Mgm Grand Hotel

MGM GRAND HOTEL MGM Grand Hotel and Emma Menendez. Case 31- CA-14218 _ 8 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 April 1985 Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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,' and conclusions as modified' and to adopt the recom- mended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, MGM Grand Hotel, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order as- modified. 1. Renumber paragraph l as "1 (a)." 2. Insert the following as paragraph 1 (b). "(b) Cease and desist from in any like or related manner interfering with, restraining, or coercing employees in the exercise of their- Section 7 rights." 3. Substitute the attached notice for that of the administrative law judge.3 ' 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 reversing the findings 2 In concluding that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging Emma Menendez for allegedly engaging in strike mis- conduct,'the judge found it unnecessary to pass on whether Menendez had yelled "scab" at the occupants of employee Cook's car Even assum- ing that Menendez yelled "scab" during the incident, we do not find that she engaged in conduct justifying her discharge under the standards of Clear Pine Mouldings, 268 NLRB 1044 (1984) Further, in adopting the judge's finding of a violation herein, we do not rely on the cases, other than Clear Pine Mouldings, cited by the judge in his decision 2 We have substituted a new notice which conforms to the revised order, and which includes certain language inadvertently omitted by the judge from his notice APPENDIX - 1015 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ' WE WILL NOT discharge or otherwise discrimi- nate against employees in regard to hire or tenure of employment, or any term or condition of em- ployment, for engaging in permissible conduct re- lated to picketing during the course of the strike which occurred from 1 April to 6 June 1984. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by 'Section 7 of the Act. - WE WILL make Emma Menendez whole for any loss of earnings she may have suffered by reason of such unlawful discrimination by paying her a sum of money equal to the amount she normally would have earned from the date of discharge until the date of reinstatement, plus interest. WE WILL expunge from our files any reference to the disciplinary discharge of Emma Menendez on 12 June 1984, and WE WILL notify her that this has been done and that evidence of this unlawful discharge will not be used as a basis for future per- sonnel actions against her. MGM GRAND HOTEL DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in Las Vegas, Nevada, on December 3 and 4; 1984. The initial charge was filed on June 13, 1984, by Emma Menendez, an individual, and an amend- ed charge was filed by Menendez on July 26, 1984. On July 26, 1984, the Regional Director for Region 31 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging a violation by MGM Grand Hotel (Respondent) of Section 8(a)(1) and (3) of the National Labor Relations Act. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been - received from the General Counsel and counsel for Respondent. 275 NLRB No. 146 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the entire record, and based on my observation of the witnesses and .consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent , is a Nevada corporation with an office and principal place of business located in Las Vegas, Nevada, where it is engaged in the operation of a hotel and casino: In the course and conduct of its business op- erations, Respondent annually ' purchases and 'receives goods or services valued in excess of $50,000 directly' from suppliers located outside the State - of ' Nevada, and annually derives gross revenues in excess of $500,000. It is admitted, and I find, that Respondent is now, and- has been at all times material herein, an employer en- gaged in commerce and in a business affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Culinary Workers Union, Local 226 is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. - III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Respondent's termination of employee Emma Menen- dez for alleged strike misconduct is-violative of Section 8(a)(1) and (3) of the Act. B. The Facts Emma Menendez has worked for Respondent since 1972. She is currently a showroom captain . ' Menendez was terminated .for alleged strike misconduct during her participation in an economic strike against Respondent by Culinary Workers Union, Local 226. The strike ex- tended from April. 1, 1984, until June 6, 1984, and the parties stipulated that during the course of the strike there was conduct that could reasonably cause nonstrik- ing employees to be fearful of working or crossing the Union's picket line. According to Respondent's records, dated June 12,' 1984, Menendez was terminated for en- gaging in "physical and verbal threats and intimidation." On July 27, 1984, following the issuance of the com- plaint on July 26, 1984, Menendez was reinstated to her former position which she currently occupies. The incident for which Menendez was terminated oc- curred on May- 13 , 1984, about 1 a.m. Menendez had been picketing, along with her husband, Ted Menendez,2 at the front of Respondent's large hotel and casino'com- plex, and volunteered to picket at an'employee entrance located at the rear of Respondent's facility. This en- trance, from the record description, is apparently dimly lit and isolated, and fronts a narrow one-lane road which borders Respondent's property and leads to Las Vegas Boulevard, also known as "The Strip," a main north- south thoroughfare. Las Vegas-Boulevard intersects at the first, comer to the north with Flamingo Road, an east-west artery- on which are located the various main entrances to Respondent's complex. A short distance beyond Respondent's property, heading east on Flamin- go Road, was a small shelter and refreshment area estab- lished by the Union, which was also utilized as the loca- tion where the pickets were to sign in and out at the be- ginning and end of their daily tour of picket duty. Ted and Emma Menendez drove in their car to the aforementioned rear employee entrance and picketed at that location. They were later joined by three individ- uals, Mary Larvo and Betty Brown, employees of Re- spondent who were participating in the strike, and Maxine McNeely, a union official who supervises the business agents and was in charge of the picket- lines at Respondent's premises. About 1 a.m. the group decided to leave the area and return to the sign-out location. Ted Menendez was the -driver of one vehicle occupied by Emma Menendez, who was in the front passenger's seat, and-Betty Brown, who was seated in the back seat. The other vehicle was' driven by McNeeley; and Mary Larvo was in the front passenger's seat. - _ - Immediately prior to the time the aforementioned indi- viduals proceeded to drive in their separate vehicles to the sign-out area,,Freddy Cook,-a nonstriking employee, picked up two other nonstriking employees, Dottie Dunlap and Phyllis Gaye, who were leaving Respond- ent's premises at the end of their workshift. Cook no- ticed that a station wagon (McNeeley's car), with its bright lights on, had pulled up behind his vehicle while he was waiting for the employees at the rear entrance, and then apparently pulled out while Cook continued to wait. After picking up Dunlap and Gaye, Cook proceed- ed to drive down the "alleyway" to where Dunlap's car was parked, and -observed the station wagon behind them, and another vehicle (the Menendez car) behind the station wagon. He then noticed through the rear-view mirror that the station wagon was driven by McNeeley and was occupied by Larvo. At this point Cook, believ- ing he was being followed, became concerned and decid- ed to go around the block rather than drop Dunlap off at her car, and proceeded down the narrow road or alley- way to Las Vegas Boulevard. . The aforementioned road is narrow and there is room for only one vehicle. In addition, there are speed bumps in the road. As a result, all three vehicles were traveling ' Respondent indicated at the hearing that the possible status of Men- endez as a supervisor was a "close question," and refused to stipulate to her nonsupervisory status. The record clearly shows, and I find, that Menendez neither possesses nor exercises any supervisory authority as a showroom captain . Rather, she merely acts as a hostess in seating pa- trons, and does not direct the work of the other showroom employees. Respondent does not argue to the contrary in its brief. 2 Ted Menendez, although not an employee of Respondent, is a member of the Union and participated in the stake which involved nu- merous employers in addition to Respondent. As Ted Menendez was not a permanent employee of any employer, but rather worked banquets through the Union's hiring hall, he was given the option of picketing at any strike location. MGM GRAND HOTEL 1017 at a relatively slow speed. As the road approaches Las Vegas Boulevard it becomes, wider, and when Cook stopped his car prior to making a right turn onto Las Vegas Boulevard, Ted Menendez drove his car into the right-hand lane (blocked by a barrier or island which precluded Menendez from making a right turn at that point) and pulled up on the passenger side of Cook's ve- hicle. At this point, according to Cook, Ted Menendez hollered, "You mother fuckers." Cook turned right on Las Vegas Boulevard and, after waiting for several min- utes at a red light, turned right again on Flamingo Road, during which time the two vehicles, according to Cook, remained "sort of close" behind him. During this portion of the incident Cook heard Larvo singing "some little scab song." He then turned right into one of Respond- ent's entrances and returned Dunlap to her car. The two vehicles did not follow him but rather proceeded down Flamingo Road. Cook did not report the incident as he did not consider it to be' sufficiently serious. Phyllis Gaye corroborated Cook's testimony and said the car behind them was "like tailgating" and estimated it to be 6 or 8 feet behind them in the alley although "you can't travel that fast [through the alley] and we were going to drop Dottie off so we were just driving along." Gaye testified that as they turned into Respond- ent's entrance off Flamingo Road, Emma Menendez yelled, "scab." Gaye said she had been called "scab" prior to that incident, bur ignored it because it "wasn't anything, that you -would really get alarmed [sic], dust call you a scab, you know. That's nothing." Gaye said she was "really frightened" during the incident even though she had worked, with Emma Menendez for years and had previously met her husband. Dottie Dunlap, who reported the matter to Respond- ent, was not in a favorable position to observe the inci- dent as she was "frightened to death" and, apparently because of the possibility of physical harm, lay down in the back seat of the. car. Her knowledge of what oc- curred is derived from Gaye's description of the event. However, she did hear the aforementioned epithet ut- tered by Ted Menendez and could hear persons singing, "Scab. Scab." Dottie and Phyllis. Scab. Scab." Further, Gaye testified that Dunlap asked her whether she (Gaye) heard Emma Menendez yell "scab." While Ted and Emma Menendez denied that Ted Menendez yelled "mother fuckers" at the employees, but rather said, "Look at that, a car full of scabs," Betty Brown, who was riding in the same car, forthrightly ad- mitted that Ted Menendez said, "a car full of fucking scabs." All three individuals denied that Emma Menen- dez yelled "scab" at the occupants of Cook's car at any time. Further, each of the striking employees, and also the Union's official, McNeely, denied that they were fol- lowing Cook's car for purposes of harassment, but each testified that they were merely returning to the shelter refreshment area where the Union had established its picket headquarters, located beyond Respondent's prem- ises on Flamingo Road. C. Analysis and Conclusions Contrary to Respondent's stated reasons for terminat- ing Emma Menendez, I find that she engaged in no "physical and verbal threats . and intimidation" which warrant, 'under established Board precedent, her dis- charge for strike misconduct. The record evidence fails to show that the cars driven by McNeely or Ted Menendez' tailgated Cook's vehicle or pursued in a reckless or unsafe manner, or caused Cook to drive in other than •a normal fashion. Indeed, the fact that the narrow road required a slow rate of travel would account for the fact that in the estimation of the passengers in Cook's vehicle, they were being fol- lowed. Rather, the credible evidence indicates that the three automobiles, by coincidence, were being driven along the same road at the same time, and the route trav- eled supports the testimony of the General Counsel's wit- nesses that they .were merely heading toward the picket headquarters. I credit Betty Brown and find that Ted Menendez did call the occupants of Cook's car "fucking scabs." Whether Emma. Menendez uttered the word "scab" at any point seems to be immaterial. Respondent would justify the termination of Emma Menendez on the authority of the Board's decision in Clear Pine. Mouldings, 268 NLRB 1044 (1984). Therein, the Board determined that it would apply an "objective test for determining whether verbal threats by"strikers di- rected at fellow employees justify an employer's refusal to reinstate." The test to be applied is "whether the mis- conduct -[verbal threats] is such that, under the circum- stances existing, it may reasonably tend to coerce or in- timidate employees in the exercise of rights protected under the Act." Clearly, there were no threats, actual or implied, verbal or nonverbal, of any harm-to the person or property of the occupants,of Cook's vehicle. Further, there is no showing that Emma Menendez was a partici- pant in any preconceived scheme to follow, tailgate, harass, or intimidate the employees. Rather, she was merely an occupant of a vehicle from which her husband happened to emphasize, with the aforementioned epithet, his contempt for the nonstrikers. Similarly, the fact that Emma Menendez happened to be in a procession of cars during a time when the occupants of another vehicle were singing "some little scab song" directed at nonstrik- ing employees is not the type of situation which the Board, in Clear Pine Mouldings, and other cases, infra, would deem misconduct, even though the occupants of Cook's vehicle were legitimately concerned.3 On the basis of the foregoing, I find that Respondent unlawfully discharged Emma Menendez in violation of Section 8(a)(1) and (3) of the Act, as alleged. See Ohio Power Co., 215 NLRB 862 (1974); Moore Business Forms, 224 NLRB 393, 395-396 (1976); MP Industries, 227 NLRB 1709, 1710 (1977); Gibraltar Sprocket Co., 241 NLRB 501 (1979); Matlock Truck Body & Trailer Corp., 248 NLRB 461 (1980). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 3 Under the circumstances, I find it unnecessary to decide whether Emma Menendez also yelled "scab " 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Culinary Workers Union, Local 226, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(1) and (3) of the -Act by discharging employee' Emma Menendez from June 7. to July 27, 1984. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7)-of the Act. THE REMEDY 'i . Having found that Respondent violated Section 8(a)(1) and- (3) of the Act, I recommend that it be required to cease and desist therefrom-and from in any like or relat- ed -manner - interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act, and take certain affirmative action' described herein, including the posting of an appropriate notice. Having found that Respondent unlawfully discharged employee Emma Menendez, it is recommended that Re- spondent make her whole, with interest, for any loss of pay she may have suffered as a result of the discrimina- tion against her. Backpay is to be computed in the manner prescribed in F. W. Woolworth Co., 90. NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). IT IS FURTHER RECOMMENDED that Respondent remove from its records any reference to the foregoing unlawful discharge and advise Emma Menendez that it has done so. See Sterling Sugars, 261 NLRB ` 472 (1982). On • these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 - - 4' 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 r ORDER The Respondent, MGM Grand Hotel,' Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease' and desist from discharging employees be- cause of their lawful activity in connection with picket- ing during the course of a strike. . 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. , (a) Make employee Emma Menendez whole in the manner set forth in the section. of this -decision entitled "The Remedy." In this connection, -Respondent shall preserve and on request make available'to the Board-or its agents, for examination and-copying, all records, in- cluding the payroll records of other employees, neces- sary to analyze and compute the amount of backpay due. (b) Remove from its records any reference to the un- lawful discharge of Emma Menendez. - (c) Post at its Las Vegas, Nevada facility, copies of the attached notice marked "Appendix."5 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. (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. - • . 5 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."