Consolidated Casinos Corp.

National Labor Relations Board - Board Decisions

May 24, 1967

164 N.L.R.B. 961 (N.L.R.B. 1967)

CONSOLIDATED CASINOS CORP. 961
Consolidated Casinos Corp., Sahara Division
and Consolidated Casinos Corp., Thunder-
bird Division , Respondent and James S.
Miller , Charging Party and American
Federation of Casino and Gaming Employ-
ees, Charging Party.
Consolidated Casinos Corp., Thunderbird
Division and American Federation of
Casino and Gaming Employees , Petitioner.
Cases 31-CA-367, 31-CA-423, and 31-RC-129.
May 24, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 8, 1966, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. In
addition, the Trial Examiner found merit in one of
the objections to the election filed by the Union in
Case 31-RC-129 and recommended that the results
of the election be set aside. He also found that
Respondent had not engaged in certain other unfair
labor practices as alleged in the complaint and
recommended dismissal of those allegations.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
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 this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
31-RC-129, held on May 11, 1966, be, and it hereby
is, set aside.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found in the Trial
Examiner's Decision.
[Direction of Second Election2 omitted from
publication.]
i In the absence of exceptions b) the General Counsel, we
adopt the Trial Examiner's recommended dismissal of the 8(a)(3)
allegation in the complaint We shall delete Respondent's Sahara
Division from the Order since the only unfair labor practice
allegations pertaining to this portion of Respondent's operations
are being dismissed. Respondent has also excepted to the Trial
Examiner's ruling admitting into evidence the document "Report
and Recommendations on Present Union Activity in Las Vegas,"
which was introduced by the Charging Union As this exhibit is
possibly relevant only to the 8(a)(3) allegation which we have
dismissed, we find it unnecessary to rule upon Respondent's
exception
' An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 31 within 7 days after the
date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election when ever proper objections
are filed Excelsior Undertuearlnc , 156 NLRB 1236
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: These cases,
involving objections to conduct affecting the results of an
election and unfair labor practice charges, were heard by
Trial Examiner Thomas A. Ricci at Las Vegas, Nevada, on
September 8, 1966, pursuant to a complaint issued on
June 17, 1966, and an order of consolidation dated
September 2. The complaint alleges a violation of Section
8(a)(3) of the Act. Briefs were filed by the General Counsel
and the Respondent.
Upon the entire record,' and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Consolidated Casinos Corp., Thunder-
bird Division, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
Delete the words "Sahara Division" from the
Trial Examiner's Recommended Order and the
notice wherever they appear.
IT IS ALSO ORDERED that the election in Case
I. THE BUSINESS OF THE RESPONDENT
Consolidated Casinos Corp., herein called the
Respondent and the Employer, operates through several
divisions, including Sahara Division and Thunderbird
Division; this consolidated proceeding involves only these
two divisions, each of which operates a gaming casino in
Las Vegas, Nevada. During the calendar year 1965 the
Respondent had gross receipts in excess of $5 million from
its gambling enterprises and purchased gambling supplies,
including playing cards, dice, and other paraphernalia
valued in excess of $50,000 from suppliers located outside
the State of Nevada. The Respondent moved to dismiss
i Two notions to correct tian.,ciipt, unoppo,ed. aie granted
All parties also filed a posthearing ,tipulation agreeing to place III
evidence three douiuients, marked Exhibits A, B, and C The
exhibits are hereby received in evidence
164 NLRB No. 131
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint on jurisdictional grounds. The Board having
already considered the merits of this motion in another
proceeding (El Dorado, Inc., d/b/a El Dorado Club, 151
NLRB 579), the motion is denied. I find that the
Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Casino and Gaming Employees,
herein called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The evidence at the hearing was almost all oral
testimony by five men, two employees and three
management agents. Their stories went both to the
objections-conduct said to require setting aside the
election at the Thunderbird Casino and directing a new
one-and to the complaint allegation that James Miller
was denied consideration for employment because each of
these divisions of the Respondent-Sahara and
Thunderbird-pursue a policy of not hiring applicants
believed to be union members or adherents. Decision in
both respects turns very largely on a question of
credibility. The president of the local union, employed by
the Thunderbird Casino and known there as organizer and
outspoken unioneer, testified that he was told by a
supervisor before the election, that if he did not quit this
sort of activity he would suffer for it. Another gambling
casino worker, not employed by the Respondent, related
how he accompanied Miller, an experienced craps dealer,
to the managers of both the Sahara and Thunderbird
Casinos, seeking employment, only to be told by both
officers they would not consider hiring union members or
persons associated with the Union in the past. The three
company witnesses, the pit boss, and each of the
managers, gave different versions of their conversations
with the two employees; essentially the burden of their
testimony was simply to deny the damaging statements
attributed to them. It is a matter of who is to be believed.
If the threat of discharge was made to the president of
the local, and if the casino managers in fact said no
prounion applicants would be considered for employment,
all before the election, the objections are valid and a new
election must be held. Similarly, if the managers did say
Miller had no chance of employment because of the union
activities that were going on, they committed unfair labor
practices, and such conduct must cease. If, instead, the
denial of Respondent's witnesses are to be credited, the
entire complaint fails of proof and the objections as well.
A. Violation of Section 8(a)(1)
An organizational campaign among the Casinos
operated by the Respondent in Las Vegas began late in
October of 1965. On October 26 the Union filed a petition
(Case 31-RC-129) for an election among the casino
employees at the Thunderbird, a Decision and Direction of
Election was issued by the Regional Director on
January 11, 1966, and the election was conducted under
Board supervision on May 11. Of the valid votes cast, 44
were for the Union and 72 against; the Union filed
objections to conduct affecting the election, 2 of which are
being heard here.
In the early stages, back in October, Otho Hill, a 21
dealer, became president of the union local, member of the
executive board, and shop steward for the Thunderbird
employees; his position and active organizational activities
were admittedly known to the Respondent. He testified
that about April 5, Bob Lee, then a graveyard pit boss at
the Thunderbird, engaged him in conversation about the
union campaign. The two had talked frequently on the_
subject , sometimes in light vein , sometimes seriously. The
supervisor spoke against unionization and, as Hill said,
they "needled" one another. On this occasion the shift
supervisor invited Hill to consider a hypothetical situation
and to venture an opinion. He voiced an assumption that if
Hill were to circulate a petition stating that in the event the
Union should lose the imminent election, and Hill then be
discharged, the below-named employees would strike in
protest. How many employees-Lee asked Hill-did the
latter believe would sign such a petition ? Hill said nothing,
not knowing what to say. At this point, still according to
Hill's testimony, Lee told him: "I don't want to tell you
what to do, but you better back off this union before you
bury yourself."
Hill continued to testify that a few days later , still before
the election, again at their place of work, Lee offered to
bet on the outcome of the election, and now "said that I
had to be crazy to stick out my head for idiots, because
they didn't care about me, and that he says that we were
going to lose the election .... and then I was going to be in
one hell of a fix, because they had a list on these union
guys, and he said I was at the top of the list."
Lee also recalled that he and Hill talked very frequently
about the Union, maybe "100" times. He remembered the
occasion in April when he asked Hill how many employees
were likely to sign a petition promising to strike over his
discharge in the event the Respondent should dismiss him
following loss of the election by the Union. As Lee
explained it, he started by asking Hill: "Is it your opinion
that your job is in jeopardy," and that it was following this
thought that he conceived the notion of asking Hill what
support he supposed there might be for him among the
employees. He added Hill's answer had been "maybe four
or five."
Lee denied having threatened any employee at any time,
or that he told Hill he should quit lest he "bury himself,"
or that he said there was a list of union employees of any
kind. He did recall talk about a blacklist, but explained
that all it consisted of was Hill asking him whether there
was such a thing and his replying he never knew of any.
I credit Hill against Lee. These are sharp people; the
sublety in the supervisor's indirect method of raising the
subject of retaliatory discharge of the union leader in no
way minimizes the clear threat. The thought that Hill
could well start thinking of the possibility of discharge
after the election was no less effectively implanted in his
mind. And the way the speculation was presented-even
taking Lee's version-also served to stress the
supervisors' further message to Hill that in the event of the
misfortune, he could look for little help among his fellow
workers. That the two men made a money bet over the
outcome of the election does not alter their relationship.
Sometimes they "kidded" one another, but Hill had no
less reason for concern. Counsel for the Respondent asked
him at the hearing whether he was "actually in fear" of his
job, and the answer was " I am in fear of my job right now,
Mr. Oliver."
Further, there is probative evidence that the
CONSOLIDATED CASINOS CORP. 963
Respondent, Consolidated Casinos, as an overall entity,
was opposed to self-organizational activities among its
employees or having a union represent them. A 17-page
document entitled "Report and Recommendations on
Present Union Activity in Las Vegas," dated
November 17, 1965, prepared and signed by Attorney John
F. O'Hara, was placed in the hands of a union organizer by
a member of the company negotiating team in December.
The slot machine mechanics of the Mint Hotel, operated
by the Respondent's Mint Division, were then represented
by the Union on the strength of a newly issued Board
certification. Sam Boyd, bargaining on behalf of the
Company, handed the document-quite obviously by
mistake-to Vivian Brooks, an organizer speaking for the
Union during the negotiations. He called it the Company's
counterproposal to the Union's demands; he picked it out
of his briefcase by error.
It is a temperate statement of the employers' rights
under the statute, and faithfully explains in detail the
procedural mechanics whereby a desire to delay elections,
or eventual bargaining, could defer for several years the
day of a possible duty to bargain. It also advises how
employer campaigning against unionization might defeat
the campaign entirely. Among the pinpointed ideas of
exact advice, is included: "There should be a careful
program of screening future employees instituted
immediately to avoid `union plans ' and undesirable
employees."
The demeanor of Hill and Lee as witnesses is a major
factor in the credibility resolution I make. I have no doubt
Hill spoke truthfully. I find that Lee did warn Hill he might
be prejudiced in his employment if he continued his union
activity, that he indirectly but no less effectively
threatened him with discharge that day, and that he later
intimidated him by saying there was a list of prounion
employees with Hill's name at the top. By all these
statements the Respondent restrained and coerced the
employees in violation of Section 8(a)(1) of the Act.
B. Alleged Illegal Refusal to Employ Miller
On the complaint allegation of illegal discrimination in
employment, the General Counsel's witness was Robert
Murphy, 8 years a craps dealer in Las Vegas, and an
organizer for the Union, as well as member of its executive
board. One evening in early March of 1966, while in the
company of Miller, also a craps dealer, he met Mike Renis,
manager of the Thunderbird Casino, in the bar of the
Sahara Hotel, and introduced Miller to Renis. Murphy had
worked under Renis at another location in 1959 or 1960,
but had never been employed by Consolidated Casinos in
any of its establishments. A few days later Murphy took
Miller to see Renis at the Thunderbird Casino, where
Miller said he was looking for work and requested an
application. Renis answered he had no openings and there
were no applications available. Miller then asked could he
leave his name, and Renis replied, still as Murphy
testified, "Look, I cannot hire you. I am not allowed to hire
guys associated with the union ... no sense in putting in
an application." Miller then said he was not active with the
Union, that he needed work because he had a family.
Again Renis said: "I cannot help. I cannot hire anybody
who was associated with the Union."
Continuing with his testimony, Murphy then related
how, about 2 weeks later, still in March, he accompanied
Miller to the manager of the Sahara Casino, John Hughes.
Miller had worked for Hughes in that Casino in 1964, when
several dealers, including himself, had been released
because of a fire in the place. He now reminded Hughes
that he had been promised recall, and then told him how
Renis had advised him he "was not allowed to work for you
any time." Miller said he wished to work "at the
Thunderbird, or one of the places in your organization."
Hughes' answer was: "I am not going to put you to work
... I will not hire anybody that was associated with union
or a member .... This is our right, that we do not hire
anybody that was ever a member of the union .... that is
our prerogative." Miller then asked, "Why are you
blacklisting me, and any member that wants to work," and
added he understood the Mint [the third Casino operated
by the Respondent in Las Vegas] was hiring dealers, and
he would work there. Again Hughes said: "It is our
prerogative .... I don't care if you go to work in the Mint
... but you are not going to work for this organization ...
you deal with the Del Webb Corporation." In the course of
the conversation both Murphy and Miller said to Hughes
they were no longer active in the Union.
Miller did not appear at the hearing.
Both Renis and Hughes testified for the Respondent.
Renis, as manager , does all the hiring at the Thunderbird
Casino. He recalled how Murphy introduced Miller to him
one evening at the Sahara Bar, but he added that Miller
asked for a job then, and that he said he was not hiring
because his staff was sufficient. He also recalled the visit a
few days later at the Thunderbird. Here, as Renis testified,
Murphy asked would the manager put Miller to work and
that again his answer was he needed no one and was not
hiring. Renis also said he always has employment
applications readily available, and had them then but that
Miller did not request one. Reins also testified that at his
first talk with the two men Murphy did say he was no
longer associated with the Union, and then added he never
knew Miller to have been active in union affairs, and that
he, Renis, was indifferent on the entire subject.
Hughes' story of his talk with the two men in March is
that when Miller started by asking why he had not been
recalled after the fire in 1964, his reply had been that
Miller had not applied. Murphy then said, according to
Hughes, it was a shame a man could not obtain work at the
Thunderbird, and that Renis had refused to hire Miller. At
this point Hughes spoke again to say: "You ask me for a
job here; I don't have anything ... that was the extent of
it." Hughes also recalled Miller saying he would go to the
Mint, that he might have a chance there. As to any talk of
union activities, Hughes' testimony is that he never knew
Miller to have had anything to do with the Union before
Murphy said that day in March that Miller "was no longer
active in the Union," and no longer a member. Hughes also
closed his testimony with saying it was of no moment to
him whether his employees were unionized or not, and
then denied he mentioned the Union at all during the
conversation.
I do not credit Murphy, and this is very largely a
resolution grounded on the demeanor of the witnesses. I
have considered other facts which do bear some
relationship to this question. The Respondent's policy with
respect to the Union is to curb it if possible, and in keeping
with that attitude the managers could well have spoken to
Miller as Murphy testified. There is on the other hand an
inherent weakness in Murphy's total story that more than
offsets the probability concerning the statements charged
to the managers. He had not worked for or with Renis for
perhaps 6 years; he had never worked for the Respondent
and he did not know Hughes at all. In explaining how it
298-668 0-69-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came about that he accompanied Miller in both these job
applications , Murphy said that "in this business" it helps
to have a person who is "capable " recommend the
applicant . I doubt he really believed his presence would
help Miller.
His explanation becomes even more incredible in the
light of his further statement that he had himself applied
for employment of Hughes several times shortly before
and been refused . "Well, in 1964 we filed a blacklisting
charge against the Sahara Hotel , and I believe nine other
establishments, and I personally had asked for a job from
Mr. Hughes three or four different occasions , '64 and '65
and '66 , and it was the same old story there: `Out of work',
and they weren 't going to hire no dealers for now; they
would not be hiring dealers until the future."
Implicit in this language is the thought that in Murphy's
opinion the reason why he was denied employment was
the blacklisting charged to the Respondent . And his
demeanor while giving this testimony made the
implication unmistakable . With this his conviction, his
arrival with Miller in successive applications more likely
had a purpose other than what he told at the hearing. It is
at this point of my consideration of the total record that the
failure of Miller to testify at the hearing becomes very
significant.
I find therefore that when Miller applied for work at
both the Thunderbird Casino and the Sahara Casino, he
was told only there were no jobs available then . As there is
no substantial evidence of illegal motivation in the refusal
to employ him, I shall recommend dismissal of the
complaint with respect to Miller.
IV. CASE 31-RC-129; THE OBJEG\TIONS
The election at the Thunderbird Casino which the Union
lost was held on-May 11, 1966 . Upon investigation, the
Regional Director ordered that a hearing be held on only
two of the objections filed . One alleges that between
January 11, the date of the Direction of Election , and the
time of the election , the Respondent "discriminated
against the members of the Petitioner and its adherents
because of their membership in the Petitioner." The
second alleges that during the same period the Employer
"discriminated against applicants for employment who
were members or expressed sympathy for the Union by
refusing to hire them."
The violations of Section 8(a)(1) of the Act committed by
Supervisor Bob Lee during the month preceding the
election require that the election be set aside. These were
not so innocuous and isolated statements that they can be
brushed aside as counsel for the Respondent suggests in
his brief. A message to the president of the union local that
he might be discharged for having tried to establish the
Union in the Casino, plus the further news that the
Company kept a list of prounion employees, is a most
serious impairment of the so-called laboratory conditions
necessary for untrammeled expression of choice by the
employee group. Accordingly I recommend , on the basis of
the meritorious objections filed by the Union, that the
results of the election be set aside and a new election be
ordered within the discretion of the Regional Director, at
such time as in his opinion the effect of the unfair labor
practices shall have been dissipated by adequate
t 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
compliance with the remedial action recommended below.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations 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.
VI. THE REMEDY
The Respondent must be ordered to cease and desist
from restraining and coercing the employees in violation of
Section 8(a)(1) of the Act, and to post adequate notices.
Upon the basis of the foregoing findings of fact and on
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By Supervisor Bob Lee's threat to discharge
employees in retaliation for union activity , and his warning
that a list of prounion employees is maintained by the
Company, the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and on the entire record in the case, I recommend
that Consolidated Casinos Corp., Sahara and Thunderbird
Divisions, Las Vegas, Nevada, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from threatening employees with
discharge in retaliation for their union activities , telling
them the Company maintains a list of prounion employees,
or in any like or related manner interfering with,
restraining, or coercing employees in their exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following action which I find will effectuate
the policies of the Act:
(a) Post at its Casinos in the Sahara Hotel and
Thunderbird Hotel in Las Vegas, Nevada, copies of the
attached notice marked "Appendix."2 Copies of said
notice, to be furnished by the Regional Director of Region
31, shall, after being duly signed by the Respondent's
representative, be posted by Respondent immediately on
receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
he substituted for the words "a Decision and Order."
CONSOLIDATED CASINOS CORP. 965
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.3
IT IS HEREBY FURTHER RECOMMENDED that the
complaint be dismissed to the extent that it alleges illegal
discrimination in employment with respect to James S.
Miller.
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 31, in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
labor organizations, to join American Federation of
Casino and Gaming Employees, or any other labor
organization , to bargain collectively through
representatives of their own choosing, or to engage in
any other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
All our employees are free to become or remain, or to
refrain from becoming or remaining members of any labor
organization.
CONSOLIDATED CASINOS
CORP., SAHARA DIVISION,
AND CONSOLIDATED
CASINOS CORP.,
THUNDERBIRD DIVISION
(Employer)
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT threaten our employees with
discharge in retaliationifor their union activities, or
tell them that the Company is maintaining a list of
union members or adherents.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to form
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, Tenth Floor,
Bartlett Building , 215 West Seventh Street, Los Angeles,
California 90012, Telephone 688-5850.