Reno Hilton

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hilton Hotels Corporation d/b/a -Reno Hilton - ai'td International Alliance of Theatrical Stage Em- ployees and Moving Picture Operators of the United States and Canada, Local 363, AFL- CIO. Case 32-CA-6956 22 January 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, STEPHENS, AND CRACRAFT - On 14 November 1985 Administrative Law Judge Timothy D. Nelson issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed a brief opposing the exceptions. 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, 1 and conclusions2 and to - adopt the recommended Orders as modified.4 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 reversing the findings. In adopting the judge's findings, we do not rely on his unnecessary speculation in In. 30 regarding why the Union delayed filing the election petition until 13 December 1984, We also disavow the judge's intimation that Terry Burden may have been a "provocateur" or a "stooge" as un- necessary, speculative, and pejorative. 2 We agree with the judge that Terry Burden was a supervisor, as the evidence demonstrates that he responsibly directed the Respondent's stage technicians. Burden monitored two nightly theatrical productions. In doing so he had the authority and exercised the authority to assign and reassign stage technicians to particular tasks or cues, to assign techni- cians to solve problems as they arose, to require technicians to correct problems during their break between shows, and to limit or exempt him- self from doing technicians' work. He also could and did select employ- ees to work overtime on special projects. In addition, he orally repri- manded technicians for derelictions of duties and reported the derelic- tions to the stage manager. The stage manager relied on Burden's evalua- tions to make his periodic performance appraisals of the technicians. 2 We agree with the judge that a bargaining order to remedy the Re- spondent's misconduct is warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Respondent's conduct, including repeated threats to employees, the layoff of two employees because of the Union, and the unlawful discharge' of leading union adherent Morgan, struck at the core of the employees' organizational efforts. The seriousness of the unlawful conduct is underscored by the small size of the unit and the dis- charge of Morgan, who was the primary force behind this and two previ- ous union organizational drives We are convinced that the Respondent's misconduct involves the type of severe and pervasive coercion that has lingering effects and that is not readily dispelled by traditional remedies or time. Accordingly, we agree with the judge that an election would not reliably reflect genuine, uncoerced employee sentiment. Kona 60 Minute Photo, 277 NLRB 867 (1985); ,Quality Aluminum Products, 278 NLRB 338 (1986). 4 The judge dated the bargaining order as of the Respondent's com- mencement of its unlawful, course of conduct. As that conduct, however, bega!i prior to the Union's obtaining majority status, we shall date the bargaining order as of 21 November 1984, the date the Union achieved 819 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hilton Hotels Corporation d/b/a Reno Hilton, Reno, Nevada, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. Change the date of the retroactive bargaining order in paragraph 2(a) to "21 November 1984." majority status. Dresser Industries, 248 NLRB 33, 39 ( 1980); Permanent Label Corp., 248 NLRB 118 In. 1 (1980). Raoul Thorbourne, Esq.,'for the General Counsel. Stacy D. Shartin (Seyfarth, Shaw, Fairwheather & Gerald- son), Lani Poderick, and Gregory N. Karasik, Esgs., of Los Angeles, California, for the Respondent. William Sokol, Esq. (Van Bourg, Weinberg, Roger & Ro- senfeld), of San Francisco, California,-for the Charging Party. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. I heard this case in 6 days of trial proceedings held at Reno, Nevada, in the period 9-17 April 1985. The case arose when the Union, IATSE Local 363, filed an unfair labor practice charge against Respondent Hilton on 13 December 1984. Acting for the Board's General Counsel, the Regional Director for Region 32 investigated the charge and issued a complaint on 31 January 1985; the complaint, was later amended at the trial. Respondent an- swered, admitting many background and jurisdictional contentions made in the complaint, but denying all claimed wrongdoing. The General Counsel makes three main claims in the complaint; first, that by 21 November 19841 a majority of Respondent's employees in an appropriate unit within Respondent's entertainment department had' signed cards that authorized the Union to serve as their agent for col- lective bargaining; second, that Respondent reacted to the Union's card drive by committing multiple violations of Section 8(a)(1) and (3) of the Act; third, that Re- spondent's violations were serious enough to make it un- likely, even after applying more conventional remedies, that the Board could hold a fair representation election. The General Counsel therefore seeks, beyond those con- ventional remedies, an order requiring Respondent to recognize and bargain with the Union based on the ma- jority support manifested by the authorization cards. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Most of the 8(a)(1) counts (there are 24 in all) are charged to Terry Burden, particularly those that allege that Respondent threatened and coerced employees with 1 Most of the important events in the case took place in November through December 1984. Unless I specify otherwise, I refer throughout this decision to 1984. 282 NLRB No. 126 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements about management?s reaction to the Union. Respondent takes no responsibility for Burden's behav- ior, denying that Burden was then its supervisor or agent and contending instead that Burden was, at most, a "lead" person and a mere "conduit" in transmitting man- agerial orders. The 8(a)(3) employment-discrimination counts derive from Respondent's decision first to reassign stagehand William Morgan on 27 November, then to fire Morgan for refusing the reassignment; and from Respondent's de- cision on 2 December to lay off stagehands Randell Gurkin and Tom Butler, and from its decisions on 28 November to deny a 5-percent raise to stagehand John Dureno, and, on 29 December, to suspend Dureno and later to fire him. Respondent says it reassigned Morgan because he was needed elsewhere and fired him because he refused his supervisor's order to work in the new job; that it laid off Gurkin and Butler as part of a general, winter season cutback in operations; that it limited Dureno to a 2.5-per- cent raise because that was corporate policy; and that it suspended and fired Dureno because he was drunk on the job. I have considered the whole record, including the ex- tensive posttrial briefs submitted by counsel for the Gen- eral Counsel and for Respondent. On that record, and on my assessments of the witnesses' demeanor and of the in- herent probabilities, I make the following FINDINGS OF FACT AND INTERMEDIATE ANALYSES I. BACKGROUND A. The Reno Hilton Operation, the Entertainment Department Respondent is a Delaware corporation having world- wide presence, which operates three hotel casinos within its "Nevada Division," including the Reno Hilton Hotel and Casino, which it acquired as a going concern and re- named in 1981. Respondent's president and chairman, Barron Hilton, directs the corporate operation from headquarters in 'the Las Vegas Hilton, acting mostly through Executive Vice President Henry Lewin.2 The Reno Hilton maintains extensive space and facili- ties for large convention functions, together with 595 guestrooms, 4 restaurants, 4 cocktail lounges, a 45,000- square-foot gaming casino, and a main showroom called the Opera House, which seats as many as 1000 patrons. Donald J. DeVoto, a corporate vice president, was the managing director of the Reno Hilton operation at mate- rial time; under ' him was Resident Manager Robert Shel- don. Under them were the managers of the various de- partmental operations typical of a hotel casino. We are concerned mainly with the entertainment de- partment. That division normally employed at the rank- and-file level at least 26 regular show performers,' 16 or 2 In the year before the complaint issued the Reno Hilton generated gross revenues exceeding $500,000 and also purchased and received more than $5000 worth of goods or services that originated outside Nevada. 2 This was the size of the "Razzle-Dazzle" cast in February 1983. (R. Exh. 2.) However William Morgan testified without contradiction in 17 stagehands and lighting and sound equipment opera- tors (stage technicians or technicians), and 3 wardrobe assistants. Most of those persons are directly involved in the pro- duction of two nightly extravaganzas in the Opera House (the production was called "Razzle-Dazzle" at material times) featuring a celebrity "headliner," backed up by ice skaters and line- dancers, animal acts, and other variety entertainment. Technicians in that department must also set up and operate the staging, lighting, and sound sys- tems used for special functions in other hotel areas (for example, fashion shows). The entertainment department's jurisdiction extends also to the Casino Lounge, located one floor below the Opera House, where one technician is also assigned to work as the sole operator of the light- ing and sound equipment for the musical groups who perform there.4 Mike Watson, titled "Stage Manager,"5 was in overall charge of the entertainment department until his resigna- tion in March 1985. He was salaried and was an admitted supervisory agent of Respondent with authority to hire, fire, and responsibly direct operations within that depart- ment. Watson reported for some administrative purposes to Sheldon and DeVoto, but he was also subject to the sep- arate supervision and direction of Respondent's Las Vegas-based entertainment director, Dick Lane. (It seems that Lane's authority was operational; thus DeVoto testi- fied that Lane was in charge of entertainment for all three Hilton properties in Nevada.) Respondent fired Lane-about 4 December (no direct explanation for this appears in this record). Respondent admits, however, that Lane was its "supervisor, manager or -agent" and Respondent takes "full responsibility for everything, if there is anything, that Mr. Lane may have done." Dick-Lane was not called to testify, even though his shadowy presence during-and his influence on-many material events is strongly evident from portions of Terry Burden's testimony, which I believe, and from a variety of other undisputed record sources. Because Lane was, no longer employed by Respondent when this case was tried, Respondent could no longer require him as a condition of his supervisory/managerial employment to cooperate in Respondent's preparation for litigation. (By contrast, statutory employees are insulated from pressure by their employers to help them prepare for liti- gation. Johnnie's Poultry 'Co., 146 NLRB 770 (1964); see also Kyle & Stephen, Inc., 259 NLRB 731 (1981).) Al- though Lane was no longer in Respondent's "possession" in that sense, his likely testimony was no more knowable April 1985 that "they advertise it as a cast of 50, but it's more tike 30 to 35." 4 The entertainment department manager oversees the hiring and stag- ing of these lounge groups; the Casino Lounge is otherwise under the su- pervision of a maitre d'. 5 The pleadings stipulate that this was Watson 's title. I note, however, that Watson's own predecessor, Ron O'Neal, used the title "Entertain- ment Manager," which, I find, also more accurately describes Watson's overall function as the head of the department that was responsible for more than simply the staging of shows in the Opera House. Indeed, the title "stage manager" more nearly captures one of Terry Burden's princi- ^pal functions during show productions. See discussion at.sec. II,A RENO HILTON to Respondent than to other parties., thus Lane may be deemed to have been "equally available" to all parties and no adverse inference may be drawn against Re- spondent, nor anyone else, for failing to produce Lane at the trial. Levingston Shipbuilding Co., 249 NLRB 1, 11 (1980). Cf. Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977); Earle Industries, 260 NLRB 1128 (1982) (both drawing adverse inference from employer's failure to call current supervisor). Terry Burden eventually took over management of the entertainment department when Watson resigned in March 1985, but at times material to the complaint Burden served as Watson's hourly paid assistant,6 and substituted for Watson during Watson's 1-week vacation and during his regular two nights off each week. One of Burden's main responsibilities was to keep the two night- ly productions in the Opera House running smoothly. During the times that most concern us Burden did not have the kinds of powers that unmistakably betoken su- pervisorystatus (e.g., the power unilaterally to hire, fire, promote, demote, grant pay raises, or impose formal dis- cipline on employees); even Watson's powers in those areas were limited by corporate policy and internal review procedures. I nevertheless conclude, based on findings and analysis separately set forth below, that Burden influenced Watson's judgments in many of those areas, that Burden used independent supervisory discre- tion and judgment in directing the work of, other ^ em- ployees, and that Burden possessed and responsibly exer- cised in Respondent's interest several other distinctive trappings of lower level supervisory authority. And wholly apart from the sometimes fine discrimina- tions required in a traditional supervisory status analysis I conclude in any case that Burden was intimate in mana- gerial affairs, and that Respondent held Burden out as its spokesman and agent for purposes of scheduling and di- recting the unit employees in their work and for a gener- al range of- announcements about employment-related subjects. Because of his apparent authority to speak for management, if for no other reason, I conclude that em- ployees would resonably' take Burden's statements seri- ously and that Respondent must therefore bear responsi- bility for Burden's remarks in November-December. B. Union Organizing in the Entertainment Department, Company Knowledge; Animus The Union had tried twice in the recent past, both times without success, to become certified as the repre- sentative of the stage technicians and wardrobe people in the entertainment department.? William Morgan, a stage- 6 This is functional characterization of Burden's overall relationship to Watson; it was not his formally conferred job title (such titles are particu- larly misleading in this case; see findings at sec. II,A) No one seems to quarrel with this characterization. Both Watson and Burden adopted the term "assistant" at times in their testimony; and stagehand Philip Arant credibly testified without contradiction that Watson once told him that Burden was Watson's."unofficial assistant." Indeed the record would also support other similar functional characterizations of Burden's role, for ex- ample, as Watson's "deputy" or as his "right arm " 7 In 1982, and again in 1983, the Union lost Board-sponsored elections held pursuant to the Union's petitions filed, respectively, in Cases 32- RC-1725 and 32-RC-1920. 821 hnhd in the operation for 4 years, was the principal in- house, organizer and authorization card solicitor for the Union in each of those prior campaigns, a fact that Hilton management admittedly knew well. Management also knew about Morgan's continuing wish to organize the department. Indeed, Watson testi- fied that Morgan had told him as early as September that Morgan would be trying again to get union cards signed. Watson states that he passed this news by telephone to Dick Lane and that Lane greeted it with disinterest. Watson also said that he did not tell General Manager DeVoto about Morgan's plans but left that task to Dick Lane. However it suggests someone's unreliability here that DeVoto himself testified that it was Watson Who in- formed him of Morgan's new effort. (DeVoto also says that he responded by instructing Watson to "Just keep apprised of what's going on.") The record contains varying indication about Re- spondent's managerial reaction to the new drive, espe- cially at or above Lane's level of authority. A small por- tion of the evidence-traceable to Watson's testimony and his out-of-court statements to Burden before 15 No- vember-suggests that Lane was indifferent, or even that he welcomed unionization of the stage technicians in Reno because it was supposedly easier-to fire employees under the Union's standard contract. The greater and more believable share of the evidence, much of it given by Burden, supports the interpretation that, whatever Lane's personal views on the subject, he eventually, came under, corporate instructions to fight the' new drive, and that he was a prime mover (until he was fired) in the events between 15, November and 2 December that most directly concern us., Moreover, there' are many indications that Lane was never as indifferent to Morgan's union activities as might be implied solely from Watson's accounts. I deal at this introductory stage only with the background indications of Lane's hostility to Morgan's efforts. One such derives from Morgan's credible and undis- puted testimony about a conversation he had with Ron O'Neal, then the entertainment manager at the Reno Hilton, in early 1983, shortly after the Union's first elec- tion loss. Lane was then in Reno and had brought drinks for the unit technicians. Morgan joined this group at' the bar, still sporting a union button. A few days later, after privately urging Morgan more than once to remove the button, O'Neal confided to Morgan that Lane had en- couraged him to, fire Morgan, with the promise that Lane would "cover" O'Neal. O'Neal revealed to Morgan, however, that'he did not plan to honor Lane's suggestion because he "didn't believe ' that .... Lane would cover him." O'Neal was Watson's 1983 counterpart (Watson was then O'Neal's assistant). Because O'Neal was clearly a supervisory agent of Respondent when he passed this in- formation to Morgan, his statement to Morgan about Lane's own remarks were admissions of a party, not hearsay. Fed.R.Evid. 801(d)(2)(D). Thus O'Neal's re- marks may be taken as an indication that Lane then har- bored an intention to fire, Morgan for his continuing union activities. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another, more recent, sign of Lane's abiding distaste for Morgan's union activities derives from Morgan's tes- timony about his conversation with Watson in mid-April, at the time when Watson was preparing to designate Terry Burden as his assistant.8 Watson flatly denies this transaction, but Morgan credibly testified: A. Ali, I'd heard a rumor-I went in and talked to Mike Watson and told him that I'd heard a rumor that he was going to put-make Terry Burden either head carpenter or assistant stage man- ager [Morgan was confused then by what he called a "titles game" being played over the job slot] and Mike said that that was pretty much true, and I told him that I didn't feel that that was right since there was other people . . . that had been there longer, and t h a t were f a r more q u a l i f i e d , and Mike said .. . [']you're the logical choice for the job, but I can't do it because of your union activity.['] He said Lane wouldn't let him. . . . That Lane wouldn't approve it. And I asked him, [']well, what about Tom Bagley?['] And he said [']Bagley is in the same boat as you are.[']9 I would credit Morgan solely on his demeanoral per- formance as contrasted with Watson's. Generally, and in this instance, Morgan expressed himself naturally and, as I watch him, with apparent candor. Watson seemed guarded, brusque, evasive; and he struck particularly wooden tones when he summarily denied that certain transactions had even taken place. Demeanor aside, Mor- gan's account here is circumstantially supported by Burden. (As I find below at sec. II,B,1, Lane told Burden in roughly the same April period that he thought Burden was "an excellent choice for promotion" to the new job and arguably did so as a part of an inducement or reward for Burden's agreement to work as a strike- breaker at the Las Vegas Hilton.) C. The Union's 21 November Card Majority,- Related Unit Issues The card-signing phase of the new campaign did not begin until 8 November, when seven Reno Hilton stage technicians met at the Union's office to hear Morgan speak in favor of unionization. (Many of them had been hired since the last representation election and Morgan had done much in-house spadework in the weeks before 8 November.) All seven signed cards that night. By 21 November, through the direct efforts of Morgan,' a total of 11 technicians had signed cards-all under noncoer- cive and nonfradulent circumstances-which unambi- gously authorized the Union to "negotiate, bargain col- lectively and present and discuss grievances with my em- ployer as my representative and as my sole and exclusive bargaining agency." Respondent does not contest the ef- ficacy of these cards for Gissel purposes. As of 21 November, those 11 card signers constituted a majority of the 19 or 20 employees in the unit of stage 8 O'Neal had resigned in March and Watson had then taken over the department. 9 Yet more recent indications, although indirect, of the same thing may be found in Morgan's testimony about his 20 November evaluation meet- ing with Watson and Burden and about his conversation shortly thereaf- ter with Burden, all discussed below. technicians and wardrobe assistants that is stipulated by Respondent and the General Counsel to be appropriate for collective-bargaining purposes.' 0 On 13 December the Union filed a petition in Case 32- RC-2085 (along with the instant charges, which effec- tively blocked the same petition) in which it sought a representation election in a unit limited to stage techni- cians. The Union and the General Counsel asserted for the record that a unit limited to stage technicians is alter- natively appropriate for bargaining order purposes, in which case the Union's authorization card majority as of 21 November would be substantially greater (i.e., 11 of 17 or 16, depending on Burden's status). Respondent dis- putes the latter unit contention. Because the parties have agreed that the broader unit (including wardrobe) is an appropriate one, because previous representation elec- tions were conducted in that broader unit, because there is a union majority in either unit, and considering finally that the parties did not litigate the status of wardrobe employees nor provide any legal argument on the nar- rower unit question, I find only that the broader unit is appropriate and do not decide whether the narrower unit might also be an appropriate one. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The nuances of Terry Burden's status during material periods were thoroughly litigated; his status was treated extensively by the briefing parties. (Respondent devoted one-fourth of its 107-page brief solely to that question.) A short summary will suffice to explain why the parties have given priority to this issue. Beginning shortly after 8 November, and continuing into December, several conversations transpired between Lane and Watson, Watson and Burden, and Lane and Burden (to a lesser extent these also involved Sheldon and DeVoto) reflecting from the start a general manage- rial awareness that a new union drive was under way and that Morgan was at its center. During the same period, Burden admittedly talked 'often with the techni- cians (both one-on-one and in groups) about, the new campaign and admittedly expressed his opposition to union representation. Explaining this, Burden said that once the new card drive became public information the technicians started to come to him almost daily with questions about how Watson and other members of man- agement were reacting to the drive. Burden also states 10 Specifically, the complaint alleges as one alternative , and Respond- ent admitted by amendment at trial , that this unit (essentially the same as the unit in which elections were conducted in previous years) is an ap- propriate one. All full-time and regular part-tune entertainment employees per- forming carpentry, electrical, electronic, and sound, property, and wardrobe work in Respondent's lounge, carbaret, showroom and convention area, including lead technicians , stage technicians and wardrobe persons, employed by Respondent at its Reno, Nevada fa- cilities; excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act The parties further stipulated that as of 21 November there were no more than 20, and no less than 19, named employees in that unit (all but 3 being technicians) with the precise dimensions turning on whether Terry Burden should be counted as a unit employee. RENO HILTON that Watson was aware that employees were c6iuing-to him with such predictable questions and that Watson "told me ... I had every, right to express my opinions .. and that he wanted me to express them" (ALJ ex- amination). Elsewhere, referring to, the same remarks by Watson, Burden stated: "I proceeded on that basis." Beyond that, stagehands Morgan, Arant, and Dureno variously claim-and Burden does not entirely dispute- that Burden made both general and specific statements about management's reaction to the organizing effort; first by predicting that the Hilton' s response would not be "pretty," later by more pointed remarks about man- agement's plans (e.g., that Lane intended to eliminate be- tween-show breaks, that Lane was angry and was look- ing for ways to fire Morgan, and that layoffs were likely), all due to the Union's reappearance. 'Moreover, Duren and Arant claim-and Burden substantially denies-that, still later, Burden told them, among other things, that Morgan would not have been fired and Gurkin and Butler would never have been laid off, but for the Union's presence. Through his talks with Watson and Lane, Burden was admittedly privy for a while to information about higher- management's responses to the Union's new drive. These facts, which are themselves, illuminating in identifying Burden's relative status in the department, also tend to explain how he came to make some of the statements at issue. The information that Burden transmitted to em- ployees has spillover relevance to questions about the motives involved when Respondent fired Morgan and Dureno and when it laid off Gurkin and Butler. Burden was on the witness stand for the` better part of 2 days during which he editorialized often and some- times gave the appearance of straining to tailor his testi- mony to suit Respondent's 'declared legal posture." Burden also seemed to approach genuine candor at inter- vals; for example in his accounts of union-related conver- sations with Mike Watson and in his skeletal narrations of his "very unusual" dinner meeting with Dick Lane. Findings below about Burden's status derive from Bur- den's own-or Watson's-testimony on that subject; those relating to his union-related statements and con- duct towards other employees derive from an amalgama- tion of his own admissions and the credible portions of -testimony given by other witnesses. B. Burden 's Status 1. Background Burden was first hired in the entertainment department in June 1981 as a stage technician. He had'worked in re- lated jobs for another hotel casino, Harrah's, for almost 3 years before then. Respondent laid him off in July 1983 when another show production was shut down due to a musicians' strike, but recalled him the following October, where he again did rank-and-file stagehand work, under u u As a central figure in May of the events addressed by the complaint, and as the current head of the entertainment department, Burden was se- lected by Respondent as its trial representative (as an exception to the general witnesses-sequestration order) and he was present at counsel table throughout most of the trial 823 Entertainment Manager O'Neal and his then-assistant, Mike Watson. In the following April, when Watson had taken over from O'Neal but had not yet designated his own assist- ant, Burden accepted Lane's solicitation to work a 10- day stint as a striker replacement during a technician's strike at the Las Vegas Hilton. Lane told Burden before he went to Las Vegas that he thought Burden was an "excellent choice for promotion." Burden reasonably in- terpreted this as a -reference to the job to which he was promoted shortly after his return from Las Vegas, dis- cussed next. 2. Central characteristics On 10 May, Watson published this memorandum to "Cast/Crew/Wardrobe".- Subject: Promotion I am pleased to announce, as of today„ Terry Burden will assume my former position on stage, as well as additional' duties and responsibilities as di- rected by myself. In my absence, Terry Burden will assume my duties as Stage Manager. Please give Terry your continuing support. Respectfully /s/ Michael L. Watson, Stage Manager cc: Dick Lane Don DeVoto Bob Sheldon On this announcement Burden was reclassified for pay purposes as a "lead stage technician," This top-rung hourly pay classification does not in itself denote the ex- istence of authority either to supervise or to "lead" other employees. (Many of the more senior technicians, includ- ing William Morgan, were also in that pay classification; although Morgan, for example, had no such extra status.) In Burden's case, however, his new pay grade title plainly understated the range of roles he would play as Watson's assistant. For Watson's administrative responsi- bilities and management tasks in other areas admittedly kept him "in the office a lot" and "float[ing] around a lot." Because of this,, Watson could not maintain regular oversight of the nightly Opera House productions. And Watson acknowledged that Burden's main job would in- volve "running things ' on stage." Among other things this entailed "coordinating" the technicians (Burden's term), particularly those on the stage deck itself who raised, lowered, and moved sets and props during the twice nightly shows, all pursuant to cilosely timed "cues." Burden's oversight responsibilities did not extend to the three lighting technicians who worked under the lead of a veteran technician (also a "lead stage techni- cian") in an elevated booth. While Burden visited the light booth nightly, he says this was because it was the best perch from which to oversee the performances and to see "whether or not the employees were doing their cues properly." 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent went to some lengths to prove that the Opera House production was a complicated one, with a dazzling variety of effects requiring a high degree of pre- cise coordination between and among the technicians and performers in order to be executed both dramatically and safely (the latter being of special concern with per- formers-many on skates-moving at close quarters to the stagehands during the flying. and dropping and man- handling of sets and props for each of the distinct se- quences within the show). And when Watson selected Burden for the job, he told Burden that he would be ex- pected to keep stage operations "running smoothly" (indeed, to ensure that the Razzle-Dazzle show "went off perfect[ly]," according to Burden in one instance of recall). On 24 May, Watson announced in a memorandum to the stage crew: As of today, Bill Hiltz had been made a lead man and will be, directly assisting Terry Burden. Please give Bill your continuing support.1 s_ When he first selected Burden for his new job, after considering other potential candidates, Watson admitted- ly took into account Burden's prior experience at Har- rah's. ("He was more or less in charge of their cabaret up there, and there was another little lounge that he ran.") Asked why this experience was relevant to the job, Watson volunteered, "Because he could handle people." Watson also emphasized that he was moved to select Burden, "Because he was probably the most trust- worthy one out of all of them. . . . I knew he wouldn't lie to me." Watson's desire for an assistant of unquestionable reli- ability with a talent for handling people is quite under- standable in the light of these following uncontradicted features of Burden's job: "Running things on stage," in Burden' s case, had sev- eral aspects. It required Burden to monitor the two Razzle-Dazzle productions nightly. It required him to know` "who could do which cues" for, as he explained, "every . . . technician generally knew at least two sets of cues and some knew as many as four or five. And Mike [Watson] had the knowledge, and I had the knowl- edge because I had to have it in case he was not there and we had an illness." "Running things" also empow- ered Burden, ad hoc, to make midshow assignments and reassignments of cues and miscellaneous tasks among the stagehands as he saw necessary. As Watson stated: "[H]e had the authority to assign people certain jobs that per- tained [to] cues onstage." And Burden likewise had the authority to limit or exempt himself entirely from cues; although Burden disputes witnesses Morgan and Arant about the extent to which he did so. Burden functioned at the least as Watson's eyes and ears about onstage matters, reporting to Watson about the general performance of the other technicians, includ- ing about their derelictions. Thus, he would monitor the 12 I infer from this that Burden's duties in running the stage produc- tions soon became more than he could handle without the assistance of his own designated intermediary Respondent has offered no other expla- nation. production for errors (often from the light booth), taking note when other technicians missed a cue and, if it seemed "serious" enough to him, he would "speak to" the technicians about it and report the same to Watson. Burden's onstage role also required him to be alert for safety hazards, for example, torn carpeting, and to assign technicians to correct such problems. And when other problems arose during the production, they were normal- ly brought first to Burden's own appreciation' of the situ- ation. In the case of Dureno's suspension/discharge for alleged drunkenness, for example, the complaints from stagehands and skaters were first brought to Burden, who, after a quick investigation, then called Watson and asked him to remove Dureno. 13 In less serious cases, however, Watson depended on Burden to use his own judgment in handling a variety of problems. As Watson stated during cross-examination by the General Counsel: Q.... do I understand you correctly to say that there are certain kinds of problems that Mr. Burden could take care of on his own? A. Urn-hum. Q. I mean, after all, that's the reason why you had appointed him to that job? A. That's right. Q. Because you knew he had a certain amount of judgment and a certain amount of discretion and certain things he could handle on his own? A. Exactly. Q. And that's so you didn't have to worry about every single little problem that turned up? A. Exactly. When Watson completed a periodic performance ap- praisal for Burden in October, he wrote narratively that there was "very good communication between Terry and myself," and that Burden not only "follows my in- structions to the letter," but also that he "assigns projects" and "acts on his own to solve problems as they happen." This necessarily reinforces the impression that Burden enjoyed Watson's unique confidence, and that Watson encouraged Burden to use his own judgment and initiative in running the stage. Indeed, it is hard to see how Burden would not often be placed in such situations when given the responsibility to ensure that a complicat- ed production using 45 or more technicians and perform- ers "went off perfect[ly]." Burden's oversight of stage productions made him im- portant to Watson when it came time for Watson to complete standard, 6-month evaluations on the techni- cians. As Watson stated: 's Respondent's witness, stagehand Don Blackburn, says he telephoned Burden, who was in the entertainment office at the time, to alert Burden to the problem with Dureno. Asked why he called Burden, Blackburn explained that Burden was "like our stage manager or assistant stage manager." Respondent's witness, Babs Martinez, the skaters' "line cap- tain," spoke to Burden about Dureno shortly after Blackburn had called him to the stage deck. Martinez explained that, in general, "most com- plaints come to me from the skaters and then I take them to Terry Burden." RENO HILTON What I did with Terry on the employee evaluation is the people that worked on stage with Terry, I wasn't around them all the time. I would ask him how this person was doing, but as far as making out the evaluation, that was totally up to me. Thus, although it may have been Watson who took re- sponsibility for completing the evaluation form, it is also clear that Watson necessarily relied on Burden's judg- ment about "how [a technician] was doing." 14 When Watson was absent, Burden took on additional duties, requiring him to wear the beeper device that Watson normally used to stay in contact with the other departmental operations. ,Watson said that Burden was "in charge" during these periods, but Burden's powers as Watson's substitute Were more limited , (in addition to having no direct authority to hire, fire, or take discipli- nary action beyond a remonstration, Burden did not assume Watson's power to "kill" certain show segments or to provide complimentary passes to the shows; these actions required consultation with approval from Watson, wherever he might be found). Burden would not himself perform cues in Watson's absence because he would be obliged to field as many as "40 calls a night" directed to the department manager. Burden was at least intimately' involved with-if not the effective force in-John Dureno's hiring into the en- tertainment department in late April. (This was shortly before Burden's promotion, but during the period when Watson and Lane were planning to move Burden to that slot.) Dureno had worked for the previous several months at the Reno Hilton, first in Security, then in engi- neering. Burden had known Dureno for about 8 years and had worked with him on other jobs, during which he had acquired a respect for Dureno's mechanical and electrical skills. Dureno had approached Burden while still working in engineering about the possibility of a transfer to entertainment. Burden agreed to, and later did, make an admittedly "very positive" recommendation to Watson on Dureno's behalf that resulted in Dureno later being interviewed in Watson's office, while Burden was present. After Dureno left the interview Watson conferred with Burden, during which' Burden told Watson that he thought Dureno "would be a good addi- tion to our stage crew." Watson also showed Dureno's resume to Burden and asked Burden to verify some of the statements Dureno had made. i s 14 I do not find it necessary to my ultimate conclusions to rely on Morgan's credibly spoken testimony that he has heard Burden say at least once to a technician questioning the lateness of his evaluation such things as "I've got in on my desk" or "I'm working on it" Morgan was then undergoing questioning by counsel for the Union, and he was not invited to provide further details. Moreover, it strikes me as not worth deciding whether these out-of-court remarks may themselves be taken as "admis- sions" that Burden himself completed appraisals (rather than as mere hearsay on that point) when those remarks were pffered in the first in- stance only to show that Burden, the purported, admission-maker, occu- pied a status that would make him capable of making such a nonhearsay admission. is Dureno testified that Burden's involvement was even greater than just noted; indeed that it was Burden who did most of the talking during the interview I have discounted Dureno's testimony in that regard in reaching conclusions about 'Burden's status 825 As they seemingly did about all departmental matters, Burden and Watson would consult about the need for overtime work to handle repairs or setups for special functions, including about which individuals would be assigned the work. Often, however, there was simply a need for "bodies," in-which case, says Watson, "I'd tell [Burden] how many people I needed, he'd go down and pick out the people and have them come up . . . and do the job." 16 Watson regularly consulted with and/or preadvised Burden when various significant personnel actions were in the offing (prominent examples: his plan to reassign Morgan to the Casino Lounge; Lane's plan to give Philip Arant a higher-than-expected raise; DeVoto's desire: to make cutbacks in the entertainment payroll; and Wat- son's own decision to select Gurkin and Butler for layoff).17 And, as detailed in succeeding sections, Burden was often the person who took responsibility for notify- ing the employees affected by such decisions. Unlike the other technicians, Burden had paperwork duties (initialing the technicians' timesheets for accuracy even when Watson was present and reviewing and sign- ing those sheets and much other paperwork requiring a "department head" signature in Watson's absence). Burden had a key to the entertainment office (some senior unit employees also had' keys for reasons un- known) and he regularly used a desk located near Wat- son's in that office. According to Burden, this was "Dick Lane's desk" during the latter's visits and Burden merely used it as' a desk surface, without having access rights to the drawers or their contents. He says also that because Lane was not regularly in Reno, other technicians some- times sat at that desk. Burden's regular use of the entertainment office gave him access to otherwise confidential payroll information. He admittedly got into a dispute with leadman Hiltz when he made a comment about Hiltz' pay rate (Burden says that he just happened to notice Hiltz' rate while looking at 'a payroll printout in the office, and he sought unconvincingly to leave the impression that he had over- stepped his bounds by examining it). But because this record shows overall that Watson shared so much other, comparable, managerial information with Burden, it is hard to accept that this type of payroll data would have been offically shielded from Burden's access. Burden was uniquely involved in other management decisions affecting unit employees. He joined Watson in at least three meetings with General Manager DeVoto; once to deal with John Dureno's' job-injury record, an- other time to help Watson argue for exempting the enter- 16 Burden testified that in such cases he would call for volunteers, but if there were more takers than tasks, he would make the final selection based on his assessment of the job's needs and a general sense of rotation- al "fair[ness]." Burden also stated that when only two stagehands were needed for overtime work, it would be "generally me and one other." 11 I note also Resident Manager Sheldon's testimony about his meeting with Watson where he explained why Dureno could not be allowed a 5- percent raise. Sheldon could not recall if Burden was present (he was), but stated, "it wouldn't have been unusual for him to be present when we discussed things of this nature." Moreover, regarding his meeting with Burden to discuss Lane's plans to cancel "lunch breaks," Sheldon agreed that "it wasn't unusual .. to discuss those sorts of personnel problems or changes with Mr Burden during . . . the last six months of '84." 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tainment department from a general seasonal layoff, and another time to argue for the recall from layoff of Gurkin and Butler. The other technicians (and sometimes the performers, as well) brought their daily job problems, pay raise and leave requests, and other employment-related subjects first to Burden. If Burden could not act himself on such matters, he would transmit them to Watson, who would use Burden, in turn, to transmit answers back to unit em- ployees. Thus, Burden regularly functioned as an author- ized source about management's plans, decisions, and in- structions regarding assignments , scheduling, cutbacks- seemingly a whole constellation of job-related subjects (the decisions, etc., themselves often having been reached after consultation between Watson and Burden). Burden was therefore not only Watson's eyes and ears; he was Watson's day-to-day voice to the stage crew and, to a lesser extent, to the Razzle-Dazzle cast. 3. Peripheral features On the matter of Burden's performance of rank-and- file work, I find as follows: There is no dispute that, before being appointed Wat- son's assistant, Burden had performed a regular set of as- signed cues each' night with the other stagehands. But there is considerable disagreement between Burden's tes- timony and that of other stagehands about how often- and in what circumstances-Burden performed cues after he was promoted in May. There is moreover some inter- nal contradiction within Burden's testimony on this sub- ject. Burden seemed finally to acknowledge however that, at least until September, he had no regular cue as- signments; although he insisted that even then he would lend a hand in the physical tasks when it would be help- ful. Despite the conflicting and impressionistic testimony about Burden's performance of cues, it is at least agreed that Burden often was required to substitute on cues for absent stage technicians during November and Decem- ber. Watson, for that matter, was also obliged to substi- tute on cues occasionally, especially during December when Gurkin and Butler were in layoff status. But Burden admittedly performed fewer cues, and on a less regular basis, .depending on staffing exigencies, after he was promoted in May. He stated, for example, "I prob- ably wouldn't perform cues if the manpower level was there and you didn't have to worry about it" (a state of affairs that prevailed, Burden states, at least until Sep- tember). Stagehands Morgan, Dureno, and Arant testified in conclusionary terms that they saw Burden as their "su- pervisor." When pressed for their reasons they invariably cited his day-to-day rearranging and direction of their work, his apparently discretionary role in the assignment of overtime, his initialing and/or signing of timesheets, his regular presence in the entertainment office at a desk, his seemingly instrumental role in some hirings, evalua- tions, and pay raises nominally decided on by Watson, and like appearances of elevated status. (Even Respond- ent's witness Don Blackburn testified that it was his "un- derstanding" that' Burden was the one who had "put .. . through" Blackburn's promotion from technician to lead stage technician.) There are similar indications detailed elsewhere below that Burden's intimacy in the appraisal/pay raise process was well known to unit employees (Burden's presence during Morgan's November appraisal meeting in Wat- son's office; Burden's instrumental role in getting Watson to recommend Dureno for a 5-percent raise; and Bur- den's sharing with Arant his knowledge of Dick Lane's plan to give Arant an extraordinary raise). Respondent makes too much of the fact that Morgan invited Burden to sign an authorization card at the end of the first of the group discussions (described, below at sec. C,1) in which Burden predicted that the Hilton's corporate response would not be "pretty." Morgan ex- plained this action succinctly by saying that he felt that it "couldn't hurt" to obtain Burden's support. I note that it is common in union campaigns for employee-solictors to try to enlist the support of low-level supervisors. Those solicitors are not labor lawyers; nor can they be expected to predict with any degree of certainty how the Board might eventually resolve the unit placement of a person who is nominally in a "lead" status, hence the common attitude among employee-solicitors that it "couldn't hurt" to hedge on a potential majority problem by signing up even low-level supervisors. In any case Morgan's invitation to Burden to sign a card is at best a remote indicator of how Morgan viewed Burden's rela- tive status in the department, and it does not directly im- peach Morgan's testimony elsewhere (much less that of Dureno or Arant or Blackburn) that he (they) subjective- ly thought of Burden as their first-line supervisor. Morgan, Dureno, and Arant testified in substance that Burden would "assign" their daily and overtime' work and would "grant" time off, thereby implicitly contra- dicting Respondent's claim that Burden would always re- ceive Watson's approval before issuing any such authori- zations or grants. 'It, is clear from findings above that Burden possessed some discretion in rearranging nightly stage tasks and in selecting candidates for overtime work. And I do not find it necessary to determine whether, as some technicians perceived it, Burden truely acted on his own, for example, in approving day-off re- quests. Here, the "granting" of days off was done rou- tinely unless another technician had already signed on the calendar for that date. Accordingly, no real discre- tion was involved in such "grants," no matter at ' what level they originated. I note finally this peripheral feature of Burden's status at material times: He was the heir-apparent to Watson's job. Watson had been planning to quit for some time and admits he had "talked about it,prior to my leaving, any- where from two months probably prior to that . I'd say . . . November on." Burden knew this in November- December, and there is no sign that Watson had been concealing these plans from the unit employees. 'Indeed, as I detail separately below, Watson told Morgan during an appraisal interview on 20 November that he was not personally concerned about the union issue because he was planning on leaving anyway. RENO HILTON 827 4. Conclusions I have reviewed the authorities cited by the parties and, not suprisingly, they do not include any cases that match this one in all its relevant particulars; for it is in- herent in these cases that each depends for its outcome on a unique mix of facts. In concluding that Burden occupied a Section 2(11) supervisory position, I give little weight to his job title, for pay grade purposes, of."lead stage technician," for "[T]he Board has never considered titles to be 'determi- native of supervisory status." Marukyo U.S.A., 268 NLRB 1102 (1984), citing Golden West Broadcasters, 215 NLRB 760, 761 (1974). The point is especially well taken here and is best exemplified in the contrasts between Burden's functional role and that of Morgan, another "lead stage technician." Morgan was a stagehand on Razzle-Dazzle productions, no more, no less; Burden was in charge of at least 12 technicians working those shows, with his own "assistant," Hiltz, emplaced inter- mediatelynn an acknowledged "lead" position over the rest of the stage crew. Morgan was expected to "sup- port" Burden (and Burden's leadman, Hiltz); Burden was expected to do what it took to ensure that the whole show ran "perfect[ly]." And Burden's effective role as the "stage manager" during Razzle-Dazzle productions was only one of many roles that he played in his overall function as Watson's assistant. Clearly therefore, Bur- den's title barely begins to suggest the key functions that Burden actually served in the management of the enter- tainment department. And I believe it equally evident from the foregoing findings that Burden functioned, in fact, as a supervisor, not as a mere "leadman," as Respondent contends. Fo- cusing solely on that aspect of Burden's job that in- volved "ruining things" onstage, it is clear that Burden generally "directed" the work of other stagehands night by night. And it is plain that Burden's exercise of these responsibilities was done in Respondent's interest, and pursuant to a general mandate from Watson to keep things "running smoothly."' Watson's mandate contem- plated, moreover, that Burden would use his own judg- ment as often as possible in dealing with unforeseen con- tingencies, because Watson was simply too -distracted by other duties to play any active role in overseeing the nightly shows in the Opera House. Watson's admitted inability effectively to oversee the Razzle-Dazzle shows virtually demands the conclusion that Burden was a supervisor. The shows were technical- ly complicated, professional theatrical productions re- quiring the close coordination of 40 or more technicians and performers. If Burden was not a supervisor, this would be tantamount to finding that Respondent main- tained no effective supervision over the "production" of the entertainment department's main "product." Similar- ly, to liken Burden's stage oversight role to that of a "leadperson" on, say, a parts assembly line, is to ignore the vastly different degrees of responsibility involved in each case. Faced with unforeseen problems, an assembly line can be simply switched off while a leadperson con- sults a supervisor; by contrast, Burden worked not only under Watson's standing orders to keep things running smoothly, but he also labored under the theatrical imper- ative that show productions "must go on." And it would be curious, indeed, if he were not effectively vested with the powers commensurate with that responsibility. Clearly, therefore, 'Burden was more than a mere "leadperson" onstage. And his onstage functions were only a part of his overall role in the effective manage- ment of the department. He was not Watson's alter ego, but he was often Watson's designated stand-in; he did not sign the hiring forms and performance appraisals, but Watson necessarily trusted and relied on Burden's judg- ments on such matters; he did not unilaterally decree work schedules and overtime assignments, but he con- sulted with Watson about such matters and retained some residual authority to select which "bodies" would perform which overtime tasks. -He enjoyed Watson's unique confidence, he was advised and consulted by Watson about a wide variety of managerial matters and, with Watson, he participated in some meetings , with higher-management dealing with problems unique to the entertainment department. In short, he had the typical functions and the effective powers of a low-level "super- visor" within the meaning of Section 2(11) of the Act. But especially where the real contest over Burden's status is ultimately a struggle over whether Respondent must bear institutional responsibility for ' Burden's state- ments during the union campaign,"8 it obscures the point to dwell overly long on the precise scope and limits of Burden's actual supervisory authority, as contrasted with his apparent authority to speak on Respondent's behalf. For if Burden were Respondent's speaking agent, it would not matter whether he was also, technically,'a su- pervisor. The Board applies common-law tests of agency (e.g., St. Paul's Church Home, 275 NLRB 1242 (1985)), subject to the harmonious command in Section 2(13) of the Act that "in determining whether any person is acting as an `agent' of another person . . . the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." I focus here on that species of agency involving "ap- parent authority," which is defined in Restatement. (2d), Agency (1958) as follows: Section 27: (Creation of Apparent Authority) [A]pparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably in- terpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.19 18 Burden's precise status as a supervisor in November-December for unit placement purposes is essentially moot. The Union's majority status based on cards is not affected by such a determination; Burden now holds a concededly supervisory/managerial job, and the status of his own cur- rent "assistant" was not litigated and is, in any case, a question for an- other day. is Arguable grounds exist in findings above and below for concluding that Burden had more than "apparent authority" to commit many of the acts charged as 8(aXl) violations Thus, Watson knew that Burden was being besieged daily with questions from unit technicians about manage- ment's reaction to the union drive, Watson encouraged Burden to express Continued 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And it is here that I conclude Respondent is especially vulnerable. For when Respondent maintains, for pur- poses of a "supervisory" analysis, that Burden was a mere "conduit" for the transmission of instructions, as- signments, managerial plans and policies, etc., Respond- ent also brings into relief Burden's unique and pivotal status as its day-to-day speaking agent; the one whom unit employees were encouraged to treat as an authentic voice of management. Burden was, of course, more than a "mere" conduit, but his role as such has often been treated by the Board as a hallmark of agency under the doctrine of apparent authority. See, e.g., Injected Rubber Products Corp., 258 NLRB 687, 692 (1981); Propellex Corp., 254 NLRB 839, 843 (1981). See also Speed Mail Service, 251 NLRB 476 (1980) (emphasizing that Clark, although not a supervi- sor, was placed, like Burden, "in a status visibly superior to that of the other employees" and in which, like Burden, Clark "served as conduit from Respondent to the employees with respect to such important matters as job assignments and layoffs." Id. at 476). Like supervisory status cases, "apparent authority" cases turn on unique facts and strict precedent is rare. I conclude that Burden possessed at least as much "appar- ent authority" to speak for management as did the agents found by the Board in the cases just cited. Indeed, Bur- den's status also easily ' matches those cases when the Board has found even a nonsupervisory employee to be an employer's agent because the employer had placed him in a "strategic position where employees could rea- sonably believe he spoke on its behalf." B-P Custom Building Products, 251 NLRB 1337, 1337-1338 (1980); see also Broyhill Co., 210 NLRB 289 (1974); Classic Indus- tries, 254 NLRB 1149, 1155 (1981); F. Mullins Construc- tion, 273 NLRB 1016 (1984); Roskin Bros., Inc., 274 NLRB 413, 421 (1985).20 Thus, it may be, as Respondent insists, that Burden often served only as a "conduit" for transmitting mes- sages from above, but from the foregoing findings it is easy to appreciate why the unit employees would fmd it hard to distinguish those instructions, assignments, an- nouncements, and the like made by Burden-as-conduit, from those made by Burden-as-boss. Moreover, when his "opinions" and general views (known by Watson to be opposed to unionizing), and Watson let Burden in on at least one unlawful scheme- Lane's plan to eliminate lunch breaks for the stagehands-which Burden promptly transmitted to several technicians in the unit. In these circum- stances it might be mferred that Watson specifically intended to use Burden as his agent for transmitting unlawful messages , and that wit- tingly or unwittingly, Burden was that peculiar type of management agent sometimes called a "provocateur," or a "stooge " Because Burden's apparent authority was sufficient to make Respondent responsible for his actions, I need not decide whether Burden was more consciously used by management as an "agent" to disseminate unlawful threats. 20 I also find that Burden's normal role as a management spokesman distinguishes him clearly from the cases of Sager and Daul in St Paul's Church Home, supra (in which alleged employee agents had never before acted as management spokespersons and the employer 's manager had dis- avowed their statements in any case). This case is also easily distin- guished from Knogo Corp, 265 NLRB 935 (1982) (in which the Board found Gonzales a nonsupervisory "leadperson" and found it "significant" for apparent authority purposes, that her employer had put "an immedi- ate halt to Gonzales worktime campaigning," and had "reprimand[ed] her for that activity," thereby tending to nullify any appearance that she had been acting "on behalf of management " Id at 936). Watson had enjoined the technicians in writing to give Burden their "support," such distinctions would carry even less significance; for the stagehands would necessar- ily place themselves in a perilous position if they were to challenge Burden, or otherwise to fail to treat Burden's statements as carrying management's implicit backing. And in all these circumstances, the stage technicians may be 'excused for seeing Burden as an authority figure whose influence not only affected their daily work but also played heavily in their promotions and pay in- creases. Similarly, they may be forgiven for taking Burden seriously as someone strategically positioned to know, when Burden began to express himself about higher-management's reactions to the Union. C. Burden's, Watson's, and Lane's Conduct in the 2 Weeks Before Morgan Was Fired 1. Between 13-20 November Burden says he first learned about the new union drive from Watson in "mid-November," and that he asked Watson "what Dick Lane was going to think about it."21 Watson replied that Lane had given "every indica- tion" in the past that he would not mind dealing with the Union at Reno because in his experience in Las Vegas, it was "easier" to fire people working under a union con- tract. About 13 or 14 November (certainly before the next revelation from Watson on 15 or 16 November which Burden later described) Burden spoke with three or four stagehands in a group on the stage.22 Burden resists the characterizations that this was a formal "meeting," or that he made any organized "speech." But Burden admits that the employees questioned him about his own attitude towards the Union (he admittedly replied that he "wouldn't fight it," but also that he was personally op- posed because he did not think it was in the interests of the more senior technicians and because he thought the Hilton provided more work hours per week, than did the unionized houses in Reno). Morgan and Burden agree that Burden made some reference to his own unhappy experiences when he had joined a union drive at Har- rah's. Apparently in this connection, Burden also predict- ed that the Hilton's response would not be "pretty" (so I fmd from credibly uttered and harmonious parts of Mor- gan 's and Arant's testimony, even though Burden did not directly admit nor deny this).23 21 Burden was admittedly "concerned with what Mr. Lane was going to think" and was "wondering how it would reflect upon Mike Watson and myself." There is further indication , despite his unconvincing at- tempts to portray himself as personally unconcerned, that Watson also had some worries on that score (see findings below about Watson's re- gdesf to Morgan to "hold-off" filing the petition for an election, to avoid any adverse reflections on Watson and Burden). 22 Burden and Arant (in his ultimate. recollection) seem to agree that this first group discussion happened before 15 November. 23 Burden exhibited special discomfort in his seemingly stilted and con- clusionary recounting of what he told the technicians at various times about management's reaction to the Union. I conclude that he was often attempting to sanitize. But neither do I fully embrace every aspect of the testimony of any witnesses whom I rely on to make specific findings here and below. Indeed I rely on each witness only as specifically indicated. RENO HILTON 829 Referring to this event, the complaint alleges that Re- spondent, through Burden, "threatened employees with unspecified adverse consequences if they . . . selected the Union." From Burden's partially credited account, I may find that he was not then aware of any specific plan by Respondent to resist the Union. Nevertheless, given Burden's status as I have found it, his prediction that management's response would not be "pretty" was easily susceptible of an ominous interpretation by employee lis- teners; that management would resort to extraordinary, punitive devices to resist the organizing effort, all to the technicians' disadvantage. And it hardly requires noting that, when used ' in' this ironic way, the, expression "not ... pretty" conveys not 'mere "plain[ness]" rather it conjures visions of something quite awful to behold (e.g., "The bomb victims"were not a pretty sight.") I therefore find that Burden's statements that the Hilton's response to the Union would not be "pretty" violated Section 8(a)(1) of the Act. Within a day or so of that first talk (according to Burden, on "approximately November 15, 16, something like that"), Burden learned from Watson that Lane's.atti- tude towards the,Union had hardened. ,Thus, when they were alone in the entertainment office Watson told Burden about a recent call from Lane in whichh ', they discussed the union thing and that Dick wanted to fight it." When Burden pressed Watson - for particulars, Watson reported that Lane was "bringing up this no lunch break thing." (This referred to a plan to eliminate the Reno Hilton's longstanding, practice of giving stage technicians about an hour of free time between the night- ly productions in the Opera House.) Watson explained to Burden that Lane was thinking of relying on a certain existing corporate memorandum as a justification for re- quiring the technicians to handle' miscellaneous tasks during this evening "lunch break.," (No such document was produced in this proceeding.) Burden was somewhat vague in testifying about Wat- son's revelations concerning Lane's apparent change of heart,24 but he was admittedly upset by this news. And, although the witnesses have different memories of the precise timing, Burden admittedly took the same news promptly to the stagehands.25 Burden claims that he only did so in response to more questions from them about "what was going on," and that he never spoke aloud about the connection between the Union's reap- pearance and Lane's plans; but he admitted that he -drew that connection in his own mind and that he was "sure that there would be, no other reason, I'm sure they [the 24 Although Watson generally denied having had any discussions of this type with Lane, I find that he did, in fact, have at least one such discussion; I do so based on his out-of-court admission to Burden. Zs Morgan and Dureno recall Burden doing so on 25 or 27 November. Burden recalls this as having taken place the same evening after he first heard of Lane's plans (i.e., the "15th or 16th"). Burden's version of the timing is more reliable; for he is corroborated by Resident Manager Shel- don in his testimony that the same evening, after informing the techni- cians about Lane's plans, he went to see Sheldon to protest the plan and that Sheldon reassured Burden that he would oppose the plan if anything more came of it-and nothing ever did. It is therefore doubtful that Burden would be repeating the "no-breaks" story in late November, when, as of mid-November, he had already received assurances from Sheldon that Lane's plan would not be implemented. feehnicians to whom he spoke] clearly took that as a re- action to the union thing." Indeed, from Morgan's and Dureno's accounts, I find that Burden specifically said either that Lane planned to eliminate breaks "because of the union thing" (Morgan) or "because of what you guys have done" (Dureno).26 When a supervisor or other speaking agent of manage- ment informs employees of a management plan to strike back at union organizing by eliminating work breaks, such remarks necessarily tend to restrain and coerce em- ployees in the exercise of those protected rights. More- over, although Burden later received assurances from Sheldon that the plan would not,be implemented, there is no evidence that Burden subsequently carried that reas- surance back to the stagehands. I therefore conclude that Respondent, through Burden, violated Section 8(i)(1) in this'instance. 2 7 2. Between 20-27 November About 20 November Morgan met with Watson in the entertainment, office to receive his scheduled perform- ance appraisal. Burden was present at, "Dick Lane's desk," but he insists "I didn't do anything;- I didn't even open my mouth." Based on Morgan's credited testimony set forth below, however, I find that Burden participated in at least some of the discussion. Moreover, neither Burden nor Watson specifically denied Morgan's account of Watson's remarks during the meeting. Crediting Morgan, Watson went over Morgan's al- ready completed appraisal form that contained several ratings of either "average" or "below standard." Morgan asked Watson if he "agreed with the evaluation" and Watson replied that, personally, he did not, but that "that was the way Dick Lane wanted it."28 The conver- sation somehow turned to the subject of the organizing drive. In this conversation Burden said, "that he person- ally wouldn't benefit from the union because of his posi- tion, and, [Watson] indicated that he was leaving, so he didn't care." Within days later, around 23 November, there was a discussion between Morgan and Watson about the possi- bility of Morgan's "holding off" filing an election peti- tion so as to avoid any adverse reflections on Watson and Burden. Watson says Morgan came to him with the idea, adding that he merely told Morgan that he should do whatever he pleased. By contrast, Morgan states that Watson directly ap- proached him with the ' request to hold off on the peti- tion. Burden, who spoke with Watson about this later, plainly contradicts Watson at least in part for, by Bur- den's account, Watson himself reported to Burden that 26 Dureno seems to have merged his recollection of the timing of those remarks with his recollection of the first group discussion. 27 The complaint independently alleges (par. 7(h)) that Respondent "changed the work hours of its employees on or about November 27 " It is clear, however, that Lane's plan to do so by eliminating lunch breaks was not pursued (seemingly, it was sabotaged by Burden 's whistle-blow- ing to Sheldon); nor is there proof of any other such "hours change." I would therefore dismiss that count in the complaint 28 Morgan's appraisal sheet tends to corroborate this uncontradicted feature of his narration, for it contains Morgan's handwritten statement, entered on 20 November, "I don't agee with Dick Lane's evaluation." 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had first responded to Morgan by saying "something along the lines that maybe that would be the best thing to do." Elsewhere Burden summarily confirmed that "Mike wanted to hold off." I credit Morgan's version of the initial episode, that it was Watson who made the overtures. Everyone agrees that Burden himself soon went back to Morgan to suggest that there was no point in holding off, because management was aware of the card drive, indeed as Respondent's lawyers had already been brought to Reno for consultation. Explaining this action at trial, Burden haltingly disclosed that Watson had told him that he had met with the Hilton's lawyers, who had advised Watson that "it would not be proper to make any arrangement to hold off." Although these transactions-particularly Watson's ini- tial request to Morgan to "hold-off '-were not specifi- cally alleged as involving any violation, they were fully litigated. And, in all the circumstances of record, I con- clude that when Watson asked Morgan to "hold-off," Respondent violated Section 8(a)(1). The Board is zealous in protecting employees' unhin- dered access to its processes. See, e.g., Laborers Local 304 (AGC of California), 205 NLRB 602, 607 (1982). And when a supervisor requests, as a personal accommoda- tion, that an employee refrain from exercising his right to use the Board's processes, it may be presumed that the employee will experience at least some degree of "inter- ference, restraint, or coercion" in deciding whether to go to the Board.29 If nothing else such personally couched requests inevitably carry twin messages, that the same supervisor who would see it as a personal favor for his subordinate to refrain from using the Board's processes will necessarily see it as a personal affront if the employ- ee nevertheless elects to go the Board. And here, faced with Watson's request, Morgan would have been foolish not to recognize that his failure to honor it would risk Watson's disfavor and retaliation. (As Morgan was to be reminded only a few days later, Watson had it in his power radically to change his job assignment and work- ing conditions.) Moreover, it aggravated the situation that Watson im- plied to Morgan that Watson and Burden would be in trouble with higher management if the employees were to seek another election. Morgan could properly glean from those remarks that higher management was particu- larly hostile to the renewed organizing effort, so much so that even Watson feared for his own and Burden's tenure if a petition were to be filed. And Morgan could reasonably conclude that he and the other unit employ- ees should likewise be apprehensive about their own job futures if they were to pursue an election. I have considered as arguable mitigation that Burden eventually advised Morgan that there was no point in 29 One may readily envision contexts and circumstances where such coercive effects might not attend a management request to an employee representative to refrain from exercising protected rights to use the Board's processes; for example where the request is associated with an effort to settle an underlying labor dispute through collective bargaining. I do not address these more institutionalized circumstances; rather I deal here only with personal entreaties made by supervisors to their subordi- nates. "holding-off." But I conclude that Burden's advise did not amount to an effective disavowal of Watson's re- quest. It is only incidential to this conclusion that Re- spondent has formally disclaimed responsibility for Bur- den's actions in this period. Arguably therefore, Re- spondent cannot be heard to say that Burden somehow effectively "disavowed" the unfair labor, practice com- mitted by his superior. More, important in my view is the fact that Burden did not genuinely "disavow" the coer- cive messages associated with Watson's request. Thus Burden did not disavow Watson's suggestion that it would be a personal accommodation for Morgan not to go to the Board, nor did he disavow the notion already implanted by Watson that to go to the Board would carry risks of retaliation from higher up. Burden merely advised Morgan, in substance, that the cat was already out of the bag, that higher management had already brought its lawyers in to help deal with the union drive and, therefore, that no point would be served by holding off. Seen that way, Burden's remarks to,_Morgan, were not so much "disavowals" as they were "fair warn- ings."3 0 It is also commonly relevant to the question of Bur- den's status and behavior that about 24 November, Lane invited Burden to dine with him at the "Top of the Hilton." This was "very unusual," according to Burden, because relations between him and Lane had been quite strained, and they had barely spoken to one another for several months before then. Burden's accounts of that meeting are sketchy and el- liptical: He remembers asking Lane if it was true that Lane would "rather have the Union in the Reno Hilton," and Lane's reply that "personally," he would, but from the "corporation['s] standpoint, they probably would rather not have the union there.", It also stuck in Bur- den's memory that Lane emphasized in their meeting that he "would consider how well I followed [his] direc- tions . . . as a gauge of my leadership ability." Burden was clearly uncomfortable at this stage of his testimony and I conclude that he was again trying to sanitize to some degree (e.g., "the corporation . . . probably would rather not have the Union"). Later in his testimony, Burden indirectly revealed a few additional details about his dinner with Lane. Thus, testifying about what he had later told Dureno about that dinner, Burden recalled saying to Dureno: I told Mr. Lane that I didn't particularly feel one way or another about them being union or not, and ... Mr. Lane had said to me, ["]Well . . . I will view this as a direct account of your leadership 30 I note also that the election petition was not filed with the Board until 13 December. Considering that the card-signing phase of the drive was effectively completed by 21 November, it is a fair inference that the subsequent 3-week delay in filing the petition was influenced by Watson's request to Morgan to "hold-off" (quite probably also influenced by the quickly ensuing discharge of Morgan and the layoffs of Gurkin and Butler; indeed, the Union appears itself to have waited until most of the damage was done before filing its petition on 13 December, simultaneous with unfair labor practice charges that effectively blocked the processing of the same petition). RENO HILTON ability, how you follow the directives that are given to you.I"] Clearly from this latter description it appears that Lane was at least as anxious about Burden's union sym- pathies as Burden was about Lane's reaction. And Burden admittedly formed, the impression during this dinner that Lane "really didn't trust me," that Lane was "being extremely careful in trying to feel me out," and that Lane "knew that I had been prounion at one point in my career." And Burden clearly took Lane's state- ments as portending further antiunion developments from higher up; for he separately told Arant on the night of 27 November (when Morgan was fired), in substance, that he anticipated such developments and that to, pro- tect his own job, he would have to go along even though he might not "personally" think they were "right." (See findings below ,at sec. E,2.) , At some point in the 20-25 November period, Morgan and Burden had a talk about Morgan's union activities and the possibility of management retaliation. Burden admits only that "out of personal concern" he"cautioned Morgan that he might get fired if he were caught "solicit[ing] while he's being paid by the Hilton." Treat- ing this as another case of after-the-fact sanitizing on Burden's part, I substantially credit Morgan instead. , Morgan states here that Burden approached him on stage, and that Tom Bagley was nearby, and perhaps Dureno, as well. (Burden says that no one else was present.)31 Burden told Morgan that Lane had called from Las Vegas, that Lane had said "that he wanted [Morgan] gone," and that Lane had mentioned only Morgan's name in this regard. Elaborating, Burden warned Morgan that "The plan was that they were going to catch [Morgan] talking about the union during work hours." Although Burden denied emphatically that he had ever been made aware of any plan to fire Morgan, I am convinced from the totality of his actions (both his ad- mitted actions, as well as those that were credibly de- scribed by Morgan, Arant, and Dureno) that Burden had been persuaded that higher management intended to take such retaliatory action and that Burden was not reticent about transmitting these convictions as fact to the rank- and-file technicians. And, although it is possible that Burden never heard more from Watson or Lane than what he testified to at the trial, I' nevertheless find that his transmission of reports about Lane's planned retalia- tion against' Morgan (accurate or not) necessarily violat- ed Section 8(a)(1). During the last week of November Burden admittedly learned from Watson that Dick Lane wanted stagehand Arant to receive a 3-percent pay raise in connection with his 6-month evaluation, which would amount to .5 per- cent more than the customary increment. (As I find else- 81 Bagley was not called as a witness by either side. Because he was a nonsupervisory employee whose pretrial cooperation could not be com- pelled, he was "equally available" to both parties, and his absence as a witness will not support an inference adverse to either party regarding this disputed transaction. Dureno did not testify concerning this event; a fact that, given 1Morgan's doubts about Dureno's presence in'the first place, is without much probative significance. 831 where below at sec. F,2 and 3 there was then a practice of limiting 6-month increases to 2.5 percent. This prac- tice was linked to Barron Hilton's written instructions that' annual pay raises should not exceed, 5 percent.) And when Burden learned of Lane's intentions, he admittedly took the news to Arant. I rely on Arant's testimony (which Burden only barely disputes in his less coherent account of the transactions) to find as follows: Burden took Arant aside and said that Lane wanted to give Arant " a larger raise" because Arant "works so hard." Burden said also, "[W]e are going to put you in for a raise larger than anybody else's because we want to take this back to Don DeVoto and show him, that Dick Lane can override a corporate policy at his own whim." Arant then objected that to do so would "drive' a wedge" between himself as a junior employee and "the,older stagehands" and stated that he wanted no part of it, because he thought of it as "union- breaking activity." And Burden did not deny, as Arant testified, that Burden "came down two, or three nights later and told me that because of what I had said to him, I would get a 2.5 raise like everyone else." There are no complaint allegations that address these transactions; the General Counsel justified her proffer of this evidence as tending to prove Burden's supervisory/agency status. Accordingly I do not fund it necessary or appropriate to decide,whether Arant was correct in suspecting that Lane had union breaking mo- tives in mind when he suggested (as I find, from Wat- son's out-of-court admission to Burden) that Arant re- ceive an extraordinary raise. The episode is not without significance to the case as a whole; however, it provides another glimpse into the re- ality of Burden's intimacy in management affairs during critical periods. ("We are going to, put you in for a raise.") Independently, it presents one more indication of Lane's intimate involvement in local affairs during that critical final 2 weeks before, Lane was himself fired. Moreover, the episode had tangential relevance to the questions raised in the case of Dureno's thwarted 5-per- cent raise, as I discuss below at section F,2 and' 3. D. 27 November.- W, atson Publishes a "No [Lounge] Visitors" Memo, then Reassigns Morgan to the Lounge, then Fires Him for Refusing the Assignment 1. Background Morgan had worked in the Opera House on the stage deck since May 1980. He was also trained in lighting work and had spent a 4-month period in the Opera House light booth between May and August. In July, Watson had told Morgan of his desire to transfer Morgan back to work on the stage ' desk, asking at the time how Morgan "felt about it." Morgan welcomed the proposal and Watson eventually reassigned him to the deck, where he continued to work the fly rail cues, per- forming other miscellaneous deck cues and fill-in lighting assignments until he was fired on 27 November. Watson intended on 27 November to reassign Morgan to replace the regular downstairs lounge operator, Ricky Wright, whom Watson planned, in turn, to reassign back 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work on the Opera House stage. As detailed below, when Watson summoned Morgan on 27 November to ,break this news, and to order. Watson to move that same night, the two men argued, and Morgan at least balked, whereupon Watson fired him for insubordination. Earlier that evening Watson had posted this memoran- dum to employees: Effective today, November 27, 1984, there will be NO VISITORS allowed in the [Casino] lounge sound booth. The only exception to this policy will be those who are scheduled to break the lounge or Terry Burden and Mike Carlson. Failure to follow this policy may result in discipli- nary action. Watson's explanation for wishing to transfer Ricky Wright from the lounge to the Opera House stage cen- ters on the assertion that he had been receiving periodic complaints for as long as "2 months" that Wright was abusive and difficult to `get along with. (The complaints allegedly came both from the members of the lounge groups and from the maitre d'.) I believe this much of Watson's explanation-that he had been receiving such complaints-only because Morgan independently con- firmed that he was himself aware of the existence of such complaints about Wright. Watson assertedly relied on somewhat different con- siderations when he declared on 27 November that the lounge 'would thereafter be off-limits to the other techni- cians. Here Watson says the lounge maitre d' had also complained that some other technicians were coming to the lounge booth and were engaging in some form of horseplay which Watson failed to detail. Watson was never a convincing witness on this own, and I do not be- lieve his uncorroborated explanations for placing the lounge off-limits to other technicians. I return to the sub- ject in concluding findings. There is this additional, undisputed background: Ricky Wright is the son of Dick Wright, another of Respondent's Las Vegas-based managerial employees who was then working under Dick Lane in the corpo- rate entertainment division.32 Ricky Wright was a known opponent of the Union. By all accounts, he was a difficult person to work with. (Respondent created much of the record on this point and adopts this characteriza- tion of him on brief.) He had earlier worked on the Opera House stage but Watson had moved him to the Casino Lounge because of his unsatisfactory work and his abrasive style in dealing with other stagehands. (Watson,said that Wright's excessive girth made it hard for him to bend over and to handle stage cues; Burden agreed that Wright was quarrelsome, and he was not happy about Watson's plan to move, Wright back to the stage.) By the time of this trial Wright had been moved once more, this time to Respondent's new hotel casino in Atlantic City. 32 After Lane was fired, he was replaced by his immediate assistant, Terry Little. Dick Wright, in turn, succeeded to Little's job as assistant. Morgan states credibly that both Dick Wright and Dick Lane were prommently involved on Respondent's behalf in previous election cam- paigns and associated Board proceedings Respondent's managerial witnesses have variously hinted that Ricky Wright was uniquely indulged in sev- eral ways because of his father's status in the corpora- tion. And, although no one directly so testified, we are presumably invited to accept that a similar kind of nepo- tism accounted for the fact that Watson had not fired Wright earlier, but had merely continued to shuffle him around whenever his presence on a given assignment became intolerable to his associates. Many of the technicians saw the Casino Lounge as an especially undesirable place to work. Morgan thought of the reassignment there as a form of "demotion" to a "dungeon." Burden stated that he did not personally view it as a `demotion," but allowed that he could "very easily see how . . . Bill could personally think that." Burden was aware also that Morgan "didn't like the lounge at all" and confirmed that "many others," includ- ing Burden himself, disliked lounge work. The most commonly repeated reasons for this were that series of not-famous rock bands who played there nightly produced a constant din, that the lounge was smoky, and that the lounge booth was cramped (about 4 by 8 feet). Also, the workshift in the lounge extended from 7:30 p.m. until as late as 4 a.m., as contrasted with the Opera House shift that normally ran from 7:30 p.m. to 1 or 1:15 a.m. Moreover, the lounge technician worked apart, in relative isolation from his fellows. (This was a state of affairs that had been previously ameliorat- ed by Watson's encouraging some of the newer stage- hands to spend their spare time down there for cross- training,' but Watson's "No Visitors" memo on 27 No- vember clearly marked an end even to that degree of interaction between the lounge booth opeator and his fellow workers.) Watson was the only witness who tried to deny that Morgan would predictably resist a reassignment to the Casino Lounge. This was clearly a pose, however, one that Watson maintained even when Burden mentioned that obvious possibility to him. Thus, Burden testified that Watson predisclosed his plan to move Morgan to the lounge, telling Burden earlier on 27 November that he was "taking some heat about the lounge situation." Crediting Burden's account here and below (none of it challenged by Watson), Burden "suggested that Bill Morgan might refuse to go to the lounge." But Watson dismissed that notion, saying "Bill won't do that '... I know Bill a lot better than you." As to Ricky Wright's being reassigned to the Opera House stage, Burden, was opposed ("I didn't particularly want [Wright] working on the stage. And I expressed that.") Watson's reaction to this is not recorded and it appears that no consider- ation was given to the possibility that Wright might simply be fired and a lounge replacement drawn either from within or outside. Burden recalls that he, asked Watson about reassigning veteran light technician Roy Echols to the lounge booth instead. Watson replied that Echols, in his sixties, "would probably find loud rock- and-roll music intolerable" and "it would not be the most productive way, if [Echols] was happy." Finally, asked whether their discussion touched on how Morgan's reas- signment might be seen by employees as it related to the RENO HILTON organizing campaign , Burden testified, "Yes . . . I said something along the lines of 'this isn't going to look very good' and Mike said, 'I can't help that, I can't sit here and try to run a department if I have to go around cir- cles.- 2. Morgan-Watson discharge conversation When Morgan arrived for work on 27 November at his normal starting time of 7:30 p.m., he immediately no- ticed Watson's "No [Lounge] Visitors" memorandum posted on a wall. He was called to Watson's office short- ly afterward. Morgan's and Watson's respective versions of this meeting are generally harmonious, but differ in emphasis and detail. I rely for findings on Morgan's more coherent and convincingly spoken version of what was said, quoting here from his testimony on cross-exam- ination: Mike called me up to the office about 7:30 on November 27th, and I went in, and he said that he was going to put me down in the lounge, and I asked him-I told him I wasn't qualified. I asked him why he was doing it. I asked him if it was be- cause of the union, and he looked at me, and he said, ["]I won't say that.["] And I asked if Ricky Wright was there that night, and he said, ["]yes.["] I said, ["]Well, what's wrong with Ricky Wright down there?["] And he said, ["]Well, Ricky is having a lot of trouble with some of the groups, and cocktail waitresses, and the maitre d' in the lounge, and I want to put him back on deck, and I'm putting you in the lounge,["] and I talked to Mike about the fact that Ricky had been put down in the lounge as a last resort because he didn't get along with everybody on deck. Everybody was complaining about him in the Opera House, so they put him down in the lounge as a last resort, and I said if he can't get along with people down in the lounge, ["]why don't you get rid of him then and hire somebody that wants to do the lounge. There's plenty of people that wanted to do the lounge.["] And he said, ["]No, I'm putting you down there,["] and I asked him when this was supposed to start, and he said, ["]tonight.["] And I told him that I had another job at 8:00 the next morning that I'd made-promised to be there. [I] asked him if I could hold off on it, give me enough time to get my affairs straightened out, and he said that I had to choose between the two jobs, and I told him that there was no choice really. I'd been, you know, at Hilton four and a half years, and this other job is just a side job, but that I'd made a promise and I felt obligated to it. By work- ing the lounge, I wouldn't get enough sleep to do a good job on that one.33 31 Morgan independently testified, and I find , that he had been work- ing on a "daylighting" basis building a set of room dividers for the busi- ness office of a Reno accupressunst who was married to a musician at the Hilton Crediting his unimpeached testimony further, Morgan had made arrangements to meet his client at her office to install these units at 8 a in the next day. Thus, although it is clear that Morgan resisted the notion of any long-term assignment to the lounge , I find also that he was not just 833 And he said that I had to do it, and I asked him how long it was going to be for, and he said, well, probably about eight months,34 and he mentioned something about a lead tech being down there, and I told him that Ricky Wright wasn't a lead tech and Jeff Towne, who had done the lounge before that, wasn't a lead tech, and Terry Scheer, before Ricky Wright was Terry Scheer, and he hadn't been a lead tech and he was in charge of the lounge, so why did they all of a sudden have to have a lead tech. I don't remember what his response was, if anything. When I tried to ask him for another night, he said, "No, you got to do it now." I said, "Mike, I can't." He said, "Well, you're fired then," so I got up and gave him my timecard, and my stage key, and he said-he said, "I didn't want to have to do that," and I said, "You don't have to do it. You wanted to though." I went and got my tools and I left. In addition, because Watson recalled this, and because Morgan mentioned this on direct examination, but failed to recall it on cross-examination, I find that Mogan also protested at some intermediate point that he "wasn't qualified to run the lounge because I had only done it on breaks before, and . . . I'm not a qualified sound man and the sound was already set up when I went down to break the lounge, and Watson said, [']Well you can learn['] and I said, [']Who is going to teach me?['] and he said, [']Ricky Wright.[']" 3. Miscellany Watson eventually admitted that he planned to have Wright "train" Morgan for the next 2 weeks. This im- plicitly undermines his testimony at an earlier point that he "felt Bill was the most qualified at the time to go down and do it." His eventual testimony also contains many concessions that Morgan was less qualified than some technicians, and no more qualified than many others, for lounge work. On the matter of Morgan's experience and qualifica- tions for lounge work, everyone agrees that he had "filled-in" down there during the regular lounge techni- cian's breaks (other stagehands had also rotated through grasping for excuses not to move to the lounge that night and that he was quite genuinely concerned that by working the extended lounge shift he would have only a few hours to sleep before keeping his morning ap- pointment 34 Watson was grossly inconsistent in his various statements about the length of time he told Morgan he would stay in the lounge Thus Watson claimed initially that he had implored Morgan to "Just try it for two weeks," adding the assurance, "I'll stay down there with you" (the tran- script is facially irregular in the rendering of the latter phrase though, and the transcriber seems to have omitted key words, for Watson never suggested independently that he was prepared to divert himself from overall departmental management duties to spend 2 weeks with Morgan in the lounge Rather, it seems probable and more harmonious with Wat- son's versions elsewhere (e g , at Tr 1052) that he testified at this point, "I'll have Ricky Wright stay down there with you [i e, for 2 weeks] " In any case, Watson later stated in quick succession on cross-examination first that he had told Morgan that "he would be down there for probably anywhere from three to four months," only to agree moments later that he had said that Morgan would be "down there permanently " 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this job of relieving the lounge technician); but no one disputes that this limited exposure was insufficient to allow Morgan to handle more than simple "echo" adjust- ments on a professional sound board that had been other- wise preset for the given group by the regular lounge technician. Indeed Watson knew that Morgan would re- quire additional training to be able, on his own, to set sound levels on each channel on the mixing board and otherwise to fine-tune the sound system for each voice and instrument in each new group that appeared for 10- day lounge engagements. These were more subtly techni- cal matters for which each new group would have unique requirements. And Morgan had never participat- ed in such "sound-checks" for the new groups; this was normally done by the regular lounge technician outside the regular work shift, during daytime hours. Morgan filed an internal "appeal" from Watson's dis- charge. Morgan's appeal was heard by a specially consti- tuted committee consisting of two management agents and one stagehand, the latter chosen by Morgan. The committee denied Morgan's appeal by a 2-to-1 vote. It is a significant epilogue to Morgan's discharge that Watson eventually picked a fully seasoned former lounge technician, Mark Jensen, to take over from Ricky Wright; but not until at least 10 more days had passed. 4. Concluding findings and analysis I reason and conclude as follows regarding Morgan's reassignment and termination: Taking first a relatively unimportant question; there is little doubt that, in reality, Morgan "refused" Watson's reassignment orders, at least as they contemplated his starting in the Casino Lounge that very night. Thus, it is reasonably clear, even from Morgan's testimony, that Morgan could not (and therefore would not) move to the lounge that night. And Morgan seems to have recog- nized, however bitterly, before he gave this final reply to Watson that his earlier protests had fallen on deaf ears; for when he narrated this aspect of the event he commu- nicated a sense of futility and resignation over having been "set-up," as he put it. I thus have no difficulty in finding that Morgan effectively refused the assignment to move to the lounge that night and that he did so with the recognition that Watson was not prepared to yield. In that sense, then, Morgan was directly "insubordinate," as Respondent maintains. And for all purposes hereafter I assume, without deciding, that insubordination of that general type would, in more normal circumstances, trig- ger a stagehand's discharge.35 These operating assumptions do not seriously under- mine the General Counsel's case regarding Morgan; for the complaint attacks Morgan's reassignment as an inte- gral component of the allegedly unlawful discharge 35 There is no telling evidence either way on this point. It was not shown, for example, that any other technician has so defied a direct, im- mediate assignment, much less that he or she stayed employed thereafter. But neither was it shown that Watson had previously given comparably abrupt and radical reassignment orders. I also consider inconclusive on this question the General Counsel's evidence that Ricky Wright was not fired, but was merely "written up" by Watson, for an occasion when he left the lounge without permission to have his bleeding finger treated, thereby requiring that the lounge show be canceled for the night action. This necessarily requires inquiry into the motives for the former action to determine whether, as the Gen- eral Counsel contends, Morgan's departure was orches- trated, indeed, a "set-up," or, as Respondent claims, was merely the inevitable, although unwanted, result of Mor- gan's own perverse refusal to heed Watson's instruction. In now focusing on the question of the motivation for a decision to move Morgan to the Casino Lounge, I cannot ignore what the credited record tends to show thus far about Dick Lane's historical antipathy towards Morgan's union stalwartism, and about Lane's evolving participation in local events in the final weeks and days of Morgan's employment. Thus, Lane had tried in the past to get Ron O'Neal to fire Morgan after Morgan per- sisted in wearing a union button following the Union's earlier election defeat. And, more recently, Lane had told Watson in April not to select Morgan as his new as- sistant because of Morgan's union activities (at least as Watson saw it). And in mid-November, Lane ' had told Watson of a plan to "fight the union," including by eliminating between-show breaks. Watson's admission during Morgans 20 November appraisal meeting that Lane had directed him to give Morgan' lower ratings than Watson would have preferred permits me to find that Lane did, in fact, so influence Watson, and by infer- ence, that Watson was not generally disposed to resist Lane's intercessions. 36 And of course Burden had told Morgan of Lane's desire to have Morgan "gone'." This is another admission from a management agent that may be taken as evidence that a plan was afoot to find grounds to fire Morgan. Neither can I ignore that by 27 Novem- ber, the Union had obtained a card majority in the enter- tainment department. And I may infer that management was aware of this at top levels (by then Watson had been called in to talk to the company 'lawyers about his dis- cussions with Morgan about "holding off' on filing a pe- tition with the Board, a sign that management knew that the card drive had been successful. Moreover, Burden's remarks on 6 December betray the same thing more clearly (see findings below at sec. E,2). I must also recall that;' only a few days before Mor- gan's reassignment and discharge, Lane sought Burden's company for dinner (a transaction that surely happened as Respondent made no try to contradict, much less to amplify on, Burden's revelations about his "very unusu- al" dinner with Lane at the Top of the Hilton). Neither has Respondent presented any independent explanation for Lane's presence in Reno at this time. The inference is therefore invited that the Union' s emergence had some- thing to do with `it and,' relatedly, that Lane's wish to take Burden to dinner was not merely casual nor inciden- tal to such a purpose. And what they talked about must be examined in the light ' of ensuing events: Lane spoke 36 Morgan's November appraisal was not alleged to be unlawfully dis- criminatory and the pertinent details therefore were not litigated; accord- ingly, I reach no conclusion on that question. I note, moreover, that even though Respondent's counsel claimed at the trial that Morgan's past his- tory of apprails would be shown to have figured in Morgan's eventual discharge, no evidence was ever produced to suggest any such thing. Indeed, Watson stressed Morgans experience and qualifications as a vet- eran "lead stage technician" in seeking to justify his choice of Morgan for the lounge job. RENO HILTON 835 guardedly to Burden about Respondent's corporate-level opposition to the prospect of a unionized stage -crew"=at the Reno Hilton, -hinting also at new "directives" that Burden would be expected to follow that would test his "leadership ability." Thus, I may infer here that Lane was, however cautiously, trying to bring Burden into line and to steel him before management took new steps to fight the Union.37 Finally, I must bear in mind that Watson responded' in a curious way ("I won't say that") when Morgan asked him if he was being reassigned because of the Union. Accordingly, even ignoring findings elsewhere below tending to point in the same direction, one need not strain to find strong grounds in findings thus far for sus- pecting that Morgan's seemingly abrupt reassignment to the lounge on 27 November was done for ulterior pur- poses, more probably than not, influenced by Lane's hidden hand. But no one admits to this, and if Watson's explanations for the action were accepted at face value they would be largely incompatible with the notion of Lane as some kind of grey eminence in the whole affair. It is my conclusion, however, that Watson's efforts to ex- plain his own actions were so internally shifting and in- consistent, and generally so at odds with other well-es- tablished facts, that they are not only unreliable as proof of innocent motivation, they tend to prove the contrary. Shattuck Denn 'Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966). I reason as follows in concluding that Watson's testi- monial explanations do not reasonably account for his professed need immediately to insert a new technician- especially Morgan-into the Casino Lounge: I do not doubt that there was dissatisfaction with Ricky Wright's behavior in the lounge, nor even that Watson had begun to think about replacing Wright over the 2 months during which he had been hearing com- plaints about him. And it is perhaps only suspicious-cer- tainly not impossible-that Watson, distracted by other duties (as he said) was only just "getting around" to dealing with the Ricky Wright problem as of 27 Novem- ber. Strong doubts linger, however, over the question of the urgency of "replacing" Wright precisely on 27 No- vember, and over Watson's choice of Morgan for that role, in any case; particularly so where it was plain that Morgan was not, in fact, sufficiently trained to "replace" Wright and, therefore, to choose Morgan was to ensure the nettlesome presence of Wright in the lounge for at least 2 more weeks. Those latter observations sum up key difficulties in Watson's explanation, even if it is true, which I doubt, that there had been some sort of flareup earlier on 27 November between Wright and members of the new lounge band. Watson here recalled that someone had called him in "that day" to witness a "screaming" match 34 It had been only shortly before that Burden had apparently scotched Lane's plan to eliminate breaks by going to Resident Manager Sheldon about the matter. And Burden had promptly told Watson that he had gone to Sheldon about Lane's plans I infer that Lane knew of Bur- den's obstructive role in the "lunch break" affair when he dined with Burden. And I find it most probable that Lane was there using both carrot and stick in an effort to neutralize Burden before Lane attempted any further moves. between, Wright and the members of the new lounge groups' Watson implied that this episode was decisive be- cause that lounge group was drawing well, and he was therefore particularly anxious to keep them happy. But Watson's eventual recollection, of such a last-straw inci- dent seemed to come too late, and struck me as improvi- sational. He did not mention it on direct examination, nor cross-examination, nor even when I first examined him on the subject of urgency. Rather, even then, he first sought to explain his delays in acting on the Ricky Wright problem by his "other" responsibilities. But even if Watson was not himself grasping at straws here, he proves too much; for it is hard to see how Watson's pro- fessed need immediately to replace Wright to appease the members of a lounge-profitable rock band could pos- sibly be satisfied by selecting Morgan, who needed more training. Watson's explanations for not selecting veteran lounge technician Mark Jensen to replace Wright, in the first place, again proved too much, this time on three counts: Watson gave no initial consideration to Mark Jensen, he says, because Jensen "had put his time in the lounge, he'd been down there almost three years straight."' Thus, we have Watson implicitly admitting first that Jensen was fully qualified to take over immediately in the lounge if there was an urgent need to get Wright out of there. Second, we have Watson's indirect concession that the lounge assignment was undesirable (Jensen had "put his time in"), and one that anyone now working onstage could be expected to see as a retrograde career develop- ment. And compare this with Watson's incredible re sponse during examination from the bench: JUDGE NELSON: Did you have any reason to be- lieve when you made the decision . . . to put Bill Morgan in the lounge that he would resist or object to that? THE WrrNEss: No I didn't. I didn't think he'd resist at all. Third, of course, is the indisputable fact that Mark Jensen was nevertheless Watson's ultimate choice: after Morgan was fired. This makes it very hard to credit Watson's professed reason for, not picking Jensen in the first place; that somehow it would have been unfair to make Jensen take that job-even on an emergency, fill-in basis; indeed so unfair that Watson was willing to perpet- uate Wright's presence by sending the relatively un- trained Morgan to the lounge instead. But one may rea- sonably ask what caused Watson again to juggle his sense of priorities when, about 10 days later, he assigned the lounge job to Mark Jensen after all. The records show that, after Morgan was fired, there were still other stage technicians who, like Morgan, had done some lounge fill-in work previously and who, with 2 weeks of training from Wright, would have been just as able as Morgan to take over in the lounge. And Watson never claimed otherwise. I therefore see Watson's ultimate choice of Jensen for the job as one more factor tending to impeach Watson's explanations, while simultaneously bringing into relief how extraordinary it was that Watson 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever chose in the first place to send Morgan to the lounge. Finally, I reject as particularly feeble Watson's eventu- al explanation for allowing Wright to remain alone in the lounge for at least 10 more days after Morgan was fired. Here, Watson invoked the fact that Morgan's "appeal" of his discharge was still pending before the review panel during part of that period. (Despite Respondent's claims on brief the record passages that it cites do not disclose the timing of that appeal process; nor does the record otherwise provide insights about that timing.) Apparently, Respondent would have me treat Wat- son's failure immediately to replace Wright with Jensen as some kind of principled effort to "hold" Morgan's job open for him pending the appeal. But I note that on 4 December, only about 7 days after Morgan was fired, Watson had already recommended in writing that Black- burn be offically promoted to lead stage technician, thus "replacing Bill Morgan's Lead Stage Technician's posi- tion." And the claim that Watson was somehow "pre- serving" Morgan's rights for that 10-day period invites comparison to the determined rigidity with which Watson insisted to Morgan on 27 November that he must make his move that very night. The improbability that Morgan's appeal had anything to do with Watson allow- ing Wright to remain in the lounge for 10 more days is heightened by the fact that Watson had every reason to believe that even if Morgan were reinstated on appeal he would again refuse or' resist the lounge assignment and, even if he were to comply, that this would require yet another 2 weeks of the vexatious presence of Wright in the lounge to train Morgan. In conclusion: The credited record weighs heavily in favor of the General Counsel's case, showing that Morgan was targeted for management retaliation, and that he was soon the victim of a setup that contemplated at least three possible outcomes, any one of which would suffice to erode the Union's majority support, if not to destroy entirely any prospect of a union victory in a Board-sponsored election. First, when he demoted Morgan to the most distasteful job in the department and when he simultaneously publi- cized that the lounge booth would be off-limits to other employees, Watson must have known how those actions would play into the stagehands' often-expressed anxieties about management's reaction to their union effort. Watson did not require Burden to remind him that "this isn't going to look very good"; indeed, it is hard to imag- ine a more obvious allegorical device' by which to por- tray to the rest of the stage crew how management in- tended to treat'union adherents. And see Robert Bosch Corp., 256 NLRB 1036, 1048 (1981) (deliberate isolation of union adherents unlawful because of degrading effects that cause employees to fear similar indignities if they support union). Second, when Watson demanded that Morgan not only 'take the transfer, but also that he do so immediate- ly, Watson must have known that Morgan would refuse. He did not need Burden to point out either. (By all ap- pearances Watson is neither Candide nor Pollyanna; and I treat Watson's bluff reply when Burden brought this up, that "Bill would never do that," as simply a sign that Watson was by then no longer willing to confide in Burden about his own-or Lane's-actual motives). Third, even if Watson could not be certain that Morgan would oblige him, as in the event he did, by turning down the new job on the spot, Watson must have known that it would not take long before the com- bination of isolation (save for the unwelcome propinquity of Ricky Wright),38 the debilitating lounge environment, and the long work shift would yield the same result. The plan to reassign Morgan therefore has all the ear- marks' of a "constructive discharge" scheme;39 one which would be perfected, sooner or later, by Morgan's quitting (either directly or by an "insubordinate" refusal to do the new job), and 'one that would tend to destroy union support among the other stagehands even if, in the worst case, Morgan were to show an unpredictable will- ingness to suffer his exile and demotion in status. And where, as here, Watson's explanations merely served fi- nally only to enhance the odor of pretext emanating from his treatment of Morgan, it may be questioned whether a Wright Line "dual-motive" analysis even comes into play.40 I do not find any substantial evidence that the illegal motives that formed Morgan's reassignment were inter- mixed with any lawful, good-faith considerations. But Respondent fares no better if Morgan's case is amenable to Wright Line treatment. Respondent relied on Watson's testimony to explain why Morgan was transferred, then fired. For reasons already noted in detail, however, I cannot detect in Watson's testimony any reliable basis for 38 Watson must have been equally aware that Morgan 's discomfort and humiliation in the new job would be enhanced to exquisite levels by Wat- son's plan to have Morgan work in imtimate proximity in a cramped booth with the apparently capacious Ricky Wright, and under his dis- agreeable tutelage, during a 2-week "training period." 39 In analyzing an alleged "constructive " discharge, the Board adheres to the tests set forth in Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976), as follows. There are two elements which must be proven to establish a "con- structive discharge " First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working condi- tions so difficult or unpleasant as to force him to resign . Second, it must be shown that those burdens were imposed because of the em- ployee's union activities. See also Keller Mfg. Co., 272 NLRB 763, 764 and cases cited at fn 7 (1984). Here, of course, Morgan did not formally "quit," but was fired for re- fusing Watson's order to take the lounge assignment inunediately. Argu- ably, there is no significant analytical difference between an "insubordi- nate" refusal of an employee to honor a supervisory instruction to move to a new job and the employee's merely "quitting" in the face of such an instruction Indeed, quitting in such circumstances may be said to be the ultimate form of insubordination But the Board apparently prefers not to label as "constructive" discharges such "setup" terminations as are pre- sented here However, it treats them as 8(a)(3) violations in any case. See, e.g., Nissen Foods (USA) Co., 272 NLRB 371 fn. 3 (1984). (Employee Geiger was not "constructively" discharged, but was discharged unlaw- fully for refusing to take a transfer to the second shift, when the employ- er had intended to force her resignation by imposing the shift transfer. And by contrast the Board found that employee Baker had been unlaw- fully constructively discharged because, unlike Geiger, Baker first accept- ed the discriminatory transfer to the second shift, but quit later when the personal burden proved to be too great Id at 404 ) 40 See Wright Line, 251 NLRB 1083,1084 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S 989 (1982). See also NLRB v. Trans- portation Management Corp., 462 U.S 393 (1983) (approving Wright Line tests) 837 concluding that Morgan would have been targeted, for immediate reassignment to the loungejob abseilhis pro- tected activities. And there is more in the overall record that suggests that Watson's treatment of Morgan was unique and unprecedented, indeed not at all consistent even with prevailing company policies about how and when to fire employees.41 Watson's (or Lane-Watson's) plans abruptly to demote Morgan to a job ' that he was known to detest and to place his new job off limits to fellow employees were motivationally inseparable from Watson's decision to fire Morgan for refusing that' new status, the latter being an intended product of the former . I therefore conclude that by those combined devices Respondent has violated Sec- tion ' 8(a)(3) and (1) substantially as alleged in the com- plaint. F. The Layoffs of Gurkin and Butler, Related Statements Made by Burden 1. Introductory summary Although they occurred closely on the heels of Mor- gan's unlawful discharge, the 2 December layoffs of sta- gehands Randell Gurkin and Tom Butler present a closer case, for they also occurred at a time when Respondent had begun to make cuts in other departments due to a seasonal business downturn. And Respondent insists that Gurkin's and Butler's layoffs were simply incidental to this overall process, a process that Respondent contends had been set in motion by directions from Las Vegas headquarters in late October, before the technicians began to sign authorization cards. In support, Respond- ent relies primarily on the ,testimony of General Manager DeVoto, as supplemented by certain payroll records and memoranda. The General Counsel maintains that Respondent seized belatedly on the layoffs as simply another in a series of unlawfully discriminatory moves in the recent counterof- fensive adopted by management in the face of the Union's organizing success. In support, the General Counsel relies not only on such circumstantial factors as their timing and the proof of Respondent 's antiunion animus and actions available from findings thus far, but also on testimony from Dureno and Arant that Burden 41 The Board has properly cautioned that when deciding a case requir- ing examination into an employer's motives in a given transaction, we should take pains not merely to substitute our own business judgment- nor our abstract sense of fairness-for that which the employer may apply day, to day. Rather, we must judge the employer 's actions by refer- ence to the "standard[s] which [the employer] has set for itself," as those standards may be evident from past practice or other circumstantial indi- cations. FPCAdvertising, 231 NLRB 1135, 1136 (1977). And it is with this injunction in mind that I recall here Resident Man- ager Sheldon's testimony that both Sheldon and DeVoto remonstrated with Watson about his handling of Morgan's case, telling hun, inter alga, that "a better way" to have handled it would have been to "suspend" Morgan, pending review and determination of the situation by Sheldon or DeVoto. In similar vein Sheldon criticized Watson's actions as "a spur-of-thp-moment termination ... that could have been more thought out or given further consideration" at a higher level. Also, I recall that Watson had given Morgan much more notice-indeed had even sought Morgan's agreement-on the prior occasion when Watson had wished to transfer Morgan from lighting back to stage deck work. directly, declared to employees more than once in sub- Stance th h 3ni6ifs presence prompted the layoffs. Burden admits that he once told Dureno before 2 De- cember that layoffs were being considered and gave his "opinion" that the union drive "would seal the coffin" on the situation,, but he generally , denies , making any statement such as those attributed to him by Arant and Dureno. The specifics of these conversations are dealt with below in due course. Turning first to the larger picture : There seems to be no contest over the general proposition advanced by DeVoto that the Reno Hilton annually experienced a "winter syndrome," a general business downturn during the months roughly between mid-November and late February. DeVoto stated that this fluctuation in the busi- ness cycle has typically- been met with "adjust[ments]" that are geared to the "volume of business." DeVoto also admitted, however, that cutbacks associated with the winter syndrome were not across the board in character; rather, the entertainment department, at least, had been exempted in the winters of 1981-1982 and 1982-1983. (There is no evidence of this practice before then.) It was DeVoto who made the decision in late Novem- ber 1984 to insist (over Watson's and Burden's objec- tions) on a reduction of two employees from the stage- hand complement within the entertainment department. DeVoto's explanations for that action include the follow- ing background: On 27 October Henry Lewin, the corporate executive vice president, wrote to DeVoto from Las Vegas: The forecast for November does not please me. In November I want you to work with a great deal of less people. When I say a great deal of less people, I mean that in the coffee shop, one hostess, less wait- resses; in the kitchen, everywhere a total cut. I don't think your showroom will be that strong either, less captains. Everything from A-Z. I don't want to come in with a $100,000.00 , loss. Please show me your guidelines for each department. On 29 October DeVoto issued his own memorandum to department heads, including Watson, regarding the longer-range need for cutbacks, as follows: The winter season is just about here and this means that it is absolutely essential that we take a close hard look at the staffing in our departments. I have already discussed this subject with some of you but I want to alert you that I want you to formulate a plan of payroll reduction and present it to me this week. I already have formulated my own recommedations as to what you should do in your individual departments, but your input is most im- portant in ensuring that it is properly worked out. Please contact my office prior to the end of the week so we can set up a time to review your de- partmental payroll. Noting that Lewin's memorandum focused only on the forecast for November, Respondent's counsel asked DeVoto why his own memo was directed to the entire 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "winter season." DeVoto's explanation was confusing, for he seemed to have forgotten that he wrote his own memorandum on 29 October when he replied (emphasis added): Well, what happended this past year is that our winter syndrome set in a little earlier in November; in fact we started experiencing an extreme fall-off in the first and second week of November, which nor- mally, it doesn't set in till later on in November. So I don't think I was being presumptuous in di- recting our departments to talk about the whole winter because that wasn't just November.42 DeVoto asserted at one point that he felt bound in 1984 to make cuts in every department, yet he eventually admitted that at least one department (surveillance) was actually "beefed up" during the winter of 1984. And it appears that payroll costs similarly rose in some other departments from November to December (including in entertainment; see below) despite DeVoto's claim that cuts were made across the board. Thus, although it is clear from Lewin's 27 October directive that Lewin wanted "guidelines" from DeVoto, and from DeVoto's 29 October memorandum that DeVoto wished to have some kind of reduction "plan" from each department, it has not been shown with any clarity that each depart- ment did, in fact, suffer reductions in the winter of 1984- 1985. Indeed, Respondent's limited documentation tends to contradict that notion. When Watson received DeVoto's 29 October memo, he admittedly ignored the instruction to "formulate a plan of payroll reduction and present it to [DeVoto] this week." And it was not until the "latter part of Novem- ber" that DeVoto chose to summon Watson to his office to discuss the matter.43 Explaining why DeVoto over- looked for a month Watson's failure to respond to his 29 October memo, DeVoto said that it had looked as if the recent use of a "name" entertainer (particularly Jim Nabors) as a centerpiece of the Razzle-Dazzle Show was improving the profit picture in the entertainment depart- ment. But in November, DeVoto says, Donald O'Connor had not proven as successful in drawing customers; and by late November, therefore, DeVoto chose again to focus on the entertainment department as a candidate for payroll cuts. It must be noted immediately, however, that DeVoto's testimony about the timing of the appearances by the various "headliners"-and about their relative drawing power-was quite impressionistic in character. Indeed, his recollection of the timing and sequences was almost certainly skewed. Thus DeVoto claimed that Donald O'Connor started in "the end of October or the first part 42 The record elsewhere reflects a certain carelessness and inconsisten- cy on DeVoto's part, as well as other tendencies to evade or to obscure several important questions. His testimonial demeanor reinforced the im- pression that he was often doing no more than groping for justifications, rather than truly attempting to recall the historical facts In reaching ulti- mate conclusions about the layoffs, I have therefore generally discounted as improvisations many of DeVoto's claims about the business picture within the entertainment department during relevant periods. 43 Burden more specifically recalled that this happened in the final week of November. of November,"_ although simultaneously maintaining that Jim Nabors had started an "8-week" (or perhaps a "10- week") run on 7 September and had been succeeded, in turn, by Vicki Carr (who also performed either an 8- or 10-week stint). Clearly, something was out of whack in DeVoto's account here, although Respondent made no further effort to resolve DeVoto's confusion. Nor did Respondent seek to buttress DeVoto's quite conclusion- ary testimony about the relative volumes of business at- tributable to each headliner during his or her run by in- troducing any business records showing dollar volumes done in the Opera House during each such run.44 When DeVoto notified Watson in late November that he wished to meet about possible cuts in the entertain- ment department, Watson shared this fact with Burden. (He had also told Burden earlier about DeVoto's 29 Oc- tober memo seeking a reduction plan. Burden's initial re- action to the idea had been that it was "nuts." Watson had assured Burden he intended to ignore the memo.) When DeVoto pressed the matter at the end of Novem- ber, however, Watson and Burden together worked up their arguments for retaining the whole stage crew (in substance, that the full crew complement was necessary because, with scheduled vacations among the senior technicians and with other predictable absences due to injury or illness, the department could be caught short- handed if there were cutbacks, with potential jeopardy to the safety of performers and crew). Thus it was that Burden and Watson jointly met, with DeVoto in late November. During their meeting Watson relied on Burden, as the person more directly familiar with day-to-day stage operation, to present their case for maintaining the status quo. After Burden had done so, DeVoto asked him to leave and DeVoto then directly in- structed Watson to lay off two stagehands. I note in passing in this regard that no consideration was given to reducing the Razzle-Dazzle cast, nor to merely reducing the workweek (something that had been done in some other departments as an alternative to layoffs), nor even to the fact that, with Morgan having been fired, the crew was already short by one stagehand. DeVoto admittedly then knew of.the Union's organiz- ing drive in the entertainment department but he denies that such knowledge influenced his orders to Watson to lay off two stagehands. Because there is, no evidence that DeVoto told Watson which technicians to select, DeVoto cannot be directly charged with responsibility for Watson's later selections of Gurkin and Butler, who were cardsigners. Explaining the selection of those two, Watson and Burden state that they were the most recent- 44 R Exh. 13, containing comparative "payroll statistics," is of no use in resolving this question, nor that of the relative profitability of the Razzle-Dazzle production and of the other operations managed by the entertainment deparment during the periods in question . (That exhibit is scarcely more probative even on the question whether the Reno Hilton was able to achieve savings by layoffs in the entertainment department, as I discuss separately below). What is strikingly lacking in the record, however, are any income records (presumably they exist in this sophisti- cated corporate operation) that would depict quite, clearly how the enter- tainment department was doing financially in November -December as compared, say, to the preceding 2 months, or to the previous November- December period (when there had been no cutbacks in that end of the hotel/casino operation) RENO HILTON ly hired, with the exception of Mike Carlson , who had been hired in between . Carlson (who° was not fia: d= signer)- was excluded from the layoff, they say, because of his unique qualifications as a sound technician that re- quired that he stay on hand to run the sound booth in the Opera House. Apparently after 29 December, Burden and Watson jointly met with DeVoto and prevailed on him to permit them to recall Gurkins and Butler . Burden and DeVoto agree that the winning point was that the department was even more severely understaffed due to the interven- ing terminations of Morgan and Dureno. (Watson and Burden had been required to perform nightly cues during this period on top of their other responsibilities and Burden admittedly felt that he had been overworked as a result.) It is also generally admitted by DeVoto and Burden that despite the fact that December was supposedly a slower month for entertainment and despite a 10-day "dark" period,45 the stage technicians' gross workload did not truly diminish in that month. (DeVoto suggested that this was due to the need to build and repair sets, to attend rehearsals, and to perform other get-ready func- tions in anticipation of a new show at New Year's Eve, some of that work requiring daytime appearances at overtime rates.) Indeed, Respondent's payroll statistics clearly show that total payroll costs in that department actually increases by a substantial percentage from No- vember to December.46 Having outlined the background and overall timing in- volved, and some general strengths and weaknesses of Respondent's defense to the charge that the layoffs were union motivated, I turn now to what Burden said to em- ployees on that same subject. 2. What Burden said , There is first the testimony of Philip Arant about a conversation with Burden on the -same night (27 Novem- ber) that Morgan , was fired. Arant says that as he and Burden began to talk on the ice rink Gurkin walked by and that Burden then called Gurkin over saying, "You might as well hear this." What transpired next was de- scribed three times by Arant (first on direct examination, then on cross-examination, then on examination from the bench). The material portions of each of Arant's versions of the event are set forth below: [On direct examination:] [Burden said] that he was sorry but if he was asked or told to do things that- he personally didn't think was right, he was 41 The Razzle-Dazzle Show was discontinued (consistent with seasonal practice) in the 10-day period before New Year's Eve. 46 Thus, R. Erb. 13 shows that Respondent's total payroll costs for the entertainment department went from $88,199 in November to $95,220 in December-a phenomenon that DeVoto vaguely claimed was contribut- ed to by the need for greater overtime work But the same records show -that overtime hours for December were roughly one-third less than for November, suggesting instead that Respondent simply gave more straight time work to each member of the remaining crew than had been sched- uled per person during earlier months. 839 going to .d© them to protect his own job, in reference to the izi pan."hie said,47 ["]there's been talk of two layoffs in the very near future,["] at which time Randy Gurkin asked him, ["]Is that going to be based on job perform- ance or just plain seniority[?"] and Terry remarked, ["]It will be seniority.["] [On cross-examination:] [Burden said] ["]][ am going to be required to do things that I may not like or I may not agree with personally, but I am going to do them to keep my job. There's a strong possibility of layoffs in the near future, and it's going to get heavy, it's going to get worse, the situ- ation from the Hilton's standpoint.["] [On judge's examination:] Terry told us . . . that he was in a position where, because he was a boss, if he was told to . . . carry out a directive, whether he liked it, whether he thought it was right or not, it was going to be carried out, because he was not going to lose his job. And he said, "The Hilton is going to get very nasty about the union activity ... there is going to be some layoffs." Burden did not "particularly recall" this alleged con- versation with Arant, but he denied generally ever having told Arant or Gurkin that the layoffs would happen, or had happened, because of the Union's pres- ence. Burden's own recollection of these events seemed selectively spotty and his denials lacked conviction, Be- cause Arant was sincere in demeanor, and was consistent on these points in each of his three narrations of the transaction, I find,that Burden effectively told Arant and Gurkin on 27 November that higher management intend- ed to implement further changes in reaction to the Union, among them the layoff of two technicians (by se- niority) and that Burden also sought to disclaim any per- sonal enthusiasm for these developments, but made it clear that he would not risk his future by resisting them. And I conclude that Burden's statements that the Union's presence would trigger departmental layoffs in the near future (whether accurately reflective of higher- management's motivations) necessarily tended to coerce the listening employees and to restrain and interfere with their exercise of the right to support the Union, and that Respondent, through Burden, thereby violated Section 8(a)(1). Moreover, Burden admits that he made similar, albeit more diluted, remarks to Dureno (although Dureno did not himself describe any transaction). As Burden recalled it, he told Dureno (obviously around the end of Novem- ber, apparently shortly after his dinner with Dick Lane) that "there was a memo out that had aksed for staff re- ductions from every department," that "Mike [Watson] had told me that I'd better start looking around and seeing how we could combine some cues so that if neces- 4Y The transcript seems here to have used erroneous punctuation; the underscored section should probably be rendered " .. to protect his own job. In reference to the union he said " 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary we would be able to perform the show with two or three less people." And, Burden added: I told John that the timing of the union organiza- tional drive was bad timing, in my opinion, that this ... memo had appeared long before anyone had any concept that there was a drive going on48 and that in my opinion it would seal the coffin, so to speak, on the situation. Moreover, as Burden eventually acknowledged, it was in this same conversation with Dureno that he disclosed that "Mr. Lane had had his first conversation with me in six months," that "I told Mr. Lane that I didn't particu- larly feel one way or the other about them being union or not, and . . . Mr. Lane had said to me, Well . . . I will view this as a direct account of your leadership abil- ity, how you follow the directives that are given to you. And in that context I did say to John that I . . . wasn't going to watch my career go down the drain when I didn't even believe in what they were trying to do." The similarity between Arant's account of Burden's re- marks on 27 November and Burden's own version just narrated, coupled with Dureno's failure to mention the incident that Burden described, causes me to wonder whether Burden may have simply misrecalled whom he was talking to when he made those remarks. In any case, even if Burden never said more than what he just admit- ted, I, find that those admitted remarks likewise violated Section '8(a)(1); for it is inevitable that, when a manageri- al agent ventures his "opinion" that the Union's presence would "seal the ' coffin" on the situation that employee listeners will draw the obvious inference; that their sup- port for the Union could be a decisive factor in whether higher management would choose to include the enter- tainment department in the winter cutback program then being developed. According to Arant and Dureno, Burden was next heard from about the connection between the Union and the layoffs on 6 December, as the three of them were eating in the cafeteria during a between-show break. Burden admits that he had a union-related talk with Arant and Dureno in the cafeteria; he claims in substance that he did no more than explain why he did not support the Union (essentially that the Union had lost the last election 12 to 6, that "the only difference this year is that four or five new stage technicians have entered the stage," and that this latter group of newcomers should not be allowed to "dictate the way the system's going to work to people who have 5, 10, 20 years experience in the business").49 44 This assertion is made dubious by Watson's admission that as early as September he had talked with Lane about Morgan's plans to renew organizing. 49 This admitted statement, however incomplete I ultimately believe it to be as a description of the cafeteria meeting, strongly suggests at least that the matter of who had-and who had not-signed union cards was of common knowledge by that time and that the most recently hired group of technicians was perceived to be the source of the Union's card majority "this year " (And Arant's credited account below makes this even more explicit.) Arant's and Dureno's versions of the same conversa- tion have in common that Burden did not merely ques- tion the equities of majority rule. I do not doubt that Burden was again attempting to sanitize and to edit his own recollection and I do not finally believe him except when corrobated by Dureno or Arant. There is, howev- er, some variance between Dureno's and Arant's own ac- counts. I believe that Arant's was the most reliable ver- sion because it contained elements that echo portions of both Burden's and Dureno's testimony. And despite Arant's personal relationship with Dureno (Arant rents from and shares living quarters with Dureno and the two are admittedly close friends), Arant did not appear to be tailoring his recollections to suit any particular inter- est. s o From Arant's recollection of what was said while he was present at the table,51 I find that Burden was "put- ting down the union," commenting about how "people were dealt with in the past with other elections" ("they were laid off and not brought back"). Then Burden, with apologies to Arant, stated that he did not think it "right" that the last three technicians hired (citing Butler, Gurkin, and Arant) "can carry the vote for the union," and that "[they] could force the union on people that have been in the business for ten years that didn't want it." Then Burden said, "Randy, Tom Butler and Bill Morgan would still have their jobs had it not been for the union activities [and that] we should consider what's going to happen in the future. Win or lose, we will-be dealt with one way or another sooner or later." Al- though Arant required mild leading to elicit these addi- tional responses, I credit his recollections that Burden also said that "The Hilton [is] prepared to close the show or cut it back to one show a night["] and "that's what you get with the union." Finally, Arant recalled, and I fmd, that Burden "told [Dureno and Arant] to re-evalu- ate, recount how many votes we thought we had. That there were some people in the department that talked prounion, that signed pledge cards, and in truth were not going to vote for the union. There was some talk about previous elections where that had happen." When Dureno asked if Burden was referring specifically to cardsigner John Francellini, Arant reports that Burden's "eyes got real big," but apparently, that Burden did not comment further. Consistent with the allegations in the complaint that address this episode, I find that Burden violated Section 8(a)(1) by effectively telling employees that Respondent sa As discussed elsewhere below, Arant's candid testimony about Dur- eno's behavior and admissions after he was fired were decidedly not in Dureno's interests in this case Moreover, Arant was still employed in the entertainment department when he testified and his testimony overall could not be expected to endear him to Burden, the current manager. Si In the aftermath of Morgan's discharge, Dureno and Arant had de- cided, for self-protection, to use a simple radio transmitter-receiver com- bmation that enabled Arant secretly to overhear a few of Dureno's con- versations with Burden (discussed in next section) In their 6 December cafeteria talk with Burden, Dureno and Arant were thus "wired." The electronics were not in use, of course, while Arant was at the table, but when he was the first to leave, he used his receiver to eavesdrop on the relatively repetitive tail-end of conversation between Dureno and Burden. I rely only on what Arant recalled before using the radio receiv- er RENO HILTON 841 had used layoffs against union adherents in the past, that it had fired Morgan and had laid off Gurkin and Butler because of the Union 's presence and by telling them that they could expect further acts of retaliation , such as eliminating one or both of the nightly Opera House pro- ductions. Incidentally, I conclude that Burden unlawfully created the impression that management was keeping tabs on the current union sympathies of each unit em- ployee. There was admittedly another conversation between Burden and Dureno about 14 December in which they talked about the possibility of recalling Gurkin and Butler if the union drive were abandoned . Dureno states in substance that Burden raised the matter first, suggest- ing that if Dureno would "cool" his union activities, Burden would be able to "get Randy Gurkin his job back, but he wouldn't get Tom Butler his job back." Dureno also claimed that Burden threatened , "we're going to get you. We're going to fire you one way or the other," if Dureno were to fail to "cool it with the union." Burden denies making such remarks and insists that it was Dureno who broached the subject . Burden remem- bers Dureno saying that he had become disenchanted with the Union, that he disliked its business agent, and that if Burden could "somehow talk Mike or whoever into hiring Randy Gurkin and Tommy Bulter back, I will guarantee you that there will be no vote ." Burden states that he replied by expressing his doubt that Dureno could deliver on his promise and that in any case, "it wasn't just simply that easy," but that he would try to talk Watson into recalling the two technicians be- cause "it was in my interest also, I was working my butt off." I have little difficulty in crediting Burden over Dureno about this conversation . My doubts about Dureno's credibility are more fully set forth in the next section. I simply comment here that I have no confidence in his testimony except where it is corroborated. I find nothing in the record that independently suggests that Dureno took over as the Union 's in-house ramrod after Morgan was fired . I believe Burden when he testified that he doubted that Dureno could deliver the goods . I thus be- lieve that Burden's willingness to talk to Watson about recalling Gurkin and Butler was not prompted by any "guarantee" from Dureno that the organizing drive could be halted ; rather, that Burden merely told Dureno that he would be happy to talk to Watson because, he, himself, was overtaxed due to the current shortage of stagehands. The complaint alleges at paragraph 6(n) that Burden unlawfully "promised an employee . . . unspecified ben- efits if said employee ceased his support of the Union," and also "threatened an employee with termination .. . if he continued his support of the Union." Because those allegations depend on Dureno's discredited testimony, I would dismiss them. There was another conversation involving Burden, Dureno, and Arant on the evening of 24 December relat- ing to the status of Gurkin and Butler. (Only Dureno failed to recall that Arant was present .) For the same reasons already described, I prefer to rely on Arant's recollection over Dureno 's about this episode, and over Burden's, as well . I thus credit Arant's testimony that, "John started talking about the union . . [.] Terry said that if it wasn't for the unfair labor practice suits filed for Gurkin and Butler, they would have been rehired. If the actions were dropped , Randy Gurkin would probably get his job back . Tommy Butler would never get his job back[.] . . . that [Burden] and Mike Watson concurred . . . that Tommy Butler as an employee was useless[.] . . . [that] Bill Morgan was a dead issue . He had no case. The Reno Hilton attorneys had it in their pocket[.] . . . [then] John asked him, [']What about all those things you've told me in the past?['] Burden replied , [']Well I told you in confidence to dissuade you from the union and break it up.['] He says, [']I will deny any of it, I will tell the story in court to suit the Hilton and my job.[']" The complaint relies on Dureno 's discredited version of this transaction when it alleges (at par. 7(b)) that Burden created the impression of surveillance of employ- ees' union activities by telling an employee that another employee had been informing Respondent about the em- ployees' union activities. Although that allegation must be dismissed for want of credible supporting evidence, I find from Arant's version that Burden violated Section 8(a)(1) when he told Arant and Dureno that the penden- cy of the unfair labor practice charges had prolonged Gurkin's and Butler's layoff and stood in the way of their being recalled. Those statements would reasonably cause employees to believe that the Hilton was manipu- lating the recall of Gurkin and Butler for tactical reasons relating to the Union-indeed that a condition of their recall was that the Union drop its Board charges-and, thereby, these statements tend to restrain and coerce em- ployees in their exercise of protected rights. 3. Conclusions There is, of course, substantial evidence that Gurkin and Butler were laid off for union-discriminatory rea- sons. First, there were cardsigners and this fact was ap- parently known to or presumed by management (see Burden's statements, for example, in the 6 December caf- eteria discussion). That knowledge, blended with the timing of the layoffs and with the evidence of Respond- ent's other displays of antiunion animus, make a prima facie case of discrimination. Buttressing that bare prima facie case is the fact that strict seniority was not followed in the layoff; rather, Mike Carlson (who was not a cardsigner) was retained despite his in-between junior status. Finally, of course, Burden made out-of-court statements that may be treated as admissions by an agent of Respondent that Gurkin and Butler would not have been laid off had it not been for the Union. Despite substantial indications that the "winter syn- drome" was a pretext for making cutbacks in the stage- hand unit, I assume , without deciding, that DeVoto was motivated at least in part by innocent business reasons when he ordered Watson to lay off two stagehands. If so, it still fell to Respondent in these circumstances to demonstrate by a preponderance of credible evidence that it would have taken the same layoff action against 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same individuals even in the absence of the union drive. Wright Line, supra; Transportation Management, supra; see also Webb Furniture Enterprise, 275 NLRB 1305 (1985). I conclude that Respondent has not carried that burden; indeed, that Respondent failed credibly to establish even that a layoff would have taken place in the entertainment department, much less that Gurkin and Butler would have been selected for such a layoff, had it not been for the Union's presence. I focus below on the first question, whether there would have been layoffs at all; and I assume, arguendo, that Respondent has shown that Gurkin and Butler were rational choices once DeVoto ordered Watson to trim back by two stage- hands.52 As noted at the outset, I accept that there was some pressure on DeVoto to effect some net reduction in overall payroll costs in anticipation of the "winter syn- drome." This was apparently a recurring seasonal phe- nomenon. But this fact alone does not take Respondent very far in meeting its Wright Line burden, for the enter- tainment 'department' had been previously exempt from such cutbacks. Indeed,, against that historical back- ground, Respondent had a hefty threshold burden of ex- plaining exactly why it deviated from that historical pat- tern in 1984. I can discern no credible testimony nor other evidence in the record that even begins to explain this difference in treatment. I have noted in this regard that DeVoto's testimony was shot through with seeming improvisations and that it seemed often to contradict the "payroll statis- tics" that themselves proved no more than that gross payrolls- in some departments-but not entertainment- were reduced in November-December. I regard it as far more significant-indeed a classic occasion for drawing an inference adverse to Respondent-that it chose not to introduce business records that would clearly enable a more pertinent comparison between revenues from enter- tainment operations during various relevant periods. (See fn. 44.) Thus, where, as here, Respondent chose to rely on DeVoto's generalized testimony that "business was down" in that department, and failed to introduce records in its possession that would clearly tell the tale, the inference is warranted that such records, if produced, would contradict-not support-DeVoto's claims in this regard, Auto Workers v. NLRB, 459 F.2d 1329, 1336- 1337, 1345 (D.C. Cir. 1972); see also Welcome-American Fertilizer Co., 169 NLRB 862, 870 (1968). Because DeVoto was personally unconvincing, as there is no credible independent evidence of some extraordinary condition that might have caused DeVoto in late No- vember belatedly to rope that department into the winter cutback program, and because Respondent failed to in- troduce clearly relevant records, I conclude that Re- spondent has not met its Wright Line burden. I therefore fmd merit to the complaint insofar as it alleges that Gurkin and Butler were the victims of unlawful discrimi- nation. 52 Thus my analysis necessarily differs from that in cases such as Webb Furniture, in which the economic justification for the layoff was not in dispute and the only question was whether specific employees were in- cluded'because of their union activities. F. The Discharge of John Dureno; Related Allegations 1. Introduction Here I deal with the 8(a)(3) counts in the complaint in- volving Dureno (28 November denial of full, 5-percent raise; 29 December discharge) and, as well, with a number of related 8(a)(1) counts. Some of them depend entirely on Dureno's uncorroborated testimony; ,others find some support in the testimony of Arant and, to a lesser extent, of Burden. Dureno signed a union card on 8 November. Burden and Watson admittedly knew this; other managers said they did not, It is best to state at the outset the sources of my doubts about Dureno's reliability, except where corrobo- rated. First are his contradictory and seemingly desper- ate attempts to account for his behavior on the night of 29 December when he was sent home by Watson for al- leged drunkenness on the job. He denied that he was then impaired by alcohol, but hedged on that by claim- ing in any case that it was Mike Watson who had earlier furnished him with (variously, claimed amounts of) whis- key and beer that led to his difficulties that night. (Dureno also claims that Watson berated him for being at the Union's office that day and for stirring up trouble for Watson and Burden, all during the same session during which Watson allegedly plied him with liquor.) On the first point, I find that Dureno was certainly in- toxicated while working on 29 December; so drunk in fact that he was stumbling on the ice, handling props clumsily and, by the time two showgirls and a stagehand separately spoke to Burden about it, was having trouble standing without aid. An impressively credible series of employee witnesses harmoniously paint that picture, in- cluding, directly, and indirectly, Dureno's friend, Arant. Concerning Dureno's fallback' claim-that Watson poured him into that stated-I am nearly as convinced that such an episode never took place. (Watson flatly denied it; but this carries little weight.) Dureno seems to have concocted this story, well after the fact, for he never claimed to have been the' victim of such a setup when he ruefully discussed these events with sympathet- ic friends on at least two separate occasions in the after- math of his discharge.53 There are improbable features to other aspects of Dur- eno's testimony, particularly in his curious rendition of an alleged meeting with Watson in "August" (which Watson denies entirely) during which Watson allegedly solicted Dureno to keep him advised about the other technicians' union activities (with suggestions that Watson would make Dureno a "lead electrician" and with additional references by Watson to his having broken the legs of someone who had 'once double- crossed him). Dureno refrained from disclosing exactly 58 These were, respectively, Arant and Ida Morgan. Their testimony, which needs no detailing, adequately shows that Dureno admitted to having been drunk on the night in question , and blamed no one but him- self for that condition. I note, moreover, that Dureno's own "diary" en- tries (which were allegedly made in due course, although there is room for doubt about that) contain no reference to the alleged drinking session with Watson that Dureno now claims accounts for his condition on 29 December. RENO HILTON how he responsed to these alleged blandishments, solici- tations to spy, and veiled threats of-Violence. He thus left the impression that he had encouraged Watson to believe that he would go along. And considering Burden's cred- ited testimony about Dureno's later claims to have fallen out, with the Union, there is at least some basis for infer- ring that Dureno worked both sides of the street during the union drive.54 I have taken into account other factors favorable to Dureno's claims (Watson is physically imposing-de- scribed on this record as a weighlifter-and could well have intimidated Dureno; and I am persuaded also that Watson was quite disposed to manipulate). But I am left with the stronger impression that Dureno has at least embellished on-if not invented-a certain number of transactions that he may believe make his discharge case more appealing. And, with doubts throughout about ex- actly when and where Dureno departed from the truth, I have chosen to ignore his testimony about the supposed August meeting with Watson, and about any other con- versatioris or events that he has described, which are not independently corroborated by reliable testimony.55 2. Late November pay raise dispute In mid-November, Dureno approached Burden and asked his help in receiving an evaluation that would just- fry a 5-percent wage increase. Dureno explained that he had not had a raise in almost the full year since he had started working at the Reno Hilton, and that, due to his having spent less than 6 months in each of his previous departments, he had not yet come up for an evaluation nor a pay raise. Burden, who had not lost his enthusiasm for Dureno's abilities, agreed that he would recommend to Watson that Dureno receive a 5-percent raise. Watson later agreed to submit the necessary paperwork for ap- proval by Sheldon/DeVoto. Dureno and all others concerned were aware of exist- ing corporate "guidelines" that effectively limited wage increases to no more than 5 percent per year.56 Employ- ees were normally evaluated every 6 months, and the normal practice was for department managers not to rec- ommend more than a 2.5-percent increase for an employ- ee at the time of his or her 6-month evaluation. Mindful of this, Burden and Watson neverthless believed that a 5- percent raise could be justified in Dureno's case because he had not received an evaluation after having been em- ployed for nearly a year, and also because Dureno had ,94 Watson also testified that Dureno had once come to him with reas- surances that Dureno wanted nothing more to do with the Union I do not rely on this testimony. sa For the reasons just discussed, I would therefore dismiss at the outset those 8(a)(1) counts that deal with alleged conversations between Dureno and Watson on 23 August (complaint par. 6(a), (1)-(5) and on 28 November (par. 6(j)(1)-(2)) Perhaps significantly, the complaint makes no mention of any 8(a)(l) transaction between Dureno and Watson on 29 December, even though Dureno's testimony, if credited, would have proved such a violation. 56 This policy is clearly reflected in a headquarters memorandum dated 15 May 1984, signed by Barron Hilton, which states, "the guide- lines for the Nevada Division;, Las Vegas Hilton, Reno Hilton, and Fa- mingo Hilton, are not to give any raises over 5 percent without my writ- ten approval." 843 done good work (particularly in rehabilitating an expen- sive -andaruoial;' but malfunctioning, ice machine). On 28 November Watson presented the 5-percent rec- ommendation to Resident Manager Sheldon. Sheldon was unsympathetic, telling Watson that because Dureno had only worked for 6 months within the entertainment department, he was not eligible for more than a 2.5-per- cent increase. (Although Sheldon was not sure whether Burden was present during this discussion Burden, states that he was, and he generally corroborates Sheldon.) Watson again argued that Dureno should be considered a special case, for the reasons noted earlier, but Sheldon was unwilling to approve any raise beyond 2.5 percent. Later on 28 November Burden met with 1Dureno and, in a by-now-familiar pattern, Burden did not merely transmit the fact that Sheldon had turned down the 5- percent raise; rather, crediting Arant, Burden took the occasion to offer his own interpretation of the "real" rea- sons underlying that action.57 From Arant I find that Burden said that management had "sent down a reduction in (Dureno's] pay raise from 5 percent to 2.5 percent because of his union activities," and said also that "John was creating a lot of pressure for Mike and Terry because of the union and that he was pushing his luck with his own job." Both Sheldon and Personnel Director Walter Hopkins agree that it was "rare" for, the Reno Hilton to confer 6- month increases in excess of the 2.5-percent cap. Neither witness could recall a specific exceptional instance, but each appeared to agree that an exception might be war- ranted if, say, an employee had been denied an increase after a 6-month period of marginal performance, but had then improved significantly in the next 6-month rating period. In such a case, they suggested, the employee might receive in excess of the 2.5-percent cap at the -time of his or her second rating. Watson specifically recalled that Ricky Wright recent- ly had been the beneficiary of just such an indulgence, receiving a 3.5-percent raise "in the latter part of 1984," which had been personally approved by DeVoto.58 Watson testified that DeVoto had said at the time that Wright deserved the raise because he "had not had a raise for a year." I do not rely on this plain hearsay about DeVoto's reasons for approving an excessive raise for Ricky Wright, particularly where DeVoto himself was not asked to explain'his actions, and where Wright's pay records were, not tendered into evidence. As evidence of the general "consistency" of its appli- cation of the 2.5-percent pay cap policy, Respondent proved that DeVoto had turned down Watson's recom- mendation, made in late July, to confer a 3.5-percent in- sr As noted earlier, Morgan's discharge the night before had caused Dureno and Arant to begin using the concealed radio transmitter-receiver combination. Arant thus overheard the conversation between Burden and Dureno on 28 November, and on two subsequent occasions described below. For reasons already discussed I credit Arant's account of what he overheard via radio on these occasions in preference to those of Dureno or Burden. sa On cross-examination Watson recalled that Wright's pay raise was granted about the same time Morgan's appraisal was pending, which sug- gests that Wright got an "excessive" raise in late November 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crease on Don Blackburn. Instead, DeVoto had limited Blackburn's raise to 2.5 percent. 3. Burden's remarks on 29 November From Arant I find that on the night of 29 November, "Terry asked John why he was so for the union because it's bringing a lot of heat on Mike and Terry, their jobs are in jeopardy, and John's job was in jeopardy. John asked him, [`]Am I going to be fire [sic][?'] and Terry said, [']It'll be a miracle if you're not.[']" 4. Meeting with DeVoto on 30 November The day after Burden made his "miracle" statement, Dureno was called to DeVoto's office. Burden and Watson were present. The purpose was to review Dur- eno's accident history. The record includes an "accident log" (actually a compilation prepared for DeVoto around 25 November) of all the on-the-job injuries that had been reported by entertainment department employees in the calendar year-to-date. DeVoto testified that he caused the report to be prepared because he had become concerned (from preliminary reports through the personnel department) about Dureno's recent history of accidents. The compila- tion showed that 36 employees had received 74 job-relat- ed injuries, and that Dureno led the list with 6 reported injuries. These included, most recently, a bizarre event backstage on 21 November when a caged tiger had swiped at Dureno as he was near the cage, opening a severe gash on Dureno's face. DeVoto states that it was this revelation that caused him on 30 November to summon Dureno, with Burden and Watson, to see whether there were some special problems.59 And DeVoto denies that he was then aware that Dureno was prounion. Everyone's account of the 30 November meeting is roughly consistent. Blending those versions I find that DeVoto asked Dureno about his accident record, that Dureno explained that he tended to receive difficult me- chanical repair assignments, and that this work took its physical toll. DeVoto replied that perhaps Dureno was in the wrong business and that maybe he should find an- other job. Dureno took this as an invitation to quit and protested that if DeVoto wanted him gone, he would have to decide that himself. This caused DeVoto to become more placatory and to reassure Dureno, "That's not what I'm getting at. I'm just trying to find out .. . why you have so many accidents." The meeting ended with DeVoto's suggestion that Watson and Burden should make an effort to rotate some of the job tasks in question among the other stagehands. When Dureno and Burden left DeVoto's office, they spoke near an escalator about the meeting and were ss Stagehand Don Blackburn testified , as Respondent's witness, that he smelled alcohol on Dureno's breath when he attended to Dureno after Dureno's run-in with the tiger. Blackburn states that he did not report Dureno's apparent drinking to anyone at the time . On 29 December, however, Blackburn admittedly telephoned Burden when he noticed that Dureno seemed to be functioning drunkenly during the second show. Blackburn explained that he felt compelled to act then because Dureno's problem could no longer be covered up and was beginning to implicate the safety of others overheard via radio by Arant. Although there is little dispute between Arant and Burden about what was said, I here rely on Arant to find that "Terry said they weren't trying to frame [Dureno], they weren't trying to burn him in front of Mr. DeVoto, or make him look ac- cident prone[.] . . . [that] John was considered to be a good worker and an asset to the corporation, and that his job was very secure." Burden credibly explained here that he was trying to reassure Dureno that he would support him and that as far as he knew DeVoto was not aware of Dureno's prounion actions. 5. 29 December discharge I have already detailed my principal findings about the events on 29 December when Dureno was sent home by Watson, then later fired. I reserve additional findings bearing on this episode to my concluding discussion. 6. Conclusions Burden's statements to Dureno on 28 and 29 Novem- ber (that Dureno's prounion stance was the reason Dureno had only received a 2.5-percent raise, that by those activities Dureno was putting his own job-and Burden's and Watson's-in jeopardy, and that Dureno was about to be fired, were plain violations of Section 8(a)(1). Those statements also clearly have relevance to the 8(a)(3) questions whether Dureno's union activities caused management in quick succession to deny him a 5- percent pay raise and to call him on the carpet over his accident record and, a month later, to fire him. Indeed, as "admissions," Burden's statements tend of themselves to establish a prima facie case that Respondent was influ- enced by unlawful considerations when it acted against Dureno in each instance. The ultimate weight to be ac- corded to such admissions is another matter. But I pro- ceed from the assumption that prima facie cases have been made out and I therefore determine next whether Respondent came forward with enough credible evi- dence to establish that Dureno would have received the same treatment in each case even if the Union had not been in the picture. Taking first the pay raise issue; Respondent has suffi- ciently demonstrated that it does not normally grant 6- month pay raises which, if they were "annualized," would exceed 5 percent. But Respondent' s agents also concede, both in theory and in practice, that nonroutine cases sometimes arise that would justify exceeding the 2.5-percent intermediate cap. This fact-that there is some degree of local flexibility in applying corporate pay cap policies-is what makes this issue difficult to judge. For it seems fair to observe that Dureno's case, too, was nonroutine; and that it had enough equitable appeal at least to cause Burden, and then Watson, to endorse a 5-percent raise for Dureno. And no party has located an instance in Respondent's past practice that is exactly comparable to Dureno 's, i.e., when an employee had worked for a year within the hotel operation, but not for long enough in a given, de- partment-to have obtained any prior ratings or raises. Be- cause of the absence of a directly comparable historical RENO HILTON example, the parties have each resorted to analogy ,,((he General Counsel points to Ricky --*right's exceptional treatment; Respondent stresses the case of Don Black- burn). The fact that Ricky Wright received a 3.5-percent raise does not necessarily provide the best indication of how Respondent would have treated Dureno's proposed raise if the Union had not been around. As noted earlier, the phenomenon of nepotism appears to have insulated Ricky Wright from the rigorous application of standards that otherwise generally prevailed in the department. And, against the argument that Wright's case shows that Respondent was more flexible in its pay practices than it generally claimed, Respondent has shown at least in Blackburn's case that it adhered strictly to the prevailing guidelines, and did so at a time (late July-early August) when the Union had not yet reemerged. Similarly, al- though this evidence is somewhat less compelling as sup- port for Respondent's case, Lane, Watson, and Burden never followed through on Lane's suggestion to give Arant a 3-percent raise. I conclude that Respondent's evidence is barely suffi- cient to meet its Wright Line burden. There is enough be- lievable evidence that Respondent generally enforced the 2.5-percent cap to make it reasonable to suppose that the managers in charge of enforcing the policy would be un- sympathetic to the recommendation to get 5 percent for Dureno. The empirical fact that Ricky Wright got unique treatment is not enough to show that Respond- ent's managers were generally lax in their observance of unmistakable directives from headquarters. To conclude otherwise--that Dureno's union activities somehow fig- ured more heavily in Sheldon's decision to veto Dur- eno's raise than did Barron Hilton's standing instruc- tions-seems, finally, the least reasonable of all the possi- bililities presented by this record.60 I would therefore dismiss the complaint insofar as it al- leges that Respondent unlawfully discriminated against Dureno when it limited his November pay raise to 2.5 percent. With respect to DeVoto's 30 November meeting with Dureno, I -similarly find that Respondent has met its Wright Line burden.61 The timing of the episode, though proximate to many other violations, is independently ex- plainable by Dureno's recent accident record, especially his 21 November encounter with the tiger. Respondent has adequately demonstrated that it had a legitimate basis for concern and, in the event, DeVoto did little more than to express concern about Dureno's accident record eO I assume for these purposes, contrary to Sheldon's assertions, that Sheldon knew that Dureno was proumon when he turned down the full raise. And,, in the atmosphere of that time, it was not merely hysterical for Burden to have told Dureno that Sheldon had turned down the larger raise because of Dureno's union activates. But, in reaching earlier 8(a)(3) conclusions, I have not given controlling weight to Burden's various statements to the stagehands about higher -management's motivations. And in this case I simply treat what Burden said to Dureno as the expres- sion of a rationally grounded, but mistaken, conclusion; one that facially violates Sec. 8(a)(1), but that does not dispositively prove a related 8(aX3) count. 6' If indeed it had such a burden; for the complaint does not treat the 30 November meeting as involving discrimination under Sec. 8 (a)(3) or (1). Rather, it treats DeVoto's statements in that meeting as 8(a)(1) threats. 845 and,to suggest to Watson and Burden ' that they try to assign other stagehands to some of the work that I)ureno had claimed was inherently hazardous. It is true that DeVoto suggested at one point in their meeting that Dureno might wish to look for less hazardous work, but, in context, I would find those remarks to reflect only DeVoto's skepticism about Dureno' s excuses. As such they do not violate Section 8(a)(1). I have no difficulty in concluding that Respondnet sat- isfied its Wright Line burden with respect to Dureno's 29 December suspension and later discharge. Respondent has established that stage work is demanding and poten- tially hazardous for both performers and crew alike. Re- spondent has similarly shown that Dureno was drunk for the second show on 29 November, and that his condition posed a genuine hazard to the safety of others. I regard this as sufficient to established under Wright Line that Watson would have sent Dureno home that night with- out regard to Dureno's current feelings about the Union. Neither do I find it remarkable that Respondent convert- ed Dureno's suspension to a discharge shortly thereafter, despite indications that had been brought to Watson's at- tention in the meantime that Dureno had briefly checked into a detoxification center. This latter information was equivocal. Duren did not make direct contact with agents of the Hilton after he was sent home on 29 No- vember. And there is no evidence that Respondent has been more indulgent to anyone else who tried to work onstage in,an intoxicated condition.62 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in 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. During times material to the complaint, Terry Burden normally performed a "supervisory" role within the meaning of Section 2(11) of the Act in Respondent's management of the entertainment department at the Turn Hilton. Independent of his supervisory powers, Re- spondent had invested Burden with apparent authority to speak and act as its agent. And, consistent with the man- date of Section 2(13) of the Act, Respondent, beaus re- sponsibility for Burden's statements during material peri- ods without regard to whether it had "actually author- ized or subsequently ratified" Burden's verbal acts. 4. When Terry Burden and, in one case, Mike Watson, committed the acts set forth below, Respondent inter- fered with, restrained, and coerced employees in the ex- ercise of the rights guaranteed them by Section 7 of the 'Act, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 62 The General Counsel finds it significant that, despite Respondent's written policies banning on -the-job alcohol use, some stagehands would sometimes take a drink-usually of beer-while at work , and that Watson knew it. This evidence does not truly meet the point, which is that Dureno was not sent home for having taken a drink , but because he was staggering drunk, a phenomenon that was unprecedented in the Opera House production, so far as this record shows 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) When, sometime between 8 and 15 November, Burden told three or four employees that Respondent's reaction to the new union drive would not be "pretty." (b) When, on 15 or 16 November, Burden told a simi- larly large group,of employees that Dick Lane planned to eliminate the traditional between-show breaks because of the Union's new campaign. (c) When, around 23 November, Watson asked Morgan to "hold-off" filing an election petition with the Board to avoid adverse reflections on Watson and Burden in the eyes of higher management. (d) When, between 20 and 25 November, Burden told Morgan that Dick Lane wanted Morgan "gone" and was looking for ways to fire Morgan because of his union ac- tivities. (e) When, on 27 November, Burden told Arant and Gurkin that he expected further antiunion reactions from higher management, specifically, that two stagehands were being considered for layoff, and that he would have to go along with the plans even though he might not agree with them. (f) Independently, around the same time, when Burden told Dureno about his dinner meeting with Dick Lane, that he did not intend to watch his own "career go down the drain," and that he thought the Union's pres- ence would "seal the coffin" on the possibility of avoid- ing layoffs among the stage technicians. (g) When, on 28 November, Burden told Dureno that his expected 5-percent pay raise had been cut back to 2.5 percent because of his union activities and that those ac- tivities were creating "pressure" on Burden and Watson and that Dureno was "pushing his luck with his own job." (h) When, on 6 December, Burden told employees that: Morgan, Gurkin, and Butler would still have their jobs had it not been for the Union; Respondent had used layoffs in past representation campaigns as a device to ease out prounion voters; "win or lose" the prounion em- ployees would be "dealt with one way or another"; Re- spondent was prepared to cut back or eliminate the Opera House shows; and the prounion employees should not count 'on the support of everyone who had signed cards because some of them "were not going to vote for the Union." (i) When, on 24 December, Burden told Dureno that the Union's unfair labor practice charges were standing in the way of Gurkin's and Butler's recall from layoff. 5. By the following acts Respondent has discriminated against employees with respect to their hire, tenure, or other terms or conditions of employment in order to dis- courage membership in the Union, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) and, derivatively, Section 8(a)(1) of the Act: (a) On 27 November, by posting a notice that the Casino Lounge would be off limits to all department em- ployees save for the lounge booth operator himself, by reassigning William Morgan to the lounge job, by order- ing Morgan to begin in the new assignment the same night, and by firing him when he refused that order. (b) On 2 December, by laying off Randell Gurkin and Thomas Butler. 6. Since 21 November the Union has been duly desig- nated and selected by a majority of employees in the unit set forth below as their exclusive representative for pur- poses of collective bargaining with Respondent. The Union therefore is, and has been since that date, the ex- clusive collective-bargaining representative of employees in that unit within the meaning of Section 9(a) of the Act. That unit, an "appropriate" one under Section 9(b) of the Act, is as follows: All full-time and regular part-time entertainment employees performing carpentry, electrical, elec- tronic, sound, property, and wardrobe work in Re- spondent's lounge, cabaret, showroom and conven- tion area, including lead technicians, stage techni- cians and wardrobe persons, employed by Respond- ent at its Reno, Nevada facilities, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. 7. As set forth next, a bargaining order must be part of the remedial package for Respondent's violations. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that the Board order it to cease and desist from such misconduct and that it take certain affirmative action designed to fully remedy the violations and to effectuate the policies of the Act. Respondent's unfair labor practices struck at the heart of the rights guaranteed to employees by the Act, they pervaded the unit in question, and they were suggestive of an overall proclivity on Respondent's part to violate the Act, if necessary, to frustrate the unit employees' ap- parent wish to be represented by the Union. I have therefore recommended that the Board issue a "broad" cease-and-desist order. See, e.g., Regency Manor Nursing Home, 275 NLRB 1261 (1985). To remedy the unlawful treatment of William Morgan, I recommend that the Board order Respondent to offer Morgan immediate, full, and unconditional reinstatement to his pre-27 November job onstage in the Opera House, displacing, if need be, anyone subsequently designated to occupy that position;63 and that it make Morgan whole, with interest, for any losses of earnings he may have suf- fered as a result of the discrimination practiced against him.64 Because I have found that Watson's decision to place the Casino Lounge off limits to other technicians were integral to a discriminatory plan to terminate Morgan, I recommend that Respondent be ordered to re- 63 Restoration of the status quo ante Watson's unlawful decision to re- assign Morgan requires that Morgan be reinstated to his job on the stage deck But nothing in the recommended Order is intended to prevent Re- spondent from subsequently reassigning Morgan, for nondiscriminatory reasons, to other tasks or locations. 64 Backpay here, and in the cases of Gurkm and Butler, below, is to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed by the formulas, adopted in Florida Steel Corp., 231 NLRB 651 (1977). And see generally Isis Plumbing Co., 138 NLRB 716 (1962) RENO HILTON scind in writing the "No [Lounge] Visitors" directive that Watson posted on 27 November. To remedy the unlawful layoffs of Gurkin and Butler, Respondent must likewise make them whole in the manner prescribed above for Morgan. And as a final, common remedy for Morgan, Gurkin, and Butler, I have recommended that Respondent be ordered to remove from its files any reference to Morgan's reassignment, his alleged- insubordination, and his discharge, and to Gur- kin's and-Butler's layoffs, and to notify those employees in writing that it has done so and that those actions will not be used against them in any way. Finally, in substantial agreement with the General Counsel, I have recommended that the Board order Re- spondent to recognize and to bargain collectively in good faith with the Union as the exclusive collective-bar- gaining representative of the employees in the unit else- where found to be appropriate here.65 This case involves the commission by Respondent of numerous "hallmark" violations of the Act in a relatively small unit of employees and under circumstances when the Union had achieved a card majority in that unit. As noted' in Member Dennis' concurring opinion in Regency Manor, supra, "so-called `hallmark' violations include plant closing, threats of plant closure or loss of employ- ment, discharge or other serious adverse action against union adherents, and grants of significant benefits to em- ployees." Id. at 1262 and cases cited. And here the list of such "hallmark" violations must include Respondent's re- assignment and discharge of Morgan, the Union's princi- pal and most visible in-house advocate, the layoff of two other union adherents Gurkin, and Butler, as well as Burden's various remarks in which he specifically and re- peatedly threatened employees that Respondent would discharge and lay off employees (or had done so) be- cause of the Union's presence and would either cancel the Razzle-Dazzle show, or cut it back to one perform- ance per night as a means of discouraging employee sup- port for the Union. In her concurrence in Regency Manor, Member Dennis also suggests that even "hallmark" violations may not support a bargaining order if they were not shown to have been "pervasive" in their impact. Id. at 1263. Here there can be no doubt that Respondent's violations were pervasive. Focusing solely on Respondent's discharge of Morgan, it may I be presumed that knowledge of that action pervaded the unit in question. As Member Dennis observed, "Common sense and experience dictate that the 8(a)(3) discharge of a relatively inactive union adher- ent in a ' unit - of 500 employees is unlikely to have the same impact as the discharge of the principal employee organizer in a 20-person unit."' Id. Clearly, Morgan's dis- charge fits within the latter paradigm.' And the layoff of two other cardsigners, Gurkin and Butler, within a week of Morgan's discharge would likewise be the kind of 6s Consistent with Regency Manor, supra, fn. 5 (citing Pope Mainte- nance Corp , 228 NLRB 326 fn. 2 (1977)), I have dated Respondent's bar- gaming obligation from the first unfalT labor practice found to have oc- curred; that is, Terry Burden's statement to employees, made no later than 15 November, that the Hilton corporation's reaction to the Union would not be "pretty." 847 "hallmark" violation that, in this 19-person unit, should be presumed to be pervasive in its impact. It is also clearly probative on the question of the per- vasiveness of Respondent's discriminatory conduct that Burden himself gave voice to the coercive message i' - plicit in that conduct. Thus, employees in the unit were not merely left to draw their own conclusions about the significance of Morgan's discharge and Gurkin's and But- ler's, layoff; rather, Burden repeatedly told employees first that Respondent was prepared to resort to such dis- criminatory acts and, after Respondent had committed such acts, that Respondent had done so because of the Union's presence. Finally, if "mitigating" factors may be properly enter- tained in determining whether a bargaining order should issue to remedy these types of pervasive hallmark .viola- tions,66 I am not persuaded by Respondent's evidence of mitigation. Respondent's main thrust in this area is that "'Recent changes in the management of the Hotel's entertainment ptogram also lessen the likelihood that any unlawful act would recur," citing the subsequent departure of Dick Lane and Mike Watson from Respondnet's employ (R. Br. at 105-106). I deal below with the impact, of Dick Lane's departure on the propriety of a bargaining, order; for on this record, the probability is strong that Watson's, own participation in the unfair labor practices was in- spired by Lane and that employees in the unit liikewise, perceived Watson's role as that of a mere instrumentality in the execution of plans developed at higher levels. Particularly when Respondent chose not to put the de- tails in the 'record, speculation will be inevitable about the significance of Lane's discharge-and its timing-to various aspects of the case. As I have found, Respond- ent's agents committed no more discriminatory acts against employees after Lane was fired and Gurkin and Butler were recalled after Lane was fired. These are tantalizing facts, to be sure; and one maybe tempted to conclude from them that Lane `vas fired be- cause his actions exposed Respondent to charges 'of unfair labor practices. And from this one might conclude further that the removal of Lane's heavy hand from the department signaled the end of the not "pretty" stage of Respondent's resistance of the Union. Indeed Respondent seems to be inviting similar speculations when it now argues against the need for a bargaining order to remedy any violations that I may find occurred during the Lane epoch. A sufficient rejoinder to this argument might be that it is not at all clear that Lane was the initiator of the decision to "fight the Union."' Burden's account 'of Lane's allusions to the "corporation's"-as opposed to his personal-desires in the matter suggest that this schemes may have been inspired by his own corporate superiors. And if that were so, then it only barely reas- 66 Member Dennis suggested in Regency Manor that when pervasive hallmark violations are involved, and when the violations may be charac- terized as "outrageous," a bargaining order should issue without regard to,evidence of "mitigation." Id. at 1263-1264. Adopting for argument's sake the notion that there is some substantive categorical distinction (as opposed to mere differences in degree) between so-called category 1 and category 2 cases, I would find this case fits well within the so-called cate- gory 1; that is, that Respondent's actions here were truly "outrageous." 848 DECISTONS OF NATIONAL LABOR RELATIONS BOARD sures to learn that the corporate head has since severed the hand by which it accomplished unlawful goals. In any event, I have not been influenced in my sub- stantive findings by such musings about the significance of Lane's ' eventual discharge. Specifically, I have no- where depended on the fact that Respondent fired him to find that Lane played a most influential role in the 2- week blitz of violations that immediately preceded his departure. And I regard it as quite ironic in the circum- stances for Respondent now to seize on Lane's current absence as a basis for arguing that a bargaining order is not necessary to remedy those hallmark violations of the law. Respondent has not explained even in these proceed- ings why it fired Lane. For all this record shows, he was fired for his clumsiness, not his aim, nor his reach. And, far as we know from this record, the stagehands were never told in a more timely way about Lane's departure, or that he had been fired, or why he had been fired. Thus I would not now, for purposes of considering the appropriate remedy, indulge in the kind of speculation about the reasons for Lane's discharge that I have other- wise discarded in reaching substantive findings about Lane's role in the unfair labor practices. Nor can I pre- sume from its unheralded and unexplained decision to fire Lane that by this quiet device alone Respndent has restored to its stage technicians the degree of confidence with which they once exercised their statutory rights to obtain union representation. Indeed, I find it more realis- tic to presume that whatever dim signals the stagehands might now detect from Lane's mere absence would be drowned out by the louder echoes still reverberating from Morgan's discharge, from the layoffs of Gurkin and Butler, and from the mainfestly coercive, pervasive, and never-disavowed statements about these actions made to the stagehands when the blitz was on, by, their current manager, Terry Burden. Accordingly, whether viewed discretely or in their to- tality, Respondent's hallmark violations were pervasively and enduringly coercive, and they thus rendered it im- possible for the Board to conduct a fair representation election. In such circumstances a bargaining order is not merely arguably appropriate, it is the only device by which the employees' desire for union representation, manifested through their authorization cards, may now be effected. On these findings of fact and conclusions of law and on the entire record, I ,issue the following recommend- ed67 ORDER The Respondent, Hilton Hotels Corporation d/b/a Reno Hilton, Reno, Nevada, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from 67 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. (a) Threatening employees, directly or indirectly, with management retaliation for seeking union representation, including by telling them that management's reaction to such activities will not be pretty, that management will eliminate breaks, that it will discharge, lay off, or other- wise discriminate against union adherents, that it will curtail or eliminate current work opportunities, or by telling employees that management has, in fact, taken any such action for discriminatory reasons. (b) Requesting employees to refrain from pursuing or- ganizational rights or seeking access to the Board's elec- tion processes. (c) Reassigning, discharging, laying off, or otherwise discriminating against employees with respect to their employment in order to discourage their management in, or support for, the Union. (d) In any other manner or by any other means inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On the Union's request, recognize, and bargain col- lectively in good faith with the Union as the exclusive collective-bargaining representative of its employees in the unit elsewhere found to be appropriate herein; the recognition to be retroactive to 15 November 1984. (b) Consistent with the terms and provisions of the remedy section of this decision: (i) Offer to William Morgan immediate, full, and un- conditional reinstatement to his former job on the stage deck in the Opera House or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and any other rights or privileges previ- ously enjoyed, and make him whole for any loss of earn- ings or other benefits that he suffered as a result of the discrimination against him. (ii) Similary make whole Randell Gurkin and Thomas Butler for any losses of earnings and benefits they suf- fered as a result of the discrimination against them. (iii) Remove from its files any references to the unlaw- ful reassignment and discharge of William Morgan, and to the unlawful layoffs of Randell Gurkin and Thomas Butler, and notify all of them in writing that it has done so and that it will not use those actions against them in any way. (c) 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. (d) Post at Reno Hilton Hotel and Casino copies of the attached notice marked "Appendix."68 Copies of the 65 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " RENO HILTON notice, on forms provided by the Regional Director_ for Region 32, 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. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges ' violations of the Act not specifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had the chance to intro- duce evidence and arguments the National Labor Rela- tions Board has found that we violated the National Labor Relations Act during an organizing campaign by IATSE Local 363 in November-December 1984 when we reassigned and then fired stagehand William Morgan, when we laid off stagehands Randell Gurkin and Thomas Butler, and when our supervisors and agents Terry Burden and Mike Watson made threatening or otherwise coercive statements to employees in the enter- tainment department. To remedy these violations the Board has ordered us to post this notice and to live up to it. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain' collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted 'activities. 849 WE, WILL NOT reassign, lay off, or fire employees or otherwise discriminate against them for joining , support- ing, or assisting IATSE Local 363 or any other union. WE WILL NOT threaten employees that management will take-or has taken-any such discriminatory steps against employees WE WILL NOT request employees to refrain from pur- suing their right to file a petition for representation elec- tion with the Board. WE WILL NOT in any other manner or by any other means interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer to William Morgan immediate and full reinstatement to his former job on the stage deck in the Opera House without any prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole, with interest, for any loss of earnings and other benefits that he suffered when we un- lawfully fired him on 27 November 1984. WE WILL similarly make Randell Gurkin and Thomas Butler whole for any losses they suffered when we un- lawfully laid them off on 2 December 1984. WE WILL remove from our files any reference to the unlawful actions we took against Morgan, Gurkin, and Butler, and WE WILL notify them in writing that we have done so and that those actions will not in any way be used against them in the future. On request, WE WILL recognize and bargain collective- ly in good faith with IATSE Local 363, as the exclusive representative of employees in the bargaining unit set forth below. All full-time and regular part-time entertainment employees performing carpentry, electrical, elec- tronic, sound, property, and wardrobe work in our lounge, cabaret, showroom and convention areas, including lead stage technicians, stage technicians, and wardrobe persons employed at the Reno Hilton, but excluding all other employees, office clerical employees, guards, and supervisors as de- fined in the Act. HILTON HOTEL CORPORATION D/B/A RENO HILTON