Desert Inn Country Club & Spa

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Summa Corporation d/b/a Desert Inn Country Club & Spa and Miguel E. De Santiago. Case 31- CA-14044 27 June 1985 DECISION AND ORDER By CHAIRMAN •DOTSON AND MEMBERS HUNTER AND DENNIS On 23 January 1985 Administrative Law Judge Burton Litvack issued the attached decision. The Respondent filed exceptions and a' supporting .brief, and the General Counsel filed a reply brief. 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, r and conclusions2 and to adopt -'the- recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Summa Cor-. poration d/b/a Desert Inn Country Club & Spa, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i 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 Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversin g the findings. In sec IV,B of his decision , the judge gave an incorrect citation to Clear Pine Mouldingi, which appears at 268 NLRB 1044 (1984) 2 In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(l) of the Act by discharging striking employee De Santiago, Member Hunter and Member Dennis find it unnecessary to rely on New- port News Shipbuilding, 265 NLRB 716 (1982), and Laredo Coca-Cola Bot- tling Co, 258 NLRB 491 ( 1981), cited by the judge They rely instead on NLRB Y. Burnup & Simms, 379 U.S 21 (1964). With respect to the Respondent's backpay obligation to discharged striking employee De Santiago, Member Dennis agrees with the dissent in Abilities & Goodwill, 241 NLRB 27 (1979), that the majority in that case improvidently overruled more than 30 years of Board precedent re- quiring unlawfully discharged strikers to offer to return to work in order to initiate the running of backpay Absent three votes to overrule Abilities & Goodwill, Member Dennis will apply the remedy set forth in that deci- sion Chairman Dotson would overrule Abilities & Goodwill and would, in the event striking employee De Santiago was not permanently replaced prior to his discharge, date the Respondent's backpay obligation to De Santiago from the time the striking De Santiago made an unconditional offer to return to work. DECISION STATEMENT OF THE CASE BURTON LITVACK. Administrative Law Judge. The above-captioned matter was heard by me on December 5 and 6, 1984, in Las Vagas,' Nevada. On August 23, 1984, the Regional Director for Region 31 of the National Labor Relations Board (the Board) issued a complaint, based on an unfair labor practice charge filed by Miguel E. De Santiago, an individual,.oh April 12, 1984, alleging that Summa Corporation d/b/a Desert Inn Country Club & Spa (Respondent) engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). Respondent filed an answer de- nying the commission of any unfair labor practices. At the hearing, all parties were afforded the opportunity to examine and cross-examine witnesses, to present any and all relevant evidence, to argue their legal positions orally, and to file posthearing briefs. The latter were filed by both parties and have been carefully considered. Accordingly, based on the entire record herein, includ- ing the posthearing briefs and my observation of the de- meanor of the witiesses, I make the following FINDINGS OF FACT 1. JURISDICTION- Respondent is a state of Nevada corporation, with an office and place of business located in Las Vegas, Neveda, where it is engaged in the operation of.a hotel, casino, and country club. In connection with the business. operations, Respondent annually derives gross revenues in excess of $500,000 and annually purchases and re- ceives goods or services valued in excess of $50,000 di- rectly from suppliers located outside the State of Nevada. Respondent admits that it is now, and has been at all times material herein , an employer engaged in com -merce and in a busines afecting comerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent admits that the Culinary Workers Union, Local 226 (the Union) is now, and has been at all times' material herein , a labor organization within the ' meaning of Section 2(5) of the Act. III. ISSUE Did Respondent discharge Miguel E. De Santiago, an employee, on April 5, 1984, because he engaged in union or other protected concerted activities in violation of Section 8(a)(1) and (3) of the Act? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record establishes that Respondent's hotel, casino, and country club facility is located on, Las Vegas Boule- vard in Las Vegas, Nevada, and that Forrest J: "Wood-' ward II is its executive vice president., Ingress and egress to said roadway is provided by two entrances, one at the, south end of the facility t and the other at the north end.; A sidewalk runs alongside the roadway in front of the' main entrance doors, and separating the 'sidewalk ands i This entrance is approximately 50 feet -wide and provides for three traffic lanes (two incoming and one exit lane) marked by large, yellow` arrows A double yellow line separates the incoming and exit lanes ' 275 NLRB No. 116 DESERT INN COUNTRY CLUB, parking area is a strip of grass and shrubbery. Las Vegan Boulevard is a six-lane roadway, with a north and south traffic flow and,, arriving at the southern entrance, a ve- hicle, traveling south, would have to turn left against an oncoming traffic flow. The record further establishes that the Union is the collective-bargaining representative of certain of Respondent's, employees, including its bell- men; that the employees who were represented by the Union engaged in a concerted work stoppage and strike against Respondent comniencing on April 2, 1984; and that the strike lasted approximately 2 months. In support of the strike, at approximately 6 a.m. on April 2, picket-, ing' commenced alongside Las Vegas Boulevard in front of the facility. At some point between 7:15 and 7:30 that- morning a picket line incident, involving the Charging' Party De Santiago and a 1984'gray Datsun Maxima auto- mobile, driven by Dennis Couse, who was arriving at Respondent's facility in connection with his job duties for an outside food supplier, occurred, resulting in the discharge of De Santiago 3 days later.- Specifically what happened and who was at fault were the subjects of dia- metrically opposite testimony given by the-witnesses ap- pearing on behalf of the General Counsel and of Re- spondent. - - De Santiago, who had been employed -by Respondent since ' 1978 and was a bellman at the time 'of the strike and who had been designated by' the Union as the picket captain, testified that at least. 100 employees were picket- ing that morning;2 that the` picket line moved back and forth on the sidewalk alongside Las Vegas Boulevard across the entire width'of Respondent's facility'from'the' north to the south entrance; that, at all times, he either' carried a picket sign or wore one -around- his neck;, and' that, while picketing, he 'walked beside another bellman,' Larry Gonzales. According to the Charging Party, at the time of the incident, carrying a picket sign in this right hand, he and Gonzales were walking north to-south, and he was facing and speaking to Gonzales, who was, on the facility-side of De Santiago.- Positioned -in this, manner,: they entered the southern entrance area. 3. As. to, what then occurred, the latter admitted, "It all happened so fast. . . . I'm still a little bit confused as to immediately what happened.'' In any event, as he and Gonzales were a third of'the 'way through the entraice (jest past ,the exit arrow), he'heard someone yell, _"[W]atch out" and,' almost simultaneously, the squeal of brakes. 'De Santiago continued, "I turned back and as I turned 'back 'the bumper of al car struck my knee and made- me lose my balance where `I landed on my side and my hand came down and my chest came, down on the hood, and I was on one knee. - I got up, I put my stick on my left hand and I was'ru'bbing_ my leg, and I' got up, I pulled back, 2 De Santiago testified that , on that day, he was wearing Levi's, a hat, a sweatshiit,'and a'sleeeless hunting vest,` with'a blue armband, designat ing him'as picket 'captain, around his right arni While there was conflict" ing testimony as to the color of the vest' and, as ,to',vhether her had a'. beard that day, there is, of course, no disputeithat De Santiago was the: individual involved m the incident, a fact which he admits 3 be Santiago estimated there were 20 other pickets 'stretched across' the entrance, walking in both directions, and said they were all "pretty close together " During cross-examination, he admitted that the conges- tion in the entrance areas,that,morning caused vehicles, to come to a stop, "for a couple of seconds" before entering the driveways 791 and I leaned forward and;I told,[the driver]; "What's the matter with, you? t I would have ; moved." And, his window was up and the - man was yelling •., .. ^ and I could make • what he was saying . . . because I could read his lips." According to - De Santiago;- the- driver, whom he recognized as Dennis Couse,4 was cursing- at him through the- closed window. With regard to the impact and the result thereof, De Santiago, testified that he was struck on the outside `of his right knees' by the middle of the Datsun's front"bumper; that he lost his bal- ance, falling sideways • onto the, hood, . with the : picket sign, which he was, holding in his right hand, coming down "pretty hard" sideways, with the flat side of the wood exposed, across the center of the hood;. and that he immediately slid off the hood, landing with his left knee on the grounds on the driver's side of the car. He denied looking for any damage, resulting from the impact of the picket sign 'on the vehicle.7 According to De ' Santiago, while he; rubbed the • portion of his right knee hit by the front bumper, a crowd of approximately 20 pickets gath- ered around the Datsun, yelling at Couse. Moments later, Couse stopped mouthing curse words at De Santiago and drove his car off for the side of the entrance area. There- upon, he got; out and resumed shouting obscenities-at. the, Charging Party, to the point of-challenging the latter to a fight. } Testifying that he ignored Couse- and resumed =picket- ing, De Santiago was approaching the'north entrance 15' minutes later when fie was `hailed''by a' uniformed Las Vegas policeman from his patrol car, which was parked on hotel property. The officer asked to see his driver's license. ;De Santiago gave it'•to'-him,, and-the, latter walked over to where' Couse was' standing>by his' car., Later, a plainclothes' officer , approached the Charging ' Party and said he'w'ould^have to give hirn,amisdemean or citation; based on the' incident.8 After the second :po liceman advised De Santiago that, he probably, could 'd`o' ' something about the:cit_ation' the latter continued' pick et-; ing.: At approximately 12 noon, another=. employee told De - Santiago that : he supposedly' ' had been 'fired that morning. 'Thereupon, he"telephoned 'his supervisor; Chuck,Oswalt; who confirmed that- the-Charging Party had been fired as "security came and told me what.you did, that you hit a guest with your picket sign." De San- . .4-Couse^was known to'De Santiago as a former receiving manager at, the facility There is no dispute that Couse was, indeed , a former employ- ee, that he last, worked-for Respondent in 1980 as its warehouse and re- ceiving'manager, and that he-is married to a woman who was a'secretary . to a casino official at Respondent's facility at the time of the strike 5 De_Santiago stated . that he was sure that-the vehicle, impacted on his right ,knee "because -that'.s where the bumper hit it';',However, in his pre- i trial affidavit, ,the Charging Party, sunder oath, stated that the car struck; him, on-his-left leg between.the ankle and the knee Acknowledging that he read and initialed each page of the affidavit, De Santiago testified that he told the Board agent the injury was to his right leg, that the Board agent wrote down the wrong information , and that the taking of the affi- davit was constantly interrupted by, among other things, a fire drill 6 De Santiago failed to mention this iii his pretnal affidavit ° In his pretrial affid_ avit, De Santiago stated, "I looked at the hood of the car and as far as I could.'tell there-was-no'datnage"" The citation, which is dated April 2, 1984,and was issued -at 7 43 am , states "Did wilfully and unlawfully injure the personal property of another"To wit l983 Datsun , ,owned by Dennis•Couse Said damage, being in excess of $25 00 and less than $250.00 ", 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiago denied the allegation; however, Oswalt said he would be receiving a termination letter within a few days. Indeed, on Apnl' 5, he received the following tele- gram from Respondent:-"You are hereby terminated for misconduct on the picket line on Monday April 2, 1984. Specifically, you repeatedly and maliciously struck a guest car without provocation." During his testimony, De Santiago' denied the allegations contained in the tele- gram; stated that his picket sign impacted Couse's car, just as described above, one time; denied that he deliber- ately struck Couse's car with the sign; and denied either blocking the ingress of vehicles onto Respondent's prop- erty or striking 'any other vehicle prior to the Couse inoi- dent. Finally, De Santiago averred that, in view of the number of pickets in the driveway at the time of the col- lision, there was no way that Couse, without stopping and waiting for an opening, could have avoided hitting anyone as he entered. Two current employees corroborated De Santiago's version of the April 2 incident. Estimating that, at least, 30 employees picketed that morning, 9 Larry Gonzales testified that he and De Santiago were walking together, with the latter on the street side and facing him, no more than 4 feet apart. Entering the south entranceway area from the north, - Gonzales observed a car slowly ap- proaching the entrance perpendicular to it, having just completed a left turn. As other vehicles had come to a complete stop that morning in order to avoid hitting the pickets, Gonzales assumed that this one would likewise stop and let him and De Santiago pass "because we had the right of way in the driveway." t ° According to Gon- zales, "By the time we got around the middle of the en- tranceway he kept coming . . . and he didn't stop .. . and he hit Mr. De Santiago on his right shin, and he made an instant stop . . . at the same time, knocking Mr. De Santiago ..: holding his balance right on top of the car." t t The witness added that the middle of the car's front bumper hit De Santiago on "his right shin, right knee area";12 that the part of the Charging Party's body which landed on the car was "just his arm area . . . that's about it"; that the picket sign, which De Santiago carried in his right hand, came down on the car "in the middle" of the hood; and that "he caught his balance on top of the car. I think his left knee might have touched the ground, I'm not sure." Gonzales further testified that De Santiago arose and yelled at the, driver, whom the witness remembered as a former employee,. that he would have moved, but the driver merely was "flipping" him off. t 3 By this time, he continued, a group of pickets P As did the Charging Party, Gonzales maintained that the pickets covered the entire length of Respondent 's property fronting Las Vegas Boulevard - 10 Like De Santiago, Gonzales did not believe the car could have avoided hitting any pickets unless the driver stopped 11 Gonzales heard someone yell "something" prior to the impact and heard the screech of tires making a sudden stop. . 12 During cross-examination, he admitted that "it could have been above the knee." is During cross-examination , Gonzales stated that De Santiago was in front of the car when he spoke to the driver In his pretrial affidavit,- Gonzales said the statement was made after De Santiago walked around to the driver's side of the car. had crowded around the car. The driver slowly moved the car through the pickets and onto Respondent's prop- . erty, climbed out, and shouted at De Santiago, asking if he wanted to fight. 114 Gonzales concluded, stating that he and De Santiago thereupon moved from the area of the collision in order to 'avoid hassles. Finally, with regard to his testimony, Gonzales admitted that, when the car impacted De Santiago, "I jumped back . . . not knowing if he was going to keep on coming or what." Dennis Masanimptewa; who is currently employed by Respondent as a room service waiter and who participat- ed in the April 2 strike, testified that he also picketed, that morning alongside Las Vegas Boulevard in front of. Respondent's facility and that he was walking behind De Santiago, who was walking with Larry Gonzales, with several pickets in between. According to him, De' San- tiago, who was carrying a picket sign, and Gonzales were already walking across the southern entrance area when he first observed the car, driven by Couse, com- pleting a left turn across Las Vegas Boulevard and ap- proaching the entrance at approximately 5 miles per hour-a rate of speed at which coming to a complete, stop before reaching the entrance would have been im- possible. Dennis then observed that De Santiago was speaking to Gonzales with his head turned toward the former and was oblivious to the oncoming vehicle. As "it looked like [the driver] wasn't going to slow down" and "he had to slow down to let somebody by," the wit- ness continued, "I yelled at Mike to watch out and look out, and the guy didn't look like he was going to stop, but soon as he got up to Mike . . . he put on his brakes. And the tires screeched a little bit and kind of tapped Mike . . . a little above . . . the right knee." The part of the- car that lightly struck De Santiago was the front bumper "between the middle and the driver's side," and at impact, "[De Santiago] just fell to his right, onto the car. He had the sign with -him" and the flat side came down on the hood of the car of the driver's side. Then, "he slid off onto the ground" and "he caught himself with his left hand."ts During cross-examination, Dennis stated that he observed only De Santiago's arm hitting the car and that he was unsure if any part of his'body, other than his hand, touched the ground.'Further, he did not hear De Santiago yell anything at the driver. Dennis also testified that the car never stopped moving after hit- ting De Santiago; that a group of pickets crowded around the car and yelled at the driver as he drove to the parking area; and that when he arrived at the scene, De Santiago had moved on. Finally, while testifying ini- tially that Couse could not have driven through the pick-_ 14 In his pretrial affidavit, Gonzales said nothing about the driver chal- lenging De Santiago to a fight Rather , he swore that the driver moved onto Respondent's property , got out of his car, and spoke to a security guard Agreeing that the challenge to fight was important to his version of the facts, Gonzales testified that he did, indeed, mention it to the Board agent who took his affidavit but the latter "wasn't too precise" and "didn't want most of the detail " 15 Dennis placed De Santiago, at the time of impact, as being almost across the width of the entranceway and himself as being near a lamppost 10 or 15 feet north of the entrance . He estimated the distance as 80 feet from De Santiago but explained that he was never accurate in such'mat- ters DESERT INN COUNTRY CLUB ets without hitting someone, he testified on cross- exami- nation that just Gonzales and De Santiago were in the driveway at the time. - The driver of the vehicle, Dennis Couse, testified that for the 2-week period preceding the strike, he had visited the facility three or four times each day as the restaurant personnel was testing a new grapefruit juice provided by his employer. According to Couse, unaware that the strike had started until he arrived in the area of Respond- ent's facility at approximately 7:15 a.m. on April 2, he turned left across Las Vegas Boulevard and observed ap- proximately 12 pickets "going in a circle, just back and forth" across.the southern entrance area. Couse contin- ued, "[A]s.1 got to the sidewalk, still out in the lane of traffic, I had to stop for about 10 seconds because they were completely walking." Aware of approaching traf- fic, he began moving his car slowly forward, and the pickets "started making a little hole for me as traffic got closer." Just as the car crossed over the sidewalk and onto the entrance blacktop, "there was pickets on both sides of my car, real close." Then, he noticed De San- tiago, whom he recognized as a hotel employee, standing at "the left front of the car . . . where the wheel is," and the latter raised his picket sign and struck the hood with it. Thereupon, De Santiago "leaned over in front of the windshield and glared in the window at me." Couse esti- mated the employee stared at him for 5 seconds,-during which time Couse had stopped the car. i 6 According to Couse, while De Santiago was doing this, "everybody around the car started hitting it and banging it. . But as I was looking this side,' and my back side and my right side and in the front, is when the car was hit the second time in the front" by De Santiago who,"was still at the left side of the ear." As with the. initial one, this blow struck the hood. i' Testifying that he became ex- tremely angry at the conduct of. De Santiago and the. other pickets,' Couse moved the car over to a parking area, climbed out, and began, shouting at the pickets, challenging them to beat on this car where it was parked. A moment or two later, a Desert Inn security guard and a Las Vegas police car1s approached him si- miiltaneously. The former, pointing to what appeared to be' dents in the hood" of Couse's car, exclaimed, "[M]y god, do you see what they did to your car?" There was one uniformed officer in the police car and, shortly thereafter, some plainclothes officers and another uni- formed policeman arrived at the ' parking area. Couse stated tht the second uniformed officer was the-one who wrote out-the misdemeanor citation for De Santiago and who wrote out" the crime reports. i 9 Further, Couse ad- 16 Later, Couse contradicted himself, stating to me that the banging and hitting occurred as his car was moving slowly forward and that he never came to a complete stop ' . - 17 Believing there may have been three blows to the car by De San- tiago, Couse was certain that the two strikes, which he described, were separate _ 18 Couse stated that the patrol car could not have been responding to a radio call as he noticed it as he was turning into Respondent's entrance' "I believe he just saw the [incident] and he was right there " 18 According to Couse, the second uniformed officer did all the work as "the first officer ,told him to go ahead and finish the report " He fur- ther testified that Respondent's security guard-and the initial uniformed policeman drove off in the latter's patrol car to look for De Santiago 793 mitted stating in his pretrial affidavit that one of the pickets struck his car's hood "several times" causing two large and several small dents but failing to mention any other blows against his car. Finally, Couse admitted that he never repaired the damage to his vehicle as his insur- ance "had lapsed at the time." Corroborating Couse's version of the April 2 incident was' a security officer employed by Respondent, Steven Cutshall, who testified that he had' formerly been em- ployed as a police officer and had, at one time, owned an automobile body repair business. Cutshall testified that, at the time of the strike, his work shift was either 11 p.m. until 7 a.m. or 12 midnight until 8 a.m., that his shift en- tailed "prowl" duty involving looking for and reporting on any problems "that could go down on the property," and that, in view of the probable start of picketing that morning, at approximately 5:30 or 6 a.m. he had been as- signed "to stand by the south main driveway of the hotel" in an area 30 to 40 feet from the entrance itself and "to observe and report." He denied ever leaving his assigned position that morning except to obtain the nec- essary report forms for the De Santiago-Couse incident. According to the security officer, picketing began at 6 a.m. that day, with pickets walking slowly back and forth across the southern entrance to the facility, block- ing entering cars "actually throwing their bodies across the hoods of cars." Also, some "strays" walked between the south and north driveways. Cutshall testified that he first became aware of De Santiago,20 who was among the pickets at the south entrance, that morning when a blue station wagon drove into the entrance at 6:45 and, as it passed by the pickets, De Santiago struck it on the side with the butt end of his picket sign.2 i The driver continued on into the driveway and passed by Cutshall without slowing down.22 Shortly after that, the Couse incident occurred. Cut- shall testified, "I observed a small gray import trying to come onto the Desert Inn property. The picketers .. . had stood in front of the vehicle to prevent it from moving. The driver of the vehicle was inching onto our property and did come to a complete stop. At that time I seen Mr. De Santiago ... . in the front of the vehicle, place his hands . . . on the hood. Walk around to the driver's side of the vehicle, bend down as though he was saying something . . . get up, take two hands and strike 20 Cutshall had never seen De Santiago until that morning and only learned his name from the employee 's driver's license 21 During cross-examination , Cutshall said he was not sure if the blow struck the driver's or passenger's side of the station wagon During cross- examination, Cutshall stated that De Santiago was standing near "the back rear left corner panel" at the time of the incident and that, while he did not see the contact, he observed "the motion and I heard the sound " In any event, this incident was not a factor in the decision to terminate De Santiago 22 Cutshall did not think to report either incident to his superiors Ini- tially, as to the entire range of activity at the south entrance, he believed it to be "general picketing activity" not severe enough to warrant a report As to pickets throwing themeselves across the hood of cars, Cut- shall attributed this activity to "one of the Mexican fellows,"who stopped doing it after the security officer motioned for him to stop As to the sta- tion wagon incident, the individual never stopped the vehicle and -"my job is to report when a person wants to make a complaint " Cutshall ac- knowledged that the Couse incident would have gone unreported had not Couse complained 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the vehicle with his sign" 'after raising it level with his head and by swinging downward. The blow was 'deliv- ered with the flat wood side of the sign "about the center of the hood" and "I could only- see one blow ..' . that I was absolutely 100 percent sure of." At that point, the car began moving forward; as it passed, several pick- ets pounded on the car with their hands and kicked it and, once again, Cutshall observed De Santiago move-his picket sign "up and down" in a stabbing motion in the area of the vehicle's left rear quarter panel. This time "[he] didn't see the point of impact." The driver finally was able to escape the pickets. He drove a short distance into the driveway, stopped, and got out of the car. The vehicle was "close by". to where Cutshall was, standing and "I proceeded over that way." Simultaneously, or not longer than 30 seconds after the driver exited his car, a Las Vegas police patrol car came into the entrance. One uniformed _officer 23 was in the car, and, the damaged car's occupant who, Cutshall later learned, was Couse, reported that his vehicle had been struck by. a picket. The officer turned to Cutshall who, by then, had arrived at the parked car, and asked Cutshall if he had witnessed the incident and could identify the wrongdoer. Accord- ing to the security officer, 24 he answered affirmatively.' Thereupon, he and the. policeman got into the patrol car and drove down the picket line, and Cutshall pointed 'out De Santiago who, 'by' then, was walking, without a picket sign, along the sidewalk 'midway between 'the north and south entrances. The officer motioned for De Santiago to walk back to Couse's car and then the officer drove back over to it.' At that point, Cutshall went inside the hotel to ,obtain some security 'r'eport forms. ' He're-' turned a few minutes later to where Counse 's car was parked. By then, Cutshall's superior officer (his sergeant) was' present as was a second uniformed policeman, Gary Hood '25 who was filling out the required police 'reports: Utilizing the driver's licenses of De Santiago'and Couse; Cutshall thereupon prepared his own report" of the in- 23 'Cutshall said this policeman \'as not Gary Hood,' whose testimony. is reported infra t ' , 24 Cutshall said the first person to whom he spoke was the police offi- cer; however, he thought he was the one who . initially pointed put the damage to Couse's car but was not sure when , ' With regard to the extent of the damage, Cutshall seemed 'to minimize it, stating "he had a slight wrinkle in the hood," not reaching-the level of a.true dent, which Cutshall described as "a large depression " Basing such on his experience of operating an automobile body shop, Cutshall did not believe the "wrinkle" had to be repaired as it would not be visi- ble to an observer unless light was reflected from it in the ) right way. As to scratches,. Cutshall characterized such, if indeed they existed, ' as mere "surface scratches " : 1 " , 25 Cutshall did not se Hood arrive m`hispatrol car but assumes he was' a backup ' Also; two, plainclothes officers ' eventually amved at -the facility at some point '' ' - - -' '' • . . ', Cutshall maintained that he was the only security guardwho had wit-; nessed .the incident, that he had not, called the, police,,and that the first patrol car officer presumably "had seen the commotion ." As to who was responsible for reporting ' any 'matters to the'police,`Cuts'hall'said;the'ie-1 sponsibility,for such was that'of his sergeant's - - • ", i i l 26.Cutshall's report, R Exh 1, is in two .parts The upper ,portion is a' narrative of what' he observed, and information ,therein is "mine The lower portion contains mformatidn regarding Couse' and De Santiago' Although the source of such is not at all clear from the record , Cutshall apparently obtained the information from the driver's licenses The narra- tive portion reads as follows , . i At approximately 7.15/am this date, while stationed ,on the main. hotel entrance drive south end, this R/O observed the following A cident. As to the contents, the security officer maintained that such was what he observed-"My job is not to lie." During cross-examination, he reiterated that after placing his hands on the front of Couse's stopped car, De San- tiago moved around to the driver's side, bent over, and peered into the side window.- If the employee spoke to Couse, Cutshall heard'nothing. On this point, the latter was confronted' with his pretrial affidavit where he stated, "I heard De Santiago say something to the driver as he looked through the driver's window." Also, Cut- shall testified that, when-the pickets stopped Couse's 'car at the entrance, De Santiago was off to' the side, with his back turned to the car. In his pretrial affidavit, the secu- rity officer placed De` Santiago in front ' of the car as it was blocked from moving forward. Appearing as a witness for the General Counsel was Las Vegas police officer Gary Hood. He testified that at 7:45 a.m. on April 2, he "received a radio dispatch from my dispatcher" to report to the Desert Inn "on a disturb- ance call there." It took him 2 or 3 minutes to respond, and` when he arrived at Respondent's facility, Hood was hailed by 'two or three security guards who were stand- ing by a Datsun parked in the south entrance area. The owner of-the automobile, who Hood later learned was Dennis Couse, was also standing. next to the car;. the owner told Hood "that he had attempted to cross the picket line and when he did one of the picketers struck his car with a picket sign causing .a dent in the hood of the vehicle.... He said it, was. struck once.. I, don't recall if he said it was' struck more than once." Hood asked if Couse could identify the picket who struck his car; the,latter said he could do so, and he_pointed out De Santiago as the malefactor. According to the witness, he did not approach De Santiago to question him as he was under instructions not to. go into the picket lines during the first few, days of the strike. Hood continued, stating that plainclothes officers had previously.been dispatched and that he waited, for them to speak; to De Santiago. With regard to any. damage to the car, Couse showed Hood a dent in the hood: "[i]t was about midways in the hood .. . it, was about two.to three inches long" and "kind of a crease." While at the scene, Hood filled, but a crime report and had Couse write,'out;a "voluntary state- ment," describing the -crime. This document, General Counsel's Exhibit 6, reads as follows: "I was going into the Desert Inn Hotel at 7:15/am and as I, went across the picket line, a, picket struck my car causing damage, to the hood. D. I. security.were right there to witness the inci- dent." Finally, Hood testified.. that he was'not the only uniformed, officer, at the scene:.,`[t]here was a backup unit sent to assist, me until plainclothes officers arrived." He added'that this other policeman spoke. to no one and left after the plainclothes officers came.' Shawn Gonzales, the ,wife. of Larry Gonzales, and d cur- rently, employed at .Res'pondent's, facility. as a pantry. - person, testified; that, although it was her day off, she.ar J' grey Datsun Maxima vehicle tried to come across the picket line at the south end main drive when a picket carver struck the hood area of the grey Datsun causing minor hood damage Metro unit respond-. ed'and 'crted the individual that'damaged-the vehicle, on i malicious mischief charge. ' ' DESERT:WINN COUNT X'-CLUB rived in the area of the picketing at some time between 7:20 and 7:2527 on the morning of April 2. She parked her car near a department store not far from the facility and walked north on the sidewalk along Las Vegas Bou- levard toward it. As she approached the pickets at the southern entrance, her husband said to her that "Mike De Santiago had just been hit by a car and he pointed to a man that was getting out of a ear." According to Gonzales, she immediately recognized Dennis Couse as a former employee and as one with whom she was- dealing in the grapefruit juice. testing that was ongoing. She told her husband the man was Couse: "So then I started look- ing around for a security guard. I didn't see [one]. By that time, Couse `had walked into the hotel. He came back out, maybe fifteen to twenty minutes later, with a security guard and they went over to his. car and they. were standing there ... . [when] a patrol car pulled up with two officers and then the security guard went over to the hotel and stood on the corner of the hotel, facing the driveway." Shortly thereafter, four plainclothes offi- cers arrived. Shawn maintained that no security guard was at the south entrance when she arrived there that morning; that the nearest one was 40 yards away near the main doors; that this was significant to her because she was the daughter -of a policeman and knew that, if trouble occurs,' one should seek out a'security guard or policeman; that, if a guard had been present, she would have requested that lie speak to De Santiago; and that she did not know the guard near the main doorway and, therefore, did not know if he would be sympathetic to- wards the pickets. In her testimony during cross-exami- nation, the witness said there was "no possible' way" she could have arrived at the hoteP as late as 7:45 aim.; how-' ever,' in her pretrial affidavit; Shawn said 'her arrival time was "a few minutes after 7:45 a.m." Averring that she told the'Board agent that` the' time was wrong, Gonzales nevertheless initialed ^ and - executed • the affidavit •and swore to the truth -of -the contents. Finally; 'after stating that she and Couse were friends, Shawn testified that, on the • Saturday before the strike, Couse spoke to her and asked if she thought a stake would' take place.' She an- swered' yes and Couse responded,' "[I]f you see me coming, you better jump out of the'way, because I am going to run you all over." Couse specifically denied making 'such a comment, and Gonzales admitted saying in her pretrial affidavit that, at the time, she believed' Couse was "joking" when he said it. ' ' Forrest-Woodward,'Respondent's`executive vice presi- dent', testified "that he was informed -of- the Couse=De Santiago' incident at approxiniately 9.30 a.m. on April 2 and that 'after' an "exhaustive amount • of work in that area," he reached the decision to ' discharge De _ Santiago' "very 'late in 'the day` and directed'tha't' a telegram 'stat- ing the grounds foi such,' be ' sent to 'the' eployee.' •His decissioh •was 'reached 'in' consultation with Respondent's labor relations -staff and'was based on'a iepoit from the' security staff, on' the police report of the incident,' on' viewing the damaged vehicle, and on speaking directly 27 According to the witness, she could exactly fix the time because she had'taken her daughter to school and it, takes, 15, to 20 minutes to get to Respondent's facility from there , 7,95 to Coiise; who told Woodward "that as he was entering the property, that Michael had . . . taken the picket sign and hit his car. I don't remember if it was two or three times and that is where the dents came from on the hood." During cross-examination, Woodward admitted that his decision was made without having spoken to De Santiago (he was picketing); that the decision was based solely on the Couse incident; that Couse had not been a hotel guest (why he was at the hotel was not "germane" to the matter); and that, in his own pretrial affidavit, he said he could not recall how many times Couse said his car had been struck but it was more than once. B. Analysis The law governing my decision herein is well settled. Thus, "Section 7 of the Act gives employees the right to peacefully strike, picket, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984); Newport News Shipbuilding Co., 265 NLRB 7,i.6, 718 (1982). In all cases involving either' the discharge of or the refusal to reinstate strikers for having engaged in alleged acts of picket line miscon- duct, "the burden of proving discrimination is that of the General Counsel." Rubin Bros. Footwear, 99 NLRB 610, 611 (1952). In this regard, the General Counsel must first establish that the individual was, in fact, a sinker and that an employer took some action against him for con- duct. while said individual engaged in the strike. At that point, the burden shifts to the respondent which must prove,that it entertained an honest belief that the striking employee has engaged in misconduct. Such constitutes an adequate defense to a charge that the discharge or re- fusal to reinstate was violative of the Act except where the General Counsel affirmatively establishes that the employee did not, in fact, engage in such misconduct or that `the misconduct is not so flagrant or egregious so- as to warrant discharge or denial of reinstatement. Newport News Shipbuilding, supra; Laredo Coca Cola Bottling Co.; 258 NLRB 491, 496 (1981). Herein, the record clearly establishes-and there is no dispute-that the Charging Party De Santiago participat- ed in the union-represented employees' strike and partici- pated-in the picketing against Respondent, which com- menced, during the morning of April 2, 1984. Further, there' is equally no dispute that he was discharged for strike-related activities, the• exact nature of which is in contention: The burden, I believe, thereby shifted to Re- spondent to prove that it honestly believed De Santiago engaged in the alleged picket line misconduct for which he was terminated: "repeatedly and maliciously" striking the' automobile, owned by Dennis Couse, with his picket sign as Couse attempted to drive onto Respondent's property through the southern entrance from Las Vegas Boulevard on April 2. In this regard, the testimony of Forrest' Woodward, that he reached his decision to dis- charge' ' De Santiago based -'on Respondent's security guard's and the Las Vegas police department's reports of the above incident, on his view of the damage done to the hood of Louse's Datsun Maxima automobile, and on Couse's own version of the incident, was'uncontrovert- 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed. That the factors, relied on by Woodward, confirm the allegations set forth in Respondent's discharge tele- gram which was received by De Santiago on April 5 is clear. Thus, there is no dispute that the hood of Couse's automobile was damaged, to some extent, by De Santia- go's picket sign on April 2, and the police report filed by Las Vegas police officer Gary Hood;-,the police- state- ment written by Dennis Couse at the scene of the inci- dent; and security guard Steven Cutshall's report of the incident all detail-the fact that De Santiago -did, indeed, act in , the ,manner as asserted by Respondent's discharge telegram. Accordingly, based on Woodward's testimony regarding what factors-he relied on in-deciding to dis- charge De Santiago and the existence of 'the foregoing corroborative materials, I find that Respondent did estab- lish that 'it reasonably and honestly believed that De San- tiago engaged in the above alleged picket line miscon- duct. - • ' However, as recognized by all parties herein, the crux of the instant matter is-whether, in • fact, De Santiago acted in the manner asserted by Respondent or was he the innocent victim of negligent driving by Couse? Put another way, whose 'version' of the' April 2 incident should be credited: that.,of-Couse or that of De Santiago? If the latter,, then the General Counsel has established that De Santiago did not engage in the, alleged, miscon- duct, and his discharge must be found to have violated the Act. In assessing the credibility-.of -theseveral wit- nesses, I have considered the demeanor of each while testifying and the' record as-a' s a whole, scrutinizing it for internal testimonial inconsistencies and contradictions as well as for contradictions between supposedly corrobora- tive witnesses. By.far; the most impressive-witness was Las Vegas police officer, Gary Hood. His demeanor was that of an honest and candid -.witness; he exhibited an ex- cellent recollection of what he was told, observed, and did in connection with his investigation of the -incident; and he had absolutely no interest (pecuniary, personal, 'or• other) in the outcome of this proceeding. 'Therefore, his testimony is' credited' and relied upon in fall- aspects. 'He testified - that he arrived at Respondent's facility at' ap- proximately 7.45 a.m. pursuant to a dispatch regarding a disturbance. and was hailed by security guards and Couse: Although he did not, so state, the inference is cer- tainly warranted that he was the initial Las Vegas police officer' to arrive at the scene.28 This 'gives, credence to the. testimony of Shawn Gonzales-who stated that, when she arrived, she saw no Desert Inn security guard' in the vicinity of the south' entrance 'and"-observed Dennis Couse , walk into, t - ' h6hotel .; She ; testified further that Couse emerged. from the hotel 15-minutes later, •accom- panied'by'a security' guard; that they walked .over `to 'his car, and that moments later,` a Las Vegas'police car `ar- rived and 'pulled up, next to where ;they were standing. Based on the corroborative testimony of Hood; including the 'permissible -inferences drawn `from- it,` -and her testi- monial demeanor which was that of a forthnghtwitness, 28 Hood testified that he immediately questioned Couse as to what happened, that Couse identified De Santiago as the employee involved, and 'that a, backup was sent to assist him' If'Hood had, been the backup, the latter would have been unnecessary ' ' ' . 1 ' I credit Shawn Gonzales in the above regard and believe that the disturbance call to which officer Hood respond- ed that morning was, placed by Respondent's security staff while Couse was inside the facility.29 Of course, crediting Shawn Gonzales that no security guard was in the vicinity of the south entrance at the time of the incident'necessanly leads to the conclusion that security officer Cutshall not only did not' witness what occurred that morning but also fabricated his testi- mony in that regard. Initially, he appeared to be a rather disingenuous witness; one whose manner was that of an individual trying harder than seemed necesary to con- vince me of his inherent honesty, conduct which had the opposite effect. Further, several rather blatant contradic- tions between his version of the incident and that of Couse buttress this finding. Initially Couse, internally in-, consistent on 'this point, testified finally that; at all times during the banging and kicking on his car, he .was slowly moving forward and never came to a complete stop. Cutshall, on. the other hand, described Cause's Datsun Maxima as inching onto Respondent's property but coming to a complete stop with De Santiago standing in front of it. Next, Couse stated that the Charging Party first struck the hood-of the car with his picket sign and then glared at him through the; windshield for at least 5 seconds. Also Couse never described De Santiago as speaking to him. Contrast this with the-testimony of Cut- shall who stated,that, before striking the- vehicle with his picket sign, De Santiago.bent over and acted as if speak- ing to Couse through .the driver's side window. Later, Cutshall denied hearing what; .if anything, De Santiago might have' said'but' admitted stating in his pretrial affida- vit that-he did, indeed; hear what was said Third, in per- haps the most' significant •cbntradiction,-.Couse- insisted that De Santiago: delivered -two separate 'blows to the hood of his -car: with. his picket sign; however, Cutshall testified, "I• could only see one blow .- . that' I was ab- solutely 100 percent 'sure of.'!- Further,' 'if De Santiago again' struck `the car; Cutshall observed him making a stabbing motion with his picket sign at the left rear guar- ter panel of Cause's' car but' did not see the- impact Couse mentioned no such blow to his car. Finally, Couse testified that-'when he stopped' his car after driving past the pickets,; the hotel security guard walked over to'it, looked at the hood, 'and exclaimed," [M]y god, do you see what 'they did to your car?" Cutshall failed- to' cor- roborate this utterance but did' state that the first -person he' assertedly 'spoke 'to when "'he got to the `car" was''a police `officer' who arrived ' simultaneously.' In this `regard, the`"nature of the remark attributed fo the security guard by - Couse' suggests'- rather serious, `and -extensive damage to the car 'However, -Cutshall appeared to be attempting to 'minimize` the'damage, referring to what' he `observed as a 'mere crease -rather than a dent and`desci ibing- it 'as 'not- readily apparentf to' anyone ` unless viewed in ` the 29 In crediting Shawn Gonzales, I am fully cognizant of the discrepan- cy between -her testimony 'and pretrial affidavit regarding her arrival time at Respondent's facility that morning I shall make no effort to reconcile this except to note that I was not present at the taking of the affidavit and'base my'concltision on her demeanor at the hearing and the record as a whole DESERT INN, COUNTRY CLUB_ properly reflected light. Besides the foregoing crucial contradictions, another aspect of Cutshall's account seemed contrived. Thus, with instructions "to 'observe and report ""on matters involving the picketing, he admit- tedly failed to immediately report on the deliberate blocking of cars entering onto Respondent's property through the south entrance, pickets throwing their bodies across the hood of incoming vehicles, and an act of _vio- lence by De Santiago (striking the side of a blue 'station wagon, as it entered onto Respondent's property, with his picket sign). His explanation for failing to report these serious events seemed out of character with how Cutshall described his responsibilities as a security guard and was utterly unconvincing and,- in these circum- stances, I do not believe that any such incidents oc- curred. In short, I found Steven Cutshall to be a witness not worthy of belief and do not credit or rely on his as- sertedly corroborative testimony herein.30 We are left, then, with the testimony," on the one' hand of De Santiago and of his assertedly corroborative wit- nesses, Larry Gonzales and Dennis Masanimptewa, and, on the other, the version of Couse as to what occurred on the morning of April 2. Analysis of the record alone reveals credibility problems with each witness. Thus, both De Santiago-and Gonzales testified at the hearing at variance with their respective `pretrial affidavits; Masan- imptewa's testimony is inconsistent with that of De, San- tiago; and the testimony of Couse reveals internal and external contradictions as well, as contradictions with his pretrial affidavit. • Considering 'the testimonial, demeanor of each, . I believe that Dennis Masanimptewa appeared to be the ,most candid and forthright of -the three and that he honestly was trying to recount what he observed that morning. He, of course, testified that the car, driven by Couse, having completed•a.left turn into. the south en- trance from Las Vegas Boulevard; could: not come to ;a complete stop in time to avoid colliding-.with De San- tiago, who was paying no attention, and'struck the latter in, the area of his. right knee, causing him to topple and land with his, picket sign on the roof of the car-and then slide off to the ground. I credit this, account as being=the true version of the incident. Having so-stated, I do not credit or rely on the versions of either, De, Santiago or Gonzales except to the extent that each testified that the car driven by Couse struck De Santiago._ The contradic- tions between his testimony and pretrial affidavit i con- vince me that, in reality, the Charging Party had not recollection of exactly what happened when struck,by the car and that his most candid testimony .was his ad- mission,: It all happened .so fast. : . . I'm still , it. littler bit confused 'as: to immediately; what happened.;, Likewise,:I do •not believe that Gonzales could possibly ,have accu- rately,1perceived what happened,- at the: moment of impact given his ,admission that, as- the car came ;upon 'De San- tiago, he was, jumping back, apprehensive/that it,was not going to _stop.. As to Dennis Couse, ;while his testimonial demeanor compared' favorably to that of De Santiago 30 With regard to the initial portion of his. incident report, there is nothing therein that Cutshall could not have learned from listening to Gary Hood question Couse on the former's arrival at the scene Further, ,I credit Hood that it was Couse who identified De Santiago ,as the male- factor and, in so doing, discredit Cutshall that he identified De Santiago 797 and Larry Gonzales, as between Masanimptewa and him, based on -my, above-stated perceptions, I credit the testi- mony ,of the former .31 , Couse had every reason to fabri- cate what occurred32 in order to cover up his-own neg- ligence;33 whereas I found no such' comparable bias' in the testimony of Masanimptewa, who is,still employed by Respondent and thus, testified against his own self-in- terests. , Based on the foregoing findings, I believe that the inci- dent, for which -De Santiago was discharged by Respond- ent. did not occur and that Respondent, in good faith, relied on the fabrications of Dennis Couse in doing so. Accordingly, the- record establishes that De Santiago was engaging in activity, protected by Section 7 of the Act on the morning of April 2: peacefully picketing in sup- port-.of a strike by union-represented employees against Respondent; that he was discharged for alleged miscon- duct in the course of such;, and that said misconduct never occurred. In these circumstances, the discharge of .De Santiago was violative of Section 8(a)(1) of the Act. 34 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. = i 2. The Union is a labor organization within the mean- ing of Section ' 2(5)' of the Act. ' 3:''By unlawfully discharging employee Miguel E. De Santiago. about April 5, 1984, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 4. Said conduct affected the commerce between , the States as defined by the Act. ' 'THE REMEDY • .Having found that Respondent- has engaged in, and is engaging in, unfair labor practices, -I shall recommend:tht it=be,ordered to cease and desist therefrom and take-cer- tain. affirmative action designed to effectuate the policies of ,the Act., I have found that Respondent discharged 31 Although placing no reliance on the . testimony of De Santiago•'and Gonzales! regarding the collison between Couse's car and De Santiago, I acknowledge the inconsistencies between their testimonies and that of Masanimptewa, on which I rely, and I think that said contradictions'do not `detract from the basic nature of the event to the extent that to those present in the allegedly corroborative testimonies of Couse and Cutshall In any event,. my, credibility resolution, between. Masanimptewa and Couse is based'on'the honest demeanor of the former As'to the aftermath of the incident, noting 'that' Dennis Masanimptewa heard nothing said •by'De Santiago but also noting that he could have been as much as 80 feet from the impact point, - I find that, in all likeli- hood, De Santiago did yell to Couse that had he,been given a chance, he would have moved[ out of the path of Couse's car Further, given their agreement on this point, I also find that Couse shouted obscenities at De Santiago and challenged him to a fight after moving his car away from the picket line area and to the side of the entranceway . 1432 I place no reliance on the. assertion of Shawn Gonzales that, shortly before,the onset of the strike, Couse confided to her that he would run over the pickets` Notwithstanding the latter 's denial, she admitted stating in a pretnal affidavit that he was joking, and I do not believe Couse de- liberately struck De Santiago on Apnl 2 82 Couse admitted having no automobile insurance as it had "lapsed " 34 Inasmuch as the remedy is the same, I need not decide whether Re- spondent's conduct is also violative of Sec. 8(a)(3) of the Act 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miguel E. De Santiago in violation of Section 8(a)(1) of the- Act. In accordance with Board policy,35 I shall, therefore, recommend that Respondent be ordered to offer De Santiago immediate and full reinstatement to his former position or, if such no longer exists, to a substan- tially equivalent position without prejudice to his seniori- ty or other rights of employment and to make him whole for any loss of his lawful discharge by payment to him of a sum of money equal to what he would have earned from April 5, 1984, until the date of an offer-of reinstate- ment, less net earnings during this period , with interest thereon, to be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1917). 36 It shall fur- ther be recommended that Respondent be ordered to post a notice and remove from its records any mention of the discharge of De Santiago. On these findings of fact and conclusions of law and on the entire record, I issue-the following recommend- ed37 ORDER The Respondent, Summa Corportation d/b/a Desert Inn Country Club & Spa, Las Vegas, Nevada, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging the protected concerted activities' of its employees by discharging . its employees for having engaged in lawful picketing during a strike. (b) In any like or related manner 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 which will ef- fectuate the policies of the Act. (a) Offer Miguel E. De Santiago immediate and full re- instatement to his former job or, if -that job no longer exists, to a substantially equivalent position , without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, 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. ss Seminole Mfg. Co., 272 NLRB 365 (1984); Abilities d Goodwill, 241 NLRB 27 (1979), enf. dented on other grounds 612 F 2d 6 (1st Cir. 1979). 98 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 91 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- (c) Remove from its files any reference to the unlawful discharge of Miguel E. De Santiago and notify the em- ployee in writing that this has been done and that the discharge will not be used against him in any way. (d) Post at its facility in Las Vegas, Nevada, copies of the attached notice marked "Appendix."38 Copies of the notice, on forms provided by the Regional Director for Region 31 , after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable-steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. • - (e)_ Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. se 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 " 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 or- dered us to post and abide by this notice. WE WILL NOT discourage the protected concerted ac- tivities of our employees by discharging- them for having engaged in lawful picketing during a strike. - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Miguel E. De Santiago immediate and full reinstatement to his former job or, if such job no longer exists; to a substantially equivalent job, without prejudice to his seniority or other rights of employment and WE WILL make him whole for any pay that-he may have lost as a result of his-discharge, with interest. WE WILL expunge from our files any,reference to the discharge of Miguel E. De 'Santiago, and, notify him' m writing that this has been done and that evidence of such unlawful action will not be used as a basis for future dis- cipline of him. SUMMA CORPORATION D/B/A DESERT INN COUNTRY CLUB & SPA