Desert Inn Country Club And Spa

National Labor Relations Board - Board Decisions

Jan 9, 1987

282 N.L.R.B. 667 (N.L.R.B. 1987)

DESERT INN COUNTRY CLUB
Suma Corporation d/b/a Desert Inn Country -Club
and Spa and Local Joint Board of Las Vegas;
Culinary Workers Union, Local 226, and Bar-
tenders Union, Local 165, affiliates of the Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL-CIO. Case 31-CA-14451
9 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 12 March 1985 Administrative Law Judge
Russell L. Stevens issued the - attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief:
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judges rulings, findings, and
conclusions only to the extent consistent with this
]Decision and Order.
From 2 April to 6 June 1984,1 the Respondent's
union represented employees engaged in a strike at
the Respondent's facility. Out of a total work force
of approximately 1822 employees, and a union-rep-
resented force of 873 employees, some 853 employ-
ees participated in the strike at its inception. Ap-
proximately 200 union members either did not go
on strike or returned to work for the Respondent
before the strike ended. At the conclusion of the
strike, the Unions and the Respondent entered into
a collective-bargaining agreement effective from 7
June through 1 June 1989.
The judge found that the strike was a long and
bitter one, involving violence and ill-will, and he
found that a "tense and adversarial air com-
menced"' after the strikers returned to work. On 24
August, some 2-1/2 months after the strike had
ended, the Respondent's president, Burton Cohen,
distributed a letter to those regular full-time em-
ployees who had worked during the strike, includ-
ing persons who had worked in classifications rep-
resented by the Unions, inviting each of them and
a guest to an "appreciation party." The letter
began, "Thank you for your consistent loyalty to
the Desert Inn. It is because of you and your
fellow co-workers that we were able to survive our
recent labor dispute and continue our first class
service to our valued customers." In a postscript,
the letter asked the employees to contact their su-
pervisors if their work schedules conflicted with
the party so that their hours could be reviewed for
possible rescheduling so that they could attend the
i All dates are 1984 unless otherwise noted.
667
party. The party was limited to those employees
who had not struck and those employees who had
abandoned the strike.
On 4 September 168 persons attended the party
at the Respondent's facility. The schedules of at
least three employees were adjusted so that they
could attend the party, and some of the employees
who had participated in the strike, and therefore
were not invited, worked at the party for the Re-
spondent. Food and liquor were served, a Dixie-
land band performed, and there was dancing to
disco music. The cost to the Respondent was ap-
proximately $4000.
At the hearing, Cohen -testified that he had- two
reasons for giving the party. First, he wanted to
express the Respondent's appreciation to the non-
striking employees for the work they had per-
formed during the strike. The second reason was
that Cohen wanted to "cool them out." He indicat-
ed this expression meant "to try to calm somebody
down and put oil on the water." In this regard, he
noted that although he had sent a letter to all the
employees on the'strike's conclusion asking them to
put the strike behind them, that there was a "great
deal of animosity going on." He indicated that
some employees who had worked during the strike
had been fined by the Unions, and he stated that
subsequent to the strike "[t]here was some ' mali-
cious mischief going on with cars."
The judge found that the Respondent did not
violate the Act by giving ' the party. Relying on
Huck Mfg. Co. v. NLRB, 693 F.2d , 1176 (5th Cit.
1982), enfg. in part and vacating in part 254 NLRB
739 (1981), he found that the past strike could not
have been affected by the party, and that any tend-
ency to deter future strike activity was minor. The
judge ' also' noted the Respondent's cost of the party
was perhaps $25 to $30 per person and found that,
although the "monetary triviality" of the party was
not controlling, it was a factor to be considered in
balancing the interests of the Unions and the Re-
spondent. He further found no evidence that the
Respondent was trying to drive a wedge between
union and nonunion employees. In this regard, he
noted the new 5-year contract and concluded that
the Respondent "would have been foolhardy" to
have set the two factions of employees against each
other at the outset of that relationship. Further-
more, the judge found that Cohen's explanation for
giving the party, i.e., that he had perceived that the
employees who had worked during the strike were
being harassed and felt resentful and he was trying
to ameliorate that problem, "made good business
sense." Finally, in recommending that the com-
plaint be dismissed, the judge concluded that the
Respondent's business considerations far out-
282 NLRB No. 94
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weighed any coercive effect, which he character-
ized as slight and speculative, that the party may
have had on employees.
For the following reasons, we disagree with the
judge and find that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by holding a party
for employees who had worked during the strike.
Section 8(a)(3) prohibits discrimination in regard
to "any term or condition of employment to en-
courage or discourage membership in any labor or-
ganization." We first conclude that the party con-
stituted a term or condition of employment because
it was a benefit related to job performance, i.e., it
was granted for services performed for the Re-
spondent by the invitees during the strike:2 Further
underlining that the party was a term or condition
of employment are the terms under which it was
extended, i.e., the invitees were encouraged to ap-
proach their supervisors to rearrange their work
schedules so that they could attend. Next, we con-
clude, based on the admitted facts, that there was
disparate treatment concerning this term or condi-
tion of employment based on the employees' union
activities, i.e., those who struck throughout were
not invited to the party and only those who did
not strike or who abandoned the strike were invit-
ed. Finally, contrary to the judge, we perceive no
legitimate business justification for the party. The
Respondent offered two reasons for the party: to
show its appreciation to, and acknowledge the
work of, those who had worked during 'the strike
and to diffuse poststrike tensions . The first reason
was rejected by the Board in a similar circum-
stance in Aero-Motive Mfg. Co., 195 NLRB 790
(1972), enfd. 475 F.2d 27 (6th Cir. 1973), where an
employer gave cash bonuses after a strike to its
nonstriking employees. In finding a violation in
those payments, the Board stated:
[T]he payments here were neither announced
nor made during the strike, nor were they of-
fered as an inducement to encourage employ-
ees to run whatever risks may have been cre-
ated by the violence which accompanied the
strike.
If, then, the employees came to work and
were willing to do so for no more than their
regular wages, what business justification is
left for the granting of special rewards, after a
strike is over, to nonstrikers? We perceive
none.3
As for the Respondent's second reason, that the
party was intended to lessen the hostility between
the invitees and the employees who did not work
2 See, e.g., 'Swedish Hospital Medical Center, 238 NLRB 1087 (1978).
3 195 NLRB at 792.
during the strike, we fail to see how the Respond-
ent could accomplish that goal by an employer-
sponsored function at which various former strikers
worked, catering and cleaning up after their co-
workers who had not struck.4 Accordingly, we
find that the Respondent discriminated with respect
to terms or conditions of employment by the hold-
ing of a party for only employees who had not
struck or who had abandoned the strike. We con-
clude that the Respondent thereby violated Section
8(a)(3) of the Act.
We also find that the party independently consti-
tuted a violation of Section 8(a)(1) of the Act. Sec-
tion 8(a)(1) prohibits interference with, restraint, or
coercion of employees in the exercise of their Sec-
tion 7 rights. In this case, the Respondent's holding
of the party which, as noted above, constituted a
term or condition of employment, had a tendency
to interfere with the exercise of the right to strike,
which is protected by Section 7. As the Board held
in Rubatex Corp., 235 NLRB 833, 835 (1978), enfd.
601 F.2d 147 (4th Cir. 1979), a case which involved
poststrike bonus payments to nonstrikers, the prin-
cipal impact of the discriminatory poststrike grant-
ing of benefits "will be to discourage employees
from engaging in protected activity in the future."
Furthermore, for the reasons stated above, we find,
contrary to the judge, that the Respondent had in-
sufficient business justification for holding the party
and, accordingly, that the coercive effects of the
party were not outweighed by business consider-
ations.
Huck Mfg. Co. ' v NLRB, supra, cited by the
judge, is distinguishable. There employees who had
worked and set production records during a strike
ceased working when they found out that the strik-
ers were returning and demanded double time pay
for the time they had worked during the ,strike.
The employer, acceded to the demands. In denying
enforcement of the Board's finding that the double
time payments ,were unlawful for the days of the
strike, the court relied on the employer' s legitimate
concern over further interruptions in production
caused by the nonstrikers' cessation of work, the
fact that the payments served to reward the non-
strikers' high production, and the fact that the em-
ployer had not proposed the payments initially.
None of these elements is present in this case. Al-
though the court stated that the employer's desire
'' As noted above, the Respondent also asserted that , the party was an
attempt to counteract animosity that those who had worked during the
strike felt as a result of certain poststrike events, including fines for strike-
breaking imposed by the Unions and vandalism which the Respondent
apparently linked to the Unions' supporters. Contrary to our dissenting
colleague, these asserted business reasons in our view are plainly insuffi-
cient to justify the Respondent's treating the strikers and nonstrikers in a
disparate manner.
DESERT INN COUNTRY CLUB
to soothe- angry nonstrikers w iii legiti^te"liusi-
ness consideration , the facts of Huck are not paral-
lel -on that point. There the payment was to be
given immediately at the strike's end, and the court
found that such payment would soothe the non-
strikers, thereby helping to ensure a smooth return
of the strikers. Here, the strikers had been back at
work for some 2-1/2 months, and the party for the
nonstrikers would in no, way help in the strikers'
smooth return. Moreover, in Huck Mfg., the court
specifically found that the payments did not consti-
tute a reward for the employees' refusal to join the
strike. Here, a principal reason for holding the
party was to reward the employees for not striking,
as evidenced by the plain language of the invita-
tion. In these circumstances, Huck Mfg. is distin-
guishable. Based 'on the foregoing, we conclude
that the Respondent violated Section 8(a)(1) of the
Act by holding the party for nonstrikers.
,REMEDY
Having found that the Respondent violated Sec-
tion 8(aX3) and (1) of the Act by holding a party
for only employees who did not participate in the
strike and those who abandoned the strike and re-
turned to work, we shall order payment to the
former -strikers who were employed by the Re-
spondent on 4 September 1984 of an amount equiv-
alent to the value of the benefit gratlted to the em-
ployees who were invited to the party on that date,
plus interest as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the, Respondent, Summa Corporation d/b/a Desert
Inn Country Club and Spa, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist froirl
(a) Holding poststrike parties only for employees
who refrain from lawful strike activity.
(b) Discouraging membership in Local Joint
Board of Las Vegas, C`ulinary_ Workers Union,
Local 226, and Bartenders -Union, Local 165, affili-
ates of Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO, or any other
labor organization, by discriminating with respect
to terms or conditions of employment by holding
poststrike parties only for employees who refrain
from lawful strike, activity. -
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
669
"(a)' Pay the- former strikers who were employed
on 4 September 1984 an amount equivalent to the
value of the benefit granted to the employees who
were invited to the 4 September 1984 party in the
manner set forth in the remedy section of this De-
cision and Order.
(b) Post at its hotel in Las Vegas, Nevada, copies
of the attached notice marked "Appendix."5
Copies of the notice , on forms provided by the Re-
gional Director for Region 31, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DoTsoN, dissenting.
Contrary to my colleagues , I would not find on
the facts of this case that the Respondent violated
Section 8(a)(1) and ' (3) of the Act by holding a
party for nonstrikers on nonworking time some 3
months after a strike had ended.
The signing of a 5-year contract between the Re-
spondent and the Union on 7 June 1984 brought an
end to a, 2-month strike involving considerable vio-
lence and ill-will.' Upon conclusion of the strike,
the Respondent's president, Burton Cohen, ex-
tended a written welcome to returning strikers.
The letter urged the former strikers to "put the
strike, it's [sic], effects on you, and any animosities
you may have behind you" and to resume execut-
ing duties, in a professional manner . The letter
made it clear that management was responsible for
insuring the safety of all employees , and indicated
that threats, abuse, or intimidation (either verbal or
physical) would not be tolerated.
During contract talks the Respondent had at-
tempted to negotiate amnesty from union discipline
for union members who had crossed the, picket line
during the course of the strike The Union rejected
these proposals and levied fines in excess of
$11,000 against 16 individuals and, additionally,
5 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 Nation-
al 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."
1 Approximately 853 employees of the Respondent's 1822 member
work force. participated in the strike . During its course 200 union mem-
bers crossed the picket line.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought charges against other members who had
worked behind the picket line during the strike.
Despite the Respondent's efforts to neutralize the
effects of the strike, it is uncontradicted that a
tense and adversarial air prevailed after the strikers
returned to work. The heavy fines and charges
against cross-overs remained unresolved. There
was a great deal of animosity and some malicious
mischief involving cars. Cohen, afraid that employ-
ees who had worked during the strike would feel
in these circumstances that "they were being put
upon" for having exercised their right not to strike,
decided to have a party for union and nonunion
cross-overs to show the Respondent's appreciation
for making it possible for the Respondent to "con-
tinue . . . first class service to . . . -valued custom-
ers" during the strike and to "cool them out," i.e.,
calm them down. The party was to be held 4 Sep-
tember 1984 in the grand ballroom of the Respond-
ent's hotel and casino complex at 8 p.m. Work
schedule conflicts of the nonstrikers were ironed
out with department supervisors in advance to
enable attendance. One hundred and sixty-eight
persons, including guests, attended the party which
cost the Respondent approximately $4000. Some
strikers scheduled to work that night serviced the
party. During the event, Cohen thanked people for
a job well done during the strike and appealed to
them to put the strike behind them and to work to-
gether for the success of the hotel. Cohen said that
"the Union employees who did go on strike that
was their prerogative, that they had that privilege,
and that there Should not be any animosity on their
part, and likewise that I hoped that the animosity
of the employees returning-and I made that state-
ment because there were some Union employees in
the room from the Food and Beverage Depart-
ment-would disappear, and that it was time that
we just put all of this behind us and let's go for-
ward."
I find nothing unlawful about this one-time social
event sponsored for nonstriking employees during
their off-duty hours, months after the strike's end.
At the time the decision to hold the party was
reached, there were clear signs that employees
were not putting the strike behind as the Respond-
ent had hoped and previously urged. Large fines
and charges levied by the Union against those who
crossed the picket line remained a source of irrita-
tion. Growing animosity and incidents of vandalism
evinced residual hostility. Communicating appre-
ciation to the nonstrikers for the quality services
they rendered during the strike as they faced such
poststrike adversity was, in the Respondent's busi-
ness judgment, a legitimate way to avert a
"counter-reaction," put an end to the feuding, and
redirect employee energies toward successfully op-
erating the Respondent's hotel. The Respondent
saw a party as just the vehicle to accomplish its ob-
jective.2 Given these facts, I am perplexed by the
majority's .failure to perceive any legitimate busi-
ness justification for the party.3
My colleagues point to no evidence showing
actual antiunion motivation which would rebut the
Respondent's business justification. Cohen's re-
marks at the party verified to all present, including
working former strikers, the Respondent's recogni-
tion of the right of Union employees to strike and
its condemnation of continued animosity between
employees stemming from the fact that during the
strike some had exercised this right while others
had not. The differences between the Respondent
and the Union which brought about the strike were
put 'to rest with the signing of a 5-year collective-
bargaining agreement. The Respondent's urging
that employees finally recognize this fact and
resume working together toward successfully oper-
ating the hotel is an entirely legitimate appeal total-
ly devoid of antiunion animus.
Further, the events surrounding the party do not
support the inference that its purpose and effect
was to tamper, by economic inducement,. with em-
ployees' Section 7 freedom to honor or not to
honor a picket line.4 Necessarily, the past strike
could not have been affected by the party and "any
tendency to deter participation in future strikes is
minor."5 I cannot join the majority's finding that
this one-time social event in appreciation of "first
class services" during the past strike has significant
bearing on employees' decision to join or not to
join in unforeseen future strike activity. The empir-
ical proposition that employees will decide not to
strike because of the fear of not receiving an invita-
tion to a poststrike party requires only explicit
statement to refute it. The Respondent never held
out the party as the first of many benefits to be
granted employees for opting not to strike. No
2 Whether a party was the most effective vehicle for the Respondent
to achieve its objective is not for the Board to decide . The majority's
finding that a party is an implausible solution to the Respondents stated
concerns because strikers were serving and cleaning up , ignores the reali-
ty that these are services normally delivered by unit employees during
both day and evening hours. I doubt that the majority would have pre-
ferred the Respondent to have subcontracted unit work for the event.
Further, had the event been held at some other facility the cost to the
Respondent would no doubt have been far greater.
8 In Aero-Motive Mfg. Co., 195 NLRB 790 (1972), the Board found that
because a $ 100 bonus was not necessary as an inducement to employees
to run the risk of violence to abandon the strike, no business justification
was left for granting the special reward after the strike . Here, in contrast,
the incentive of rewarding work well done and industrial harmony re-
mained as legitimate business concerns. See Huck Mfg. Co. v. NLRB, 693
F.2d 1176 (5th Cir. 1982).
4 Greyhound Lines, 275 NLRB 1167 (1985); Dean Foods Co., 266
NLRB 1069 (1983).
5 Huck Mfg. Ca v. NLRB, supra at 1185.
DESERT INN COUNTRY CLUB
later action of the Respondent suggested or proved
otherwise. 6 Further , the import of the party went
beyond appreciation for past performance to cap-
ping festering poststrike tensions . This legitimate
business objective , conveyed to employees through
clear uncoercive appeals by the Respondent 's presi-
dent , far outweighs imaginary and speculative in-
terference in Section 7 rights. I cannot find that the
party violated either Section 8(a)(1) or (3) of the
Act.
6 I find this case distinguishable from Flmeo, Inc., 282 NLRB No. 93,
issued today. There the respondent, 2 days after lawfully assisting em-
ployees in the withdrawal of an election petition, held a party during
working hours, with full pay, and shortly thereafter rewarded the em-
ployees for rejecting the union with an unlawful wage increase.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT hold poststrike parties only for
employees who refrain from lawful strike activity.
WE WILL NOT discourage membership in Local
Joint Board of Las Vegas; Culinary Workers
Union, Local 226, and Bartenders Union, Local
165, affiliates of the Hotel Employees and Restau-
rant Employees International Union, AFL-CIO, or
any other labor organization , by discriminating
with respect to terms or conditions of employment
by holding poststrike parties only for employees
who refrain from lawful strike activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL pay the former strikers who were em-
ployed by us on 4 September 1984 an amount
equivalent to the value of the benefit granted to the
employees who were invited to the 4 September
1984 party, plus interest.
SUMMA CORPORATION D/B/A
DESERT INN COUNTRY CLUB AND
SPA
David Tajgman, Esq., for the General Counsel.
Gregory J. Kamer, Esq., of Las Vegas, Nevada for the
Respondent.
DECISION
671
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Las Vegas, Nevada , on January 22,
1985 .1 The complaint , as amended , issued October 26, is
based on a charge filed August 30 by Local Joint Board
of Las Vegas; Culinary Workers Union, Local 226, and
Bartenders Union, Local 165, affiliates of the Hotel Em-
ployees and Restaurant Employees International Union,
AFL-CIO (Union). The complaint alleges that Summa
Corporation d/b/a Desert Inn Country Club and Spa
(Respondent) violated Section 8(a)(3) and ( 1) of the Na-
tional Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel and Respondent.
On the entire record, and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and at all times material has been, a
corporation duly organized under , and existing by virtue
of, the laws of the State of Delaware, with an office and
principal place of business located in Las Vegas, Nevada,
where it is engaged in the business of operating a hotel
and casino. In the course and conduct of its business op-
erations, Respondent annually purchases and receives
goods or services valued in excess of $5000 directly from
suppliers located outside the State of Nevada , and annu-
ally derives gross revenues in excess of $500,000.
I find that Respondent is, and at all times material has
been, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Joint Board of Las Vegas; Culinary Workers
Union, Local 226, and Bartenders Union, Local 165, af-
filiates of the Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO are, and at all times
material have been, labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Backgrounds
The essential facts have been stipulated by counsel,
and are set forth in detail in the exhibit file.
On April 2 approximately 16,000 union-represented
employees of approximately 26 major hotels in the great-
er Las Vegas area commenced an economic strike. Ap-
proximately 853 employees of Respondent participated in
' All dates hereinafter are within 1984, unless otherwise stated
This background summary is based on credited testimony, stipula-
tions of counsel, and evidence not in dispute
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike at its inception. Respondent then had a work
force of approximately 1822 persons. The strike at Re-
spondent's premises lasted until June 6 and during its
pendency Respondent remained open and in business.
Respondent was able to continue business operations
during the strike through utilization of supervisors, non-
union personnel, and approximately 200 union members
who did not go on strike or who crossed picket,lines to
return to work during the strike . Respondent 's striking
employees commenced returning to work June 7, after
the Unions and Respondent agreed- on the terms of a
new contract. The strike had been a long and bitter one
involving considerable violence and ill-will. By tempo-
rary restraining order of, the district judge of the Eighth
Judicial District Court of Clark County issued April 13
the Unions involved in the strike were restrained from
violence and, other illegal strike action at several loca-
tions, including Respondent's premises .3 On May 26
Burton Cohen, Respondent's president, addressed a letter
to _all striking employees who were returning to work.
The letter read:
May 26, 1984
To: All Returning Culinary and Bartender Employ-
ees
Welcome back to the Desert Inn Country Club &
Spa. These last eight weeks have been difficult for
all of us. Everyone has suffered a "great deal. Every-
one's emotions have been tested.
Now that you are returning to work, you must
put the strike, it's [sic] effects on you, and any ani-
mosities , you may have behind you. In coming back
to work at the Desert Inn it is necessary that your
duties be executed in a professional manner. We
know you are capable of doing so.
It, is also the responsibility of management to
insure the safety of all employees: therefore, it must
be made perfectly clear to everyone ..... threats,
abuse, or intimidation (either verbal or physical) to
any employee and/or employee's property will not
be tolerated and any such acts will result in discipli-
nary action up to and including termination.
Please sign the acknowledgement that you have
received this memorandum. If you have any further
questions, please contact your supervisor or the
Labor Relations department of Sierra Corporation.
/s/ Burton M. Cohen
President
Desert Inn Country Club & Spa
On August 24, approximately 3 months after Cohen's
letter to all striking employees welcoming them back to
work, Cohen distributed to all regular, full-time employ-
ees who had worked during the strike, an invitation to a
party, reading as follows:
Dear
8 One of Respondent's employees, a union member , was terminated be-
cause of strike misconduct.
Thank you for your consistent loyalty to the
Desert Inn. It is because of you and your fellow co-
workers that we were able to survive our recent
labor dispute and continue our first class service to
our valued customers.
It is my privilege to invite you and a guest to a
special appreciation party with dinner and dancing
on Tuesday, September 4th, at 8 p .m., in the Grand
Ballroom . This ' invitation is for your use only.
Please present the invitation for admittance to the
party.
Please RSVP to Ellen , Ext. 4480, in Food & Bev-
erage, 9 a.m. to 5 , p .m., so that we can insure the
proper service.
It will be a great night for all of us and I look
forward to seeing you at this informal affair.
Thank you again for your friendship and loyalty.
Sincerely,
/s/ Burton M. Cohen
President
Desert Inn Country Club & Spa
P.S. If your present work schedule conflicts with
the night of the party, please contact your , depart-
ment supervisor so that your hours can be reviewed
for rescheduling , if possible, to allow you to attend
our party.
No employee who participated in the strike throughout
its duration was invited to the party. Invitees were limit-
ed to union members and nonunion members who
crossed the picket line to work. Respondent attempted,
without success, to negotiate some type of amnesty for
union members who crossed the picket line to work. Six-
teen such members have been assessed fines by the
Union for working during the strike, in the total amount
of $11,020.50. Others have been charged by the Union,
but those matters have not yet been adjudicated.
The party was held on September 4, as scheduled.
There were 168 in atendance, and total cost to Respond-
ent was approximately $4000.
Discussion
The General Counsel argues that Respondent's party
constituted a reward for employees who crossed the
picket line, which was a violation of the Act.
In Erie Resistor Corp.,4 the U.S. Supreme Court held
that the award of additional seniority to striker replace-
ments and non-strikers interfered with an employee's
right to strike, in violation of Section 8(a)(1) of the Act.
In Aero-Motive Mfg. Co.,5 the Board relied on Erie Re-
sistor in holding that poststrike payments of $100 bonuses
to nonstriking union employees, excluding all strikers,
also violated the Act, even though the bonuses were not
announced until after the strike ended. -
In Rubatex Corp.,6 the Board held that the employer
violated the Act by unilaterally paying cash bonuses to
s 373 U.S. 221 (1963)
s 195 NLRB 790 (1972), enfd. 475 F.2d 27 (6th Or. 1973).
s 235 NLRB 833, 835 (1978), enfd. 601 F.2d 147 (4th Or. 1979).
DESERT INN COUNTRY CLUB
employees who crossed aunion picket line and reported
for work. The Board stated, inter alia:
Whatever Respondent's subjective motivation for
granting the bonuses, the objective impact of this
conduct nevertheless was to render nonstriking em-
ployees $100 richer than their striking colleagues
simply because the latter engaged in protected ac-
tivity. As noted, this object lesson may weigh in the
balance when an employee is considering in the
future whether or not to engage in protected con-
certed activity. Accordingly, we find that Respond-
ent's payment of the bonuses to be violative of Sec-
tion 8(a)(1) of the Act.
In Elmac Corp.,7 the Board held that an employer vio-
lated Section 8(a)(3) of the Act when it denied accrued
vacation benefits to strikers while paying them to non-
strikers, even though the striking employees were not on
the active payroll on the vacation eligibility date.
However, in Electro Vector, Inc.,8 the Ninth Circuit
denied enforcement of a Board decision that an employer
violated the Act by denying a yearend bonus to employ-
ees on strike as of the eligibility date of the bonus. The
Ninth Circuit held that the bonus, which was given for 2
years only, was a gift, and therefore, there was no dis-
crimination so far as wages, hours, and working condi-
tions were concerned.
This matter arose again in Huck Mfg. Co.,9 There, the
Board held that payment of doubletime wages only to
nonstrikers for 1 day's work on May 14, and not making
such payments to strikers who worked that day, was a
violation of the Act. However, only nonstrikers worked
May 15-18, and the employer paid doubletime wages to
those employees for that time. The Board held that the
employer thereby violated Section 8(a)(1) of the Act, but
the Fifth Circuit disagreed. While acknowledging that
higher than normal wage payments to nonstrikers would
have the tendency to coerce strikers, to forgo protected
activity, in this case the payments were "not enough to
establish a Section 8(a)(1) violation." The court said it
was necessary to balance the interests of employees in
exercising their Section 7 rights, and the interests of the
employer in maintaining order in his business. The court
rioted, that the reasons for paying extra wages were: (a)
to induce continued production, (b) to soothe angry non-
striking workers by compensating them for harassment
suffered and production records set, and (c) made in re-
sponse to an employee proposal, rather than a manage-
ment proposal. The court concluded:
Balanced against the Company's substantial business
reasons for the May 15-18 payments is a relatively
slight tendency of the payments to deter protected
conduct. Instituted after the strike was over, the
payments had no tendency to deter participation in
the by-gone strike. Any tendency to deter participa-
7 225 NLRB 1188 (1976).
8 220 NLRB 445 (1975), enfd. 539 F.2d 35 (9th Cir. 1976), cert. denied
434 U.S. 821 (1977).
9 254 NLRB 739 (1981), enfd. in part, vacated in part, and remanded
693 F.2d 117'7,(5th Cir. 1982).
673
tion in future strikes is minor. A worker considering
not striking in the future because of potential mone-
tary awards would have to rely on reoccurrence of
the unusual facts of this case . We decline to enforce
the portion of the Board's order concerning the
May 15-18 payments.
As noted above, the strike here involved was a long
and bitter one, involving much violence and harassment.
Cohen credibly testified, without contradiction, that a
tense and adversarial air commenced after the strikers re-
turned to work. Respondent was entitled to remain open
and in operation during the strike, if it could obtain the
employees it needed. Employees had the legal right to
cross the picket ' line and work, if they chose to do so.
There is no evidence that Respondent opposed the
Union as the representative of its employees:; To the con-
trary, the uncontradicted evidence is that Cohen told
employees at the party that strikers were following their
convictions, as they had a right to do. Cohen credibly
testified that he had two principal reasons for deciding to
give the party:
There are two reasons: one, I wanted to show
our appreciation for the job that was done by the
employees who worked during the late dispute; and
the other reason was that J wanted to cool them
out. I felt that after-that's an expression we use to
try to calm somebody down and put oil on the
water.
After the strike we had sent out a letter to all the
employees that it ' was behind us and let's forget
about it and let's roll up our sleeves and go back to
work. But unfortunately, that did not occur. There
was a great deal of animosity going on. There was
some malicious mischief going on withcars.
Some of the employees who worked were getting
fined. And I was really afraid of counter-reaction,
and I was afraid that the employees who did stay in
would have a feeling that they were being put
upon.
So we had this party, and it was to all of those
purposes, which I expounded to at the time of the
party.
Cohen further credibly testified relative to his remarks to
employees assembled at the party:
A. I thanked them. I thanked them for a job well
done during the strike. I then went on to tell them
that that was all behind us now, that the dispute
was over, and that we had to work together so that
the Hotel would succeed and in turn they would
succeed, and pointed out to them that the Union
employees who did go on strike that that was their
prerogative, that they had that privilege, and that
there should not be any animosity on their part, and
likewise that I would hope that the animosity of the
employee returning-and I made that statement be-
cause there were some Union employees in the
room from the Food and Beverage Department-
that that would disappear, and that it was time that
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we just put all of this behind us and let's go for-
ward.
Obviously, the past strike could not have been affected
by the party . So far as any possible future strike is con-
cerned , the language of Huck Mfg ., fits this case-"Any
tendency to deter participation in future strikes is
minor." It appears very remote that an employee would
give any consideration at all to a possible party by the
boss in determining whether to participate in a future
strike. The party cost Respondent perhaps $25 or $30 per
person attending , and part of the purpose for being there
was spelled out by Cohen-"stop the feud, and get along
with all your fellow employees."
It is recognized that the monetary triviality of the
party is not controlling , but that is a factor in balancing
the interests of the Union and Respondent. There is no
evidence that Respondent was trying to drive a wedge
between union and nonunion employees. A new contract
recently had been executed, and it was for the period
June 7, 1984, to and including June 1, 1989. A party for
a relatively small group of employees reasonably could
not be considered a dangerous device that jeopardized
the relationship between Respondent and the Union.
Cohen's explanation of what he was trying to do not
only appeared credible-it made good business sense. He
had a , problem-employees who worked during the
strike were being harassed and resentful-they felt they
"were being put upon," after they had faced the travail
of the picket line and had kept Respondent successfully
operating during the strike. Without some action, the sit-
uation could have deteriorated into serious conflict be-
tween the two groups, or loss of employees, or both. Re-
spondent had 5 years of a new contractual relationship
with the Union in store, and it would have been foolhar-
dy to set two factions against-each, other at the very
outset of that relationship. Cohen did not appear to be a
foolhardy witness.
In balancing the interests of Respondent and the
Union, it is clear that Respondent 's business consider-
ations in giving the party far outweigh any slight and
speculative coercive effect the party may have had on
employees.
CONCLUSIONS OF LAW
1. Summa Corporation d/b/a Desert Inn Country
Club and Spa is, and at all times , material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local Joint Board of Las Vegas; Culinary Workers
Union, Local 226, and Bartenders Union, Local 165, af-
filiates of the Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO are, and each of
them is, and have been at all times herein, labor organi-
zations within the meaning of Section 2(5) of the Act.
3. Respondent did not, as alleged , violate Section
8(a)(1) and (3) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]