Desert Inn & Country Club

National Labor Relations Board - Board Decisions

Sep 29, 1975

220 N.L.R.B. 877 (N.L.R.B. 1975)

DESERT INN & COUNTRY CLUB
Summa Corporation, d/b/a Desert Inn & Country
Club and Brotherhood of Railway , Airline & Steam-
ship Clerks, Freight Handlers, Express and Station
Employees, (AFL-CIO) System Board of Adjust-
ment # 451. Case 31-CA-4889
September 29, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 24, 1975, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding . Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Summa Corporation, d/b/a
Desert Inn & Country Club, Las Vegas, Nevada, its
officers , agents, successors , and assigns , shall take
the action set forth in the said recommended Order.
DECISION
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was tried before me in Las Vegas, Nevada, on May 12,
1975. The charge was filed November 18, 1974, and
amended December 11, by Brotherhood of Railway, Air-
line & Steamship Clerks, Freight Handlers, Express and
Station Employees (AFL-CIO) System Board of Adjust-
ments #451 (herein called the Union). The complaint is-
sued February 24, 1975, was amended during the trial, and
alleges violations by Summa Corporation d/b/a Desert
Inn & Country Club (herein called Respondent) of Section
8(a)(1) and (4) of the National Labor Relations Act.
The parties were given opportunity at the trial to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally . Briefs were filed for the General
Counsel and Respondent.
II. ISSUES
877
The issues are whether Respondent:
(a) Since about November 21, 1974, has refused to re-
hire .13 former employees I because of their being named in
an unfair labor practice charge against Respondent, there-
by violating Section 8(a)(4) of the Act.
(b) From October to December 1974, by certain of its
agents and supervisors, threatened employees with closure
of the business if they chose the Union to represent them;
interrogated employees concerning the union; told former
employees they would not be considered for rehire because
of a pending unfair labor practice charge against Respon-
dent; and told a former employee he would be considered
for rehire only if he withdrew an unfair labor practice
charge against Respondent, in each instance violating Sec-
tion 8(a)(1) of the Act.
III. JURISDICTION
Respondent, Summa Corporation , is a Nevada corpora-
tion , headquartered in Las Vegas , engaged in the operation
of hotels and casinos, including the Desert Inn & Country
Club. Its annual gross income exceeds $500 ,000, and it an-
nually purchases and causes to be delivered to Nevada di-
rectly from points outside the State goods and materials
valued in excess of $50,000.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
IV. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The 13 former employees were discharged by Respon-
dent at various times from August 3, to September 21,
1974. Eleven of the 13 were blackjack dealers, and were
discharged pursuant to the economically mandated shut-
down of six blackjack tables. Seniority was not a factor in
their selection; one had been with Respondent 13 years,
and a number for several years. The other two, Bobby Mc-
Beth and Carl Stockman, were craps dealers and were dis-
charged for cause. The original charge herein, filed No-
vember 18, 1974, and served on Respondent November 21,
alleged that these discharges violated Section 8(a)(3) of the
Act. The amended charge, filed December 11, added an
allegation that Respondent had refused to rehire these peo-
ple because of the original charge, thereby violating Sec-
tion 8(a)(4). The legality of the discharges is not now in
issue.
An NLRB election was held among Respondent's deal-
Vincent Choltko , Michael Crisci, Robert Dillan , Sam Gianconteri, Jo-
seph Guarino, Sherman Jarrett , Terry Lupishansky , Alfred Marquez, Bobby
McBeth , Alfredo Salazar, Leonardo Small, Carl Stockman , and George Tot-
ton
220 NLRB No. 146
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers on November 9, 1974.2 About 3 weeks before the elec-
tion, Frank Randall, a floorman for Respondent and an
admitted supervisor, told Allen Britton, a twenty-one deal-
er, that "a friend" had told him that Respondent would
close the hotel if the Union won the election. Randall did
not divulge to Britton the identity of the "friend."
About a week before the election, Britton asked Michael
Bonfiglia , Respondent 's assistant casino manager and an
admitted supervisor, if the dealers could use the Sky Room
at the Desert Inn for a victory party should the Union win.
Bonfiglia voiced assent . Two or three days before the elec-
tion, however, Bonfiglia told Britton he was not sure there
even would be a Sky Room after the election in view of the
rumor he had heard that Respondent would close the hotel
if the Union won . Britton laughed in response . The record
suggests that Britton and Bonfiglia engaged in some good-
natured "needling" of each other in anticipation of the
election. Britton was one of the more ardent union advo-
cates among the dealers.
The Union received a majority of the votes in the elec-
tion. Two days later, V. E. (Gene) Hamm, Respondent's
manager of labor relations , summoned Dealer Bruce Roth
to Hamm's office . There, in the presence of Bill Sears, a
personnel manager, Hamm explained to Roth that he
wanted to find out if the Union had made any misrepre-
sentations before the election , then asked Roth if he would
object to some questions about the last preelection cam-
paign meeting . Hamm added that this was to be "on a
voluntary basis with no reprisals whatsoever." Roth replied
that he "would not mind at all," whereupon Hamm asked
him what had happened at the meeting and who had at-
tended. Hamm credibly testified that his purpose in ascer-
taining who attended was to isolate those, in addition to
Roth, whom he might interview about the meeting. Hamm
later prepared an affidavit from this interview, which Roth
signed. Respondent submitted it to the NLRB in support
of objections to the election. Hamm followed this proce-
dure with other dealers as well .3
Effective November 12, there was a shakeup in the top
management of the Desert Inn, Don Speer becoming gen-
eral manager . Speer previously had been assistant casino
manager at the Sands, a Las Vegas hotel and casino under
the same corporate ownership as the Desert Inn. Among
Speer's responsibilities in the new job was the hiring of
dealers. Speer testified that his policy was and is to hire
dealers of whom he has personal knowledge; that he will
not hire on a "cold recommendation."
Within a week of Speer's taking over, Joe Buckley,
Respondent's head of personnel, mentioned to him that
some of the 13 former employees had come to Buckley
about getting rehired. Buckley asked Speer's "feeling," and
Speer stated his hiring policy, above set forth. The original
charge, as previously mentioned, was served November
21-a day or so after this conversation. Speer credibly tes-
' Case 31-RC-2967.
3 Hamm testified that he acted in advice of counsel in talking to the
dealers . Of particular concern was a rumor that the Union, in preelection
propaganda , had materially misrepresented benefits it was able to obtain for
dealers in San Juan, Puerto Rico. The objections were as yet undisposed of
at the time of trial.
tified that, of the 13 former employees named in the
charge, only one meant anything to him. That was Sam
Gianconteri, whom Speer did not know, but whose uncle
had worked for Speer previously.
On November 29, the aforementioned Allen Britton and
Vincent Choltko, one of the 13 former employees, called
upon Speer in his office. They announced that they had
come on behalf of the 13 former employees; and, mention-
ing that Respondent had hired some new dealers, suggest-
ed that it would be a nice Christmas present for the former
employees were Speer to rehire some of them. Speer replied
that it was his policy to hire only those with whom he had
some personal acquaintance; and that, while there perhaps
were some capable dealers among the 13, he did not know
any of them. He continued that the matter was out of his
hands and in the hands of Respondent's attorneys because
of the pending unfair labor practice charge; and expressed
concern that, should any of the 13 be rehired with things in
that posture, it might bring forth additional charges. Chol-
tko, by then on the Union's payroll, raised the possibility
of getting the charge dropped and said he "would guaran-
tee" that no new charges would be filed if the men were put
back to work. Speer persisted that he could not move with-
out approval of the attorneys and Respondent's personnel
office.
On December 3, while applying for rehire, Bobby Mc-
Beth was told by a secretary that the 13 former employees
were "in a delicate situation," and that they all had to be
"cleared" through the personnel office.4 McBeth was re-
ferred to Labor Relations Manager Hamm later in the
same transaction. Hamm told him, during the ensuing con-
versation, that he would rehire all of the former employees
if it were his decision, but that it was up to Speer. Hamm
then said, according to McBeth, that he would assemble
the applications of the former employees "in a package and
take them up to Mr. Speer and see what he could do about
getting us rehired, but he would make it a condition that
we drop the unfair labor practice charges." McBeth testi-
fied that he told Hamm that the Union, not he, filed the
charge.
Hamm, in his testimony, denied saying to McBeth that
rehire would be conditioned upon the charge being
dropped. His version was that he commented that "a ton of
unfair labor practices" had been filed; that even McBeth
had filed "for god sake." McBeth responded that he did
not "know a thing about it," prompting Hamm to say:
"Why don't you have it withdrawn then, if you don't know
anything about it?" McBeth answered that it was the
Union's doing, not his. This conversation continued, ac-
cording to Hamm, with his telling McBeth to fill out an
application, adding this caveat: "I want to make it real
candid with you, I can't go over there and tell Don Speer
that he's going to rehire you. It certainly is out of the realm
of my prerogative ...." Hamm closed the conversation,
he testified, by raising a possibility that another of Summa
Corporation's "houses" might consider hiring McBeth.
To the extent that his version differs from McBeth's, and
4 McBeth identified this person as Speer's secretary . Her name is not
disclosed on the record. Nor does the record otherwise reveal her position
with Respondent , or the basis for her characterization of the situation as
"delicate "
DESERT INN & COUNTRY CLUB
specifically concerning his denial that he said rehire would
be conditioned upon dropping the charge, Hamm is cred-
ited . Hamm impressed me as a conscientious and able wit-
ness . Were he inclined to embroider, moreover, it is likely
he would have denied suggesting to McBeth , in any con-
text, that he have the charge withdrawn. It is concluded
that McBeth, while generally a capable witness, "read too
much between the lines" of Hamm 's utterances , assuming
without warrant the imposition of the condition.
Eleven of the 13 former employees applied for rehire-
two in August; six in November (four before November
21); and three in December.5 The two previously dis-
charged for cause, McBeth and Stockman, applied Decem-
ber 3. Respondent hired two new dealers in October; six in
November (four by Speer before November 21); eight in
December; four in January 1975; five in February; six in
March; and two in April. Speer credibly testified that each
of those hired by him was somehow known to him person-
ally, demonstrating consistency with his stated hiring poli-
cy. The connection, however, was not in all instances relat-
ed to the gambling industry. For example, Ronald
Cummings , hired December 27, had worked as a stock-
broker with Speer's son ; Gerald Daniels, hired January 15,
had "married my sister 's nephew" ; and Clayton Chadwell,
hired January 31, had worked as a stockbroker with Speer's
son-in-law. Speer further convincingly testified of his "un-
derstanding" that the 11 discharged incidental to the shut-
down of the tables were selected because they were "the
least competent dealers regardless of the length of time
they had been there."
B. Discussion
8(a)(4). It is concluded that the weight of evidence fails
to support the General Counsel's contention that the 13
former employees, or any of them, were denied rehire be-
cause of the charge. The reasons for this conclusion are
these:
(a) Both before and after learning November 21 of the
charge-i.e., to Buckley before November 21 and to Brit-
ton and Choltko on November 29-Speer stated his policy
of hiring only dealers with whom he had personal acquain-.
tance.
(b) In addition to credibly testifying of his hiring policy,
Speer credibly testified that he did not have the requisite
acquaintanceship with any of the 13 in question, but that
he did have with each of those he hired.
(c) Despite the pendency of applications from some of
the 13, Respondent hired several new dealers before No-
vember 21, of whom four were hired by Speer after his
takeover, which tends to show the existence of consider-
ations independent of the charge for not hiring the 13.
(d) Speer's saying to Britton and Choltko on November
29 that, because of the charge, the question of rehiring the
13 was out of his hands, etc., was not the equivalent, by
any stretch of linguistic construction , of saying that the
charge was a factor in their not being rehired . Perhaps a
more tenable construction, particularly since Speer just
5 Joseph Guarino and Terry Lupishansky did not apply.
879
previously had explained his position vis-a-vis the 13 in
terms of his hiring policy, is that he would not hire any of
them in departure from his policy unless so advised by
Respondent's attorneys.
(e) The characterization, attributed by McBeth to
Speer's secretary, that the situation concerning the 13 was
"delicate," is meaningless in divining Respondent's reasons
for their nonhire. Her verbiage is subject to a variety of
interpretations, not all of which are freighted with damning
purport; besides, the record fails to establish with any con-
clusivity who this person is or by what process she might
have arrived at her characterization.'
(f) Two of the 13 were discharged for cause, and the
remaining 11 were selected for discharge in disregard of
seniority-and thus presumably for qualitative reasons,
which was Speer's understanding-a matter of very few
months before Speer's takeover. Even disregarding Speer's
general hiring policy, it is hardly cause for suspicion that
he, newly elevated to the general managership, would take
heed of the considerations, rooted in conduct and compe-
tence, underlying such recent discharges.
(g) Finally, Hamm's alleged conditioning of McBeth's
rehire upon the dropping of the charge has been discredit-
ed.
8(a)(1). The alleged violations of Section 8(a)(1) relate
to:
(a) Floorman Randall's telling Britton before the elec-
tion that a friend had said the hotel would be shut down if
the Union won.
(b) Assistant Casino Manager Bonfiglia's preelection
mention to Britton of the rumor that the hotel would shut
down should the Union win.
(c) Labor Relations Manager Hamm's postelection in-
terview with Roth anticipatory to Respondent's filing ob-
jections to the election.
(d) Speer's comments to Britton and Choltko on No-
vember 29 that, because of the charge, the matter of rehir-
ing the 13 was out of his hands, etc.
(e) Hamm's allegedly telling McBeth on December 3
that rehire was contingent upon the charge being dropped.
As previously determined, while Hamm suggested to
McBeth on December 3 that he have the charge withdrawn
in light of McBeth's assertion that he knew nothing about
it, Hamm did not say that rehire was contingent upon its
being dropped. And, as earlier discussed, only by contor-
tion can Speer's November 29 comments be interpreted as
meaning that Respondent would not rehire the 13 because
of the charge. It therefore is concluded that the complaint
is without merit as concerns Hamm's December 3 and
Speer's November 29 utterances.
Regarding Hamm's postelection interview of Roth, it
was for the purpose of seeking information in support of
objections, pertained to conduct by union officials rather
than employees, was conducted in an atmosphere free of
antiunion tension, and was prefaced by Hamm's explana-
tion of its purpose and assurance that participation was
,.on a voluntary basis with no reprisals whatsoever." It is
concluded that the interview's purpose was legitimate, and
6 In other words, McBeth 's version of the secretary's comments was hear-
say which, on the present record, does not come within the admissions
exception.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the manner of its conduct did not transgress permissi-
ble limits.7
That leaves the two statements to Britton , one by Ran-
dall, one by Bonfiglia , that either friend or rumor had it
that the hotel would be shut down if the Union won the
election . These statements violated Section 8(a)(1) by
whatever standard and whatever their attribution. More-
over, in view of the apparently unsettled status of the rep-
resentation case and hence the continuing possibility of a
rerun election , it is concluded that those violations are suf-
ficiently important to warrant a remedial order.
CONCLUSIONS OF LAW
1. By telling an employee of stories that Respondent
would shut down its hotel should the Union win an NLRB
election, as found herein , Respondent engaged in unfair
labor practices within Section 8(a)(l) of the Act.
2. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
3. Respondent did not otherwise violate the Act as al-
leged by the General Counsel.
RECOMMENDED ORDER e
Respondent, Summa Corporation d/b/a Desert Inn &
Country Club, Las Vegas, Nevada, its officers , agents, suc-
cessors , and assigns , shall:
7 See W. T. Grant Company, 185 NLRB 88 (1970), fn. 1, in which the
Board indicates that the guidelines set forth in Johnnie 's Poultry Co, 146
NLRB 770, 774-776 (1964), apply to the conduct of management represen-
tatives in their "investigation in the preparation of objections to the elec-
tion."
8 All outstanding motions inconsistent with this recommended Order
hereby are denied . In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, and recommended Order herein shall, as provided
in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions , and Order , and all objections thereto shall
be deemed waived for all purposes.
1. Cease and desist from intimating to employees that it
will shut down its business should the Union win an elec-
tion among its dealers.
2. Take the following affirmative action:
(a) Post at the Desert Inn & Country Club copies of the
attached notice marked "Appendix." Copies of said no-
tice, on forms provided by the Regional Director of Region
31, after being signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees customarily are post-
ed. Reasonable steps shall be taken to ensure that said no-
tices are not altered, defaced, or covered by other material.
(b) Notify the Regional Director of Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Those allegations herein found to be without merit are
dismissed.
9In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT intimate to our employees that we will
shut down our hotel and casino should they choose, in
an NLRB election, to be represented for purposes of
collective bargaining by Brotherhood of Railway, Air-
line & Steamship Clerks, Freight Handlers , Express
and Station Employees (AFL-CIO), or any other la-
bor organization.
SUMMA CORPORATION d/b/a DESERT INN & COUNTRY
CLUB