Rodeway Inn of Las Vegas

RODEWAY INN OF LAS VEGAS Rodeway Inn of Las Vegas and Professional, Cleri- cal and Miscellaneous Employees, Local 995, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 31-CA-9180 and 31 -RC-4530 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLI.O On May 7, 1980, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ' Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Although the Administrative Law Judge found that Respondent's ex- tensive violations of Sec. 8(a)(1) of the Act were of such a nature that a bargaining order is required to remedy them, he inadvertently failed to date the bargaining order. In Beasley Energy. Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), the Board stated that, in the absence of an alleged violation of Sec. 8(a)(5) of the Act and where the union has not made a demand for recognition, the respondent will be ordered to bargain with the union as of the date on which the respondent initiated its campaign of unfair labor practices, if, as of that date, the union had obtained majority support in the unit As the record herein shows that the Union achieved majority status among the unit em- ployees on May 31, 1979, the bargaining order should be dated from the approximate date thereafter that Respondent embarked on its course of unlawful conduct, that is, June 16, 1979. See also Stephen Davis and Mi- chael Provenzano d/b/a Carlron' Market, 243 NLRB 837 (1979) Chair- man Fanning would make the bargaining order prospective in nature. See his dissent in Beasley Energy. Inc., supra. Finally, in par. I(f) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or re- lated manner." However, we have considered this case in light of the standards set forth in Hickmoan Foods, Inc., 242 NLRB 1357 (1979). and have concluded that the widespread misconduct of Respondent as evi- denced by its numerous and serious violations of the Act (threatening employees with discharge, elimination of benefits, and loss of its "family atmosphere"; promising them wage increases, no future reduction in working hours, and consideration of a hospitalization plan, and interro- gating an employee concerning his union activities) clearly "demonstrates a general disregard for [its] employees' fundamental statutory rights." Ac- cordingly, we shall modify the recommended Order so as to use the broad injunctive language "in any other manner." 252 NLRB No. 53 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Rodeway Inn of Las Vegas, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(f): "(f) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election con- ducted in Case 31-RC-4530 be, and the same hereby is, set aside, and that the petition in Case 31-RC-4530 be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise our employees an immediate 25-cent-an-hour wage increase; an additional increase in pay in the future; no re- duction in their working hours or workweek; and consideration of a hospitalization plan for employees, where such promises are made to induce our employees to cease or abandon their activities on behalf of Professional, Cleri- cal and Miscellaneous Employees Local No. 995, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten our employees with the loss of the "family atmosphere" at our fa- cility, if the employees select the Union as their collective-bargaining representative, and WE WILL NOT warn them that normal condi- tions will not return until the Union is defeat- ed. WE WILL NOT threaten our employees with the loss of commissions from their sales of tickets to shows and tours, if the employees select the Union as their collective-bargaining representative. WE WILL NOT threaten our employees with discharge if the employees select the Union as their collective-bargaining representative. 344 RODEWAY INN OF LAS VEGAS WE WII.I. NOT interrogate our employees re- garding their union feelings and activities. WE WIl l NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them by the National Labor Relations Act. WE WIll recognize and, upon request, bar- gain collectively with Professional, Clerical and Miscellaneous Employees Local No. 995, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in the appro- priate bargaining unit described below: Night auditors and front desk clerks em- ployed at our 3786 Las Vegas Boulevard South, Las Vegas, Nevada, location; exclud- ing all other employees, professional em- ployees, supervisors and guards as defined in the Act. RODEWAY INN OF LAS VEGAS DECISION STArTEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original unfair labor practice charge in Case 31-CA-9180 was filed on July 11, 1979, by Professional, Clerical and Miscellaneous Employees, Local 995, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein referred to as the Union. (See G.C. Exh. I(a).) The first amended unfair labor practice charge in that case was filed on July 30, 1979, by the Union. (See G.C. Exh. I(c).) The second amended unfair labor practice charge in that case was filed on August 23, 1979, by the Union. (See G.C. Exh. I(e).) The Regional Director for Region 31 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, issued a complaint and notice of hearing on Sep- tember 14, 1979, against Rodeway Inn of Las Vegas, herein called Respondent. (See G.C. Exh. (g).) The General Counsel's complaint, as amended during the course of the hearing, alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer to the General Counsel's complaint and denied that it had committed the alleged unfair labor practices. (See G.C. Exh. I(k).) The representation petition in Case 31-RC-4530 was filed by the Union on June 15, 1979. Pursuant to a Stipu- lation for Certification Upon Consent Election, an elec- tion was conducted on July 24, 1979, in the following agreed-upon unit: Night auditors and front desk clerks employed by Respondent at its 3786 Las Vegas Boulevard South, Las Vegas, Nevada, location; excluding all other employees, professional employees, supervisors and guards as defined in the Act. The tally of ballots revealed that there were two votes cast for, and two votes cast against, the Union; there were no challenged ballots. Objections to conduct affect- ing the results of the election were filed on July 26, 1979, by the Union. The Regional Director for Region 31 of the Board issued a Report on Objections, Order Consolidating Cases, Order Directing Hearing and Notice of Hearing on September 21, 1979. The Union's objections. as subse- quently corrected, are quoted on page 2 of the Regional Director's report. (See G.C. Exh. l(i).) The hearing in the consolidated cases was held before me on January 22, 1980, at North Las Vegas, Nevada. The time for filing briefs was extended to March 7, 1980. Both counsel for the General Counsel and the attorney for Respondent filed briefs. FINI)INGS OF FACT I. I HE BUSINESS OF RESPONDENI- Respondent is a joint venture with an office and prin- cipal place of business located in Las Vegas, Nevada, where Respondent is engaged in the operation of a motel providing lodgings for guests. During the course and conduct of its business oper- ations, Respondent has annually derived gross revenues in excess of $500,000, and Respondent has annually pur- chased and received goods or services valued in excess of $50,000 directly from suppliers located outside the State of Nevada. Upon the foregoing facts, which were admitted to be true in the pleadings, I find that Respondent has been, at all times material herein, an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE I.ABOR ORGANIZATION INVOIVII) It was admitted in the pleadings, as amended at the hearing, that the Union has been, at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. Based upon the foregoing, and the entire record in this case, I find that fact to be so. I1. THE UNFAIR IABOR PRACTICS A. The U'itnesses In alphabetical order by their last names, the following seven persons appeared as witnesses at the hearing in this proceeding: Larry Eckerty is the manager of Respondent's facility. He had held that position for about 4 months at the time of the hearing. Prior to his promotion to the manager's position, Eckerty had occupied the position of assistant manager. Previously, he had been the head front desk clerk at Respondent's facility. 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David A. Furbush has been employed by Respondent since March 29, 1979. He has worked both as a front desk clerk and as a relief night auditor. Leonard Goldman maintains his principal office and his residence in Phoenix, Arizona. He owns a 50-percent in- terest in Respondent's business along with his partner, Joseph Brannon. In addition, Goldman has financial in- terests and investments in five other hotel businesses in various locations. Barbara Harmon worked for Respondent from May 1, 1977, until January 28, 1979. She was reemployed by Re- spondent on May 27, 1979, and she has worked continu- ously for Respondent as a night auditor since that time. Charlotte Keppen worked as a front desk clerk for Re- spondent. She was still employed in that position at the time of the hearing. Willie Nelson initially was employed as a night house- keeper for Respondent. She subsequently worked as a part-time front desk clerk at Respondent's facility. Her last paycheck from the Respondent was dated June 15, 1979. Russell D. Perry, Jr., has worked as a front desk clerk for Respondent since April 27, 1979. B. Credibility Resolutions There are substantial conflicts among the witnesses in relating their versions of the events in issue in this case. Specifically, the versions given by Furbush and Perry are in direct conflict with the versions given by Eckerty and Goldman. A decision must be made as to which one of the accounts is credible. Acceptance of the credited version necessarily means that the contradictory version must not be accepted. After observing the witnesses testify, and bearing in mind the criteria summarized by the Board in its Deci- sion in Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976), 1 have decided to credit the testimony of Furbush and Perry. There are minor variations between the testimony of Furbush and the testimony of Perry. For example, Perry testified that a conversation among Eckerty, Furbush, and Perry at Respondent's front desk took place on either June 16 or 19, 1979. Furbush, how- ever, testified that "it was approximately the latter part of June, approximately the 17th, 18th; in that general area." As indicated by Furbush's testimony, he did not give a definite date for that conversation, but instead qualified his answer as an approximation. Considering the time span of about 7 months between the occurrence of the conversation and the time that Furbush and Perry gave their testimony at the hearing, the minor variation in the dates given by those two witnesses would not be a sound basis for disbelieving their testimony. Instead, I have found that the conversation did occur during the period between June 16 and 19, 1979. The foregoing is just one example, but there are other minor variations between their two accounts, none of which renders their accounts unworthy of belief. Perry had the better recollection of a conversation which he said took place on June 30, 1979, among Eck- erty, Osborne, Furbush, and Perry. Furbush related a similar statement by Eckerty, but he was uncertain of the date. Furbush placed that conversation as occurring sometime between June 25 and July 15, 1979. Furbush was "not sure whether anyone else was present at that time." I have found Perry's account to be more detailed and reliable, and I will'base the findings of fact regarding that conversation upon his version. Furthermore, I have given consideration to the fact that Furbush and Perry had been good friends for ap- proximately 2 years prior to the time that Perry went to work for Respondent. They had also previously worked together for other employers. Furbush was the one who suggested that Perry apply for employment with Re- spondent. While I have weighed and considered the fore- going matters, I have concluded that they did not, joint- ly or severally, fabricate their versions of the events about which they testified. In addition, I have looked for guidance to the Board's Decision in Gold Standard Enterprises, Inc., et al. , 234 NLRB 618 (1978). In that case the Board held at 619: To the contrary, every reason exists for finding the testimony of these employees particularly credible since both were still in Respondent's employ at the time of the hearing and both testified in direct con- tradiction to certain statements of their present su- pervisors. The Board has long recognized that the testimony of a witness in such circumstances is apt to be particularly reliable, inasmuch as the witness is testifying adversely to his or her pecuniary inter- est, a risk not lightly undertaken. 5 s Georgia Rug Mill, 131 NLRB 1304, 1305 (1961); Gateway Transportation Co., Inc., 193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of Unarco Industries Inc., 197 NLRB 489, 491 (1972). With the foregoing guidance from the Board in mind, I also found credible the testimony given at the hearing by Harmon and Keppen, who, like Furbush and Perry, were still employed by Respondent at the time that they testified in this proceeding. Although Nelson was not currently on Respondent's payroll at the time of the hearing, I found credible her testimony regarding her earlier employment by Respond- ent and her testimony regarding her signing of a union authorization card. In addition to the credited testimony, the findings of fact to be made herein will also be based upon documen- tary evidence introduced at the hearing. C. The Unit The parties stipulated that the following persons were employed during the period from May 15, 1979, to June 15, 1979, by Respondent in the jobs and classifications designated after their names: David Furbush, front desk clerk; Barbara Harmon, night auditor; Charlotte Keppen, front desk clerk; Russell Perry, Jr., front desk clerk. In addition to the foregoing employees, Willie Nelson worked as a part-time front desk clerk from the early part of 1979 until June 1979. She performed the same duties during that time as did the other front desk clerks. Nelson previously had been employed as a night house- keeper from the early spring of 1976 until the early part of 1979. 346 RODEWAY INN OF LAS VEGAS During the time that she worked as a part-time front desk clerk, Nelson worked on the average of 3 to 4 days a week for Respondent. Her hours were from 5 p.m. until 9 p.m. She had specific days to report to work, but, toward the end of her employment, she was advised that business was slow. She was told sometimes on two even- ings a week that she was not needed. Her last paycheck was dated June 15, 1979. At that time Nelson was told that because of the gasoline shortage "they really didn't need me that much. And that was the understanding, that when the business picked up again they would call me." Nelson was uncertain of the last day on which she ac- tually worked for Respondent. When she was questioned at the hearing as to whether her last day was June 1, 1979, when she worked approximately 2 hours, she re- sponded: "Yes, that could be true. I have the check stub in my purse. It just says Ist to the 15th, or whatever, and the sum, so I couldn't tell you what day it was. It could very possibly-could have been." Nelson explained at the hearing that the employees had received two pay- checks each month on the 15th day of the month and on the last day of the month. At the time of the hearing, Nelson was still employed on a full-time basis for another employer. She had held that full-time job for 3-1/2 years, which includes the period of time when she had worked on a part-time basis for Respondent. For a couple of months after June 1979, she did not have any part-time work. However, since that time she has worked on a part-time job with another employer, as well as continuing her full-time employ- ment. D. The Union Authorization Cards Beginning in May 1979 the front desk clerks employed by Respondent began discussing among themselves the subject of union organization. Those discussions included Eckerty, who at that time was the head front desk clerk. As a result of the discussions among the employees, Fur- bush contacted the Union during the latter half of May 1979, and obtained authorization cards and six "promis- sory notes." Furbush explained, "Promissory notes were strictly that. They promised that if we did join the Union that we would pay the fees, the initiation fee, if any, and also the dues. Subsequently, Furbush received signed union authori- zation cards and "promissory notes" from Harmon, Keppen, Nelson, and Perry. Furbush submitted those documents and his own authorization card to the Union. He did not show those cards to anyone in management, nor did he inform anyone in management that the Union had been designated as the employees' collective-bargain- ing representative. Copies of the union authorization cards were intro- duced into evidence as General Counsel's Exhibits 2, 3, 4, 5, and 6. All of the cards contain the same printed wording which is: REPRESENTATION AUTHORIZATION INTERNATIONAL BROTHERHOOD OF TEAMSTERS. LOCAL UNION #995 Date---- I, the undersigned, employed by -----, Address ----- , do hereby designate the International Broth- erhood of Teamsters, Local Union #995 as my ex- clusive representative for the purpose of collective bargaining. This authorization shall also be for the purpose of collective bargaining, as provided in the Labor Relations Act of 1947. Print Name … -. - Phone No.---- Address City ----- Zip --- I work the following shift: ----- Job classification ----- Signature ---------- Furbush identified General Counsel's Exhibit 3 as being the union authorization card which he had signed on May 26, 1979. He said that he read and understood the wording on the card before he signed it. Perry identified General Counsel's Exhibit 4 as the au- thorization card which he had signed. He received that card from Furbush, who gave it to Perry at the front desk of Respondent's facility. Perry said that he read and understood the wording on the card before he signed it. Perry testified: Q. With reference to Exhibit 4 which is a repre- sentation authorization you signed on or about May 26, 1979, what did you understand with reference to that document? A. I understood it to be an authorization that I was to turn in personally or indirectly to the Team- sters Clerical Union 995 to allow them to represent me for collective bargaining with my employer. Q. And is that the fullness of your understanding? A. I also understood that should they bargain for me collectively, I should-with the signing of the promissory note that I received with it-I would be liable for their dues and initiation and would become a full member of the Union. Perry's card is dated "May 26" without any year being shown. However, Perry said that the year in which he signed General Counsel's Exhibit 4 was 1979. Keppen identified General Counsel's Exhibit 2 by stat- ing, "It's the card that I signed-filled out and signed to have the Union represent us . . . in bargaining." The date on her union authorization card is "5/31." Howev- er, Keppen said that she signed the card on that date in the year 1979. Furbush was the one who gave the union card to Keppen. He did so on Respondent's premises about 2 or 3 weeks prior to the time that Keppen signed her card. Furbush told her at that time: "He just said that they would bargain for us and it's no obligation. He said it was no obligation. We were under no obligation, that I could change my mind if I wanted." Prior to the time that he gave the union card to her, Furbush "had brought it up before, saying, you know, the Union 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should get in here and we'd get more money and more benefits." After Furbush had given the card to Keppen, he asked her a couple of times if she had signed the card. On May 31, 1979, Keppen voted in favor of the Union. Nelson identified General Counsel's Exhibit 5 as the union authorization card which she had previously signed. Furbush gave the card to her about a week prior to the time that she signed it. The space beside the word "Date" on that document was left blank. However, Nelson said that she signed the card "approximately the first week in June." She recalled that she signed the union card behind the front desk at Respondent's facility, and that she handed the card to Furbush at that time. She was still an employee of Respondent when this oc- curred. Nelson was told that if a majority of the employ- ees signed cards "then it would do the permanent em- ployees a lot more good." She was also told that her card would be given to the proper person at the Union. Harmon identified General Counsel's Exhibit 6 as the union authorization card which she had signed on June 5, 1979. She had earlier received another union card from Furbush, but she forgot to bring that card to work. Therefore, Furbush gave her a second card, which Harmon signed at work in the presence of Furbush. Harmon said that she read and understood the wording on the document. She testified regarding that under- standing, "I understood it to be exactly-as far as bar- gaining-but I could change my mind if I wished and- but I didn't intend to have to join a union when I even signed it. I did it just to-so that the Union wouldn't know which way I was going." E. The Conversation Among Eckerty, Furbush, and Perry During the Period Between June 16 and 19, 1979 During the period between June 16 and 19, 1979, there was a conversation in the front desk area of Respond- ent's facility among Eckerty, Furbush, and Perry. At that time the work shifts were changing. Perry was going off duty, and Furbush was going on duty. Eckerty said that he had received a telephone call from Goldman. Eckerty told them that Goldman had promised them a 25-cent-an-hour increase, which would be reflected on their next paycheck. He told them that the raise was due to a prior request by them to Gold- man, but Goldman had been waiting for the right time to give them the raise. Furbush commented that "it was very convenient that we were getting the raise now that the Union was trying to organize. And I asked if that was the reason." Eckerty stated that Goldman was aware of the Union. Eckerty also told them that they were supposed to re- ceive an additional increase when the percentage of busi- ness for that year equaled the percentage for the previ- ous year. Eckerty further promised them that their workweek would not be shortened again from 5 days to 4 days. He also said that they would retain their full-time status of 8 hours a day. During that same conversation, Eckerty also told them that Goldman was "considering giving the employees a hospitalization plan." Perry recalled that both prior to that conversation and on that same day Eckerty and Jack Osborne, the former manager, had referred to a "family atmosphere" which existed among the employees and among the guests of Respondent's facility. Perry testified, "And that after unionization we would lose that family atmosphere. And that management at that time did not particularly care to lose that. And that should we defeat the Union things would get back to normal and we would have that at- mosphere once again." Furbush recalled that Eckerty said he had asked Gold- man if there would be any retaliation against the employ- ees for wanting to organize a union, and that Goldman had replied to him, "[o]nce the Union was defeated, ev- erything would go back to normal." Two other matters were brought out at the hearing which are related to the statements which Eckerty made during the conversation referred to above. One was a document which was introduced into evidence as Re- spondent's Exhibit 1. It is a letter dated May 5, 1979, from an insurance agent to Goldman. The letter was in response to earlier inquiries; which Goldman had made to two or three different insurance companies, regarding group medical insurance coverage for employees of Re- spondent. The letter stated: In keeping with our previous conversations of late last month, please find attached my proposal for group medical coverage for your Nevada Rodeway Inn. After you have had an opportunity to review this program and have any questions, I'd be happy to clarify them. I realize you're working with a partner on this property so it may take you a longer timeframe to reach a decision. That is acceptable providing medi- cal rates do not increase. Please [sic] understand our quota would have to be adjusted should these rates be increased. Another matter brought out at the hearing concerning the statements made by Eckerty involved the problem in May 1979 regarding the availability of gasoline in the Las Vegas area. As a result of the gasoline situation, Re- spondent's business was reduced and, in turn, the work- ing days of several employees had been reduced at that time from 5 days a week to 4 days a week. Business began increasing in June 1979 and continued to do so that summer. F. The Conversation Between Goldman and Furbush Around June 20, 21, or 22, 1979 Around June 20, 21, or 22, 1979, there was a telephone conversation between Goldman and Furbush. Furbush was working at the front desk of Respondent's facility at the time. He answered the telephone and inquired if Goldman wanted to speak with Jack Osborne, who then was the manager of the facility. Goldman replied that he did not want to speak to Osborne, but that he wanted to speak to Furbush. Goldman asked Furbush if he was happy at the Rodeway Inn. Furbush answered that he was. Goldman then asked why Furbush had contacted 348 RODEWAY INN OF LAS VEGAS the Union. Furbush answered that he was aware that the Union was trying to organize and that Furbush was con- sidering it. Goldman further inquired as to what right Furbush had to incite the other employees or to try to do so. Furbush responded that he was not trying to incite anyone. Furbush continued in his testimony: And he then asked if I'd had any discussions, or if I'd been discussing the Union with other employ- ees, and I stated that we discussed many things around the office, and anything that pertained to business was a relevant topic of conversation, and that this was one such topic. At that point he stated that he was aware the Union was trying to come in, and he wanted to know if I'd made a decision. He did not specifically state what he meant by that, but he-but I replied to him that I had not made a-made a decision, that I was still considering it. And at that point he stated that I was aware that there was a nice friendly atmosphere at the Rodeway, and if the Union came through that that would all change. And he then stated that-or he asked me if I thought it was fair that I had gone to the Union after having worked at the Rodeway for only ap- proximately two months. And I told him I didn't see it as being fair or unfair. And then I continued to relate evidence-or specific things relevant to my own case that I considered to be unfair to me. And specifically that I had worked overtime in the past and had not been paid for it at all, or in some cases, had worked overtime and been paid regular wages. And he at that point stated that if the Union was to come in that they could not do anything more for us than we were already getting because the unit was so small. And he went on to explain that when the Rodeway first opened that he and his wife had run the operation, and that if the Union came in he would have to find a way to get rid of me, and that if-that since Don Perry, another desk clerk had started working there after I had, that they would have to lay him off in order to get rid of me. And that his wife and he would come and run the oper- ation again. And after that he just stated that he hoped we could work together and defeat the thing. And that was the end of the conversation. G. The Conversation Among Eckerty, Osborne, Furbush, and Perry on June 30, 1979 The front desk employees had been receiving commis- sions on their sales to guests of tickets to shows and to various package tours. Originally, each employee re- ceived commissions on the tickets which that employee sold. However, in May 1979 the employees mutually agreed to divide up the commissions among all of the employees. On June 30, 1979, there was a conversation in the area between Respondent's front desk and the manager's office among Eckerty, Osborne, Furbush, and Perry. Perry testified, "Mr. Eckerty stated that should the Union come in we would lose those commissions. We would lose the opportunity to receive those commissions, and that it was entirely Mr. Goldman's prerogative whether or not we had those commissions." With regard to having the union represent them Perry recalled, "Mr. Osborne had stated that he didn't-he said-well, as near a quote as I can come up with was that he didn't want to tell us how to vote, but were he voting, he would vote against it, and that he could live with or without it, but he would rather live without it. H. Conclusions In considering the credited evidence and in determin- ing whether Respondent has engaged in any unfair labor practices within the meaning of Section 8(a)(1) of the Act, it is helpful to study the opinion of the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The Court held at 617: Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the em- ployees to associate freely, as those rights are em- bodied in §7 and protected by §8(a)(1) and the pro- viso to §8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the neces- sary tendency of the former, because of that rela- tionship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. The Court further held at 618: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not con- tain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the predic- tion must be carefully phrased on the basis of objec- tive fact to convey an employer's belief as to de- monstrably probable consequences beyond his con- trol or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, fn. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to eco- nomic necessities and known only to him, the state- ment is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In considering the 8(a)(l) allegations made in the Gen- eral Counsel's complaint, it is also helpful to recall that "[N]o proof of coercive intent or effect is necessary under Section 8(a)(1) of the Act, the test being "whether the employer engaged in conduct which, it may reason- ably be said, tends to interfere with the free exercise of employee rights under the Act" Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (7th Cir. 1959). In Penasquitos Village, Inc., et al. v. N.L.R.B., 565 F.2d 1074, 1080 (9th Cir. 1977), the court held that "the test is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employ- ees in the exercise of their protected rights." The Board has held that a "friendly" interrogation of an employee about his union views violated Section 8(a)(l) of the Act. In Quemetco, Inc., a subsidiary of RSR Corporation, 223 NLRB 470 (1976), the Board held: A more serious error lies in the premise that a "friendly" interrogation does not interfere with an employee's Section 7 rights. An employee is entitled to keep from his employer his views concerning unions, so that the employee may exercise a full and free choice on the point, uninfluenced by the em- ployer's knowledge or suspicion about those views and the possible reaction toward the employee that his views may stimulate in the employer. That the interrogation may be suave, courteous, and low- keyed instead of boisterous, rude, and profane does not alter the case. It is the effort to ascertain the in- dividual employee's sympathies by the employer, who wields economic power over that individual, which necessarily interferes with or inhibits the ex- pression by the individual of the free choice guaran- teed him by the Act. With the foregoing court and Board precedents in mind, I conclude that Eckerty's promises and threat in his conversation with Furbush and Perry during the period between June 16 and 19, 1979, violated Section 8(a)(1) of the Act. Without repeating here the findings of fact set forth in section E herein, it will be recalled that Eckerty's statements occurred soon after the Union had filed a representation petition on June 15, 1979, seeking an election among Respondent's employees. I note that the employees had earlier requested a 25- cent-an-hour increase in pay, but that Eckerty had said Goldman had been waiting for the "right time." I note also that Re- spondent had made earlier inquiries regarding medical in- surance coverage for its employees, but that Eckerty uti- lized that occasion to announce to Furbush and Perry that Respondent was considering a hospitalization plan. There is significance in Eckerty's reply to Furbush when Furbush asked if the union activity was the reason for the promises which were being made. Eckerty re- sponded that Goldman was aware of the Union. A rea- sonable inference to draw from such a response is that Eckerty was replying in the affirmative to Furbush's question. The context in which Eckerty made the promises and the threat and the timing of those statements are matters which cannot be ignored. I conclude that that Eckerty promised the employees: (1) an immediate 25-cent-an- hour wage increase; (2) an additional increase in pay in the future; (3) no reduction in their working hours or workweek; and (4) consideration hospitalization plan for employees. I further conclude that those promises were made to induce the employees to cease or abandon their union activities. The threat made by Eckerty in that conversation per- tained to the loss of the "family atmosphere" then in ex- istence at Respondent's facility if the employees selected the Union, and the return of normal conditions when the Union was defeated. As set forth in the findings of fact in section G herein, I conclude that Eckerty also made a threat on June 30, 1979, to Furbush and Perry that the employees would lose their commissions on the sales of tickets to shows and tours if the employees selected the Union as their collective-bargaining representative. Although the em- ployees had previously agreed to a change in the method of distributing the commissions, Eckerty's threat was that they would lose those commissions if they selected the Union. I am not unmindful that paragraph 10(b) of the General Counsel's complaint attributes that threat to Os- borne rather than Eckerty. However, it became clear at the hearing that it was Eckerty, instead of Osborne, who was alleged by Perry to have made the threat. Osborne was present during that conversation, but the threat was attributed by Perry to Eckerty. I conclude that the matter was "fully litigated" at the hearing when consid- ering the testimony given by Eckerty, Furbush, and Perry. After considering all of the foregoing, I conclude that Eckerty's promises and threats described above constitut- ed violations of Section 8(a)(1) of the Act. With regard to the telephone conversation between Goldman and Furbush on June 20, 21, or 22, 1979, as de- scribed in section F herein, I conclude that Goldman: (1) interrogated Furbush regarding his union feelings and ac- tivities, and (2) threatened him that both Furbush and Perry would be discharged if the employees selected the Union as their collective-bargaining representative. I conclude that the foregoing also is violative of Section 8(a)(l) of the Act. I turn now to the issues raised by paragraph 14 of the General Counsel's complaint, wherein the General Coun- sel seeks the entry of a bargaining order as a remedy for Respondent's unfair labor practices. Once again, I look to the Supreme Court's holding in N.L.R.B. v. Gissel Packing Co., Inc.. supra, which I conclude is applicable to the facts in this case. The Court held at 614-615: The only effect of our holding here is to approve the Board's use of the bargaining order in less ex- traordinary cases marked by less pervasive practices which nonetheless still have the tendency to under- mine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating as- certainable employee free choice becomes as impor- 350 RODEWAY INN OF LAS VEGAS tant a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of the past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employ- ee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. The unit description to which the parties stipulated in Case 31-RC-4530 included night auditors and front desk clerks employed by Respondent at its 3786 Las Vegas Boulevard South, Las Vegas, Nevada, location and ex- cluded all other employees, professional employees, su- pervisors and guards as defined in the Act. As set forth in the stipulation in section C herein, I conclude that Furbush, Harmon, Keppen and Perry were included in the appropriate unit at the times material herein. In addition, I conclude that Nelson, as a part-time front desk clerk, was also part of the unit at the times material herein. Nelson's status as a regular part-time employee would not warrant her exclusion from the bargaining unit, nor would the fact that she also held a full-time job with an- other employer warrant her exclusion. I conclude that Respondent did not discharge her in June 1979, but in- stead laid her off from work due to a decline in business which was attributable to the gasoline shortage. It is sig- nificant that she was also told that when business in- creased Respondent would call her again. Thus, I con- clude that, at least in June 1979 when she was laid off from work, Nelson enjoyed a reasonable expectancy of being recalled. Although her last paycheck from Respondent was dated June 15, 1979, her actual last day of work was not established with certainty. I note her hesitancy in the tes- timony quoted in section C herein to pin that date down to June 1, 1979. Nevertheless, even assuming, arguendo that her last working day was June 1, 1979, she would have been a temporarily laid off employee with a reason- able expectancy of recall at that time. Significantly, Nelson signed her union authorization card behind the front desk at Respondent's facility "ap- proximately the first week in June." She testified that she was still working for Respondent when she signed her union card. Accordingly, I conclude that her card should be counted in determining the Union's majority status because she was still an employee when she signed her card. Since there were only five employees in the unit, the Union achieved majority status when three out of those five employees had signed union cards. Because Furbush and Perry signed their cards on May 26, 1979, and Keppen signed her card on May 31, 1979, the Union ac- tually had a majority on May 31, 1979. Thus, for that reason, neither the card signed by Nelson approximately the first week in June 1979, nor the card signed by Harmon on June 5, 1979, would be necessary to establish the Union's majority status. Looking again to the Supreme Court's decision in Gissel, supra, I conclude that all five cards are valid des- ignations of the Union as the collective-bargaining repre- sentative. At 606-608, the Court held: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above his signature. There is nothing incon- sistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast major- ity of cases; the union will still have to have the sig- natures of 30% of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that employees as a rule are too un- sophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previous- ly threatened reprisals for union activity in violation of §8(a)(1). We therefore reject any rule that re- quires a probe of an employee's subjective motiva- tions as involving an endless and unreliable inquiry. The fact that the union authorization cards were not revealed to Respondent until the time of the hearing would not preclude the issuance of a bargaining order as a remedy for Respondent's unfair labor practices under the Gissel decision. This case is unlike a situation such as was present in Fred Snow, Harold Snow and Tom Snow d/ b/a Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962). A demand for recognition and a re- fusal to bargain have been found not to be required in these circumstances. See Apple Tree Chevrolet, Inc., 237 NLRB 867 (1978); Production Plating Company, 233 NLRB 116 (1977). The small size of the five-person bargaining unit, and the fact that the interrogation, promises, and threats were directed at two out of those five employees, means that 40 percent of the unit employees were involved in the Respondent's unfair labor practice conduct. Thus, the nature and the extent of the unfair labor practices in this case warrant the imposition of a bargaining order as a remedy for those unfair labor practices. See Bighorn Bev- erage, 236 NLRB 736 (1978), enfd. as modified 614 F.2d 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1238 (9th Cir. 1980). See also Rapid Manufacturing Com- pany, 239 NLRB 465 (1978). Note the Board's observa- tion in Jamaica Towing, Inc., 247 NLRB No. 42 (1980) "Experience has shown that an employer's unlawful con- duct is magnified when directed at a small number of employees, such as here." (There were eight employees in the unit in that case.) Finally, I turn to the issues raised by Case 31-RC- 4530. I conclude that the violations of Section 8(a)(1) de- scribed above occurred during the critical period prior to the representation election held on July 24, 1979, and that such unfair labor practices interfered with the em- ployees' free choice in that election. Accordingly, I hereby recommend to the Board: (1) that the Union's objections, as corrected, be sustained; (2) that the representation election held on July 24, 1979, be set aside; and (3) that the petition be dismissed in view of the issuance of a remedial bargaining order in the same unit which is involved in the representation proceeding. 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. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Night auditors and front desk clerks employed by Respondent at its 3786 Las Vegas Boulevard South, Las Vegas, Nevada, location; excluding all other employees, professional employees, supervisors and guards as defined in the Act. 4. Commencing on or about May 31, 1979, and con- tinuing thereafter, the Union was designated by a major- ity of Respondent's employees in the bargaining unit de- scribed above as their exclusive collective-bargaining representative. 5. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by the following conduct: (a) Promising its employees an immediate 25 cent-an- hour wage increase; an additional increase in pay in the future; no reduction in their working hours or work- week, and consideration of a hospitalization plan for em- ployees, where such promises were made to induce its employees to cease or abandon their union activities. (b) threatening its employees with the loss of the "family atmosphere" at Respondent's facility if the em- ployees selected the Union as their collective-bargaining representative, and warning employees that normal con- ditions would not return until the Union was defeated. (c) threatening its employees with the loss of commis- sions from their sales of tickets to shows and tours if the employees selected the Union as their collective-bargain- ing representative. (d) threatening its employees with discharge if the em- ployees selected the Union as their collective-bargaining representative. (e) interrogating its employees regarding their union feelings and activities. 6. The unfair labor practices engaged in by Respond- ent are so serious and substantial in their character and effect as to warrant the imposition of an order requiring Respondent to recognize and bargain collectively with the Union as the majority representative of Respondent's employees in the unit described above as one of the rem- edies for therefor. 7. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act, I shall recommend to the Board that Respondent be ordered to cease and desist from engag- ing in those unfair labor practices. In accordance with the Board's Decision in Hickmott Foods, Inc., 242 NLRB 1357 (1979), I shall recommend to the Board a narrow cease-and-desist order. For the reasons previously set forth herein, I will also recommend to the Board the imposition of a bargaining order under the principles of the Supreme Court's deci- sion in Gissel Packing Co., Inc., supra. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER l The Respondent, Rodeway Inn of Las Vegas, Las Vegas, Nevada, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Promising its employees an immediate 25 cent-an- hour wage increase; an additional increase in pay in the future; no reduction in their working hours or work- week, and consideration of a hospitalization plan for em- ployees, where such promises are made to induce its em- ployees to cease or abandon their union activities. (b) Threatening its employees with the loss of the "family atmosphere" at Respondent's facility if the em- ployees selected the Union as their collective-bargaining representative, and warning employees that normal con- ditions would not return until the Union was defeated. (c) Threatening its employees with the loss of commis- sions from their sales of tickets to shows and tours if the employees selected the Union as their collective-bargain- ing representative. (d) Threatening its employees with discharge if the employees selected the Union as their collective-bargain- ing representative. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 352 RODEWAY INN OF LAS VEGAS (e) Interrogating its employees regarding their union feelings and activities. (f) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with Professional, Clerical and Miscellaneous Employees Local No. 995, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of the employees of Respondent in the appropriate bargaining unit described below: Night auditors and front desk clerks employed by Respondent at its 3786 Las Vegas Boulevard South, Las Vegas, Nevada location; excluding all other employees, professional employees, supervisors and guards as defined in the Act. (b)Post at its Las Vegas, Nevada, facility copies of the attached notice marked "Appendix."2 Copies of said 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c)Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 353