said he understood that Respondent had undertaken a construction project and asked if he could come back to work Dunno explained that Respondent was not hiring any more "maintenance Team- sters" because it had "construction laborers coming in It was another situation all together" talking about, he subsequently understood Grandi to be referring to Atkinson." Nicholson said he was hired by Dinino in January 1981 to do labor maintenance and was laid off in August with five or so others and again on November 20, 1981. Steven Dalen was hired as a maintenance laborer in 1976 and laid off on August 6, 1982. He said he was a member of Local 995 He testified that on several occa- sions following the November 1981 layoffs Chris Dinino said to him, "If Jess [Atkinson] hadn't opened his big mouth them six guys would still be working." On an- other occasion, in December 1981 or January 1982, Dinino and Dalen walked into Grandi's office and Dm= asked Grandi when the laid-off laborers would return to work. Grandi replied, "Has Jess Atkinson got a job yet?"13 In 1982, toward the end of his employment with Re- spondent, Dalen and Bob Mayhall were concerned with the amount of Work being required of them and asked Dinino when the six persons laid off in November 1981 would be recalled. Dinino replied, "after their recall rights expired he would hire new guys." Dalen also testified that on the morning of April 5, 1982, Dinino approached Dalen and Bob Mayhall as they were working. Dinino told Dalen that Connie Ken- nington, Respondent's personnel director, thought that Dalen had provided a statement to the NLRB. Dinino then told Dalen he had better "watch it" or he "might still get laid off." Later that day while eating lunch, Dalen was asked by Dinino to go with him and explain to Kennington that "the reason I didn't get laid off [in November] was be- cause my wife was going to have twins." 14 Dalen met with Kennington and a Nevada Resort Association attor- ney, Vincent Helm, who he thought at first was an NLRB attorney, in Grandes office. Dalen explained to them that "everybody"—i.e., "the carpenters, the paint- ers, gardeners and all the other trades"—had been doing the laborers' work. Dalen stated that when he was asked whether he had gone to the NLRB he realized that the attorney present was not from the NLRB. He then re- fused to make further comment 15 12 Robert Mayhall, a member of the labor maintenance crew, testified that Nicholson was present when the November 12 grievance was signed by a number of laborers but Nicholson did not sign it iS Diruno's recollection of the conversation in Grandes office is some- what different Diruno asked if he would be getting any new employees and Grand' said no, that there was not going to be any hiring for a while It was possible, according to Dinino, that Grand' mentioned Atkinson, but if he did, It would have been because Grand" had, on occasion, in- quired whether "any of the guys would be working or not" 14 Both Grand' and Dmino testified (as did Dalen) that Dalen had been Included on the list of employees to be laid off in November Dalen's wife was pregnant, however, and Dunn° was concerned Dalen would lose his medical coverage When Dinino discovered that Terry Atwood, one of the employees who was to be retained, was on a disabil- ity leave, he persuaded Grand' to keep Dalen on until Atwood's return Atwood returned in March 1982, but Dalen was not laid off until the fol- lowing August 19 On cross-examination Dalen said, "I think Chris [Dinino] had asked me a few times if I had went down there [NLRB]. and stuff" Dinino denied mentioning the NLRB to Dalen before the April meeting with Kennington and the Resort Association attorney took place Dunn° said "it was brought up back in April" that Dalen had gone to the NLRB He Continued ALADDIN HOTEL & CASINO - 275 Dalen testified that on April 7, 1982, and on other oc- casions that Dinino had told Dalen, "no matter what happens, I was on the shit list" Dinino repeated the statement or a similar statement during the following months Dalen recalled on cross-examination that Dimno also told him that he was on the "Barbecue." Finally, Dalen testified that he filed a grievance on Friday, July 30, 1982, concerning a work assignment of laborers (running a forklift and driving a truck) to the stagehands. The grievance was later withdrawn by Dalen, however. Dinino was present and observed Dalen, Atwood, and Mayhall prepare the grievance but, Dalen conceded, Dinino did not actually, read it. Later that evening Dinino . called Dalen at home and told him to report to work the following day, a Saturday, to com- plete the disputed assignment.' 6, Robert Mayhall went to work at the Aladdin Hotel in 1975 and was still employed there at the time of the trial. He said he was currently a maintenance truckdriver and member of Local 995. Mayhall said he also operated loaders and other equipment When not engaged in driv- ing or operating equipment he works as a Maintenance laborer. Mayhall testified for the General Counsel on his case- in-chief and on rebutta1. 17 On his first appearance, May- hall told of Jess Atkinson telling him and other members of the maintenance laborers' crew that two engineers had moved a dance _floor on Veterans Day in November 1981. All of the members of the crew present, except for Nicholson, signed a - grievance." The company paid compensation, in the form of two checks, to Mayhall and Dalen, the most senior members, and the proceeds were divided among those who had signed the grievance. Mayhall also recalled being told by Dinino a couple of days before the November 20, 1981 layoff of six laborers that "everybody was getting laid off up through Jess." Mayhall said Dimno also stated that "if Jess would have kept his big 'mouth shut and butted out, everybody said there were "no' hard feelings," and It had nothing to do with Dalen's' layoff Amino said he sent Dalen in to talk to Kennington and Helm "about the situation, about his family, the insurance and that " He was not sure if he told him it was the hotel attorney Kennington testified, however, that she introduced the attorney as the attorney for the Resort Association Dalen indicated on cross-examination that Mayhall had told him that stagehands were doing "our work" and that Mayhall was more upset at I:011mo than Dalen was According to Dalen, Mayhall "Was mad" and yelled to Dinino "You know why I'm mad " Dalen took the grievance to the onion office on Friday afternoon but later called the Union and told Business Representative Burrus "to rip it up" as Dalen had been called in to perform the work Dalen also telephoned Mayhall, who had begun a vacation that weekend, and told him that he had done . the work Dinino also testified- about the incident He said the stagehands had always used the forklift He said he gave the keys for the truck and-fork- lift to the stagehand crew that day and argued with Mayhall about the stagehands' use of the forklift Dmino went to the union hall that day seeking to clarify matters and, after talking with the stagehand crew chief, called Dalen and told him to -go in and do the work Dinino said he did not mention the incident to Grand' Mayhall was recalled on rebuttal to testify concerning laborers' work performed by construction laborers and other crafts 'following the November 1981 layoffs Such rebuttal testimony is summarized in a foot- note at the end of the summary 'Cif Dinino's testimony is AS previously nOted, seven members of the maintenance labor crew signed the November 12 grievance Terry Atwood and Elmer Parolim also did not sign the grievance but were not laid off Mayhall also was retained, although he signed the grievance would have kept their jobs." A few weeks later Dimino told Mayhall that the laid-off workers would not be re- called for a year while they still had seniority rights." Mayhall testified that he complained to Dinino on March 24, 1982, that other employees were performing the laborers' work. About the same ,time mention was made about the fact that the six laid-off workers would not be recalled for a year. Dinino told Mayhall that if he did not keep his "mouth shut" he -would lose his job. Mayhall overheard several conversations during which Dimno had told Dalen that Dalen was on the "barbe- cue" Mayhall also ,heard Dinino tell Dalen that Connie Kennington was aware that Dalen "was one of the ones" who had filed a charge with the NLRB and that Dalen was on the "shit list." Asked on cross-examination for details of the conversation he overheard, Mayhall testi- fied' Chris had gone into Conme's office with a lawyer or somebody and he come out of the office and got Steve and told Steve that they knew that he was one of the ones that went down and filed the charges on them at the Labor Board. When' Dalen was laid off in August 1982, there were no maintenance laborers as such working at the Aladdin. Terri/ Atwood, another maintenance truckdriver, May- hall (who was on vacation at the time), and other bar- gaining unit employees were (Wing the maintenance la- borers' Work. Mayhall agreed on cross-examination that around August 1982 there was a substantial layoff, in- volving engineers, carpenters, painters, and gardeners Steven Burrus, the business representative for Local 995, testified that he spoke with Grandi and Dimino' a number of times after the November 1981 layoffs. He said no grievance was filed concerning the layoffs, but he tried to "settle- it informally between the parties and get people back to work." Burrus went to the Aladdin in late November or early December to meet' Grand' pursuant to an appointment but was able to speak with him there only by telephone. Grand' was abrupt and asked Burrus if he got a job yet for Atkinson. Burrus stated that Grand' said to him, "You son of a bitch, what are [you] going to do for me?" Grand' also told Burrus that "unless you get this guy a job, there' isn't anything going to happen." Burrus said he saw Grandi again at the Aladdin in April 1982, and Grandi again asked if Burrus had got Atkinson a job. Burrus said his meetings with Dinino were in the summer months. Dinmo would also ask whether or not Atkinson had a job yet. Burrus recalled that Dimino, a union 'member, attended a union meeting and remarked: "Unless you 'guys quit putting out some heat, you're never going to get anywhere with Grandi."2° Mayhall testified that the November 1981 layoff c.ame after two res- taurants had been completed and while work on a third and a health club was in progress He stated that the layoff came unexpectedly but conced- ed that limn° had indicated that layoffs would come when the construc- tion work was completed 20 Grand' claimed on cross-examination that he had explained to Burrus that there was nothing that could be done for the laid-off labor- ers Grandi denied that he had ever met Burrus face-to-face before the trial or that he had been asked to attend a meeting with Burrus 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terry Atwood, a member of Local 995, was employed by Respondent at the time of trial as a truckdriver. He testified concerning a conversation he had with Dinino sometime in March 1982. Dinino said that Respondent would never rehire the six laborers who had been laid off in November 1981, and- that Respondent would wait until the laborers' recall rights had expired before it would hire more employees. Following Dalen's layoff (in August 1982) Dinino told Atwood that Dalen would never be rehired because Dalen had filed charges with the NLRB. In November 1982 Dinino told Atwood that Atwood would be terminated if he .testified during the NLRB tria1.2' John Grandi testified that he came to the Aladdin Hotel when Ed Torres took over the hotel in October 1980. He said he worked as a consultant at first and became an employee of the hotel at the beginning of 1981. Grandi identified himself as the director of budding and maintenance and chief engineer of the maintenance department He reports directly to Torres. Chris _Dimino, the laborers' foreman, reports to Grandi as do supervi- sors of other groups (painters, engineers, carpenters, gar- deners, and a locksmith). Grandi stated that all new con- struction "goes through" him as well as Torres and the hotel's architect. All maintenance employees work under Grandi. .Grandi testified that Torres began major renovations in 1980. The casino was rearranged, requiring moving of the "21" tables, slot machines, and baccarat. Three res- taurants "were completely torn out" and replaced A new health club was also constructed. The health club, one of the last projects, was finished around October 1981. A new 150-room addition to the Camelot building was constructed by a contractor and finished around April 1982. Considerable demolition work was required, in connection with the remodeling, and the laborers per- formed it "mostly." The laborers were also involved in the construction of the Camelot addition, primarily in, cleanup Grandi explained that during the renovation Dmino would ask for more laborers. Grandi would speak to Torres, who would say, "go ahead and get the work done." Dinino would call the Union and hire laborers to work on a temporary basis. According to Grandi, the la- borers were hired to work "just until the work was done, and they knew about it, a lot of them knew about it." Grandi testified that he thought that four laborers were laid off around August 1981 after work on the res- taurants (except apparently for the Saber Room, the new Chinese restaurant) had been completed. - According to Grandi, Torres spoke to Grandi about the possibility of a layoff in early September 1981 Torres told Grandi that it is "the worst time of the year around here, and . . let's cut down" Grandi had an, as- sistant (Al) prepare.a list of all, employees in the depart- ment, by craft, and submitted the list to Grandi later in Si Dimino denied telling Atwood that the six laborers would not be re- called or that Dalen's layoff was related to his giving a statement to the NLRB the month. Torres and Grandi went over the list and, ac- cording to Grandes direct testimony, Torres told Grandi to cut down the number of employees in maintenance as follows: engineers, including electricians-36 to 25; painters-6 to 4; carpenters-6 to 3; laborers-9 to 3, plus a driver 'Grandi asked for an opportunity to go over the list and make a "breakdown" so he could cover 24-hour shifts with engineers and 'still comply with the seniority rights of employees. Torres agreed, and Grandi then ad- vised his assistant to reschedule the work of the engi- neers, utilizing no more than 25. Thereafter, Grandi re- ported to Torres that he could cut the number of engi- neers to 22, painters to about 3 or 4, carpenters from 6 to 3, gardeners from 6 to 4, and laborers "down to 3 and 1." Torres replied, "fine, get it started" but later agreed to delay the layoffs because electrical and other work needed to be done on the health club and on the new Chinese restaurant. Torres would not delay the layoffs beyond November, however, and the -layoffs began on November 21—strictly by seniority. ' - Grandi stated he consulted with each group boss and made up schedules for each craft. Grandi and Dinino conferred on the layoff of laborers and "cut the .crew down to 'Steve Dalen," which left only two laborers. This would mean that Dim°, who could be kept on be- cause he was in charge, Terry Atwood, and Bob May- hall would be the only laborers retained. Grandi agreed to keep Dalen on at that time because his wife was ex- pecting, or already had, a baby, and Atwood was out on disability (M.I.0 ). Grandi recalled that a grievance was filed inNovem- ber 1981 over the fact that he allowed two engineers to drive a. truck on a holiday to pick :up merchandise. Grandi was unsure what the engineers had picked up. Grandi denied the grievance had any bearing on the layoff of' workers that month. He remembered that Union Steward Jess Atkinson came to the hotel that day and complained about the engineers using the truck Grand, said 116 told Atkinson: "Haven't you got anything better to do than sit on your ass in the parking lot watching that truck going back and forth? I said, if I made a mistake, I will pay for it Now, get your ass out of here." Grandi told Connie Kennington later, when the griev- ance was filed, that "we goofed" and "we have to pay for it Grandi acknowledged that he saw Atkinson on the day of the layoff, November 20, 1981, and told him that it was "Mr Torres' doing" and there was nothing he could do about it Grandi said he also talked with Harley Kenn in No- vember 1981. Kenn asked about the layoff and men- tioned that he might go back into the Marine Corps. Grandi said he advised Kenn to take' a job if he could find one. That was the only conversation he had with Kenn, Grandi said. Asked if he ever stated in George Nicholson's pres- ence that he hated to let a few good guys go to get one, Grandi said he "never said such thing." Grandi also denied telling Steve Dalen that laid-off workers would ALADDIN HOTEL & ,CASINO 277 be recalled if Jess Atkinson got a job. He said Dalen was laid off in August 1982 because Atwood had come back and had been "steady" on the job. He stated that other employees were laid off about the same time. Grandi denied ever meeting Union Business Agent Steven 'Burrus. Grandi said he only spoke to Burrus by phone at the request of Connie Kennington, and on that occasion told him there was nothing he could do about the (November 1981) layoffs. Grandi denied telling Burrus that employees would be recalled if Atkinson got a job. Grandi acknowledged that Connie Kennington told him around April (1982) that Dalen had made a com- plaint to the NLRB "about the stagehands or some- thing." He said the complaint, however, "had nothing to do" with his layoff. Grandi stated that Mayhall was laid off for only about 2 weeks and was recalled. There have been no other laborers hired since November 1981, he said. Grandi agreed on cross-examination that the number of laborers grew during the renovation in 1981, from 4 or 5 to around 13. Only one of six gardeners was actual- ly laid off in November 1981. Two carpenters listed on Respondent's Exhibit 2 had quit around November and were not laid off, he said. Two carpenters and two paint- ers were hired about the same time to perform some ret- rofitting work. Also, Parolini was not laid off as he was considered a truckdnver and not a laborer. Grandi's affi- davit stated that Torres wanted four laborers (not three) and a truckdnver to be retained 22 Connie Kennington has been personnel director and paymaster at the Aladdin since Torres took it over and reopened it on or about October 1, 1980. Kennington had worked at the hotel previously between December 1978 and March 1980. The hotel had been partially closed down in July 1980. Torres promptly undertook "a massive reconstruction program." A new casino, four new restaurants, the Bagdad Showroom, and a new health club were among the projects undertaken. Two of the restaurants, the Continental and Hickory, were finished in May 1981, an- other (the Fishery) was completed in August 1981 and the House of Chan was opened early September 1981. The health club was completed in October 1981. Kennington said there were maintenance laborers, in- cluding Foreman ammo, on board when the hotel re- opened on October 1 or shortly thereafter Additional la- borers were hired in 1981 A number of employees were laid off in August or early September 1981, including la- borers Nicholson, Neal, Leavitt, and Smith because con- struction "was winding down." Kennington acknowl- edged that construction continued on a new 150-room addition to the Camelot section which was being built primarily by a "subcontractor." The work on the health club begun around August 1981 also continued. George Nicholson, who was laid off in August, was recalled in November to help finish the health club. Maurice 22 Granch was not an impressive witness At times he was vague, and much of his testimony was contradictory He claimed to have no recol- lection of dates He gave different times on construction of the health club and the number of employees to be cut in given crafts varied McBride was transferred into a laborer's classification from the warehouse on November 5, 1981, she said. The layoff of six laborers came on November 20, 1981 Ken- nington testified that only one other maintenance worker, construction carpenter George Briscoe, was laid off between November 1981 and July 1982. Kennington said the controller of the hotel, Toni Spratt, told her around the end of October 1981 that Torres wanted to cut back in personnel. She thereafter regularly prepared and submitted every other week so- called monthly status reports showing the number and classification of all personnel in the hotel. She recalled seeing Torres about 2 months later, at the end of the year, when he commented that he had let a lot of people go "in order to survive" Kennington stated that there had been reductions in every department since January 1981. She gave the number of employees at Aladdin in January 1981 as 1828, in January 1982 as 1703, and 1147 in January 1983. Maintenance employees numbered 68 in January 1981 and 37 in January 1983.23 Kennington recalled receiving the November 12, 1981 grievance from the Union and telephoning Grandi con- cerning it. Grandi told her at the time that he had thought "Engineers and Teamsters are all one" but that she should settle it. Two checks were then drawn for "a little over a hundred dollars" (based on 8 hours of holi- day pay) each for Steven Dalen and Bob Mayhall to dis- pose of the grievance. Kennington testified that there was no grievance filed either in connection with Dalen's layoff in August 1982 or the layoff of six laborers in No- vember 1981 • Kennington -also testified concerning an April 1981 meeting in Grandi's office when Dalen met Nevada Resort Association Attorney Vince Helms, Aladdin's counsel at that time. The charge Harley Kerin had filed with the NLRB was being investigated, and Helms had been told earlier that Dalen's job had been saved because Dalen's wife was expecting twins and Atwood Was out on leave. Helms had inquired of Dimino if Dalen was aware of being so "lucky" and would verify the informa- tion. Dinino thought Dalen would and arranged for Dalen to come into the meeting. Kennington acknowl- edged at the trial that Dalen was apparently confused during the April 1981 meeting as to Helms' employer when Dalen stated that he had already been to the NLRB and given a statement When he realized that Helms was not from the NLRB, Dalen declined to re- spond to further questions and left. Kennington main- tained that both she and Helms had explained to Dalen at the outset who Helms was. Helms explained his pur- pose in talking to Dalen and told Dalen he was free not to answer questions if he preferred.24 23 A number of documents were introduced through Kennington, in- cluding R Exh 4 (copies of checks delivered to Dalen and Mayhall to settle the November 12, 1981 grievance), R Exh 5 (list of maintenance laborers laid off after January 1981, with hire and termination dates), R Exh 6 (status reports), R Exh 7 (list of persons laid off [except :`short terml between October 1980 and January 1983), and R Exh 8 (Atwood's leaves of absence) 24 No doubt Dalen was initially confused who Helms was, but I credit Kennington's account that the attorney was correctly Introduced, first by her and then by himself 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Edward Byrne, assistant controller of the Alad- din, identified and explained a summary and two graphs, Respondent's Exhibits 9, 10, and 11, that he had pre- pared to show when capitalized labor costs were in- curred, on a monthly basis, during the calendar' years 1981 and 1982 at the Aladdin. Byrne's documentation shows the breakdown of costs involved in making changes in the casino: concourse carpeting, county in- spection repairs; a projected (but not contructed) hotel highrise; construction of a health club, parking lot, stor- age warehouse, a 3-story "highrise," and the renovation of the Bagdad • Show Room; four "gourmet" restaurants and Camelot rooms. A little over $425,000 was expended in 1981 and only about $95,000 in 1982 The casino changes, which cost approximately $130,000, and the renovation of the restaurants, which cost $181,598, were completed in October and September 1981, respectively. Most of the work- on both projects was performed in the first 6 or 7 months of that year County- inspection re- pairs (approximately $24,000) were spread over the period January 1981 to May 1982, but most ($16,044) were performed in 1982. Construction of the health club (approximately $48,000) took place in the last 6 months of 1981. Renovation of the Bagdad Room, at a cost of approximately $30,000, took place primarily between February and May 1982, although $6,475 had been spent for that purpose in January 1981 The Camelot rooms were renovated between July 1981 and April 1982 ($24,273). Most of the work performed on the three- stOry highnse (approximately $25,000) was done between March and May 1982. The concourse carpeting was not a significant project ($4,022), and most of it was per- formed in July 1982. The parking lot ($5,874) and stor- age warehouse ($544) were not major ,projects and had been completed by November 1981. The graphs show capitalized labor costs were the highest in April 1981 when the restaurants were being renovated Construction of the health club caused labor costs to peak again (at a lower level) In November 1981. In 1982 labor costs peaked in March 1982 when work was being performed on the three-story highrise, 150-room addition 25 Edward Torres said he had been the general manager of the Aladdin since October 1980. He said he "very ac- tively" oversees everything in connection with operation of the hotel Prior to his takeover the hotel had em- ployed between 2200 and 2800 persons. Torres stated that "the place" was run down when he took over. "It was closed for four months" and there "had been no management for about 18 months."26 Torres undertook to do extensive remodeling. The casino was rearranged, banquet facilities were improved, and rooms remodeled. Construction of a 150-room addition was awarded to J. R Porter, a general contractor. Some 25 Byrne testified that the labor expenses are capitalized when spent on construction or major rebuilding of an asset He explained that the time- cards of employees performing the work were the source of the data used in preparing R Exhs 9, 10. and 'I I and that "the transactions were reviewed by our independent auditors " I credit the evidence given by Byrne 26 Apparently only the casino, restaurants, and entertainment facilities were closed down as Torres said the hotel Itself was "open for business at all times of the remodeling Work was - .contracted out - (e g., drywall, plumbing), and some of it was performed by hotel employees (e g, electrical, painting). Torres said he keeps himself apprised of the staffing and labor costs. He receives figures every 2 weeks from Controller Toni Spratt and sometimes also will Check (with Connie Kennington) fo- get a daily count in a par- ticular department if he sees "too many people standing around" Shortly after Labor Day 1981 Torres begin meeting with department heads in order to reduce staff. He met with Grandi and told him that there was to be no more remodeling; Grand' was to finish up what he was doing and start cutting down the number of employees. Grandi submitted a list of names in different departments but asked for, and was given, more time in reducing the number of laborers as there was cleanup work to do "around the place, particularly the health club, that was still a mess." By November Torres thought Grandi was "dragging his feet" and directed Grand' to "cut now." As he recalled it, Torres told Grandi to reduce the number of maintenance laborers to three laborers and one truckdriver. Torres wanted cuts made across the board but indicated that layoffs' were focused on laborers because in remodeling laborers finish their work first. Laborers, he said, are used at the hotel ='mostly" to "haul a lot of stuff" Cuts were made, in other departments in 1981, and even further cuts were made in 1982. "The bottom fell out in April 1982," and business dropped even further in the summer months. Torres said he told Grand' at that time he wanted to go down to "rock bottom" in all de: partments. He tho ught around 11 engineers were laid off around June 1982 27 Business picked up some in 1983, Torres said, and some additional help (maids, porters, registration, and food service) was added. The number of employees increased in 1983 from 950 to about 1022. In discussing layoffs, Torres said the names of individ- uals were not mentioned. No mention was made of 'any grievance or the fact that an employee presented a prob- lem Torres said Grandi never referred to an employee being involved in NLRB investigation Steven Dalen's name was unknown to him, Torres said: Torres stated that he decided the number of persons to be laid .off, and the department heads "implemented it." Christopher (Chris) Dinino described himself as a work- ing foreman and "supervisor for the laborers and Team- sters driver" He stated his position is covered by the collective-bargaining agreement between the hotel and Local 995. He said he has been a member of Local 995 for about 11 years. His supervisory status is not disputed. Dinino said he was hired to supervise the maintenance laborers on the day the hotel reopened. Renovation of the hotel began immediately. Dinino explained that main- tenance laborers basically "assist" other trades—"clean up their messes," "set up the scaffolding," "a lot of dem- 27 Torres testified on cross-examination that Grand] was still "dragging along" in 1982 and gave Grand' "numbers" in May or June that year Asked on cross-examination if the maintenance department had not em- ployed new people in 1982, Torres said if it did they would have been temporary hires to finish up a job ALADDIN HOTEL & CASINO 279 °limn," "expediting . . warehouse and transport." There are two labor classifications, jackhammer and driver, which call for premium pay. Dinino said he had hired additional members for the maintenance crew, after getting Grandes approval, by calling the Local Union. He said he would advise the Union the type of work to be done and explain that it would be temporary. Dinino would interview prospects and explain to them. the work would be temporary. Dmino said he had hired Kerin and Achzet in October 1980 and later four others, Nicholson, Smith, Neal, and Leavitt. Dimino stated he also had replaced people "be- cause people didn't show up for work or whatever" Nicholson, Smith, Neal, and Leavitt were laid off in August 1981 because the restaurants were finished, and less manpower was needed. Dinino indicated that the layoffs were taken "for granted" as he had explained the temporary nature of the employment. In November 1981 John Grand', Dimno's superior, told Dinmo that the health club was done, "it's slowing down," and that the crew was being reduced to the driver, himself, .and two others Grandi told him, Dinino said, "Mr. Torres decided we just didn't need that many laborers there, so he wanted to cut it to the bare mini- mum." Dinino said he spoke to Grandi shortly thereafter about saving Steve Dalen from the layoff because his wife was expecting twins and Terry Atwood was "on a leave of absence, for NIC." Dmino asked that Dalen be kept on until Atwood returned to duty, and Grand' agreed. Dinino stated that he spoke about layoffs with the la- borers crew during the week prior to the November 1981 layoff. Some employees asked if the layoffs were related to the grievance that Jess Atkinson had filed that month. Dinino specifically denied telling Atkinson, Achzet, and Dalen that the layoffs were occurring be- cause of the grievance filed by Atkinson. He also denied telling Atkinson that Grand' would cool off in a couple of weeks and that everything would be straightened out. Dinino said he told Atkinson that "Mr. Torres was cut- ting back to a certain amount of men, and that was all that I knew." Dinino acknowledged that the 'laborers compared the November 1981 layoff to the previous layoff of Brian Hesse (also appearing in the transcript as Heese). Said Dinino: Yes, it was the situation where these guys were under the impression that because of Jess's griev- ance that John, or management, was getting back at the crew Just to get less out. That was the general talk. And the reason they were comparing this with the Hesse situation was that Brian Hesse had been let go at a time,_ and other people at a time, when Mr. Torres had changed his policies. When he took over the hotel , there was a situation of relatives in departments, and he more or less, he cut that out. And in our department he ran into a problem be- cause of the seniority situation Brian was up the ladder a little bit, and his father was running the de- partment,-and Brian was working for his father, and Mr. Torres didn't want that. So Brian—a couple of guys and Brian left for awhile, then Brian got relocated, and the crew came back, and that was all I know about that And that's what they were comparing that to, that situa- tion. Dimno said he discussed the situation with Kenn but told him the November 1981 layoff was not the same. alum" testified: "I told him I didn't think it was like that. I says it's a straight lay off status situation The job is over with, and we had to be cutting back." Dinino said he talked to Achzet over the telephone around March 1982, when the hotel was starting a new project, but only told him that the hotel was not hiring any maintenance laborers. Dim° stated that it was "gen- eral knowledge" that persons laid off have ,a "year hire back rights," but he denied ever telling Achzet, Dalen, Mayhall, or Atwood that the laid-off laborers would not be recalled for a year Dinino stated that he had told Dalen that he was lucky that he was still working but never stated to Dalen that the other laborers would still be working if Atkin- son had kept his mouth shut and not filed a grievance. He also denied making a similar statement to Mayhall Grand' would ask whether Atkinson and other em- ployees had got a job, Dinino acknowledged. amino also acknowleged that Grand' could have asked, with Dalen standing in the doorwáy of Grandi's office, whether Atkinson had got a job or not. Grandi regarded it, however, as just "idle talk." Dinino stated that Dalen was laid off around Septem- ber 1982, shortly after some painters and carpenters were laid off. Carpeting of the concourse, in the casino area, was nearly complete at the time, Dinino recalled. Dinino acknowledged that it was known in April 1982 that Dalen had given a statement to the NLRB and that Dalen had been involved, with Mayhall, in a work as- signment dispute concerning the use of a forklift by sta- gehands about 2 weeks before Dalen's layoff. Dinino in- dicated, however, that neither of these facts was in- volved in the decision to lay off Dalen. Torres had di- rected further cutbacks, and Grandi had made the deci- sion to lay off Dalen There were "no hard feelings" over Dalen giving a statement to the NLRB, and Grand' had not told Torres about the work assignment dispute. Dalen was ultimately assigned to perform the disputed work, was paid for it, and no grievance was filed in this regard. . Dinino denied telling Dalen in April 1982 that Connie Kennington thought he had gone to the NLRB and that he should watch his step or he would be laid off Dinmo acknowledged that he would use the term "barbecue" (as, a joke) but denied that he told Dalen he was on the bar- becue or on the "shit list" Dinino also denied telling Mayhall that he would be fired or laid off if he testified in an NLRB proceeding. Dimno was not a persuasive witness. His testimony was vague and indicated uncertainty at times. Asked on cross-examination what he said to Shop Steward Atkin- son when he first told Atkinson of the impending layoff, 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dimno said, "I don't remember the conversation." He said he did remember "basically" the conversation he had with Atkinson on the day of the layoff: He asked me why there -was a layoff, and I told him because of Mr. Torres. And he says, well, that doesn't seem right, we've got a lot of work to do around here. I says that's all I can tell you, that's all I know, talk to John if you've got any more ques- tions He said he had "basically the same conversation with" Kenn the same day, adding—"[h]e probably brought up the deal about Jess. The same thing Jess said. You know. And I told him there's no substance to that." Asked why more maintenance laborers were laid off in 1981 than persons in other crafts, Dinirio said the hotel needed carpenters and electricians to perform retrofitting to provide the hotel with fire protection. But later, under further cross-examination, he conceded he did not know when the retrofitting was done. "The dates," he said, "don't mean a thing to me."28 Dinino acknowledged on cross-examination that he knew Dalen had provided a statement to the NLRB be- cause Dalen had told him—"after I'd mentioned it to him" Dinino said he had sent Dalen in to "explain the situation why he wasn't laid off' to the then hotel attor- ney, Vincent Helms, and , Connie Kennington, and "he came back out all upset." Dinino said it was "general knowledge" that "we'd all" given statements to the NLRB, but, he said, "I don't think John [Grandi] never knew he gave a statement." 28 Robert Mayhall, who has continued to work at the Aladdin, testi- fied on rebuttal concerning maintenance laborers' work that he-had ob- served other crafts perform at the hotel after the 1981 layoffs ,Shortly after the November 1981 layoffs, four carpenters helped move slot ma- chines for 2 days Beginning around Christmastime 1981, while Dinino was hospitalized, Grandi directed that gardeners assist Mayhall and Steve Dalen in performing laborers' work (tearing out tiles, carpeting, and re- moving furniture) in the old Camelot building Such work continued for 2 or 3 months Also in early 1982, Mayhall observed engineers and car- penters tear out walls and carry ovens and other items out of 'the old Chinese kitchen In March 1982, construction carpenters were hired and assigned by Dinino to help Mayhall and Atwood move 300 chairs Con- struction laborers helped the maintenance laborers crew move files out of the underground parking area over a period of 2 or 3 weeks Construc- tion laborers and carpenters were assigned by Dim° to help mainte- nance laborers take out furniture, walls, and carpeting from the Bagdad Room Construction laborers helped move slot banks and assisted, up to around July 1982, the maintenance laborers move things to and from a new warehouse facility Carpenters were used in June or July 1982 to move 700-800 slot machines After Dalen was laid off in August 1982, a butcher was assigned for a month to drive a truck hauling meat back and forth between the Aladdin and El Rancho Hotel Also, after Dalen's layoff, Mayhall observed laborers from the El Rancho Hotel (affiliated with the Aladdin) move Items over a 2- or 3-week period between the El Rancho and the Aladdin Testifying on surrebuttal, Dinirui said he did hire construction laborers in March 1982 He said he had wanted to get a head start in furnishing the lower floors of the new, 150-room "lowrise" addition that got into trouble with the Construction Laborers' Union for having brought in maintenance laborers before the building was finished The Union, how- ever, agreed to the use of a composite crew, consisting of both mainte- nance laborers and construction laborers, which worked in the lowrise for 4 to 6 weeks A composite crew was also used for a very short time in moving files and in the Bagdad Room The construction laborers also helped out the gardeners for a month or 6 weeks and then were laid off Analysis 1. The alleged unlawful statements a. John Grandi The 'record convinces me that John Grand', as George Nicholson testified, approached Nicholson and other em-' ployees one afternoon a few days prior to the November 20, 1981 layoff and stated in substance that he hated to let "a few good guys go" to 'get one. I reject Grandi's assertion that he never made such a statement. It is clear from the record that the employee Grandi was referring to was Union Steward Jess Atkinson and that he was the object of special attention because he took the initiative in preparing and filing the November' 12 grievance pro- testing the use . of a "company vehicle" - by engineers in transporting and unloading of a dance floor. 29 Such a statement on the part of Grand' constituted a threat and a violation of Section 8(a)(1) of the Act. Paragraph 8(a) of the complaint was thus established. I am persuaded that on November 20, 1981, the day Respondent laid off six employees, Grand' told Harley Kerin, in response to Kerin's inquiry about the duration of the impending layoff, that Grandi was sorry about the layoff but that a "smart-mouth punk" was not going to tell him how to run his business; also, that when he (the "punk") got a job, the others could return. Kenn cor- rectly understood that Grand' was referring to Atkinson, even though his name was not mentioned Kerin's testi- mony was more persuasive than Grandi's denial and sus- tained the allegations of paragraph 8(b)(1) and (2). I am satisfied that Grand' stated to Chris Dinino, the presence of Steve Dalen in late December 1981 or at the beginning of 1982 and in response to Dinino's inquiry concerning the recall of persons recently laid off: "Has Jess Atkinson got a job yet?" Dalen's testimony to this effect was credible, and I accept it as correct Neither Grandi nor Dinino directly contradicted Dalen. Grand' acknowledged there could have been a conversation on the subject but did not remember it. Dinino.acknowleged- that there was a time when he spoke to Grand' about hiring new people while Dalen waited in a doorway. Din= said Grandes response was that there would be no hiring for a while and acknowledged that Grand' "could very well" have asked whether Jess had got a job. The allegations of paragraph 8(c) were established. b. Dmino The several allegations of paragraph 9 of the com- plaint that assert that Dinmo made a number of unlawful statements to employees between November 1981 and July 1982 were also established. Jess Atkinson testified that Dinino told him on or about -November 18 that the labor crew was being laid off up to and including Atkin- son 'over the grievance that he had filed the previous week. Kerin testified that something would happen if grievances did not stop and, shortly thereafter, on No- vember 20, 1981, Dimino announced that the layoffs were 29 The filing of such a grievance of course was protected activity See, for example, Ernst Steel Corp, 212 NLRB 78 (1974) ' 'ALADDIN HOTEL & CASINO 281 taking place because the union steward had been filing grievances "for workers doing our job." Achzet al go tes- tified Dinino explained the "guys" were being laid off because of grievances filed by Atkinson Grandi denied making such statements to Atkinson, Achzet, and Dalen, but I find the testimony of the workers more credible than that of their foreman, Chris Dinino. Paragraph 9(a)(1) was established. Robert Mayhall testified that a, couple of days, before the November layoff that Chris Dinino stated to him, while the two of them were working on the carpeting of the ramp that goes into the Camelot building from the north end of the casino, that "everybody was getting laid off up through Jess" and that everyone would have had their jobs if Atkinson had "kept his big mouth shut and butted out" I reject Dinino's assertion that he "didn't make such a statement like that" and find, therefore, that pargraph 9(a)(2) was .sustained. The credible testimony Ronald Achzet gave concern- ing two telephone conversations he had with Dinino early 1982 established 8(a)(1) violations as alleged in paragraphs 9(b) and (c) of the complaint. Diiiino had told Achzet and Harley Kenn earlier in November 1981 that they were being laid off because of the grievances filed by Jess Atkinson. After being laid off, Achzet tele- phoned Dinino about possible recall of the laid-off work- ers the following January and again in March 1982 Dinino responded in the January conversation that Achzet could return "as soon as Jess Atkinson had gotten a job" and told Achzet in March that "they were going to wait for Jess Atkinson's recall rights to run out, which would be a year." Dimino acknowledged having one conversation with Achzet after the November lay- offs but denied stating that recalls would not occur for a year, adding that everyone laid off knew that he had "a year hire back rights." The testimony of Steve Dalen sustained the allegations of paragraphs 9(d) and (e). Dalen said he wrote down the date, April 5, 1982, as the day he was .called into a meeting with Connie Kennington and Resort Association Attorney Vincent Helms, about 10 days after he had gone to the NLRB with Harley Kenn. Dinino had told Dalen to go into the meeting and explain that he would have been laid off earlier except for the fact that his wife had been pregnant with twins. Dalen said he explained in the meeting with Kennington and the attorney that others—carpenters, painters, gardeners, and persons in other trades—had been doing "our work." When he was asked if he had gone to the NLRB, he said he "realized who these guys were" and thereafter made no further re- sponse to them. Bob Mayhall, who was at the NLRB when Dalen and Kenn visited the Board's office (on March 26), knew that Dalen had given a statement, but Dalen told no one else except possibly his wife Dalen testified that he thought Dinino had asked "a few times" if he had gone to the NLRB but had not wntten down such incidents as he had other events. Dalen recalled, however, that 30 or 40 minutes prior to his meeting with Kennington and the Resort Association attorney, around 10.30 a.m., that Dinin6 had told him behind the Performing Arts area, where Dalen and May- hall were unloading chairs from a truck, that Dalen had "better match" it; that he "might still get laid off'; and that Connie Kennington thought he had gone to the NLRB. Dalen said he took Dinino's word g to be a threat—that he should not "testify anymore" or "defend the six people that got laid off" Two days later Dinino told Dalen that he was on the "shit list" and repeated it or another statement—that he was "on the barbecue"— several times thereafter, even up to the time "just before [he] was laid off" Dinino stated that Dalen's testimony concerning what Dininb had told him in early April 1982—that Kenning- ton thought Dalen had gone to the NLRB and that he should watch out or be laid off—was "ridiculous." While conceding that he had been known to use the word "bar- becue" as a joke, he denied ever telling Dalen that he was on the "shit list" or would be laid off for going to the NLRB. Dinino was equivocal about how he knew that Dalen had given a statement to the NLRB; he main- tained that it was "general knowledge" that "we had given statements" and that Dalen had told him that he häd given a statement "after I'd mentioned it to him." Dalen's testimony was more credible than Dinino's, and I . therefore credit the former. The statements Dinino ' made to Dalen in early April 1982 and later just prior to his layoff in August of the _same year constituted threats and were made, I find, be- cause Respondent believed Dalen had given a statement to the NLRB and might continue to cooperate with that agency Such statements violated Section 8(a)(4) as well as Section 8(a)(1) as alleged.3° 2 The layoffs The disciplining of employees for filing grievances violates the Act General Motors Corp., 233 NLRB 47 (1977), enfd. 616 F.2d 967 (6th Cir 1980); Pere Marquette Lodge, 237 NLRB 855 (1978); Ernst Steel Corp., supra. Moreover, the discharge or layoff of employees in order to discriminate againt a particular employee is discrimi- natory as to all such employees. See Arnoldware, Inc., 129 NLRB 228 (1960); Englewood Lumber Co., 130 NLRB 394 (1961), Northwestern Publishing Co., 144 NLRB 1069 (1963), enfd 343 F 2d 521 (7th Cir. 1965); and Givaudan Corp., 225 NLRB 1272 (1976). The record persuades me that the grievance Atkinson prepared and signed by him, along with other mainte- nance employees, on November 12, 1981, triggered the layoff 8 days later, on November 20, 1981, of six em- ployees—Steward Jess Atkinson, Harley Kenn, Maurice McBride, Joseph Washington, Ronald Achzet, and George Nicholson." There is convincing evidence that 3 ° The General Counsel requests in his brief that I find Respondent made other unlawful statements not specifically alleged in the complaint, but I decline to do so Such findings would be similar to those made herein, would be cumulative, and would serve no useful purpose 31 Respondent treats Dalen as one of six persons laid off in November 1981, contending that his departure was simply deferred because at the time Atwood was on medical leave and Dalen, whose wife was expect- ing, was kept on to take Atwood's place Atwood returned to duty, how- ever, on March 12, 1982, and Dalen was not laid off thereafter until August 6, 1982 Respondent maintains that McBride should not be con- sidered as part of the November 1981 layoff as he was "reinstated shortly Continued 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's layoff of the six men was conceived as an effort to make it appear to be a legitimate reduction in force—i.e., in accord with seniority rules—but was actu- ally an act of retaliation against Atkinson for filing the November 12 grievaace. 3 2 • Both Dinino and Grandi, whose statements were at- tributable to the Respondenf, 33 were quite explicit, as several maintenance laborers credibly testified, in stating that the November 12 grievance filed by Atkinson was the reason for the November 20, 1981 layoffs. . Atkinson testified that Dinino told him that he and other maintenance laborers less senior to Atkinson were going to be laid off because of the grievance Kenn and Achzet both testified that Dinino threatened a layoff over the filing of grievances. On November 20 Dinino told Kerin and Achzet that the layoffs were occurring because of grievances and agreed that "another Hesse sit- uation" was taking place. Dinino indicated to Dalen after the layoff that Atkinson was responsible for six people being out of work by opening "his big mouth" and that the Company was waiting for their recall rights to run out. Mayhall also heard similar messages from Dunn°. Dinino told Atwood in March 1982 that Respondent would not recall the laid-off workers but would let their recall rights expire. Grand', the head of Aladdin's maintenance, told Kerin, in effect, that all were being laid off because of Atkin- son's "smart mouth" and no one would be recalled until Atkinson got another job. Grand' also' told Nicholson that a few persons Were being let go to get "one guy." Grand' made statements to Dinino in front of Dalen and to Union Business Agent Burrus that indicated no one would be recalled until Atkinson obtained other employ- ment. after the November 20th layoff" R Exh 5 shows McBride was hired March 15, 1978, and laid off as a laborer on November 20, 1981, and re- instated December 9, 1981 (with subsequent as well as earlier layoffs and reinstatements) Respondent's list of layoffs, R Exh 7, does not list McBride I am convinced, in any event, that McBride was part of a sham layoff which was calculated to make It appear appropriate to reach Stew- ard Atkinson The amount of backpay due McBride, albeit small in amount, should be determined in the compliance stage 32 Of course where layoffs are motivated by employees' protected ac- tivity, as is the case here, that ends the Inquiry, even though there may have been an economic reason for them See Teamsters Local 357 v NLRB, 365 U S 667 (1961) . 33 I reject Respondent's assertion that Dmino's remarks are not imput- able to Respondent The mainteriance laborers regarded Dinino as a spokesman for management, even though such determination need not be based on his supervisory status See Helena Laboratories Corp. 225 NLRB 257 (1976), modified on other grounds 557 F 2d 1183 (5th Cu 1977). also Aircraft Plating Co, 213 NLRB 664 (1974) The record establishes that he was a supervisor and an agent of the management of the hotel The record does not portray Dinmo as a person "plagued by conflicting loyal- ties," as Respondent contends The "Montgomery Ward doctrine"—that "the Board has generally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the employer encouraged, authorized, or ratified the super- visor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of manage- ment," Montgomery Ward vl Co, 115 NLRB 645 (1956), enfd 242 F 2d 497 (2d Or 1957), cert denied 355 U S 829 (1957)—has no application in the Instant case There is no evidentiary basis here for concluding that employees regarded Dimno as being "a fellow employee" or as "one of themselves" as was the situation in Montgomery Ward The evidence is to the contrary Not only did the employees regard Dinino as aligned with management, management considered him as one of Its own and protect- ed him from the November 1981 layoff on that basis While Dimino and Grandi denied telling employees that the November 1981 layoffs were connected with the November 12 grievance filed to protest a work assign- ment, I credit the employee witnesses over the testimony given by the two officials of Respondent. Both Dinino and Grandi -were equivocal witnesses, and each exhibited animus toward - Work assignment 'disputes. Grandi con- ceded that he was upset with Steward Atkinson on Vet- erans Day 1981 when the latter Complained about the en- gineer's use of a truck and admitted ordering him to get his "ass out of here" Dinino threatened employees a few days before the November 1981 layoffs because of the filing of grievances. Dinino acknowledged that employ- ees in November- . 1981 were comparing the layoffs, which included the steward who filed the grievance, to "the Hesse situation" wherein seniority had also present- ed an obstacle. Contrary to Dinino's -testimony, I do not believe he took issue with the analogy the employees had drawn but frankly agreed with them that it was ap- plicable to their layoffs. And, as in the 'Hesse situation, Respondent did not recall the persons laid off in Novem- ber 1981 (with the exception of McBride) while Atkinson remained unemployed. Grandi told Nicholson that the layoff was to 'get one person and also remarked to Dalen that the persons who were laid off would be recalled if Atkinson got a job.'Grandi's comment to Union Business A'gent Burrus about finding a job for Atkinson is consist- ent with the hotel's plan not to recall the laid-off work- ers (within a . year) unless Atkinson found other employ- ment. I reject the notion that General Manager Torres was oblivious to the names of individuals who might belaid off and whether they filed a grievance or presented a problem to the hotel It strains credulity to believe that a person who watches 'costs so closely as Torres does would have been unaware who was protesting work as- signments and giving statements to the NLRB.34 I also reject Respondent's assertion that the decision to lay off specifically Atkinson, Washington, Kerin, Achzet, Nicholson, and Dalen had been made at least 6 weeks prior to the November 11 confrontation. Perhaps consid- eration was given in September 1981 to make cutbacks in the future as some of the renovation work was winding down I have no doubt, however, but what the protest and resulting grievance over the use of a truck by the engineers to move a dance floor on November 11 brought about the layoff of maintenance laborers Atkin- son and five other less senior to him (except Dinino). After the November' 1981 layoff, Respondent used other crafts to perform Maintenance laborers' work. The number of maintenance employees' actually increased after the layoff. In early 1982 construction laborers were hired and utilized to perform functions that would have otherwise been done by niamtenance laborers. There is no doubt about the fact that the cutback of maintenance laborers was out of proportion to the layoff of other crafts. 34 The supervisor's knowledge of unlawful activity is attributable to the respondent in any event See Panchito's v NLRB, 581 F 2d 204 (9th Or 1978), NLRB v Fremont Mfg Co, 558 F 2d 889 (8th Cu- 1977), and Montgomery Ward & Co. supra ALADDIN HOTEL & CASINO 283 I ,thus agree with the General Counsel that the real reason for the November 1981 layoff was to get rid of Atkinson and that Respondent's claim that the layoffs were made only for economic reasons was pretextual. General Manager Torres himself testified that he "didn't really get concerned until April 1982 because business was still fairly good" up to that time. Respondent's economic defense has more validity as to Dalen's layoff, but still falls short. At the time of his layoff Respondent's renovation program was at an end or nearly so, and other employees were laid off about the same time. the record nevertheless persuades me that Dalen was laid off because of his protected activi- ties—for giving a statement to the NLRB and his partici- pation in the preparation of a grievance on July 30, 1982. Respondent did not establish that Dalen would have been discharged in the absence of such protected activi- ties. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S 989 (1982), and NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Certain of Respondent's authorities deserve comment. None of them require dismissal of the allegations relating to the layoffs in this case, however, as Respondent sug- gests. In Regency at the Rodeway, 255 NLRB.961 (1981), the administrative law judge (whose decision was modi- fied in respects not relevant here) was persuaded that the decision to reduce two employees was made prior to the onset of their union activities and for valid reasons The judge was persuaded that one employee was discharged in fact "for reasons of economy" (by a supervisor- who was under pressure to reduce the staff and, later regret- ting it, hired a replacement to "blunt the employee hos- tility") and the other employee for misconduct. The dis- missal of two p'robationary employees in Rio Grande Valley Gas Co., 151 NLRB 489 (1965), was found lawful by the trial examiner because he was persuaded that both were let go "striCtly'bn the basis of their work, with no knowledge of the supervisor's union animus or the identi- ty of the eniployee who had filed charges against the employer." The 8(a)(1), (3), and (4) charges in Kinter Bros., Inc., 172 NLRB 199 (1968), were dismissed be- cause the trial examiner Was not convinced that the re- spondent employer had either laid off or reduced the hours of work of a meat wrapper (who later rejected offers to return to work) because she had testified in a hearing or engaged in union activity. In American Dis- play Mfg. Co.,259 NLRB 21 (1981), the layoffs were oc- casioned by a customer's request that :the production and delivery of a large order-be delayed. Most of the layoffs were determined by seniority and others were made for valid reasons (i.e., Luquis, because she had given notice of an intention to quit, Nieves, because of a mistake as to her seniority and without any discriminatory intent; and Pinto, because of absenteeism). In General Electric Corp., 256 NLRB 753 (1981), the administrative law judge dis- missed the complaint, including allegations that all of the electricians on a project had been dismissed because the shop steward brought in the union business agent to demand a public apology by the site manager for accus- ing the shop steward of pilfering. The judge found that the layoffs were for business considerations and were not pretextual. A finding that the layoffs Were made in an at- tempt to get rid of the steward "on the state of the record" in the case "would be mere speculation," the judge said. 3 5 Respondent's officials admittedly knew after April 5, 1982, that Dalen had provided a statement to the NLRB. Dinino reminded Dalen on a number of occasions from that day forward until laid off that his continued employ- ment was not to be taken for granted: Dinino warned Dalen that he was on the "shit list" or that he was "on the barbecue" Dalen's time ran out when he, Mayhall, and Atwood protested Dinino's allowing the stagehands to use the truck on July 30. Within a matter of days Re- spondent moved to lay off Dalen What Dinino *stated to Terry Atwood after Dalen's layoff—that Dalen would never work again at the Aladdin because he had filed Charges with the NLRB—leaves no doubt about the fact that the affidav,it that he gave to the NLRB was signifi- cantly involved in the decision to lay him off and was reason enough not to ever rehire him.36 I find that the statement Dalen gave to the NLRB mo- tivated Respondent in laying him off on August 12, 1982, and thereby violated Section 8(a)(4) of the Act. 37 I also find that Dalen's layoff, like the layoffs made in Novem- ber 1981, were in violation of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1 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. 2. The' Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by (a) Threatening to lay off maintenance employees be- cause of the filing of a grievance (b) Telling employees they are being laid off because Steward Jess Atkinson had filed a grievance. 35 Respondent contends in its brief, citing General Electric Corp, that the protected activity which the complaint relates to the layoffs was so insignificant that no discriminatory animus can be found Says Respond- ent "The stakes raised by the two grievances were [too] nominal com- pared to the costs of unlawful retaliation for the financially troubled Aladdin" But the work dispute protests (as well as Dalen's NLRB affida- vit) were obviously taken quite seriously by Respondent, and its repre- sentatives articulated as much to its employees 36 AtWmod testified that Dinino also threatened him with termination if he testified in a Labor Board proceeding The General Counsel has re- quested that I find such statement also violative of the Act Respondent has objected to such request on the basis that the statement was beyond the complaint I decline to make the .finding, however, as it would be cu- mulative and would provide no basis foi- an further relief 27 Sec 8(a)(4), which proscribes discrimination because an employee "has filed charges or given .testimony under the Act," has been given a broad interpretation See NLRB v Scrivener, 405 U S 117 (1972), where the Supreme Court held an employer in violation of Sec 8(a)(4) for dis- charging employees who, like Dalen, had signed affidavits but had not filed charges or testified prior to their dismissal The complaint herein al- leges that Dalen's layoff was occasioned by "filing charges or giving tes- timony under the Act,", but it is apparent that Respondent was not misled by such pleading 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Telling an employee that laid-off workers would be recalled when the employee who filed a grievance, Steward Jess Atkinson, obtained other employment. (d) Stating in the presence of Steve Dalen in effect that there would be no recall of maintenance workers while the employee who filed a grievance, Steward Jess Atkinson, was unemployed and subject to a recall. (e) Telling employees that they were being laid off be- cause of grievances filed by Steward Jess Atkinson (f) Telling an employee that maintenance employees are being laid off because Steward Jess Atkinson had filed a grievance. 3 8 (g) Telling an employee over the telephone that em- ployees would be recalled when the employee who filed a grievance obtained other employment. (h) Telling an employee over the telephone that Re- spondent would recall laid-off maintenance employees after Steward Jess Atkinson's recall rights expire 4. Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(1) and (4) of the Act by (a) Threatening an employee by telling hini that an of- ficial thought he had gone to the National Labor Rela- tions Board and that he should watch it and might still get laid off. (b) Telling an employee known to have given a state- ment to the National Labor Relations Board that he was on "the shit list" and "on the barbecue" 5. Respondent violated Section 8(a)(1) and (3) by laying off Jess Atkinson, Harley Kenn, Maurice McBride, Joseph Washington, Ronald Achzet, and George Nicholson, because a grievance protesting the as- signment of work to engineers was filed 6. Respondent violated Section 8(a)(1), (3), and (4) of the Act by laying off Steven Dalen because he gave a statement to the National Labor Relations Board and be- cause he participated in the preparation of a grievance protesting the assignment of work to stagehands 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain correc- tiye action to effectuate the policies of the Act. Having found that Respondent laid off Jess Atkinson, Harley Kenn, Maurice McBride, Joseph Washington, Ronald Achzet, George Nicholson, and Steven Dalen in viola- tion of Section 8(a)(3) and (1) of the Act, I shall recom- mend that Respondent be ordered to offer full and imme- diate reinstatment to their former positions or, if such po- sitions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, as well as payment of backpay for earnings lost by them as a result of the discrimination against them. Backpay shall be computed with interest as prescribed in E W. Woolworth Co., 90 NLRB 289 (1950); Isis Plumbing Co., 138 NLRB 716 (1962), and Florida 38 The violations referred to in subpars (e) and (0 are essentially the same although based on statements made by Dunn() to different employ- ees Steel Corp., 231 NLRB 651 (1977). The fact that Dalen's layoff also violated Section' 8(a)(4) of the Act doesnot require any additional relief as to him. Sinclair Glass Co., 188 NLRB 362 (1971), enfd 465 F.2d 209 (7th Cir. 1972). On these findings of fact and conclusions of law' and on the entire record, I issue the following recommend- ed" ORDER The Respondent, N & T Associates, Inc., d/b/a Alad- din . Hotel and Casino, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off employees or otherwise discriminating against them for filing or preparing grievances. (b) Laying off employees or otherwise discriminating against them for giving a statement to the National Labor Relations Board (c) Threatening to lay off employees for filing a griev- ance (d) Telling employees that laid-off employees will be recalled when one or more of them obtained other em- ployment or when the recall rights of one or more of them expire. (e) Telling an employee that he is on the "shit list," on the "barbecue," or otherwise threatening the employee for going to the National Labor Relations Board. (0 In any like or related manrier interfering with, re- straining, or coercing employees in 'the 'exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act (a) Offer Jess Atkinson, Harley Kerin, Maurice McBride, Joseph Washington, Ronald Achzet, George Nicholson, and Steven Dalen immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Las Vegas, Nevada place of business copies of the attached notice marked "Appendix."4° 39 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 48 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" ALADDIN HOTEL & CASINO 285 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall- be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.