El Cortez Hotel

National Labor Relations Board - Board Decisions

Sep 29, 1966

160 N.L.R.B. 1442 (N.L.R.B. 1966)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or team effort required for the production of lip-to-ille-minute, pro-
fessionally prepared news programs in keeping with the standards
maintained by the Employer. That such work is essentially produc-
tion rather than supervisory work seems all the clearer to us when we
consider that five of the six newsmen regularly perform work both
as deskmen and as newsmen under deskmen, and thus at different
times come under the direction of each other, depending upon which
one is performing as deskman at a particular time. In view of all the
foregoing, we find that the deskmen are not supervisors within the
meaning of the Act.6
We also reject the Employer's contention that the newsmen should
be included in the unit of actors, singers, announcers, and newscast-
ers. The newsmen do not perform on-the-air duties and, in any event,
the Union representing the "talent" unit does not seek to represent
the newsmen.
On the basis of the foregoing and the entire record in this case, we
find that the following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) (2) of the Act.
All newsmen who do not do any on-the-air announcing employed
in the Newsroom Department of the Employer's radio station,
KNRB, KNRB-FM in San Francisco, California, excluding all
other employees.
[Text of Direction of Election omitted from publication.] 7
"we do not view the deskmen 's authority to make assignments to employees iNho are off
duty as establishing their supervisory status v Rhin the meaning of the Act Such authority
is exercised only in emergencies, and such emergency duty is a normal and expected func-
tion of employees in this field we thus view the exercise of the authority as little more
than routine. In any event, the record does not establish that it is exercised on other than
a sporadic basis
7 An election eligibility list , containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 20 within 7 days
atter the date of this Decision and Diiection of Election. The Regional Director shall
make the list available to all parties to the election No extension of time to file this list
shall be granted by the Regional Director except in extraordinary circumstances Failure
to comply with this requiiement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236.
Exber, Inc., d/b/a El Cortez Hotel and American Federation of
Casino and Gaming Employees . Case 20-CA-3151. Septem-
ber 29, 1966
DECISION AND ORDER
On May 18, 1966, Trial Examiner Maurice S. Bush issued his Deci-
sion in the above-entitled proceeding, finding that the respondent
160 NLRB No. 115.
EXBER, INC., D/B/A EL CORTEZ HOTEL 1443
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to
those allegations. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a supporting brief, and the General
Counsel filed an answer to the Respondent's exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby. affirmed. The Board has considered the entire record in
the case, including the Trial Examiner 's Decision , the exceptions, the
answer to exceptions , and the supporting briefs, and hereby adopts
the findings , conclusions , and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Housed in a small and undistinguished older building, the El Cortez Hotel casino
in downtown Las Vegas , Nevada, has all of the gambling accouterments of its
larger and better known competitors both in Las Vegas and on the outlying fab-
ulous Las Vegas "Strip ," such as crap tables , blackjack games, roulette wheels,
keno, poker, and slot machines.
Between June 22 and 28, 1964 , the El Cortez discharged 5 of its crap table
dealers out of its approximately 45 gaming employees . The complaint charges
that these employees were discriminatorily discharged because of their union activi-
ties in violation of the provisions of the National Labor Relations Act, as amended.
The complaint further charges that the El Cortez also committed other acts infring-
ing on the rights guaranteed employees under the Act to engage in concerted
union activities.
El Cortez ' defense is both technical and on the merits. Of its two technical
defenses , its first is a challenge to the Board 's assertion of jurisdiction over the
labor practices of the Nevada gambling industry and accordingly over El Cortez
as a member thereof . The Company 's second technical defense is the assertion of
a statutory time bar to an amendment to the complaint herein which charges the
discriminatory discharge of two of the five alleged discriminatees. On the merits,
the Company denies all the charges of the complaint . A more detailed statement
of the issues is shown below.
The complaint herein was issued on April 21 , 1965, based on an initial charge
filed on June 29, 1964, and a first amended charge filed on October 19, 1964. The
aforementioned amendment to the complaint , adding two additional alleged dis-
criminatees to the three named in the original complaint , was issued on July 20,
1965. An amendment to this amendment to the complaint was issued on July 28,
1965, which merely added the dates upon which the two additional alleged dis-
criminatees were discharged . The two described amendments to the complaint were
based on a second amended charge filed on July 7, 1965.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent filed its answer to the complaint on April 30, 1965, but did
not file an answer to the aforementioned amendment to the complaint or to the
aforementioned amendment to the amended complaint, but the issues raised there-
under were nevertheless litigated by consent. Pursuant to leave granted by the
Trial Examiner at the trial herein, the Respondent, on September 9, 1965, filed an
amendment to its answer relating exclusively to the allegations of paragraph 4 of
the complaint which sets forth the names of certain individuals, including one
Harry Mills, and alleges that they were both agents and supervisors of the Respond-
ent. Respondent's amended pleading with respect to paragraph 4 of the complaint
admits that all of the individuals named in paragraph 4 of the complaint, except
Harry Mills, are statutory supervisors, but specifically denies that any of the named
individuals were agents of the Respondent' and further denies that Harry Mills
was either a supervisor or agent within the meaning of the Act at any time herein
material.
The case was heard before Trial Examiner Maurice S. Bush at Las Vegas, Nevada,
on August 10 to 13, 1965. Briefs were filed by General Counsel 2 and counsel for
Respondent in the latter part of October 1965. These have been carefully reviewed
and considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent herein is Exber, Inc., doing business as the El Cortez Hotel.
It is engaged in the operation of a gaming casino, hotel, bar, and restaurant, known
as the El Cortez Hotel, at Las Vegas, Nevada. The Company during the past year
received gross revenue in excess of $500,000 in the course and conduct of its
business operation. The El Cortez during the past year also purchased and received
goods and supplies valued in excess of $50,000 from other enterprises located
within the State of Nevada which originated from outside the State of Nevada.
It is found that Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION
The American Federation of Casino and Gaming Employees, herein called the
Union, is a labor organization within the meaning of the Act .3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether the National Labor Relations Board should assert jurisdiction over
employers engaged in the gambling industry in the State of Nevada, such as
Respondent?
2. Whether the amendment to the complaint charging the Respondent with Sec-
tion 8(a)(3) discriminatory discharges of David Conner and David H. Waggoner
is time barred under the provisions of Section 10(b) of the Act?
3. Whether the Respondent, through its Supervisor Albert Faccinto, interrogated
employees concerning union activities and membership in May and June of 1964
in violation of Section 8(a)(1) of the Act?
4. Whether the Respondent, through its Supervisor Thomas Musso, interrogated
an employee on or about June 18, 1964, concerning his union membership- and
activities in violation of Section 8(a)(1) of the Act?
i Under the, state of the evidence of record, in view of Respondent's admission that the
named individuals are statutory supervisors, except Harry Mills, the issue raised by the
pleadings with respect to whether these persons aie also agents of the Respondent becomes
immaterial and will not be discussed
2After the hearing the General Counsel filed a motion to correct the transcript. No
objections having been filed thereto, and it appearing proper, the General Counsel's motion
is granted and the record is corrected as prayed therein.
3 Although the answer denies that the Union is a labor organization within the meaning
of Section 2(5) of the Act as alleged in the complaint, the Respondent at the hearing
stipulated that the Union is a labor organization.
EXBER, INC., D/B/A EL CORTEZ HOTEL 1445
S. Whether the Respondent, through its said Supervisor Thomas Musso, threat-
ened an employee with discharge or other economic reprisals on or about June 18,
1964, if he did not refrain from becoming or remaining a member of the Union
or giving any assistance or support to it?
6. Whether the Respondent, through its said Supervisor Thomas Musso, on or
about June 18, 1964, gave employees the impression that the Respondent was engag-
ing in surveillance of their union activities?
7. Whether Harry Mills was an agent and supervisor of Respondent on or about
June 20, 1964, and, if so, whether Mills on or about that time interrogated an
employee concerning the union membership and activities of another employee of
the Respondent?
8. Whether the Respondent, through its Supervisor Rocco Paravia, interrogated an
employee on or about June 23, 1964, concerning his union membership and
activities?
9. Whether Respondent discharged five of its employees in June 1964 because of
their union activities in violation of Section 8(a)(3) and (1) of the Act?
B. Issue as to Board's jurisdiction over Nevada gambling industry
The Respondent at the hearing moved for a dismissal of this proceeding on the
ground that the Board "lacks" jurisdiction over employers engaged in the gambling
industry in the State of Nevada, of which Respondent is a member. The Company
has filed a 25-page addendum brief in support of its motion. From the brief, it
appears that Respondent is not attacking the legal authority of the Board to assert
jurisdiction over the gambling industry of the State of Nevada, but is merely
requesting the Board in its admitted discretionary powers not to assert such
jurisdiction.
The Board, to effectuate the purposes of the Act, has heretofore asserted jurisdic-
tion over certain employers in the gambling industry within the State of Nevada
with gross annual income from gambling operations in excess of $500,000, El Dor-
ado, Inc., d/b/a El Dorado Club,4 151 NLRB 579. In recognition of this, Respond-
ent in its addendum brief acknowledges that its present motion for dismissal of the
complaint on discretionary jurisdictional grounds "is in reality a motion for recon-
sideration of the Board's prior ruling in El Dorado." In connection with this motion
for reconsideration, I, pursuant to Respondent's request, have taken official notice
of certain documents, such as the Nevada Gaming Control Act, ordinances of the
city of Las Vegas dealing with the licensing of gambling establishments, and por-
tions of the transcript in the El Dorado case, which for purposes of convenience have
been submitted to me for my consideration.5
From its addendum brief, it appears that Respondent is seeking a reversal of the
Board's ruling in the El Dorado case to assert jurisdiction over the Nevada gam-
bling industry on the basis of the same facts and arguments presented in that case,
the crux of which is that the gambling industry in Nevada is already adequately regu-
lated by the State of Nevada. The prior determination of the Board in the El Do-
rado case to assert jurisdiction over employers (with the requisite annual revenue)
engaged in gambling operations in the State of Nevada in order to effectuate the
purposes of the Act is binding upon me in the instant case. Moreover, the decision
of the Board in the El Dorado case appears to be more than amply justified in view
of the fact that 75 percent of the persons engaged in nonagricultural pursuits in
the State of Nevada are employed, directly or indirectly, by the gambling industry
within the State and by the further fact that over 20 million tourists are attracted
annually to Nevada, in large part, because of the facilities therein for gambling.6
The record in the present case shows that the Respondent advertises on highway
billboards to attract out-of-State visitors to its casino and hotel. Respondent admits
that approximately 20 percent of its receipts is derived from out-of-State patrons.
The attorneys representing the Respondent herein also represented the Respond-
ent in Hotel Conquistador, Inc., d/b/a Hotel Tropicana, 159 NLRB 1220, which
'It should be noted the present Respondent was also one of the Respondents in the
consolidated El Dorado matter, supra.
° The copies of the Nevada Gaining Control Act, the described ordinances of the city of
Las Vegas, and the partial copy of the transcript in the El Dorado case, thus submitted
to me by Respondent, will be transmitted to the record section for association with the
file herein upon the filing of the Trial Examiner's Decision in this matter
d These statistical findings are from the findings of the Board in the Et Dorado case
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was likewise heard by me just a few days prior to the hearing in the present
matter. The Trial Examiner's Decision in the Conquistador case was issued on
March 4, 1966. Respondent raised the same jurisdictional question and filed an
identical brief thereon in the Conquistador as it does in the instant case. My dispo-
sition of this question is the same in both cases.
I find that Respondent is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise jurisdiction herein.
The motion of Respondent, taken under advisement at the hearing, for a dismissal
of the complaint herein for want of jurisdiction is denied.
C. Issues as to whether the relief sought by the complaint for the alleged discrimi-
natory discharges of David Conner and David Waggoner is time-barred
Respondent has moved for the dismissal of the complaint, as amended, insofar
as it seeks relief for the alleged discriminatory discharges on June 28, 1964, of its
employees David Conner and David H. Waggoner on the ground that the relief
sought is barred by the provisions of Section 10(b) of the Act.
Under Section 10(b) of the Act, a complaint may not be issued without the prior
filing of a supporting charge of an unfair labor practice. Further, under the proviso
of Section 10(b), the issuance of a complaint is barred where it is "based upon an
unfair labor practice occurring more than 6 months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person against whom
such charge is made "
The original charge herein was filed by the Union on June 29, 1964, under which
the El Cortez was charged with the discriminatory discharge of only one employee,
namely, William A. Cox, as of June 22, 1964.
On October 19, 1964, the Union filed a "First Amended Charge Against the
Employer" in which it charged the El Cortez with two additional discriminatory dis-
charges as of June 28, 1964, namely, the discharges of Louis Cantalamessa and
Robert Jones.
The above charges were filed by the Union well within the statutorily fixed
6-month period from the dates of the alleged discriminatory discharges of the three
above-named employees in the month of June 1964.
The complaint herein as originally filed on April 21, 1965, was based on these
two charges.
The Union on July 7, 1965, filed a "Second Amended Charge Against the
Employer" in which it charged the El Cortez with two still additional discriminatory
discharges, namely, the discharges of David Conner and David H. Waggoner as of
June 28, 1964.
Based on this "Second Amended Charge Against the Employer," General Coun-
sel, by amendments to the original complaint filed on July 20 and 28, 1965, has also
charged the Respondent with the additional discriminatory discharges of Conner and
Waggoner. It is these amendments to the complaint that Respondent challenges on
the ground that the alleged unfair labor practices involved in the discharges of Con-
ner and Waggoner on June 28, 1964, took place more that 6 months prior to the
filing on July 7, 1965, of the Union's "Second Amended Charge Against the
Employer," contrary to what Respondent claims to be the express prohibition of
Section 10(b) against the issuance of a complaint relating to "any unfair labor prac-
tice occurring more than six months prior to the filing of the charge with the
Board. .. .
Discussion and Conclusion
Counsel for General Counsel contends 7 that the amendments to the complaint
charging Respondent with the unlawful terminations of Conner and Waggoner are
timely, notwithstanding the fact that the Union's "Second Amended Charge Against
the Employer" with respect to the discriminatory discharges of these two former
employees was filed and served more than 6 months after their discharge because
their terminations took place in the same week as the terminations of Cox, Canta-
lamessa, and Jones and resulted from the same alleged unfair labor practices as
charged in the Union's timely filed original charge and "First Amended Charge
Against the Employer" with respect to the alleged discriminatory terminations of
Cox, Cantalamessa, and Jones.
G As stated in oral argument at the commencement of the hearing, but not otherwise
covered in General Counsel's brief
EXBER, INC ., D/B/A EL CORTEZ HOTEL 1447
Government counsel has cited N.L.R.B. v. Local 1423, Carpenters (Columbus
Show Case Co.), 238 F.2d 832, in support of the above contention. The pertinent
holding of that case is succinctly stated in one of its headnotes as follows:
Where amended charge contained averments of the same type of discrimination
originally alleged, resulted from the same employer activity and union policy
complained of, and was so closely related in point of time to discrimination
originally charged as to warn union of necessity of preserving any available evi-
dence concerning dispute, complaint could be predicated upon charges included
by amendment , even though same was not filed within six months of time when
alleged discrimination occurred.
Respondent's brief is silent on the applicability of the court 's opinion in Local
1423 and other similar cases to the facts of the instant matter.
More recently the Board in Stainless Steel Products, Incorporated, 157 NLRB 232
has even more directly held that a charge filed more than 6 months after the dis-
charge of an alleged discriminatee is valid where the discharge of that employee
" . was related to and arose out of the same situation as the conduct alleged
to be unlawful in the timely filed charges ... alleging that Respondent violated Sec-
tion 8(a)(3) of the Act."
The record herein as will appear below shows that the Respondent's alleged dis-
criminatory discharge of Conner and Waggoner "arose out of the same situation as
the conduct alleged to be unlawful in the timely filed charges" of Section 8(a)(3)
violations with respect to employees Cantalamessa and Jones.
I find and conclude that the amendments to the complaint charging the Respond-
ent with discriminatory discharges of employees Conner and Waggoner were timely
filed under the circumstances 8 stated above.
Accordingly, Respondent's motion for a dismissal of the complaint, as amended,
insofar as it seeks relief for the alleged discriminatory terminations of Conner and
Waggoner, on the ground that the relief sought is barred by the provisions of Sec-
tion 10(b) of the Act, is denied.
D. Background facts
The Respondent Exber, Inc., doing business as noted as the El Cortez Hotel, came
under its present ownership and management on January 1, 1963, when an individ-
ual by the name of Mel Exber and one John D. Gaughan (referred to in the com-
plaint as Jack Gaughan) each acquired 49 percent of the outstanding stock of
Respondent. Gaughan is both president and treasurer of Respondent. Donald L.
Dobson, who owns no stock in the Company, has been its secretary and general
manager since January 1, 1963.
Both Exber and Gaughan have cross interests in other licensed gambling establish-
ments in or near Las Vegas. One of these is in a corporation 9 doing business as the
Las Vegas Club. Exber owns 29.8 percent and Gaughan owns approximately 33
percent of the stock of that corporation. The remaining stock of the Las Vegas Club
is owned by some 13 persons . Mention will be made of only four of these persons
as they are associated with the management of Respondent and have testified herein,
although they do not own any stock in Respondent. They are the aforementioned
Donald L. Dobson, secretary and general manager of Respondent, who owns
approximately 5 percent of the stock at the Las Vegas Club; Thomas Musso, shift
boss of the graveyard shift at the El Cortez and prominent figure in the instant pro-
ceeding, who owns 1 percent of the stock of the Las Vegas Club; Albert Faccinto,
presently day-shift boss at the El Cortez, who owns 3 percent of the stock of the
Las Vegas Club; and Rocco Paravia, presently swing-shift boss at the El Cortez, who
owns 1 percent of the stock of the Las Vegas Club.
By apparent agreement between Gaughan and Exber, Gaughan runs the El Cortez
with the assistance of a general manager (Dobson) and Exber runs the Las Vegas
Club with the assistance of a general manager . Dobson, who as noted is secretary of
the El Cortez, is also secretary of the Las Vegas Club, and was formerly general
manager of the Las Vegas Club. Gaughan and Exber serve on the board of directors
8 These circumstances will be detailed in the findings below relating to the discharges of
Cantalamessa, Jones, Conner , and Waggoner.
6 The legal name of this corporation is the E.G and H Company, but as a matter of
convenience it will be referred to as the Las Vegas Club.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of both casinos. The record shows that many of the gaming employees of two
casinos shift their employment back and forth between the two gambling
establishments.
Gaughan also has a financial interest in the well known Flamingo casino on the
"Strip." It is his policy to "promote" dealers who have gained experience and
become highly skillful at the El Cortez to better paying jobs at the Flamingo.
The El Cortez, one of the smallest casinos on the main street of Las Vegas, oper-
ates 24 hours a day in 3 shifts, and employed at the times here pertinent approxi-
mately 45 dealers for use on such games as craps, blackjack, roulette wheels, keno,
and others. Under company policy, a large number of its dealers, about 40 percent
on the average, are apprentices or "break-ins." Apprentices are used to keep ex-
penses down and thus enable the casino to allow lower minimum bets. A completely
new apprentice starts in as a "shill." The term is used to describe an employee who
is hired by a casino to start activity at an inactive crap or blackjack table or other
games. Starting wages for a shill is $10 per day and wages advance by degrees as
experience and skill is gained. The El Cortez pays a maximum of $22.50 a day for
experienced crap and blackjack dealers.
Each crap game is manned by three dealers and a boxman who 'sits at the center
of the crap table and presides over the game. The primary function of the boxman
is to see that cheating is avoided and to protect the interests of both the casino and
the players at the table. Described somewhat differently, the duty of a boxman is to
oversee the game, make certain that there are correct payoffs, and handle the
money.
On June 22, 1964, the El Cortez discharged one of its crap table dealers, the
aforementioned William Cox. On June 28, 1964, Respondent also discharged four
additional crap table dealers, the aforementioned Louis Cantalamessa, Robert Jones,
David Conner, and David H. Waggoner.
The complaint charges that these five employees were discharged because of their
union activities. Respondent's defense with respect to Cox is that he was discharged
because of an obscene insulting remark he made to the boxman presiding at the crap
table at which he worked. Respondent's defense with respect to the remaining four
terminated crap table dealers is that they were discharged for economic reasons.
E. Issues as to interrogations, threats, and surveillance
The pleadings raise a number of issues as to whether Respondent has engaged in
unlawful interrogations of their employees concerning their union activities, threat-
ened their employees with reprisals for union activities, and gave employees the
impression that they were engaging in surveillance of their union activities, all in
violation of the provisions of Section 8(a)(1) of the Act.
Certain preliminary facts as to company knowledge of union activities in and near
Las Vegas and at the El Cortez are pertinent to the Section 8(a)(1) and (3) issues
in the case and are accordingly set forth below.
The record discloses that the Union became active in organizing the hundreds of
gaming employees in the licensed gambling establishment of Las Vegas and envi-
rons, whose chief industry is the public gambling business, in the months of May and
June 1964. See also El Dorado Club, 151 NLRB 579. The record further shows that
the news of these union activities among the casinos became common public knowl-
edge through the dissemination of such news through the mediums of local news-
papers, television, and radio.
The record also shows that the gambling industry in Las Vegas and environs is a
"close-knit community." 10
10 This finding is based on a statement made by El Cortez' president, the aforementioned
John D Gaughan, to dischargee Cox in connection with his discharge, as related by 'Cox
in his testimony and undisputed by Gaughan who did not testify at the hearing although
he was present at counsel table throughout virtually all of the hearing. As heretofore
shown, Gaughan has financial interests in two other casinos beside the El Cortez. This
community of interest among gambling establishments in and near Las Vegas is further
shown in the El Dorado consolidated matter, supra, where nine casinos, among whom
was the present Respondent, asserted common jurisdictional objections to the representa-
tion petitions filed by the Union.
EXBER, INC., D/B/A EL CORTEZ HOTEL 1449
Respondent received its first formal notice of union activity at the El Cortez by
way of a registered letter 11 from the Union dated June 11, 1964, in which the
Union asserted that it "had been designated by a majority of your employees com-
posed of dealers [including roulette, blackjack, "21," craps, poker, and other deal-
ers] as the collective-bargaining representative of such employees." Request was
made in the letter for a meeting with the Company's officers or representatives "for
the purpose of negotiating a collective bargaining agreement."
On June 15, 1964, or some 4 days later, the Union filed a representation petition
(General Council's Exhibit 3) with the Board in which it stated that it had received
no reply to its aforementioned letter of June 11, 1964. Although at first denying
receipt of a copy of this petition, Respondent stipulated near the close of the hearing
that a copy of the petition had been served.upon it.
From the above, I find that Respondent had knowledge or a basis for suspecting
union activity at the El Cortez from and after June 11, 1964, and from the record as
a whole I further find that Respondent had reason to believe or suspect such union
activity at its place of business as early as the month of May 1964. The Section
8(a)(1) violations charged by the complaint relate to incidents occurring subse-
quent to the Union's letter of June 11 to the Company demanding recognition, with
the exception of one incident occurring in May. Similarly, the Section 8(a)(3) dis-
criminatory terminations charged by the complaint occurred subsequent to the
Union's letter of June 11 to the Respondent.
The various Section 8(a)(1) violations charged against the Respondent are set
forth in six subparagraphs of paragraph V of the complaint. Three of these relate
to statements allegedly made by Thomas Musso, Respondent's "graveyard" shift boss
at the El Cortez, who at all times here pertinent had complete charge of all games
and company personnel during the graveyard shift at the El Cortez whose hours are
from 3 to 11 a.m.
The three subparagraphs in question read as follows:
(b) On or about June 18, 1964, the Respondent, by Thomas Musso, interro-
gated an employee concerning his Union membership and activities.
(c) On or about June 18, 1964, the Respondent, by Thomas Musso, threat-
ened an employee with discharge or other economic reprisals if he did not
refrain from becoming or remaining a member of the Union or giving any
assistance or support to it.
(d) On or about June 18 and 20, 1964, the Respondent, by Thomas Musso,
gave their employees the impression that the Respondent was engaging in sur-
veillance of their Union activities.
The record shows that these alleged incidents relate to the personnel on the grave-
yard shift on crap table 1 on June 18, 1964. Insofar as here pertinent, crap table
1 was manned on June 18 during the graveyard shift by dealers William Cox,
Alfred Bellson, Anthony Domino, and Holmes Franklin, and by relief boxman
Franklin Noonan. Shortly before 7 a.m. of that day while the crap table was being
cleaned by a porter, Cox, Bellson, and Domino were seated in the coffeeshop of the
El Cortez when they were joined by their Shift Boss Musso. Domino left almost
immediately after Musso appeared. Thereafter Musso engaged Bellson and Cox in
conversation.
There is sharp disagreement in the testimony of the participants in this conver-
sation, and of immediately succeeding conversations, as to just what was said. At the
time of the hearing, Musso was still in the employment of the El Cortez, but both
Cox and Bellson were working for other casinos. Cox lost his job at the El Cortez 4
days after his conversation of June 18 with Musso under the circumstances stated in
a subsequent section of this Decision . At the time of the hearing, Bellson was work-
ing for the Flamingo in which Respondent's President Gaughan, for whom Bellson
has a high regard, has a financial interest.
"Technical objections to the receipt of this letter in evidence on the ground that no
showing of delivery had been made were overruled under proof of delivery of the letter to
Respondent as established by the testimony of the Union's business agent, Thomas B.
Hanley, whose testimony also showed that El Cortez' President Gaughan had orally ad-
mitted its receipt to Hanley No testimony was offered by Respondent to show that it did
not receive the letter and Gaughan did not take the stand to deny Hanley's testimony
that he (Gaughan) had orally admitted receiving the letter
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From Musso's testimony showing awareness of union activities in the casinos
and the fact that Respondent had received the union letter on June 11 requesting
recognition , it is found that Musso had knowledge or had good reason to suspect
that there was union activity among Respondent 's employees at the time he engaged
Cox and Bellson in conversation on June 18.
Bellson 's testimony shows that Musso opened the conversation at the coffeshop
by asking Bellson if he had joined the Union . The same question was next put to
Cox. Bellson and Cox, who are close personal friends, answered in the negative.
Cox had in fact signed a union card on June 3 , but there is no evidence that Bell-
son signed a card or had been active in the Union . Almost immediately after these
questions were asked , Bellson departed because the crap table had been cleaned
and the dealers were summoned to take their stations at the - table . Cox, however,
remained with Musso in the coffeeroom as it was his turn for a "break," a 20-
minute rest period that all gaming employees receive after an hour of work on the
gaming tables.
In the remaining few minutes that Musso and Cox were together alone at the
coffeeshop, there was further conversation between the two men. The testimony of
Cox shows that Musso again brought up the subject of unionism . Cox stated that
Musso opened the conversation by saying "There has been many people fired on the
Strip 12 because of this union ." When Cox expressed doubt about this claim because
of the protection afforded by the Act against discriminatory terminations due to
union activities , Cox's testimony shows that Musso heatedly replied with the state-
ment, among others, that if the El Cortez became organized , "he would take out
the pit" ( i.e., cease operating the gambling games where dealers were employed,
such as craps, blackjack , and roulette ), as he was convinced that in a show of
strength the El Cortez "could last a lot longer" than the dealers out on strike
walking the picket line.
Following this there was a discussion between the two men as to the rights of
management to hire and fire under a union shop . The views expressed by Cox,
a man of exceptional articulateness , on this subject caused Musso to remark "You
seem to know a hell of a lot about the Union not to be a member."
When the conversation broke up, Musso returned to the casino adjoining the
coffeeshop while Cox, still on his break period, went to the restroom prior to
returning to work. In the Casino , Musso stopped momentarily at crap table I
then manned by Bellson , Domino , Franklin , and boxman Noonan , dramatically
tossed a roll of bills on the table , and offered to wager it "against a penny that
Cox is the instigator of this union activity." The 'men made no reply to the offer
and as Musso saw Cox approaching the table , he picked up his money and walked
away. The wager incident as here described, is based on testimony of Bellson,
Franklin, and Noonan , who no longer work for Respondent . The fourth man at
the table, Domino, did not testify. Musso, as will be seen below , denies that he
made the wager in the words attributed to him as reflected in this paragraph.
Musso in his testimony , while admitting talking to Bellson and Cox at the coffee-
shop on the morning of June 18, flatly denied that he had asked Bellson and Cox
whether they had joined the Union.
Similarly, Musso also denied having any discussion with Cox about unionism
on the morning in question after Bellson had departed.
With respect to the betting incident on June 18 , Musso in his testimony admitted
making a wager to the employees working crap table 1 shortly after he had talked
to Bellson and Cox at the coffeeshop , but denied that he had made the bet attrib-
uted to him as set forth above and said his bet instead had been that Cox "was the
instigator of the trouble" at crap table 1. By the phrase "instigator of trouble"
at the crap table, Musso had reference to friction that had developed at the table
between its regular boxman , Joe Chiara , and the dealers , which will be described
in a subsequent section of this Decision relating to the alleged discriminatory dis-
charge of Cox on June 22.
In determining the credibility issue between Musso, on the one hand , and Cox
Bellson , Franklin , and Noonan , on the other , in connection with the above-
described incidents , it is noted that much of Musso 's testimony is evasive and lack-
ing in forthrightness . Illustrative of this evasiveness are the following passages from
12 The "Strip" is a highway just out of Las Vegas proper where all of the more opulent,
nationally known show -place hotel casinos are located.
EXBER , INC., D/B/A EL CORTEZ HOTEL 1451
the transcript of the hearing herein, in which Musso is being cross-examined by
counsel for General Counsel:
Q. (By Mr. WEINTRAUB.) Now, Mr. Musso, is it not a fact that you had
coffee in the coffee shop at the El Cortez with Mr. Cox, and-
A. That is right.
Q. May I finish the question? You had coffee in the coffee shop at the El
Cortez with Mr. Cox and Mr. Bellson on the morning of June 18, 1964, and
you asked them whether they had joined the union?
A. No, sir, we did not. We had a conversation there.
Q. That is all I asked you, sir. Did you ask them if they had joined the
union?
A. (No response.)
Q. Is it not a fact, Mr. Musso, that you had coffee in the El Cortez coffee
shop with Mr. Cox and Mr. Bellson on the morning of June 18, 1964, and
asked them whether they had joined the union?
A. I had coffee in the coffee shop.
* * * * * * *
Q. (By Mr. WEINTRAUB.) Is it not a fact, Mr. Musso, that on the morning
of June 18, after Mr. Bellson had left the coffee shop to go back to work, you
and Mr. Cox had a long discussion about the union?
A. No, sir, I think you got yourself all mixed up here. It was Cox that was
off. Bellson was at the table.
Q. All right. Mr. Musso . . . is it not a fact that shortly after leaving the
coffee shop yourself on the morning of June 18, you walked up to the crap
table with those employees who were working, threw some money on the
table, and said that you were willing to bet that money against a penny that
Cox was the union instigator at the El Cortez.
(There is omitted here an objection and ruling.)
Q. (By Mr. WEINTRAUB, after objection to the question had been overruled.)
Will you answer the question yes or no, please?
A. That didn't happen on the same day. That didn't happen on the same
day of the coffee shop incident. The coffee shop incident happened the week
before.
Q. The week before? I am asking you, sir, if on the morning of June 18
you engaged in the activities just mentioned.
A. Repeat the question.
TRIAL EXAMINER: The reporter will read the previous question.
(The pending question read.)
The WITNass: Yes, I had a conversation with the dealer at the table.
Q. (By Mr. WEINTRAUB.) That isn't what I asked you, Mr. Musso.
TRIAL EXAMINER: Repeat your question," Mr. Weintraub.
Q. (By Mr. WEINTRAUB.) It is a fact, is it not, that on the morning of
January 18, you left the coffee shop after a conversation there, and proceeded
to the number one crap table, will you answer that, please. Will you answer
that yes or no?
A. I told you I had a conversation at the crap table, but I had never left
the pit. I couldn't have been in the coffee shop.
Q. Didn't you tell us a few minutes ago that you were in a coffee shop
with a man named Mr. Kabush? 13
A. Yes.
Q. Is it not correct that on the morning of June 18, 1964, you walked
over to a crap table, threw some money on the table, and said you were
willing to bet that to-that roll of money against a penny that Mr. William
Cox was the union instigator. Will you answer that yes or no, please.
A. Yes, but I didn't say that.
13 Kabush was another El Cortez dealer on Musso's graveyard shift during the month of
June 1964. Although Musso testified that Kabush was with Bellson and Cox in the coffee-
shop on June 18 shortly before 7 a.m., Kabush's own testimony establishes that he was
not at the coffeeshop at the indicated time because that was his day off.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Conclusions
I resolve the credibility issues on the incidents described above in favor of the
testimony given by Cox, Bellson, Franklin, and Noonan, the witnesses testifying
in behalf of General Counsel. The testimony of Musso, insofar as it is in conflict
on the incidents described above, is rejected because it is evasive, conflicting, and
obviously the testimony of a man painfully torn between the natural impulse to
tell the facts as they occurred and the fear that the consequences of such facts
may result in an unfavorable decision to his employer.
Another factor weighing heavily against Musso on the credibility issue is that
he was outnumbered three to one by the Government witnesses as to the words
he actually used in making his wager to them on the morning of June 18, to-wit,
"I bet all of that against a penny that Cox is the instigator of this union activity."
There is nothing inherently incredible in the testimony of the three Government
witnesses as to Musso's bet; on the contrary their version of what Musso said
in making his wager fits in entirely with the testimony of Bellson and Cox that
Musso had engaged them in interrogations about the Union in the coffeeshop
just prior to the time Musso made his wager. I not only reject Musso's version of
the wager he made, but find it so contrary to fact as to cast doubt on all other
testimony Musso gave in this proceeding where it is in conflict with that of other
witnesses. In addition, I find that Musso's demeanor throughout his testimony was
not of a character to inspire confidence. Highly emotional, Musso sought to rein-
force by vehemence and histrionics on the witness stand, his testimony denying
any conversation with Cox on the subject of the Union and unionism.
I find and conclude that the Respondent, by its Supervisor Musso, interrogated
Bellson and Cox on June 18, 1964, as to their union membership in violation of
Section 8 (a) (1) of the Act.
I further find and conclude that the Respondent, by its Supervisor Musso,
threatened Cox that Respondent could "take out the pit" and put the employees
on the street if it came to a showdown with the Union, thereby threatening employ-
ees with economic reprisals for engaging in union activities in violation of Section
8(a)(1) of the Act.
I further find and conclude that the Respondent, by its Supervisor Musso, gave
other employees the impression that Respondent was engaging in surveillance of
their union activities when Musso offered to bet that Cox was the union instigator
in the casino, in violation of Section 8(a)(1) of the Act.
Another Section 8 (a) (1) violation charged by the complaint under paragraph V
thereof reads as follows.
(a) On or about May 20, June 15, June 20, June 23 and June 24, the
Respondent, by Albert Faccinto, interrogated employees concerning their
Union activities and membership.
At all times here pertinent, Albert Faccinto was Respondent's superintendent or
shift boss of the El Cortez' day shift whose hours of duty are 11 a.m. to 7 p.m.
One of the employees over whom Faccinto had supervision was Louis Cantala-
messa. Faccinto, age 40, who has known Cantalamessa since their boyhood days
in Steubenville, Ohio, hired Cantalamessa in October 1963, and discharged him
on June 28, 1964, under circumstances alleged by the complaint to be discrim-
inatory (which will be considered in a later section of this Decision).
During his tenure at the El Cortez, Cantalamessa worked as a dealer on both
the roulette wheel and crap table and also served as relief boxman during the 5
months preceding his discharge. Cantalamessa, who has had employment at various
casinos in the Las Vegas area during the past 15 years, was working for a taxicab
company at the time of the hearing.
Cantalamessa signed a union card on or about May 10, 1964, and thereafter
obtained approximately 15 signed union cards from other gaming employees at the
El Cortez. -
The undisputed testimony of Cantalamessa establishes that Faccinto specifically
spoke to him about the Union on two different occasions. The first occurred about
May 15, 1964, when Faccinto approached Cantalamessa at the wheel and said
"Lou,,there is something about a union being organized in this town. I want you,
Bob Jones, Pee Wee Alcini, and my nephew [all of whom had been hired by Fac-
cinto, had originally come from Steubenville, Ohio, and were all about the same
age] to stay out of it until we find what they are doing at the Golden Nugget, where
they are having some sort of a Culinary Union." Faccinto also told Cantalamessa
EXBER, INC., D/B/A EL CORTEZ HOTEL 1453
that the Respondent was going to wait to see if the casino employees had joined the
Culinary Union before Respondent gave its gaming employees "the word." Cantala-
messa inquired if it would hurt him if he did join the Umon and Faccinto replied
in the negative.
The second occasion at which Faccinto spoke to Cantalamessa about the Union
occurred on June 23 or 24, 1964. This happened on Faccinto's day off. Notwith-
standing the fact that Faccinto seldom came into the El Cortez on his day off, on
this particular occasion he came into the El Cortez, found Cantalamessa, took him
to a spot in the casino where they could have some privacy, and said to him "Lou
I want the truth. Did you join the union?" Upon receiving a "No" answer, Faccinto
said "If you did join the union, it would hurt me."
Respondent called Faccinto, then still employed by El Cortez, as witness in its
behalf. Upon inquiry as to whether he had talked to Cantalamessa and other
employees under his supervision about the Union, Faccinto replied "Might have.
We talked about so many things and probably did .. . . " He was not specifically
asked if he had had the conversations with Cantalamessa on about May 15 and
June 23 as reported by Cantalamessa in his above-related testimony The record
is barren of any denial by Faccinto that such conversation did take place.
Conclusion
I find and conclude that on or about May 15 and June 23, 1964, Respondent, by
its Supervisor Faccinto, interrogated its employee Louis Cantalamessa as to whether
he had joined the Union, in violation of Section 8(a)(1) of the Act.
Another Section 8(a)(1) violation charged by the complaint under paragraph
V thereof reads as follows:
(f) On or about June 23, 1964, the Respondent, by Rocco Paravia, inter-
rogated an employee concerning his Union membership and activities.
At all times here pertinent, Rocco Paravia was Respondent's superintendent or
shift boss on the swing shift whose hours of duty are 7 p.m. to 3 a.m.
It is found that Paravia interrogated two dealers, David H. Waggoner, who
worked on his shift, and William Alcini, who worked on another shift, but whom
he has known for many years, as both Paravia and Alcini had come to Las Vegas
from Steubenville, Ohio, as had a number of other employees of the El Cortez as
has heretofore been noted, all of whom were well acquainted with each other. At
the time of the hearing Waggoner and Alcini were working at other casinos, Wag-
goner having been discharged by the El Cortez on June 28, 1964, after some 9
months of employment there under circumstances alleged by the complaint to be
discriminatory, and Alcini having left the employment of the El Cortez voluntarily
only the week before the hearing after having worked there some 20 months.
Waggoner signed a union-card on about June 1, 1964, and Alcini became a
union member on some unremembered date in the same summer , which from
his testimony I find to be around June 15 or 20, as Alcini at first resisted solicita-
tions to become a union member.
From Alcini's testimony it is found that Paravia approached him during the
Union's campaign to organize the El Cortez, which was sometime in June 1964,
and inquired "Do you belong to the Union?" Alcini replied in the negative and
Paravia walked away.
From Waggoner's testimony, it is found that Paravia approached him on June 25
or 26, 1964, after having seen him talking with a well-known union organizer in
the El Cortez, with the question "You are not fooling with this Union, are you?"
Waggoner replied that "if I were going to steal, I surely wouldn't put it on the
microphone." Paravia's response to this was "It is worse than stealing."
Paravia, called by Respondent as part of its case in rebuttal, denied that he had
ever had a conversation with Waggoner, whom he has known for some 8 years,
about the Union, but admitted that he "probably" had conversations about the
Union "with the fellows that I grew up with" in his home town of Steubenville,
including Alcini, Cantalamessa, and Robert Jones, the last two of which are alleged
Section 8(a)(3) discriminatees. During the course of his testimony, Paravia did
not deny that he had asked Alcini "You are not fooling with the Union, are you?"
as testified to by Alcini.
From my scrutiny of the testimony and the demeanors of the witnesses here con-
sidered, I discredit Paravia's denial that he had never had any conversation with
Waggoner about the Union.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
I find and conclude that in the month of June 1964, while the Union was con-
ducting its campaign to organize the El Cortez, Respondent, by its Shift Boss
Paravia, interrogated its employees Waggoner and Alcini concerning their mem-
bership in the Union, in violation of Section 8 (a)(1) of the Act.
Finally, subparagraph (e) of paragraph V of the complaint alleges that on or
about June 20, 1964, the Respondent, by its agent and supervisor, Harry Mills,
interrogated an employee concerning the union membership and activities of
another employee of the Respondent.
As heretofore noted, Respondent has placed in issue the allegation of the com-
plaint that Mills was an agent and supervisor of Respondent at the times here
material. General Counsel has presented no evidence in support of the complaint
on this threshold issue. In view of this, the Section 8 (a) (1) allegation of sub-
paragraph (e) of paragraph V of the complaint is hereby dismissed for failure of
proof.
F. Issue as to whether William Cox was discriminately discharged
The complaint alleges that Respondent discharged the heretofore mentioned
William Cox on June 22, 1964, because of his union activities. Respondent's answer
denies that the discharge was discriminatory.
At about 7:30 in the morning of June 22, 1964, Cox, from the position he was
then serving as stickman at crap table 1, hurled an obscene insult at the table's
boxman, Joe Chiara, as the result of a quarrel between the two men over incidents
that had occurred. at the table. Cox was discharged the same day. The Company
contends that it fired Cox because of the insulting remark he made to Chiara
whose job as boxman gave him presiding status over the crap table. General Counsel,
on the other hand, contends that Cox's improper utterance to Chiara was seized
upon by Respondent as a pretext to fire him because of his union activities.
Critical to the question of whether Cox was discharged because of his union
activities is the question of whether he was discharged by Chiara as claimed by
Respondent, or by his shift supervisor, the aforementioned Thomas Musso, as
contended by General Counsel. If the discharge was by Chiara, then there would
be little doubt that the termination was due solely to Cox's insulting remark to
Chiara, as there is nothing in the record which would support a finding that Chiara
discharged Cox (assuming for present purposes that Chiara rather than Musso
fired Cox) for any reason other than the insulting remark and the accumulative
effect of prior differences with Cox as to the operation of the crap table. On the
other hand, if Cox was discharged by Musso, as contended by General Counsel,
the record contains evidence reflecting an antiunion attitude by Musso and other
management figures which will require close examination on the ultimate issue of
whether Cox was terminated because of his union activities, rather than for his
insulting remark to Chiara.
During most of his 18-month tenure with Respondent, Cox worked as a dealer
on crap table 1 during the graveyard shift under Shift Boss Musso. Other dealers
working with Cox on the same table were the heretofore mentioned Alfred Bell-
son, Anthony Domino, Holmes Franklin, and Wesley Kabush. Chiara served as the
boxman on that table, but had held his job in that capacity for only some 2 or 3
months prior to Cox's discharge. The record reflects that Chiara, a man close to 70
years of age, did not command the respect of the dealers he worked with and that
there was friction between Chiara and the dealers. In part this friction arose from
the dealer's feelings that Chiara did not possess the competence required of a box-
man, in part because Chiara lacked tact, and in part because Chiara sought to
share in the "tokes" or tips from the playing public which customarily belongs to
the dealers unless the players indicate that they want the boxman to share in them.
Chiara was critical of Cox from time to time because Cox engaged in compli-
cated "conversions" or methods of paying off bets without accompanying explana-
tions which Chiara found confusing both for himself and the public. The evidence
is clear that Cox, a man with an unusually rapid mind, would deliberately on occa-
sion engage in practices at the crap table during the course of a game designed to
upset the slower thinking Chiara because of his dislike for Chiara and boxmen
generally.
Chiara on a number of occasions walked out of the casino because of dis-
agreements or quarrels with dealers and others. He walked out on one occasion
EXBER, INC., D/B/A EL CORTEZ HOTEL 1455
because of an argument with dealer Kabush . On another occasion he walked out
because of a quarrel with an apprentice or shill named Threadwell . On that occasion,
dealer Bellson followed Chiara into the street and induced him to come back and
finish the shift . Chiara's most recent walkout took place on June 21 , the day before
Cox was discharged , but the record fails to disclose who or. what caused Chiara to
walk out . On that occasion Musso, the shift boss himself , went after Chiara and
talked him into returning to the casino to finish out his shift . Although Chiara
reported some of his difficulties with the dealers to Musso , he appears to have gen-
erally followed the practice of refusing to identify individuals who caused him
trouble because he did not want anyone fired on his account . Kabush and Thread-
well, despite their difficulties with Chiara, were still in the employment of Respond-
ent at the time of the trial , although the record supports the conclusion that
Chiara's difficulties with Kabush and Threadwell became known to management.
Musso, aware of the dissension at crap table 1, spoke to the personnel working
the table on three different occasions in an effort to secure more harmonious
relationships between the dealers and boxman Chiara.
As noted Cox was discharged on June 22. At about 7:30 of that morning, Cox
noted two players at the crap table who looked under age and mentioned this to
Chiara. Chiara replied, with irritation , that it was not his job to watch out for
minors, but to see that crooked dice were not brought into the game , but neverthe-
less some moments later he left the table to summon Shift Boss Musso to look
into the age of the two suspected minors who were asked to leave when they were
unable to produce documentary proof of their age . After Musso had walked away
from the table, Cox untactfully remarked to Chiara "It is just as bad to have minors
on the table as to have crooked dice in the game ." Chiara replied "Don't make a
federal case out of it. It's none of your business any way."
Immediately following this defensive reply, Chiara launched into an attack on
Cox for an event that had taken place several hours earlier in the shift when Cox
had betted a tip received from a player instead of pocketing the tip in behalf of
himself and the other dealers. In this connection , Chiara said to Cox "Furthermore,
the next time somebody gives you some money , don't bet it for the dealers. Just
stick it in your pocket. If I was in on the tokes , you could do things a little differ-
ently." This triggered Cox into flinging an obscene imprecation at Chiara in the
presence of the other dealers at the table which Respondent contends , as above stated,
was the actual reason for Cox's discharge.
As heretofore indicated there is a critical conflict in the evidence as to whether
Cox was discharged directly by Chiara, the recipient of Cox's insult , or by Musso,
the shift supervisor . In resolving this conflict , we do not have the benefit of Chiara's
testimony as he was not called as a witness , although the record shows that Chiara
was present at the hearing for a time and that counsel for Respondent stated on the
record that he intended to call him as a witness in behalf of the Respondent.
Musso and Kabush, employees of Respondent at the time of the hearing, testi-
fied that Cox was discharged by Chiara directly as a result of the swearing incident.
Cox, on the other hand , testified that it was Musso, not Chiara, who discharged him.
Dealer Bellson, who played an important role in transmitting a telephone message
from Musso to Cox on the day of his discharge concerning his discharge , supports
Cox's testimony that he was discharged by Musso.
More particularly , Musso testified that Chiara , who had only been a boxman for
only some 2 or 3 months at the time of Cox's discharge , had threatened to quit 3
times 14 in the 3 weeks prior to Cox's discharge because of trouble he was having
with one of the dealers at his table that he refused to identify , despite Musso's
entreaties that he name the troublemaker so that he could deal directly with him.
Musso further testified that on the morning of June 21 when Chiara had walked
away from the casino because of trouble with the same unidentified dealer and he
had followed him down the street and brought him back to the casino, Chiara again
refused to name the troublemaker , stating that he would rather quit than do that as
he did not want to see anyone fired on his account . Musso testified that at that point
"This conflicts with Cox's testimony that to his knowledge Chiara had threatened to
quit only once and that was because of a dispute with a shill Because of Respondent's
failure to call Chiara as a witness , Cox's testimony is credited in this connection, and
Alusso 's is rejected . Furthermore , Cox's testimony as to what transpired at a meeting called
on June 25 to consider Cox's reinstatement at which Chiara was questioned as to his
threats to quit also bears out Cox's information that Chiara had threatened to quit only
once and that only in connection with the trouble with the shill
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he authorized Chiara, who had the authority to hire but not to discharge, to fire the
troublemaker in the event of further difficulty with him. He also testified that on the
very next morning at the close of the graveyard shift Chiara informed him that he
had discharged Cox just as Cox was leaving for the day because Cox had been the
troublemaker all along- and had insulted him with an obscene remark earlier that
day, but that Cox had challenged Chiara's authority to discharge him. The record
is undisputed that Musso on the same day telephoned the residence he believed Cox
and dealer Bellson were sharing and asked to speak to Cox upon being informed by
Bellson that Cox was no longer living there, left a message with Bellson to relay to
Cox relative to the latter's discharge.
The testimony as to the content of the message left by Musso with Bellson for
Cox is conflicting . Musso testified that he asked Bellson to tell Cox that he ( Musso)
called to confirm Chiara's discharge of Cox and that Cox was not to come to work
the next morning.
Bellson , on the other hand , testified that the only message he got from Musso for
Cox was to tell Cox that "he was terminated and that he should not come in" for
the next shift because "Cox had had a lot of trouble with the box man and the box
man had had a lot of trouble with Cox, and he (Musso ) had had enough of it, and
that was the end." Bellson further testified that Musso , in leaving his message with
him for transmission to Cox, did not say he was calling to confirm Chiara's dis-
charge of Cox and that Musso did not even mention Chiara by name.
When Cox received Musso's message from Bellson he telephoned Musso to
inquire if it was true he had been terminated . According to Cox's testimony, Musso
replied "Yes" and gave as his reason that "he was tired with all this stuff with Joe
[Chiara]." Musso in his testimony agreed that he replied to Cox to that effect, but
also insisted that he told Cox that he had given Chiara authority "to let the person
or persons go that was causing him trouble, and it was you ." There is agreement
that Cox then accused Musso of actually firing him because of his union activities
which Musso denied.
The dealers working with Cox on the day he was discharged were Bellson,
Kabush, and relief man Dominic. Bellson was on a break and not present at the
crap table when Cox uttered his obscene remark to Chiara and Dominic was not
called upon to testify as to the events of that day by either party. Kabush testified
in behalf of Respondent . The brunt of Kabush 's testimony , insofar as here pertinent,
is that Cox had uttered his profanity at Chiara at about 8 : 45 that morning and that
at 10:40 a.m. while Cox was washing up on his break preparatory for leaving for
the day, Chiara said to Cox "You don't know it but you are through . Don't come
back in the morning." According to Kabush , Cox replied "You haven't got author-
ity to fire me."
Before resolving this conflict of testimony as to whether Cox was terminated by
Chiara or by Musso, note is made of the fact that Cox's undisputed testimony shows
that he and Bellson on the day here in question (June 22 ) walked out of the El
Cortez together at 11 a.m. when the graveyard shift ended, although Cox was on
break for the last 20 minutes of the shift and presumably could have left as soon as
his break started.
I determine the conflict of testimony over whether Cox on the day in question was
terminated by Musso or Chiara in favor of testimony showing that Cox was dis-
charged by Musso and not by Chiara . One of the principal factors in this credibility
determination is the fact that Respondent was in the position to clear up the con-
flict of testimony on the issue by calling Chiara as a witness which the record shows
counsel for Respondent had planned on doing but did not fulfill . An inference drawn
from this failure by Respondent to call Chiara as a witness is that Chiara 's testi-
mony on the question of whether he had fired Cox, and, indeed, as to whether he
had the authority to do so, would have been adverse to the Respondent . There is
also evidence that Chiara was at all times reluctant to do anything which would
cause the discharge of an employee and the testimony of Musso and Kabush that
Chiara had fired Cox is contrary to this strong trait in Chiara . Later in this Decision
it will be shown that Chiara was not opposed to Cox's reinstatement at the El Cor-
tez which is still another indication that it was Musso, and not he, who had dis-
charged Cox. Also, it is a most significant fact, as any view of Bellson 's testimony
would show , that Bellson had his first indication that Cox had been fired when he
heard from Musso over the telephone to this effect whereas if Cox had really been
fired by Chiara , Bellson would most certainly have heard about it directly from Cox
when they both walked out together from the premises of the El Cortez at the end
EXBER, INC. DBA EL' CORTEZ HOTEL 1457,
of their day's work on the day in question. I was, moreover, impressed by Bellson's
candor. His testimony shows that he harbored no animosity toward Respondent's
president, Gaughan, despite his testimony in behalf of Cox. On the contrary, Bellson
expressed the highest regard for Gaughan 15 for whom in a sense he was still work-
ing at his new job at the well-known Flamingo casino on the "Strip" in which Gau-
ghan has a financial interest and to which Gaughan promotes dealers who have
made good at the El Cortez. This high regard for Gaughan did not deter Bellson
from giving testimony he believed true not only in connection with the question
here considered but also on other aspects of the issues involved in this proceeding
despite the fact that such testimony is adverse to Respondent. I accord full credi-
bility to Bellson's testimony that Musso in leaving his message with him for trans-
mission to Cox did not state that he was confirming a prior termination of Cox by
Chiara but merely stated that he (Musso) was terminating Cox because of difficul-
ties with the boxman. Similarly I also credit Cox's testimony that he was discharged
by Musso, rather than Chiara, as against Musso's testimony that he merely con-
firmed Chiara's initial discharge of Cox because as heretofore shown Musso's testi-
mony does not have reliablity. I do not credit Kabush's testimony that Cox's dis-
charge was by Chiara.
It was shown in a preceding section that Musso suspected Cox of being the union
"instigator" at the El Cortez as early as June 18. Cox signed a union authorization
card on June 3 and also secured such cards from other gaming employees at the El
Cortez. He attended a policy committee meeting of the Union held at a restaurant
on June 7 at which he was chosen to represent the gaming employees of the El Cor-
tez on the committee. He attended a second union meeting on June 15 at the Team-
sters hall. The next union meeting he attended was on the day of his discharge
(June 22) held at Convention Hall. There were two union meetings that day at Con-
vention Hall, one in the afternoon and another in the evening, Cox attended both of
these meetings and at one of them was observed from his position of prominence on
the stage of the auditorium by persons who reported the fact to the management of
Respondent.
Immediately after his discharge, Cox contacted the union business agent, the
aforementioned Thomas B. Hanley. Hanley arranged for a meeting the next day,
June 23, with Gaughan, Respondent's aforementioned president, in which reinstate-
ment was sought for Cox. At this meeting Cox told Gaughan that he believed that
he had been discharged because of the views he had expressed about the Union to
Musso on June 18. Gaughan, who had just returned to his office from a trip and
did not know the details of Cox's discharge , replied that he was not against the
Union and did not believe that the conversation Cox had with Musso on the 18th
was sufficient cause for Cox's discharge. He authorized Cox to return to work the
next day, but in order to avoid further conflict with Musso, Cox was instructed to
report to work on the swing shift.
When Cox reported for work the next day at 11 a.m., he was met by Musso
who instructed him to see Gaughan instead of signing the worksheet for the day.
Gaughan, upon being asked by Cox what the trouble was, told Cox, "I hear you
have been doing bad things." At this juncture Musso joined Gaughan and Cox
where they were standing near the cashier's cage and heatedly asked Cox if he did
not insult Chiara on the last shift he worked with an obscene remark. At Cox's
request, Gaughan and Cox retired to Gaughan's office for a private talk where
Cox related to Gaughan the incidents that led up to his swearing remark to Chiara
as heretofore stated.
Gaughan's first reply to Cox was that the "gambling business was a close-knit
fraternity" and he could, if he desired, make it very difficult for Cox to obtai'h
employment elsewhere in the industry, although he had never taken such action
against an employee. Cox readily agreed that Gaughan had this power.
Gaughan then went on to say that he had to depend on his subordinates in the
management of the casino as he could not be everywhere himself. He expanded his
remarks to say that if a dispute developed between one of his supervisors and the
Union "if it, came to a showdown with the Union, he would rather close up the
pit completely," although he would be reluctant to do such a thing because it
would put so many of his junior executives out of work. At this juncture, Cox
16Another indication' of Bellson's candor was his testimony that Cox sometimes de-
lighted in confusing Chiara by fast payoffs to winners.
257-551-67-vol. 160-93
1458 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
interjected that all he was interested in was going back to work and requested that
Musso be called in to see if "some amicable agreement" could be worked out on
his reinstatement.16
Upon being summoned, Musso came into Gaughan's office with Respondent's
secretary, Donald L. Dobson, Musso immediately launched an attack on Cox,
accusing him of being a poor crap dealer, although Cox had worked under Musso's
,supervision for the past year and a half and Musso had the reputation of retaining
only the most competent dealers. (From other evidence of record, it is found that
Cox was an experienced and competent dealer.) Gaughan having left to attend
other business, Cox asked Musso if his discharge did not stem from the conversa-
tion he had with him on June 18 on the subject of unionism. Infuriated, Musso
vehemently denied that he had any conversations about unions with Cox (I found
to the contrary in an earlier section of this Decision) and threatened "If you say
I did, Cox, I will kill you."
At this point, Dobson spoke up and while maintaining that Cox was terminated
for his bad attitude rather than his union activity, stated to Cox "You think you
are going to change the gambling industry overnight. We are going to be here long
after you and the union is forgotten." With reference to Cox's request for rein-
statement, Dodson asked Cox why he wanted "to go back to work for someone
who doesn't want you? You are working for Mr. Hanley [the Union agent]."
Somewhere during the course of the same conversation, Musso said to Cox "We
know all of the troublemakers in this club. We have all of their names. Why, you
were even sitting up on the stand at the last meeting [the reference here was to
the Union meeting at Convention Hall on June 22]. I couldn't believe it."
Feeling that he was not getting anywhere with his plea for reinstatement, Cox
excused himself and left Gaughan's office. Gaughan never returned to his office
after he had left Cox with Musso and Dobson there. The June 24 conversation
reported above between Cox, Musso, and Dodson after Mr. Gaughan's departure
is as related in the testimony of Cox which I credit. It is noted that this testimony
does not appear to be refuted by Musso and Dobson in their testimony, but this
is only one factor in the crediting of Cox's testimony.
Union Agent Hanley, upon learning from Cox what had transpired on the day
(June 24) he had been asked by Gaughan to return to work, arranged a second
meeting with Gaughan for the following day, June 25. The meeting started at
about 1 p.m. in the casino and was attended by Gaughan, Hanley, and two of his
associate buusiness agents (not here involved as witnesses) and Cox, and later by
Musso, Dobson, and Chiara. Gaughan was in and out of the meeting, tending to
other business from time to time.
At this meeting, Gaughan, having previously heard of Musso's threats of the
preceding day to kill Cox to which Cox called his attention, acknowledged that
Musso had a bad temper, but stated that he was leaving the decision as to whether
Cox should be reinstated up to Musso as Musso had threatened to quit if Cox
were rehired and he (Gaughan) "didn't want to disorganize or disrupt his whole
organization just to rehire one man."
Hanley acted as' spokesman for Cox at the meeting. After Dobson and Musso
arrived at the meeting, Dobson asserted to Hanley that Cox was discharged only
because of "insubordination to his box man," contrary to Cox's "impression that
he got fired because of the Union." When Cox inquired if his termination was not
related to the conversation Musso had with him about the Union on June 18,
Musso spoke up and, denied having spoken to Cox about the Union, and called
Cox a "damn liar" and later directed even stronger language of obscene character
in the same vein at Cox. In an earlier section of this Decision, it was found that
Musso did in fact ask Cox whether he was a member of the Union and otherwise
engage him in interrogation concerning unions.
During the course of the meeting and at Cox's request, Chiara was called in for
questioning. Asked by Musso if he had any trouble with Cox, Chiara replied he
had "had trouble with all of them." He went on to say "They [the dealers] all
gave me a bad time." Admitting that Cox was 'a competent dealer, Chiara stated
he had no objection to Cox's reinstatement, but asked that he be reassigned to
another shift.
The above-reported conversations at the meeting of June 25 between Respond-
ent's managing personnel and Cox and Hanley is established by the testimony of
16 This conversation is as related by Cox in his testimony. Gaughan did not testify at
the hearing.
EXBER, INC., D/B/A EL CORTEZ HOTEL 1459
Cox which I credit. Dobson, testifying for Respondent, testified substantially to the
same effect, although not in the same detail. He affirmed the fact that Chiara had
no objection to Cox being reinstated on a different shift.
The meeting ended when Gaughan told Hanley that he would give him his final
decision the next day. On June 26, Gaughan informed Hanley that he would not
put Cox back to work.
Discussion and Conclusion
I find and conclude that Respondent terminated Cox because of his union activi-
ties and not, as claimed by Respondent, because of his insubordination to Chiara.
In making this credibility determination, I have taken into consideration the entire
complex of facts surrounding the termination of Cox and the demeanor by the
various witnesses during the course of their testimony.
At the time Cox was terminated, it was common knowledge in Las Vegas that
the Union was waging a vigorous campaign to organize the gambling industry
around which Las Vegas is built. The local newspapers and radio and television
stations carried daily news of the Union's efforts to organize the gaming employees
of the industry.
The Respondent as a member of the gambling industry was itself put on direct
notice at least 10 days before Cox's discharge that the Union was active among
its own employees by reason of the receipt of a registered letter dated June 11,
1964, from the Union demanding recognition and negotiations for a collective-
bargaining agreement.
Our findings further show that Musso, the Company's graveyard shift supervisor,
became so convinced from talking with Cox on June 18 (4 days before his dis-
charge) that Cox was actively engaged in union activities at the El Cortez that he
offered, within a few minutes after he had spoken to him, to bet the dealers work-
ing with Cox, a roll of money "against a penny" that Cox was a union instigator.
This conviction was affirmed in Musso's mind when he received word that Cox
was seen on the very day of his termination at a union meeting seated among the
union leaders. The receipt of this information appears to have hardened the decision
of Respondent's President Gaughan, at first inclined to reinstate Cox, to deny
Cox reinstatement.
The record is also clear that the Company exhibited an antiunion attitude at the
times here material. This appears from the acts of Respondent, through their super-
visors, in interrogating employees as to their union activities, in threats of reprisals
for union activities, and in giving impressions to their employees that it was engag-
ing in surveillance of their activities, as found and set forth above in prior sections
of this Decision.
It is against this background of company hostility to union activities by its
employees that the merits of Respondent's defense that Cox was discharged solely
because of his misconduct in cursing boxman Chiara must be weighed. It is part
of Respondent's defense that the actual discharge of Cox was by Chiara and that
Musso merely affirmed and upheld the discharge in order to make it appear that
Cox's union activities had no part in his discharge. Knowing that General Counsel
challenged this contention, Respondent nevertheless failed to call Chiara as a wit-
ness to prove its position that Chiara himself was responsible for the termination of
Cox, although Chiara was available and counsel for Respondent had stated on the
record that they intended to call Chiara as a witness. This failure by Respondent
to call Chiara as a witness leads to the inevitable inference that he was not called
because his testimony would not have supported Respondent's claim that Cox was
fired directly by Chiara solely because of his insulting remark. The failure to call
Chiara further supports my finding and determination that Cox was actually ter-
minated because of his union activities and that the Respondent merely seized upon
the swearing incident as a pretext for his discharge.
Moreover, the swearing incident was not one that occurred in a vacuum and
under all the circumstances it appears to have been provoked by Chiara. The
record shows that Chiara, throughout his brief tenure as boxman prior to Cox's
discharge, sought to insinuate himself into a share of the tips traditionally intended
for the dealers at the crap table. This was a constant source of resentment and
irritation to the dealers. On the shift in question , Cox flung the obscene utterance
at Chiara after Chiara, in a fit of ill temper over a remark by Cox anent the
responsibility of a boxman to keep minors out of a crap game , directed Cox, in
apparent retaliation, not to play tips received from players as he had done some
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours earlier, but to pocket the tips,17 saying, however, " If I was in on the tokes
-[tips], you could do things a little differently." While this obscene remark is not
to be condoned , it is apparent that Chiara was not without fault in provoking the
remark, by his suggestion that he be cut in on the tips. It is also noted that Cox's
obscene remark to Chiara appears rather mild compared to the vehement obscen-
ity directed by Musso at Cox and reenacted at the hearing by Musso by word and
gesture in connection with Musso's denial of Cox's claim that he (Musso) had
interrogated Cox on his union membership and activities.
In summary it is found that the admitted misconduct of Cox in swearing at box-
man Chiara was used by Respondent as a pretext for his termination and that the
real reason for his discharge was his union activities at Respondent 's gambling
establishment in Las Vegas.
G. Issue as to whether Cantalamessa, Jones. Conner, and Waggoner
were discriminatorily discharged
The remaining issue in the case is whether Respondent's discharges on June 28,
1964, of its crap table dealers Louis Cantalamessa, Robert Jones, David Conner,
and David H. Waggoner were discriminatorily motivated because of the union
activities of these employees.
Respondent's defense is that the discharge of these employees was made nec-
essary because of overstaffing resulting solely from its economic decision to take out
of operation, after only a month of trial, the weekday operation of its crap table 2,
and to revert the table to the former practice of keeping it open to the playing
public, with some exceptions, only on weekends. As part of its further defense,
Respondent contends that the dischargees here under consideration were selected
for discharge from its staff of dealers partly on the basis of seniority and partly
because they were unsatisfactory workers in one respect or another or less versatile
dealers than others on the various games in the casino.
General Counsel contends that the Respondent closed the table's weekday opera-
tions merely as a pretext for terminating the involved employees because of their
known or suspected union activities. Alternatively, General Counsel contends that
even if it is found that there were economic reasons for closing the table, Respond-
ent nevertheless seized upon this circumstance to terminate unlawfully the principal
union organizers in the casino.
The record shows that Respondent again reopened crap table 2 for weekday
operations 1 month after such operations were closed down after only a run of
a little short of a month (June). There is no evidence that Respondent offered
reemployment to the dischargees here in question when the table was placed back
in weekend operation.
The record discloses that the Cortez has two crap tables, hereinafter described
as tables 1 and 2. Respondent since its purchase of the El Cortez in January 1963
has operated table 1 on a full 7-day-a-week, 24-hour-a-day, basis. Table 2,
on the other hand, was operated from January 1963 through the month of May
1964, on a weekend basis only. In May 1964 Respondent decided to place table 2
in operation during weekdays from 3 to 11 p.m.,'8 commencing the first week in
June 1964, in addition to having the table open to the public as formerly on
weekends.
At the hearing, Respondent's Secretary Dobson stated the business reasons that
motivated Respondent to throw open crap table 2 for weekday operations, com-
mencing with the month of June. Dobson also offered testimony to show why the
Company took the table off the weekday operations in July, but restored it for the
month of August and throughout the remaining months of 1964.
Dobson's testimony shows that the Company some time in May decided to open
table 2 for weekday operations, commencing with the month of June, (1) because
the volume of business at table 1 was considered good and (2 ) because the total
anticipated volume for the future was deemed to be of sufficient size to accommo-
date a second game for weekday operations at table 2. A factor in this anticipated
17 Although a dealer may pocket a tip, the practice is to divide all tips received by the
dealers at the end of the shift, with each dealer receiving an equal share The evidence
shows that the boxinan shares in a tip only if the player so directs it
18 These hours embrace for bookkeeping purposes a portion of Respondent 's day shift
( 11 a.m. to 7 p.m .) and a portion of its swing shift ( 7 p.m. to 3 a.m.).
EXBER, INC., D/B/A EL CORTEZ HOTEL, 1461
volume was the Respondent's new minimum bet of 25 cents that the Company had
recently introduced which attracted more players than formerly when the minimum
bet was higher.
Respondent's journal sheets reflecting the operation of table 2 for each month
in 1964 are in evidence as Respondent's Exhibits 1 to 12, inclusive. Similarly, the
Company's journal sheets on table 1 for the full 12 months of 1964 are in evidence
as Respondent's Exhibits 13 to 24, inclusive.
Dobson testified that the Company decided to close table 2 weekday operations
after less than 1 full month of trial because the operation was found to be
unprofitable. More specifically Dobson stated that the weekday operations on the
table were,closed down at the end of June because its daily volume or "drop" in
that month was only around $1,000 which yields a gross profit to the casino of
only $190 which is an amount just barely sufficient to cover the direct labor costs
and other costs.
The exhibits show, however, that when crap table 2 was reopened by Respond-
ent for weekday operations (3 to 11 p m.) in August and for the balance of 1964,
it enjoyed no better success in daily volume than it had in June when the decision
was made to close its weekday operation because of its low volume.
The exhibit also shows that conditions were no more favorable for reopening
table 2 for weekday operations in August than they were in May. As heretofore
noted Dobson testified that the first important factor utilized by Respondent's man-
agement in determining whether to open a second crap table was the volume of
table 1. Leaving out of consideration the graveyard shift of table 1 as it would
not be affected by the operation of table 2 on weekdays, Respondent's Exhibit 17
shows that the volume or "drop" of table I for its combined day and swing shifts
was $132,145 in the month of May. Respondent deemed this volume sufficiently
large to justify the opening of table 2 for weekday operations in June, but aban-
doned that operation at the end of June for the alleged reason that it was not
profitable. In July the combined day and swing shift volume of table 1, when it
was no longer competing with the table 2 for these shifts, was $30 less than it had
been for the month of May. It is thus apparent that Respondent cannot claim that
any greater volume on table I during July was responsible for the reopening of
the table 2 for weekday operations in August.
Dobson also testified that the second factor considered by Respondent in decid-
ing to open up its second crap table for weekday operation was its judgment that
the casino was "getting enough business to accommodate a second game." The
record shows that Respondent's volume on table 2 for its weekend operations for
the month of May was $36,620 whereas its volume on the same table for its week-
end operation in July was only $30,710 or some $6,000 less than it was in May.
Notwithstanding this adverse trend in its volume of business, Respondent determined
to reopen table 2 for weekday operation in August. This is another indication that
the Company did not close up the weekday operation of table 2 in July for its
alleged reason that it found such operation unprofitable.
One other factor should be noted. Dobson testified that in determining whether
a particular game should be opened or closed, the Company could not be guided
by the gross figures, that is, the amount won by the casino from the public, but
had to look instead at the volume, or drop, at that table. However, Respondent's
journals, as reflected in its Exhibits 1 to 24, summarizing the activity of each of
the crap tables each month, show that in addition to the drop figure, the Respond-
ent is also concerned with the amount won from the public and the percentage
of the volume which the winnings represent. In this respect, the. journal shows
that crap table 2, opened on weekdays in June, had winnings of $15,415 for that
month. Closed on weekdays in July, the same table won only $8,340. Reopened
on weekdays in August, the table won but $3,360. Thereafter, for the last 4
months of the year, table 2 consistently lost money. In September it lost $6,330;
in October, $10,630; in November, $6,855; and in December, $4,660. Nonetheless
the table remained open on a 7-day-a-week basis throughout this "red" period.
These figures are yet another indication that Respondent did not close up the week-
day operation of table 2 in July for the alleged reason that it was unprofitable.
On the contrary table 2 was profitable in June and decreasingly unprofitable when
reopened in August and for the rest of 1964.
I find that there was no "automatic overstaffing" of employees requiring the
termination of employees '(the four here involved) as testified by Dobson when the
Respondent decided to close table 2 on weekdays because the record is barren
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent hired any new employees in June when it first opened the table
on an everyday basis.
Various reasons were assigned by Dobson in his testimony for the selecting out
for terminations of Cantalamessa , Waggoner, Jones, and Conner out of Respond-
ent's staff of dealers when Respondent decided to close down the weekday opera-
tion of table 2 after only a month 's trial , although as shown above no new dealers
were hired when the table was put in weekday operation in June.
Dobson testified that Cantalamessa was selected for termination because of
reported incidents reflecting on Cantalamessa 's honesty ; that Waggoner was termi-
nated because he drank and had a tendency toward not showing up for work; that
Jones was terminated because he lacked seniority ; and that Conner was termi-
nated because "he wasn't coming along good enough."
On the basis of my demeanor observation of Dobson as he underwent cross-
examination on his assigned reasons for the terminations and because of incon-
sistencies in his direct testimony with the books and records of the Company, I
do not credit the reaons given by Dobson for the terminations in question.
The record shows that Cantalamessa , Jones, and Waggoner were not only mem-
bers of the Union but were also the employees principally responsible for the
organization of the Union at the El Cortez at the times here material . Conner, the
remaining member of the quartet terminated on June 28, and Jones did not appear
as witnesses . Counsel for General Counsel advised that he had planned to can
Jones as a witness, but was unable to do so because he could not locate him in
Ohio where he was at the time of the hearing. With respect to Conner, Govern-
ment counsel also advised that he had planned to call Conner who was at the
hearing the last day of trial, but could not do so as he had left . While a number
of witnesses identified Jones as an active union organizer at the El Cortez, the
evidence of Conner's union activity is less direct . Betty Ann Cox, wife of dis-
criminatee William Cox, called as a witness by Respondent , testified that Conner
was present at a union organizational meeting held at her home in May 1964
attended by her husband and other employees of the El Cortez and Union Agent
Hanley. From this testimony which I credit, it is found that Conner was also
associated with the union activity at the El Cortez. I draw no inference unfavorable
to General Counsel by reason of Conner 's failure to appear as a witness in sup-
port of the complaint . The evidence, as heretofore noted , shows that the gambling
industry in the Las Vegas region is a close -knit fraternity and accordingly fear of
repercussions on his job opportunities may be responsible for Conner 's absence at
the time Government counsel was ready to call him as a witness . As shown
Gaughan, Dobson , and Musso have financial interests in the Las Vegas Club.
Gaughan also has an interest in the Flamingo.
Findings have been made in earlier sections of this Decision showing that the
Respondent had knowledge of union activities among its employees at the El
Cortez at all times here material.
The Company on two separate occasions indicated that it knew the identity of
the union members among its employees.
Our previous findings show that on June 24 , Musso , in the presence of Dobson,
told Cox that "we know all of the trouble-makers in this club." A further finding
is also made that a few days after Cox's discharge , Musso also told Bellson that
he knew who had joined the Union in the casino and who had not.
Our prior findings also show that Respondent , by its Supervisor Faccinto, twice
unlawfully interrogated Cantalamessa prior to his discharge as to whether he had
joined the Union . A similar prior finding also shows that Respondent, by its
Supervisor Paravia, unlawfully interrogated Waggoner prior to his discharge con-
cerning his union membership and activities.
It is found that Respondent had knowledge or reason to believe that Cantala-
messa, Jones, Waggoner , and Conner were engaged in union activities at the El
Cortez at the time of their discharges on June 28, 1964.
Ultimate Conclusions
On the basis of the foregoing findings and analysis of the record , I make the
following ultimate findings of, fact:
1. That Respondent closed the weekday operation of crap table 2 at the
end of June 1964 merely as a pretext for terminating its employees Louis
EXBER, INC., D/B/A EL CORTEZ HOTEL 1463
'Cantalamessa, Robert Jones, David Conner, and David H. Waggoner because
of their union activities at the El Cortez casino.
2: That Respondent's alleged economic reasons for closing down the week-
day operation of crap table 2 at the end of June 1964, after only a month
,of trial, has not been substantiated by the record.
3. That even if it were found that Respondent had valid economic reasons for
closing the weekday operations of crap table 2 at the end of June 1964, the
Respondent, nevertheless, in effectuating the shutdown, singled out the afore-
mentioned dischargees as known or suspected union supporters in the casino
for termination.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company set forth in section III, above, occurring
in connection with the operations of Respondent as described in_ section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and, such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, it will be recom-
mended that the Respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It will be recommended that Respondent offer employees William Cox, Louis
•Cantalamessa, Robert Jones, David Conner, and David H. Waggoner immediate
and full reinstatement to their former or substantially equivalent position, without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of the discrimination
against them, by payment to them of a sum of money equal to that which they
would have earned as wages from the date of the discrimination against them to
the date of offer of reinstatement, and in a manner consistent with Board policy
set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall
be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent preserve and, upon request,
make available to the Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due under the
terms of this Decision.
It will also be recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. American Federation of Casino and Gaming Employees is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of William
Cox, Louis Cantalamessa, Robert Jones, David Conner, and David H. Waggoner,
thereby discouraging membership in the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth under section III, above, Respondent
interfered with, restrained, and coerced its employees and has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
,the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, it is recommended that Respondent, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization,
by discharging, laying off, or otherwise discriminating in regard to the hire or
tenure of employment of employees, or any term or condition of employment.
(b) Interrogating its employees as to their sympathies for, or activities on
behalf of the Union, or any other labor organization, in a' manner constituting
interference, restraint, or coercion in violation of Section 8(a)(1) of the Act.
(c) Threatening employees with reprisals, in order to discourage union mem-
bership or activities.
(d) Creating the impression among employees that it is engaging in surveillance
of their union activities.
(e) In any other manner interfering with, restraining, or coercing its employ-
ees in the exercise of their rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will effectuate the policies of the Act.
(a) Offer to William Cox, Louis Cantalamessa, Robert Jones, David Conner,
and David H. Waggoner immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earnings they may have suf-
fered by reason of Respondent's discrimination against them as set forth in that
section of the Trial Examiner's Decision entitled "The Remedy."
(b) Notify the above-named employees, if presently serving in the Armed Forces
of the United States of America, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Decision.
(d) Post at its casino in Las Vegas, Nevada, copies of the attached notice marked
"Appendix." 19 Copies of said notice, to be furnished by the Regional Director for
Region 20, after being duly signed by Respondent or its representatives, shall be
posted by Respondent immediately upon receipt thereof, and be maintained. by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Decision and Recommended Order, what steps Respondent has
taken to comply herewith.20
19 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the fu: ther event that the Board's Order be enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
20 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
-Relations Board, and' in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in American Federation of Casino
and Gaming Employees, or any other labor organization, by discharging or
BUTCHERS' UNQON, LOCAL NO. 120, MEAT CUTTERS 1465
refusing to reinstate ' any of our employees , or in any manner discriminating in
regard to their hire or tenure of employment, or any term or condition of
employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization , in a manner constituting inter-
ference, restraint , or coercion violative of Section 8(a) (1) of the Act.
WE WILL NOT threaten employees with a closing of the casino or other
reprisals , in order to discourage union membership or activities.
WE WILL NOT create the impression among our employees that we are engag-
ing in surveillance of their union activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any or all such activities.
WE WILL offer to William Cox , Louis Cantalamessa , Robert Jones, David
Conner, and David H. Waggoner immediate and full reinstatement to their
former or a substantially equivalent position without prejudice to seniority
and other rights and privileges and make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
EXBER, INC., D/B/A EL CORTEZ HOTEL,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, 450
Golden Gate Avenue, Box 36047 , San Francisco , California 94102, Telephone 556-
0335.
Butchers' Union, Local No. 120, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO and John
Pacheco, an Individual, d/b/a M . Moniz Portuguese Sausage
Factory. Case 20-CP 183. September 29, 1966
DECISION AND ORDER
On April 14, 1966, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled case, finding that the Respondent had not
engaged in the unfair labor practices alleged in thhe complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner' s Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three- member
panel [Chairman McCulloch and Members Fanning and Zagoria].
160 NLRB No. 114.