Carson City Nugget Casino, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1966

161 N.L.R.B. 532 (N.L.R.B. 1966)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become or remain , or to refrain from becoming or
remaining members, of any labor organization.
DALE IRWIN, WOODY IRWIN, AND GRANVILLE
E. WAFFORD d/b/a IRwIN & WAFFORD,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 612
Lincoln Building , 208 SW. Fifth Avenue , Portland, Oregon 97204 , Telephone
226-3361.
Carson City Nugget Casino , Inc. and American Federation of
Casino and Gaming Employees . Cases 20-CA-357-/f and 3574-3.
October 27, 1966
DECISION AND ORDER
On June 9, 1966, Trial Examiner Lowell Goerlich issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor 'practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not engaged 'in certain
unfair labor practices and recommended dismissal of these allegations
of the complaint. Thereafter, the Respondent filed exceptions and a
brief and the General Counsel filed cross-exceptions and a brief. A
brief in answer to the General Counsel's cross-exceptions was also
filed by Respondent.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to, a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial - Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions, cross-exceptions, and briefs, and the
entire record in these cases," and hereby adopts the findings, conclu-
I While these cases were pending before the Board, Respondent filed a Motion to Remand
to Trial Examiner and Reopen Record for the purpose of adducing further evidence in
support of Respondent's contention that the Board should not assert jurisdiction over
enterprises engaged in the gambling industry . This contention has been urged before the
Board in prior cases and we have concluded that no reasonable basis exists for excluding
gambling establishments from the coverage of the Act. See El Dorado, Inc., d/b/a El
Dorado Club, 151 NLRB 579. Accordingly , Respondent 's motion is hereby denied.
161 NLRB No. 40.
CARSON CITY NUGGET CASINO, INC. 533
sions, and recommendations 2 of the Trial Examiner, as modified
herein.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications
[1. Delete the words "like or similar" from paragraph 1(b) and
substitute the word "other."
[2. Substitute the following for paragraph 2(c) of the Trial
Examiner's Recommended Order :
[" (c) Make whole Forest Young for any loss of pay he may have
suffered as a result of the discrimination against him, by payment to
him of a sum of money equal to the amount he would have earned
from the date of his discriminatory discharge to the date of an offer
of reinstatement, less net earnings during said period, to be computed
on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, and including interest at the
rate of 6 percent per annum, to be computed in the manner set forth
in Isis Plumbing c0 Heating Co., 138 NLRB 716.
[3. As the State of Nevada has a right-to-work law, delete the pro-
viso "except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a) (3) of the Act, as
amended," from paragraph 1(b) of the Recommended Order and
from the third indented paragraph of the notice to be posted. Also
delete the proviso "except as authorized in Section 8(a) (3) of the
Act, as amended" from the second indented paragraph of the notice
to be posted.]
2 Both the Respondent and the General Counsel except to the Trial Examiner 's recom-
mendation that employee Forest Young be denied backpay if he fails or refuses to accept
an offer of reinstatement . We find merit in these exceptions. See The Rushton Company,
158 NLRB 1730, footnote 2. Accordingly , we adopt section V of the Trial Examiner's
Decision , entitled "The Remedy ," only to the extent that it provides for the award of back-
pay and reinstatement under the usual terms and conditions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On charges filed by the American Federation of Casino and Gaming Employees,
herein called the Union , the General Counsel of the National Labor Relations
Board , herein called the Board, on behalf of the Board by the Acting Regional
Director for Region 20 on September 15, 1965, issued an order consolidating cases
amended , and consolidated complaint and notice rescheduling and setting hearing.
Carson City Nugget Casino , Inc., was named the Respondent in the amended and
consolidated complaint which alleged that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (a)(1) and (3) of the National Labor Relations Act, as amended , herein
called the Act. The Respondent filed timely answer denying that it had engaged or
was engaging in the unfair labor practices alleged.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal issues which have been presented to the Trial Examiner for con-
sideration are:
1. Whether the Respondent violated Section 8(a)(1) of the Act (a) by promising
employees insurance benefits if they refrained from participating in union activities;
(b) by offering employees meal tickets at a 20-percent discount if such employees
refrained from participating in union activities; (c) by promising to install and
subsequently installing booths or tables in its restaurant for employees if they
refrained from participating in union activities; and (d) by promising to provide
employees with additional furniture and a door in its dealers' room if they
refrained from participating in union activities.
2. Whether the Respondent on or about October 28, 1965, discriminatorily dis-
charged its employee, Forest Young, because of his membership in or activities on
behalf of the Union or because he engaged in other union or concerted activities
for the purpose of collective bargaining or other mutual aid and protection
On the issues framed by the amended and consolidated complaint and pursuant
to notice, this case was heard by Trial Examiner Lowell Goerlich, in Carson City,
Nevada, on March 3 and 4, 1966, and on April 5 and 6, 1966. At the hearing each
party was afforded a full opportunity to be heard, to call, examine and cross-
examine witnesses, to argue orally upon the record, to submit proposed findings of
fact and conclusions of law, and to file briefs. All briefs have been reviewed and
considered by me.
On the record as a whole, and from my observation of the witnesses, I make
the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Carson City Nugget Casino , Inc., sometimes referred to as the
"Nugget ," is now and has been at all times material herein, a corporation organized
and existing under the laws of the State of Nevada with a place of business located
at Carson City, Nevada , where it is engaged in the operation of a gaming casino.
During the past year in the course and conduct of its business operations, the
Respondent received gross revenue in excess of $ 500,000 and during the past year
in the course and conduct of its business operations , the Respondent purchased and
ieceived supplies valued in excess of $ 5,000 from other enterprises located within
the State of Nevada, and which enterprises received goods and supplies directly from
outside the State of Nevada I
The Respondent is now , and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
It will effectuate the purposes of the Act for juiisdiction to be exercised in this
matter.2
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Casino and Gaming Employees is, and contrary to
Respondent's denial, has been , at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.3
111. THE UNFAIR LABOR PRACTICES
The Alleged Violations of Section 8(a)(1) of the Act
The General Counsel alleges in paragraphs VI and VIII of the amended and
consolidated complaint that sometime in April 1965, the Respondent violated Sec-
tion 8(a)(1) of the Act by promising employees insurance benefits, by offering
employees a meal ticket that included a 20-percent discount on its restaurant food,
by promising and installing booths or tables in its restaurant for employees, and
by promising to provide employees with additional furniture and a door in its
i These facts are drawn from a stipulation approved by the parties.
2 El Dorado, Inc., d/b/a El Dorado Club, 151 NLRB 579.
3 El Dorado, Inc, supra, footnote 16 of that decision.
CARSON CITY NUGGET CASINO, INC. 535
dealers' room if its employees refrained from participating in union activities.
Pertinent evidence relating to these allegations is as follows:
On January 1, 1964, the Respondent acquired the Carson City Nugget Casino
from W. Howard Adams and his brother, L. H. Adams. Each of the brothers is
presently a stockholder of the Respondent and together own the Casino premises
which is leased by the Respondent. While L. A. Stephan," president of the Respond-
ent, and his son, Robert, own 131/2 percent and 271/2 percent of Respondent's stock
respectively, no stockholder holds controlling interest in the Respondent. L. A.
Stephan, Robert E. Stephan, G Rynd Miller, W. H. Adams, and L. H. Adams
compose the board of directors.
According to Donald K. Emery, secretary-treasurer of the Union, the Union
commenced organizing the Respondent's employees in the middle of March 1965.
These of ganizational activities occur i ed at the Respondents' snackbar during
business hours. At the time Emery advised Casino Manager Ward that he was
"there to solicit authorization cards." Ward replied that he "thought it would be a
good thing for his employees as tar as he was concerned" and that "he thought they
should have an organization " Ward also told Emery that he was a minor stock-
holder of the club and that it was "all right for the Union to have a free hand as
far as he was concerned " About 50 authorization cards were procured by Emery
and Union Agent Woods.
On March 29, 1965, a petition 5 for an election was filed with the National Labor
Relations Board. Within the next day or two after the petition was filed, Emery
contacted Casino Manager Ward. A meeting was held at which Ward was told that
the Union had filed a petition with the National Labor Relations Board and that it
represented a majority of the Casino employees and that it wanted to meet with the
Respondent's representatives for the purpose of negotiating a contract. Ward
replied that he was not the man who could enter into such an agreement. He
referred the union representatives to L. A. Stephan. At this meeting Emery stated
that Ward mentioned "that he did not oppose an organizing campaign in the estab-
lishment In fact, he thought the employees did need such an organization." 6
On March 30, 1965, a meeting of the board of directors was held in the Sierra
Room of the Nugget. The meeting was called to "clear the air." According to
Adams the stockholders were engaging in considerable "bickering"' l and certain
relatives of members of management were causing dissension, "ill feeling and mis-
understanding" by "lies and stuff that they would bring or tell another employee."
The continued bickering, which commenced at the time the Respondent acquired
the Nugget, caused the Respondent's employees to become concerned and appre-
hensive about their status. The meeting sought to effect rapport among the board
members and the owners
The minutes of the board of directors' meeting disclose that "[d]iscussion was
held with the department heads for the business concerning business practices and
procedures." A resolution was passed as follows- "Resolved: (1) All policy in
operation of the corporate business shall be made by the board of directors.
(2) The Department Heads of the corporation are directly responsible to and under
the Board." It was further resolved that "The President and General Manager are
authorized to suspend without pay any Department Head until the next regular
Board meeting. If the Board determines the Department Head should be reinstated,
such Department Head shall have full pay for the time suspended." The action of
the board of directors further provided for the discharge of several employees who
apparently were those to whom witness Adams had referred as causing dissension.
4 The spelling "Stephan" appears in the official corporate minutes of March 30, 1965,
but appears in the record as "Stephens "
5 The Regional Director approved the withdrawal of the petition on April 5, 1965.
Thereafter the Union demanded recognition on April 9, 13, and 15, 1965. Recognition was
refused on April 19, 1965. The initial charge in the present case was filed on April 20,
1965 A second petition for an election was filed on April 23, 1965.
8 Ward's accolade of the Union at this time appears to negate the inference that Re-
spondent was engaging in activities about the same time to cause its employees to refrain
from union activities as alleged in the amended and consolidated complaint
7Adanis testified, "Well, there are nine owners and we were all going in nine different
ways. Every one of us had his own idea, I guess, of running, the club without any real
guide from the board of directors "
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the next day, according to Adams, a meeting was held with the casino
employees 8 at 10 o'clock in the Sierra Room.9 About 50 employees were present
among whom were dealers, pit bosses , boxmen , and shills. Present also were
Howard Adams, Casino Manager Ward, and General Manager Bill M. Green.
According to the credible testimony of George H. Chadwick, Adams opened the
meeting by stating that, "he wanted to assure all Casino personnel that all dis-
sension among the stockholders had been taken care of the day previous to that,1°
that there wouldn't be this wholesale firing and hiring that had been going on
previous to that; that we were going to get everybody straightened out." Chadwick
also quoted Adams as saying that "[h]e wanted to tell us about the hiring and
firing. We could quit worrying about that." The management had their discussion
the day previous and had everything straightened out.
"Andy Ward was going to run the casino, because they felt he was the best man
for the job. We won't have any more worries about bad people 11 upstairs, about
bad stories coming down stairs to get someone fired." Adams indicated that this
situation would be corrected, stating, "Don't worry. We will take care of this now,
because we have all our grievances settled with the owners."
After Adams had concluded his remarks the meeting was opened for questions.
During the question period, employee Georgetta, a dealer, asked about health
insurance. Adams told the employees that the Respondent had "studied different
policies down the last 2 or three years." 12 In this connection Adams said that one
of the employees made a statement that if the employees joined the Union they
would obtain a health insurance plan. Adams replied, "No doubt you will. If you
got a health insurance plan at the Union, you wouldn't need a plan we would put in.
If they are not in, we are still going to pursue this health and accident and try
to get some health insurance for you people." 13
During the meeting employee- Williams asked why the employees could not receive
a 25-percent discount for meal tickets since other clubs were allowing that amount.
General Manager Green explained that the Respondent sold a meal ticket for
10-percent discount. Green said he "would look into it." After the meeting Green
allowed a 20-percent discount on meal tickets for all Respondent's employees.
.8
Casino employees refer to the unit of employees for which the Union petitioned, to wit:
Included
All casino employees employed by the employer at its Carson City, Nevada location.
Excluded
All employees of the employer covered by other valid collective bargaining agree-
ments, all non-casino employees , office clerical employees , guards and supervisors
as defined in the Act.
9 Adams explained that the meeting was being called because the employees had be-
come "disturbed , unhappy" and "unsure of their jobs ," and that it was "necessary to let
them know that our trouble was all settled" and that "peace and harmony among the
members of the Board liad been achieved ." Adams said that it was hoped that such in-
formation would satisfy the employees and "everybody would settle down and go to work
again."
10 Such testimony supports Adams' statement that the meeting was convened on the day
following the board of directors ' meeting.
11 "Bad people" referred to the "Eye in the Sky " who was stationed "up stairs" to
observe and "protect the game" and "keep the employees from making mistakes ." Appar-
ently employees had complained of the alleged incompetence of the "Eye in the Sky."
12 The record reveals that since 1963 the Respondent has considered a health insurance
plan for its employees . Surveys had been conducted among the Respondent 's employees and
bids for plans had been submitted to Respondent by various insurance companies. The
plans were not limited to casino employees of the Respondent but included hostesses, cock-
tail waitresses , waitresses , janitors , busboys, and all other employees . Since the Casino
was sold about January 1, 1964, a health plan was not adopted. Shortly after the first
of the year , 1965, the new owners of Respondent met with insurance agents to discuss a
health insurance plan. A survey was again conducted among all employees of Respondent
to submit to various insurance agencies so that they could present their proposals for a
plan . An insurance program was not instituted by Respondent for its employees because of
the charges filed against Respondent by the Union.
13 At this point in Adams' testimony I Inquired whether anything else had been men-
tioned about the Union at the meeting. Adams replied:
I said a little more, not much ; but kind of as a closing deal I wanted it made clear
that the management didn ' t care whether you joined the Union or not. It is your
own business . Join it if you want to. We don't care.
CARSON CITY NUGGET CASINO, INC. 537
According to Green someone at the meeting "mentioned that the food . . . was
lousy in the restaurant , plus the service was worse than the food." Green replied
that the Respondent was having problems in the restaurant and that it was trying
to correct them. He said that the Respondent was trying to serve better food and
that he would see what could be done "about fixing it to where [the employees]
could get better service." At the time of the meeting , two booths and two stools
at the counter were reserved for the employees . About a month after the meeting,
two tables were reserved for the employees at the back section of the coffeeshop.
According to Adams the eating location was changed because the Respondent
"didn't feel that the employees should have the first table that you look at as you
come into the coffee shop . and [t]hey are closer to the so-called service station
and they get their coffee and their stuff quicker ." Under the new arrangement 12
employees rather than 8, as was the case under the old arrangement , were served
at the same time.
At the meeting , one of the employees mentioned that the dealers ' room or
employees ' lounge, which was located directly above the entertainment stage, was
too noisy and "needed a door on it." The employee was advised that the Respond-
ent would "look into it." Later a door was installed . The Respondent had received
no prior complaints about the noise.
Adams testified that within the next few days similar meetings were held with
employees of the Keno department , restaurant , kitchen, and bartenders, slot
mechanics , and janitors . The purpose of these meetings ,14 likewise , was to let the
employees know that there was "peace and harmony among the Board members
and owners of the club ." Questions were also solicited from these employees.
Upon the basis of the record I find no reason for doubting the veracity of
Adams,15 and he is credited . Thus I find that the casino employees ' meeting was
called for the purposes recited by Adams. The fact that the date of the meeting
occurred during the Union's organizational campaign and about the same time as
the Union filed its first petition for an election on May 29, 1965, was coincidental
rather than deliberate. I find no support in the record for the inference that the
casino employees ' meeting or any alleged benefits flowing therefrom were intended
or utilized for the purpose of causing employees to refrain from participating in
union activities . The record is barren of any proof that the Respondent at the time
of the meeting possessed any union animus. Indeed , at the casino employees' meet-
ing Casino Manager Ward , who allowed the Union to freely solicit on the
Respondent 's premises and thought the employees needed a union organization,
was confirmed in full authority over the Casino. Any alleged benefits to employees
resulting from the meeting were in furtherance of the Respondent 's objective to
restore peace and harmony which had been disrupted by bickerings and dissensions
and was not for the purpose of causing employees to refrain from participating in
union activities . The preponderance of the testimony does not support the allega-
tions in paragraph VI and VIII of the amended and consolidated complaint; I
recommend dismissal thereof.
The Discharge of Forest Young
Forest Young was hired 16 on September 22, 1965, as a security guard and was
discharged on October 28, 1965.17 Assistant General Manager Reinhardt testified
that the security guard's duties were twofold . The duties encompassed "the treat-
ment of customers and the maintaining of proper order and demeanor throughout
the club" and "internal security with regard to [the Respondent 's] employees in
the handling of money and their integrity and honesty ." Elaborating upon these
duties Reinhardt testified, "The security officer is required to constantly circulate
14 The amended and consolidated complaint makes no mention of any alleged unfair labor
practices occurring in connection with any of these meetings
15 At the time the casino employees ' meeting was convened , Adams was in the process of
retiring and spent very little time at the Respondent's establishment
16 Assistant General Manager Ray Reinhardt hired Young . Young had held four previous
jobs as a dealer . When asked by Reinhardt why he had applied for the guard 's job, he
answered "I need the work. The security job is fine." Reinhardt told Young that the uni-
form they were using at the time was "a pair of black trousers , a white shirt , a black tie,
and black shoes." The employee furnished the clothes.
17 Notice of Young's discharge was delivered to his home on the morning of October 28,
1965 , by Supervisor William Joseph Riordan as directed by Assistant General Manager
Reinhardt . Riordan gave Young no reasons for his discharge.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throughout the premises, observing-the patrons while they are enjoying themselves
with our entertainment. Those who appear to be drinking to excess or becoming
loud or boisterous or what have you are asked to quiet down so that any difficulty
that might arise can-be spotted in advance and stopped before any trouble really
begins.
"There are also a number of doors and places throughout the club that are to
be checked periodically. The doors are to be locked after certain hours of the day.
Any time anyone goes to our warehouse area, past the swing shift time, the security
officer is to go there and unlock the door and observe what is taken out and see
that it is signed for and also see that the doors 'are relocked again upon departure
of the person.
"'He also is the person involved if there is any accidents, illness, or injury that
occurs within the club, whether it be an employee or a customer. He is immedi-
ately to make out a report with respect to the accident or illness and to do what-
ever he deems necessary as far as relieving any injury or first aid or what have
you or contact the management. If necessary, he calls an ambulance for the person
and they are taken to the hosiptal.
"[H]e will be of assistance in the transfer of money to increase or raise the slot
bank in the slot cashiers' booth. The money will be transferred to him from the
manager on duty from the vault . . . . he normally takes it to the slot booth and
the cashier then signs for the same transaction.
"He also would be involved in filling what we call the drawers or the individual
change girl's banks. The cashier counts out the money-to him. He checks it. He
puts it in the drawer and signs his name and the time and the date as to what
security officer fills what bank at what time and how much money."
The, security guard also assists the floor manager in the removal of the money
from slot machines and stacks the bags of money in the money cart. He also helps
the floor manager in. counting nickels, a task which is done by machine. He helps
distribute and collect bingo cards. He is paid $2 an hour.
Reinhardt testified' that, as "the last straw" incident, Young was discharged for
discourteous behavior on October 23, 1965,18 in connection with the escorting of
three elderly ladies from the club and out the back door. These ladies had been
sitting in the club for a considerable time without purchasing anything. Reinhardt
said the other reasons for Young's discharge were "criticism of his personal appear-
ance,19 his nonperformance of his duties with respect to standing around, talking
excessively, and the incident of having to ask him more than once to remove his
badge from his belt and wear it on his shirt where it was supposed to be worn."
'' The Respondent's reasons for discharge, of course, even if valid, are immaterial
if the Respondent was also motivated by'unlawful discrimination.20
On October 25 and 26,' 1965, Young had engaged in union activities on the
Respondent's premises during business hours. Young testified that on these dates
he had asked "a few people at the club whether they would sign an authorization
card." On one occasion Young talked to one of the change girls while off duty at
the bar. Another time, while Young was on break, he talked to one of the Keno
runners. On another occasion he talked to a girl while she was on duty and he was
off duty. Young gave one of the girls a card. Several other employees also con-
tacted Young. One of the girls whom Young solicited was Juanita Quartz.
Juanita Quartz had been employed by the Respondent between June and Novem-
ber 1965. Quartz testified that a "few days" before Young was discharged, Young
asked her if she "wanted to join the Union." Quartz reported the incident to Assist-
ant Manager Reinhardt.21' According to Quartz' testimony she told Reinhardt that
'B Nevertheless , Young continued work on October 25 and 26, 1965.
'B On the witness stand Young appeared as a courteous , neat, well-groomed person.
20 Even though a lawful cause for discharge is available it "is no defense where the em-
ployee is actually discharged because of his union activities ." N L.R B. v. Ace Comb Com-
pany and Ace Bowling Co., Division of Amerace Corp ., 342 F.2d 841 , 847 (C.A. 8).
We have repeatedly held that "if the discharge is because of union activity it is a
violation of the Act even though a valid ground ' for dismissal might exist ." AT L.R B.
V. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5).
21 Betty Pennington , Quartz' supervisor , testified that Quartz had reported the incident
to her. Pennington advised her to "talk to Ray [Reinhardt ] or Bill [ Green]." Pennington
testified that Quartz "probably" mentioned an employee 's name in connection with the
union solicitation.
CARSON CITY NUGGET CASINO, INC. 539
she "had been approached and asked if [she] wanted to join the Union by Forest
[Young]." She said she had been told "maybe it would be best if [she] talked it
over with him first for fear that [she] would probably lose [her] job . . . ." Quartz
asked Reinhardt what he thought she should do. Reinhardt replied, "I will take
care of it."
Reinhardt admitted that Quartz told him "that she had been approached to join
the Union to sign a card" and had asked him whether it would "have any effect
on her job" and "what should she do about it." Reinhardt replied, that "certainly
it couldn't get her fired, because in the first place [he didn't] think her position
had any jurisdiction in iegard to the Union," that she was "not classified as a
casino employee," that she should "disregard it," and he "would take care of it." 22
Reinhardt did not specifically deny that Quartz had not mentioned Young's name
as the union solicitor. In respect to the incident I credit the testimony of Quartz
and find that prior to Young's discharge the Respondent possessed knowledge of
Young's union partisanship.23 Jo Ann Frances Young, Forest Young's wife, likewise
testified credibly.24
Mrs. Young testified that the Youngs entertained Marcel Salomon and his wife,
Anai,25 at dinner at their home on the evening of October 27, 1965.26 During the
course of the evening, according to Mrs. Young, Young asked Salomon "what he
thought of the union." Salomon replied that "he had just come from a meeting
that they had held at the Nugget" at which "[t]hey were just discussing the union."
Salomon continued, "In fact, they were discussing Forest and his affiliation with
the union." Young observed that "he didn't feel that they knew about his union
activities" and that "he was going to discuss his union activities with Mr. Rein-
hardt" who, he felt, liked him. Salomon replied that "they were discussing firing
him . . because he was connected with the union and they knew this." 27 Mrs.
Young further testified that the next morning Supervisor Riordan appeared around
7 o'clock at the Young's home. As Mrs. Young approached Riordan in the Young's
living room, Young was "telling him he already knew what he was there for." 28
Mrs. Young related the conversation:
Bill [Riordan] said he was sent there to let him go. My husband wanted to
know why just to see if he might tell him. He said that he didn't know. Forest
said, "It is because I am connected with the union. I had Marcel [Salomon]
over for dinner last night He kind of gave me the hint . . . So, I told my
husband why didn't he go in anyway-go to work-but this is when Bill
Riordan said, `I was definitely sent over here to tell you not to come in
to-night.' "
23 Supervisor Pennington testified that she heard Quartz say, "Will I lose my job over
this"' and Reinhardt replied, "No." Pennington was "busy" and did not hear all of the
conversation.
21 Such credibility resolution is based upon Quartz' demeanor, her lack of personal in-
terest in the outcome of the litigation and the failure of Reinhardt to specifically deny that
the name of Young was mentioned by Quartz.
21 Mrs. Young appeared as an honest, forthright witness whose attitude while on the
witness stand disclosed a careful consideration for the truth It is my view that these
factors outweighed any personal interest in the outcome of the litigation which she may
have possessed.
21 Salomon and his wife have since become divorced.
20Marcel Salomon was the Respondent's floor manager, an admitted supervisor.
n Salomon admitted that he visited the Youngs with his wife on the night of October 27,
1965 Salomon testified that he mentioned the visit to Reinhardt before he left work on
October 27, 1965. According to Salomon, Young asked him what he "thought of the union "
Young said, "that he thought of going to Ray Reinhardt" ; that he "thought Ray Reinhardt
liked him, and he wanted to go up to Ray and tell him that he was secretary of the union."
Young asked Salomon's opinion Salomon said he "didn't think that it would help him one
way or the other." Salomon said that he "didn't see the purpose of it." Salomon denied
any conversation relating to Young's impending discharge. Salomon reported his conversa-
tion with Young to Reinhardt.
28 Riordan was asked, "Did Mr. Young make a statement to the effect he already knew
he was being discharged." Riordan answered, "I think Forest did say something about
it . ." Riordan was also asked whether Young indicated that he knew the reason for
his discharge. Riordan responded, "Well, he might have had an idea " Whereupon Riordan
was asked, "Did he relate it to you?" Riordan answered, "I do not recall." Riordan im-
pressed me as an evasive witness.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing credited testimony and the record as a whole,
I find that the Respondent discharged Forest Young because he engaged in orga-
nizational activities for the Union while occupying the position of security guard.
Controlling factors in this respect are: (1) the Respondent's knowledge of Young's'
union activities; 29 (2) the timing of the discharge immediately after Young was
discovered as a union partisan;30 (3) Supervisor Salomon's statement on Octo-
ber 27, 1965, that "the Respondent was discussing firing [Young] . because he
was connected with the union"; (4) the failure of the Respondent to give Young
a reason for his discharge either at the time of his discharge or thereafter; and
(5) the precipitous manner of notifying Young of his discharge. The Respondent's
"real motive" 91 in discharging Young seems obvious; the Respondent did not want
one of its guards 32 soliciting its employees for membership in the Union. In an
establishment where the integrity of its employees is highly essential, it is under-
standable, in view of the duties assigned to security guards, that the Respondent
would demand absolute loyalty from its guards and would resist to the point of
discharge a guard's allegiance to a union admitting to membership employees of
the Respondent other than guards. A like persuasion no doubt influenced the House
to include "police" within the definition of "supervisor" in the Taft-Hartley amend-
ments to the National Labor Relations Act. The House observed ". . . there must
be in management and loyal to it persons not subject to influence or control of
unions . " 33 and ". . no one, whether employer or employee, need have as
his agent one who is'obligated to those on the other side, or one whom, for any
reason, he does not trust." 94 The Senate, however, disagreed with the House and a
compromise was effected. As stated by Senator Taft:
. the Senate rejected a provision in the House bill which would have
excluded plant guards as employees protected by the act . . . Under the lan-
guage of clause (3), guards still retain their rights as employees under the
National Labor Relations Act, but the Board is instructed not to place them
in the same bargaining unit with other employees, or to certify as bargaining
representatives for the guards a union which admits other employees to mem-
bership or is affiliated directly or indirectly with labor organizations admitting
employees other, than guards to membership.35
Thus security guard-Young, as an employee within the meaning of the Act, was
entitled to the rights and privileges set forth in Section 7 of the Act. Hence I find
that the Respondent, by discharging Forest Young, was, in violation of Section
8,(a)(1) and (3) of the Act. -
2D In the light of the testimony of Quartz, Young, Reinhardt, and Pennington, I fix the
date when the Respondent first gained knowledge of Young's union activities as October 26,
1965, upon which date Quartz reported Young's union activities to Reinhardt. Young testi-
fied that he first solicited on October 25 and 26. Quartz testified, "After I told Ray Rein-
hardt about being approached by Forest, well, he was fired the next day. The next day he
wasn 't at work." (October 27, was Young's day off.)
80 I have considered as incredible the Respondent's claim that the decision to discharge
Young was reached, on October 23, 1965, the date of the "last straw" incident. Cf. Dixie
Broadcasting Company, 150 NLRB 1054. Indeed the sequence of events negates such a
claim. On October 25 and 26, 1965, Young first solicited employees for union membership
on the Respondent's premises ; on October 26, 1965, the Respondent first learned of Young's
union activities ; on October 27, 1965, Young was not at work (it was his day off) ; on
October 27, 1965, the Respondent discussed discharging Young because of his union
activities ; on the evening of October 27, 1965, Young revealed his union connections to
Supervisor Salomon ; and on the morning of October 28, 1965, Young was notified at his
home by a messenger sent for such purpose by Assistant Manager Reinhardt that he was
discharged.
81 It is the "real motive" of the employer which, is decisive in an 8(a) (3) violation.
N.L.R.B. v. Brown Food Store, 380 U.S. 278, 287.
82 The Respondent 's antipathy toward exsecurity guard Young' s organizational efforts
appeared in its order to security guard Love to escort Young, as 86'd, from the Respond-
ent's premises while he was seated at the employees' table on November 5 or 6, 1965,
shortly after his discharge. According to Love "86'd mean[t] . . . persons who are a
nuisance, a bother, some constantly drunk . ... Except for his union affiliation, Young
fitted none of these categories. Reinhardt described 86'd as referring to "a person being
barred from the club . [o]n an indefinite basis."
sa H. Rept. 245 on H.R. 3020, 1 Leg. Hist. 307 (LMRA) (1947).
84 Id. at 308.
' Remarks of Senator Taft, 2 Leg. Hist. 1541 (LMRA) (1947).
CARSON CITY NUGGET CASINO, INC . 541
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section I, above, have a close, intimate, and
substantial relation 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
It having been found that the Respondent has engaged in certain unfair labor
practices, it is recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It having also been found that the Respondent unlawfully discharged Forest
Young on October 28, 1965, and thereby violated Section 8(a)(3) and (1) of the
Act, it is recommended that Respondent remedy such unlawful conduct. It is rec-
ommended that the Respondent'offer to Forest Young immediate and full reinstate-
ment to his former or a substantially equivalent position and without prejudice to
his seniority or other rights and privileges and make him whole for any loss of
earnings he may have suffered as a result of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount he would have earned from
the date of his discriminatory discharge to the date of an offer of reinstatement, less
net earnings during said periods to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum, to be computed in the manner
set forth in Isis-Plumbing & Heating Co., 138 NLRB 716. However, for the same
reason stated by the Trial Examiner in The Rushton Company, 158 NLRB 1730,
1737 which are set forth below,36 I recommend that if Forest Young is employed by
an employer other than the Respondent on the date when* he is made a lawful offer of
reinstatement and he fails or refuses, except in case of mental or physical disability,
to accept such lawful offer of reinstatement, but chooses to continue in the employ-
ment of such employer or another employer, he shall be barred from backpay for
31 "The thrust of every proceeding before the Board is to'effectuate the purposes of the
Act. In Local 833, International UAW v. N.L.R B , 300 F.2d 699, 703 (C.A.D C.), it is
said "reinstatement is the only sanction which prevents an employer from benefiting
from his unfair labor practices through discharges which may weaken or destroy the
Union . . . ... The United States Court of Appeals for the Fifth Circuit has said "Ob-
viously the discharge of a leading union advocate is a most effective method of under-
mining a union organizational effort" N L R.B. v. Longhorn Transfer Service, sup; a, at
1026. When an employee who is discharged because of his union sympathies refuses rein-
statement , other employees are left with a sense of insecurity and lack of assurance
that they, in fact, may join a union and remain an employee of the employer The
return to employment of a union adherent is not only the final achievement of the
Act's protection in respect to such employees but it is the most realistic and articulate
demonstration of the Act's paramount protection to other employees. So important was the
concept to the framers of the Act that reinstatement was specifically mentioned as a means
of effectuating the policies of the Act ; backpay is discretionary." It follows, therefore, that
the remedy of reinstatement does not produce the desired remedial effect unless the dis-
criminatee (in this case [Young] accepts reinstatement and returns to employment. It
seems equitable that the discriminatee, for whom the Act is invoked, should also con-
tribute to the achievement of its purposes by accepting reinstatement, especially where,
as here, without reinstatement, the remedy falls short of securing the correctives intended.
The realities of the industrial world confirm that If the discriminatee refuses reinstatement,
except for the deterrent visited upon the employer by the payment of backpay (which is
sometimes of doubtful value), little is accomplished and the remedy "fizzles out." . . . To
grant backpay under these circumstances . . . in this case-hardly results in the dissipation
of the effects of the prohibited action. Cf. Local 60, United B,otherlwod of Carpenters and
Joiners of America (Mechanical Handling Systems ) v. N.L.R.B., 365 U.S. 651, 655. In
this case the deterrent to the Respondent resulting from the payment of backpay without
the actual reinstatement of [Young] is outweighed many times in statutory accomplish-
ment by [his] actual reinstatement."
%s Section 10(c) of the Act which provides in part:
. .. the Board . . . shall issue and cause to be served on such person an order
requiring said person to cease and desist from such unfair labor practice, and to
take such affirmative action including reinstatement of employees with or with-
out back pay, as will effectuate the policies of this Act [Emphasis supplied.]
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the period of time that he was in the employment of such employer. I further
recommend that if Forest Young is unemployed on the date when he is made a
lawful offer of reinstatement and he fails or refuses, except in the case of mental or
physical disability, to accept a lawful offer of reinstatement, he shall be barred
from all backpay.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to
be exercised herein.
3. By unlawfully discharging Forest Young on October 28, 1965, the Respondent
engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed them by Section 7 of the Act the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondent has committed no alleged unfair labor practices which have
not been specifically found to have been unlawful herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended that Respondent, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against any employee because of membership in or activities
on behalf of the American Federation of Casino and Gaming Employees or any
other labor organization.
(b) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form labor organi-
zations, to join or assist American Federation of Casino and Gaming Employees or
any other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such
activities except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as authorized
by Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer Forest Young immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges.
(b) Notify Forest Young if presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Make whole Forest Young for any loss of pay he may have suffered by
reason of Respondent's discrimination against him in accordance with the recom-
mendations set forth in "The Remedy" herein.
(d) Preserve and, upon request, make available to the Board and its agents for
examination and copying all payroll records, social security records, timecards,
personnel records and reports, and all other records relevant and necessary to deter-
mination of backpay due and to the reinstatement and related rights provided under
the terms of this Recommended Order.
(e) Post at its Carson City, Nevada, establishment, copies of the attached notice
marked "Appendix." 37 Copies of said notice, to be furnished by the Regional Direc-
3 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
CARSON CITY NUGGET CASINO, INC. 543
tor for Region 20, after being duly signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered , defaced, or covered by an other
material.
(f) Notify the Regional Director for Region 20, in writing , within 20 days from
the date of this Recommended Order, what steps Respondent has taken to comply
herewith.38
IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges viola-
tions of the Act other than those found in this Decision.
38In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL offer Forest Young immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges and make him whole for any loss of earnings to which he
may be entitled by reason of the discrimination against him.
WE WILL NOT discourage membership in American Federation of Casino
and Gaming Employees or any other labor organization of our employees by
discharging employees for engaging in protected , concerted activity or in any
other manner discriminating against any individual in regard to his hire , tenure
of employment , or any term or condition of employment except as authorized
in Section 8(a)(3) of the Act, as amended.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act, as
amended.
All our employees are free to become or remain , or to refrain fiom becoming
or remaining , members in good standing of American Federation of Casino and
Gaming Employees or any other labor organization.
CARSON CITY NUGGET CASINO, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-Notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 13050
Federal Building , 450 Golden Gate Avenue, Box 36047 , San Francisco , California
94102, Telephone 556-0335.