Debbie Reynolds Hotel

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 466 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466
Debbie Reynolds Hotel, Inc. and International Alli-
ance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States
and Canada, Local 720, AFL–CIO. Cases 28–
CA–14127 and 28–RC–5468
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On September 18, 1997, Administrative Law Judge
Albert A. Metz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated 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,1 and conclusions and
to adopt the recommended Order.
1. We agree with the judge’s conclusion that the Re-
spondent violated Section 8(a)(1) by President Todd
Fisher’s December 11, 19962 statements to employees
that the Respondent would probably have to shut down
some productions and move them and the equipment to
California, that low-budget producers would not be able
to afford the facilities, and that in the worst case he
would have to shut down. These unlawful statements are
distinguishable from the employer’s remarks found law-
ful in Action Mining, 318 NLRB 652, 657 (1995). In that
case, unlike here, the Board found that there was some
factual basis for the employer’s statements concerning
the potential loss of customers. The Board also found
that the employer’s statements about the possible effects
of unionization, including potential customer loss, would
not reasonably be perceived by employees as implicitly
threatening that the employer might take action on its
own initiative, without respect to economic necessity. In
the context of the present case, we find that employees
would reasonably understand Fisher’s statements to im-
ply such a threat.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In adopting the judge’s determination that Jean Guilkey is not a su-
pervisor, we note that the judge implicitly credited Guilkey’s testimony
that her recommendation that employees be selected for layoff on the
basis of seniority was not effective.
We find, in agreement with the judge, that employee Johnny Ford
had a reasonable expectation of reemployment, and thus was eligible to
vote in the election. In so finding, we rely on Entertainment Director
Joseph Bianchi’s statement that he would be doing “call backs.” We do
not rely on Ford’s discussion with President Todd Fisher about the
availability of the electrician position formerly held by Mike Deasy,
because that position was not included in the bargaining unit.
In agreeing with the judge’s recommendation to sustain the Respon-
dent’s challenge to the ballot of Joey Mele, we note that no exception
was filed to the judge’s finding that Mele is a supervisor.
2 All dates are 1996 unless otherwise indicated.
2. We adopt the judge’s recommendation that a Gissel3
bargaining order be issued to remedy the Respondent’s
unfair labor practices. In Gissel, the Supreme Court held
that the Board has the authority to issue bargaining or-
ders in two categories of cases, cases “marked by ‘outra-
geous’ and ‘pervasive’ unfair labor practices” (category
I), and “less extraordinary cases marked by less perva-
sive practices which nonetheless still have the tendency
to undermine majority strength and impede the election
processes” (category II).4 The Court found that, in de-
termining a remedy in category II cases,

the Board can properly take into consideration the ex-
tensiveness of an employer’s unfair labor practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order, then such an order should issue.5

In agreeing with the judge that a Gissel category II
bargaining order is the appropriate remedy in this case,
we follow our analysis in M. J. Metal Products, 328
NLRB 1184 (1999). We have, as mandated by the Su-
preme Court in Gissel, examined the extensiveness of the
Respondent’s unfair labor practices and the likelihood of
their recurrence in the future. We conclude, for the rea-
sons set forth below, that the Respondent’s unlawful
conduct renders a fair second election unlikely, and that
the “employees’ wishes are better gauged by an old card
majority than by a new election.”6
Even before the Union filed the representation petition
on November 15, the Respondent embarked on a cam-
paign of coercive actions to undermine the employees’
support for the Union. Thus, in October Production
Manager Henry Cutrona interrogated employee Guilkey
concerning her involvement with the Union and whether
3 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
4 Id. at 613–614.
5 Id. at 614-615.
6 M. J. Metal Products, supra, quoting Charlotte Amphitheater Corp.
v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996).
332 NLRB No. 46
DEBBIE REYNOLDS HOTEL 467
other employees had been talking to the Union. In addi-
tion, he threatened Guilkey that Fisher would never per-
mit the employees to continue union activity or to union-
ize the hotel, and would fire the employees and close the
hotel if they tried.
The Respondent intensified its efforts as soon as the
Union filed its petition and demanded recognition. On
that very day, Supervisor Mele threatened employee Sul-
livan that if the Respondent found out who was involved
with the Union, they “were out of here”; interrogated
Guilkey about the Union; and threatened her by relating
that Cutrona had said that Fisher was angry and that any-
one responsible for the union organizing would be fired.
The following Monday, November 18, the Respondent
replaced the locks to the showroom, for which the em-
ployees had previously been issued keys, and announced
that the employees would be laid off as of November 30.
Two days later, the Respondent’s former president,
Henry Ricci, then a consultant, conducted a counseling
session with Michael Brister in which he solicited Bris-
ter’s grievances concerning problems at the hotel, though
stating that the problems would not be remedied, and
threatened negative consequences of unionization, in-
cluding job loss, citing a unionized hotel where the em-
ployees were all fired after they demanded a raise.

Ten days later, and 2 weeks before the election, the
Respondent laid off most of the stage and museum em-
ployees and subcontracted the unit work for subsequent
shows to the shows’ producers. As a further reprisal
against active and known union supporters Brister and
Guilkey, Entertainment Director Joseph Bianchi pres-
sured the producers not to hire them, thereby effectively
transforming their layoffs into discharges. Bianchi can-
didly testified that he took this action against Guilkey
because she had been disloyal to the Respondent by en-
gaging in union activity. About the same time, President
Fisher informed employee Wilson that he was bringing
work into the hotel, but that, if the employees selected
the Union, he could not support the hotel and the Re-
spondent would go elsewhere. In a meeting of employ-
ees on December 11, 2 days before the election, Fisher
threatened a reduction in work, discharge, and the clos-
ing of the hotel if the employees voted for the Union.
The election was held on December 13, with inconclu-
sive results. On December 16, Fisher called Wilson into
his office, told her that several employees had given him
statements about promises that the Union had made to
employees, and instructed her to provide such a state-
ment by the end of the day.
As the above events clearly demonstrate, the Respon-
dent took drastic, immediate, and persistent measures to
thwart its employees’ support for the Union in the repre-
sentation election. This unlawful course of conduct be-
gan even before the petition was filed and escalated
quickly after the filing. It reached its peak with the
commission of several “hallmark” violations, including
subcontracting out most of the unit work and laying off
most of the unit employees, discharging Brister and
Guilkey, and repeatedly threatening job loss and closing,
and continued even after the election. “Such action can
only serve to reinforce employees’ fear that they will lose
employment if they persist in union activity.”7 In view
of the severity and unitwide scope of the Respondent’s
actions, as well as the small size of the unit, comprising
13 employees who work in close proximity to one an-
other, the Respondent’s unlawful conduct would pre-
dictably have a severe and lasting coercive effect on each
unit employee.8
This coercion was underscored by the involvement of
high-management officials, including Fisher. Not only
were unlawful threats by other management officials
attributed to Fisher, but he also personally and repeatedly
threatened employees that the hotel would close if it be-
came unionized. In addition, he coerced Wilson after the
election to provide him a statement about promises by
the Union. Production Manager Cutrona, who subse-
quently became the Respondent’s chief operating officer,
interrogated Guilkey and, as related by Mele, threatened
that the employees responsible for the union activity
would be discharged. At the time of the layoff, Enter-
tainment Director Bianchi insisted that producers not hire
Brister and Guilkey. Finally, all three of these officials
were involved in the planning of the layoff itself. “When
the antiunion message is so clearly communicated by the
words and deeds of the highest levels of management, it
is highly coercive and unlikely to be forgotten.”9
The Respondent’s campaign of antiunion conduct
demonstrated to employees in the clearest possible terms
the Respondent’s willingness to take drastic and unlaw-
ful action in order to prevent them from obtaining union
representation. Such persistent and highly coercive ac-
tions indicate an increased likelihood that the Respon-
dent will resort to such measures in response to future
union campaigns. Moreover, they leave a long-lasting

7 Consec Security, 325 NLRB 453, 454 (1998), enfd. 185 F.3d 862
(3d Cir. 1999).
8 Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 107–108
(D.C. Cir. 2000), enfg. in relevant part 328 NLRB 1058 (1999) (court
enforced Gissel bargaining order in light of magnitude of respondent’s
unfair labor practices, small size of unit, and involvement of respon-
dent’s owners).
9 Consec Security, supra, at 454–455. See Electro-Voice, 320 NLRB
1094, 1096 (1996); and America’s Best Quality Coatings Corp., 313
NLRB 470, 472 (1993), enfd. 44 F.3d 516 (7th Cir. 1995), cert. denied
515 U.S. 1158 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468
impression on employees and cause them to be especially
reluctant to risk another period of unemployment, or a
permanent loss of their jobs, by engaging in further union
activities. Therefore, we conclude that a Gissel bargain-
ing order is necessary to effectuate the policies of the
Act.
In deciding that a bargaining order is warranted in this
case, as required by some circuit courts, we have consid-
ered its appropriateness at the present time and the in-
adequacy of other remedies. As the Board discussed in
M. J. Metal Products in response to concerns raised by
the District of Columbia Circuit regarding Gissel bar-
gaining orders, the Supreme Court in Gissel found that a
bargaining order both remedies the effects of the unlaw-
ful election conduct and deters future unlawful conduct.10
The Court further recognized that in some cases, the em-
ployer’s violations so damage the election process that
no additional unlawful conduct is necessary to restrain
employees from freely exercising their rights in a new
election. In the circumstances of the present case, as
described above, we find that the Board’s traditional re-
instatement and backpay remedies are inadequate to
erase the coercive effects of the Respondent’s unlawful
conduct so that employees may freely express their de-
sires in a second election.11
Moreover, we have considered the protection of the
Section 7 rights of all bargaining unit employees. The
Gissel Court found that a bargaining order in such cases
protects the rights of employees who favored representa-
tion, as demonstrated by prior majority support. How-
ever, because the order only establishes a bargaining
relationship for a reasonable period, after which a decer-
tification petition can be filed, the Court reasoned that
the order does not unduly prejudice the rights of employ-
ees who prefer another union or no union as their repre-
sentative. Having considered the interests of employees
who support and oppose the union, the Court concluded
that when “the employer’s unfair labor practices have the
tendency to undermine a union’s majority strength and
destroy election conditions, then ‘the only fair way to

10 328 NLRB 1058, 1059 (1999).
11 We note further that, as in M. J. Metal Products, the Respondent
has not asserted that a Gissel bargaining order is inappropriate because
of changed circumstances, including the passage of time or turnover
among unit employees or management officials. The District of Co-
lumbia Circuit found in Charlotte Amphitheater that the respondent
bears the burden of bringing such changed circumstances to the atten-
tion of the Board, and the Board has no duty to inquire whether the
passage of time or turnover may have diminished the effects of the
prior unfair labor practices or the need for a bargaining order. 82 F.3d
at 1080.
effectuate employee rights’ is to issue a bargaining or-
der.”12
Accordingly, for all of the reasons discussed above, we
conclude that a Gissel bargaining order is a necessary
and appropriate remedy in this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Debbie Reynolds Hotel, Inc.,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 28–RC–5468
be severed from Case 28–CA–14127, and that it is re-
manded to the Regional Director for Region 28 for action
consistent with this decision, as set out in the recom-
mended Order of the administrative law judge.

Nathan W. Albright, Esq. and Scott Feldman, Esq., for the Gen-
eral Counsel.
Norman H. Kirshman, Esq. and Roger Grandgenett, Esq., for
the Respondent/Employer.
William Sokol, Esq. and Brian Stedman, for the Un-
ion/Petitioner.
DECISION
ALBERT A. METZ, Administrative Law Judge. This case
was heard at Las Vegas, Nevada, on May 28–29 and July 1–2,
1997.1 The International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the United States
and Canada, Local 720, AFL–CIO (the Union or Petitioner),
has charged that Debbie Reynolds Hotel, Inc. (the Respondent
or Employer) has violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act).
In a related representation case, Case 28–RC–5468, the Re-
gional Director ordered that a hearing on the challenged ballots
of Jean Guilkey, Henry Cutrona, Christi Rivers, Perry Wolf,
Keith Alfeiri, Johnny Ford, and Joey Mele be consolidated for
hearing with the unfair labor practice case. Additionally, objec-
tions filed by the Petitioner and the Employer to the December
13, 1996 election were consolidated with this hearing.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. BACKGROUND
The Respondent operates a hotel, including a showroom and
museum, in Las Vegas, Nevada. The Respondent admits that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
12 M. J. Metal Products, supra, 1186, quoting Gissel, 395 U.S. at
612.
1 All subsequent dates refer to 1996 unless otherwise stated.
DEBBIE REYNOLDS HOTEL 469
labor organization within the meaning of Section 2(5) of the
Act.
In September Respondent’s employees Jean Guilkey, Mi-
chael Brister, and several other employees discussed the desir-
ability of being represented by the Union. Guilkey and Brister
then met with Union Representative Brian Stedman. Some
union meetings followed at which employees signed cards au-
thorizing the Union to be their collective-bargaining representa-
tive. The Union filed its representation petition on Friday, No-
vember 15 and also sent a letter to the Respondent demanding
recognition and bargaining on behalf of the unit employees. As
of that date the Union possessed nine cards from the following
employees: Keith Alfeiri, Michael Brister, Fabio Rossetti Bush,
Marco Rossetti Bush, Jean Guilkey, Kirk A. Robbins, Lolly E.
Senibaldi, Daniel T. Sullivan, and Jackie P. Wilson.
The following Monday, November 18, the unit employees
were notified they were to be laid off effective November 30
and the showroom work was to be subcontracted. The Respon-
dent refused to recognize the Union and a stipulated representa-
tion election was held on December 13.2 The results of the
election showed that approximately 18 voters cast 6 votes for
representation and 5 against representation. There were seven-
determinative challenged votes. As noted above, both the Em-
ployer and Petitioner also filed objections to the election. Cer-
tain alleged unfair labor practices, challenges, objections, and
the Union’s majority depend on the employment status of the
following individuals.
A. Jean Guilkey
The Respondent alleges Guilkey is a supervisor. She was
hired in September 1995 as a stagehand to work in the Respon-
dent’s showroom. Her work consisted mainly of operating a
spotlight and video for shows. She also assisted Stage Manager
Jim Carey in such matters as typing work schedules and memos
pursuant to his direction and filling out comp slips for him to
sign and authorize.
In approximately April 1996, Supervisor Carey left the Re-
spondent’s employment and Henry Cutrona was placed in
charge of the showroom with the title production manager. He
designated Guilkey as assistant production manager. As Cu-
trona’s assistant Guilkey continued doing her stage duties, as
well as such tasks as typing schedules, handing out pay checks,
turning in employees’ hours for payment, and placing orders
for stage materials. At Cutrona’s direction she typed a list of
responsibilities of the showroom personnel. This list designated
several personnel that employees were to look to for, “projects,
job descriptions, scheduling, complaints, problems, and any
other questions.” (GC Exh. 49.) Guilkey was not one of the
designated leaders. Ordering of materials was a routine task
that involved showroom personnel placing their needs on an
order board. Guilkey or employee Michael Brister would call in
the orders. Guilkey would type up schedules but this was a

2 The unit is: All lighting, sound, and stage technicians, spotlight op-
erators, museum control operators, audio-visual engineers and techni-
cians, and wardrobe attendants employed by the Employer at its Las
Vegas, Nevada location; excluding all other employees, office clerical
employees, professional employees, guards and supervisors, as defined
in the Act, as amended.
routine task which she credibly testified was directed by Cu-
trona.
On one occasion Guilkey gave her opinion of who should be
retained when the Respondent was laying off employees. This
occasion occurred in June 1996. In sum, I find the credited
evidence shows that Cutrona told Guilkey to make a list of the
employees that were eligible for layoff. They discussed em-
ployee Katie Douglas whom Cutrona wanted laid off but he
could not do that if they went by seniority. Guilkey said she
thought seniority should be used in determining layoffs and in
that case Douglas should not be laid off. A meeting with upper
management to discuss the layoffs was then held. Present in
this meeting were President Todd Fisher, Entertainment Direc-
tor Joseph Bianchi, Cutrona, and Guilkey. They discussed the
personnel and Guilkey stated her opinion. Katie Douglas was
laid off. I find that Guilkey’s opinions were considered in mak-
ing the layoff decisions but were not the final determinant.
Guilkey was placed on the Excelsior voter eligibility list by
the Respondent and served as the Union’s observer at the elec-
tion. When Guilkey was laid off by the Respondent on Novem-
ber 30 Respondent’s personnel records showed she was classi-
fied as “Showroom Crew.” The Respondent subsequently filed
an election objection alleging that Guilkey is a supervisor and
that she should not have been the Union’s election observer. As
noted, Guilkey’s vote in the election was also challenged.
The burden of proving that an individual is a supervisor is on
the party alleging that supervisory status exists. Health Care
Corp., 306 NLRB 63 fn. 1 (1992). I find that Guilkey’s duties
were of a routine and clerical nature not requiring the exercise
of independent judgment. The Respondent has not met its bur-
den of showing that Guilkey was a supervisor within the mean-
ing of Section 2(11) of the Act. I find that Guilkey was a statu-
tory employee, entitled to engage in protected union and con-
certed activity, vote in the representation election, and to serve
as union election observer. I recommend that the challenge to
Guilkey’s ballot be dismissed and her vote counted.
B. Keith Alfeiri
Keith Alfeiri signed his union authorization card on Novem-
ber 13 and he was discharged on November 22. He voted in the
December 13 election, and his vote was challenged by the Re-
spondent. I find that Alfeiri’s card should be counted in deter-
mining the Union’s majority status at the time of its November
15 demand for recognition. Additionally, I find that Alfeiri had
been discharged at the time of the December 13 election, and
that he had no reasonable expectation of employment after his
discharge. I therefore recommend that the challenge to Alfeiri’s
ballot be sustained.
C. Joey Mele
The Respondent challenged the vote of Joey Mele. Mele was
alleged in the Government’s complaint to be a supervisor
within the definition of Section 2(11) of the Act. The Respon-
dent admits his supervisory status at all material times. The
Petitioner offered no contrary evidence. I find that Joey Mele
was a statutory supervisor and was not eligible to vote in the
election. I recommend the challenge to Mele’s ballot is sus-
tained.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470
Mele also participated in union activity during the Union’s
organizational campaign. Mele signed a union authorization
card and attended one or two union meetings. The Government
does not rely on Mele’s card to support its argument that the
Union was the majority representative of the unit employees.
At one of the meetings Mele attended the union representatives
learned of his supervisory status. Mele was asked to leave and
immediately did so. There was no evidence that Mele solicited
any employee to sign authorization cards or that any card signer
was coerced into signing a card by Mele or anyone else. Mele
was not the instigator of the union movement as that role was
taken by Guilkey and Brister. Mele did not testify at the hear-
ing. I find that Mele’s participation in the union campaign was
peripheral and insufficient to taint the Union’s showing of in-
terest, other employees’ authorization cards for determining
majority status or the election results. A.P.R.A. Fuel Oil, 309
NLRB 480, 498–499 (1992); Cal-Western Transport, 283
NLRB 453 (1987); and Moe Warehouse & Accessory, 275
NLRB 1132, 1142 (1985).
D. Henry Cutrona
Henry Cutrona is the Respondent’s showroom production
manager and an admitted supervisor within the meaning of the
Act. (Respondent’s fourth amended answer.) The Respondent
placed his name on the Excelsior voting list as an eligible voter,
he voted in the election and his ballot was challenged by the
Union. As Cutrona is an admitted supervisor, I find that he was
ineligible to vote in the election and the challenge to his ballot
should be sustained.
E. Christi Rivers
Christi Rivers is the girlfriend of Respondent’s president,
Todd Fisher. Her name was on the eligibility list, she voted in
the election and her ballot was challenged by the Union. The
Respondent concedes that Rivers did not do any unit work and
that she was not eligible to vote in the election. It is recom-
mended that the challenge to Christi Rivers’ ballot be sustained.
F. Perry Wolf
Perry Wolf worked for the Respondent primarily as a janitor.
His name was on the Excelsior list, he voted in the election and
his vote was challenged by the Union. Wolf did not testify at
the hearing. His duties were generally to do cleanup work
which included the Respondent’s museum and showroom. One
witness remembered that Wolf would regularly work an aver-
age of 2 hours in the morning and 2 in the afternoon cleaning
up for shows in the stage area. He generally did not work dur-
ing shows. Wolf would occasionally assist in the showroom
area. He also would drive the Employer’s truck and trailer as
required including some out-of-state trips to pick up costumes
for museum displays. I find that Wolf was primarily a janitorial
employee with little community of interest to the operators,
technicians, and wardrobe attendants included in the unit de-
scription. I recommend the challenge to the ballot of Perry
Wolf be sustained.
G. Daniel Yuen
Employee Daniel Yuen’s name was included on the Excel-
sior list, but he apparently did not vote in the election. He
worked under Wolf and the record as a whole establishes that
Yuen did janitorial work. I find that Yuen does not have a
community of interest with unit employees and that he should
not be counted in determining the Union’s majority representa-
tive status in the appropriate unit.
H. Johnny Ford
The Employer challenged the ballot of Johnny Ford, assert-
ing he had been terminated and had no reasonable expectation
of reemployment. On November 15, 1996, Ford was told by
electrician Mike Deasy that he had been “fired” and to see Joe
Bianchi. Bianchi told him he was laid off for lack of work.
Bianchi also told Ford that he would be doing some “call
backs” at the beginning of the year. He gave Ford a copy of his
layoff slip which stated the reason for termination as lack of
work. Ford was not subsequently called to return to work. Bi-
anchi denied that he ever promised Ford any future employ-
ment but did not refute Ford’s version of their conversation.
A few days before the election on December 13, Ford had a
conversation with a coworker who told him that electrician
Mike Deasy had quit. Ford telephoned Fisher and asked if
Deasy’s job was open. Fisher said Deasy had quit and asked
him if he was interested in the position. Ford said he was.
Fisher said he would get back to Ford after the election, “cause
he needs to know what’s going on with the election.” Ford
never heard from Fisher. Fisher did not deny this conversation.
I find that Bianchi’s statement that he would be doing some
“call backs” at the start of the year was an indication that Ford
might be reemployed by the Respondent. Fisher’s inquiry of
Ford as to his interest in Deasy’s job and that he would get back
to him after the election was another indication of some interest
in employing Ford in the future. Finally, the Respondent did
not distinguish as to why Ford had any less expectation of re-
employment than others who were also laid off and voted with-
out challenge. I find that based on the objective facts Ford had
at least a reasonable expectation of future employment suffi-
cient to allow him to vote in the election. Hughes Christensen
Co., 317 NLRB 633 (1995). I recommend the challenge to
Johnny Ford’s ballot be overruled.
I. Other Employees
The names of the following individuals also appeared on the
Excelsior voter eligibility list and their status of inclusion or
exclusion in the unit must be considered in determining the
number of employees in the unit in order to ascertain the Un-
ion’s majority status.
Mike Deasy was the Respondent’s electrician. He was di-
rectly supervised by president, Todd Fisher, who set his sched-
ule. Unit personnel were supervised by other management
members. Deasy’s name did not appear on any unit schedules
that were introduced into evidence. Part of Deasy’s duties were
to do maintenance work in the showroom and museum. His
work shop was located in a different area of the hotel from both
the museum and showroom. There was some nonspecific testi-
mony that Deasy would on occasion fill in for stage crew mem-
bers. The regularity and time spent in this substitution as well
as his time spent doing work for the showroom and museum
were not established. Deasy was not laid off with the museum
DEBBIE REYNOLDS HOTEL 471
and stage employees who were let go on November 30. He
voted without challenge in the election. Deasy did not testify at
the hearing. I find that there is inadequate evidence to conclude
that Deasy had a sufficient community of interest with the unit
work to be included in determining the Union’s majority status.
Armando Gobbato was the Respondent’s carpenter. He voted
without challenge in the election. Gobbato was directly super-
vised by Fisher. His carpenter shop is located separately from
the stage and museum areas. Gobbato occasionally worked on
stage sets and other needs of the museum and showroom. The
time he spent on these tasks and the regularity of such work
was not established. He was not scheduled for work as part of
the showroom or museum crew. I find that Gobbato’s connec-
tion to unit work was not shown to be regular and that he
should not be included in the unit for purposes of determining
the Union’s majority status.
The parties entered into a stipulation during the hearing that
Randy Hendrickson is a supervisor and that his name should be
stricken from the eligibility list. Hendrickson is, therefore, not
considered part of the unit.
Carolyn and Heather MacMullen were showroom wardrobe
employees that had been terminated in June 1996. Their names
were included on the Excelsior voting list, but neither appar-
ently voted in the election. Carolyn, returned sometime in 1997
to work with the Debbie Reynolds Show as part of Reynolds
crew. As Reynolds’s son, Fisher, testified, Carolyn MacMullen,
“comes and goes with Debbie’s show.” I find that the
MacMullens were not part of the unit because they had no rea-
sonable expectation of employment with the Respondent hotel
and had not worked for the Respondent for approximately 5
months before the election. I, therefore, do not include either of
the MacMullens in assessing the Union’s majority status.
None of the other employees listed on the Excelsior voting
list (GC Exh. 9) were contested by any party and I include
those additional employees in calculating the Union’s majority
status.
II. SUMMARY OF CHALLENGES AND UNIT
COMPOSITION
In summary, it is recommended the challenges to the ballots
of Henry Cutrona, Christi Rivers, Perry Wolf, Keith Alfeiri,
and Joey Mele be sustained. It is further recommended that the
challenges to the ballots of Jean Guilkey and Johnny Ford be
overruled.
In light of the above-noted resolutions of employee status, I
find that at the time of the Union’s November 15 demand for
recognition the appropriate unit was composed of 13 employ-
ees. On November 15 the Union possessed nine valid
authorization cards, including Keith Alfeiri’s card. I find that
the Union’s majority representative status was demonstrated by
these valid authorization cards.

III. UNFAIR LABOR PRACTICES
A. Cutrona’s October Encounter with Guilkey
Guilkey testified that in October Cutrona approached her at
work and asked if she had any involvement with the Union.
Guilkey admitted she had. Cutrona inquired if the crew had
been talking to the Union about organizing and that he knew
that about half of the crew had some kind of involvement with
the union. Guilkey told him the crew was concerned about their
working conditions. Cutrona told her that Todd Fisher would
never allow employees to continue their union activity or per-
mit them to make the hotel a union house. Guilkey protested
that the employees had the legal right to organize if they chose.
Cutrona replied that would never happen on the property, that
Todd Fisher had not allowed it to happen with the engineers
previously, that Fisher would never allow a union on the prop-
erty and that if the employees tried to organize the Respondent
would close the showroom and fire them all. Cutrona denied
ever discussing unions with Guilkey. Considering the demeanor
of the witnesses, Guilkey’s detailed recitation of the conversa-
tion, and the record as a whole, I credit Guilkey’s testimony. I
find that Cutrona’s interrogation and threats are a violation of
Section 8(a)(1) of the Act.3
B. Events of November 15
1. Union’s demand for recognition
On November 15 the Union filed its representation election
petition with the Board and also sent a letter to the Respondent
demanding recognition and bargaining. The Respondent has at
all times refused to recognize and bargain with the Union.
2. Mele’s threats to Sullivan
Employee Daniel Sullivan testified that on November 15 he
was in the office area with Supervisor Joey Mele when Cutrona
came in and asked to speak privately with Mele. The two men
went to another office and talked for several minutes. Mele then
returned to where Sullivan was sitting. Mele told Sullivan that
Cutrona had just told him he “knew that there was an organiz-
ing campaign going on for the Union, and that if they found out
who it was that was involved. . . they were out of there.” Sulli-
van replied that this was what he expected from the Respon-
dent. Mele did not testify and the Respondent asserts that he
was a union supporter and thus did not bind the Respondent by
such statements. Cutrona denied ever making such a statement
to Mele. I found Sullivan to be a truthful witness whose de-
meanor impressed me as a person accurately relating what he
heard and observed. While the evidence supports the contention
that Mele had prounion feelings, that does not detract from his
threatening statement to an employee. I find that supervisor
Mele’s uncontroverted threat to Sullivan that the Respondent
would get rid of anyone who supported the Union is a violation
of Section 8(a)(1) of the Act.
3. Mele’s threats to Guilkey
Jean Guilkey testified that on November 15 when she arrived
at work she also had a conversation with Mele. Mele told her
that he had talked earlier in the day with Cutrona. Mele recited
that Cutrona said the Respondent had just been notified of the
Union’s election petition and asked if Mele knew anything
about the matter. Mele declined to answer the question. Mele
related that Cutrona said Fisher was angry and that anyone that
3 Guilkey also related similar conversations with Cutrona on earlier
occasions. These credited conversations were not alleged as unfair
labor practices in the complaint but reflect Respondent’s animus to-
wards unions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
was responsible for organizing the Union would be fired. I find
Mele’s uncontroverted threat to Guilkey is a violation of Sec-
tion 8(a)(1) of the Act.
C. Events of November 18
1. Respondent changes the showroom locks
When unit employees arrived at work on Monday, Novem-
ber 18, they found that they no longer had independent access
to their work locations because the locks had been changed. In
contrast to past practice, the employees were not provided new
keys. The locks had only been changed in the showroom and
museum areas. This same day the Respondent announced to the
unit employees that they were being laid off at the end of the
month. The Respondent justifies its changing of the locks as a
means to lessen thefts that had been occurring at the hotel. The
testimony shows that certain items had been taken from the
hotel but the timing of the lock change to these events was not
satisfactorily defined. The timing of the lock change to the
announcement that same day of the layoffs and the Union’s
demand for bargaining is significant. I find, based on the timing
of the change, the Respondent’s other unlawful conduct, and its
unsatisfactory explanation of the need to change the selected
locks, that the Respondent made the change to harass the unit
employees. The Respondent violated Section 8(a)(1) of the Act
by such harassment.
2. Counseling of Brister
On November 15 Michael Brister had been working the light
board for a show. Bianchi came in while the show was running
and asked Brister if one of the lights was out of place. Brister
admitted saying a light was out and “flippantly” telling Bianchi
that he would love to fix it for him but he had not paid yet.
Bianchi made no response to Brister’s comment.
On November 18 Brister was called to a meeting with Bian-
chi, Henry Ricci, Respondent’s former president and then a
consultant to the Respondent, and Judy DeCarlo, Respondent’s
Security Chief. Ricci recited what had happened regarding
Brister’s refusal to replace the light and his remarks to Bianchi.
Brister said he had been joking and that he had forgotten to fix
the light. Brister was told there was going to be a layoff of eve-
ryone on the crew and that he could either be laid off for cause
because of the incident or for lack of work like everyone else.
Ricci said the meeting was to determine which course of action
to take. Brister said he had been joking and apologized. The
supervisors discussed the matter outside Brister’s presence and
then told him they thought he was salvageable but needed to
work on his attitude. Therefore he was directed to attend two
counseling sessions with Ricci.
The Government alleges the November 18 meeting was in-
tended to direct Brister to counseling where he would be dis-
suaded from engaging in union activities. I find that the Re-
spondent had cause to discipline Brister because of his Novem-
ber 15 remarks to Bianchi. I find that the Respondent did not
violate the Act by having this meeting with Brister.
3. Announcement of layoff
Also on November 18 the Respondent called a meeting of
unit employees. They were told that they would be laid off
effective as of November 30. The employees were told that the
Respondent was working on an agreement for shows to work
the hotel under a subcontracting arrangement, and, if the shows
agreed, the employees would be working directly for them in
November. It was also discussed that Debbie Reynolds would
be appearing in a New Year’s Eve show at the hotel and that
they could work for that show. Additionally, it was announced
that things would continue as normal in January under the Re-
spondent’s plans.
D. Brister’s November 20 Counseling
On November 20 Brister attended a counseling session with
Ricci. Ricci asked Brister what problems he had noticed at the
hotel. Brister cited some examples and Ricci brought up the
subject of unions. Ricci said people unionize because they are
angry and are treated badly and the solution to that was for
management to correct the problems. When Brister asked Ricci
when the problems at Respondent’s hotel were going to be
corrected, Ricci said they were not. Ricci cited another hotel as
an example of the bad things that could happen with union
representation. He noted that all the employees at that hotel had
been laid off when they demanded a raise. Ricci told Brister
that he had been involved in union negotiations in the past. He
said when he first was employed by the Respondent, the maids
were trying to organize and he had counseled them as well.
Brister said he believed that union representation could cor-
rect some of the problems between management and employ-
ees. Ricci said that he did not feel that was true and the em-
ployees did not need union representation. Ricci told Brister
that what had been said was strictly confidential and he was not
to mention it to anybody. Ricci stated that if any other employ-
ees were confused about these sorts of issues that Brister could
tell them that they could come in and counsel with him anytime
they wanted. Brister said he would pass along the message.
Ricci said he could see that Brister was not going to be a prob-
lem anymore and he did not need to return for any more coun-
seling. Ricci did not testify at the hearing.
Ricci’s “counseling” session with Brister was shown to have
been used by the Respondent to subtly threaten Brister that
union representation would have adverse results to the employ-
ees. Ricci also suggested that the antidote for union representa-
tion was for management to correct problems. Ricci’s remarks
about union employees losing their jobs had particular reso-
nance when considered in relation to already announced layoff
of the unit employees and Respondent’s other unlawful con-
duct. I find that under all the circumstances the Respondent’s
counseling session of November 20 was a threat to employees
and a solicitation of grievances in violation of Section 8(a)(1)
of the Act.
E. Layoff and Subcontracting of Unit Work
The Respondent laid off most of the stage and museum em-
ployees, including Guilkey and Brister, on November 30. Some
of these employees worked on subsequent shows for subcon-
tractors. The Government alleges that Brister and Guilkey were
effectively discharged as of November 30 and other employees
were laid off because of their union activities. The Respondent
denies the employees protected activities had anything to do
with the layoffs. It is further alleged that the unilateral an-
DEBBIE REYNOLDS HOTEL 473
nouncement and implementation of the subcontracting were
violations of Section 8(a)(1) and (5) of the Act.
When the employees were laid off each was given a person-
nel form that stated the reason was “lack of work.” Shows,
however, continued to be performed at the showroom. The
Kenny Kerr Show played the hotel starting December 1. Fisher
testified that this show was contracted for on the basis of a
“four wall agreement.” He explained this type of contract
meant the independent producer of the show took the financial
risk and arranged all of the crew, etc., to run the show. The
hotel then was mainly renting the room to the show producer.
On December 10 the Respondent reaffirmed its subcontracting
intent when it announced in a memo to employees that it was
further subcontracting unit work to T. D. Productions (the Deb-
bie Reynolds Show). Shows continued to be produced at the
hotel at the time of the hearing in this case. No specific evi-
dence was offered of how the layoffs and subcontracting were
financially beneficial to the Respondent.
In December the production manager for the Kenny Kerr
Show, Strutt Hurley, hired the Respondent’s crew to work on
that production. This included Guilkey and Brister. Hurley
testified that the first part of December she had a conversation
with Bianchi. He told her he had a personal problem with Mike
Brister, and that he did not want him in the building. Hurley
protested that not having Brister made it difficult for her as she
needed him to program the lighting. Bianchi told Hurley to call
Fisher and discuss the matter with him. Hurley telephoned
Fisher and explained the problem. Fisher said they could work
something out. Hurley suggested that she needed Brister until a
replacement could be hired. Fisher said that she could use Bris-
ter for the time being and they would discuss it later. Brister
continued to work for Hurley until the Kenny Kerr show tem-
porarily stopped at the end of December and was replaced by
the Debbie Reynolds Show. Jean Guilkey also worked the en-
tire Kenny Kerr Show in December. Hurley testified both em-
ployees performed their work well.
The unit employees were notified in the December 10 memo
from Bianchi that the Debbie Reynolds’ Show would be ap-
pearing on New Year’s Eve and again in February. The memo
stated the productions would be four wall agreements and if
any employee was interested in working the shows they should
let Bianchi know of their interest in working “as subcontract
labor.” Bianchi noted that he was acting as Debbie Reynolds’
agent in that she had asked him to assemble a crew. (GC Exh.
5.) Brister and Guilkey expressed interest in working the shows
but neither was hired.
The Kenny Kerr Show started at Respondent’s showroom
again in January. Hurley hired both Brister and Guilkey to
again work the show. Before they started work Bianchi spoke
to Hurley about employing these two individuals. He told her
that he did not want Brister or Guilkey on the property as there
was a conflict with them. Hurley was concerned because she
needed qualified employees. Bianchi said the Respondent had
replacements they wanted her to use. Hurley testified she did
not have any choice but to refuse to employ Guilkey and Brister
because of Bianchi’s orders. Thus neither individual worked at
the hotel thereafter.
1. Guilkey and Brister
Bianchi testified that the reason he did not want Brister back
was a complaint Brister had made to management that he had
seen Bianchi using cocaine. The charge was investigated by the
Respondent and found to be unsubstantiated. Bianchi testified
the reason he did not want Guilkey back was because he con-
sidered she had been disloyal to the Respondent by becoming
involved in union activity:

Q. Now, did you ever tell Strutt Hurley that you'd pre-
fer that she didn’t hire Jean Guilkey?
A. [Bianchi] Yes.
. . . .
Q. Okay. And what motivated you to do that?
A. Jean Guilkey was a member of the management
team and had violated the company trust.
Q. By doing what?
A. Organizing for the union.
. . . .
Q. Okay. So you were, in effect, retaliating against
Jean Guilkey for her union activities. Correct?
A. I didn’t feel it as a retaliation, but—
Q. That’s what motivated you?
A. I think what motivated me was that this was an em-
ployee who was a member of the management team,
trusted and violated our trust.

[Tr. 624–625.]
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent’s action alleged to constitute discrimination in
violation of Section 8(a)(3). The elements commonly required
to support such a showing of discriminatory motivation are
union activity, employer knowledge, timing, and employer
animus. Once such unlawful motivation is shown, the burden of
persuasion shifts to the Respondent to prove its affirmative
defense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983); and
Manno Electric, 321 NLRB 278 (1996). The test applies re-
gardless of whether the case involves pretextual reasons or dual
motivation. Frank Black Mechanical Services, 271 NLRB 1302
fn. 2 (1984). “A finding of pretext necessarily means that the
reasons advanced by the employer either did not exist or were
not in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
The Government has met its Wright Line burden of showing
union activity, knowledge, timing, and animus. Brister was an
obvious union supporter who wore a union badge while at
work. Brister told Bianchi in their “counseling” session he
thought the Union could help the employees. Cutrona’s remarks
to Guilkey in October, cited above, show employer knowledge.
In that conversation Cutrona said that he knew about half of the
crew had some kind of involvement with the Union. Guilkey
was known to the Respondent for her union support having
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
been interrogated by Cutrona as early as October about her
interest in the Union. Most significant, the Respondent admits
that its refusal to allow her to be hired at the hotel after the lay-
off was due to her “violation of trust” for having engaged in
union activity. The timing of the subcontracting, the layoff,
threats, interrogations, and the efforts to ban Brister and
Guilkey from work on the Respondent’s premises, all followed
in short order after the commencement of the Union’s organiz-
ing campaign and demand for recognition. Finally, it is appar-
ent from the Respondent’s actions, both before and after the
layoff, that it vehemently opposed union organization and un-
dertook its own campaign of unlawful conduct to combat the
Union. I, therefore, find that Respondent’s union animus has
likewise been established.
It is apparent that Brister had incurred the wrath of Bianchi
for reporting his alleged cocaine use. The Respondent, how-
ever, never told Brister that he could not return to work for this
reason. Brister helped instigate the union movement at the ho-
tel. He talked to other employees about the Union and signed
an authorization card. Brister wore union insignia on his hat or
on his shirt lapel in front of management personnel. Brister
boldly told Ricci that he had been talking to union people and
thought that the Union could correct some of the employees’
problems. As a chief union supporter, Brister was a candidate
for fulfilling Fisher’s threats that he would never allow the
Union to represent the employees and would fire anyone who
supported the Union. I find that the Government has proven by
a preponderance of the evidence that Brister was singled out, at
least in part, because of his union activities for discharge. The
Respondent has not overcome that showing. I conclude that
Brister was effectively fired by the Respondent on November
30 when he was laid off because the Respondent did not want
him on the premises thereafter. I find that Brister’s discharge is
a violation of Section 8(a)(1) and (3) of the Act.
As already noted, Guilkey is found to be an employee within
the definition of the Act. The Respondent admitted she was
persona non grata for work on the hotel premises. The Respon-
dent offered a single reason for its action against Guilkey— her
disloyalty to the Respondent by engaging in union activity. I
find that the Respondent’s discharge of Guilkey is also a viola-
tion of Section 8(a)(1) and (3) of the Act.
Finally, the Government has shown that the Respondent car-
ried out its threats to do away with unit work if the employees
engaged in union activity. The Respondent immediately after
notification of the Union’s bargaining demand announced the
layoff of unit employees and the subcontracting of work. In
light of Respondent’s widespread threats of repercussions that
would follow union activity and the timing of the action, I find
that the Respondent discriminatorily subcontracted the unit
work. NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir.
1984). Even after the subcontracting the Respondent asserted
much control. Thus, Bianchi told Hurley the employees he did
not want her to hire. Bianchi’s memo of December 10 states
that he is acting as agent for the subcontractor Debbie Reynolds
in arranging employment for her show. (GC Exh. 5.) In sum, I
find that the Respondent sought to use the subcontracting, at
least in part, as a subterfuge to punish the unit employees for
their union activity, to assure that the unit work would be done
nonunion, to control who would ultimately work at the hotel,
and to avoid having to deal with the Union. I find the discrimi-
natory announcement and implementation of the subcontracting
of unit work, with the accompanying layoffs, were a violation
of Section 8(a)(1) and (3) of the Act.
2. The refusal to bargain and bargaining order
The Government asserts that the only appropriate remedy for
the Respondent’s unfair labor practices is a bargaining order.
The Supreme Court held in NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), “[If] the Board finds that the possibility of
erasing the effects of past [unfair labor] practices and ensuring
a fair election (or fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better protected
by a bargaining order, then such an order should issue.” See
Davis Supermarkets v. NLRB, 2 F.3d 1162, 1171 (D.C. Cir.
1993). I find this standard is appropriately applied in this case.
The Respondent’s threats of discharge, threats to cease and
move unit work, the discharges of Guilkey and Brister, and the
discriminatory and unilateral subcontracting of work with ac-
companying layoffs are all “hallmark” violations that justify the
invocation of a bargaining order remedy. Laser Tool, Inc., 320
NLRB 105 fn. 2 (1995); Taylor Machine Products, 317 NLRB
1187 (1995); and Q-1 Motor Express, 308 NLRB 1267, 1268
(1992). These unlawful actions were accomplished by high-
management officials who are still in command of the Respon-
dent’s business operations. Be-Lo Stores, 318 NLRB 1, 15
(1995); and Somerset Welding & Steel, 304 NLRB 32–34
(1991). The discriminatory subcontracting of work affected
each of the unit employees and is continuing. The unlawful
discharges of Brister and Guilkey had a further chilling effect
on the union support in this small unit of employees. The effect
of such widespread and serious unfair labor practices is not
easily abated by traditional remedies and the passage of time.
The Union has established through its authorization cards that it
was the majority representative of the employees. I shall, there-
fore, order a bargaining remedy which will date from the Un-
ion’s November 15 demand for recognition. Trading Port, Inc.,
219 NLRB 298, 301 (1975).
Subsequent to the Union’s November 15 demand date the
Respondent announced and implemented unilaterally the sub-
contracting of the unit work. The Respondent also unilaterally
laid off the unit employees. I find such actions are also an
unlawful refusal to recognize and bargain with the Union and
violations of Section 8(a)(1) and (5) of the Act.
F. Ford’s Inquiry About Work
As related above, in early December, employee Johnny Ford
telephoned Todd Fisher to discuss the availability of electrician
Mike Deasy’s job. Fisher confirmed that Deasy had quit and
asked Ford if he was interested in the position. Ford said he was
and Fisher told him he would get back to him about the matter
after the election because he needed to know what was going
on with the election. Ford never heard from Fisher. The Gov-
ernment alleges that this conversation was a promise of benefit
to Ford. While I have concluded above that the conversation
was an indication that Fisher would consider Ford for employ-
ment, I find that Fisher’s comments did not rise to the level of
DEBBIE REYNOLDS HOTEL 475
an unlawful promise of benefit. I find that Fisher’s remarks to
Ford did not violate Section 8(a)(1) of the Act.
G. Fisher’s Discussion of Future Work
In early December employee Jackie Wilson was present in
Todd Fisher’s office with Cutrona and Fisher. Fisher told Wil-
son that he was going to call all employees into his office to
have a private meeting. He stated that he was bringing work
into the hotel but he would not be able to do that if the employ-
ees selected the Union to represent them. Fisher said the Re-
spondent would go elsewhere and he did not feel he would be
able to support the hotel if the employees voted for the Union. I
find that Fisher’s threats were additional unlawful violations of
Section 8(a)(1) of the Act.
H. Fisher’s December 11 Employee Meeting
On December 11 Fisher held a meeting with the unit em-
ployees. Several employees testified as to what he said, but
Fisher did not testify concerning his remarks. In sum, Fisher
told the employees that union organization could be very detri-
mental to the hotel because of its financial condition. He told
the employees he would probably have to shut down some
productions and move them and the equipment to California.
Fisher warned that low budget producers would not be able to
afford the use of Respondent’s facilities if the Union repre-
sented them. He told the employees that in the worst case sce-
nario he would have to close the showroom.
In assessing whether an employer’s statements to employees
are threats or permissible opinions or predictions reasonably
based on fact, the statements are examined in the totality of the
relevant circumstances. NLRB v. Gissel Packing Co., 395 U.S.
575 (1969); and Action Mining, 318 NLRB 652, 654 (1995)
(The context of statements can supply meaning to otherwise
“ambiguous or misleading expression if considered in isola-
tion.) The context of Fisher’s statements is twofold. First, is the
unquestionably poor financial condition of the Respondent’s
business. The Respondent filed for Chapter 11 bankruptcy pro-
tection the day after the close of the hearing.4 Second, is the
background of Respondent’s unlawful conduct, including
threats that employees would be discharged if they engaged in
union activities, threats the Respondent would never permit a
union to represent the unit employees, threats to close the
showroom and the unlawful subcontracting, discharges, and
layoff of employees. Fisher’s statements reaffirmed the Re-
spondent’s extant unlawful conduct concerning union activities.
On balance, I find that Fisher’s expressions were thinly veiled
unlawful threats of reduced work, implied discharge and the
closing of the showroom consonant with Respondent’s other
illegal conduct. I find that Fisher’s remarks are violative of
Section 8(a)(1) of the Act. Harrison Steel Castings Co., 293
NLRB 1158–1159 (1989) (Statement concerning loss of busi-
ness found to be an unlawful threat pursuant to an assessment
of all relevant circumstances, including the employer’s other
unlawful conduct.)

4 United States Bankruptcy Court, District of Nevada, Case BK–S–
97–25089.
I. Fisher’s Interrogation of Wilson
On December 13 the inconclusive representation election
was held. Employee Jackie Wilson testified that on December
16 she was called into Todd Fisher’s office. Fisher told her that
the Union had made promises to employees and several people
had given him statements stating what the Union had promised
them. Fisher told her that she needed to write a statement say-
ing what the Union had promised her and give it to him before
the end of the day. Wilson told him the Union had not promised
her anything concerning the Respondent’s operations. Wilson
submitted the statement to the Respondent and it was intro-
duced into evidence from Respondent’s files. Fisher admitted
talking to Wilson about the Union in December but denied that
he asked her to give him a written statement about union prom-
ises. I found Wilson to be a credible witness whose testimony
was corroborated by the Respondent’s files. I do not credit
Fisher’s denial that he told Wilson to prepare a statement. I find
Fisher’s interrogation of Wilson as to what had been promised
her by the Union is an unlawful interrogation that violates Sec-
tion 8(a)(1) of the Act.
IV. OBJECTIONS TO THE ELECTION
A. Respondent’s Objections
The Respondent filed the following numbered objections to
the election:
1. Prior to the election the Union promised voters that the
Union would obtain jobs for them through the Union’s hiring
hall if the Union won the election and thereafter offered jobs to
certain voters. Evidence was introduced that the Union had told
some employees they could get referrals to other employment
through the Union’s hiring hall. I find that these representations
are recitations of the advantages of registering for work through
the hiring hall. The same is true of any ensuing offers of work. I
find these actions are not objectionable conduct. It is recom-
mended that the Employer’s objection 1 be overruled.
2. Prior to the election the Union promised a discount on un-
ion membership fees if the Union won the election. I find that
there is no credible evidence to support Employer’s Objection
2. I recommend that objection 2 be overruled.
3. The Union’s designated election observer was a supervi-
sor within the meaning of the Act. The Employer’s Objection 3
relates to the fact that Guilkey served as the Union’s observer at
the December 13 election. As Guilkey is found to be an em-
ployee within the definition of the Act, I recommend that the
Employer’s Objection 3 be overruled. In sum, I find that the
Respondent’s objections to the election are without merit.
B. Petitioner’s Objections
As fully set forth below in the Order, certain challenges to
the election are to be counted and, regardless of the outcome of
the count, a bargaining order is to be imposed against the Re-
spondent. Therefore, it is not necessary to rule on the Union’s
objections to the election. However, should any reviewing au-
thority disagree with my conclusion that a bargaining order is
essential to remedy the unfair labor practices found in this case,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
I do make the following findings regarding the Petitioner’s
numbered objections.5
1. The Employer placed the names of several ineligible vot-
ers on the Excelsior list. As noted above several ineligible per-
sons were named on the Excelsior voting list. The Union did
not question the content of the list prior to the election. The
Board does not mechanically apply the Excelsior list require-
ments. Telonic Instruments, 173 NLRB 588 (1969). The Board
does not, however, intend that an employer is vested with
unlimited discretion regarding the content of the list. Ponce
Television Corp., 192 NLRB 115, 116 (1971). In considering
the possible adverse effect that the expanded list may have had
in this case, I conclude that this action was not so prejudicial as
to warrant setting aside the election. I, therefore, recommend
that Petitioner’s Objection 1 be overruled.
2. The Employer intimidated eligible voters by threatening
the loss of employment. As found above, the Respondent on
several occasions threatened unit employees with loss of em-
ployment if they engaged in union activity or selected the Un-
ion as their representative. I recommend that Petitioner’s Ob-
jection 2 be sustained.
3. The Employer made promises of benefit. I have found that
the Respondent did not unlawfully make promises of benefits to
employees. I recommend that Petitioner’s Objection 3 be over-
ruled.
4. The Employer publicly insulted and incited union support-
ers. I find that there is no substantial credible evidence to sup-
port this Petitioner’s objection. I recommend that Petitioner’s
Objection 4 be overruled.
5. The Employer made material misrepresentations concern-
ing the Union. I find that there is no substantial credible evi-
dence to support this Petitioner’s objection. I recommend that
Petitioner’s Objection 5 be overruled.
6. The Employer threatened to close the facility and/or take
retaliatory measures if the Union won the election. The Re-
spondent has been found to have unlawfully threatened to close
the showroom and move work and equipment to California.
Additionally, the Respondent has been found to have threatened
the discharge of employees for engaging in union activity. I
recommend that Petitioner’s Objection 6 be sustained.
CONCLUSIONS OF LAW
1. Debbie Reynolds Hotel, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United States
and Canada, Local 720, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for collective-bargaining
purposes:

All lighting, sound, and stage technicians, spotlight operators,
museum control operators, audio-visual engineers and techni-
cians, and wardrobe attendants employed by the Employer at
its Las Vegas, Nevada location; excluding all other employ-

5 The Union did not file a brief or otherwise argue what specific evi-
dence related to its objections.
ees, office clerical employees, professional employees, guards
and supervisors, as defined in the Act, as amended.

4. At all times since November 13, 1996, the Union has
been, and is now the exclusive representative of the employees
in the above-described unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. The Respondent has violated Section 8(a)(1) and (3) of the
Act.
6. By refusing to bargain with the Union since November 15,
1996, while engaging in a campaign of unfair labor practices
that undermined the Union’s majority status and impeded the
election process, the Respondent violated Section 8(a)(1) and
(5) of the Act.
7. A bargaining order is necessary to remedy the Respon-
dent’s unfair labor practices.
8. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondent has not violated the Act except as specified.
10. The challenges to the ballots of Henry Cutrona, Christi
Rivers, Keith Alfeiri, Perry Wolf, and Joey Mele, are sustained.
The challenges to the ballots of Jean Guilkey and Johnny Ford
are overruled.
11. The Employer’s objections to the election are overruled.
The Petitioner’s Objections 2 and 6 are meritorious and consti-
tute objectionable conduct affecting the results of the represen-
tation election held on December 13, 1996, in Case 28–RC–
5468. All other Petitioner’s objections are overruled.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist from this conduct.
The Respondent having discriminatorily discharged Jean
Guilkey and Michael Brister and discriminatorily laid off unit
employees it must offer them reinstatement to their former
positions, without prejudice to their seniority or other rights and
privileges, or if any such positions do not exist, to a substan-
tially equivalent position, dismissing if necessary any employee
hired to fill said position, and to make them whole for any loss
of earnings and other benefits they may have suffered, com-
puted on a quarterly basis, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Further, I shall order the Respondent to rescind its discrimi-
natory and unilateral subcontracting of unit work.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
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.
DEBBIE REYNOLDS HOTEL 477
ORDER
The Respondent, Debbie Reynolds Hotel, Inc., Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge, loss of work, or
the closing of the facility because they engage in union activi-
ties.
(b) Threatening employees that the Respondent will not
permit the Union to represent its employees.
(c) Interrogating employees concerning their union sympa-
thies or activities.
(d) Harassing employees because of their union activities.
(e) Soliciting employees’ grievances in order to undermine
union activity.
(f) Discharging employees, discriminatorily subcontracting
unit work, laying off employees, or otherwise discriminating
against them in order to discourage union activities.
(g) Refusing to recognize and bargain with the Union as the
collective-bargaining representative of the unit employees.
(h) Subcontracting unit work or laying off employees with-
out notice to and bargaining with the Union.
(i) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jean
Guilkey, Michael Brister and any laid off unit employees, full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(b) Make Jean Guilkey, Michael Brister, and any laid off unit
employee, whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Jean
Guilkey and Michael Brister, and within 3 days thereafter no-
tify these employees in writing that this has been done and that
the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(e) Recognize, and, on request, bargain with the Union as the
exclusive collective-bargaining representative of the employees
in the following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in a signed agreement:

All lighting, sound, and stage technicians, spotlight operators,
museum control operators, audio-visual engineers and techni-
cians, and wardrobe attendants employed by the Employer at
its Las Vegas, Nevada location; excluding all other employ-
ees, office clerical employees, professional employees, guards
and supervisors, as defined in the Act, as amended.

(f) Rescind any outstanding subcontracts for unit work.
(g) Within 14 days after service by the Region, post at its fa-
cilities in copies of the attached notice marked “Appendix.”7
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately 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 al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 3, 1997.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 28–RC–5468 be
severed from Case 28–CA–14127, and remanded to the Re-
gional Director for Region 28, that the ballots of Jean Guilkey
and Johnny Ford be opened and counted by the Regional Direc-
tor in accordance with the Board’s Rules and Regulations, and
that he prepare and serve on the parties a revised tally of bal-
lots. If the revised tally in this proceeding reveals that the Peti-
tioner has received a majority of the valid ballots cast, the Re-
gional Director shall issue a certification of representative. This
certification of representation shall be in addition to the bar-
gaining order. A.P.R.A. Fuel Oil, 309 NLRB 480, 482 (1992);
and Eddyleon Chocolate Co., 301 NLRB 887, 892 (1991). If,
however, the revised tally shows that the Petitioner has not
received a majority of the valid ballots cast, the Regional Direc-
tor shall set aside the election, dismiss the petition, vacate the
proceedings in Case 28–RC–5468, and the bargaining order
alone shall take effect. Moe Warehouse & Accessory, 275
NLRB 1132 fn. 1 (1985).
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

7 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
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 representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge employees, discriminatorily sub-
contract their work, lay off employees or otherwise discrimi-
nate against them in order to discourage their support for the
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and Can-
ada, Local 720, AFL–CIO or any other labor organization.
WE WILL NOT threaten employees with discharge, loss of
work, or the closing of the facility because they engage in un-
ion activities.
WE WILL NOT threaten employees that we will not permit
the Union to represent its employees.
WE WILL NOT interrogate employees concerning their un-
ion sympathies or activities.
WE WILL NOT harass employees because of their union ac-
tivities.
WE WILL NOT solicit employees’ grievances in order to
undermine union activity.
WE WILL NOT refuse to recognize and bargain with the
Union as the collective-bargaining representative of the unit
employees.
WE WILL NOT subcontract unit work or lay off employees
without notice to and bargaining with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL recognize, and, on request, bargain with the Un-
ion as the exclusive collective-bargaining representative of the
employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:

All lighting, sound, and stage technicians, spotlight operators,
museum control operators, audio-visual engineers and techni-
cians, and wardrobe attendants employed by us at our Las
Vegas, Nevada location; excluding all other employees, office
clerical employees, professional employees, guards and su-
pervisors, as defined in the Act, as amended.

WE WILL rescind any outstanding subcontracts for unit
work.
WE WILL, within 14 days of the Board’s Order, offer Jean
Guilkey, Michael Brister, and any laid-off unit employees, full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Jean Guilkey, Michael Brister, and any
laid-off unit employee, whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Jean Guilkey and Michael Brister, and WE WILL,
within 3 days thereafter, notify them in writing that this has
been done and that their discharges will not be used against
them in any way.

DEBBIE REYNOLDS HOTEL, INC.