Union Plaza Hotel & Casino; Las Vegas Club; Golden Gate Hotel And Casino

918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Scott Corporation and its wholly owned subsidiary' Scott Plaza, Inc. d/b/a Union Plaza Hotel & Casino; E. G. & H., Inc. d/b/a Las Vegas Club; J. D. Fiorito, Paul Fiorito, Elmer Detore, U. L. Merlino, Ernest Ferullo, Juanita Nevone, Calvin Tischer, George Morini, Craig I. Ghelfi and Jack R. Picardo d/b/a Golden Gate Hotel and Casino' and Local Joint Executive Board of Las Vegas and Culinary Workers Union Local 266, Hotel Employees and Restaurant Employees International Union, AFL-CIO. Case 31-CA-14664 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 9, 1987, Administrative Law Judge Richard J. Boyce issued the attached deci- sion. The Respondents filed exceptions and a sup- porting brief, and a request for oral argument.2 The General Counsel filed cross-exceptions togeth- er with a supporting brief and a response to the ex- ceptions. The Charging Party filed a brief in re- sponse to the Respondents' exceptions, 3 and the Respondents filed a brief in answer to the General Counsel's cross-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,4 and ' On April 4, 1989, the Board granted requests of the General Counsel and Charging Party to withdraw charges and dismiss the complaint with reference to Showboat Operating Company d/b/a Showboat Lounge, Casino and Bowling Center. The case caption has been amended accord- ingly. 2 The Respondents' request for oral argument is denied , as the record, exceptions, and briefs adequately present the issues and the positions of the parties "The Respondents filed a motion to strike portions of the Charging Party's brief to the extent it attached and discussed an arbitration award to which the judge had sustained the Respondents' objections to admis- sion into evidence on relevancy grounds . No exceptions to the judge's ruling have been made The Charging Party thereafter filed a motion to strike Respondents' motion as untimely We deny the Charging Party's motion and grant the Respondents' motion 4 We disagree with the judge that the unit described by the General Counsel in the amended complaint , which the parties have stipulated con- tains supervisors, is appropriate for the purposes of collective bargaining Instead, we note that, when parties have voluntarily agreed to include supervisors in a unit for purposes of bargaining , the Board will order the application of the terms of a collective-bargaining agreement to those su- pervisors. Arizona Electric Power Cooperative, 250 NLRB 1132 (1980). The Respondents have 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. conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Scott Cor- poration and its wholly owned subsidiary Scott Plaza, Inc. d/b/a Union Plaza Hotel & Casino; E. G. & H., Inc. d/b/a Las Vegas Club; J. D. Fiorito, Paul Fiorito, Elmer Detore, U. L. Mer- lino, Ernest Ferullo, Juanita Nevone, Calvin Tischer, George Morini, Craig I. Ghelfi and Jack R. Picardo d/b/a Golden Gate Hotel and Casino, Las Vegas, Nevada, their officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified below. Substitute the following for paragraph 1(a). "(a) Refusing to sign, honor, and apply its collec- tive-bargaining contract with Local Joint Execu- tive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL-CIO (the Union), which contract was ratified on May 24, 1984, and covers those classifications of employees named therein, for whom the Union is the exclu- sive bargaining representative, and those classifica- tions of supervisors named therein, as to whose terms and conditions of employment the Respond- ents have consented to bargain." 5 We adopt the judge's findings, essentially for the reasons set forth by the judge, that the parties agreed in their most recent contract negotia- tions to preserve the "downtown premium ." Although the judge did not rely on the testimony of union negotiators to the effect that Respondents' negotiator Efroymson indicated capitulation on the matter of the "down- town premium" in the May 21 meeting (in sec . IV,B,1, par. f, fn 30), he nevertheless concluded that Efroymson raised the issue and that, after emphatic reaction by the union negotiators , he dropped the matter and did not revive it again Bernard Hopkins, for the General Counsel. Kenwood C. Youmans (Seyfarth, Shaw, Fairweather & Ger- aldson), of Los Angeles, California, for all Respond- ents. Gregory E. Smith (Smith, Goold & Kotchka), of Las Vegas, Nevada, and Gary C. Moss (Wyman, Bautzer, Christensen, Kuchel & Silbert), of Los Angeles, Califor- nia, for Respondent Showboat. Gregory J. Kamer, of Las Vegas, Nevada, for Respond- ents Golden Gate and Las Vegas Club. Barry S. Jellison (Davis Cowell & Bowe), of San Francisco, California, for the Charging Party. Gerald Goldman (Levy, Goldman, Greenstone & Hubei), of Los Angeles, California, for Intervenors Teamsters Local 995 and Operating Engineers Local 501. 296 NLRB No. 117 UNION PLAZA HOTEL & CASINO 919 DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Las Vegas, Nevada , on 6 to 10, 15, and 16 April 1987.1 The complaint, based on charges filed by Local Joint Executive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL- CIO (Union) alleges that each of four employers (collec- tively Respondents) has violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) since about 21 May 1984 by "fail[ing] and refus[ing] to execute written collective-bargaining agreements embodying " an under- standing reached on about that date in negotiations with the Union.2 Respondents are Scott Corporation and its wholly- owned subsidiary Scott Plaza, Inc., d/b/a Union Plaza Hotel & Casino (Union Plaza); E. G. & H., Inc., d/b/a Las Vegas Club (Las Vegas Club); J . D. Fiorito, Paul Fiorito, Elmer Detore, U. L. Merlino, Ernest Ferullo, Juanita Nevone, Calvin Tischer, George Morini, Craig I. Ghelfi, and Jack R. Picardo, d/b/a Golden Gate Hotel and Casino (Golden Gate); and Showboat Operating Company, d/b/a Showboat Hotel, Casino and Bowling Center (Showboat).3 1. JURISDICTION AND LABOR ORGANIZATION Each Respondent operates a hotel and gambling enter- prise in Las Vegas. The complaint alleges, the answer admits, and I conclude that each is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. The complaint also alleges, the answer admits, and I conclude that the Union is a labor organization within Section 2(5) of the Act. II. POSITIONS SUMMARIZED The General Counsel and the Union contend that the Union arrived at separate but identical contracts with the Union Plaza, the Golden Gate , and the Showboat on 21 May 1984; that the Las Vegas Club agreed to the same contract on 23 May; and that Respondents therefore vio- lated the Act by later denying they were contractually bound. Respondents, while concededly believing at the time that agreement had been reached, now take a contrary position, arguing that a meeting of minds never occurred on the wage issue. Respondents further contend that, even if agreement was reached , the bargaining units are inappropriate because they include supervisors ; conse- quently, that the Board lacks authority "to compel con- i This manner of setting forth dates comports with the wishes of the Board 2 The original charge was filed on 20 November 1984. Amended charges were filed on II December 1984 and 14 March 1986. The origi- nal complaint issued on 24 February 1986. An amended complaint issued on 20 March 1986. and an amendment to the amended complaint issued on 20 March 1987 a A fifth respondent, Exber. Inc., d/b/a El Cortez Hotel & Casino, was removed from the case by order of the Regional Director dated 29 April 1986 tinued recognition or bargaining . . . through unfair labor practice proceedings." I conclude below, after an examination of the relevant evidence and applicable legal principles , that Respond- ents violated Section 8(a)(5) and (1) as alleged. III. THE ALLEGED MISCONDUCT A. Evidence The Union represents certain bar, kitchen, dining room, housekeeping, and casino personnel , both rank- and-file and supervisory, employed by Respondents and a number of like "properties" in the Las Vegas area. For many years until 1984, those employed in these categories by assorted downtown Las Vegas properties, including Respondents, comprised one multiemployer bargaining unit, and those employed by various proper- ties on the Las Vegas "Strip" comprised another. The vehicle through which the properties bargained and oth- erwise dealt with the Union was the Nevada Resort As- sociation (NRA). Contracts covering the two units were negotiated concurrently, and were identical in duration, expiration date, and most substantive terms. A substan- tive difference of particular moment to this case is that downtown employees in classifications customarily re- ceiving tips enjoyed somewhat higher wage levels, gen- erally 55 cents per shift, than their Strip counterparts. This sometimes is called the tip or downtown differen- tial, or downtown premium, and came into being as part of a strike settlement in 1967.4 The latest multiemployer-unit contracts expired on I April 1984. In early January 1984, anticipating the onset of fresh negotiations, the several properties, Respondents included, withdrew from the multiemployer-unit format. But, while no longer legally committed to common bar- gaining results, these properties-9 downtown, 11 on the Strip-entered into 1984 negotiations much as they had before, bargaining concertedly through the NRA and presenting a highly unified front.5 The first bargaining session took place on 16 January, when the properties proposed certain changes in contract language and a most-favored-nations clause. 6 Kevin Efroymson, a Las Vegas attorney, was their principal spokesman . He was assisted by Vincent Helm, executive director of the NRA, and Gary Moss, a Los Angeles at- torney. Philip Bowe, a San Francisco attorney, was the Union's chief spokesman. Jeff McColl, the Union's secre- tary-treasurer, also figured prominently, with Denis Mi- chaels, assistant secretary-treasurer, playing a lesser role. "The record suggests two possible reasons for the differential down- town patrons tip less generously , and free employee parking is universal- ly provided on the Strip, but not downtown. If this latter were the true reason , however, one wonders why the benefit was not extended to non- tipped downtown employees , as well S The properties characterized their approach to 1984 negotiations as "convenience bargaining " a Quoting from Roberts, Dictionary of Industrial Relations ( 1966), at 259, a most -favored-nations or more-favorable-terms clause is an agree- ment by which a union "agrees that it will not sign contracts with other employers under more favorable terms . [T]he language of the agree- ment may be automatic; that is, if conditions more favorable are granted to a competitor, then the more favorable conditions automatically apply to the signatory company " 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Both Efroymson and Bowe are labor-law specialists with years in the field. Efroymson presented the properties ' original economic package, in writing, during the second session, on 21 February. It stated with regard to the downtown premi- um: [T]hose rates in the Downtown Agreement which have been higher than the rates provided for the same classifications in the Strip Agreement shall be reduced to the rates provided in the Strip Agree- ment. The Union rejected this feature of the package, along with many others. On 2 April, with the expiration of the old contracts, the Union struck Respondents and a number of the other properties. Many issues remained unresolved, among them the downtown properties' insistence that the down- town premium be eliminated. Negotiations then lay fallow for a time, after which some of the properties, singly or in small groups , returned to the table. First mention of the downtown premium during the strike, apparently, came during a bargaining session on 2 May involving the Union and four unidentified down- town properties . Efroymson, speaking for the properties, iterated the earlier proposal that it be eliminated . McColl replied that the Union was willing, provided it was "tied to free parking." That was unacceptable to Efroymson. He countered, as he recalled: [W]e're not going to tie it to free parking . There's no justification for the differential in rates and, as you know, there are a number of properties that are unable to provide free parking downtown and we're standing on the proposal to unify the rates and eliminate the premium without tying it to free park- ing. Efroymson added, per his testimony: [I]f you say it's tied to parking , that's why they get the premium, why don't the majority of the em- ployees who are not [in] tip classifications get a similar premium when they're paying for parking[?] Efroymson could not recall if McColl responded to this question. The first bargaining breakthrough affecting an NRA affiliate occurred on 3 May, when the Union and two Hilton corporation properties settled on a 4-year pack- age.7 The settlement document included stated wage in- creases,8 but, not being in the form of a fully-integrated contract, did not specify resulting wage levels.9 The downtown premium was not an issue, both properties being on the Strip. The first downtown breakthrough came the next day, 4 May, with the adoption of the Hilton settlement by r Some independents had reached agreement earlier. 8 Five cents per hour as of the effective date, 10 cents, 15 cents, and 24 cents per hour on 2 May 1985 , 1986, and 1987, respectively ; and 25 cents per hour on 2 November 1987 8 Helm later prepared an integrated document , which he sent to McColl on 15 June Jackie Gaughan, owner of two downtown properties, the El Cortez Hotel and Casino and the Western Hotel. Doing his own talking and acting contrary to Efroym- son's recommendation , 10 Gaughan signified his adoption by signing an instrument stating: I, JACKIE GAUGHAN, instruct the Nevada Resort Association to immediately sign the "Hilton Agreement" with the Joint Board [Union] on behalf of the El Cortez and the Western Hotel. Gaughan and the union spokesmen did not discuss the downtown premium at this time. He reportedly boasted to Helm and Efroymson afterwards, however, that he had achieved its elimination, word of which shortly reached union officials. 11 Another Strip property, Caesars Palace, adopted the Hilton settlement later on the fourth. Efroymson, present on behalf of Caesars Palace, testified that he was told at that time "that Mr. Gaughan had signed the Hilton con- tract at the Hilton rates, with the elimination of the downtown premium." He enlarged that union spokesmen reported that Gaughan "had signed the Hilton contract in total." Asked, then, if they explicitly mentioned "elimination of the downtown premium," Efroymson tes- tified: Yes. I can't precisely recall the semantics , but in the semantics we were using, in terms of buying the Hilton rate, the Hilton contract, eliminating the downtown premiums, in that-as to that issue, they were synonymous.12 Pressed later whether any union spokesman actually "told him at that meeting that Gaughan had achieved elimination of the downtown differential ," Efroymson admitted, "In those words, no." The Union's membership ratified the Hilton, Gaughan, and Caesars Palace agreements on 17 May . The Union's leadership had urged ratification in a letter to members preceding the vote. The letter stated in part: This "Hilton" contract is a reasonable contract and should be approved for the Hilton and all other un- signed employers and . . . the membership should accept it as "the Industry Agreement" for all em- ployers ... . Meanwhile, negotiations involving various other prop- erties, downtown and Strip, took place sporadically from 10 Efroymson testified . "I had a four-hour meeting with Mr. Gaughan on the night of May 3rd. Mr Gaughan said he would accept the Hilton contract with the Hilton rates and contemplated signing it I was trying to dissuade him i i The Gaughan properties nevertheless continued to pay the down- town premium, as revealed by employee paystubs They did not institute pay raises in accordance with the Hilton settlement , however, prompting the Union to grieve . The grievance was resolved in March 1986 by the Union's agreeing to waive the premium in exchange for free employee parking 12 Efroymson testified that the inference was reinforced by Gaughan's later telling him that he had "bought the Hilton contract in total," and by Helm's reporting that Gaughan had advised him that he "had accepted the Hilton agreements" or "words to that effect " UNION PLAZA HOTEL & CASINO about, 5 to 15 May. Efroymson testified that the down- town properties "all maintained their proposals to elimi- nate the downtown premiums" in those meetings. They did not raise the issue anew, he averred; rather, "At no time had they withdrawn the proposal they put on the table on February 21st." Efroymson to the contrary, Mi- chaels' contemporaneous notes of a 6 May meeting con- cerning two downtown properties, Sam's Town and the California Hotel, and a 10 May meeting regarding Re- spondent Showboat indicate that the properties then de- manded and the Union rejected the premium's elimina- tion.13 On 19 May, negotiations resumed between the Union and three of the four Respondents-the Union Plaza, the Golden Gate, and the Showboat. One other downtown property, Del Webb's Mint and Casino Hotel (Mint), and six Strip properties also were represented. These parties met again on the 20th, reaching what they believed to be a resolution of all troublesome issues; and, with yet an- other Strip property joining in, on the afternoon of the 21st to tie up assorted noncontroversial loose ends.14 The respective spokesmen were those previously identi- fied. The president of the Union's parent International, Ed Hanley, and its secretary-treasurer, Herman Leavitt, participated, as well. 1 s The accord reached in large part on the 20th corre- sponded in most respects with those ratified on the 17th, a significant exception being contract term-5 years, rather than 4. Following the meeting, Helm prepared a 12-item written summary reflecting the properties' per- ception of the agreement . It said nothing one way or the other about the downtown premium, dealing with wages this way: For the first four (4) years, as agreed to in the Hilton contract with Thirty Cent ($.30) per hour in- crease in fifth (5th) year ... . Bowe, reviewing a copy of Helm's summary sometime before the meeting of the 21st, called either Helm or Moss to convey certain objections and reservations, but had no quarrel with it for the most part.16 Bowe's objections and reservations were readily dis- posed of during the meeting of the 21st, as were the mat- ters left for resolution that day. After the meeting, Helm prepared another summary, this time consisting of 16 items. It, like its forerunner, said nothing about the 13 Michaels testified that he had no independent recollection of the events underlying the pertinent note entries 14 Foremost among the loose ends , fashioning grievance/arbitration and discharge clauses 15 Hanley and Leavitt acted mainly as couriers between the two nego- tiating teams, which were in separate rooms much of the time '6 The record, although in conflict whether Helm or Moss was the management party to the conversation , is internally consistent concerning its essence. Bowe's only substantive objection , apparently, pertained to the first entry in the summary "Most Favored Nations-Handshake " He alluded to the Union 's stated position that, while it opposed any written reference to a most-favored -nations understanding , and was fearful that such a reference would jeopardize ratification , it would informally assure those now settling that they would not be held to a competitive disad- vantage relative to any property later settling on more favorable terms The management party was receptive to Bowe's remarks , and the matter was resolved on that basis Such an arrangement also attended the Hilton and Caesars Palace settlements 921 downtown premium."Its wage entry generally mirrored that in the earlier rendition , the main difference being the elaboration of a formula for setting the date of the first raise. Thus: The effective date for the first year will be the first day of return to work after ratification. The effec- tive date and amounts of the increases in the second, third and fourth years to be the same as in the Hilton contract, with a Thirty Cent ($.30) per hour wage increase in fifth (5th) year ... . The downtown premium was not mentioned, let alone discussed, on either the 19th or the 20th. It did come up, however, during the loose-ends meeting of the 21st. Efroymson, saying that he wanted some things clarified, stated that he understood the settlement to incorporate Hilton wage levels. McColl exclaimed, as he recounted, that Efroymson was "full of shit"; that he had "asked for" elimination of the downtown premium early in ne- gotiations and knew he "didn't get it"; and that he was not to "pull that crap here." Efroymson responded, ac- cording to McColl, by smiling and saying, "Okay"; and the subject was dropped. Michaels testified that he, too, excepted to Efroym- son's remark, declaring that "rates meant increases," not wage levels; and that Efroymson responded "by either saying 'okay' or nodding his head." 18 Bowe, eschewing detail, testified that Efroymson cited Gaughan's boast that he had eliminated the premium ("Jackie thinks he's got it."), and that the union spokesmen answered, "No way." Efroymson conceded in his recital that either McColl or Bowe objected to his comment, one or the other in- sisting that Hilton wage levels, as distinct from increases, were "not to be applicable to the downtown hotels." 1 s Efroymson countered, he testified, by observing that the parties had spoken the day before "of one contract .. . applicable to all," to which he added that the union spokesmen also had said that Gaughan had received "the same contract as the Hilton, with the same rates as the Hilton." McColl thereupon denied that Gaughan had gotten the Hilton wage levels, according to Efroymson, and Efroymson said he disagreed. Presumably alluding to the contrary implications of McColl and Michaels, Efroymson denied acknowledg- ing, "by any action or gesture," that the premium re- mained intact . To the extent that his version differs from those of the union spokesmen, Efroymson is uncorrobor- ated. Helm did not testify although present at the meet- ing; and Moss, present at least some of the time, testified, "I don't recall any such discussion." Efroymson conceded that the exchange did not evolve into a discussion "as to how the dispute would be re- 11 Unlike the earlier summary, and in keeping with the arrangement described in the preceding footnote, it contained no most-favored -nations reference 18 In his affidavit , dated 24 June 1985, Michaels stated , "I don't recall a response by Efroymson " Michaels' notes of the meeting do not reflect Efroymson's response 19 Efroymson testified , however, that he could not recall McColl's saying he was "full of shit " 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD solved." A management caucus followed, after which the meeting moved to its eventual conclusion without fur- ther mention of the issue. By all accounts, the exchange was brief,20 and the meeting ended in the universal belief that total settlement had been perfected , subject only to ratification by the Union's members. At the close of the 21 May meeting, Efroymson sug- gested a meeting with regard to the fourth Respondent, the Las Vegas Club, and four other properties-three downtown and a Holiday Inn on the Strip-yet to come to terms. Bowe, McColl, and Michaels accordingly met with him in his office the evening of the 22nd. During the meeting, Efroymson listed "money" as one of four issues concerning the Las Vegas Club. Bowe tes- tified that he rejoined: What do you mean by money, Kevin? Do you mean the ... abolition of the downtown differen- tial, which you didn't get this afternoon, or do you mean something on top of that?21 Efroymson replied , per Bowe, "No, Mel Exber, the owner, needs more." Efroymson , on the other hand, denied that Bowe asked what he meant by "money," fur- ther denying that he mentioned a failed earlier effort by Efroymson to obtain the premium 's elimination . Neither McColl nor Michaels meaningfully corroborated Bowe. Bowe and Efroymson met again , at a pancake restau- rant, the afternoon of the 23rd. Their focus, this time, was confined to the Las Vegas Club and the Holiday Inn. The meeting was fruitful ; and, afterwards, the two spokesmen consulted with their respective principals and continued their dialogue by telephone. By day's end, these properties had joined in the settlement of the 21st.22 Efroymson admittedly did not broach the downtown premium on either the 22nd or the 23d. The Union's membership ratified the settlement, as it pertained to the four Respondents and the nine other properties party to it , on 24 May. Striking employees began to return to work on the 25th. A flier signed by union officers and distributed at the ratification meeting depicted the settlement as the "indus- try contract" that had been ratified on the 17th, with enumerated "modifications." Regarding wages, it stated: The wage . . . is the same as the "industry con- tract" for the first four years, plus a .30 0 [sic] per hour wage increase . . . at the beginning of the fifth year. Since ratification, Respondents have refused to sign contracts preserving the downtown premium. The Showboat, however, apparently has adhered to all terms 20 Respondent's brief characterizes the incident as "that brief episode," and states, "There was minimal discussion concerning this issue during the May 21 meeting and, on the basis of the credible evidence adduced, no express resolution of the parties ' differences." Si Bowe's reference to "this afternoon" corresponds with his testimony elsewhere that this meeting occurred on the 21st rather than the 22nd. The weight of evidence indicates that he was mistaken. 22 With one exception . The Union agreed on the 23d to a 40-shift pro- bationary period , whereas the earlier settlement contemplated one of 30 shifts. The earlier settlement was revised to correspond with the latter. of the settlement as perceived by the Union, even con- tinuing to pay the downtown premium.23 The other three, aside from withholding payment of the premium, apparently have complied, as well. The other downtown property party to the 21 May settlement, the Mint, joined cause with Respondents for time, later abandoning the dispute by signing a contract eliminating the premi- um in return for free parking.24 The Strip properties covered by the settlement, unaffected by the downtown premium, signed without cavil. By letter from McColl dated 26 July 1984, the Union initiated grievance action against one of the Respondents, the Union Plaza, "concerning wage scales ." The letter elaborated that the Union had been "advised that Em- ployer is paying Strip wages to his employees instead of the downtown hotel wage scale." A meeting followed on about 8 September, during which a part- owner of the Union Plaza, Ike Houssells, told union officials that Efroymson "had told him specifically that they had abol- ished the downtown differential at the bargaining table." The union officials replied that Efroymson "had lied," and urged Houssells to "check with" Helm. Houssells said he would, then "get back to" the Union. Hearing nothing further from Houssells, McColl informed the Union by letter dated 18 September that the Union was proceeding to arbitration . That matter was unresolved to the time of the present trial. As mentioned, the meeting in Efroymson's office the evening of the 22nd involved three downtown properties other than the Las Vegas Club. Negotiations concerning those three25 continued for some months afterwards, with Efroymson expressly demanding elimination of the downtown premium at one time or another. That, Efroymson testified, was "so there would be no ifs, ands, or buts as to any settlement for these properties." Efroymson testified that he did not expressly demand elimination of the downtown premium in the negotia- tions of 19-21 May because "the issue had been resolved ... with the settlements of May 3rd and May 4th." Asked his bases for that assertion, he cited: (a) The properties' proposal of 21 February "that ev- erybody would have the same wage rates for the same classifications, whether they be a Strip or a downtown hotel," the purpose being to eliminate "the pre-existing premiums in the downtown hotel contract." (b) The publicity linking Gaughan's downtown settle- ment with those relating to the two Hiltons and Caesars Palace. Efroymson elaborated: The publicity . . . was that . . . the El Cortez had agreed to the Hilton contract, and the Union then publicized, as well as the press, that it was an indus- try agreement . . . . There was an article in the paper on . . . May 5th, 1984, Saturday, with a pic- ture of Mr. Gaughan and Mr. Joe Hays, the presi- 89 Michaels testified that he was told by the Showboat 's personnel di- rector, Art Bandmi , that it was paying the premium , and that he "believe[s] right to this day they are still paying the difference." 24 The Union then offered this same tradeoff to the Respondents They declined. 2 The Four Queens, the California Hotel, and Sam's Town UNION PLAZA HOTEL & CASINO dent of Local 226, which stated or reported that they both stated that Mr. Gaughan had accepted the Hilton contract, which had the Hilton rates and did not contain any premiums for those classifica- tions.26 (c) Helm's disclosure to Efroymson that Gaughan "had called him on May 4th and told him he had signed the Hilton contract," and word from "at least two other principals" that Gaughan "had advised them that he had signed the Hilton contract and got the Hilton rates."27 B. Conclusions and Reasons 1. The contract question As indicated, the existence of contracts between the Union and Respondents hinges solely on whether the set- tlement ratified on 24 May preserved the downtown pre- mium. Disposition of that issue turns on the parties' in- tentions as revealed by objective indicia. Thus: It is . . . tempting to rely uncritically on the hoary maxim of the law of contracts that, absent a "meet- ing of the minds," there is no mutually binding agreement. The temptation is avoided, however, be- cause the expression "meeting of the minds" in con- tract law does not literally require that both parties have identical subjective understandings on the meaning of material terms in the contract. Rather, subjective understandings (or misunderstandings) as to the meaning of terms which have been assented to are irrelevant, provided that the terms them- selves are unambiguous `judged by a reasonable standard."28 The Union plainly intended that the settlement retain the downtown premium. Based on an aggregate of objec- tive indicia, I am persuaded that Respondents entertained that intention, as well, until sometime after ratification. I conclude, therefore, subject to disposition below of Re- spondents' unit argument, that enforceable contracts did come into being and that Respondents violated the Act as alleged by later failing to sign them and disavowing their validity. 26 The newspaper article, in evidence, states that Gaughan "accepted the terms of the Hilton settlement , adding, "Unlike other downtown hotel owners who have said they would be placed at a competitive disad- vantage if they accepted the Hilton contract . . Gaughan said he 'liked that agreement " The article otherwise neither says nor implies anything about the downtown premium or uniformity of wage levels between the Gaughan and Hilton settlements. The publicity from the Union to which Efroymson referred was the letter sent by the Union to its members in anticipation of the 17 May rati- fication meeting, with its depiction of the Hilton, Gaughan, and Caesars Palace settlements as "this 'Hilton' contract" and "the Industry Agree- ment " 27 Efroymson identified the two "principals" as Mel Exber, part-owner with Gaughan of the El Cortez and the Las Vegas Club, and Ike Hous- sells, part- owner with Gaughan of the Union Plaza and the Showboat They did not testify. 29 Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979). See also Diplomat Envelope Corp., 263 NLRB 525, 535-536 (1982); Cherokee United Super, 250 NLRB 29, 33 (1980), Pittsburgh-Des Moines Steel Co., 202 NLRB 880. 888 (1973) 923 Among the objective indicia of Respondent's intention, at relevant times, are these: (a) From 21 February to 24 May, the Union rejected each of Efroymson's proposals to eliminate the premium. (b) Efroymson did not propose the premium's elimina- tion during the negotiations immediate to the settlement reached on 21 May, nor in the subsequent negotiations by which the Las Vegas Club joined in that settlement. (c) His stated reason for not doing so-that "the issue had been resolved . . . with the settlements of May 3rd and May 4th"-is belied by his having proposed the pre- mium's elimination in negotiations on 6 and 10 May29 and in negotiations with certain downtown properties after 24 May. (d) That Efroymson raised the subject of the premium on 21 May-ostensibly for the purpose of clarification, not as a proposal-undermined his professed certitude that "the issue had been resolved." (e) While Helm's summary after the 20 May meeting spoke, perhaps ambiguously, of wages "as agreed to in the Hilton contract" for the first 4 years, his summary following the meeting of the 21st-and after the one brief exchange concerning the premium-unambiguously referred to "amounts of the increases in the second, third and fourth years." (f) Faced with the Union's vehement reaction to his 21 May probe concerning the status of the premium, Efroymson quickly dropped the matter, not to revive it again in that meeting or in the later Las Vegas Club ne- gotiations. S0 (g) Despite the Union's reaction, the 21 May meeting ended and ratification followed with everyone believing total settlement had been realized. (h) Beyond Efroymson's express demand in negotia- tions on 6 and 10 May and after 24 May that the premi- um be eliminated, his stated reasons for believing that the settlements of the 3d and 4th had "resolved" the issue lacked conviction. Not only was his testimony in that regard vague, tentative, and generally unconvincing, but the grounds cited-a newspaper article, a union preratifi- cation letter, Gaughan's purported understanding of his settlement, etc.-fail abjectly to support the desired in- ference. Perhaps more fundamentally, that one of Efroymson's rich labor-law seasoning would accord dia- positive credence to such inconclusive and largely sec- ondary sources on an issue of this import beggars credu- lity. 2. The unit question As noted, the Union for many years has represented certain bar, kitchen, dining room, housekeeping, and 29 Crediting Michaels' contemporaneous notes over Efroymson's con- trary testimony. 30 The Board assigned especial weight to this sort of conduct in Fash- ion Furniture Mfg., 279 NLRB 705 (1986) I do not rely on the testimony of McColl and Michaels that Efroymson evinced capitulation in the 21 May meeting by smiling, nodding his head, or saying okay . Nor do I rely on Bowe's testimony that he taunted Efroymson , during their meeting concerning the Las Vegas Club and others, about his earlier failure to achieve "abolition of the downtown differential." The attempted corroboration in both cases was so poor a'. to suggest ill-rehearsed, after-the-fact scripting 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD casino personnel, both rank-and-file and supervisory, em- ployed by Respondents . The parties stipulated that they "knowingly agreed to the inclusion " of various catego- ries of supervisors in 1984 negotiations, and that they also "agreed to remove certain supervisory classifica- tions" previously included . The same stipulation indicates that from about 2 to 5 percent of those in the respective units are supervisors . The mass withdrawal from multi- employer-unit bargaining did not otherwise affect unit composition. The record contains no evidence that Re- spondents ever questioned unit appropriateness until rais- ing the argument after this case arose. A party is "not privileged . . . to alter unilaterally the scope of the bargaining unit during the term of a collec- tive-bargaining agreement covering that unit" on the ground that the unit includes supervisors . 31 Respondents, by seeking to escape their contracts with the Union on that basis, would do precisely that . I therefore reject Re- spondent's unit argument ;92 and, so doing, conclude that the units covered by the contracts in question are appro- priate in the circumstances. CONCLUSIONS OF LAW By failing and refusing to sign and acknowledge the validity of their contracts with the Union , ratified on 24 May 1984, Respondents each violated Section 8(a)(5) and (1) as alleged. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed3a ORDER Respondents-Scott Corporation and its wholly owned subsidiary Scott Plaza Inc. d/b/a Union Plaza Hotel & Casino; E. G. & H., Inc . d/b/a Las Vegas Club; J. D. Fiorito, Paul Fiorito, Elmer Detore, U. L. Mer- lino, Ernest Ferullo, Juanita Nevone, Calvin Tischer, George Morini, Craig I. Ghelfi, and Jack R. Picardo d/b/a Golden Gate Hotel and Casino, Las Vegas, " Arizona Electric Power Cooperative , 250 NLRB 1132 ( 1980) The Board enlarged in fn. 10 at 1134 . "Respondent's duty to bargain concern- ing the [supervisors] would terminate on the expiration of the current contract, provided that Respondent took appropriate steps at that time to contest their continued inclusion in the unit." See also Motor Rim & Wheel Service, 273 NLRB 866 ( 1984). as Respondents argue that Arizona Electric Power Cooperative should not control because the number of supervisors in that case ( 1) was "de minimis," it involved an already -executed contract, and "it is a poorly reasoned decision ." The case, however, does not turn on the extent of supervisory impact on the unit (as its fn 10, by positing all the load dis- patchers to be supervisors , plainly reveals), and to exonerate Respondents because they have withheld execution of the present contracts would be to beg the ultimate question-and, so doing, to reward their misconduct As for the assertion that Arizona Electric Power Cooperative is poorly rea- soned, the case remains good law so far as I can determine , and so is binding on me Oakland Press Co, 266 NLRB 107 (1983 ), in which the Board concluded that a withdrawal of recognition was permissible be- cause of the inclusion of supervisors, is distinguishable from the present case and Arizona Electric Power Cooperative That withdrawal did not occur during contract term 89 All outstanding motions inconsistent with this recommended Order hereby are denied If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and rec- ommended Order shall , as provided in Sec 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. Nevada-their officers, agents, successors, and assigns, each shall 1. Cease and desist from (a) Refusing to sign, honor, and apply its collective- bargaining contract with Local Joint Executive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees Internation- al Union, AFL-CIO (Union) which contract was ratified on 24 May 1984 and covers those classifications and cat- egories of employees and supervisors named therein, which is an appropriate unit, for whom the Union is the exclusive bargaining representative. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request by the Union, promptly sign its collec- tive-bargaining contract with the Union, which contract was ratified on 24 May 1984. (b) Give retroactive effect to the terms and conditions of employment prescribed by its said contract , and make whole those covered by it, and the Union, for any losses suffered by reason of the past failure to sign, honor, and apply that contract .34 (c) Post at its facility in Las Vegas, Nevada, copies of that attached notice-Appendix A, B, C, or D-which is applicable to it . S5 Copies of the notice, on forms provid- ed by the Regional Director for Region 31, after being signed by its authorized representative , shall be posted by it immediately on receipt and maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees customarily are posted. Rea- sonable steps shall be taken by it to ensure that the notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps it has taken to comply. 94 With interest as computed in New Horizons for the Retarded, 283 NLRB 1173 ( 1987) Under New Horizons, interest is computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Flori- da Steel Corp., 231 NLRB 651 (1977). I leave to the compliance stage the effect on amounts owing hereunder of the Union's informal assurances (see fn . 16, supra) in lieu of a written most-favored-nations provision. as 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." UNION PLAZA HOTEL & CASINO 925 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 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. WE WILL NOT refuse to sign, honor, and apply our collective-bargaining contract with Local Joint Execu- tive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL-CIO (Union) which contract was ratified on 24 May 1984 and covers those classifica- tions and categories of employees and supervisors named therein, for whom the Union is the exclusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request by the Union , promptly sign our collective-bargaining contract with the Union, which contract was ratified on 24 May 1984. WE WILL give retroactive effect to the terms and con- ditions of employment prescribed by our said contract, and make whole those covered by it, and the Union, for any losses suffered by reason of the past failure to sign, honor, and apply that contract. SCOTT CORPORATION AND ITS WHOLLY OWNED SUBSIDIARY SCOTT PLAZA, INC. D/B/A UNION PLAZA HOTEL & CASINO (UNION PLAZA) APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to sign , honor, and apply our collective-bargaining contract with Local Joint Execu- tive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL-CIO (Union) which contract was ratified on 24 May 1984 and covers those classifica- tions and categories of employees and supervisors named therein, for whom the Union is the exclusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request by the Union, promptly sign our collective-bargaining contract with the Union, which contract was ratified on 24 May 1984. WE WILL give retroactive effect to the terms and con- ditions of employment prescribed by our said contract, and make whole those covered by it, and the Union, for any losses suffered by reason of the past failure to sign, honor, and apply that contract. E. G. & H., INC. D/B/A LAS VEGAS CLUB (LAS VEGAS CLUB) APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 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. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. 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 WE WILL NOT refuse to sign, honor, and apply our collective-bargaining contract with Local Joint Execu- tive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL-CIO (Union) which contract was ratified on 24 May 1984 and covers those classifica- tions and categories of employees and supervisors named therein, for whom the Union is the exclusive bargaining representative. 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request by the Union, promptly sign our collective-bargaining contract with the Union, which contract was ratified on 24 May 1984. WE WILL give retroactive effect to the terms and con- ditions of employment prescribed by our said contract, and make whole those covered by it, and the Union, for any losses suffered by reason of the past failure to sign, honor, and apply that contract. J. D. FIORITO, PAUL FIORITO, ELMER DETORE, U. L. MERLINO, ERNEST FER- ULLO, JUANITA NEVONE, CALVIN TISHCER, GEORGE MORINI, CRAIG 1. GHELFI, AND JACK R. PICARDO D/B/A GOLDEN GATE HOTEL AND CASINO (GOLDEN GATE) APPENDIX D NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National LaborRelations Act and has or- dered us to post and abide by this notice. 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. WE WILL NOT refuse to sign, honor, and apply our collective-bargaining contract with Local Joint Execu- tive Board of Las Vegas and Culinary Workers Union Local 226, Hotel Employees and Restaurant Employees International Union, AFL-CIO (Union) which contract was ratified on 24 May 1984 and covers those classifica- tions and categories of employees and supervisors named therein, for whom the Union is the exclusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request by the Union, promptly sign our collective-bargaining contract with the Union, which contract was ratified on 24 May 1984. WE WILL give retroactive effect to the terms and con- ditions of employment prescribed by our said contract, and make whole those covered by it, and the Union, for any losses suffered by reason of the past failure to sign, honor, and apply that contract. SHOWBOAT OPERATING COMPANY D/B/A SHOWBOAT HOTEL, CASINO AND BOWLING CENTER (SHOWBOAT)