Cardivan Co.

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 563 (N.L.R.B. 1984)

CARDIVAN CO.
Cardivan Company and Professional, Clerical and
Miscellaneous Employees Local 995 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
31-CA-11619-1, 31-CA-11619-2, 31-CA-
11734, and 31-RC-5220
31 July 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 June 1983 Administrative Law Judge
James S. Jenson issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed a response to the General Counsel's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, l and
conclusions 2 and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(l) of the Act by interrogating employ-
ees, 3 threatening them with loss of benefits, prom-
ising to reimburse their union initiation fees if the
Union lost the election, and creating an impression
that an employee's union activity was under sur-
veillance. 4 We agree. However, we do not agree
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a In the absence of exceptions we adopt pro forma the judge's conclu-
sion that the Respondent engaged in objectionable conduct and violated
Sec. 8(aXI) of the Act by making certain "zero bargaining" statements
prior to the election.
3 In affirming the judge's finding that the Respondent unlawfully inter-
rogated employees Ernandes and Arrigo by asking about their feelings
toward the Union, Chairman Dotson relies on the fact that the interroga-
tions occurred within the context of a patently pervasive and systematic
pattern of 8(aXl) conduct which could reasonably have tended to color
the employees' perception of the character and reason for the inquiries.
NLRB v. Ajax Tool Works, 713 F.2d 1307 (7th Cir. 1983), and Peerless of
America v. NLRB., 484 F.2d 1108 (7th Cir. 1973).
4 Contrary to the judge and to his colleagues, Chairman Dotson finds
nothing coercive in Neil Rosenstein's remark to Marilyn Cody at the
close of the 18 November 1981 meeting. In that incident Cody, an active
union adherent, introduced herself to Rosenstein and he responded, "Yes,
I know. You're the Union organizer." In Chairman Dotson's view this
comment does not without more create an impression that the employee's
activities were under surveillance.
271 NLRB No. 90
with the judge's finding that the Respondent did
not violate the Act when Supervisor Gabe DiMar-
tino told change girl Emma Oliver that employee
Flo Dilger was removed from her store because of
her union activity. The record discloses that Oliver
and a bank runner named Bernie were engaged in a
conversation in which the latter expressed his view
that union representation would not benefit em-
ployees. Oliver challenged that employees needed
union representation to "keep things [from happen-
ing] like what just happened to Flo Dilger. A little
bit of protection." Referring to Dilger, DiMartino
interjected, "Well, she was shuffled out of her
store because of her union activity." Because the
record is devoid of evidence concerning what, if
anything, happened to Dilger, the judge declined
to find that the comment constituted a threat of re-
prisal against employees for engaging in union ac-
tivity. Under the circumstances we find the ab-
sence of such evidence to be inconsequential. Di-
Martino's statement is imbued with an unmistakable
message that employees' organizing activity could
lead to reprisals from the Respondent. Such a mes-
sage has a tendency to coerce employees especially
where, as here, employees were subjected to a re-
peated misconduct designed to interfere with their
exercise of rights guaranteed in Section 7 of the
Act. Accordingly, we reverse the judge's finding
and find that the remark violated Section 8(a)(1) of
the Act.
For the reasons set forth below, we also disagree
with the judge's finding that the Respondent violat-
ed Section 8(a)(1) by announcing 2 days before the
election that it was granting employees a Thanks-
giving bonus of $25, a stock option, assistance in
obtaining loans to exercise the option, and free
checking at a local bank. As to the first two items,
the record establishes that the Respondent's new
owner, Neil Rosenstein, traditionally gave a
Thanksgiving bonus or turkey to employees of
other companies he owned and that the stock
option was formulated and approved well before
the advent of union activity. Thus, the judge
found, and we agree, that the actual grant of these
benefits was lawful. Notwithstanding that, the
judge concluded that the Respondent timed the an-
nouncement of the bonus and option unlawfully to
influence the election and thereby violated Section
8(a)(1) of the Act. We reverse the judge's finding
that the announcement itself constitutes an unfair
labor practice. The Respondent here cannot be said
to have unlawfully informed its employees of bene-
fits which it could lawfully grant. This is particu-
larly true in the instant case in which Rosenstein
had only recently purchased the Respondent and as
its new owner sought to implement his longstand-
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing practice of giving employees a holiday bonus,
and in which, having simultaneously purchased a
similar but separate corporation, he was attempting
to align the companies' respective fringe benefit
packages. We also note that this was Rosenstein's
first meeting with his new employees. 5
Regarding the announcement of other benefits,
we also reverse the judge's finding that the Re-
spondent violated Section 8(a)(l) by informing em-
ployees that it would provide loan assistance and
would arrange for free checking for them. In its
exceptions to the judge's decision, the Respondent
asserts that it had no opportunity to litigate these
charges. We find merit in the Respondent's excep-
tion. The record reveals that the promise of these
benefits was not alleged in the complaint or at the
hearing to be an unfair labor practice, and that, al-
though two witnesses referred to them in their tes-
timony, neither the General Counsel nor the Re-
spondent examined witnesses about them or ad-
dressed these announcements in their posthearing
briefs. Accordingly, we find that the promises of
loan assistance and free checking were not litigated
as unfair labor practices and we find that there is
insufficient evidence on which to find such an-
nouncements unlawful. We similarly find that the
parties did not litigate whether a statement possibly
made by Rosenstein to employees on the direct
bank deposit of paychecks was unlawful. On this
basis we adopt the judge's finding that no violation
occurred in this regard.
The Objections
Petitioner filed objections to the conduct of the
election which in part correspond to the unfair
labor practices charges alleged in the complaint.
We affirm the judge's sustention of Objections 6, 7,
and 16 and we find it unnecessary to pass on Ob-
jections 15 and 17 regarding the preelection bene-
fits announcements which were also sustained by
the judge.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
I In finding the announcement of these benefits to be lawful, Chairman
Dotson agrees with the court of appeals' holding in Raley's Inc. v.
NLRB, 703 F.2d 410 (9th Cir. 1983), that the announcement of lawfully
granted benefits even if timed to influence the outcome of an election is
protected by Sec. 8(c) of the Act. For the reasons stated by the judge,
Member Zimmerman would find the announcement of these benefits to
be unlawful. In his view, it is clear that the timing of the announcement
was made to influence the employees' vote in the upcoming election and
was therefore unlawful. In this regard, Member Zimmerman notes that
the announcement was made in the context of other statements at the
meeting that have been found to constitute unfair labor practices and as
part of the Respondent's overall calculated and sweeping attempt to
coerce employees and abridge their exercise of free choice.
judge as modified below and orders that the Re-
spondent, Cardivan Company, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph l(a).
"(a) Interrogating employees about their union
activities, sympathies, and desires; threatening loss
of benefits if the Union is successful in organizing
the employees; threatening employees with repris-
als because they are engaged in union organizing;
promising to reimburse employees for the payment
of union initiation fees if the Union is rejected; cre-
ating the impression that employees' union activi-
ties were under surveillance; informing employees
that if they selected the Union it would take a year
and a half before anything was settled; and telling
employees if they selected the Union they would
lose their benefits and bargaining would commence
from scratch."
2. Substitute the attached notice for that of the
administrative law judge.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT interrogate our employees regard-
ing their union activities, sympathies, or desires.
WE WILL NOT threaten our employees with re-
prisals because they are engaged in union organiz-
ing.
WE WILL NOT threaten our employees with loss
of benefits if the Union is successful in organizing
them.
WE WILL NOT promise to reimburse our employ-
ees for the payment of initiation fees if they do not
564
CARDIVAN CO.
select Professional, Clerical and Miscellaneous Em-
ployees Local 995 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as their collective-bargaining
representative.
WE WILL NOT create the impression with our
employees that we are keeping their union activi-
ties under surveillance.
WE WILL NOT tell our employees that it would
be futile for them to select the Union as their col-
lective-bargaining representative.
WE WILL NOT tell our employees that if they
select the Union as their collective-bargaining rep-
resentative they will lose their benefits and bargain-
ing will commence from scratch.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
CARDIVAN COMPANY
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. These
matters were heard in Las Vegas, Nevada, on June 15,
16, 17, and 18, 1982, and February 24, 1983.1 The
charges in Cases 31-CA-11619-1 and 31-CA-11619-2
were filed on October 22, 1981, and a consolidated com-
plaint was issued on December 18, 1981.2 The charge in
Case 31-CA-11734 was filed on November 30, and was
consolidated with the two other unfair labor practice
cases on March 31, 1982. On the latter date, the Regional
Director also issued a "Report on Objections, Order
Consolidating Cases and Order Directing Hearing and
Notice of Hearing," wherein a hearing on objections in
Case 31-RC-5220 was consolidated for hearing with the
unfair labor practice cases. The objections to the election
allege conduct substantially similar to certain conduct al-
leged as unfair labor practices in the consolidated com-
plaint, which also alleges a discriminatory discharge. Re-
spondent denies it engaged in conduct alleged to be un-
lawful and objectionable.s
All parties were given full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs were
filed by Respondent and the General Counsel and have
been carefully considered.
I The hearing was initially closed on June 18, 1982. Due to the failure
of the reporter to transcribe significant portions of the testimony of sev-
eral witnesses, the hearing wu reopened and additional testimony was re-
ceived on February 24, 1983.
a All dates hereafter are in 1981 unless stated otherwise.
3 The consolidated complaint initially alleged an unlawful refusal to
bargain. On August 6, 1982, the Union made a request to withdraw the
8(aX5) portion of the charge in Case 31-CA-11734. On August 13, 1982,
the General Counsel recommended approval of the withdrawal request.
By Order dated August 26, 1982, 1 approved the withdrawal and dis-
missed the applicable 8(aXS) paragraphs of the consolidated complaint.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Cardivan Company, herein called Respondent, a
Nevada corporation, is engaged in the business of operat-
ing slot machine concessions in retail establishments. Its
annual gross revenues exceed S500,000 and it annually
purchases and receives goods or services valued in
excess of S5,000 directly from suppliers located outside
the State of Nevada. It is admitted and found that Re-
spondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that Professional, Clerical &
Miscellaneous Employees Local 995, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111, THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent is engaged in the operation of slot ma-
chines in space leased from supermarket and drug chain
stores in Las Vegas and the surrounding area, Reno and
Carson City, Nevada. The Las Vegas facility is the only
one involved in these proceedings. One change girl per
shift is employed at each of the stores to provide change
and other incidental services to customers who play the
slot machines. Respondent also employs in its Las Vegas
operation bank runners, coin wrappers, and slot machine
mechanics, who, together with the change girls, com-
prise an appropriate collective-bargaining unit. Prior to
June 30, Respondent was owned and operated by
Emmett Sullivan, its sole stockholder. Jackpot Enter-
prises, Inc., a wholly owned subsidiary of Bristol
Gaming Corporation, both Nevada corporations, was
formed by the latter company for the purpose of acquir-
ing two established "slot machine route businesses" oper-
ating primarily in the areas of Las Vegas and Reno,
namely the Respondent and Corral United, a partnership.
Option to purchase agreements which were to expire on
July 1, 1981, were entered into with Corral United on
May 23, 1980, and with Sullivan on October 30, 1980. In
order to raise funds for the purchase of the two compa-
nies, a public offering was made of Jackpot Enterprises
stock. The final prospectus dated June 23 filed with the
Securities and Exchange Commission and the Nevada
Gaming Control Board includes a "Non-Qualified Stock
Option" plan which, pursuant to the Tax Reform Act of
1981, was amended in October to meet the requirements
of a qualified stock option plan. The plan provided for
the granting of options to "key employees" of Jackpot
and its subsidiaries. The term "key employees" included
everyone employed. During negotiations leading up to
the acquisition of Corral and Respondent, it was noted
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a disparity of wages and benefits existed between
the two companies in that Corral change girls received a
higher rate of pay, but that Respondent's change girls re-
ceived better fringe benefits. According to Neil Rosen-
stein, the chief financial officer, chairman of the board of
directors, and president of Jackpot Enterprises, in July,
after the acquisition of Respondent had been completed,
he had discussions with Sullivan regarding company
policies and what should be done to bring wages and
benefits of the two newly acquired businesses into align-
ment. While each of the companies employed a book-
keeper, it was decided a controller should be hired. Ac-
cordingly, Pam Gioeli was hired as controller. Her first
job, which was completed the first week of September,
was to undertake a study of the disparity in wages and
benefits between the two companies. Prior to its acquisi-
tion by Jackpot, Respondent's policy had been to grant
wage increases after Federal licenses were paid at the
end of each June. On August 24, Sullivan distributed the
following letter over his signature:
To All Change Girls:
We are presently evaluating our wage/benefits pro-
gram. I expect it will be 30 to 60 days before a final
decision is made. I am sure wage increases will be
the result of this survey and we will make them
retro-active to September 1.
I hope this arrangement meets with your approval.
In the meantime keep up the good work and
PLEASE DO NOT BELIEVE ANY RUMORS
YOU HEAR UNLESS THEY ARE IN WRIT-
ING AND ORIGINATE FROM THIS
OFFICE-THEN THEY AREN'T RUMORS.
Thanks
Ann Hann, the alleged discriminatee, testified she first
became dissatisfied with employment conditions in June
and talked to another employee, Marylyn Cody, about
representation. Through Cody's husband, they were able
to contact a Teamsters representative. The two women
contacted the change girls at the various store locations
about a union meeting which was held on August 31.
The first union authorization cards were distributed and
signed at that meeting. Thereafter, various employees
passed out authorization cards among their fellow em-
ployees. On September 29, the petition in Case 31-RC-
5220 was filed by the Union. Pursuant to a Stipulation
for Certification Upon Consent Election, a secret-ballot
election was conducted on November 20, which the
Union lost by a vote of 67 to 35. On November 30, the
Union filed timely objections to conduct affecting the re-
sults of the election. On March 31, 1982, the Regional
Director issued his "Report on Objections, Order Con-
solidating Cases, Order Directing Hearing and Notice of
Hearing," wherein he recommended that Objections 3, 5,
8, 9, and 14 be overruled and that a hearing be held on
Objections 1, 2, 4, 6, 7, 10, 11, 12, 13, 15, 16, and 17. On
April 22, 1982, the Board adopted the Regional Direc-
tor's recommendations.
B. Alleged 8(a)(1) and (3) Conduct
Paragraph I 11 of the complaint alleges numerous un-
lawful acts attributable to Pat Thomas, an assistant super-
visor whom the Respondent admits was its agent and su-
pervisor. Subparagraph (a) alleges that, on several dates
in early October, Thomas interrogated employees about
their and other employees' union activities, etc. Subpara-
graph (e) alleges that, in October, Thomas, in a tele-
phone conversation, asked an employee to obtain a union
authorization card. Employee Floy Swartz testified that
in October she received a telephone call at home from
Thomas who "asked me if anyone from the union had
come to the store . . . and passed out any papers and I
told her yes .... She asked me if I knew who it was
and if it was anyone from our company and I said no
.... She said she had to cut the telephone conversation
short because she had about 15 other calls to make."
Helen Nicholson also received a telephone call from
Thomas the first or second week of October. She testi-
fied:
Well, Pat asked me did I have one of the cards?
And I said, "Not at this present time. I don't have
one on me."
She says, "Well, I thought maybe you did have
one." Because she would like to have one. And I
just told her I didn't have it. And she asked me was
I being harassed by the Union? I says, "No, I'm not
being harassed by the Union." And have I been ap-
proached by any of the girls? And I says, "No, I
have heard conversations and discussions, you
know, through the grapevine about, you know,
going to organizing the Union, but I haven't been
harassed on it." Or "No Union member haven't har-
assed me."
As Thomas did not testify regarding any alleged inter-
rogations or threats, the foregoing is not refuted. On the
basis of the testimony of Swartz and Nicholson, I find
that Thomas unlawfully interrogated them as alleged in
paragraph 11(a). While it is further clear from Nichol-
son's testimony that Thomas asked her if she had an au-
thorization card, which I deem an unlawful interrogation
falling within subparagraph (a) of the complaint, it does
not constitute a request that she obtain a card as alleged
in subparagraph (e). I therefore recommend dismissal of
paragraph 1 I(e) of the complaint.
Paragraphs 11(b)(l), (2), and (3) allege that about Oc-
tober 1, at Albertson's Market, Thomas unlawfully inter-
rogated an employee, threatened a loss of benefits if the
Union was successful, and promised increased benefits
and improved terms and conditions of employment by
soliciting employee complaints and grievances. Juanita
Roberts testified that Thomas approached her on the job
at Albertson's Market in early October and "asked me if
anyone had approached me about the Union . . . that
she would hate to see the Union get in because we
would lose a lot of our Company benefits .... I had
told her that I went to the Union meeting. And she
asked me what the main complaint of the girls seemed to
be." Her testimony is not refuted. The General Counsel
566
CARDIVAN CO.
has proven paragraphs 1l(bXl) and (2). I do not view
the request that Roberts inform Thomas of the "main
complaint of the girls" as a promise of increased benefits
and improved terms and conditions of employment as al-
leged in paragraph I I(b)(3), and therefore recommend its
dismissal.
Paragraphs I l(cXl) and (2) allege that about October
2 or 9, at Albertson's Market, Thomas (1) unlawfully in-
terrogated an employee and (2) threatened loss of bene-
fits if the Union was successful. Florence Belk, whose
testimony was not contradicted, testified that, in early
October, Thomas "asked me if I had been approached by
the Union"; that "she did ask me if I realized that I
would not get the benefits by joining the Union that I
was getting with Cardivan Company"; and that on an-
other occasion Thomas asked if she had paid her initi-
ation fee. On this evidence I find the General Counsel
has proven the allegations in paragraphs 1 l(c)(l) and (2)
of the complaint.
Paragraph 11(d) alleges that about October 14, at
Skaggs Drug Store, Thomas threatened that employees
would lose benefits if they selected the Union. Carolina
Bernier testified, without contradiction, that prior to the
election Thomas came to her jobsite and "she mentioned
that her husband was a retired Teamster and she didn't
care for the union and she said, 'Well, I don't know why
the girls want to lose all those benefits."' At the very
least, this statement is an implied threat of loss of benefits
and is unlawful. The General Counsel has proven para-
graph I (d).
Paragraphs 11(f)(1) and (2) allege that, about the end
of October, Thomas (I) unlawfully interrogated an em-
ployee and (2) promised benefits to an employee if em-
ployees rejected the Union. Brigitta S. Arrigo testified
that on a Thursday or Friday morning before the elec-
tion Thomas told her that "if I had joined the Union and
I paid the $25 and the Union does not get in, then the
Company, upon a receipt from the Union, will reimburse
$25." While this indeed constitutes a promise of benefit if
the Union is rejected, as alleged in paragraph 11(f)(2), it
does not amount to unlawful interrogation as alleged in
paragraph 11(f)(l). I recommend dismissal of paragraph
I l(f(1).
The General Counsel concedes in his posthearing brief
that no witness testified to incidents alleged in para-
graphs Il(g)(l) and (2). Accordingly, I recommend their
dismissal.
Rosalie Ernandes testified without contradiction that,
sometime in the beginning of November, Thomas came
to the Alpha Beta Store she was working in and "she
just asked me what was my feelings towards the Union?"
This was unlawful interrogation as alleged in paragraph
I I(h).
Paragraph I 1(i)(l) alleges that, about November 17,
Thomas created the impression of surveillance by telling
an employee that Respondent had learned that she sup-
ported the Union. Subparagraph (2) alleges unlawful in-
terrogation. Without contradiction, Helen Nicholson tes-
tified that a few days before the election Thomas came
to the store where she was working and stated, "I under-
stand that the union have you wrapped up," which Nich-
olson denied. While Thomas' words did not say that she'
or any other supervisor or agent actually engaged in
physical surveillance, they clearly suggest surveillance in
that they imply knowledge that the employee favors the
Union.4 Furthermore, the statement begs for a reply,
either that the employees admit the Union has her
"wrapped up" or that it does not. Uttering a statement
which demands a reply regarding an employee's union
sympathy constitutes an attempt to interrogate in viola-
tion of Section 8(aXl).5 Nicholson testified that Thomas
went on to state that she would like for Nicholson to
vote nonunion, and asked that she call Carol Dyke, an
admitted supervisor and agent, and let her know that
"I'm in her corner one hundred percent." Thomas'
words clearly requested that Nicholson disclose her sym-
pathy regarding the Union, either pro or con, by calling
Dyke to indicate that she was against the Union or by
not calling and thereby indicating her prounion sympa-
thy. Interrogation by implication is no less unlawful than
direct interrogation. Accordingly, I find the General
Counsel has proven paragraphs 11(i)(l) and (2) as al-
leged.
Paragraph lI1)(I) alleges unlawful interrogation and
subparagraph (2) alleges that an employee was promised
reimbursement of $25 paid toward the Union's initiation
fee if the Union was not voted in. lone Skelton testified
without contradiction that on a day prior to the election
Thomas approached her on the job and asked if she had
"joined the Union," to which Skelton replied affirmative-
ly. Thomas asked "why" and went on to explain what
Sullivan had done for the employees. She went on to
state that "if the Union does not get in, he [Sullivan] will
reimburse you the $25." The General Counsel has
proven paragraphs I l(j)(l) and (2) as alleged.
Paragraph 1 l(k)(l) alleges Thomas unlawfully interro-
gated an employee regarding the Union about November
3.6 Joan Shupe testified as follows regarding a conversa-
tion she had with Thomas on November 3 at the store
she was working in:
Well, she asked me if I had signed a card for the
union and I said, yes, I did. She asked me why and
I told her I was very unhappy because I hadn't
gotten my raise when I was promised, and I
thought that the union might bring our wages up,
and then we had a discussion about the union. She
asked me if they had promised me anything and I
said no, but I thought that each girl could decide
for herself what she wanted. I told her, "Pat, I am
very busy." I had lots of customers. I said, "I
cannot talk to you now about the union."
The General Counsel has proven paragraph 11(kXl) of
the complaint.
Paragraph 12 alleges that, on October 17, Gabe De-
Martino, an admitted supervisor and agent, impliedly
threatened an employee with reprisals if she engaged in
4 See, for example, Maxwell's Plum, 256 NLRB 211 at 216 (1981).
5 See, for example, Fruehauf Corp., 237 NLRB 399 (1978).
6 Par. Il(kX2) alleges Thomas promised to reimburse an employee for
initiation payments if the Union was not voted in. The General Counsel
concedes this allegation was not proven. I recommend its dismissal.
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity by telling her another employee had been
transferred and scheduled for fewer hours because of her
union activity. The basis for this allegation is a statement
made by DeMartino, who was present during a conver-
sation between employees Emma Oliver and Bernie (last
name unknown), a bank runner. Oliver testified:
Well, Bernie started it off by asking me what was
going on with the Union. And I think at that time, I
started telling him about whatever was coming up
or whatever had been done so far. And then he
started in talking about not having a-"a Union
wouldn't do you any good," or something like that.
And I said, "You've got to have a Union to repre-
sent you to keep things like what just happened to
Flo Dilger. A little bit of protection."
And Gabe said, "Well, she was shuffled out of
her store because of her Union activity." So I asked
Gabe, "Gabe," I said, "can you hire and fire?" And
he said, "Yes." And Bernie also asked me, he said
he'd like to see my ballot. He said I would vote
"no."
While the statement made by DeMartino may be evi-
dence available to establish a motive for what may have
happened to Flo Dilger, I do not view it as an implied
threat of reprisal against Oliver. It is not alleged, nor
was it established, that Dilger was subjected to any un-
lawful treatment, either with respect to tenure or any
term or condition of employment, nor was there evi-
dence, either direct or hearsay, that she was subjected to
being scheduled for fewer hours. In these circumstances,
the remark attributed to DeMartino is far too nebulous
upon which to base the alleged violation of the Act. I
recommend dismissal of paragraph 12.
Paragraph 13 alleges five unlawful acts on November
18 attributed to Rosenstein. Subparagraphs (a) and (b)
allege he created the impression that employees' union
activities were under surveillance by telling an employee
that he knew she and another employee were union or-
ganizers. Marylyn Cody testified that, following a meet-
ing of employees on November 18 at which Rosenstein
spoke, she went up to Rosenstein, introduced herself, and
the following conversation occurred:
So after the meeting, I went up and I said, "Mr.
Rosenstein, nobody know who 'Jackpot' was and
who you were and they couldn't find out any-
thing." And I said, "I found out through a friend to
the Gaming Commission what 'Jackpot' was." And
he says, "Yes, I know. You're an organizer for the
Union." He said, "But I don't care." And I said,
"And Ann?" And he said, "Yeah, and Ann." And I
talked-told him about the other girl that had
worked for nine years with the Company that had
been fired. And he says, "I don't know anything
about her." But I don't remember who the other
girl was. I can't recall her name. But she hadn't
been . . . an organizer.
Rosenstein did not deny Cody's testimony in this respect.
While Cody was not an entirely credible witness in other
respects, in the absence of Rosenstein's denial, and in
light of the fact Thomas admitted knowledge that Hann,
Cody, Oliver, and Merrill had been passing out authori-
zation cards, and in further light of Thomas' extensive
unlawful interrogations, I find that the General Counsel
has proven paragraphs 13(a) and (b).
Paragraph 13(c) alleges Rosenstein promised employ-
ees benefits, including a Thanksgiving bonus, a pay raise
in January and every 6 months thereafter, the opportuni-
ty to buy stock in the Company at a fixed price, and
other unspecified benefits. Paragraphs 18 and 20 allege
the granting of a wage increase retroactive to September
I and on January I and March 1, 1982, as unlawful.
Paragraph 21 alleges the granting of the stock option
plan as unlawful, and paragraph 22 alleges the granting
of the $25 Thanksgiving bonus as unlawful. Paragraphs
13(d) and (e) allege that Rosenstein informed employees
it would be futile for them to select the Union to repre-
sent them, and that if they did so they would lose all
their benefits and have to begin bargaining from scratch.
On November 18, 2 days prior to the Board-conducted
election, Respondent held two meetings with employees
which have been characterized as a Thanksgiving brunch
and party, one in the morning and the other in the
evening. Rosenstein addressed the assembled employees.
Cody's account of the morning meeting is:
Okay. We had the brunch. Mr. Rosenstein-Mr.
Sullivan got up and introduced Neil Rosenstein to
the girls. This was the first time that we had met
him. And Mr. Rosenstein told the girls, he said,
"I'm sup-because of the Union, I'm not supposed
to say anything. My lawyers advised me against it.
But I'm going to say what I want to anyway."
So he told the girls that they were going to get a
25-cent-an-hour raise in January and a 25-cent-an-
hour every six months, and there was more in the
hopper. He also told us that Valley Bank-he had
made arrangements with Valley Bank to give us
free checking and deposit of our paychecks-auto-
matic deposit of our paychecks, and if any of us
needed a loan, he'd help us with that.
And he also said that we were going to [be] able
to buy shares in the Company, and the number of
shares depending on the number of years that the
girls had been with the Company. And then the
girls started asking him about what happens if the
Union comes in? And they asked about the insur-
ance, and he said, "Well, you're not going to have
any insurance as good as the one you have now."
They said, "Well, is everything going to stay the
same?" He says, "No," he says, "If the Union
comes in, you'll have nothing and it will take a year
to a year and a half before you get to the bargain-
ing table."
And he said, "I will not have a Union and you'd
better vote 'No."'
He said, "I know that some of you girls have
paid $25 to the Union." He says, "I don't know
what it was for," but he said, "I'm going to give
you a $25 Thanksgiving Day bonus," and he says,
568
CARDIVAN CO.
"You can do what you want to with it." And we
received it a week later.
Ah-during the meeting, he said, "I don't know
why you girls are-got this Union going." He said,
"If there was something wrong, why didn't you
come to me and discuss it with me."
Floy Swartz, who also attended the evening meeting,
testified in pertinent part as follows:
Q. [By Mr. Selvo] What was said and by whom
to the employees?
A. Mr. Sullivan introduced Mr. Rosenstein as our
new owner of the company and Mr. Rosenstein did
most of the talking.
Q. What did Mr. Rosenstein say?
A. Well, he said quite a bit but I don't remember
everything. I do remember that he said that he was
talking about the union and he said that if the
union-he was a very stubborn man and if the
union came in that it would take at least a year, a
year and a half before anything was settled.
Q. Do you recall anything more that he said?
A. Well, there was talk about profit sharing plan
and questions asked of Mr. Rosenstein.
A. He said that we were getting a Thanksgiving
bonus which we did get.
Q. Did he say how much?
A. Twenty-five dollars.
Q. [By Mr. Selvo] Do you recall whether Mr.
Rosenstein said anything about what kind of man he
was?
A. Oh, at the Thanksgiving meeting?
Q. Yes.
A. He said he was a very stubborn man and that
if the union vote was yes that it would take a year
to a year and a half before anything would be set-
tled.
Rosalie Ernandes testified as follows regarding the
evening meeting:
Q. [By Mr. Selvo] What did Mr. Rosenstein say?
A. Well, he had told us that we were going to
get a Thanksgiving bonus of S25. And then he said
that regarding the Union, he said, "If the Union
comes in, we will start from 'ground zero."'
Q. Do you recall-did he say anything more?
A. Yes, he had referred to-we were going to
get a paper with what we were entitled to shares.
That everybody would get a paper and it would be
a sealed envelope and it would tell us how many
shares we were entitled to.
Q. Was this on a stock option.
A. Yes. It depended on how long we worked
there.
Kathleen Humphry, who also attended the evening
meeting, testified:
A. He [Rosenstein] introduced himself. Told us
he was the new owner of the Company and that ev-
erybody had a right to their own way of thinking
and to vote whichever way they wanted to; that ev-
erybody had a mind of their own. And he said that
if we "went Union," our jobs weren't guaranteed by
the Union because they didn't sign our paychecks
and that we'd have to start from the beginning
again.
Q. Okay. Do you recall anything more that he
said?
A. He said that he knew that quite a few of us
had spent S25 that we could ill afford and that he
would give each and every one of us a check for
S25 to buy a Thanksgiving turkey with.
A. He told us that we could buy shares in the
Company.
Q. Did he talk about a stock option?
A. That's what I mean by "shares."
Q. Do you recall anything more?
A. He said that each and every one of us would
be given an envelope as we went out and I guess
everybody got an envelope.
Q. Do you recall anything more?
A. I think he said something about arrangement
were being made with a bank for loans to buy the
shares with. Or the stock with.
Rosenstein did not delineate between the brunch and
evening meetings. His account of his presentation was:
A. I told them that I was very pleased that I had
the opportunity to talk to them, that they must have
thought I was a phantom because they never saw
me; that I was glad to have the opportunity to meet
them and know them; that I wanted them to know
that we were making substantial changes in the
company; we were buying several million dollars
worth of new equipment which would produce
greater revenues for the company, greater tips for
them, we hoped, and more ease, less repairs, less
down time; that we had a policy of giving every
employee who worked for us option; that we
wanted them to know that we were in this business
to stay; that the company had not paid any money
in previous years to talk about, but we hoped to be
able to generate a substantial income out of this,
pay for equipment, expand the company, make their
stock options worth something; that we were going
to replace the profit-sharing plan with this option
plan; that we were going to continue with Christ-
mas bonuses. . . that we had done before; that we
wanted all of their cooperation to help us build this
company; we wanted them to feel like owners in
the company; that we were going to give every em-
ployee of the company an amount of money-
which was $25-with which they could buy a
turkey because this thing was sort of hastily thrown
together.
As far as the $25 goes, it was to buy each indi-
vidual a turkey. We didn't know if they had large
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
families, small families or whatever. We distributed
it to every CARDIVAN employee in Reno and
wherever.
It was just a general-I suppose-getting-to-
know-you type of thing. I offered each and every
employee the right to come and talk to me. I said I
would be around, you know, come over and say
hello, I would be glad to meet you. You are my
guests for dinner so I like to greet my guests.
I asked them to ask me any questions that they
had on their minds and not to tell me everything
was fine if it wasn't fine.
I told them there was an election coming up. The
company was very much in favor of them voting;
they should all exercise their rights. I would prefer
if they didn't have a union. I felt that they would
do better with us as individuals and working for a
company as shareholders, as part of the organiza-
tion and I left the floor open to questions.
I do remember one thing I told them, for them to
trust me.
Q. Do you remember anything else you told
them?
A. I told them that regardless of their prefer-
ence-union or non-union-that their jobs were not
in jeopardy; that if they ever felt for any reason at
any time that there was the slightest implication
that they were being discriminated against for any
reason, harrassed, or anything else and they
couldn't get satisfaction, to come directly to me be-
cause I wouldn't stand for it and wouldn't put up
with it.
I told them that this country was build on what-
ever, that my family-I am the first born in the
United States. I am fully aware of the union-I was
fully aware of it and I don't think that one belonged
to our company, and I would hope that they would
have enough confidence to trust me and let me run
this company without the union so that we could
follow through with out [sic] plans.
Then if they didn't like what we did, go have an
election, just go seek another protection.
Thanksgiving bonus. It is clear that Rosenstein in-
formed the employees that they would receive $25 for
Thanksgiving. He further testified that, as the "chief op-
erator in many businesses," it was his custom to provide
Thanksgiving bonuses for employees, either in the form
of cash, a turkey, or a ham. All employees of Respond-
ent, including those located in Reno and Carson City,
and thus beyond the scope of the Las Vegas unit in-
volved herein, received the bonus. 7 While the Corral
United employees did not, Rosenstein explained that ef-
fective control of Corral did not pass to the board of di-
rectors of Jackpot Enterprises until January 1, 1982, and
that the purchase price of Corral United was based on
earnings from June 30 to December 31. Therefore, Jack-
pot could not direct Corral United to do anything that
might affect its earnings. Several employees, however,
' The parties stipulated that approximately 155 persons received a
Thanksgiving bonus.
testified that, when Rosenstein informed them of the $25
Thanksgiving bonus, he also made reference to reimburs-
ing employees for the amounts they had paid for union
dues.
Buy stock. With respect to the announcement that the
employees would have an opportunity to buy stock, Re-
spondent has shown that the stock option plan was
adopted prior to any employer knowledge of union ac-
tivity. To this effect, the Jackpot Enterprises prospectus,
which was issued on June 23, long predates any union
activity. The employees, however, were not informed of
the fact they were entitled to purchase stock options
until 2 days prior to the election.
Unspecified benefits. While the General Counsel's brief
does not point out what "unspecified benefits" were al-
leged to have been promised, I presume the allegation is
intended to cover Cody's testimony that Rosenstein had
made arrangements with the Valley Bank to give em-
ployees free checking, automatic deposit of paychecks,
and help in getting any loan, presumably for the purpose
of exercising the stock options. While I have difficulty
with the concept that automatic deposit of paychecks is
a benefit to the employees, there can be no doubt that
free checking and assistance in obtaining loans are indeed
benefits.
It is well settled that Section 8(a)(1) of the Act prohib-
its employer conduct "immediately favorable to employ-
ees which is undertaken with the express purpose of im-
pinging upon the freedom of choice for or against union-
ization and is reasonably calculated to have that effect."
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1963).
Thus, an employer violates the Act when it promises to
grant benefits to its employees in an attempt to dampen
their enthusiasm for union representation. NLRB v.
Rich's of Plymouth, Inc., 578 F.2d 880, 882-883 (Ist Cir.
1978); NLRB v. Otis Hospital, 545 F.2d 252, 255 (Ist Cir.
1976); NLRB v. Cable Vision, Inc., 660 F.2d 1, 6 (Ist Cir.
1981). Such action by an employer represents an improp-
er use of economic power (the "fist inside the velvet
glove") and is proscribed by Section 8(a)(l). Exchange
Parts, 375 U.S. at 409.
On the foregoing facts and authorities, I conclude that
Respondent's conduct 2 days before the election in an-
nouncing a Thanksgiving bonus and informing employ-
ees they would receive options to buy stock, free check-
ing accounts, and assistance in obtaining loans for the
purpose of exercising the stock options was for the ex-
press purpose of impinging on their freedom of choice
and was an attempt to dampen their enthusiasm for union
representation, and therefore violative of Section 8(a)(1)
of the Act. Accordingly, the General Counsel has
proven paragraph 13(c) insofar as it covers promising a
Thanksgiving bonus, opportunity to buy stock options,
free checking accounts, and assistance in obtaining loans
2 days prior to the election. Such conduct represents an
improper use of economic power. Exchange Parts, supra.
Pay raises. Cody testified Rosenstein said the change
girls would receive a 25-cent raise in January, a like
amount in 6 months,8 and " there was more in the
I Brigitta Arrigo corroborated Cody with respect to the raises.
570
CARDIVAN CO.
hopper." Swartz testified Rosenstein said they would re-
ceive a 50-cent wage increase on January 1, 1982, and
another 50 cents in 6 months. As early as August 24,
prior to knowledge of union activity, Sullivan notified
the employees in writing that the Company was evaluat-
ing its "wage/benefits program," that a final decision
would be made within 30 to 60 days, and that he was
sure wage increases would result which would be retro-
active to September 1.7 It was further established that
there was an imbalance between the wages paid Cardi-
van and Corral United employees, with the latter enjoy-
ing a higher pay scale and Cardivan employees having
better benefits. Pam Gioeli was hired in late August as
the controller for both Respondent and Corral. Her first
job was to prepare a wage and benefit analysis of the
two companies. Her report was completed the first week
in September. She testified that the decision to grant an
across-the-board raise and semiannual raises thereafter
was made by Rosenstein on September 6, 7, or 8, thus
prior to any showing of employer knowledge of union
activity. The record shows that on October 9 Sullivan
held two change girl meetings, at which time he in-
formed them, as his August 24 letter had predicted, that
they would receive a 40-cent-per-hour raise retroactive
to September I and another 25-cent raise on January 1,
1982, but would have to wait and see what happened
thereafter.10 The announcement was made within the 30-
to 60-day estimate made in the August 24 letter. Para-
graph 14(a)(l) of the complaint alleges that, in October,
Sullivan promised employees benefits, including a retro-
active 40-cent-per-hour raise and a raise in January and
every 6 months thereafter, in order to discourage them
from selecting the Union. In light of all the forgoing cir-
cumstances, it is concluded that the General Counsel has
not shown that either Sullivan's October announcement,
Rosenstein's November further announcement, or the
actual granting of the pay raises were motivated by the
employees' organizing activities. I recommend dismissal
of paragraphs 13(c), 14(aX1), and 20 insofar as they
allege any unlawful conduct connected with the promise
or granting of pay raises.
With respect to subparagraphs (d) and (e) of paragraph
13, as noted infra, Cody testified Rosenstein told the
change girls "if the Union comes in, you'll have nothing
and it will take a year to a year and a half before you get
to the bargaining table .... I will not have a union."
Swartz testified he said that "he was a very stubborn
man and if the Union came in that it would take at least
a year, a year and a half before anything was settled."
Ernandez testified he stated, "If the Union comes in, we
will start from 'ground zero."' Arrigo testified Rosen-
stein stated, "If the Union gets in, we will be right back
where we started from." Humphry testified that "he said
that if we 'went union,' our jobs weren't guaranteed by
the Union because they didn't sign our paychecks and
that we'd have to start from the beginning again." The
General Counsel has proven subparagraphs 13(d) and (e).
' R. Exh. 12.
to Pursuant to Sullivan's testimony and a stipulation between the par-
ties.
Paragraph 14(a)(2) alleges Sullivan threatened employ-
ees with loss of their Christmas bonus if they selected
the Union to represent them. Cody testified that, in re-
sponse to a question about what would happen to the
Christmas bonus if the Union came in, Sullivan said,
"Won't be any." Sullivan denied making that statement,
and a tape recording of the meeting corroborates his
denial. Cody is not credited. " I recommend dismissal of
paragraph 14(a)(2).
Paragraph 15 alleges Supervisor Gary Skelton unlaw-
fully interrogated an employee. Brigitta Arrigo testified
that, on an unspecified date, Skelton came to the Alpha
Beta market where she was working and asked if she had
gone to any of the union meetings, and, on learning she
had gone to one, stated she should have gone to more
because then she would have found out how many lies
the Union told. Her testimony was not denied. The inter-
rogation was unlawful as alleged.
Paragraph 16 alleges Supervisor Carol Dyke unlawful-
ly interrogated an employee in a telephone conversation
in early November. Arrigo testified that she received a
telephone call at home from Dyke "something about
work," and that Dyke asked what she thought about the
Union. The unlawful interrogation was not denied. Para-
graph 16 has been proven.
Paragraph 17 alleges that on November 11, in an item
of campaign propaganda, Respondent "impliedly prom-
ised its employees increased benefits and/or materially
misstated the law relating to changes in employee terms
and conditions of employment while a question concern-
ing representation of said employees exists." On Novem-
ber 11, over the signatures of "Harriet" and Carol Dyke,
the following was issued to all employees:12
Dear Fellow Employees:
Throughout the years we have worked together
through both bad and good times. Recently a very
good thing happened, and of course, a bad thing,
which, if we don't stick together, could get worse.
The good thing that we are thrilled about is the
fact that our new owners are terrific. They have
kept their word with us on everything they have
said they would do for us, and in fact have kept the
Company's word about retroactive pay. They are
people persons and are truly concerned that all of
our employees benefit both in wages and working
conditions. For example, we know about their stock
option plan and recently they have inquired of us if
we are all interested in participating. We learned
that stock options are free at the time of their re-
ceipt and if the Company makes money and the
stock price rises, we all stand to make extra money.
II Cody also falsely testified with respect to the date Barbara Echols
signed a union authorization card. Echols testified she signed a card in
December, after the November 20 election, and backdated it at Cody's
request. The General Counsel recalled Cody, who testified Echols had
signed the card on November II11 "at Albertson's at Decatur and Wash-
ington." Respondent's work schedule for the week of November 5
through I I shows that Echols did not work on November II1.
12 "Harriet" Bohr is the office manager. She was not alleged to be a
supervisor. Dyke is an admitted supervisor.
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I know that they would like to do much more in
stabilizing wages and working conditions for all of
our employees, but the law prohibits them from
doing anything while this Union petition is pending.
In any event, we believe that what they say is good
and what they will do is even better.
Of course, the bad thing that has happened is that
a group of outsiders, the Teamsters, have sought to
upset us, divide us and sow seeds of hate and dis-
content. We are very unhappy that they have
chosen to do this and we believe the only reason is
they they want to collect from us dues and initi-
ation fees. We have heard a lot of things they have
told our fellow employees and we know them to be
untruthful, but the one thing they won't admit is
that they can't guaranty anybody a job. Only the
Company can, and only the Company pays the
wages of employees; not the Union.
Fortunately, we have enough time to prevent this
bad thing from getting worse. On November 20, we
all have the right to exercise our free choice in the
privacy of a voting booth. We believe our fellow
employees don't want a Union and we know no one
needs a Union. If nothing more, we must give these
new owners a chance.
We always have time to run to a Union, but to
not give Mr. Rosenstein and his associates an op-
portunity is in our opinion very unfair. We see no
reason to not give them a chance before we commit
ourselves to monthly union dues and initiation fees
with no guarantees whatsoever. The truth is, the
Union can't make any guarantees and any state-
ments to the contrary are just utterly false.
We thought it important to write each and every
one of our employees and tell them how we felt.
We believe a vote for the Union is a disaster and
thus, we urge each and every one of you to vote
"NO" on November 20, 1981.
As established earlier, the plans for a stock option plan
and retroactive wage increases were announced prior to
knowledge of any union activity. I recommend dismissal
of paragraph 17.
Paragraph 18 alleges that in October Respondent un-
lawfully granted a wage increase retroactive to Septem-
ber 1. As outlined above, the intent to grant a retroactive
wage increase predated knowledge of union activity. To
have withheld a planned increase because of union activ-
ity would have been unlawful. I recommend dismissal of
paragraph 18.
Paragraph 19 alleges that in mid-October Respondent
granted benefits in the form of periodic step wage in-
creases which it failed to observe previously. It appears
from the record that it was Respondent's practice to hire
change girls at the minimum wage and to grant periodic
raises every 3 months until the maximum rate paid by
Respondent was reached. At the October 9 meetings
with the change girls, wherein Sullivan advised them of
the wage increase retroactive to September I as contem-
plated in his August 24 letter, several women stated they
had failed to receive their periodic increases. Sullivan ex-
plained that everyone made mistakes, and that the affect-
ed employees should check with the office and, if the
facts as claimed were true, the employees would receive
their past due raises retroactively. That this was not a
newly instituted policy is clear through the tape record-
ing of a portion of Sullivan's talk. Emma Oliver, one of
the principal union organizers, stated at that meeting that
she had received a retroactive wage increase after she
had informed management she thought it was due. The
record fails to establish by a preponderance of the evi-
dence that granting the retroactive periodic step in-
creases was unlawfully motivated as alleged in paragraph
19.
With respect to paragraph 21, which alleges the grant-
ing of the stock option plan to employees as unlawful, it
is clear from Rosenstein's testimony and the Jackpot En-
terprises prospectus which was issued on June 23 and
long predates any union activity that, despite the unlaw-
fulness of the timing in announcing it, the actual granting
of the stock options was unrelated to union activity. I
recommend dismissal of paragraph 21.
Paragraph 22 alleges that the granting of the Thanks-
giving bonus violated Section 8(aX3). While I have
found that announcing the Thanksgiving bonus 2 days
before the election was an unlawful attempt to dampen
employee enthusiasm for the Union, I do not find that
the granting of the bonus was unlawful as alleged in
paragraph 22. In this regard, Rosenstein testified that he
had been the chief operator of many businesses and that
it has been his policy to provide Thanksgiving bonuses
to all employees. It is further noted that, while Corral
United employees did not receive the bonuses, Rosen-
stein was not in a position to affect its profit picture until
he obtained full control after the first of the year. Also,
Cardivan employees located in Reno and Carson City,
who were not within the election unit, also received the
bonus.
C. Ann Hann's Discharge
Paragraphs 24 and 25 of the complaint allege Hann
was discharged on September 29 because she joined or
assisted the Union or engaged in other protected con-
certed activities. The record shows the idea for organiz-
ing originated with Hann in June when she talked to
Cody about it. In late July, through the efforts of Cody's
husband, they were put in conact with a union represent-
ative. She and Cody then contacted the change girls in
the various stores and arranged for meetings with union
representatives at the union hall in the latter part of
August. While the date of the meetings was not defini-
tively established, the first authorization cards were
signed on August 31. I conclude, therefore, the first
meeting was on August 31. Hann signed an authorization
card on September 4. Both she and Cody appear to have
been equally active in soliciting the signatures of other
employees. Employees Oliver, Merill, and Knocks were
also active card solicitors. Assistant Supervisor Thomas
admitted that in August and September she had heard
rumors there was going to be a union meeting, and that
Hann, Cody, Oliver, and Merrill were passing out cards.
She told Carol Dyke about the rumor of union activity,
but denied she told Sullivan or that she had anything to
572
CARDIVAN CO.
do with Hann's ultimate discharge. On September 26,
Hann was working the 2 to 10 p.m. shift at Albertson's
Market. About 5:30 or 6 p.m. on that date, Susan Kromi-
das, then an office clerical employee of Respondent,
stopped by the store on her way home from work, as
was her custom, to buy groceries. She observed Hann
standing about 20 to 25 feet outside the store shaking a
mop. She noted that Hann was wearing her change belt
(an apron with pockets for coins) and money changer.' 3
This was wrong, according to Kromidas, because Hann
was away from the slot machines and was outside with
money. Kromidas testified she had visited stores where
Hann worked for years and had never seen her outside
with a changer on before. The following day, September
27, Kromidas told Harriet Bohr that she had seen Hann
outside with her changer on. Bohr, who was the office
manager and in charge of the change girls, told Sulli-
van.14 Sullivan's immediate response to Bohr was to
"fire her." Hann did not work on September 27 and 28.
The morning of September 29 she received a telephone
call at home from Supervisor Carol Dyke, who asked
her to come to the office with her vest, apron, and key.
Hann's account of what was said when she reported to
the office was:
A. Well . . . the first thing she [Dyke] said to
me, did I have my keys. I said, "Yes," and I gave
her my key. And she looked-took the key and
looked my vest over and looked my apron over,
which were acceptable-totally clean and accepta-
ble. And then she put her hand on me and she told
me she wanted me to have no hard feelings towards
[sic], but it was either her job or my job.
Q. [By Mr. Selvo] Okay. What occurred next?
A. She said that Mr. Sullivan was going to be
very, very generous to me and I was the only em-
ployee they had ever given two weeks severance
pay to. And then she had file there, but she never
open it. She said I had always been a good employ-
ee and that's why I was getting the severance pay.
And then with that, Harriet came out and she had a
piece of paper and she handed me the paper and she
put her hand on me and said she was sorry. Just
sorry. There wasn't too much conversation, but
then she said, "Ann, you're going to get your stock
plan right away and here's the paper and [you] can
go to the bank and receive your check in a few
days."
And then a lady came out from in the inner of-
fices and brought a little piece of paper and she
slipped it underneath my file and Carol picked up
my file, looked underneath it and looked at me, and
then she said, "Now I can tell you why you're
being terminated." And I turned to Carol and I
's The change girl uniform consists of a change belt, red vest with the
word "change" on the back, changer, a wallet on a chain, and a key to
the safe which is normally on a key ring connected to a retriever.
14 Kromidas testified on June 18, 1982. The court reporter failed to
transcribe all of her testimony. At the reopened hearing the parties stipu-
lated that Kromidas would testify that she was not aware that Hann or
any of the change girls were involved in union activity, and that she also
told Sullivan she had seen Hann outside the store with her changer on.
said, "Carol, I know why I'm being terminated."
And she never answered that.
And she looked at me again and she said,
"You're being fired because you were caught going
outside shaking the mop, and that with your uni-
form on, and that's a 'no-no."'
And I looked at her and I said, "Carol, you've
got to be kidding." Those were my exact words. I
said, "I've done that for five years-shook the mop
out."
Q. Okay. Was that the end of the conversation?
A. Just a little bit about telling me to-where I
could get my stock plan, and she never referred to
what [I] said about shaking the mop out all those
years, no. That was almost the end of the conversa-
tion.
Q. Now, had you done what you were accused
of?
A. Yes.
She testified that the change girls were expected to
clean up the area every night before they left, that she
had purchased a mop for that purpose which the Compa-
ny paid for, and that she had gone outside the store to
shake it for 5 years. While admitting she had worn the
changer outside on September 26, she denied ever going
outside with the wallet. The wallet, from which jackpots
are paid, was supposed to contain $50. She testified the
changer would hold in excess of S20 but that she kept
the amount of change in the changer down to about S2
because the girl coming on the graveyard shift would
have to pay her for it.' a She also testified on direct ex-
amination that the change girls were never to go outside
with their wallet on. On cross-examination she testified
that she had locked up her wallet and the change from
her apron, but that she may have worn the changer out-
side. She acknowledged that when she was hired she was
informed one of the rules was "No money outside the
store."
Sullivan testified that the problem with having a
change girl outside a store with her change belt was
twofold: (I) it endangered her life, and (2) she was risk-
ing Respondent's money. He testified that the Company
is extremely security conscious, and that armed robberies
are a constant problem in the stores and average about
one a month. According to Sullivan, "When [a change
girl] is outside with that money apron on, whether it's
full or empty, and whether the wallet's in it or not,
people recognize that that apron usually has money in it.
And if she's outside the store, just lucky that somebody
didn't hit her in the head to take that apron off of her. In
addition to which, she is risking our money." He ex-
plained the basis for the Company's policy:" [N]umber
one, they're liable to get hurt; number two, we're going
to lose our money, and probably lose our keys on top of
it, which would mean changing all the keys." Sullivan
denied knowledge of Hann's union activity or of any
union activity prior to receiving a copy of the petition in
"s The testimony shows she was seen outside about 6 p.m., which is
several hours before she was to be relieved by the graveyard shift change
girl.
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 31-RC-5220, which was filed on September 29. He
testified that approximately 10 or 15 years ago he termi-
nated another change girl for making "a quick trip to the
bank and back" across a shopping center parking lot. A
mechanic who was making a service call had reported
her absence and observed her returning from the bank. 6o
While Respondent employs a detective agency to watch
the slot machines for cheaters and to report on infrac-
tions by the change girls, the office clericals are encour-
aged to report on them also.
Discussion
The General Counsel contends Hann was discharged
for her union activities, pointing out that she was one of
the primary card solicitors; that the discharge occurred
the same day the Union's petition was filed with the
Board; and that Thomas was aware of the union activity
and that Hann was one of several card solicitors. He
argues the fact the change girls are required to clean up
by the end of their shift and yet not work overtime
makes it impossible not to break the rule against wearing
any part of the change girl's equipment outside, and that,
besides, Hann had gone outside the store to shake the
mop for the last 5 years wearing her "equipment,"
except her wallet, and had not been discharged.
Respondent argues that Sullivan was sloley responsbile
for determing Hann's discharge; that he had no knowl-
edge she was involved in union activities; and that, even
if Thomas' testimony imputes knowledge of Hann's
union activity, the evidence shows her discharge was not
discriminatorily motivated. Respondent additionally
points out that no action was taken against Merrill,
Cody, or Oliver or against any change girl who signed a
union authorization card for the reason that they, unlike
Hann, did not commit a dischargeable offense.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (Ist Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board held that a violation is established where the Gen-
eral Counsel has shown that an employer's opposition to
protected conduct was a "motivating factor" in a disci-
plinary decision, and the employer, in the face of such a
showing, has failed to "demonstrate that the [discipline]
would have taken place even in the absence of the pro-
tected conduct."17 In my view, Respondent has met its
burden of showing that Hann would have been terminat-
ed regardless of her union activity. In so concluding, I
am mindful of the fact that the complaint alleges, and I
have found, numerous instances of 8(a)(l) violations, all
of which postdate the filing of the representation peti-
tion. Except for those immediately preceding the elec-
tion, and obviously intended to influence its outcome, the
balance is attributed to Thomas in the form of interroga-
tions and promises or threats of loss of benefits, and
commenced in October. Nor is there any doubt that
Thomas was aware of the organizing activities and that
Hann, Cody, Oliver, and Merrill were among those cir-
culating authorization cards. On the other hand, the evi-
dence shows that Hann was aware of the rule that no
as Another change girl was discharged in February because she would
not stay in the slot area and watch the machines.
17 251 NLRB at 1089.
money was to be taken outside the store, and it is not in
dispute that, except for her wallet, Hann was indeed 20
to 25 feet outside the store about 6 p.m. the evening of
September 26 with her uniform on, including the change
belt and changer containing money.' 8 Sullivan's testimo-
ny with respect to reasons for the rule appear to me to
be valid in light of the fact that armed robberies are not
uncommon. Thus, Respondent's policy shows a concern
over the safety of the employee who might go outside
with money, with the loss of the money, and with the
loss of the key to the safe. In addition, going outside
meant the employee was not watching the slot machines,
itself a violation of company rules. It seems clear to me
that, but for her conduct of being outside the store with
her change belt and changer on, Hann would not have
been terminated. Her going outside to shake the mop
while wearing the change belt and changer, for which
she was terminated, was not a protected concerted activ-
ity. With respect to the General Counsel's argument that
Respondent's rules-clean up by the end of the shift but
not work overtime-make it impossible not to break the
rule against wearing change girl equipment outside, it is
well settled that an "employee may be discharged by an
employer for a good reason, a poor reason, or no reason
at all, so long as the terms of the statute are not violat-
ed." NLRB v. Condenser Corp., 128 F.2d 67, 75 (3d Cir.
1942). To the same effect: Associated Press v. NLRB, 301
U.S. 103, 132 (1937); Radio Officers v. NLRB, 347 U.S.
17, 43 (1954). As the Court of Appeals for the Eighth
Circuit said in NLRB v. Montgomery Ward & Co., 157
F.2d 486 at 490 (8th Cir. 1946):
In considering the propriety of these discharges the
question is not whether they were merited or un-
merited, just or unjust, nor whether as disciplinary
measures they were mild or drastic. These are mat-
ters to be determined by the management, the jursi-
diction of the Board being limited to whether or
not the discharges were for union activities of affili-
ations of the employees.
Thus, whether Hann's termination was merited or un-
merited, just or unjust, or too drastic is not for me to
decide. I am limited to determining whether Hann was
terminated for engaging in concerted activities or for
supporting or assisting the Union. The General Counsel
has failed to prove by a preponderance of the evidence
that Hann was terminated unlawfully as alleged in the
complaint.
D. Objections to the Election
Objection I alleges:
On or about October 9, 1981, Cardivan Coin Com-
pany gave raises to all employees in the "change
person" classification. The raise was forty cents
(40¢) per hour and was retroactive to September 1,
I' While Hann testified she kept her changer money at a minimum be-
cause her successor had to purchase her change, I note that she was not
due to go off shift for another 4 hours.
574
CARDIVAN CO.
1981; with a promise of twenty-five cents (25¢) per
hour starting in January of 1982.
Complaint paragraphs 14(a)(1) and 18 allege the same
matters. I have recommended dismissal of those para-
graphs. Accordingly, I recommend that Objection I be
overruled.
Objection 2 alleges that Respondent:
Advised employees they would have to close the
plant down if the Teamsters Union had been suc-
cessful in winning their election. This was quoted
by Mr. E. Sullivan.
No evidence was offered in support of this objection. I
recommend Objection 2 be overruled.
Objection 4 alleges:
The employer, through its agents, forbade employ-
ees to further engage in the discussion of union ac-
tivities.
No evidence was offered in support of this objection. I
recommend Objection 4 be overruled.
Objection 6 alleges:
The employer, through its agents, threatened the
employees that if they voted for the union they
would forfeit all benefits and be forced to start all
over again.
Having found merit to complaint paragraphs 11 I(b)(2),
11(cX2), 11(d), and 13(e), I recommend Objection 6 be
sustained.
Objection 7 alleges:
The employer, through its agents, interrogated em-
ployees regarding their union sypathies [sic].
Having found merit to complaint paragraphs 11(a),
11(bXl), 11l(c)(Xl), 11(h), 11(iX2), I l(j)(), 15, and 16, I
recommend Objection 7 be sustained.
Objection 10 alleges:
The employer stated that regardless of the outcome
of the election . . . there would never be a union at
Cardivan Coin Company.
No evidence was offered in support of this objection. I
recommend Objection 10 be overruled.
Objection 11 alleges:
The employer, through its agents, interrogated em-
ployees regarding conversations with other employ-
ees pertaining to the union, voting and authorization
signatures.
No evidence was offered in support of this objection. I
recommend Objection 11 be overruled.
Objection 12 alleges:
Mr. E. Sullivan, at the November 18, 1981 morning
meeting, informed all change persons that they
would be given a twenty-five cents (25¢) per hour
raise every six months starting January 1, 1982.
Complaint paragraph 14(a)(1) alleges the same matter. I
have recommended dismissal of that paragraph. Accord-
ingly, I recommend that Objection 12 be overruled.
Objection 13 alleges:
On November 18, 1981, at the party held at the
Royal Americana Hotel at 7:30 P.M., Mr. Neil
Rosenstein (owner) informed the employees that
they would be given a fifty-cents (50¢) per hour
raise every six months until they reach their coun-
terpart level, beginning January 1, 1982.
This allegation is one of several allegations in complaint
paragraph 13(c). While I found merit to the other allega-
tions, I found no merit to that portion covering pay
raises. For the reasons set forth in my consideration of
complaint paragraph 13(c), I recommend Objection 13 be
overulled.
Objection 15 alleges:
At the party held on November 18, 1981, Mr.
Rosenstein informed the employees who had paid
$25.00 toward their $100.00 initiation fee with the
Teamsters union [they] would receive their $25.00
back in check form from the Cardivan Coin Com-
pany before Thanskgiving [sic] (which in fact, they
did receive).
This allegation is included in complaint paragraph 13(c).
The record shows that, at the time Rosenstein informed
employees that they would receive a $25 Thanksgiving
bonus, he also made reference to reimbursing employees
for the amounts they had paid for union dues. Accord-
ingly, I find merit to Objection 15 and recommend it be
sustained.
Objection 16 alleges:
The employees were told by Mr. Rosenstein,
owner, that if the Teamsters, Local 995 won the
election, he would stall the negotiations for two
years. During which time, the Teamsters would
become discouraged and forsake the employees ...
leaving them "high and dry."
Having found merit to complaint paragraphs 13(d) and
(e), I recommend Objection 16 be sustained.
Objection 17 alleges:
On the 18th of November, 1981, Mr. Rosenstein
gave the employees of Cardivan Coin Company an
option to purchase stock in the Comapny; accord-
ing to the Lenght [sic] of their employment. Also,
he would aid the employees in securing a loan for
his stock through the Valley Bank of Nevada.
Having considered these matters with respect to com-
plaint paragraph 13(c), and having found Respondent's
purpose in announcing these benefits 2 days before the
election impinged on their freedom of choice and consti-
tuted an attempt to dampen their enthusiasm for the
Union in violation of Section 8(a)(1) of the Act, I recom-
mend Objection 17 be sustained.
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To recap, I recommend that Objections 6, 7, 15, 16,
and 17 be sustained. Such conduct having occurred prior
to the election held in Case 31-RC-5220, I find that it
interfered with the employees' free choice of representa-
tive and was of sufficiently substantial nature to affect
the results of the election and to require that the election
be set aside and a new election be held. As I have found
that Respondent did not engage in objectionable conduct
as alleged in Objections 1, 2, 4, 10, 11, 12, and 13, I rec-
ommend their dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that Respondent cease and desist therefrom, and
take certain affirmative action designed to effectuate the
policies of the Act.
As it appears most of Respondent's employees report
directly to their jobsites, I shall recommend that, in addi-
tion to posting notices in its offices, Respondent provide
signed copies of the notice and names and addresses of
employees so that notices can be mailed to all those who
were employed by Respondent from the first week in
October 1981, the date Respondent commenced its un-
lawful conduct, until the time of compliance with this
Order. '
On the basis of the foregoing findings of fact and the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. By interrogating employees about their union activi-
ties, sympathies, and desires; by threatening loss of bene-
fits if the Union is successful in organizing the employ-
ees; by promising increased benefits and improved terms
and conditions of employment; by creating the impres-
sion that employees' union activities were under surveil-
lance; by informing employees that if they selected the
Union it would take a year and a half before anything
was settled; and by telling employees if they selected the
Union they would lose their benefits and bargaining
would commence from scratch, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(aX1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
"I See Batchelor Electric Co., 254 NLRB 1145 (1981).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Cardivan Company, Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Interrogating employees about their union activi-
ties, sympathies, and desires; threatening loss of benefits
if the Union is successful in organizing the employees;
promising increased benefits and improved terms and
conditions of employment; creating the impression that
employees' union activities were under surveillance; in-
forming employees that if they selected the Union it
would take a year and a half before anything was settled;
and telling employees if they selected the Union they
would lose their benefits and bargaining would com-
mence from scratch.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office and principal place of business in
Las Vegas, Nevada, copies of the attached notice
marked "Appendix." 21 Copies of the notice, on forms
provided by the Regional Director for Region 31, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Furnish to the Regional Director for Region 31 the
names and most recent addresses in its possession of all
employees employed by the Respondent from the first
week of October 1981 until the time of compliance with
this Order, and sign a sufficient number of copies of the
attached notice marked "Appendix" for mailing by the
Regional Director to each of these employees.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS ALSO ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not found herein, specifically paragraphs I I(b)(3),
11(e), 11(f), 11(g)(l), 1I(g)(2), 11(k)(2), 12, 14(aX!),
14(aX2), 17, 18, 19, 20, 21, 22, 24, and 25.
'0 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.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
576
CARDIVAN CO.
IT IS FURTHER RECOMMENDED that Objections 6, 7, 15,
16, and 17 be sustained, and the election held on Novem-
ber 20, 1981, be set aside and that a new election be con-
ducted at such time as the Regional Director deems ap-
propriate.
577