Desert Inn Country Club & Spa

National Labor Relations Board - Board Decisions

Jun 27, 1985

275 N.L.R.B. 790 (N.L.R.B. 1985)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summa Corporation d/b/a Desert Inn Country Club
& Spa and Miguel E. De Santiago . Case 31-
CA-14044
27 June 1985
DECISION AND ORDER
By CHAIRMAN •DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 January 1985 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a' supporting .brief,
and the General Counsel filed a reply brief.
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, r and
conclusions2 and to adopt -'the- recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Summa Cor-.
poration d/b/a Desert Inn Country Club & Spa,
Las Vegas, Nevada, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order.
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance 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 reversin g
the findings.
In sec IV,B of his decision , the judge gave an incorrect citation to
Clear Pine Mouldingi, which appears at 268 NLRB 1044 (1984)
2 In adopting the judge 's conclusion that the Respondent violated Sec.
8(a)(l) of the Act by discharging striking employee De Santiago,
Member Hunter and Member Dennis find it unnecessary to rely on New-
port News Shipbuilding, 265 NLRB 716 (1982), and Laredo Coca-Cola Bot-
tling Co, 258 NLRB 491 ( 1981), cited by the judge They rely instead on
NLRB Y. Burnup & Simms, 379 U.S 21 (1964).
With respect to the Respondent 's backpay obligation to discharged
striking employee De Santiago , Member Dennis agrees with the dissent
in Abilities & Goodwill, 241 NLRB 27 ( 1979), that the majority in that
case improvidently overruled more than 30 years of Board precedent re-
quiring unlawfully discharged strikers to offer to return to work in order
to initiate the running of backpay Absent three votes to overrule Abilities
& Goodwill, Member Dennis will apply the remedy set forth in that deci-
sion
Chairman Dotson would overrule Abilities & Goodwill and would, in
the event striking employee De Santiago was not permanently replaced
prior to his discharge , date the Respondent's backpay obligation to De
Santiago from the time the striking De Santiago made an unconditional
offer to return to work.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK. Administrative Law Judge. The
above-captioned matter was heard by me on December 5
and 6, 1984, in Las Vagas,' Nevada. On August 23, 1984,
the Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a complaint,
based on an unfair labor practice charge filed by Miguel
E. De Santiago, an individual,.oh April 12, 1984, alleging
that Summa Corporation d/b/a Desert Inn Country Club
& Spa (Respondent) engaged in unfair labor practices
violative of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). Respondent filed an answer de-
nying the commission of any unfair labor practices. At
the hearing, all parties were afforded the opportunity to
examine and cross-examine witnesses , to present any and
all relevant evidence, to argue their legal positions
orally, and to file posthearing briefs. The latter were
filed by both parties and have been carefully considered.
Accordingly, based on the entire record herein, includ-
ing the posthearing briefs and my observation of the de-
meanor of the witiesses , I make the following
FINDINGS OF FACT
1. JURISDICTION-
Respondent is a state of Nevada corporation, with an
office and place of business located in Las Vegas,
Neveda, where it is engaged in the operation of.a hotel,
casino , and country club. In connection with the business.
operations, Respondent annually derives gross revenues
in excess of $500,000 and annually purchases and re-
ceives goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of
Nevada. Respondent admits that it is now, and has been
at all times material herein , an employer engaged in com
-merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Culinary Workers Union,
Local 226 (the Union) is now, and has been at all times'
material herein , a labor organization within the ' meaning
of Section 2(5) of the Act.
III. ISSUE
Did Respondent discharge Miguel E. De Santiago, an
employee, on April 5, 1984, because he engaged in union
or other protected concerted activities in violation of
Section 8(a)(1) and (3) of the Act?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent's hotel, casino,
and country club facility is located on, Las Vegas Boule-
vard in Las Vegas, Nevada, and that Forrest J: "Wood-'
ward II is its executive vice president., Ingress and egress
to said roadway is provided by two entrances, one at the,
south end of the facility t and the other at the north end.;
A sidewalk runs alongside the roadway in front of the'
main entrance doors, and separating the 'sidewalk ands
i This entrance is approximately 50 feet - wide and provides for three
traffic lanes (two incoming and one exit lane) marked by large, yellow`
arrows A double yellow line separates the incoming and exit lanes '
275 NLRB No. 116
DESERT INN COUNTRY CLUB,
parking area is a strip of grass and shrubbery. Las Vegan
Boulevard is a six-lane roadway, with a north and south
traffic flow and,, arriving at the southern entrance, a ve-
hicle, traveling south, would have to turn left against an
oncoming traffic flow. The record further establishes
that the Union is the collective-bargaining representative
of certain of Respondent's, employees, including its bell-
men; that the employees who were represented by the
Union engaged in a concerted work stoppage and strike
against Respondent comniencing on April 2, 1984; and
that the strike lasted approximately 2 months. In support
of the strike, at approximately 6 a.m. on April 2, picket-,
ing' commenced alongside Las Vegas Boulevard in front
of the facility. At some point between 7:15 and 7:30 that-
morning a picket line incident, involving the Charging'
Party De Santiago and a 1984'gray Datsun Maxima auto-
mobile , driven by Dennis Couse, who was arriving at
Respondent's facility in connection with his job duties
for an outside food supplier, occurred, resulting in the
discharge of De Santiago 3 days later.- Specifically what
happened and who was at fault were the subjects of dia-
metrically opposite testimony given by the-witnesses ap-
pearing on behalf of the General Counsel and of Re-
spondent. - -
De Santiago, who had been employed -by Respondent
since ' 1978 and was a bellman at the time 'of the strike
and who had been designated by' the Union as the picket
captain , testified that at least. 100 employees were picket-
ing that morning ;2 that the` picket line moved back and
forth on the sidewalk alongside Las Vegas Boulevard
across the entire width'of Respondent's facility'from'the'
north to the south entrance; that, at all times, he either'
carried a picket sign or wore one -around- his neck;, and'
that, while picketing, he 'walked beside another bellman,'
Larry Gonzales. According to the Charging Party, at the
time of the incident, carrying a picket sign in this right
hand , he and Gonzales were walking north to-south, and
he was facing and speaking to Gonzales, who was, on the
facility-side of De Santiago.- Positioned -in this, manner,:
they entered the southern entrance area. 3. As. to, what
then occurred, the latter admitted, "It all happened so
fast. . . . I'm still a little bit confused as to immediately
what happened.'' In any event, as he and Gonzales were
a third of'the 'way through the entraice (jest past ,the
exit arrow), he'heard someone yell, _"[W]atch out" and,'
almost simultaneously , the squeal of brakes. 'De Santiago
continued, "I turned back and as I turned 'back 'the
bumper of al car struck my knee and made- me lose my
balance where `I landed on my side and my hand came
down and my chest came, down on the hood, and I was
on one knee. - I got up, I put my stick on my left hand
and I was'ru'bbing_ my leg, and I' got up, I pulled back,
2 De Santiago testified that , on that day , he was wearing Levi's, a hat,
a sweatshiit,'and a'sleeeless hunting vest ,` with'a blue armband, designat
ing him 'as picket 'captain , around his right arni While there was conflict"
ing testimony as to the color of the vest' and, as ,to',vhether her had a'.
beard that day, there is, of course, no disputeithat De Santiago was the:
individual involved m the incident , a fact which he admits
3 be Santiago estimated there were 20 other pickets 'stretched across'
the entrance , walking in both directions , and said they were all "pretty
close together " During cross -examination , he admitted that the conges-
tion in the entrance areas,that,morning caused vehicles, to come to a stop,
"for a couple of seconds " before entering the driveways
791
and I leaned forward and;I told,[the driver]; "What's the
matter with, you? t I would have ; moved." And, his
window was up and the - man was yelling •., .. ^ and I
could make • what he was saying . . . because I could
read his lips." According to - De Santiago;- the- driver,
whom he recognized as Dennis Couse,4 was cursing- at
him through the- closed window. With regard to the
impact and the result thereof, De Santiago, testified that
he was struck on the outside `of his right knees' by the
middle of the Datsun's front"bumper; that he lost his bal-
ance, falling sideways • onto the, hood, . with the : picket
sign , which he was, holding in his right hand, coming
down "pretty hard" sideways, with the flat side of the
wood exposed, across the center of the hood;. and that he
immediately slid off the hood, landing with his left knee
on the grounds on the driver's side of the car. He denied
looking for any damage, resulting from the impact of the
picket sign 'on the vehicle.7 According to De ' Santiago,
while he; rubbed the • portion of his right knee hit by the
front bumper, a crowd of approximately 20 pickets gath-
ered around the Datsun, yelling at Couse. Moments later,
Couse stopped mouthing curse words at De Santiago and
drove his car off for the side of the entrance area . There-
upon, he got; out and resumed shouting obscenities-at. the,
Charging Party, to the point of-challenging the latter to
a fight. }
Testifying that he ignored Couse- and resumed =picket-
ing, De Santiago was approaching the'north entrance 15'
minutes later when fie was `hailed''by a' uniformed Las
Vegas policeman from his patrol car, which was parked
on hotel property. The officer asked to see his driver's
license. ;De Santiago gave it'•to'-him,, and-the, latter
walked over to where' Couse was' standing>by his' car.,
Later, a plainclothes' officer , approached the Charging '
Party and said he'w'ould^have to give hirn,amisdemean
or citation; based on the' incident.8 After the second :po
liceman advised De Santiago that, he probably, could 'd`o' '
something about the:cit_ation' the latter continued' pick et-;
ing.: At approximately 12 noon, another=. employee told
De - Santiago that : he supposedly' ' had been 'fired that
morning. 'Thereupon, he"telephoned 'his supervisor;
Chuck,Oswalt; who confirmed that- the-Charging Party
had been fired as "security came and told me what.you
did, that you hit a guest with your picket sign." De San-
.
.4-Couse^was known to'De Santiago as a former receiving manager at,
the facility There is no dispute that Couse was, indeed , a former employ-
ee, that he last, worked-for Respondent in 1980 as its warehouse and re-
ceiving'manager , and that he-is married to a woman who was a 'secretary .
to a casino official at Respondent 's facility at the time of the strike
5 De_Santiago stated . that he was sure that -the vehicle, impacted on his
right , knee "because -that'.s where the bumper hit it';',However, in his pre- i
trial affidavit, ,the Charging Party, sunder oath , stated that the car struck;
him, on -his-left leg between .the ankle and the knee Acknowledging that
he read and initialed each page of the affidavit, De Santiago testified that
he told the Board agent the injury was to his right leg, that the Board
agent wrote down the wrong information , and that the taking of the affi-
davit was constantly interrupted by, among other things, a fire drill
6 De Santiago failed to mention this iii his pretnal affidavit
° In his pretrial affid_ avit , De Santiago stated, "I looked at the hood of
the car and as far as I could.'tell there- was-no'datnage""
The citation, which is dated April 2, 1984,and was issued -at 7 43
am , states "Did wilfully and unlawfully injure the personal property of
another"To wit l983 Datsun , ,owned by Dennis •Couse Said damage,
being in excess of $25 00 and less than $250.00 ",
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiago denied the allegation; however, Oswalt said he
would be receiving a termination letter within a few
days. Indeed, on Apnl' 5, he received the following tele-
gram from Respondent:-"You are hereby terminated for
misconduct on the picket line on Monday April 2, 1984.
Specifically, you repeatedly and maliciously struck a
guest car without provocation." During his testimony,
De Santiago' denied the allegations contained in the tele-
gram ; stated that his picket sign impacted Couse's car,
just as described above, one time; denied that he deliber-
ately struck Couse's car with the sign; and denied either
blocking the ingress of vehicles onto Respondent's prop-
erty or striking 'any other vehicle prior to the Couse inoi-
dent. Finally, De Santiago averred that, in view of the
number of pickets in the driveway at the time of the col-
lision , there was no way that Couse, without stopping
and waiting for an opening, could have avoided hitting
anyone as he entered.
Two current employees corroborated De Santiago's
version of the April 2 incident. Estimating that, at least,
30 employees picketed that morning, 9 Larry Gonzales
testified that he and De Santiago were walking together,
with the latter on the street side and facing him, no more
than 4 feet apart. Entering the south entranceway area
from the north, - Gonzales observed a car slowly ap-
proaching the entrance perpendicular to it, having just
completed a left turn. As other vehicles had come to a
complete stop that morning in order to avoid hitting the
pickets, Gonzales assumed that this one would likewise
stop and let him and De Santiago pass "because we had
the right of way in the driveway." t ° According to Gon-
zales , "By the time we got around the middle of the en-
tranceway he kept coming . . . and he didn't stop .. .
and he hit Mr. De Santiago on his right shin, and he
made an instant stop . . . at the same time , knocking Mr.
De Santiago ..: holding his balance right on top of the
car." t t The witness added that the middle of the car's
front bumper hit De Santiago on "his right shin, right
knee area";12 that the part of the Charging Party's body
which landed on the car was "just his arm area . . .
that's about it"; that the picket sign , which De Santiago
carried in his right hand, came down on the car "in the
middle" of the hood; and that "he caught his balance on
top of the car. I think his left knee might have touched
the ground , I'm not sure ." Gonzales further testified that
De Santiago arose and yelled at the, driver, whom the
witness remembered as a former employee,. that he
would have moved, but the driver merely was "flipping"
him off. t 3 By this time, he continued, a group of pickets
P As did the Charging Party, Gonzales maintained that the pickets
covered the entire length of Respondent 's property fronting Las Vegas
Boulevard -
10 Like De Santiago, Gonzales did not believe the car could have
avoided hitting any pickets unless the driver stopped
11 Gonzales heard someone yell "something" prior to the impact and
heard the screech of tires making a sudden stop.
. 12 During cross-examination , he admitted that "it could have been
above the knee."
is During cross-examination , Gonzales stated that De Santiago was in
front of the car when he spoke to the driver In his pretrial affidavit,-
Gonzales said the statement was made after De Santiago walked around
to the driver 's side of the car.
had crowded around the car. The driver slowly moved
the car through the pickets and onto Respondent's prop-
. erty, climbed out, and shouted at De Santiago, asking if
he wanted to fight. 114 Gonzales concluded, stating that
he and De Santiago thereupon moved from the area of
the collision in order to 'avoid hassles. Finally, with
regard to his testimony, Gonzales admitted that, when
the car impacted De Santiago, "I jumped back . . . not
knowing if he was going to keep on coming or what."
Dennis Masanimptewa; who is currently employed by
Respondent as a room service waiter and who participat-
ed in the April 2 strike, testified that he also picketed,
that morning alongside Las Vegas Boulevard in front of.
Respondent's facility and that he was walking behind De
Santiago, who was walking with Larry Gonzales, with
several pickets in between. According to him, De' San-
tiago, who was carrying a picket sign, and Gonzales
were already walking across the southern entrance area
when he first observed the car, driven by Couse, com-
pleting a left turn across Las Vegas Boulevard and ap-
proaching the entrance at approximately 5 miles per
hour-a rate of speed at which coming to a complete,
stop before reaching the entrance would have been im-
possible. Dennis then observed that De Santiago was
speaking to Gonzales with his head turned toward the
former and was oblivious to the oncoming vehicle. As
"it looked like [the driver] wasn't going to slow down"
and "he had to slow down to let somebody by," the wit-
ness continued, "I yelled at Mike to watch out and look
out, and the guy didn't look like he was going to stop,
but soon as he got up to Mike . . . he put on his brakes.
And the tires screeched a little bit and kind of tapped
Mike . . . a little above . . . the right knee." The part of
the- car that lightly struck De Santiago was the front
bumper "between the middle and the driver's side," and
at impact, "[De Santiago] just fell to his right, onto the
car. He had the sign with -him" and the flat side came
down on the hood of the car of the driver's side. Then,
"he slid off onto the ground" and "he caught himself
with his left hand."ts During cross-examination, Dennis
stated that he observed only De Santiago's arm hitting
the car and that he was unsure if any part of his'body,
other than his hand, touched the ground.'Further, he did
not hear De Santiago yell anything at the driver. Dennis
also testified that the car never stopped moving after hit-
ting De Santiago; that a group of pickets crowded
around the car and yelled at the driver as he drove to
the parking area; and that when he arrived at the scene,
De Santiago had moved on. Finally, while testifying ini-
tially that Couse could not have driven through the pick-_
14 In his pretrial affidavit , Gonzales said nothing about the driver chal-
lenging De Santiago to a fight Rather , he swore that the driver moved
onto Respondent's property , got out of his car, and spoke to a security
guard Agreeing that the challenge to fight was important to his version
of the facts , Gonzales testified that he did , indeed, mention it to the
Board agent who took his affidavit but the latter "wasn't too precise"
and "didn't want most of the detail "
15 Dennis placed De Santiago , at the time of impact , as being almost
across the width of the entranceway and himself as being near a lamppost
10 or 15 feet north of the entrance . He estimated the distance as 80 feet
from De Santiago but explained that he was never accurate in such'mat-
ters
DESERT INN COUNTRY CLUB
ets without hitting someone, he testified on cross- exami-
nation that just Gonzales and De Santiago were in the
driveway at the time. -
The driver of the vehicle, Dennis Couse, testified that
for the 2-week period preceding the strike, he had visited
the facility three or four times each day as the restaurant
personnel was testing a new grapefruit juice provided by
his employer. According to Couse, unaware that the
strike had started until he arrived in the area of Respond-
ent's facility at approximately 7:15 a.m. on April 2, he
turned left across Las Vegas Boulevard and observed ap-
proximately 12 pickets "going in a circle, just back and
forth" across.the southern entrance area . Couse contin-
ued, "[A]s.1 got to the sidewalk, still out in the lane of
traffic, I had to stop for about 10 seconds because they
were completely walking." Aware of approaching traf-
fic, he began moving his car slowly forward, and the
pickets "started making a little hole for me as traffic got
closer." Just as the car crossed over the sidewalk and
onto the entrance blacktop, "there was pickets on both
sides of my car, real close." Then, he noticed De San-
tiago, whom he recognized as a hotel employee, standing
at "the left front of the car . . . where the wheel is," and
the latter raised his picket sign and struck the hood with
it. Thereupon, De Santiago "leaned over in front of the
windshield and glared in the window at me ." Couse esti-
mated the employee stared at him for 5 seconds,-during
which time Couse had stopped the car. i 6 According to
Couse, while De Santiago was doing this, "everybody
around the car started hitting it and banging it. . But
as I was looking this side,' and my back side and my
right side and in the front, is when the car was hit the
second time in the front" by De Santiago who,"was still
at the left side of the ear." As with the. initial one, this
blow struck the hood. i' Testifying that he became ex-
tremely angry at the conduct of. De Santiago and the.
other pickets,' Couse moved the car over to a parking
area , climbed out, and began, shouting at the pickets,
challenging them to beat on this car where it was
parked. A moment or two later, a Desert Inn security
guard and a Las Vegas police car1s approached him si-
miiltaneously. The former, pointing to what appeared to
be' dents in the hood" of Couse's car, exclaimed, "[M]y
god, do you see what they did to your car?" There was
one uniformed officer in the police car and, shortly
thereafter, some plainclothes officers and another uni-
formed policeman arrived at the ' parking area. Couse
stated tht the second uniformed officer was the-one who
wrote out-the misdemeanor citation for De Santiago and
who wrote out" the crime reports. i 9 Further, Couse ad-
16 Later, Couse contradicted himself, stating to me that the banging
and hitting occurred as his car was moving slowly forward and that he
never came to a complete stop ' . -
17 Believing there may have been three blows to the car by De San-
tiago, Couse was certain that the two strikes, which he described, were
separate _
18 Couse stated that the patrol car could not have been responding to
a radio call as he noticed it as he was turning into Respondent's entrance'
"I believe he just saw the [incident] and he was right there "
18 According to Couse, the second uniformed officer did all the work
as "the first officer , told him to go ahead and finish the report " He fur-
ther testified that Respondent's security guard-and the initial uniformed
policeman drove off in the latter's patrol car to look for De Santiago
793
mitted stating in his pretrial affidavit that one of the
pickets struck his car's hood "several times" causing two
large and several small dents but failing to mention any
other blows against his car. Finally, Couse admitted that
he never repaired the damage to his vehicle as his insur-
ance "had lapsed at the time."
Corroborating Couse's version of the April 2 incident
was' a security officer employed by Respondent, Steven
Cutshall, who testified that he had' formerly been em-
ployed as a police officer and had, at one time, owned an
automobile body repair business . Cutshall testified that,
at the time of the strike, his work shift was either 11 p.m.
until 7 a.m. or 12 midnight until 8 a .m., that his shift en-
tailed "prowl" duty involving looking for and reporting
on any problems "that could go down on the property,"
and that, in view of the probable start of picketing that
morning, at approximately 5:30 or 6 a.m. he had been as-
signed "to stand by the south main driveway of the
hotel" in an area 30 to 40 feet from the entrance itself
and "to observe and report." He denied ever leaving his
assigned position that morning except to obtain the nec-
essary report forms for the De Santiago-Couse incident.
According to the security officer, picketing began at 6
a.m. that day, with pickets walking slowly back and
forth across the southern entrance to the facility, block-
ing entering cars "actually throwing their bodies across
the hoods of cars." Also, some "strays" walked between
the south and north driveways. Cutshall testified that he
first became aware of De Santiago,20 who was among
the pickets at the south entrance, that morning when a
blue station wagon drove into the entrance at 6:45 and,
as it passed by the pickets, De Santiago struck it on the
side with the butt end of his picket sign.2 i The driver
continued on into the driveway and passed by Cutshall
without slowing down.22
Shortly after that, the Couse incident occurred. Cut-
shall testified, "I observed a small gray import trying to
come onto the Desert Inn property. The picketers .. .
had stood in front of the vehicle to prevent it from
moving. The driver of the vehicle was inching onto our
property and did come to a complete stop. At that time I
seen Mr. De Santiago ... . in the front of the vehicle,
place his hands . . . on the hood. Walk around to the
driver's side of the vehicle, bend down as though he was
saying something . . . get up, take two hands and strike
20 Cutshall had never seen De Santiago until that morning and only
learned his name from the employee 's driver's license
21 During cross-examination , Cutshall said he was not sure if the blow
struck the driver's or passenger 's side of the station wagon During cross-
examination , Cutshall stated that De Santiago was standing near "the
back rear left corner panel" at the time of the incident and that, while he
did not see the contact , he observed "the motion and I heard the sound "
In any event , this incident was not a factor in the decision to terminate
De Santiago
22 Cutshall did not think to report either incident to his superiors Ini-
tially, as to the entire range of activity at the south entrance , he believed
it to be "general picketing activity" not severe enough to warrant a
report As to pickets throwing themeselves across the hood of cars, Cut-
shall attributed this activity to "one of the Mexican fellows,"who stopped
doing it after the security officer motioned for him to stop As to the sta-
tion wagon incident , the individual never stopped the vehicle and -"my
job is to report when a person wants to make a complaint " Cutshall ac-
knowledged that the Couse incident would have gone unreported had
not Couse complained
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the vehicle with his sign" 'after raising it level with his
head and by swinging downward. The blow was 'deliv-
ered with the flat wood side of the sign "about the
center of the hood" and "I could only- see one blow ..' .
that I was absolutely 100 percent sure of." At that point,
the car began moving forward; as it passed, several pick-
ets pounded on the car with their hands and kicked it
and, once again, Cutshall observed De Santiago move-his
picket sign "up and down" in a stabbing motion in the
area of the vehicle's left rear quarter panel. This time
"[he] didn't see the point of impact." The driver finally
was able to escape the pickets. He drove a short distance
into the driveway, stopped, and got out of the car. The
vehicle was "close by". to where Cutshall was, standing
and "I proceeded over that way." Simultaneously, or not
longer than 30 seconds after the driver exited his car, a
Las Vegas police patrol car came into the entrance. One
uniformed _officer 23 was in the car, and, the damaged
car's occupant who, Cutshall later learned, was Couse,
reported that his vehicle had been struck by. a picket.
The officer turned to Cutshall who, by then, had arrived
at the parked car, and asked Cutshall if he had witnessed
the incident and could identify the wrongdoer. Accord-
ing to the security officer, 24 he answered affirmatively.'
Thereupon, he and the. policeman got into the patrol car
and drove down the picket line, and Cutshall pointed 'out
De Santiago who, 'by' then, was walking, without a
picket sign, along the sidewalk 'midway between 'the
north and south entrances. The officer motioned for De
Santiago to walk back to Couse's car and then the officer
drove back over to it.' At that point, Cutshall went inside
the hotel to ,obtain some security 'r'eport forms. ' He're-'
turned a few minutes later to where Counse 's car was
parked. By then, Cutshall's superior officer (his sergeant)
was' present as was a second uniformed policeman, Gary
Hood '25 who was filling out the required police 'reports:
Utilizing the driver's licenses of De Santiago'and Couse;
Cutshall thereupon prepared his own report" of the in-
23 'Cutshall said this policeman \'as not Gary Hood,' whose testimony.
is reported infra t ' ,
24 Cutshall said the first person to whom he spoke was the police offi-
cer; however , he thought he was the one who . initially pointed put the
damage to Couse's car but was not sure when , '
With regard to the extent of the damage, Cutshall seemed 'to minimize
it, stating "he had a slight wrinkle in the hood," not reaching-the level of
a.true dent , which Cutshall described as "a large depression " Basing
such on his experience of operating an automobile body shop , Cutshall
did not believe the "wrinkle" had to be repaired as it would not be visi-
ble to an observer unless light was reflected from it in the ) right way. As
to scratches,. Cutshall characterized such, if indeed they existed , ' as mere
"surface scratches " : 1 " ,25 Cutshall did not se Hood arrive m`hispatrol car but assumes he
was' a backup ' Also; two, plainclothes officers ' eventually amved at -the
facility at some point '' ' - - -' '' • . . ',
Cutshall maintained that he was the only security guardwho had wit-;
nessed . the incident , that he had not, called the, police ,,and that the first
patrol car officer presumably "had seen the commotion ." As to who was
responsible for reporting ' any 'matters to the'police,`Cuts'hall'said;the'ie-1
sponsibility,for such was that 'of his sergeant 's - - • ", i i l
26.Cutshall 's report, R Exh 1, is in two .parts The upper ,portion is a'
narrative of what' he observed, and information ,therein is "mine The
lower portion contains mformatidn regarding Couse' and De Santiago'
Although the source of such is not at all clear from the record , Cutshall
apparently obtained the information from the driver's licenses The narra-
tive portion reads as follows , . i
At approximately 7.15/am this date, while stationed ,on the main.
hotel entrance drive south end, this R/O observed the following A
cident. As to the contents, the security officer maintained
that such was what he observed-"My job is not to lie."
During cross-examination, he reiterated that after placing
his hands on the front of Couse's stopped car, De San-
tiago moved around to the driver's side, bent over, and
peered into the side window.- If the employee spoke to
Couse, Cutshall heard'nothing. On this point, the latter
was confronted' with his pretrial affidavit where he
stated, "I heard De Santiago say something to the driver
as he looked through the driver's window." Also, Cut-
shall testified that, when-the pickets stopped Couse's 'car
at the entrance, De Santiago was off to' the side, with his
back turned to the car. In his pretrial affidavit, the secu-
rity officer placed De` Santiago in front ' of the car as it
was blocked from moving forward.
Appearing as a witness for the General Counsel was
Las Vegas police officer Gary Hood. He testified that at
7:45 a.m. on April 2, he "received a radio dispatch from
my dispatcher" to report to the Desert Inn "on a disturb-
ance call there." It took him 2 or 3 minutes to respond,
and` when he arrived at Respondent's facility, Hood was
hailed by 'two or three security guards who were stand-
ing by a Datsun parked in the south entrance area. The
owner of-the automobile, who Hood later learned was
Dennis Couse, was also standing. next to the car;. the
owner told Hood "that he had attempted to cross the
picket line and when he did one of the picketers struck
his car with a picket sign causing .a dent in the hood of
the vehicle.... He said it, was. struck once.. I, don't
recall if he said it was' struck more than once." Hood
asked if Couse could identify the picket who struck his
car; the,latter said he could do so, and he_pointed out De
Santiago as the malefactor. According to the witness, he
did not approach De Santiago to question him as he was
under instructions not to. go into the picket lines during
the first few, days of the strike. Hood continued, stating
that plainclothes officers had previously.been dispatched
and that he waited, for them to speak; to De Santiago.
With regard to any. damage to the car, Couse showed
Hood a dent in the hood: "[i]t was about midways in the
hood .. . it, was about two.to three inches long" and
"kind of a crease." While at the scene, Hood filled, but a
crime report and had Couse write,'out;a "voluntary state-
ment," describing the -crime. This document, General
Counsel's Exhibit 6, reads as follows: "I was going into
the Desert Inn Hotel at 7:15/am and as I, went across the
picket line, a, picket struck my car causing damage, to the
hood. D. I. security.were right there to witness the inci-
dent." Finally, Hood testified.. that he was'not the only
uniformed, officer, at the scene:.,`[t]here was a backup
unit sent to assist, me until plainclothes officers arrived."
He added'that this other policeman spoke. to no one and
left after the plainclothes officers came.'
Shawn Gonzales, the ,wife. of Larry Gonzales, and d cur-
rently, employed at .Res'pondent's, facility. as a pantry.
-person, testified; that, although it was her day off, she.arJ'
grey Datsun Maxima vehicle tried to come across the picket line at
the south end main drive when a picket carver struck the hood area
of the grey Datsun causing minor hood damage Metro unit respond-.
ed'and 'crted the individual that'damaged-the vehicle, on i malicious
mischief charge. ' '
DESERT:WINN COUNT X'-CLUB
rived in the area of the picketing at some time between
7:20 and 7:2527 on the morning of April 2. She parked
her car near a department store not far from the facility
and walked north on the sidewalk along Las Vegas Bou-
levard toward it. As she approached the pickets at the
southern entrance, her husband said to her that "Mike
De Santiago had just been hit by a car and he pointed to
a man that was getting out of a ear." According to
Gonzales, she immediately recognized Dennis Couse as a
former employee and as one with whom she was- dealing
in the grapefruit juice. testing that was ongoing. She told
her husband the man was Couse: "So then I started look-
ing around for a security guard. I didn't see [one]. By
that time, Couse `had walked into the hotel. He came
back out, maybe fifteen to twenty minutes later, with a
security guard and they went over to his. car and they.
were standing there ... . [when] a patrol car pulled up
with two officers and then the security guard went over
to the hotel and stood on the corner of the hotel, facing
the driveway." Shortly thereafter, four plainclothes offi-
cers arrived. Shawn maintained that no security guard
was at the south entrance when she arrived there that
morning; that the nearest one was 40 yards away near
the main doors; that this was significant to her because
she was the daughter -of a policeman and knew that, if
trouble occurs,' one should seek out a'security guard or
policeman; that, if a guard had been present, she would
have requested that lie speak to De Santiago; and that
she did not know the guard near the main doorway and,
therefore, did not know if he would be sympathetic to-
wards the pickets. In her testimony during cross-exami-
nation, the witness said there was "no possible' way" she
could have arrived at the hoteP as late as 7:45 aim.; how-'
ever,' in her pretrial affidavit; Shawn said 'her arrival time
was "a few minutes after 7:45 a.m." Averring that she
told the'Board agent that` the' time was wrong, Gonzales
nevertheless initialed ^ and - executed • the affidavit •and
swore to the truth -of -the contents. Finally; 'after stating
that she and Couse were friends, Shawn testified that, on
the • Saturday before the strike, Couse spoke to her and
asked if she thought a stake would' take place.' She an-
swered' yes and Couse responded,' "[I]f you see me
coming, you better jump out of the'way, because I am
going to run you all over." Couse specifically denied
making 'such a comment, and Gonzales admitted saying
in her pretrial affidavit that, at the time, she believed'
Couse was "joking" when he said it. '
' Forrest-Woodward,'Respondent's`executive vice presi-
dent', testified "that he was informed -of- the Couse=De
Santiago' incident at approxiniately 9.30 a.m. on April 2
and that 'after' an "exhaustive amount • of work in that
area," he reached the decision to ' discharge De _ Santiago'
"very 'late in 'the day` and directed'tha't' a telegram 'stat-
ing the grounds foi such,' be ' sent to 'the' eployee.' •His
decissioh •was 'reached 'in' consultation with Respondent's
labor relations -staff and'was based on'a iepoit from the'
security staff, on' the police report of the incident,' on'
viewing the damaged vehicle, and on speaking directly
27 According to the witness , she could exactly fix the time because she
had'taken her daughter to school and it, takes , 15, to 20 minutes to get to
Respondent 's facility from there ,
7,95
to Coiise; who told Woodward "that as he was entering
the property, that Michael had . . . taken the picket sign
and hit his car. I don't remember if it was two or three
times and that is where the dents came from on the
hood." During cross-examination , Woodward admitted
that his decision was made without having spoken to De
Santiago (he was picketing); that the decision was based
solely on the Couse incident; that Couse had not been a
hotel guest (why he was at the hotel was not "germane"
to the matter); and that, in his own pretrial affidavit, he
said he could not recall how many times Couse said his
car had been struck but it was more than once.
B. Analysis
The law governing my decision herein is well settled.
Thus, "Section 7 of the Act gives employees the right to
peacefully strike, picket, and engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection." Clear Pine Mouldings,
268 NLRB 1044, 1046 (1984); Newport News Shipbuilding
Co., 265 NLRB 7,i.6, 718 (1982). In all cases involving
either' the discharge of or the refusal to reinstate strikers
for having engaged in alleged acts of picket line miscon-
duct, "the burden of proving discrimination is that of the
General Counsel." Rubin Bros. Footwear, 99 NLRB 610,
611 (1952). In this regard, the General Counsel must first
establish that the individual was, in fact, a sinker and
that an employer took some action against him for con-
duct. while said individual engaged in the strike. At that
point, the burden shifts to the respondent which must
prove,that it entertained an honest belief that the striking
employee has engaged in misconduct. Such constitutes
an adequate defense to a charge that the discharge or re-
fusal to reinstate was violative of the Act except where
the General Counsel affirmatively establishes that the
employee did not, in fact, engage in such misconduct or
that `the misconduct is not so flagrant or egregious so- as
to warrant discharge or denial of reinstatement. Newport
News Shipbuilding, supra; Laredo Coca Cola Bottling Co.;
258 NLRB 491, 496 (1981).
Herein, the record clearly establishes-and there is no
dispute-that the Charging Party De Santiago participat-
ed in the union-represented employees' strike and partici-
pated-in the picketing against Respondent, which com-
menced, during the morning of April 2, 1984. Further,
there' is equally no dispute that he was discharged for
strike-related activities, the• exact nature of which is in
contention: The burden, I believe, thereby shifted to Re-
spondent to prove that it honestly believed De Santiago
engaged in the alleged picket line misconduct for which
he was terminated: "repeatedly and maliciously" striking
the' automobile, owned by Dennis Couse, with his picket
sign as Couse attempted to drive onto Respondent's
property through the southern entrance from Las Vegas
Boulevard on April 2. In this regard, the testimony of
Forrest' Woodward, that he reached his decision to dis-
charge' ' De Santiago based -'on Respondent's security
guard's and the Las Vegas police department's reports of
the above incident, on his view of the damage done to
the hood of Louse's Datsun Maxima automobile, and on
Couse's own version of the incident, was'uncontrovert-
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed. That the factors, relied on by Woodward, confirm
the allegations set forth in Respondent's discharge tele-
gram which was received by De Santiago on April 5 is
clear. Thus, there is no dispute that the hood of Couse's
automobile was damaged, to some extent, by De Santia-
go's picket sign on April 2, and the police report filed by
Las Vegas police officer Gary Hood;-,the police- state-
ment written by Dennis Couse at the scene of the inci-
dent; and security guard Steven Cutshall's report of the
incident all detail-the fact that De Santiago -did, indeed,
act in , the ,manner as asserted by Respondent's discharge
telegram. Accordingly, based on Woodward's testimony
regarding what factors-he relied on in-deciding to dis-
charge De Santiago and the existence of 'the foregoing
corroborative materials, I find that Respondent did estab-
lish that 'it reasonably and honestly believed that De San-
tiago engaged in the above alleged picket line miscon-
duct. - • '
However, as recognized by all parties herein, the crux
of the instant matter is-whether, in • fact, De Santiago
acted in the manner asserted by Respondent or was he
the innocent victim of negligent driving by Couse? Put
another way, whose 'version' of the' April 2 incident
should be credited: that.,of-Couse or that of De Santiago?
If the latter,, then the General Counsel has established
that De Santiago did not engage in the, alleged, miscon-
duct, and his discharge must be found to have violated
the Act. In assessing the credibility-.of -theseveral wit-
nesses, I have considered the demeanor of each while
testifying and the' record as-a's a whole, scrutinizing it for
internal testimonial inconsistencies and contradictions as
well as for contradictions between supposedly corrobora-
tive witnesses. By.far; the most impressive-witness was
Las Vegas police officer, Gary Hood. His demeanor was
that of an honest and candid -.witness; he exhibited an ex-
cellent recollection of what he was told, observed, and
did in connection with his investigation of the -incident;
and he had absolutely no interest (pecuniary, personal, 'or•
other) in the outcome of this proceeding. 'Therefore, his
testimony is' credited' and relied upon in fall- aspects. 'He
testified - that he arrived at Respondent's facility at' ap-
proximately 7.45 a.m. pursuant to a dispatch regarding a
disturbance. and was hailed by security guards and
Couse: Although he did not, so state, the inference is cer-
tainly warranted that he was the initial Las Vegas police
officer' to arrive at the scene.28 This 'gives, credence to
the. testimony of Shawn Gonzales-who stated that, when
she arrived, she saw no Desert Inn security guard' in the
vicinity of the south' entrance 'and"-observed Dennis
Couse , walk into, t - 'h6hotel .; She ; testified further that
Couse emerged. from the hotel 15-minutes later, •accom-
panied'by'a security' guard; that they walked .over `to 'his
car, and that moments later,` a Las Vegas'police car `ar-
rived and 'pulled up, next to where ;they were standing.
Based on the corroborative testimony of Hood; including
the 'permissible -inferences drawn `from- it,` -and her testi-
monial demeanor which was that of a forthnghtwitness,
28 Hood testified that he immediately questioned Couse as to what
happened, that Couse identified De Santiago as the employee involved,
and 'that a, backup was sent to assist him' If'Hood had, been the backup,
the latter would have been unnecessary ' ' ' . 1 '
I credit Shawn Gonzales in the above regard and believe
that the disturbance call to which officer Hood respond-
ed that morning was, placed by Respondent's security
staff while Couse was inside the facility.29
Of course, crediting Shawn Gonzales that no security
guard was in the vicinity of the south entrance at the
time of the incident'necessanly leads to the conclusion
that security officer Cutshall not only did not' witness
what occurred that morning but also fabricated his testi-
mony in that regard. Initially, he appeared to be a rather
disingenuous witness; one whose manner was that of an
individual trying harder than seemed necesary to con-
vince me of his inherent honesty, conduct which had the
opposite effect. Further, several rather blatant contradic-
tions between his version of the incident and that of
Couse buttress this finding. Initially Couse, internally in-,
consistent on 'this point, testified finally that; at all times
during the banging and kicking on his car, he .was slowly
moving forward and never came to a complete stop.
Cutshall, on. the other hand, described Cause's Datsun
Maxima as inching onto Respondent's property but
coming to a complete stop with De Santiago standing in
front of it. Next, Couse stated that the Charging Party
first struck the hood-of the car with his picket sign and
then glared at him through the; windshield for at least 5
seconds. Also Couse never described De Santiago as
speaking to him. Contrast this with the-testimony of Cut-
shall who stated,that, before striking the- vehicle with his
picket sign, De Santiago.bent over and acted as if speak-
ing to Couse through .the driver's side window. Later,
Cutshall denied hearing what; .if anything, De Santiago
might have' said 'but' admitted stating in his pretrial affida-
vit that-he did, indeed; hear what was said Third, in per-
haps the most' significant •cbntradiction,-.Couse- insisted
that De Santiago: delivered -two separate 'blows to the
hood of his -car: with. his picket sign ; however, Cutshall
testified, "I• could only see one blow .- . that' I was ab-
solutely 100 percent 'sure of.'!- Further,' 'if De Santiago
again' struck `the car; Cutshall observed him making a
stabbing motion with his picket sign at the left rear guar-
ter panel of Cause's' car but' did not see the- impact
Couse mentioned no such blow to his car. Finally, Couse
testified that-'when he stopped' his car after driving past
the pickets,; the hotel security guard walked over to'it,
looked at the hood, 'and exclaimed," [M]y god, do you
see what 'they did to your car?" Cutshall failed- to' cor-
roborate this utterance but did' state that the first -person
he' assertedly 'spoke 'to when "'he got to the `car" was''a
police `officer' who arrived ' simultaneously.' In this `regard,
the`"nature of the remark attributed fo the security guard
by - Couse' suggests'- rather serious, `and -extensive damage
to the car 'However, -Cutshall appeared to be attempting
to 'minimize` the'damage, referring to what' he `observed
as a 'mere crease -rather than a dent and`desci ibing- it 'as
'not- readily apparentf to' anyone ` unless viewed in ` the
29 In crediting Shawn Gonzales, I am fully cognizant of the discrepan-
cy between -her testimony 'and pretrial affidavit regarding her arrival time
at Respondent's facility that morning I shall make no effort to reconcile
this except to note that I was not present at the taking of the affidavit
and'base my' concltision on her demeanor at the hearing and the record
as a whole
DESERT INN, COUNTRY CLUB_
properly reflected light. Besides the foregoing crucial
contradictions, another aspect of Cutshall's account
seemed contrived. Thus, with instructions "to 'observe
and report ""on matters involving the picketing, he admit-
tedly failed to immediately report on the deliberate
blocking of cars entering onto Respondent's property
through the south entrance, pickets throwing their bodies
across the hood of incoming vehicles, and an act of _vio-
lence by De Santiago (striking the side of a blue 'station
wagon, as it entered onto Respondent's property, with
his picket sign). His explanation for failing to report
these serious events seemed out of character with how
Cutshall described his responsibilities as a security guard
and was utterly unconvincing and,- in these circum-
stances, I do not believe that any such incidents oc-
curred. In short, I found Steven Cutshall to be a witness
not worthy of belief and do not credit or rely on his as-
sertedly corroborative testimony herein.30
We are left, then, with the testimony," on the one' hand
of De Santiago and of his assertedly corroborative wit-
nesses, Larry Gonzales and Dennis Masanimptewa, and,
on the other, the version of Couse as to what occurred
on the morning of April 2. Analysis of the record alone
reveals credibility problems with each witness. Thus,
both De Santiago-and Gonzales testified at the hearing at
variance with their respective `pretrial affidavits; Masan-
imptewa's testimony is inconsistent with that of De, San-
tiago; and the testimony of Couse reveals internal and
external contradictions as well, as contradictions with his
pretrial affidavit. • Considering 'the testimonial, demeanor
of each, . I believe that Dennis Masanimptewa appeared
to be the ,most candid and forthright of -the three and
that he honestly was trying to recount what he observed
that morning. He, of course, testified that the car, driven
by Couse, having completed•a.left turn into. the south en-
trance from Las Vegas Boulevard; could: not come to ;a
complete stop in time to avoid colliding-.with De San-
tiago, who was paying no attention, and'struck the latter
in, the area of his. right knee, causing him to topple and
land with his, picket sign on the roof of the car-and then
slide off to the ground. I credit this, account as being=the
true version of the incident. Having so-stated, I do not
credit or rely on the versions of either, De, Santiago or
Gonzales except to the extent that each testified that the
car driven by Couse struck De Santiago._ The contradic-
tions between his testimony and pretrial affidavit i con-
vince me that, in reality, the Charging Party had not
recollection of exactly what happened when struck,by
the car and that his most candid testimony .was his ad-
mission ,: It all happened .so fast. : . . I'm still , it. littler bit
confused 'as: to immediately; what happened.;, Likewise,:I
do •not believe that Gonzales could possibly ,have accu-
rately,1perceived what happened,- at the: moment of impact
given his ,admission that, as- the car came ;upon 'De San-
tiago, he was, jumping back, apprehensive/that it,was not
going to _stop.. As to Dennis Couse, ;while his testimonial
demeanor compared' favorably to that of De Santiago
30 With regard to the initial portion of his. incident report, there is
nothing therein that Cutshall could not have learned from listening to
Gary Hood question Couse on the former's arrival at the scene Further,
,I credit Hood that it was Couse who identified De Santiago , as the male-
factor and, in so doing, discredit Cutshall that he identified De Santiago
797
and Larry Gonzales, as between Masanimptewa and him,
based on -my, above-stated perceptions, I credit the testi-
mony ,of the former .31 , Couse had every reason to fabri-
cate what occurred32 in order to cover up his-own neg-
ligence;33 whereas I found no such' comparable bias' in
the testimony of Masanimptewa, who is,still employed
by Respondent and thus, testified against his own self-in-
terests. ,
Based on the foregoing findings, I believe that the inci-
dent, for which -De Santiago was discharged by Respond-
ent. did not occur and that Respondent, in good faith,
relied on the fabrications of Dennis Couse in doing so.
Accordingly, the- record establishes that De Santiago was
engaging in activity, protected by Section 7 of the Act
on the morning of April 2: peacefully picketing in sup-
port-.of a strike by union-represented employees against
Respondent; that he was discharged for alleged miscon-
duct in the course of such;, and that said misconduct
never occurred. In these circumstances, the discharge of
.De Santiago was violative of Section 8(a)(1) of the
Act. 34
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act. = i
2. The Union is a labor organization within the mean-
ing of Section ' 2(5)' of the Act. '
3:''By unlawfully discharging employee Miguel E. De
Santiago. about April 5, 1984, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
4. Said conduct affected the commerce between , the
States as defined by the Act. '
'THE REMEDY
• .Having found that Respondent- has engaged in, and is
engaging in, unfair labor practices, -I shall recommend:tht
it=be,ordered to cease and desist therefrom and take-cer-
tain. affirmative action designed to effectuate the policies
of ,the Act., I have found that Respondent discharged
31 Although placing no reliance on the . testimony of De Santiago•'and
Gonzales! regarding the collison between Couse's car and De Santiago, I
acknowledge the inconsistencies between their testimonies and that of
Masanimptewa, on which I rely, and I think that said contradictions'do
not `detract from the basic nature of the event to the extent that to those
present in the allegedly corroborative testimonies of Couse and Cutshall
In any event,. my, credibility resolution, between. Masanimptewa and
Couse is based'on'the honest demeanor of the former
As'to the aftermath of the incident, noting 'that' Dennis Masanimptewa
heard nothing said • by'De Santiago but also noting that he could have
been as much as 80 feet from the impact point, - I find that, in all likeli-
hood, De Santiago did yell to Couse that had he,been given a chance, he
would have moved[ out of the path of Couse's car Further, given their
agreement on this point , I also find that Couse shouted obscenities at De
Santiago and challenged him to a fight after moving his car away from
the picket line area and to the side of the entranceway .
1432 I place no reliance on the. assertion of Shawn Gonzales that, shortly
before,the onset of the strike, Couse confided to her that he would run
over the pickets` Notwithstanding the latter 's denial , she admitted stating
in a pretnal affidavit that he was joking, and I do not believe Couse de-
liberately struck De Santiago on Apnl 2
82 Couse admitted having no automobile insurance as it had "lapsed "
34 Inasmuch as the remedy is the same, I need not decide whether Re-
spondent's conduct is also violative of Sec. 8(a)(3) of the Act
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miguel E . De Santiago in violation of Section 8(a)(1) of
the- Act. In accordance with Board policy,35 I shall,
therefore, recommend that Respondent be ordered to
offer De Santiago immediate and full reinstatement to his
former position or, if such no longer exists , to a substan-
tially equivalent position without prejudice to his seniori-
ty or other rights of employment and to make him whole
for any loss of his lawful discharge by payment to him of
a sum of money equal to what he would have earned
from April 5, 1984, until the date of an offer-of reinstate-
ment , less net earnings during this period , with interest
thereon , to be computed in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1917). 36 It shall fur-
ther be recommended that Respondent be ordered to
post a notice and remove from its records any mention
of the discharge of De Santiago.
On these findings of fact and conclusions of law and
on the entire record , I issue-the following recommend-
ed37
ORDER
The Respondent , Summa Corportation d/b/a Desert
Inn Country Club & Spa, Las Vegas , Nevada, its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Discouraging the protected concerted activities' of
its employees by discharging . its employees for having
engaged in lawful picketing during a strike.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Offer Miguel E. De Santiago immediate and full re-
instatement to his former job or, if -that job no longer
exists, to a substantially equivalent position , without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy- section of the decision. ,
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel , records and reports, and all other records - nec-
essary to. analyze the amount of backpay due under the
terms of this Order.
ss Seminole Mfg. Co., 272 NLRB 365 (1984); Abilities d Goodwill, 241
NLRB 27 (1979), enf. dented on other grounds 612 F 2d 6 (1st Cir. 1979).
98 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
91 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
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-
(c) Remove from its files any reference to the unlawful
discharge of Miguel E. De Santiago and notify the em-
ployee in writing that this has been done and that the
discharge will not be used against him in any way.
(d) Post at its facility in Las Vegas, Nevada, copies of
the attached notice marked "Appendix."38 Copies of the
notice, on forms provided by the Regional Director for
Region 31 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable-steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. • -
(e)_ Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
se 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage the protected concerted ac-
tivities of our employees by discharging- them for having
engaged in lawful picketing during a strike. -
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 offer Miguel E. De Santiago immediate and
full reinstatement to his former job or, if such job no
longer exists; to a substantially equivalent job, without
prejudice to his seniority or other rights of employment
and WE WILL make him whole for any pay that-he may
have lost as a result of his-discharge, with interest.
WE WILL expunge from our files any,reference to the
discharge of Miguel E. De 'Santiago, and, notify him' m
writing that this has been done and that evidence of such
unlawful action will not be used as a basis for future dis-
cipline of him.
SUMMA CORPORATION D/B/A DESERT INN
COUNTRY CLUB & SPA