Caesar's Tahoe

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 742 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desert Palace, Inc. d/b/a Caesar's Tahoe and Inter-
national Alliance of Theatrical, Stage Employ-
ees and Moving Picture Operators, Local 363,
AFL-CIO. Case 32-CA-4929
31 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 October 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at South Lake Tahoe, Califor-
nia, on June 14 and 15, 1983, pursuant to a complaint
issued by the Regional Director for the National Labor
Relations Board for Region 32. The complaint was filed
on January 27, 1983 and is based on a charge filed by
International Alliance of Theatrical, Stage Employees
and Moving Picture Operators of the United States and
Canada, Local Union 363, AFL-CIO (the Union) on Oc-
tober 13, 1982.1 The complaint alleges that Desert
Palace, Inc., d/b/a Caesar's Tahoe (Respondent) has en-
gaged in certain violations of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act.
Issues
The complaint alleges three types of violations of the
Act. It asserts that Respondent violated Section 8(a)(1)
and (5) of the Act on July 28 or 29 by "disparaging and
discrediting" the Union and that it repeated its conduct
by a letter distributed on September 27.2 Both of these
I Unless otherwise indicated all references to dates are 1981.
2 While "disparging and discrediting" a union might well violate Sec.
8(a)(l) it is doubtful that it would violate Sec. 8(aXS) unless coupled with
conduct actually undermining a union's representative status, i.e, direct
dealing or similar conduct. The case on which the General Counsel
relies, Columbia Building Materials, 239 NLRB 1342 (1979), appears to
stand for the pleaded proposition, but the cases cited therein, at 1346, do
not. In view of my decision here, it is unnecessary to decide the question.
271 NLRB No. 119
incidents, according to the complaint, "impliedly encour-
aged employees" to decertify and undermine the Union
as the collective-bargaining representative of the affected
employees. Second, the complaint alleges that on Sep-
tember 6 Respondent transferred stagehand Robert Van
Heusen from its showroom to its lounge because he had
engaged in protected activity, in particular, the filing of
grievance. Finally, the complaint alleges that Respondent
violated Section 8(a)(1) by its treatment of employee
Shane Williams on September 30 by allegedly directing
him to cease discussing union matters of soliciting union
membership during working hours and that such a direc-
tive was a disparate application of a no-solicitation rule.
In dealing with each of these incidents, the relative
credibility of witnesses is determinative.
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits, and I find, that it is a Nevada cor-
poration operating the Caesar's Tahoe Hotel and Casino
in Stateline, Nevada; that during the past 12 months its
gross revenues exceeded $500,000 and during the same
period it purchased and received goods valued in excess
of $5,000 which originated outside Nevada. Accordingly,
it admits, and I find it to be an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
1. LABOR ORGANIZATION INVOLVED
Respondent admits that at all material times the Union
has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
In conjunction with the operation of its hotel and
casino Respondent offers evening entertainment through
two stage facilities. They are operated by its entertain-
ment department. The larger of the two, known as the
Cascade Showroom, generally features name acts. The
smaller, Club Lookout, is a lounge. The entertainers ap-
pearing in the lounge usually are less well known. Ad-
mission to the showroom is by paid ticket; admission to
the lounge is free. Responsibility for the entertainment
department lies with one of Respondent's vice presidents,
Richard D. Williams. He also has collective-bargaining
responsibilities. During the time period involving these
transactions, some of the managerial jobs were being
changed. On August 6, Richard Langelius became direc-
tor of entertainment and technical services. Sometime in
April Respondent's stage manager had left. Between that
time and August 6 Paul Hutchinson performed the stage
manager's duties. On August 6 he was promoted to stage
manager. He has been described during the interim
period as a "superlead" person. His payroll designation
was "supervisory technician." In effect he was the acting
stage manager.
742
CAESAR'S TAHOE
On July 20, 1981, following an election, the Board cer-
tified the Union as the exclusive collective-bargaining
representative of a stagehand unit. 3
The union official responsible for negotiating a con-
tract with Respondent was Business Representative
Johnny South. Assisting him was Las Vegas attorney,
Dennis Sabbath, as well as two or three bargaining unit
members. Among the employees who participated in the
negotiations were alleged discriminatee Robert Van
Heusen and Randy Redinger, who later became the shop
steward.
South testified that prior to July 1982 the parties con-
ducted some six negotiation sessions and that in July four
more were held, resulting in an agreement on July 15.
He further testified that at the request of Respondent's
negotiators the Union agreed that the contract could be
signed on August 1. South testified that the reasons
which Respondent's negotiators gave him for the delay
was to avoid double payment of insurance premiums (or
the negotiated cash equivalent) during July as the exist-
ing health plan could readily be terminated at the end of
that month. Furthermore, he said, Respondent's negotia-
tors told him it would give Hutchinson time to familiar-
ize himself with the agreement so that the transition
would be smooth. South admits he did not make any
effort to demand that the contract be signed on July 15
providing for commencement on August 1. Instead, he
accepted Respondent's representations that the contract
would be signed on that date. Indeed, Vice President
Williams signed it on August 1 as promised.
The contract was almost immediately thereafter rati-
fied. According to technician Robert Van Heusen, 12
employees attended the ratification meeting which was
conducted on Respondent's premises. He says that the
contract was "unanimously" ratified, but then stated that
the vote was eight to none in favor. Apparently four in-
dividuals did not vote. There are approximately 18 em-
ployees in the bargaining unit.
B. Disparaging and Discrediting the Union
I. The July 29 meeting
While there is some dispute over how it came to be
called, Vice President Williams and Director of Human
Resources Dennis Shipley conducted a meeting among
unit employees in the early hours of July 29. The two
management officials contend that they were invited to
the meeting by Acting Stage Manager Hutchinson who,
in their view, was still an employee. The General Coun-
sel asserts that Hutchinson had already become a statuto-
ry supervisor and that the meeting was management gen-
erated. I do not deem it necessary to resolve the dis-
pute.4
3 The unit found appropriate was: All full-time stage and/or entertain-
ment department personnel, including sound personnel, light personnel,
spotlight operators, stage carpenters, stage electricians, scenic artists, rig-
gers, property personnel, wardrobe personnel, set personnel, and projec-
tionist employed by the employer at its Stateline, Nevada facility; exclud-
ing all other employees, professional employees, guards, and supervisors
as defined in the Act.
4 Shipley testified that Hutchinson had reported that four employees
claimed to have had a misunderstanding of the newly negotiated con-
tract. Shipley suggested that Hutchinson refer each of them to him. All
Most of the bargaining unit appear to have attended
the meeting. While there is some dispute with respect to
the manner and attitude presented by Williams and Ship-
ley, there is agreement with respect to the overall pres-
entation. After waiting a few minutes, Williams stood up
and thanked the group for inviting Shipley and himself.
He introduced Shipley who, although he had participat-
ed in the bargaining process, was a relatively new face at
the hotel. Shipley then explained his role as director of
human resources. He told the group that he wore two
hats, one of which was to engage in collective bargain-
ing and the other was to administer the contract and to
make certain employees were treated fairly. He told the
employees that the purpose of his presentation was to ex-
plain the new contract and its implications to employees
who would be affected. He said in his role as a negotia-
tor the company had taken a "tough line" but that the
contract which had resulted was "a good one" and Re-
spondent intended to honor it.
At this point the testimony begins to diverge. Accord-
ing to employee Van Heusen, Vice President Williams
then "cut in" saying, "I'd like to say that this is a very
easy agreement for us to live with. We can sign this to-
morrow, have no problem with it, and it represents a 30
percent savings to our operating procedure." Van
Heusen recalls Williams referred to the relatively strong
bargaining position of the Hotel as opposed to the weak
position of the Union. Stage technician Erick Sorenson
testified that when Shipley had been introduced he ad-
vised that he and Williams were there to answer ques-
tions regarding the contract and to explain it. He remem-
bers Shipley saying that "a hard line" had been taken by
the Hotel and "it was a good contract for the employer
and against the employees." Stage technician Redinger
testified Williams told the meeting he "thought that the
contract was very good to the Hotel, that it meant a 30
percent savings that they could see right off the top."
Both Williams and Shipley specifically deny those ver-
sions. They each testified they said nothing regarding
any savings to the company nor did either of them assert
that the contract was "for the employer and against the
employees."
Shipley says after he explained his job, he went
through a list of contract items explaining how the con-
tract had changed existing practices. He says the topics
he touched on were the same ones which had been
raised by the three employees with whom he had had
conferences. He remembers talking at some length about
overtime, vacation, and seniority. He says he then asked
for questions.
Employee Ledesma asked about the unit's work juris-
diction. Although the General Counsel's witnesses are
not consistent with respect to who said what in that par-
four made separate appointments; three were kept. Later, according to
Shipley, Hutchinson reported that misunderstandings were continuing.
Shipley expressed puzzlement to Hutchinson regarding the Union's per-
ceived failure to communicate with its membership. Hutchinson there-
upon suggested that perhaps a meeting with employees would be a good
idea. Shipley told him he could set up a meeting if he wished. Hutchin-
son did so. The meeting which was not mandatory was announced via a
posting. Individuals who were not scheduled to work that evening were
called by Hutchinson's secretary.
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular conversation, I infer that employees were operat-
ing under the belief that their work jurisdiction involved
anything dealing with performance platforms having
sound and light features governed by cues. At least one
management official, apparently Williams, is quoted by
Van Heusen as saying that such a view was incorrect,
that the stagehands' jurisdiction only covered events to
which tickets were sold through the box office. Clearly
Van Heusen's version is incorrect as the stagehands
always worked in the lounge which was not covered by
the box office. A question was asked with respect to
whether the stagehands would continue to be involved in
building boxing rings or to decorate for conventions and
private or semi-private meetings such as horse shows or
festivals. The answers are not clear, but the employees
became dismayed and angry. Whatever the discussion
was and whatever the jurisdiction may actually be,5 Re-
dinger became annoyed with the flow of the discussion
and walked out of the meeting. He viewed the meeting
to be an insult to his and the Union's integrity as negotia-
tors.
The concern raised by the jurisdiction issue prompted
someone to loudly assert: "Well, we'll get more money
won't we?" At that point Shipley reentered the conver-
sation and said, "Not necessarily." He then went to a flip
chart located in the room.6 On the chart Shipley drew
two colums. On one side he listed the contract terms and
on the other side he listed the terms which were then
governing the stage employees.7 Among the things Ship-
ley noted was the fact that the contract did not provide
for certain benefits which they had previously enjoyed
such as sick leave, holiday pay, and a free meal. The
wage scale and the overtime formula had also been
modified. He also observed that instead of a health insur-
ance plan, the contract called for an 85-cent-per-hour ad-
dition for those employees who had worked for 2000
hours, money which was to provide for the employees'
purchase of their own health insurance.
This news did not sit well with many of the employees
and, already disturbed over the work jurisdiction issue,
they began a hot discussion back and forth. Van Heusen
remembers an employee asking if 'the contract" can be
"decertified" during its term. He recalls Shipley answer-
ing "No, you cannot decertify a contract in the term-if
it is in existence. You have to wait until it's-to expire or
before." Van Heusen said an employee then asked,
s The contract is not in evidence.
6 The room in which the meeting was held was known as the "Band
Room" where bands often rehearsed. It was also used as a training and
meeting room. The flip chart was a standard piece of furniture.
7 Work in the stage department often involved the utilization of part-
time and temporary employees. After the Union was certified, the Union
and management, according to Shipley, had reached an interim accom-
modation with respect to the treatment of the part-timers as well as with
respect to several other employment related matters. As a result of this
accommodation, the part-time employees had been granted health insur-
ance benefits to the same extent as if they had been full-time employees.
When the contract was actually reached, the contract terms were to be
applied. This resulted in changing many of the benefits reached during
the earlier accommodation. Thus, the material which Shipley placed on
the flip chart representing "current practices" was for the most part a
reference to the accommodation which Respondent and the Union had
earlier reached. It did not necessarily reflect company policy with re-
spect to employees generally.
"How can we get back to what we have?" At that point,
according to Van Heusen, Shipley explained the decerti-
fication process, advising that the employees had to have
"30 percent or one-third of the bargaining unit, 33-per-
cent or one-third of the bargaining unit to write down-
to sign a petition to decertify the contract or the union
and have it brought down to the NLRB . . . before the
contract goes into effect." He also concedes either Ship-
ley or Williams said management could not be involved
in the decertification procedure, that such an effort was
the employees' own business.
Stage Technician Sorenson testified that at one point
during the meeting Williams had said he hoped the stage-
hands would have decertified or voted the Union out
long before they had gone to negotiations. Sorenson also
said Williams told them, "The only way to get rid of the
contract now [is] not to ratify it." He agrees Shipley was
asked how the employees could get out of the contract
and Shipley responded by explaining the decertification
procedure. Sorenson was also led to say at one point
Williams referred to a desire to have a "union free envi-
ronment."
Both Shipley and Williams deny ever using the phrase
"union free environment." Moreover they both denied
either of them said anything to the effect that they hoped
that the employees would have decertified the Union by
now. Furthermore, they testified that they were well
aware that the contract had previously been ratified.
All witnesses agree that shortly thereafter Shipley and
Williams left the meeting. The employees remained and
discussed the situation among themselves. At that point
employee Jesse Tango, who had left the meeting, re-
turned. Earlier he had said that he knew all about the de-
certification procedure as he had looked into it. Indeed,
some days before he had discussed the topic with Ship-
ley.8 According to Shipley he had simply referred
Tango to the NLRB's Oakland office. Tango himself was
never called as a witness. Upon his return to the meet-
ing, Tango produced a decertification showing of inter-
est sheet which already had at least one signature on it,
that of employee Earl Sullins. The sheet was circulated
among the group and later that day was submitted to the
Board's Oakland office together with a decertification
petition.
On August 1, as promised, Williams signed the collec-
tive-bargaining agreement. On August 31 a hearing was
conducted on Tango's decertification petition. Although
the decision is not in this record, the Regional Director
apparently found merit to the petition and ordered an
election, later scheduled for October 22. Approximately
a week before the election, the Union filed the instant
charge and it was indefinitely postponed. Later, on Feb-
ruary 24, 1983, well after the issuance of the instant com-
plaint, the Regional Director conditionally dismissed
Tango's petition.
To the extent that there is a credibility dispute be-
tween the employees and the two management officials
who attended the July 29 meeting, I tend to credit the
8 Tango was not one of the four who had been referred to Shipley by
Hutchinson.
744
CAESAR'S TAHOE
management officials. A number of the quotations attrib-
uted to them by the employees simply do not ring true.
First, at the time the meeting was conducted, both Ship-
ley and Williams were well aware that the contract had
been ratified. They had told the Union that they intend-
ed to sign the contract on August 1 and later did so. It
seems unlikely in that circumstance, that the employee
representatives would risk antagonizing the bargaining
unit by telling them that the contract was a good one for
the employer and "against" the employees.
On July 29, even if Shipley had a hint that a decertifi-
cation petition was being considered, there is no proof
that he actually knew one would be filed. The mere fact
that Tango had told Shipley he intended to do so would
hot have been sufficient for Williams to assume that it
would occur. That being the case, it seems unlikely that
Williams would risk antagonizing the entire crew by tell-
ing it that the contract was "against" the employees.
Such a statement would have had the necessary result of
totally demoralizing the crew and would have risked
poor productivity for the term of the agreement. Unless
Williams actually knew that Tango had succeeded in ob-
taining enough signatures and could get to Oakland from
Stateline in time to beat the contract-bar rule, it seems
quite improbable that such a statement would be made.
The statement would be credible if Williams could be
shown to have known that the decertification petition
would successfully be filed. However, the General Coun-
sel's proof on the point is simply nonexistent. All he has
shown is that Tango approached Shipley regarding a de-
certification, that Shipley referred him to the NLRB
office, that Tango solicited employees in a timely way,
albeit at a meeting which was called at company prem-
ises and that Tango (who already had one signature) suc-
ceeded in obtaining the requisite number. He has not
shown that Shipley deliberately encouraged Tango to
initiate those procedures. While one might suspect that
Respondent's officials fostered Tango's interest here, sus-
picion is not proof. Neither party called Tango and I am
without the benefit of his testimony on the point."
In addition to the improbability of the foregoing state-
ment, I note that the testimony of Van Heusen and Sor-
enson is to some extent inconsistent. Moreover, although
Sorenson on direct seemed to have good recall, he con-
ceded that the recall was the result of having recently
reviewed some notes. On matters outside the notes his
memory was quite poor. With respect to his recalling the
"union free environment" remark, the General Counsel
led him. Strangely, he was not corroborated in this
regard. That phrase is a well-publicized and well-known
code in vogue these days. If it had been used it seems
9 I find instructive the Board's decision in Montgomery Ward, 187
NLRB 956, 960 (1971), with respect to the quantum of proof required in
proving sponsorship of a decertification petition. In that case the General
Counsel, despite proving that the decertification petitioner had engaged
in some suspicious contact with management was found to have failed to
have proven improper assistance, even though the decertification peti-
tioner had probably obtained an employee list from the personnel depart-
ment. Although one might have concluded that giving such a list to the
petitioner constituted illegal sponsorship, the Board adopted the trial ex-
aminer's refusal to do so. The trial examiner would rely on circumstantial
evidence; both he and the Board required direct evidence. Similarly, see
American Express Reservations, 209 NLRB 1105, 1120 (1974).
likely that more than one employee would have remem-
bered it and that the one employee who did claim to re-
member it would not have needed a leading question to
recall it.
Finally, there is the salient fact that Respondent, on
August I as promised, signed the collective-bargaining
agreement. Had it been involved in manipulating em-
ployees into seeking decertification, it seems likely that it
would have found some excuse to delay the signing. In-
stead, it kept the promise it made to the Union. While it
is possible that Respondent knew or could have known
that the petition had actually been filed in Oakland, for a
telephone call on either July 29 or 30 might have re-
vealed that fact, there is no actual proof that it did
know. If it had known of the filing, what is it most likely
to have done? It seems to me that the higher probability
is that Respondent would not have signed the agreement.
It would take a very sophisticated and knowledgeable
labor-relations person to know that signing the contract
in that circumstance would be an effective way of cover-
ing otherwise illegal activity. There is simply no proof
that Respondent was that sophisticated or that Machia-
vellian.
Furthermore, Sorenson's testimony that Williams told
the employees that the "only way to get rid of the con-
tract now was not to ratify it" is improbable in the cir-
cumstances. Both Williams and Shipley well knew that
the contract had already been ratified. They would have
known that urging nonratification would be an ineffec-
tive act. Thus, it is unlikely that management would
have made such a statement. Indeed, assuming that the
contract was favorable to Respondent, as it appears that
it was, why would Respondent's representatives urge
that it be avoided? Doing so would have risked causing a
labor dispute where there had been none before. At the
very least it would have resulted in both the Company
and the Union swimming in unknown waters. Such a
labor dispute might even have resulted in a contract that
was not as favorable. Risking such uncertainty does not
seem likely.
Accordingly, I conclude that the General Counsel has
not shown by a preponderance of credible evidence that
the July 29 meeting, as conducted by Shipley and Wil-
liams, was designed to disparage and discredit the Union.
More likely the purpose of the meeting was, as asserted
by Shipley and Williams, to try to settle questions re-
garding the changes in pay rates and personnel practices
which the contract would cause. Indeed, the General
Counsel does not contend that anything Williams and
Shipley said was inaccurate.t ° Thus, the General Coun-
sel concedes that Shipley and Williams were accurately
describing the contents of the contract and accurately
describing the effects the change would have on the em-
ployees' wages, hours, and terms and conditions of em-
ployment. In that circumstance, I am unable to see how
such conduct could have "impliedly encouraged employ-
"o Although the contract did not include certain benefits which the
employees had previously enjoyed, it is not clear whether Sec. 8(d)
would require them to be maintained despite their absence. It may be that
Shipley's analysis was not correct. However, that question is not before
me and I need not decide it
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees to engage in a drive to decertify and to undermine
the union .... "as asserted in paragraph 14 of the com-
plaint.
2. The September 27 letter
A nearly identical incident, also alleged to have violat-
ed Section 8(a)(5) of the Act, occurred on September 27
when Respondent issued a letter to its employees which,
like the comparison drawn on the flip chart on July 29,
compared the contract with the conditions in effect prior
to the contract. This letter was distributed to the em-
ployees after the Regional Director had issued his deci-
sion and direction of election. Again, the General Coun-
sel makes no contention that it is in any way inaccurate.
Indeed the testimony is that the comparison was nearly
identical to that which Shipley had earlier written on the
flip chart.
The letter, signed by Shipley, is on its face typical
preelection propaganda. It contains no threats or prom-
ises and cannot be seen as coercive in any way. Indeed,
no witness testified that any of Respondent's officials
ever promised that the Company would return to the
precontract practices if they chose to decertify the
Union. One might assume it, but given the fact that such
practices were the result of negotiations between the
Union and management in the first place, one might also
assume that Respondent might return to the practices in
effect before the Union ever came on the scene, what-
ever they may have been. Truthful comparisons unac-
companied by any threats or promises of benefits are
protected by the free speech provision of Section 8(c).
See for example Thrift Drug Co., 217 NLRB 1094 (1975)
(Member Jenkins dissenting), and Snap-Out Binding &
Folding, 166 NLRB 316, 328 (1967).
C. Van Heusen's Transfer to the Lounge
Robert Van Heusen had been hired by Respondent in
1980 and had earlier worked in the entertainment depart-
ment. He later worked for a time in the electronics de-
partment but returned to entertainment in June 1982. In
July 1981 he had served as the Union's observer during
the NLRB election. He also attended two negotiation
sessions including one in July 1982. He attended the July
29 meeting previously discussed and says he corrected
Shipley who had told the employees that the new con-
tract did not provide for health insurance or vacation.
He spoke up in disagreement pointing out that the con-
tract did provide for an 85-cent hourly addition and for
vacation.
Van Heusen testified that he took 2 days of his vaca-
tion during the third week of August, a long weekend.
When he returned, he learned that he had been sched-
uled to work only 29 hours for the next week. He had
previously averaged 40 hours and could not understand
why he was not also scheduled for 40 hours on this par-
ticular week. In late August, described as about a week
before the Linda Rondstadt Show, which began on
August 6, he, together with Shop Steward Redinger,
spoke to Stage Manager Paul Hutchinson about the re-
duced hours. He told Hutchinson that he was normally
scheduled for 40 hours, but had only received 29 and
could not understand why persons with less seniority
than he were scheduled for the full 40 hours. He says he
told Hutchinson that he believed it was a violation of se-
niority clause of the contract and he asked Hutchinson
"to get back to me about it."
Redinger, however, does not fully confirm Van
Heusen. Reddiriger says Van Heusen told Hutchinson he
was "curious" why his hours had been reduced as other
members on the crew were "still picking up their 40
hours and maybe an hour or two overtime." He says
Van Heusen's main gripe was that he was more senior
than they and he thus knew the theater better than
anyone else. He denies that Van Heusen or he claimed
any contractual right. He does report Hutchinson told
Van Heusen that he would schedule the hours as he saw
fit.
According to Van Heusen, on September 6 Hutchin-
son called him to his office. Also present in the office
was Richard Langelius. Langelius was Respondent's di-
rector of entertainment and technical services. He report-
ed to Vice President Williams and was Hutchinson's im-
mediate superior.
Van Heusen testified that during the meeting Hutchin-
son told him he had reviewed Van Heusen's "question of
the other day" and disagreed with Van Heusen's belief
that he should have been scheduled for 40 hours. At that
point Van Heusen asserted that by being scheduled for
less than 40 hours he had actually been "laid off." He
says Langelius cut in saying, "You are laid off, and only
on layoff, when we tell you you are laid off." Van
Heusen replied, "to me 29 hours is a layoff"' and told
Langelius that he would grieve It. Langelius replied,
"That is your right." The meeting then ended.
Shortly thereafter, with Redinger's assistance, Van
Heusen drafted General Counsel's Exhibit 3, a grievance
form. About 6 p.m. he handed it to Hutchinson who
simply said, "Oh," and walked away. Copies were also
provided to the Union. The grievance asserts that three
paragraphs of section 9 of the contract had been violat-
ed. These are the only sections of the contract dealing
with seniority, but apparently do not create any clearcut
scheduling rights. The form itself alleges: "Supervisor
not honoring seniority clause of contract. I have plus
2000 hours within department and have least hours
scheduled within in my department every other week."
On September 4 Hutchinson had posted a work sched-
ule for the week of September 6, the week of the Linda
Ronstadt Show. It provided that Van Heusen would be
the sound lead for the Ronstadt Show as well as bringing
the show in on Monday and taking the show out on Sat-
urday, September 11. Also on September 4, Bruce Me-
lendez, the technician who normally worked in the
lounge, resigned leaving a vacancy which needed to be
filled.
Langelius testified that on September 5 he had a meet-
ing with Ronstadt's technical staff to determine the stag-
ing needs of that performer. He testified that as a result
of the meeting and also aware of the vacancy in the
lounge, he and Hutchinson decided to revise the entire
schedule for the week of September 6. Accordingly, a
new schedule (R. Exh. 4) was drawn and posted the
746
CAESAR'S TAHOE
evening of September 6. The revised schedule contained
a large number of changes. The only changes with
which the General Counsel is concerned are those in-
volving Van Heusen. In the original schedule he had
been assigned as sound lead in the showroom during the
entire run of the Ronstadt show, including "load-in" on
September 6 and "load-out" on September 11. As the
new schedule did not go into effect until September 7, he
actually did participate in the work required for setting
up the show as well as performing as the lead sound
technician during opening night. However, under the re-
vised schedule he was moved to the lounge as the tech-
nician responsible for both light and sound.
On September 7, to explain these changes, Hutchinson
and Langelius conducted a staff meeting. Van Heusen
was present and signed an attendance sheet but, due to
some work requirements, was unable to stay very long.
There is also undenied testimony that Director of Human
Resources Shipley telephoned Union Business Represent-
ative Johnny South that afternoon to invite him to the
meeting. South did not attend, but the record is not clear
whether South had sufficient opportunity either to adjust
his schedule or to travel to Stateline from his office in
Reno.
In any event Langelius and Hutchinson, who only a
month before had taken on their new duties, advised the
staff that there would be some policy changes with re-
spect to how assignments were made. In the past, ac-
cording to Langelius, the lounge technicians had pretty
much been limited to lounge work and showroom tech-
nicians generally assigned to the showroom. With the de-
parture of Melendez, as well as with their own percep-
tion of the showroom's needs, assignments were to be
handled somewhat differently. According to Langelius,
the lounge technician job was to be rotated among those
individuals who had both sound and light expertise. Fur-
thermore, rather than rotating the showroom leads as
had been the practice before, the leads were to be made
permanent. A lead technician, under the collective-bar-
gaining contract, receives a premium over his basic pay
rate. Van Heusen does not appear to have been present
during this explanation, but there can be no doubt that it
was made.
Van Heusen, on learning he had been reassigned from
the Ronstadt Show to the lounge, was insulted. He
viewed the lounge job as a "training ground." In actual-
ity there is some doubt whether that is so. He was also
miffed because he was unable to work the Ronstadt
Show and believed he was being denied an opportunity
to claim the Ronstadt Show as part of his overall work
experience. It is clear, however, that the skills required
of the sound and light technicians are essentially the
same in both the lounge and the showroom. The techni-
cian's pay rates are identical. Indeed, in some respects
working in the lounge may be deemed more preferable
to working the showroom, as there is approximately one
15-minute break period per hour between 45-minute per-
formance sets. That break might, on occasion, involve
repair or maintenance work. When a technician works in
the showroom, however, he gets a 15-minute coffeebreak
only after 4 hours; he also gets a half-hour mealbreak
after 6 hours.
According to Langelius, Van Heusen's revised sched-
ule for the week of September 6 gave him more guaran-
teed hours than Van Heusen had had when he was as-
signed to the showroom for that week. Langelius' obser-
vation, while accurate, does not clearly describe the situ-
ation. September 6 on the original schedule had some
open hours to allow for the completion of the "load-in"
for the Ronstadt Show. Similarly, the schedule for Satur-
day, September 11, contained open hours for the "load-
out." Of the 4 remaining days, 2 provided for 7-1/2
hours' work and 2 provided for 4-1/2 hours' work, a
total of 24 guaranteed hours. However, Van Heusen was
clearly scheduled to work on load-in and load-out for
some period of time. Under the revised scheduled it ap-
pears the "guaranteed hours" included the work he had
already performed on Monday. The remaining number of
hours that week involved 3 days' work in the lounge, a
total of 20 hours. In a sense, Langelius was comparing
apples and oranges, for when he included Monday work
actually performed on the revised schedule as part of the
hours guaranteed Van Heusen, those hours had already
been worked. Nonetheless, there are only 4 hours differ-
ence for the work scheduled between Tuesday and
Friday. It is true that the revised schedule did not pro-
vide for load-out work. However, the record does not
show how many hours, if any, his replacement, David
Lines, worked that Friday. Indeed Lines and technician
Gilhooley split the sound lead job between them Tues-
day through Friday. Lines was scheduled for only 15
hours and Gilhooley for 12. As noted earlier, there is no
record evidence regarding how many hours Lines actual-
ly worked on Saturday as sound lead, although he was
scheduled to begin at 8 p.m. and undoubtedly covered
the last show.
The payroll records show that in the week following
the Ronstadt Show, Van Heusen returned to duties in
the showroom working 39 hours there; in the second
week he worked 34 hours there. He agrees that other
senior employees, like himself, were later required to
work the lounge. For the week in question, September 6,
he actually worked a total of 39-1/2 hours, virtually a
full schedule. He received I day's pay as lead, apparently
for Septmeber 6 when he actually was the lead (a payroll
error allocating that time to another day does affect that
observation).
It is fair to assume that Van Heusen, as a result of the
schedule change, lost some showroom hours at lead pay.
The question which is presented, however, is whether or
not that loss was the result of discrimination against him
by Respondent for his having filed the grievance. Frank-
ly, I am unimpressed with the General Counsel's proof
here. Put quite simply all he has shown is that Van
Heusen, shortly after his vacation, complained that he
had not been scheduled for a full 40-hour week on one
occasion. He confronted his immediate supervisor, who
appears to have been somewhat surprised at the com-
plaint, but who readily scheduled him for full-time work.
Initially, therefore, Hutchinson cannot be seen to have
had any negative reaction to Van Heusen's complaint.
A few days later, having satisfied himself that his ac-
tions were defensible under the Company's practice,
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hutchinson told Van Heusen that he did not believe Van
Heusen's complaint had merit. Van Heusen then argued
with him, claiming that a denial of hours was the same as
a layoff and should be so considered. He says Langelius
disagreed, but told him he had the right to file a griev-
ance if he wished. " Later that day the grievance was
filed. Hutchinson's immediate reaction to the filing was
simply to accept the grievance; as described by Van
Heusen it almost appears as if Hutchinson expected it
and was not even surprised.
It is true that Hutchinson, who no longer works for
Respondent, was not called by Respondent to testify
with regard to why he revised the schedule, though Lan-
gelius was. However, despite the General Counsel's
urging, I cannot conclude that an adverse inference
should be drawn from that failure. Both Langelius and
Hutchinson were involved in the decision. In that cir-
cumstance the Board has held that an adverse inference
need not be drawn. O'Dovero Construction, 264 NLRB
751 (1981) (Member Jenkins dissenting). In any event,
Langelius' explanation is both credible and comports
with objective facts. Obviously Respondent needed to
cover the lounge in order to replace the technician who
had resigned. Certainly an employee who had both
sound and light skills, such as Van Heusen, would be
selected.Others might have been selected as well. But
Van Heusen's transfer was not permanent; he was simply
the first individual to be placed on the lounge rotation.
Others who had the same skills were later placed on that
rotation. Moreover, while the explanation is not as clear
as it might be, Langelius' meeting with the Ronstadt pro-
duction personnel and determining that the needs were
different than had been originally scheduled certainly
seems credible. Finally, I do not see that Van Heusen's
loss of the Ronstadt Show has anything to do with his
hire or tenure. His subsequent inability to claim experi-
ence working the Ronstadt Show does not seem to me to
be cognizable as something which Section 8(a)(3) can
remedy.
Thus, although one might have the suspicion that
Hutchinson revised the schedule to demonstrate to Van
Heusen that grieving could have an adverse impact on
his employment, there is no real reason to think that it
was Hutchinson's actual purpose. Certainly Hutchinson
made no such admission and his responses to Van Heu-
sen's complaint were perfectly calm and rational. More-
over, two things occurred simultaneously which appear
to have justified the scheduled revision, the resignation
in the lounge and the Ronstadt personnel modification.
Indeed, the latter resulted in a great deal of rescheduling;
the changes to Van Heusen's schedule were simply part
of a greater reshuffling. In that circumstance, I find that
the General Counsel has failed to prove by a preponder-
ance of evidence that Van Heusen was transferred from
the showroom to the lounge for discriminatory rea-
sons. 1 2
I" Langelius' response to one question can be interpreted as a denial
that he was present during that conversation. If so, it was Hutchinson
who told Van Heusen he had the right to file a grievance.
12 Shortly after the hearing began, counsel for the General Counsel
moved to amend the 8(a)3) portion of the complaint dealing with Van
Heusen to allege that he had also been discriminatorily denied the "lead
D. The Shane Williams Incident
The complaint alleges that on September 30 Hutchin-
son ordered Williams not to discuss union matters nor
solicit union membership during working hours, except
during lunch and break periods. It further alleges that
the order Hutchinson gave amounted to selective and
disparate enforcement of a no-solicitation rule covering
nonunion related matters.
The incident actually occurred on October 5 about 2-
1/2 weeks before the scheduled election. Furthermore,
the General Counsel has failed to prove the existence of
any rule whatsoever with respect to on-the-job solicita-
tion. The only evidence adduced with respect to such
conduct was that some employees occasionally bought
and sold sporting goods, Girl Scout cookies, automo-
biles, etc., to other employees. The evidence is scant that
such activity occurred while employees were acutally
performing job duties. Furthermore, to the extent that
there is evidence that job duties were being performed
and perhaps interrupted by such activity, there is no evi-
dence whatsoever that management was aware of it. It is
fair to presume, however, that management had a
common sense rule requiring employees not to interrupt
or disrupt the work of either themselves or others in
order to engage in nonjob-related matters.
Williams testified that on October 5 he and two other
stagehands, Derick McClure and Earl Sullins were
working overtime. Williams testified that Sullins won-
dered aloud how the overtime pay would be calculated.
Williams says he told Sullins that overtime began after
10 hours' work in a day. Sullins then left work and tele-
phoned Human Resources Director Shipley to verify
what Williams had said. According to Williams, Sullins
returned saying that Shipley had confirmed Williams' un-
derstanding. He was angry because he wanted overtime
after 8 hours.
A short time later, about 5 p.m., Williams says he was
called to the office shared by Stage Manager Hutchinson
and Director of Entertainment and Technical Services
Langelius. Both Hutchinson and Langelius were present.
sound" job in the showroom after filing his grievance. At the hearing I
asked the General Counsel's representative if he had given Respondent's
counsel any notice of the proposed amendment. He conceded he had not,
but asked for a continuance if I deemed it prejudicial. Clearly a continu-
ance would have been appropriate due to the extensive investigation the
amendment would have required. As the hearing occurred in a city re-
quiring distant travel for both Respondent's counsel (who is officed in
Massachusetts) and for the Government personnel, I denied the motion,
principally on grounds of practicality. In his brief the General Counsel
has renewed his motion.
There is reason, however, to think that there is no charge pending on
the issue. First, the original charge contained language broad enough to
have covered the conduct now sought to be included, but the Regional
Director did not include it in his complaint. Second, the Regional Direc.
tor, on February 7, 1983, approved the Union's withdrawal of the
"8(aX3) portion" of the charge. (Respondent's motion to receive the ap-
proval letter, attached to its brief, is granted.) The General Counsel con-
tends that the letter mistakenly overstates the extent of the withdrawal;
indeed, Van Heusen's lounge transfer has not been challenged on "no
charge" grounds. Even so, as the director did not proceed on the "lead
sound" claim, it is likely that the Union was asked to withdraw that por-
tion of its charge and did so. As it has never been reinstated no charge
dealing with the "lead sound" issue is pending before the Board as re-
quired by Sec. IO(b) of the Act. My denial of the motion to amend,
therefore, stands.
748
CAESAR'S TAHOE
Williams remembers Hutchinson saying something to the
effect that it had been brought to his attention that a
couple of stagehands had heard Williams talking about
the Union and the contract. Langelius then interjected,
telling him, "Shane, maybe you're not used to not talking
about the Union or the contract at other hotels, but you
don't do it here." Hutchinson then finished saying, "We
don't want to hear any more complaints or talk of you
talking about the Union from any of our stage employees
on our crew." Williams then said, "Okay" and walked
out of the office. Williams denies that either of them as-
serted that he had interrupted the work of himself or
others. He conceded that Langelius did tell him he was
free to discuss the Union on his breaktime or his lunch-
time. He insisted, however, that they did not say any-
thing about disrupting work.
Langelius' version is quite different. He testified that
there had been two ealier complaints about Williams
which Hutchinson had brought to his attention, both
dealing with the solicitation of union membership. He
had earlier told Hutchinson to ignore them. A third com-
plaint had come to Hutchinson from Earl Sullins to the
effect that Williams was disrupting Sullins' work by
trying to solicit union membership. Accordingly, they
called Williams to the office and Hutchinson told Wil-
liams about the complaints. Langelius told Williams to
stop disrupting the work of others by trying to solicit
union membership but that he could do it on breaks,
lunch or before or after work. Langelius also testified
that he later confirmed Sullins' complaint by speaking to
Sullins separately. He reports Sullins as claiming Wil-
liams had been "badgering" him.
Langelius testified that during the meeting Williams
agreed he had solicited membership saying that it was
common when he had worked at the MGM Grand in
Reno and he was unaware that he had caused any prob-
lems or had disrupted anyone's work. Langelius says he
told Williams he was not working at the MGM and that
at Caesar's Tahoe work hours were for work. Langelius
denies that he ever told Williams, "We don't talk about
the Union here."
Langelius says no record was kept of the incident and,
from Respondent's standpoint, no discipline has been
levied against Williams.
For his part, Williams denies ever soliciting member-
ship at all. He says the only discussion he remembers is
the one described above relating to the overtime ques-
tion. Furthermore, he says he did not have in his posses-
sion any union membership cards or any other union
cards. Union Business Representative Johnny South testi-
fied the only person who had papers of any type was
shop steward Randy Redinger, who solicited dues-check-
off authorization forms. South says the only person who
possessed union-membership authorization cards was
himself.
With respect to the relative credibility of Williams and
Langelius, I am not inclined to disbelieve either one of
them. The difficulty with the two versions is one of per-
spective, not one of probity. My view is that something
got lost in the transmission of Sullins' complaint. Quite
clearly Williams believed that the discussion of union
matters on the job was permitted. Indeed, Langelius in
his testimony, does not contend otherwise. However,
Langelius and Hutchinson, operating on second-hand in-
formation, determined that Williams probably was dis-
rupting the work of Sullins by soliciting cards even
though Williams was not doing so. Thus the credible evi-
dence is that Williams did not disrupt Sullins' work, but
Sullins thought he was. Acting on that misinformation,
Hutchinson and Langelius told him to stop it. Because
Williams had not been doing so, he did not understand
the trust of their admonition. He understood them to be
denying him the right to even talk about the Union while
working. He was, however, in error. However, Williams'
concession that they told him he was free to engage in
union conduct on breaks and free time tends to give cre-
dence to Langelius' version, for it partially corroborates
him.
Thus, I conclude that they all erred in determining
what was actually happening. Hutchinson and Langelius
erred in concluding that Williams was soliciting cards.
Yet, Langelius did apply a proper admonition to Wil-
liams. He told Williams that he could not disrupt the
work of others while soliciting membership. The difficul-
ty with that was that it was not an appropriate admoni-
tion for the conduct since Williams was not soliciting
any sort of union cards.
In any event, it is clear that Respondent does not have
any rule with respect to "no union-talk" and that Lange-
lius was not attempting to impose such a rule on Wil-
liams. I conclude, therefore, that the General Counsel
has failed to prove this allegation.
On the foregoing findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Desert Palace, Inc., d/b/a Caesar's
Tahoe, Stateline, Nevada is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Alliance of Theatrical, Stage Employ-
ees and Moving Picture Operators, Local 363, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The General Counsel has failed to prove by a pre-
ponderance of credible evidence that Respondent violat-
ed Section 8(a)(l), (3), or (5) of the National Labor Rela-
tions Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 3
ORDER
The complaint is dismissed in its entirety. 14
L3 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
14 Any outstanding motions inconsistent with this decision are denied
749