Frontier Hotel & Casino

National Labor Relations Board - Board Decisions

Aug 30, 1995

318 N.L.R.B. 857 (N.L.R.B. 1995)

857
318 NLRB No. 60
FRONTIER HOTEL & CASINO
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. The Respondent also con-
tends that the judge’s actions in this proceeding demonstrate bias
against the Respondent. After a careful review of the record, we find
that this allegation is without merit.
2 In adopting the judge’s finding that the allegations that the Re-
spondent unlawfully discontinued its use of Charging Party Team-
sters’ exclusive hiring hall and failed to notify Teamsters of outside
hires are not barred by Sec. 10(b), we note that the Respondent’s
witnesses testified that it ceased using the hiring hall in May or June
1990, and the charge was filed on November 5, 1990. Moreover, we
agree with the judge that Teamsters could not reasonably have
known of the change until shortly before it filed the charge because
the change was made surreptiously and Teamsters was not notified
of the new hires.
3 All subsequent dates are 1990 unless otherwise indicated.
4 At that time, the Operating Engineers unit was still working
under the conditions of an agreement that had expired in 1987, and
the Teamsters units operated under terms imposed by the Respond-
ent in 1989 following impasse.
Unbelievable, Inc., d/b/a Frontier Hotel & Casino
and Professional, Clerical and Miscellaneous
Employees, Local 995, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO
and International Union of Operating Engi-
neers, Local 501, AFL–CIO. Cases 28–CA–
10606, 28–CA–10651, 28–CA–10742, 28–CA–
10650, and 28–CA–10757
August 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On May 28, 1992, Administrative Law Judge James
M. Kennedy issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, cross-excep-
tions, and motion for reimbursement remedy, and the
Charging Parties filed an opposition to the Respond-
ent’s exceptions and a motion for attorney fees and
litigation expenses. The Respondent filed motions,
which we deny, to strike the Charging Parties’ opposi-
tion to the Respondent’s exceptions and the Charging
Parties’ motion for attorney fees.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
The Charging Parties and the General Counsel seek
reimbursement of fees and expenses related to this pro-
ceeding. The requested reimbursement order, as speci-
fied in the General Counsel’s motion, encompasses the
Charging Parties’ negotiation and litigation expenses as
well as the General Counsel’s litigation expenses, in-
cluding the costs of investigating the charges against
the Respondent. We find that, in the circumstances of
this case, such remedies will effectuate the policies of
the Act, and we grant the General Counsel and Charg-
ing Parties’ motions. The Respondent has engaged in
egregious and deliberate surface bargaining with the
Charging Parties, which has unnecessarily diminished
their economic strength. Moreover, through its reliance
on frivolous defenses in its litigation of these allega-
tions, the Respondent has further depleted the Charg-
ing Parties’ resources and needlessly wasted the re-
sources of this Agency. We find that the Respondent’s
flagrant disregard for its obligations under the Act, as
well as for the Board’s processes, compels the conclu-
sion that the extraordinary remedies requested, in addi-
tion to the usual bargaining order, are appropriate in
order to compensate the Charging Parties and the Gen-
eral Counsel for their losses and to ensure meaningful
negotiations pursuant to the Board’s Order.
I. THE CHARGING PARTIES’ NEGOTIATION
EXPENSES
The judge found that the Respondent’s conduct in
negotiations with the Charging Parties constituted sur-
face bargaining in violation of Section 8(a)(5) and (1)
of the Act. We agree. In May 1990,3 the Respondent
engaged Attorney Joel Keiler to negotiate new labor
agreements with the unions representing its employees,
including Charging Parties Teamsters and Operating
Engineers.4 The judge found that Keiler’s conduct
even before negotiations with the Unions began was
designed to set the stage for allegations that the Unions
failed to meet and bargain. Specifically, long before
the Respondent notified the Unions on July 24 that
Keiler was authorized to represent it, Keiler contacted
the Unions repeatedly, initiated the involvement of a
Federal mediator to arrange negotiating sessions, and
on June 27 submitted to both Unions proposals that in-
cluded major departures from existing working condi-
tions. The letters accompanying the proposals stated
that the proposals would be implemented on August 1
unless the Unions contacted him.
Keiler’s conduct at his bargaining sessions with the
Unions reaffirms that he did not intend to reach agree-
ments with them. As found by the judge, Keiler adopt-
ed a ‘‘pugnacious and obstructive stance’’ that would
frustrate the efforts of any negotiator intent on con-
ducting rational bargaining. Moreover, the Respond-
ent’s proposals were, as found by the judge, ‘‘regres-
sive and confrontational’’ and ‘‘not designed to reach
agreement.’’ The proposal to Operating Engineers,
inter alia, cut the wages of most Operating Engineers-
represented employees by approximately 5 percent, re-
quired unit employees to work 2000 hours in an anni-
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In this respect, the principle underlying the reimbursement of ne-
gotiating expenses in cases of extreme surface bargaining resembles
the rationale for the limited backpay remedy ordered by the Board
where employers have failed to provide unions with an opportunity
to bargain about the effects of a cessation of operations. See
Transmarine Corp., 170 NLRB 389 (1968). In both instances, the
employers, through their unlawful conduct, have diminished the bar-
gaining strength of the unions, and the Board must employ extraor-
dinary remedies to restore the unions’ strength and thus ensure
meaningful bargaining pursuant to the bargaining order.
versary year in order to be eligible for holiday and va-
cation pay, eliminated the pension plan, and replaced
the union health plan with two private plans. When
Operating Engineers Representative Robert Fox Jr. told
Keiler that the proposals were outlandish and that their
only purpose was to generate a strike, Keiler replied
that ‘‘that’s the way Tommy [Elardi, the Respondent’s
general manager] wanted it,’’ and that ‘‘he would be
pleased to get rid of all the collective-bargaining agree-
ments, that that was his purpose in getting such a—
this kind of proposal.’’ Similarly, the proposal pre-
sented to Teamsters eliminated the hiring hall, the
daily and weekly guarantees, the business agents’ visit-
ing privileges, the stewards’ privileges, and the pen-
sion plan. It also merged the two traditional Teamsters-
represented units, excluded individuals whom the Re-
spondent considered supervisors, and reduced laborers’
wages from $11.92 per hour to $6.50 per hour. Keiler
responded to Teamsters Secretary-Treasurer Richard
Thomas’ protest that the proposed holiday and vaca-
tion pay rule (the same as that presented to Operating
Engineers) was ridiculous, stating, ‘‘Tom don’t care.
Tom would like to have a strike anyway.’’ Keiler re-
peated this refrain when Thomas rejected in turn the
Respondent’s proposals concerning discharges, pen-
sions, and the hiring hall.
Keiler met with Operating Engineers on three occa-
sions and with Teamsters on four occasions. Keiler re-
fused to engage in meaningful discussion of any of the
Unions’ proposals and insisted on discussing only the
Respondent’s proposals which he declared would not
be modified.
At his last meeting with Operating Engineers, Keiler
did modify the Respondent’s proposed holiday and va-
cation pay rule and returned to the Union’s existing
health and welfare plan. At that meeting, he also de-
clared that the parties were at impasse. Fox asserted
that the Respondent was not bargaining in good faith,
and that there was no impasse but rather a move by
the Respondent to force a strike. Keiler quoted Elardi
as saying that if the Union did not want the Respond-
ent’s proposal it should strike, and that he would just
as soon replace the engineers. The Respondent notified
Operating Engineers that it would implement its pro-
posal on December 1 and did in fact implement certain
changes on that date, including wage reductions and
the elimination of the pension plan.
Negotiations with Teamsters ended in much the
same way. Thomas had presented the Respondent’s
proposal to the membership for a vote, as Keiler had
requested, even though Thomas could not recommend
its approval. Thomas informed Keiler that the members
had rejected the proposal, and Keiler responded that if
the proposal was not accepted by November 1, the Re-
spondent would implement it. Thomas contended that
the parties had not reached impasse. Following this
meeting and its declaration of impasse, the Respondent
notified Teamsters by letter that it was changing its
proposal to continue contributing to the union health
insurance plan. The Respondent did not reply to
Thomas’ request for another meeting and implemented
its proposal on December 1.
We find, consistent with the judge’s conclusion, that
the Respondent engaged in deliberate and egregious
bad-faith conduct aimed at frustrating the bargaining
process. This conduct pervaded the entire course of
bargaining, beginning even before the first negotiation
session and continuing after the last. The Unions de-
voted their limited resources to their preparation for
negotiations as well as the actual bargaining sessions
with the Respondent, only to be met with the Respond-
ent’s flagrantly unlawful conduct. Thus, the Respond-
ent caused the Unions to waste their resources in a fu-
tile effort to bargain for an agreement that the Re-
spondent never intended to reach. In fact, Keiler lost
no opportunity to goad the Unions to strike, at the
same time promising that the Respondent would meet
this action by replacing the striking employees. We
find, as did the judge, that this conduct rendered the
bargaining between the parties merely a charade.
In such circumstances, a bargaining order alone will
not ensure meaningful bargaining, because it cannot re-
store the Unions to their positions prior to the futile
negotiations. In fact, limiting the remedy to the con-
ventional bargaining order would effectively permit the
Respondent to benefit from its violations of the Act by
ensuring bargaining with Unions that have been eco-
nomically weakened by the Respondent’s misconduct.
Thus, in order to effectuate the policies of the Act, we
must restore to the Unions some measure of the eco-
nomic strength that they possessed when they initially
entered the negotiations process with the Respondent.5
The Board has ordered the reimbursement of nego-
tiating costs in past cases based on the egregiousness
of the unlawful conduct. In Harowe Servo Controls,
250 NLRB 958 (1980), the employer made a number
of unilateral changes soon after the union was certified
and, after bargaining began, froze unit employees’
wages while granting an increase to other employees;
declared a deadlock in negotiations and made further
changes beyond its last proposals; then, after an unfair
labor practice strike had ended, the employer withdrew
its proposals based on decreased support for the union.
859FRONTIER HOTEL & CASINO
6 Heck’s, Inc., 215 NLRB 765 (1974). See also Tiidee Products,
194 NLRB 1234 (1972). This standard is discussed in detail infra
regarding the requests for reimbursement of litigation expenses in
this case.
7 Member Truesdale finds that the reimbursement of negotiating
expenses is necessary here to restore the status quo and thus promote
effective bargaining, where the Respondent has engaged in egregious
and deliberate surface bargaining. He finds it unnecessary to address
the issue of the broader application of this remedy to cases involving
other unfair labor practices that may similarly frustrate the bargain-
ing process.
The Board found that the employer ‘‘embarked upon
an unlawful course of conduct which was calculated to
thwart the entire collective-bargaining process and
forestall the possibility of the Respondent ever reach-
ing agreement with the chosen representative of its em-
ployees.’’ Id. at 964. The Board further found that the
resources expended by the union in that case were
wasted due to the employer’s ‘‘willful defiance of its
statutory obligation.’’ Id. at 965. In an earlier case,
M.F.A. Milling, 170 NLRB 1079 (1968), the Board
also found that the respondent had deliberately en-
gaged in conduct designed to frustrate bargaining and
to make negotiations a waste of time, and ordered the
respondent to reimburse the employee-members of the
union negotiating committee for wages lost while they
attended bargaining sessions. In the present case, we
reach the same conclusions as the Board did in
Harowe Servo based on similarly egregious facts. We
rely particularly on the undeniable causation between
the Respondent’s misconduct and the useless expendi-
ture of the Unions’ resources in their attempts to bar-
gain.
The Board, however, has not consistently followed
Harowe Servo in cases where the reimbursement of ne-
gotiating costs has been sought. In a number of cases,
the Board has instead relied on the standard applicable
to reimbursements of litigation costs to charging par-
ties, i.e., whether the defenses raised by the respondent
are ‘‘frivolous rather than debatable.’’6 For example, in
M. A. Harrison Mfg. Co., 253 NLRB 675 (1980), the
employer asserted that the union had waived its right
to bargain over changes implemented during negotia-
tions because the union had neither agreed nor ob-
jected to the changes. The Board declined to order re-
imbursement of negotiating expenses as a remedy for
the employer’s bad-faith bargaining, finding that the
defenses raised were clearly nonmeritorious but not so
insubstantial as to be patently frivolous. Id. at 675 fn.
2; see also Marriott In-Flite Services, 258 NLRB 755
(1981). In Wellman Industries, 248 NLRB 325 (1980),
the Board granted both negotiating and litigation ex-
penses based on the respondent’s frivolous defense for
its refusal to bargain, but specifically noted that the re-
imbursement of negotiating costs was not limited to
cases involving frivolous defenses, because those costs
were not at issue in Tiidee and Heck’s. Id. at 326.
In Houston County Electric Cooperative, 285 NLRB
1213 (1987), the Board again considered the reim-
bursement of litigation and negotiating costs together
and applied a hybrid standard, finding that such ex-
penses are warranted where the respondent’s defenses
are patently frivolous under Tiidee or where the re-
spondent has engaged in a particularly egregious
course of conduct to frustrate bargaining under
Harowe Servo. Still another test was utilized in East-
ern Maine Medical Center, 253 NLRB 224 (1980),
where the Board denied reimbursement of negotiating
expenses, as well as other extraordinary remedies for
the employer’s bad-faith bargaining, on the grounds
that the employer had not demonstrated ‘‘a proclivity
to violate the Act once its actions have been adju-
dicated unlawful.’’ Id. at 228.
The cases above illustrate the need for a clear and
consistent approach to the reimbursement of negotiat-
ing costs as a remedy for unlawful bargaining conduct.
As an initial matter, we emphasize that we do not in-
tend to disturb the Board’s long-established practice of
relying on bargaining orders to remedy the vast major-
ity of bad-faith bargaining violations. In most cir-
cumstances, such orders, accompanied by the usual
cease-and-desist order and the posting of a notice, will
suffice to induce a respondent to fulfill its statutory ob-
ligations. In cases of unusually aggravated misconduct,
however, where it may fairly be said that a respond-
ent’s substantial unfair labor practices have infected
the core of a bargaining process to such an extent that
their ‘‘effects cannot be eliminated by the application
of traditional remedies,’’ NLRB v. Gissel Packing Co.,
395 U.S. 575, 614 (1969), citing NLRB v. Logan Pack-
ing Co., 386 F.2d 562, 570 (4th Cir. 1967), an order
requiring the respondent to reimburse the charging
party for negotiation expenses is warranted both to
make the charging party whole for the resources that
were wasted because of the unlawful conduct, and to
restore the economic strength that is necessary to en-
sure a return to the status quo ante at the bargaining
table. As noted above, this approach reflects the direct
causal relationship between the respondent’s actions in
bargaining and the charging party’s losses. In contrast,
we find little nexus between the presentation of a friv-
olous defense in litigation and the reimbursement of a
charging party’s negotiation costs, and we overrule
M. A. Harrison, Marriott In-Flite Services, and similar
cases to the extent that they apply the frivolous de-
fense standard in this context.
Thus, because we have found that the effects of Re-
spondent’s surface bargaining cannot be eliminated by
the application of traditional remedies, we amend the
judge’s recommended remedy to include the reim-
bursement of the negotiation expenses of both Charg-
ing Parties.7
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Heck’s, Inc., 191 NLRB 886 (1971).
9 See also C. F. Eckert, Inc., 301 NLRB 868 (1991) (reimburse-
ment of litigation costs ordered to remedy employer’s failure to
make benefit fund contributions in breach of non-Board settlement,
where employer failed to make any defense beyond a denial of the
allegations).
10 See also National Roof Systems, 305 NLRB 965 (1991).
11 The Respondent also asserted that it had no duty to bargain be-
cause the units were inappropriate due to the asserted inclusion of
supervisors. However, the judge properly found, as he had in a pre-
vious proceeding involving the Respondent, that this defense was ir-
relevant to refusal-to-bargain allegations, and he declined to permit
evidence on this issue.
II. LITIGATION EXPENSES
A. The Respondent’s Frivolous Defense
Under the current standard as articulated in Heck’s,
the Board will order reimbursement of a charging par-
ty’s litigation expenses only where the defenses raised
by the respondent are ‘‘frivolous’’ rather than ‘‘debat-
able.’’ The Supreme Court anticipated the Board’s reli-
ance on this dichotomy in its remand of the Board’s
prior decision in that case,8 and further noted that such
a decision would be reasonable. NLRB v. Food Store
Employees Union Local 347, 417 U.S. 1 (1974). In its
decision on remand, the Board recognized the various
and sometimes competing policy concerns on which
the Board had based its decision not to order reim-
bursement in its earlier Heck’s decision, and its deci-
sion to require such reimbursement in Tiidee. In
Heck’s, where the defenses presented were found not
frivolous, the Board had cited, inter alia, the principles
that Board orders must be remedial rather than punitive
and that the public interest in allowing the charging
party to recover its litigation costs does not override
the principle that litigation costs are ordinarily not re-
coverable. 191 NLRB at 889. In response to the frivo-
lous defenses in Tiidee, on the other hand, the Board
had emphasized the importance of discouraging frivo-
lous litigation, and declared that the policies of the Act
‘‘can only be effectuated when speedy access to
uncrowded Board and court dockets is available.’’ 194
NLRB at 1236. Considering the cases together, the
Board found no inconsistency in its approach and con-
cluded that the opposite outcomes in the cases were
appropriate. Heck’s, 215 NLRB at 768.
Despite the Board’s caution in Heck’s that its deter-
mination in the context of the remand was limited to
reconciling the two previous decisions rather than pre-
scribing future remedial policy, that case continues to
define the rule and underlying principles concerning
reimbursement of litigation expenses. The Board has
ordered reimbursement in a number of cases pursuant
to the Heck’s standard. For example, in Wellman In-
dustries, supra, the respondent defended a refusal-to-
bargain allegation by contending that it had no duty to
bargain because the employees did not have the oppor-
tunity to vote on a union merger. The Board found the
defense frivolous because the respondent’s refusal to
bargain had prevented the employees from being cov-
ered by a collective-bargaining agreement, which was
necessary for eligibility to vote on the merger. Simi-
larly, the Board ordered reimbursement of litigation
costs in Texas Super Foods, 303 NLRB 209 (1991),
finding frivolous the employer’s continued defense of
preelection conduct previously found objectionable.9
Consistent with the intent expressed in Heck’s, the
Board has found that most cases do not meet the re-
strictive standard prescribed there. Heck’s indicates, for
example, that a respondent’s defenses will be consid-
ered debatable if they turn on issues of credibility, rea-
soning that parties should not be discouraged from
seeking access to Board processes ‘‘where the credibil-
ity of witnesses leaves an unfair labor practice issue in
doubt.’’ Heck’s, 215 NLRB at 768. In Workroom for
Designers, 274 NLRB 840 (1985), for example, the
Board found flagrant violations of Section 8(a)(1) and
(3) of the Act, but determined that the reimbursement
of litigation costs was not warranted, in part because
the merits of some allegations hinged on credibility.10
In addition, the Board has denied reimbursement of
litigation costs where some complaint allegations have
been dismissed. Thus, in Houston County Electric Co-
operative, supra, where the respondent had engaged in
bad-faith bargaining and made unilateral changes with-
out reaching impasse, the Board denied reimbursement
of litigation costs on the grounds that its reversal of
other 8(a)(5) findings demonstrated that at least some
of the respondent’s defenses were not frivolous.
In the present case, the Respondent’s sole defense to
the most serious complaint allegation of surface bar-
gaining consisted of the testimony of Keiler, the Re-
spondent’s only negotiator and its counsel through
most of this proceeding, until he withdrew and took
the stand as the Respondent’s last witness.11 Although
he provided some testimony on substantive matters rel-
evant to the dispute, much of his testimony, particu-
larly on cross-examination by counsel for the Charging
Parties and the General Counsel, consisted of unre-
sponsive, aggressive, and flagrantly disrespectful re-
marks. Besides illustrating his belligerent approach at
the bargaining table, Keiler’s testimony, substantial
portions of which are excerpted in the judge’s deci-
sion, convinced the judge that Keiler ‘‘has rejected the
concept that his conduct is subject to review under the
Act.’’ The judge concluded, and we agree, that Keiler
‘‘has no credibility whatsoever. Even when he is testi-
fying to matters not in serious dispute, one must mis-
trust him.’’ His conduct as a witness demonstrates his
intent to make a charade of this proceeding, just as he
had of the collective-bargaining process in his dealings
with the Unions.
861FRONTIER HOTEL & CASINO
12 Cf. Autoprod, Inc., 265 NLRB 331 (1982). In that case, the
Board ordered the respondent to reimburse the General Counsel’s
expenses, citing the respondent’s frivolous defenses, which ‘‘wan-
tonly and unnecessarily’’ forced litigation on the Board. The Board
also relied on the respondent’s long history of intransigence, which
is not present in this case. We find, however, that such a history is
not a necessary antecedent to ordering reimbursement based on friv-
olous defenses.
We agree with the principle in Heck’s that the ne-
cessity for evaluating the credibility of witnesses ordi-
narily renders a respondent’s defense debatable rather
than frivolous. However, we find that the Respondent’s
defense here, which depends on Keiler’s testimony,
presents no serious issue that can reasonably be char-
acterized as debatable. The Board’s statement in
Heck’s stemmed from a proper reluctance to penalize
a party for its inability to ascertain the credibility of
its witnesses or to predict how their demeanor may
demonstrate credibility or a lack of it. Therefore, the
Board expressed the view that until the credibility res-
olutions were made by the judge, the existence of an
unfair labor practice would remain ‘‘in doubt.’’ Al-
though this case required the judge to state credibility
findings regarding the conflicts between Keiler’s testi-
mony and that of the union representatives, it is clear
from the judge’s decision that his assessment of
Keiler’s credibility presented no real issue and bears
little resemblance to the kind of credibility resolution
contemplated in Heck’s. Instead, the defense here rests
on the transparently untruthful testimony of an attorney
whose words and demeanor demonstrated unmistak-
ably that he was not to be believed.
Moreover, whereas the typical case involves the
good-faith presentation of witnesses by counsel, the
witness in this case was not only the Respondent’s sole
agent in bargaining, but was himself its counsel in pre-
paring and presenting much of its case. Thus, Keiler
was in the unusual position of being able to determine
from personal knowledge that the Respondent’s de-
fense lacked credibility as well as merit.
The policies advanced by Tiidee and its progeny
cannot be protected if the Board deems ‘‘debatable’’
any and all defenses offered by a respondent—no mat-
ter how hollow or unbelievable. While we must exer-
cise appropriate caution in finding factual or credibility
based defenses to be frivolous, neither should we ef-
fectively hold that such defenses can never be so. Each
allegation of a frivolously maintained defense must be
evaluated in its particular context. We believe that this
approach is fully consistent with the principles relied
on in Heck’s, because it does not discourage access to
the Board’s processes in any case where debatable
issues, including genuine issues of crediblity, exist. To
the extent that Heck’s may be interpreted as precluding
the reimbursement of litigation expenses even where
only pro forma credibility resolutions are made, we
modify that policy to make clear that the Board may
find a respondent’s defense frivolous and order reim-
bursement of litigation expenses where, as here, the
defense relies on testimony that presents no legitimate
issue of credibility. In such exceptional circumstances,
reimbursement of these costs effectuates the policies of
the Act by keeping the Board’s docket available for
meritorious cases and by compensating charging par-
ties and the General Counsel for their needless expend-
itures caused by the respondent’s adherence to a clear-
ly meritless defense.12
We recognize that this proceeding involved other al-
legations in addition to surface bargaining. We have
adopted the judge’s findings that the Respondent un-
lawfully implemented unilateral changes in working
conditions and discriminatorily laid off and discharged
employee Coleman. The judge rejected the Respond-
ent’s defense that the unilateral change allegations
were barred by Section 10(b) in view of the surrep-
titious implementation of the changes. With respect to
Coleman’s discharge, the Respondent contended that it
based its action on his performance (although its wit-
ness could cite no deficiencies) and that it was entitled
to implement changes in the layoff procedure to permit
the layoff of the most senior engineer, because the par-
ties had reached impasse. In view of our findings
above concerning the Respondent’s surface bargaining,
it is abundantly clear that any defense predicated on
the existence of impasse is at the very least nonmeri-
torious. We also agree with the judge’s dismissal of
two relatively minor complaint allegations: that the Re-
spondent refused to provide information, which the
judge found was sought in preparation for the present
litigation, and that the Respondent unlawfully with-
drew its health insurance proposal to Teamsters in
favor of retaining the current Teamsters plan at greater
expense to employees.
We find that the presence of these additional allega-
tions is insufficient to defeat the Charging Parties and
General Counsel’s motions for reimbursement of litiga-
tion expenses. While we do not pass on the particular
merits of any case previously decided by the Board,
we disagree with the blanket notion that the assertion
of a debatable defense concerning any complaint alle-
gation, or even the dismissal of an allegation, nec-
essarily elevates the respondent’s defense to the level
that it may appropriately be characterized as debatable.
Indeed, in any consolidated proceeding such as this,
there will be a variety of alleged violations, and some
may be withdrawn or found lacking in merit. Limiting
the award of litigation costs to only cases undiluted by
other issues, however, would strongly encourage sepa-
rate litigation of alleged unfair labor practices, which
clearly would not be an efficient use of the Board’s re-
sources. Moreover, in the circumstances of this case,
the Respondent’s surface bargaining significantly over-
shadows the other allegations and dominated the litiga-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 These terms were used by the Fourth Circuit to describe the em-
ployer’s conduct in J. P. Stevens & Co. v. NLRB, 668 F.2d 767, 777
(1982), remanded 458 U.S. 1118 (1982). In that case, the Fourth Cir-
cuit adopted the Board’s finding that reimbursement of litigation
costs was warranted based on the employer’s course of conduct over
several Board and court proceedings. Although the facts of the in-
stant case are distinguishable, we find that the language employed
by the court aptly expresses the exceptional degree of unlawful con-
duct necessary for such a reimbursement remedy to be found appro-
priate.
14 Id. at 721, quoting Fleischmann Distilling Corp. v. Maier Brew-
ing Co., 386 U.S. 714, 717 (1967).
tion of the complaint. Therefore, we find that an award
of full litigation costs to the Charging Parties and the
General Counsel is appropriate.
B. The Nature of the Underlying Conduct
In addition to the frivolous defense asserted by the
Respondent, we find that the egregiousness of the Re-
spondent’s surface bargaining conduct constitutes a
further basis for requiring reimbursement of the
Unions’ litigation expenses. We have already described
Keiler’s flagrantly unlawful course of conduct as the
Respondent’s agent in negotiations with the Unions.
This approach to bargaining left the Unions no choice
but to assert their statutory rights through litigation at
the Board. In these circumstances, the losses sustained
by the Unions in the preparation and conduct of the
negotiations were compounded by the further expense
of litigating in order to obtain the opportunity for
good-faith bargaining to which they are statutorily en-
titled. We find that in particularly extreme unfair labor
practice cases such as this, where a respondent has en-
gaged in ‘‘flagrant, aggravated, persistent, and perva-
sive misconduct,’’13 even a bargaining order accom-
panied by reimbursement of the charging party’s nego-
tiation expenses is insufficient to restore a charging
party’s economic strength and to ensure meaningful
bargaining. We believe that in such cases we can best
effectuate the policies of the Act by making the charg-
ing party whole for these losses. Therefore, we find
that where, as here, the respondent’s surface bargaining
conduct is flagrant, aggravated, persistent, and perva-
sive, the appropriate remedy includes the reimburse-
ment of both the negotiation and litigation costs of the
charging party.
C. The American Rule
Requiring the Respondent to reimburse the Unions
and the General Counsel for their litigation costs in the
circumstances described above is consistent with the
American Rule regarding attorney’s fees as applied by
the Federal courts. In Summit Valley Industries v. Car-
penters Local 112, 456 U.S. 717 (1982), the Supreme
Court cited this rule providing that attorney’s fees ‘‘are
not ordinarily recoverable in the absence of a statute
or enforceable contract providing therefor,’’14 and
found that attorney’s fees incurred in prior Board pro-
ceedings are not among the damages recoverable under
Section 303 of the Labor Management Relations Act.
Initially, the Court recognized several equitable excep-
tions to the rule, including the bad-faith exception dis-
cussed further below, but found none applicable to that
case. Next, the Court considered whether Section 303
provided for the recovery of attorney’s fees by review-
ing both its language and its legislative history. The
Court determined that the statutory provision allowing
the plaintiff to ‘‘recover the damages by him sustained
and the cost of the suit’’ did not grant specific author-
ization for the courts to award attorney’s fees, and that
both the ordinary meaning of the term ‘‘damages’’ and
the presumption under the American Rule excluded
fees. Regarding its examination of the legislative his-
tory of Section 303, the Court stated:
[T]he little discussion pertaining to the scope of
an employer’s recovery under § 303(b) indicates
that Congress did not intend to expand the term
‘‘damages’’ to include attorney’s fees. The fol-
lowing colloquy between Senator Taft and Sen-
ator Morse is particularly instructive. In response
to Senator Morse’s suggestion that § 303(b) would
impose virtually unlimited liability on unions,
Senator Taft stated: ‘‘Under the Sherman Act the
same question of boycott damage is subject to a
suit for damages and attorney’s fees. In this case
we simply provide for the amount of the actual
damages.’’ 93 Cong. Rec. 4872–4873 (1947) (em-
phasis added). We find these remarks persuasive
evidence that Congress did not intend attorney’s
fees which were expended to stop a union from
engaging in illegal activity to be recovered as
‘‘damages’’ under § 303(b).
456 U.S. at 723.
In contrast to Section 303, an examination of Sec-
tion 10(c) of the Act and its legislative history leads
to the conclusion that Congress intended to grant the
Board extensive remedial authority, which may in ap-
propriate cases include the reimbursement of attorney’s
fees. Section 10(c) states in pertinent part:
If upon the preponderance of the testimony taken
the Board shall be of the opinion that any person
named in the complaint has engaged in or is en-
gaging in any such unfair labor practice, then the
Board . . . shall issue . . . an order requiring
such person to cease and desist from such unfair
labor practice, and to take such affirmative action
including reinstatement of employees with or
without back pay, as will effectuate the policies of
this Act . . . .
The policies of the Act, as enumerated in Section 1,
are:
863FRONTIER HOTEL & CASINO
15 S. 2926, Original Senate Print, 73d Cong., 2d Sess., reprinted
in 1 Legislative History of the National Labor Relations Act (Leg.
Hist.), 1935, pp. 6–7.
16 S. 1958, Original Senate Print, 74th Cong., 1st Sess., reprinted
in 1 Leg. Hist. 1302 (1935).
17 Comparison of S. 2926 (73d Congress) and S. 1958 (74th Con-
gress), Senate Committee Print, reprinted in 1 Leg. Hist. 1360
(1935).
18 NLRB v. Food Store Employees Union, 417 U.S. 1 (1974).
to eliminate the causes of certain substantial ob-
structions to the free flow of commerce and to
mitigate and eliminate these obstructions when
they have occurred by encouraging the practice
and procedure of collective bargaining and by
protecting the exercise by workers of full freedom
of association, self-organization, and designation
of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of
their employment or other mutual aid or protec-
tion.
Therefore, although Section 10(c), like Section 303,
does not specifically address the Board’s authority to
order reimbursement of attorney’s fees, it stands in
stark contrast to Section 303 in that it refrains from
particularizing the scope of the Board’s remedial pow-
ers and, by its plain meaning, contemplates the exer-
cise of broad discretion by the Board in fashioning a
range of remedies suitable to remedy various unfair
labor practices, as long as they ‘‘effectuate the policies
of the Act.’’ We have found above that our Order in
this case meets that statutory standard.
Moreover, whereas the Supreme Court in Summit
Valley relied heavily on the unmistakable expression in
the legislative history of Section 303 that Congress did
not intend to include attorney’s fees within the scope
of recoverable damages, the legislative history of the
Act contains no hint of an intention to circumscribe the
remedial authority of the Board. Even though some
early bills preceding the passage of the 1935 Act enu-
merated some of the specific types of remedies avail-
able to the Board, they also consistently included
broad provisions authorizing the Board to exercise dis-
cretion in this area. The original Senate print of S.
2926 provided, ‘‘The order may require such person to
cease and desist from such unfair labor practice, or to
take affirmative action, or to pay damages, or to rein-
state employees, or to perform any other acts that will
achieve substantial justice under the circumstances.’’15
The original Senate print of S. 1958 modified that lan-
guage to provide that the Board would issue an order
‘‘requiring such person to cease and desist from such
unfair labor practice, and to take such affirmative ac-
tion, including restitution, as will effectuate the poli-
cies of the Act.’’16 In comparing S. 2926 and S. 1958,
the Senate Labor Committee expressed its preferences
for the phrase ‘‘effectuate the policies of this Act’’ be-
cause it referred directly to Section 1, and for the gen-
eral term ‘‘restitution,’’ noting that an ‘‘effort to sub-
stitute express language such as reinstatement, back
pay, etc., necessarily results in narrowing the definition
of restitution, which may include many other forms of
action.’’17 Although the final bill in fact substituted
‘‘reinstatement of employees with or without back
pay’’ for ‘‘restitution,’’ the change was made without
any suggestion of an intention to narrow the discretion
of the Board in remedial matters. In the 1947 amend-
ments, Congress left unaltered the statutory language
concerning the Board’s remedial authority.
The Supreme Court has recognized that Congress
granted the Board wide discretion concerning rem-
edies. In Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
194 (1941), the Court stated, ‘‘Nor could [Congress]
define the whole gamut of remedies to effectuate these
policies [of the Act] in an infinite variety of specific
situations. Congress met these difficulties by leaving
the adaptation of means to end to the empiric process
of administration. The exercise of the process was
committed to the Board, subject to limited judicial re-
view.’’ In Virginia Electric Co. v. NLRB, 319 U.S.
533, 539 (1943), the Court found that the Board could
properly order an employer to reimburse employees for
dues withheld from their wages and paid to an em-
ployer-dominated union, stating:
Within this limit [prescribed by Section 10(c) and
Section 1 of the Act] the Board has wide discre-
tion in ordering affirmative action; its power is
not limited to the illustrative example of one type
of permissible affirmative order, namely, rein-
statement with or without backpay. [Citing Phelps
Dodge.] The particular means by which the ef-
fects of unfair labor practices are to be expunged
are matters ‘‘for the Board not the courts to deter-
mine.’’ I. A. of M. v. Labor Board, [311 U.S. 72]
at 82.
Conversely, in Republic Steel Corp. v. NLRB, 311 U.S.
7 (1940), the Court held that the Board lacked author-
ity to order the employer to deduct from the
discriminatees’ backpay the amounts they had earned
on work relief projects and to pay those amounts to the
appropriate government agencies, because the Board’s
order was devised to further public policies other than
those articulated in the Act.
In remanding Heck’s, the Court again acknowledged
the legislative intent to leave remedies to the special
competence of the Board in deciding that the D.C. Cir-
cuit had erred in enlarging the Board’s order to include
litigation costs without first remanding to the Board.18
Moreover, in that case, although the Court found ‘‘fa-
cial inconsistencies’’ between Heck’s and Tiidee, it
noted that the Board may have perceived legitimate
distinctions between the cases and did not hint that an
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Member Truesdale agrees with his colleagues that the egregious
surface bargaining on the part of the Respondent in this case clearly
warrants the award of litigation costs to the Union. However, he
finds it unnecessary to address the application of this extradordinary
remedy in future cases involving other equally serious unfair labor
practices. 20 447 U.S. at 766 (quoting Hall v. Cole, 412 U.S. 1, 15 (1973)).
award of litigation costs was beyond the power of the
Board. Similarly, the Court’s remand of J. P. Stevens
for further consideration in light of Summit Valley
demonstrates the Court’s reluctance to disturb a Board
order without seeking further rationale. Interpreting the
remand as indicating a belief that Summit Valley pre-
cluded the reimbursement of litigation costs by the
Board is purely speculative.
The other policy concerns raised by the Court in
Summit Valley do not conflict with our decision to
grant reimbursement of litigation costs here. For exam-
ple, the Court noted that a party should not be penal-
ized for prosecuting or defending a lawsuit. The
Board’s policy of ordering reimbursement where a re-
spondent’s defenses are frivolous is certainly in accord
with this principle, because we find it untenable that
the Court intended to protect a party’s choice to en-
gage in truly frivolous litigation. Neither do we dispute
the Court’s finding that recovery of attorney’s fees is
not a necessary element of a make-whole remedy. We
fully recognize the extraordinary nature of this remedy
and, under the policy articulated in this case, we re-
serve it for cases involving frivolous defenses and the
most serious unfair labor practices.19 In these cases,
however, we are convinced that such a remedy is nec-
essary to effectuate the policies of the Act.
Moreover, the Supreme Court has recognized that
the American Rule is not absolute, and that in certain
exceptional cases an award of attorney’s fees is appro-
priate, even in the absence of a legislative grant of au-
thority, where ‘‘overriding considerations indicate the
need for such a recovery.’’ Mills v. Electric Auto-Lite
Co., 396 U.S. 375, 391–392 (1970). Among these eq-
uitable exceptions is the bad-faith exception, under
which ‘‘attorneys’ fees may be awarded to a successful
party when his opponent has acted in bad faith, vexa-
tiously, wantonly, or for oppressive reasons.’’ F. D.
Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129
(1974). The Court held in Vaughan v. Atkinson, 369
U.S. 527 (1962), for example, where a seaman brought
a suit to recover payments for maintenance and cure
of tuberculosis, that an award of attorney’s fees was
warranted because of the employer’s ‘‘willful and per-
sistent default in maintenance payments.’’ Id. at 531.
The Court reasoned that the employer’s conduct
‘‘forced [the seaman] to hire a lawyer and go to court
to get what was plainly owed him.’’ Id.
In Roadway Express, Inc. v. Piper, 447 U.S. 752
(1980), the Court acknowledged that the bad faith re-
quired by the exception ‘‘may be found, not only in
the actions that led to the lawsuit, but also in the con-
duct of the litigation.’’20 In fact, in Vaughan, supra, it
was the underlying conduct, i.e., the ‘‘willful and per-
sistent default in maintenance payments,’’ which led
the Court to conclude that the defendant had acted in
bad faith, entitling the plaintiff seaman to recovery of
his attorney’s fees. Despite this plain indication by the
Court, there is some conflict among the courts of ap-
peals concerning whether the bad-faith exception ap-
plies, as the Supreme Court suggested in Roadway Ex-
press, to bad faith in the conduct underlying the law-
suit as well as to bad faith pertaining to the litigation.
Compare Richardson v. Communications Workers, 530
F.2d 126 (8th Cir. 1976), cert. denied 429 U.S. 824
(1976) (exception encompasses bad faith in underlying
conduct) with Shimman v. Operating Engineers Local
18, 744 F.2d 1226, 1230 (6th Cir. 1984) (exception ap-
plies only to bad faith in the conduct of the litigation).
We believe that the Supreme Court’s repeated inclu-
sion of both aspects of bad faith in its articulation of
the exception warrants the conclusion that it con-
templates that the exception will be applied in that
manner.
In ordering the reimbursement of the litigation costs
of the Unions and the General Counsel, including at-
torney’s fees, we have already found that the Respond-
ent demonstrated egregious bad faith—in the surface
bargaining conduct giving rise to the unfair labor prac-
tice allegations, in its adherence to frivolous defenses,
which necessitated the litigation of those allegations,
and in the presentation of those defenses through the
testimony of Keiler. Like the seaman in Vaughan, the
Unions and the General Counsel were forced to litigate
so that the Unions could obtain ‘‘what was plainly
owed’’ them, that is, their right under the Act to bar-
gain with the Respondent as the representatives of unit
employees. Therefore, we find ample support for our
conclusion that our Order is fully consistent not only
with the American Rule, but alternatively with the bad-
faith exception to that rule.
Based on the above conclusions, we amend the rec-
ommended remedy further to include the reimburse-
ment of the reasonable litigation expenses of the
Charging Parties as well as the General Counsel.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Unbe-
lievable, Inc., d/b/a Frontier Hotel & Casino, Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
865FRONTIER HOTEL & CASINO
1. Add the following as paragraph 2(f) and reletter
the subsequent paragraphs.
‘‘(f) Pay to the Teamsters, the IUOE, and the Gen-
eral Counsel the costs and expenses incurred by them
in the investigation, preparation, presentation, and con-
duct of this proceeding, including reasonable counsel
fees, salaries, witness fees, transcript and record costs,
printing costs, travel expenses and per diem, and other
reasonable costs and expenses, all such costs to be de-
termined at the compliance stage of this proceeding. In
addition, pay to the Teamsters and the IUOE the costs
and expenses incurred by them in the preparation and
conduct of collective-bargaining negotiations subse-
quent to June 27, 1990, such costs and expenses to be
determined at the compliance stage of this proceed-
ing.’’
2. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to bargain in good faith
with International Union of Operating Engineers, Local
501, AFL–CIO as the exclusive collective-bargaining
representative of our engineering department employ-
ees.
WE WILL NOT enter into negotiations without any in-
tent to reach a collective-bargaining contract with
Local 501; WE WILL NOT have a closed mind regarding
what subject matters should be included in a collec-
tive-bargaining contract; and WE WILL NOT present that
Union with proposals which are intended to cause a
strike.
WE WILL NOT make unilateral changes in the wages,
hours, and other terms and conditions of employment
of employees in the bargaining units represented by
Local 501 such as:
Implementing proposals at times when a lawful
impasse has not been reached.
Creating new job classifications to perform
work normally done by bargaining unit employ-
ees.
Rejecting the concept of seniority as described
in the expired collective bargaining agreement be-
tween us and Local 501 in circumstances where
no impasse has been reached.
WE WILL NOT discharge employees without regard
to their seniority rights as set forth in the expired col-
lective-bargaining contract between us and Local 501
governing preference for selection for layoff.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting or acting on be-
half of International Union of Operating Engineers,
Local 501, AFL–CIO or any other union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL restore the wages and working conditions
which were in effect prior to December 1, 1990 (un-
less the current wages exceed those then in effect, in
which case we will not reduce any wage rate).
WE WILL, on request, bargain in good faith with
International Union of Operating Engineers, Local 501,
AFL–CIO as the exclusive representative of the em-
ployees in the bargaining unit described in the 1983–
1987 collective-bargaining contract concerning wages,
hours, and terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
WE WILL make whole those employees who suffered
wage losses (including holiday and vacation pay, if
any) and pension losses resulting from our unlawful
unilateral changes, with interest.
WE WILL offer James E. Coleman immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights
and privileges he previously enjoyed, and make him
whole, with interest, for any loss of earnings and other
benefits suffered as a result of our discrimination
against him.
WE WILL remove from our files any reference to the
unlawful discharge of James E. Coleman and notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
WE WILL pay to the International Union of Operat-
ing Engineers, Local 501, AFL–CIO and to the Gen-
eral Counsel of the National Labor Relations Board the
costs and expenses incurred by them in the investiga-
tion, preparation, presentation, and conduct of this pro-
ceeding, including reasonable counsel fees, salaries,
witness fees, transcript and record costs, printing costs,
travel expenses and per diem, and other reasonable
costs and expenses, all such costs to be determined at
the compliance stage of this proceeding. In addition,
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The hearing was delayed, inter alia, when it became necessary
for the General Counsel to enforce a subpoena.
WE WILL pay to the IUOE the costs and expenses in-
curred by them in the preparation and conduct of col-
lective-bargaining negotiations subsequent to June 27,
1990, such costs and expenses to be determined at the
compliance stage of this proceeding.
UNBELIEVABLE, INC., D/B/A FRONTIER
HOTEL & CASINO
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to bargain in good faith
with Professional, Clerical and Miscellaneous Employ-
ees, Local 995, affiliated with International Brother-
hood of Teamsters, AFL–CIO as the exclusive collec-
tive-bargaining representative of our ‘‘Front End’’ and
‘‘Back End’’ employees.
WE WILL NOT enter into negotiations without any in-
tent to reach a collective-bargaining contract with
Local 995; WE WILL NOT have a closed mind regarding
what subject matters should be included in a collec-
tive-bargaining contract; and WE WILL NOT present that
Union with proposals which are intended to cause a
strike.
WE WILL NOT make unilateral changes in the wages,
hours, and other terms and conditions of employment
of employees in the bargaining units represented by
Local 995 such as:
Abandoning our obligatory use of Local 995’s
hiring hall and the rules associated with it, such
as giving notice to it that individuals have been
secured from another source.
Implementing proposals at times when a lawful
impasse has not been reached.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL restore the wages and working conditions
which were in effect prior to December 1, 1990 (un-
less the current wages exceed those then in effect, in
which case we will not reduce any wage rate).
WE WILL, on request, bargain in good faith with
Professional, Clerical and Miscellaneous Employees,
Local 995, affiliated with International Brotherhood of
Teamsters, AFL–CIO as the exclusive representative of
the employees in the ‘‘Front End’’ and ‘‘Back End’’
bargaining units described in our 1983–1987 collec-
tive-bargaining contracts concerning wages, hours, and
terms and conditions of employment and, if under-
standings are reached, embody those understandings in
a signed agreement.
WE WILL make whole those employees, together
with interest, who suffered wage losses (including holi-
day and vacation pay, if any) and pension losses re-
sulting from our unlawful unilateral changes.
WE WILL pay to the Professional, Clerical and Mis-
cellaneous Employees, Local 995, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO, and to
the General Counsel of the National Labor Relations
Board the costs and expenses incurred by them in the
investigation, preparation, presentation, and conduct of
this proceeding, including reasonable counsel fees, sal-
aries, witness fees, transcript and record costs, printing
costs, travel expenses and per diem, and other reason-
able costs and expenses, all such costs to be deter-
mined at the compliance stage of this proceeding. In
addition, WE WILL pay to the Teamsters the costs and
expenses incurred by them in the preparation and con-
duct of collective-bargaining negotiations subsequent
to June 27, 1990, such costs and expenses to be deter-
mined at the compliance stage of this proceeding.
UNBELIEVABLE, INC., D/B/A FRONTIER
HOTEL & CASINO
Lewis S. Harris, Esq., for the General Counsel.
Alan D. Keiler, Esq. (Ammerman & Keiler), of Washington,
D.C., for the Respondent.
Gerald Goldman, Esq. and Adam N. Stern (Levy, Goldman
& Levy), of Los Angeles, California, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Las Vegas, Nevada, on May 8,1 Sep-
tember 24–26, and October 1 and 3, 1991, on complaints is-
sued by the Regional Director for Region 28 of the National
Labor Relations Board. The complaints are based on unfair
labor practice charges filed by Professional, Clerical and
Miscellaneous Employees, Local 995, affiliated with Inter-
867FRONTIER HOTEL & CASINO
2 Attorney Joel I. Keiler, of Reston, Virginia, served as Respond-
ent’s sole negotiator beginning sometime in May 1990. He had re-
placed Kevin Efroymson, a Las Vegas labor lawyer who had pre-
viously represented Respondent. Joel I. Keiler continued to represent
Respondent throughout most of the proceedings before the Board, al-
though he was aware that he would need to testify. As Respondent’s
last witness, he withdrew as trial counsel. His partner (and brother),
Alan D. Keiler, of Washington, D.C., was substituted. 3 See Sec. 8(d) of the Act.
national Brotherhood of Teamsters, AFL–CIO (the Team-
sters) and International Union of Operating Engineers, Local
501, AFL–CIO (the IUOE) on various dates beginning No-
vember 8, 1989. On the General Counsel’s motion of May
8, 1991, the Teamsters cases and the first IUOE case were
consolidated for hearing. The second IUOE case was added
during a lengthy hiatus. Together, all these complaints allege
that Unbelievable, Inc., d/b/a Frontier Hotel & Casino (Re-
spondent or the Hotel) has violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act).
Issues
The principal issue to be decided is whether Respondent
engaged in a pattern of bargaining designed to frustrate the
negotiation of a new collective-bargaining contract, i.e.,
‘‘surface bargaining.’’ Indeed, the complaints allege Re-
spondent’s practice to have been ‘‘confrontational’’ bargain-
ing intended to trigger a strike so that the strikers could be
replaced and the unions ousted as the representatives of the
employees in the three bargaining units. Other issues are
whether Respondent implemented proposals without having
reached a lawful impasse and whether it discharged the
IUOE union steward either because of his union activities or
as the victim of an unlawful unilateral change which de-
prived him of the protection of the seniority practice found
in the expired collective-bargaining contract. Subsidiary to
these issues are an alleged unlawful refusal to supply the
Teamsters with certain information regarding newly hired
employees.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. The Charging
Parties and Respondent have filed briefs which have been
carefully considered. Due to illness, the General Counsel did
not file a brief, but did file a short letter explaining the cir-
cumstances and asserting the entire matter hinged upon the
lack of credibility of Respondent’s bargainer, Joel I. Keiler.2
Based on the entire record of the case, as well as my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Unbelievable, Inc., d/b/a Frontier Hotel & Casino, a Ne-
vada corporation, operates a hotel and gaming casino at its
facility in Las Vegas, where its annual gross revenue exceeds
$500,000 and it annually purchases and receives goods in
interstate commerce valued in excess of $50,000. Accord-
ingly, Respondent admits and I find it to be an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that both the Teamsters and the IUOE
are labor organizations within the meaning of Section 2(5) of
the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a hotel and casino located on the ‘‘Strip’’
in Las Vegas. Until 1988 it was owned by the Summa Cor-
poration. That year it was sold to Respondent, which specifi-
cally recognized the Unions and adopted the then current
working conditions as set forth in the three expired collec-
tive-bargaining contracts. Summa had had collective-bargain-
ing agreements with a number of unions, including the
Charging Parties, covering many different bargaining units.
The Teamsters actually had two agreements, the ‘‘Front
End’’ and the ‘‘Back End’’ contracts. Without listing all the
classifications, the ‘‘Front End’’ contract covered business
office employees such as night auditors, cashiers,
reservationists, room clerks, and telephone operators. The
‘‘Back End’’ classifications included employees whose duties
were mainly outside the hotel building, such as parking lot
attendants, tram drivers, gardeners, laborers, and warehouse-
men. The two most recent collective-bargaining agreements
between the Hotel and the Teamsters had expired on April
1, 1987. They were in the process of negotiating a new
agreement when the business was sold to Respondent in
1988.
The IUOE represents a bargaining unit of individuals em-
ployed in the Hotel’s engineering department. These individ-
uals perform repair work including light plumbing, air-condi-
tioning, and electrical tasks. They operate the building’s boil-
ers, refrigeration units, and power generators and also main-
tain them. That Union’s most recent contract, like the Team-
sters’, expired in 1987 and was in the process of renegoti-
ation when the business was sold.
Insofar as the Teamsters units were concerned, Respondent
operated under the terms of the expired contract until April
25, 1989, when it imposed new terms on those two units.
These were contract proposals made by Attorney Efroymson.
The parties appear to concede that that implementation estab-
lished the wages, hours, and terms and conditions of employ-
ment for the Teamsters units which were in effect until De-
cember 1, 1990. The Efroymson implementation is not the
subject of the complaints; all agree that those conditions
were properly established in an effort to break the longstand-
ing impasse which the parties had encountered after the con-
tracts expired in 1987.
With respect to the IUOE unit, although Efroymson pro-
posed a contract in late 1988, the IUOE never accepted it nor
did Respondent implement its terms. Therefore, the IUOE
unit continued to operate under the terms of the 1983–1987
agreement, albeit as a matter of law, not a matter of con-
tract.3
In May 1990, Respondent obtained the services of Attor-
ney Joel I. Keiler. He testified that Respondent’s general
manager, Tom Elardi, gave him instructions to obtain new
contracts with the various unions, including the two Charging
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 These included instructions to negotiate with the union represent-
ing the hotel and restaurant workers, Local Joint Executive Board of
Las Vegas, Culinary Workers Union, Local 226, and Bartenders
Union, Local 165, affiliated with Hotel Employees and Restaurant
Employees International Union, AFL–CIO. I issued a decision in
that case, Cases 28–CA–10027, 28–CA–10425, 28–CA–10539, and
28–CA–10572 (JD(SF)–144–91) on December 24, 1991. It is cur-
rently before the Board on Respondent’s exceptions.
5 Enf. denied 699 F.2d 148 (3d Cir. 1983). Although the court de-
nied enforcement on the facts, it recognized the general rule. Id. at
156.
6 See also Carolina Telephone & Telegraph Co., 258 NLRB 1387,
1388 (1981).
Parties.4 Keiler’s conduct is the focus of all the allegations
made against Respondent, except for the discharge of IUOE
Steward James E. Coleman.
In general, the complaints assert that Respondent has,
through Keiler’s actions, engaged in bad-faith bargaining.
The General Counsel contends that the implementation of the
Keiler proposals was not privileged by any good-faith im-
passe which the parties may have experienced, but was part
of a plan to either undermine these unions’ representative
status or to oust them altogether. That plan included Re-
spondent’s daring them to strike. The scheme must also have
included the risk of litigation and a decision that the passage
of time which any litigation would entail was a benefit, rath-
er than a liability.
Specifically, Respondent’s bad-faith conduct is alleged to
include:
Teamsters unit:
—A May 1990 repudiation of the hiring hall and refusal
to advise the union of direct hires.
—Regressive and confrontational bargaining tactics.
—A general refusal to consider any proposals other than
its own.
—Implementing its proposal on December 1, 1990; after
learning that the Teamsters health plan was in finan-
cial difficulty, withdrawing its own health proposal
and main taining the Teamsters plan.
IUOE unit:
—Regressive and confrontational bargaining tactics.
—A general refusal to consider any proposals other than
its own.
—Implementing its proposal on December 1, 1990.
Other issues:
—The discharge of steward Coleman.
—The unilateral creation of the multipurpose employee
who performed tasks traditionally done by IUOE bar-
gaining unit members.
—The refusal to provide the Teamsters with certain
infor mation regarding newly hired employees.
B. Preliminary Observation Regarding Respondent’s
Defense that the Bargaining Units are Inappropriate
At the outset, both in this case as well as the previous case
covering the restaurant and hotel workers, Respondent has
consistently, and persistently, maintained that because the
bargaining unit found in the expired contract covered statu-
tory supervisors that it is an inappropriate unit. That cir-
cumstance, it further argues, allows it to decline to bargain
with the unions until such time as the bargaining units are
rendered appropriate. During the hearing it regularly sought
to adduce evidence that certain job classifications covered by
the expired contract were supervisory in nature. As in the
previous case, I declined to hear evidence on the point, re-
garding the issue as not relevant to the proceedings as
framed by the complaint. I nonetheless, repeat what I said
there.
The bargaining units extant at the time the alleged unlaw-
ful unilateral changes were imposed were those set forth in
the expired collective-bargaining contracts, units which Re-
spondent voluntarily adopted when it purchased the hotel and
casino. The Board has said in such circumstances,
Chemetron Corp., 258 NLRB 1202, 1203 (1981):5
Having voluntarily recognized and bargained with
the Union as the collective-bargaining representative of
a unit composed of [individuals who alone would not
have constituted an appropriate unit under Sec. 9], Re-
spondent argued for the first time at the hearing that the
unit is inappropriate because the employees lack a dis-
tinct community of interest. We reject this belated at-
tempt to repudiate the voluntary recognition. [Footnote
omitted.] A contrary holding would fly in the face of
our statutory obligation to promote stability in bargain-
ing relationships.
See also Arizona Electric Power Cooperative, 250 NLRB
1132, 1133 (1980), cited in Chemetron. There, the employer
argued that it had no duty to bargain because the unit in-
cluded a statutory supervisor and was therefore inappropriate.
That supervisor (the lead load dispatcher) had not been in-
cluded in the certified unit, but was subsequently added to
it by agreement of the parties during negotiations for a col-
lective-bargaining agreement. In that case the respondent was
ordered to recognize and bargain with the union.
Clearly, the Board will not permit the disruption of an oth-
erwise stable bargaining relationship through the unilateral
declaration by an employer that because the Board would not
have initially certified the unit, it has no obligation to bar-
gain in it where bargaining has been successful for many
years.6 It is quite obvious that the Frontier Hotel & Casino
has bargained with the Unions in the units described by the
expired contracts for many years and for many contract
terms. Indeed, Respondent found the units sufficiently appro-
priate when it adopted them on the purchase of the facility.
Moreover, since my decision in the earlier case, the Ninth
Circuit Court of Appeals has agreed that the defense at this
stage is ‘‘wholly irrelevant.’’ See the court’s decision in
E. G. & H. Inc. v. NLRB, 949 F.2d 276 (9th Cir. 1991),
enfg. 296 NLRB 918 (1989).
This, of course, does not mean that Respondent cannot
seek to modify the collective-bargaining unit to comport with
the statute. It may timely file a unit clarification petition or
negotiate with the Unions to obtain such changes. If it choos-
es the latter, however, it must bear in mind that unit descrip-
tion clauses are nonmandatory subjects of bargaining and not
subject to impasse privileges. See New York Times Co., 270
NLRB 1267, 1273 (1984).
869FRONTIER HOTEL & CASINO
7 His contempt for the legal process led to a suspension from the
practice of law in 1977. See In the Matter of Joel I. Keiler, 380
A.2d 119 (D.C. Cir. 1977). There, he had corrupted the arbitral proc-
ess by secretly hiring his partner as an arbitrator and portraying him
as having a Florida address. See also the transcript in Barbary Coast,
G.C. Exh. 31, where he suggests the National Labor Relations Board
is ‘‘unimportant.’’ In Maietta Contracting, 265 NLRB 1279, 1280
(1982), the Board lists three cases in which Keiler has made ground-
less accusations against Board personnel, including administrative
law judges, and other conduct designed to distract the deci-
sionmakers from the issues raised by the case. In all these cases, his
contempt for the process and the Act is apparent. Similarly, he ac-
cused counsel for the General Counsel here of misconduct, claiming
Continued
In the earlier case, I commented that even though the con-
tract may have expired at the time the unilateral changes
were made, and even if Respondent was entitled to seek a
change in the bargaining unit, its purported inappropriateness
would not constitute a defense. Based on the court’s decision
in Las Vegas Club, supra, I am now confident that the rule
applies not only to unilateral changes, but to a general re-
fusal to bargain as well. The logic is actually the same. Until
the Board changes the unit or until the parties agree to
change it, it is, and has been, a unit demonstrated to be ap-
propriate for collective bargaining. Therefore, I concluded at
both hearings that evidence bearing on the supervisory status
of some of the unit members was not relevant to the case
and barred it. I continue to adhere to that ruling and again
comment that the issue appears to be a red herring. It is of
no concern to the outcome of the case. It does not even bear
on the remedy, for bargaining unit members are entitled to
any remedy appropriate to the unfair labor practices found.
C. Keiler’s Bargaining Tactics
Attorney and Bargainer Joel I. Keiler testified in Respond-
ent’s defense. As noted previously, he had served as Re-
spondent’s bargainer in all the meetings with both the Team-
sters and the IUOE. The General Counsel has adduced testi-
mony from officials of both Unions regarding what occurred
at those meetings as well as describing certain correspond-
ence which was exchanged. The principal bargainers for the
IUOE were Business Manager Robert H. Fox Jr. and Busi-
ness Agents Brian Reive and Michael J. Russell. The prin-
cipal bargainer for the Teamsters was Secretary-Treasurer
(Chief Executive Officer) Richard Thomas. Over the years,
Thomas has served as a part-time business agent for the
IUOE. Both Unions have enjoyed a close relationship with
one another, sometimes sharing office space or being officed
in the same building. They certainly keep one another in-
formed of events about which they have a common interest.
Despite their closeness and common interest in obtaining
a collective-bargaining agreement with Respondent, the two
Unions, in general, bargained separately with Keiler, al-
though on one occasion Thomas did attend for a short period
of time at an IUOE bargaining session.
Although the testimony each of the union officials gave is
similar and mutually corroborative, to get the full flavor of
what they say transpired, it is best to look to Keiler’s testi-
mony on cross-examination. The union officials all described
Keiler’s behavior as hostile, antagonistic, and unreasonably
insistent on changing the existing system to conform to the
proposal which he had initiated in June. Nonetheless, their
descriptions are mild compared to the testimony which
Keiler himself gave on cross-examination. I have rarely seen
a witness as scornful of both the collective-bargaining proc-
ess and the Act, specifically as enforced by the Board, as is
Keiler. Moreover, his testimony confirms the union officials
in the sense that he was excessively hostile to being cross-
examined and often disruptive. His principal aim seemed to
be to demonstrate that his lawyering skills are superior to
those of anyone else. He was not willing to accept his role
as a witness and to describe the facts as he knew them.
His responses to the very first group of questions pro-
pounded to him by the General Counsel demonstrate the
point:
(By Harris): Mr. Witness Keiler, I believe you testi-
fied that the three other unions, the Carpenters, Elec-
tricians and Painters, did not file unfair labor practice
charges after you implemented the Employer’s offer, is
that correct?
A. I can’t say whether it’s correct or not as to what
you believe.
[Colloquy among counsel and judge.]
MR. A. KEILER: Your Honor, I object to Counsel’s
characterization of the testimony.
MR. HARRIS: I am characteriz[ing] this witness in
what terms.
. . . .
MR. A. KEILER: If he wants to make final arguments,
he can wait and make final arguments here.
JUDGE KENNEDY: Well, now, wait here, Counsel.
THE WITNESS: I object to his splitting infinitives.
[Tr. 748–750.]
It can readily be seen that Keiler had no interest in follow-
ing the General Counsel’s question and simply wished to dis-
rupt. His remark about what counsel believes and his object-
ing to ‘‘splitting infinitives’’ was in response to nothing and
was simply a gratuitous barb. That kind of conduct continued
throughout. At one point the General Counsel wished to
show that Keiler has a pecuniary interest in testifying as he
had and the following occurred:
(By Mr. Harris) You’re getting paid for the time that
you have spent here this morning testifying by the
Frontier Hotel, isn’t that true, Mr. Keiler?
MR. A. KEILER: I object your Honor. How is this
relevant to the issues in this case?
JUDGE KENNEDY: I’ll overrule that objection.
THE WITNESS: I hope so, but who knows what’s
going to happen? We could all be dead tomorrow.
MR. HARRIS: You’re going to send a bill to the
Frontier Hotel for the time that you spen[d] testifying
here this morning, aren’t you, Mr. Keiler?
A. Not if I’m dead tomorrow.
MR. HARRIS: Your Honor, would you admonish
Counsel—or the witness Keiler to stop parrying with
these flip and unresponsive answers.
THE WITNESS: Ask me a silly question, you get a
silly answer. [Tr. 757–758.]
At one point Keiler admitted that he ‘‘sometimes’’ holds
the National Labor Relations Board processes in contempt.7
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he improperly attempted to read papers on Keiler’s counsel’s
table. In fact, all counsel, who needed the aid of crutches to walk
due to recent hip surgery, was trying to do was to rise, awkwardly
in the narrow space between counsel tables. I have made a conscious
effort not to allow this type of conduct to divert me from the focus
of the case. While it is important not to make Keiler the main issue
of the case, nonetheless, since he was Respondent’s sole bargainer,
his credibility is a principal concern. His behavior does bear on his
credibility and therefore an assessment of his actions and statements
cannot be avoided. Suffice it to say that in Maietta the Board has
already noted that he is prone to make ‘‘disingenuous cries of
‘wolf.’’’
Another example of disruption occurred in this exchange:
Q. (By Mr. Harris): Now, I believe you testified, and
tell me if my belief is correct, if you would, Mr.
Keiler—
A. Well, could we stop it there?
Q.—if you—no.
A. Well—
Q. No.
A.—I don’t know whether your belief is correct or
not. I’ll answer it right now. So ask me another ques-
tion. You could ask what I testified to. I’ll tell you, but
if—when you get into your beliefs, you’re always going
to get the same answer. I can’t answer what your be-
liefs are.
[Judge gives direction to witness.]
JUDGE KENNEDY: All right. You listen to the ques-
tion. If you can answer it, answer it.
THE WITNESS: Yes sir.
JUDGE KENNEDY: If you can’t answer it, then say so.
THE WITNESS: Okay.
JUDGE KENNEDY: Let’s not interrupt Counsel. Listen
to the question. Just because he premises it with ‘‘Is
my belief correct that’’ and then he is going to tell you
what his belief is, you can answer that.
THE WITNESS: I’d prefer not to. [Tr. 791–792.]
Matters became even worse when Keiler was cross-exam-
ined by the Charging Parties’ counsel. The Charging Parties’
counsel, Goldman, took a more aggressive approach (which
was probably not necessary). At one point a relatively good-
natured colloquy between Goldman and Alan Keiler drew
from Joel the following attack on Goldman while Joel was
on the witness stand: ‘‘He [Alan] thinks you’re stupider than
I do.’’
Later, Keiler was asked whether the proposals which were
given to each of the Unions were identical except for the
classification wage rate and the Union’s name.
(By Mr. Goldman): So it would be fair to say, then,
for every bargaining unit, you offered identical con-
tracts except for the classification wage rate for that
bargaining unit and the Union’s name that covered that
bargaining unit, is that correct?
A. I don’t know if it would be fair to say, ’cause
‘‘fair’’ is a difficult concept for me.
Q. Was it accurate—
A. ‘‘Correct’’ is—yes.
Q. Is it accurate?
A. It’s accurate, and it’s correct, yes.
MR. GOLDMAN: I’ll get there. It’s really hard for me
to do it.
THE WITNESS: Yes, it is. [Tr. 804–805.]
Then Keiler testified with respect to the Teamsters’ de-
mand for information from Respondent:
Q. (By Mr. Goldman): Do you recall the Union re-
questing information in January, 1991, from—from the
Frontier Hotel?
A. Which Union?
Q. Teamsters Local—well any union. Do you recall
any union asking you for information in January of
1991?
A. Yes.
Q. Which Union?
A. Service Employees, Local 32-B and Local 32-J.
Q. What did they ask you?
A. A list of all the employees for the last three years,
health insurance payments, sick leave, how much was
left. It was about a six-page request.
Q. And what state was that?
A. New Jersey. [Tr. 814–815.]
Goldman, unperturbed, then permitted Keiler to describe
his behavior with respect to a client in Newark, New Jersey,
even though he had been specifically directed to answer re-
garding the Frontier Hotel in Las Vegas, Nevada. After per-
mitting Keiler to brag about the fact that he had managed
under compulsion of a 10(j) injunction, to bargain for 23 ses-
sions in New Jersey without a charge being filed, Goldman
managed to bring Keiler back to Respondent and to the re-
quest for information filed with it by the Teamsters.
Later, Goldman asked a question regarding whether Re-
spondent’s decision to withdraw its private health plan pro-
posals and remain with the Teamsters Health Plan was af-
fected by increased costs to be levied upon the employees.
Another disruptive exchange occurred:
Q. (By Mr. Goldman): Mr. Keiler, during these days,
you never heard anything from anybody about the prob-
lems of Teamsters 995 plan was having [sic] in the in-
crease in costs that were going to be associated with
that plan to the employees?
A. In which days?
Q. You’re awfully cute aren’t you. Cute as a fox.
A. I’m also not fat.
Q. You didn’t understand my question, did you?
A. You said ‘‘in these days.’’ I don’t know what
days you’re talking about. A couple of years ago I
heard there was an insurrection at the Union Hall and
some people wanted to kill Dick Thomas. I heard that.
That was a long time ago.
[Intervention by judge.]
THE WITNESS: I have—the incident that I heard
about with the insurrection at the union hall was at least
year before that. I don’t —I haven’t heard anything, no.
The answer is no. [Tr. 825–825.]
Earlier, on direct examination, Keiler described how he
had reintroduced himself to Thomas. According to Keiler, he
had been a trial attorney for the National Labor Relations
871FRONTIER HOTEL & CASINO
8 It reads:
1.01 Recognition. The Employer recognizes the Union as the
exclusive collective bargaining representative for all the employ-
ees employed by the Employer in the bargaining unit defined in
Section 1.03.
1.02 Definition of Employee. The term ‘‘employee’’ or ‘‘em-
ployees,’’ as used in this Agreement, means all persons directly
employed by the Employer to perform work covered by the clas-
sifications set forth in Article 16, but excluding all other em-
ployees.
1.03 Definition of Bargaining Unit. The term ‘‘bargaining
unit’’ means the aggregate of all employees (as such term is
above defined) employed by the Employer.
Board in Los Angeles in 1965. He had apparently tried a
case against Thomas’ Teamsters Local. He says, when he re-
introduced himself at the meeting on August 6, Thomas and
his assistant, Billy Carter, represented the Teamsters. Keiler
was asked what was discussed at the meeting:
Well, the meeting opened by my reminding Mr. Thom-
as that when I was with the Board in Los Angeles in
1965 and we took Las Vegas over from San Francisco,
I was the first agent sent out; I had the first trial for
Los Angeles; his was my first case; and I beat his ass,
and that was the expression I used. He looked at me
like I was off the wall. He didn’t say anything. There
were some other pleasantries like that and then we got
into discussing my proposal. [Tr. 717.]
He repeated his testimony again on cross-examination:
(By Mr. Goldman): And that’s the first words out of
your mouth when you met Mr. Thomas, from your own
memory from 1965 that ‘‘I beat your ass,’’ huh?
A. That’s pretty close, yes. [Tr. 827.]
Keiler then gave the following testimony with respect to
a proposal dealing with eligibility for vacation and holiday
pay.
(By Mr. Goldman): Well, let me see if I understand
your 2000 hours. If somebody comes to their anniver-
sary date and doesn’t have 2000 hours, they don’t get
their holidays and vacations prorated?
A. Are you talking about the original proposal or the
final that I offered with Mr. Thomas on the Engineers?
Q. Let’s talk about the original.
A. Okay. The original was if they didn’t [work] 2000
within 12 calendar months—in other words their anni-
versary year, they lost it. I was willing to give that up.
Q. So just let me see if I understand something. So
whereas the State [of Nevada] might require pro rata,
you’re not willing to give pro rata on [in?] this case,
isn’t that correct, they lose it?
A. It’s not correct. That’s was my original proposal.
I was willing to give it up, and I gave it up.
Q. Excuse me. Let me ask you about—
A. No. If I’ve got the choice if you have to ask me
if you can ask, the answer is no.
[Intervention by judge.] [Tr. 834.]
During the course of bargaining, Keiler had objected to
certain language found in the recognition and definitions
clause (art. 1) of the IUOE proposal. In fact that clause was
taken verbatim from the expired 1983–1987 contract. (See
G.C. Exhs. 4 and 7.) Keiler’s objection asserted that the unit
definition could not be agreed to because it covered every-
one, including guards and supervisors. In fact the literal lan-
guage of the clause does no such thing. The entire clause is
set forth in the footnote below.8 Mr. Keiler’s testimony was:
(By Mr. Goldman): I believe before the break I
asked you a question in regard to Article 1. I would
like to direct your attention to Article 1 on page 4 of
Respondent’s Exhibit No. 11, and with respect to that
particular article, which part of that article did you not
agree upon?
A. 1.01, 1.02 and 1.03.
Q. Now, can you look at 1.02 for a second and read
it to yourself? [Article refers to art. 16.]
Q. Can you look back to Article 16, which is on
page—starting page 35? Can you look?
A. I can.
Q. Are you?
A. I’m not, but I can.
Q. Will you?
A. You have a question? Ask me.
JUDGE KENNEDY: He’s asking you to look at that
other page, sir, so that you can apparently make a com-
parison.
Q. (By Mr. Goldman): Could you show me where in
Article 16 the term ‘‘guards’’ [is] used?
A. It’s not.
Q. And where, then, do you come—how did you ar-
rive at the writing on the right-hand corner here which
says, ‘‘No, includes everyone, guards and supervisors?’’
A. By airplane. [Tr. 842–843.]
I think it is clear from the foregoing testimony and behav-
ior that, at the very least, Keiler is a difficult individual. His
disrespect for the process is obvious. It appears to me that
he has rejected the concept that his conduct is subject to re-
view under the Act. But more than that, he has eloquently
described his approach to collective bargaining far better
than the union officials could. Their description of his behav-
ior during the bargaining process does not even begin to con-
vey Keiler’s eccentric behavior. They nonetheless observed it
and were unable to deal with it effectively. In fact, I do not
think any person experienced in the collective-bargaining
process would be able to conduct a rational bargaining ses-
sion with an individual whose approach is as surreal as
Keiler’s. I do not use that description lightly. I find
‘‘surreal’’ is an accurate depiction of the way Keiler views
and distorts things. He not only regards his conduct as above
review, but that it is entirely beyond reproach. Unfortunately,
his testimony and attitude simply demonstrate that he has no
credibility whatsoever. Even when he is testifying to matters
not in serious dispute, one must mistrust him. I am certain
that the union officials who dealt with him rapidly recog-
nized that he was not only a difficult individual, but one who
is so eccentric that they could not determine how to approach
him in a way that would get the bargaining issues resolved.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 But perhaps not. The two groups of employees do not have an
obvious community of interest. One uses semiclerical skills, the
other physical labor.
D. The Union Officials’ Views
It will be recalled that the Hotel had been operating under
an implemented proposal put into effect on April 25, 1989,
for those employees represented by the Teamsters. The
IUOE-represented employees were still operating under the
terms and conditions as set forth in the agreement which had
expired in 1987.
Respondent hired Keiler sometime in May 1990. Accord-
ing to IUOE Business Manager Fox and Teamsters Sec-
retary-Treasurer Thomas, they began receiving telephone
calls from Keiler and Federal Mediator Jack Bates at about
that time. Keiler was unable to speak directly to Thomas and
so left some messages; he did reach Fox on a car telephone.
Both told Bates that they were unaware of who Keiler was
or what authority he had to speak for the Hotel. Not until
July 24 did General Manager Thomas Elardi write the Team-
sters a letter advising Thomas that Keiler was in fact its bar-
gaining representative.
In any event, well before that letter was sent, communica-
tions of a sort, did begin. On June 27, Keiler sent both
unions copies of Respondent’s proposed collective-bargaining
contract. In the cover letter he states that the federal mediator
had been ‘‘unsuccessful’’ in arranging a negotiation session
and claims that he had called Thomas twice on June 14, once
on June 15, and once on June 18 to arrange for a negotiating
session. He then asserts that Thomas had ‘‘refused’’ to take
any of the calls and failed to return any of them. He then
said if Thomas did ‘‘not contact me to arrange a negotiating
session prior to August 1, 1990 the enclosed proposal will
be implemented on August 1, 1990.’’
Similarly, he wrote to IUOE’s Fox on June 27 again as-
serting that the mediator had been unsuccessful in arranging
a negotiation session and that on June 20 he had called for
the same purpose; that on June 25, Fox had returned the tele-
phone call from his car saying that he would need to consult
his calendar but ‘‘to date you have not called me again.’’ As
with the Teamsters, he enclosed a copy of the Hotel’s pro-
posal saying, ‘‘If you do not contact me to arrange a nego-
tiating session prior to August 1, 1990, the enclosed proposal
will be implemented on August 1, 1990.’’
Thomas responded with a letter on July 3, saying he need-
ed to correct some of Keiler’s misconceptions. He said that
when Bates contacted him, he had agreed to meet but would
not do so until he had received something from Respondent
advising that Keiler was indeed its representative; that he
needed something in writing before any meetings could be
scheduled. Moreover, while he agreed that Keiler had called
two or three times, it was ‘‘untrue that I refused to take your
calls,’’ being out of the office each time the call was made.
He said on one occasion he returned a call to Keiler’s San
Francisco hotel only to learn he had checked out.
It is apparent to me, beginning with these first contacts,
Keiler was already attempting to lay the groundwork for an
accusation that it was the Unions which were failing to meet
and bargain. First, by setting a 1-month deadline, it is clear
that Keiler was attempting to crowd both unions. Second,
they did not know him at all. Third, they did not know what
authority, if any, the Hotel had actually given him. Fourth,
he did not know the union officials’ schedules and there ap-
pears to have been no reason to set deadlines at that early
point, well before any talking had begun. Finally, the pro-
posal which he sent them was extensive and was an entirely
new approach to the parties’ collective-bargaining relation-
ship. It described nothing akin to the system under which the
two unions and the Hotel were then operating. Keiler un-
doubtedly knew that it would take a good deal of time for
the Unions to digest his proposals and did not wish to give
them a great deal of time to do it.
Moreover, Keiler’s approach through the Federal mediator
is curious. While I am certain that the federal mediator was
attempting to be helpful, usually parties do not seek the as-
sistance of the mediator until they have come to some dif-
ficult hurdle. I recognize that the parties had not had a con-
tract for about 3 years, but they had reached an operating ac-
commodation. If the Hotel believed that a resumption of ne-
gotiations was due, and further believed that a change in its
negotiator would be a positive step toward that end, then the
appropriate step would have been for the Hotel to advise the
Unions that a new negotiator had been hired, tell them his
name, and put him in touch. Instead, the Hotel said nothing
to the Unions. Keiler knew he was a stranger, and instead
contacted the Federal mediator. Those circumstances are
quite odd and it seems to be designed only for the purpose
of setting the foundation for an argument that it was the
Hotel which was operating in good faith by first contacting
the mediator. When seen in that light, Keiler’s use of the me-
diator was only a disguise.
Furthermore, the contract proposal which Keiler sent to the
Teamsters did not acknowledge the existence of two separate
bargaining units. Indeed, its merger of units was a departure
from Respondent’s recognition of the two units in its imple-
mented terms of April 25, 1989. Keiler offered no expla-
nation for the consolidation.
That in itself is a substantial departure from the good-faith
requirement of Section 8(d) of the Act. It is well established
that bargaining unit description clauses are nonmandatory
subjects of bargaining and may be altered only by mutual
agreement. It may be true that the two bargaining units could
have been appropriately merged and perhaps there was some
legitimate reason for doing so.9 Keiler, however, did not sug-
gest any and finally, after negotiations did not produce a
contract, imposed new terms and conditions on December 1,
1990, which merged the two units. Since the Teamsters never
agreed to do so and since bargaining unit description changes
may not be accomplished unilaterally, that conduct is vir-
tually a per se violation of Section 8(a)(5) and (1) of the Act.
NLRB v. Southland Cork Co., 342 F.2d 702, 706 (5th Cir.
1965); Hess Oil & Chemical Corp. v. NLRB, 415 F.2d 440,
445 (5th Cir. 1969), cert. denied 397 U.S. 916 (1970); Na-
tional Fresh Fruit & Vegetable Co. v. NLRB, 565 F.2d 1331,
1334 (5th Cir. 1978); Newport News Shipbuilding v. NLRB,
602 F.2d 73 (4th Cir. 1979); and Bozzuto’s, Inc., 277 NLRB
977 (1985).
In addition, in its April 25, 1989 implementation, Re-
spondent had continued to recognize the Teamsters exclusive
hiring hall although it had modified it to allow for transfers
and two outside hires per calendar year.
Almost immediately thereafter, according to Hotel Man-
ager Sydney Woo, he began to ignore the hiring hall require-
ments. It is true that under the implemented proposal of
873FRONTIER HOTEL & CASINO
10 Cf. Operating Engineers Local 452 (Ralph A. Marino), 151
NLRB 497, 500 (1965).
11 It should be observed here that assuming Woo’s complaints
about the quality of employees being sent by the Union was some-
what accurate, it is clear that he never discussed it with the Team-
sters. Yet, the Hotel, in an effort to get better employees, rejected
the hiring hall source altogether without bothering to advise the
Teamsters of its concerns or giving that union an opportunity to con-
sider and correct this perceived shortcoming.
April 25, 1989, the Hotel became the sole judge of an appli-
cant’s suitability. In addition, it permitted the Hotel to accept
or reject any applicant for employment without recourse to
the grievance-arbitration provisions which still survived.
Woo, apparently relying on those provisions, would not ac-
cept any referrals from the Teamsters beginning some time
in 1989. Indeed, he began recruiting students employed at the
University of Nevada’s Las Vegas hotel management school
to work at the Hotel in the front end. At no time, however,
did he ever notify the Teamsters that he was rejecting the
concept of the hiring hall altogether. At one point, he says,
he sent some employees recruited from another source to the
Teamsters for a referral but says the Teamsters would not
give them one. Given the exclusive nature of the hiring hall,
that appears to have been an appropriate response, since the
Union had not been given an opportunity to refer employees
from its waiting list.10
Nonetheless, Respondent’s practice had the practical effect
of changing the bargaining unit membership from employees
who had been referred by the Teamsters to employees who
had no union connection whatsoever. Furthermore, that union
had no real way of knowing what was happening. Neither
Woo nor Personnel Director John Patton who had never ad-
vised the Teamsters that the hiring hall arrangement had been
rejected. As noted, the Hotel’s recent implementation of
April 25, 1989, was to continue to use it.11 Thus, Respond-
ent’s reversing its field on the point actively misled the
Union to think nothing was amiss.
Actual negotiation sessions began with the IUOE on July
27. Keiler had three negotiation sessions with that Union, the
second being on September 28, and the last on November 12.
He had four meetings with the Teamsters, August 6, Septem-
ber 7 and 27, and October 12.
By the time of the July 27 meeting, IUOE Business Man-
ager Fox had had the opportunity to digest Respondent’s pro-
posal of June 27. For four of the five job classifications,
Keiler’s proposal was to reduce their wages by 52 cents per
hour. For the fifth, it was a reduction of 32 cents per hour.
This involved about a 5-percent wage cut for most employ-
ees. In addition, Keiler’s proposal initially proposed 14 paid
holidays. At the next meeting, he reduced it to eight. Further-
more, he included a strange eligibility formula for both holi-
day and vacations. It required an employee to work 2000
hours in an anniversary year to be eligible for both. If the
employee failed to work 2000 hours in an anniversary year,
however, that employee received neither holiday nor vacation
pay. Furthermore, Keiler’s proposal eliminated the pension
plan and dropped the IUOE health plan in favor of two pri-
vate plans, optional to the employee, one known as ‘‘Gem-
ini,’’ and the other the ‘‘Health Care Plan of Nevada.’’
Predictably, Fox was appalled by the proposal. He testi-
fied:
I expressed the view to Mr. Keiler that these propos-
als were so outlandish and ridiculous, it does not make
any sense to us to make such a—such a proposal, that
it was literally trashing our labor agreement. There
would be no self-respecting labor union that would sign
such a document.
He insisted he was serious and this is what he had
to have. We went through it to ask for explanations.
Asked him, you know—I told him that the only pos-
sible purpose of this would be to generate a strike.
We had—the Union had a proposal which we pre-
sented to Mr. Keiler. That proposal consisted of the
prior collective bargaining agreement with the changes
added that we had negotiated with other employers as
a result of a 1987 negotiation.
We then asked him how come or if he wanted to
generate a strike. Mr. Keiler indicated—he kept refer-
ring to ‘‘Tommy’’ and up until then I didn’t know who
Tommy was, but Tommy he explained to me was
Tommy Elardi, that that’s the way Tommy wanted it,
and he’d represent him, and that’s exactly the way he
wanted it. He wanted—he wanted us to in other words,
[to] turn it down and strike and wanted to replace the
engineers. He indicated that he would be pleased to get
rid of all the collective bargaining agreements, that that
was his purpose in getting [making] such a —this kind
of proposal.
. . . .
Then I expressed my disbelief any employer could
make such a raunchy proposal, and he indicated that
Tommy would like to generate a strike and replace our
people.
Keiler declined to go through the Union’s proposal, saying
it was too big to be digested at that time. In large part it was
consistent with the expired IUOE agreement, with which he
presumably was familiar. His explanation cannot be credited;
he was insistent on discussing only his proposal to the exclu-
sion of nearly everything else.
The next meeting was on September 28. Again Keiler ad-
vised that Respondent would not consider anything other
than its original proposal. The reduction from 14 to 8 paid
holidays was made at that meeting. The last meeting oc-
curred on November 12. Once again Fox attempted to find
out if Respondent would make any changes. He says Keiler
repeated that there were not going to be any changes, saying
‘‘That’s what Tommy wants.’’ Fox testified that they talked
about the term of the agreement, apparently for the a second
time, and Keiler told him it did not matter how long the con-
tract was going to be because it could be 1 year, 2 years,
3 years, that the Union could pick its term because there
were not going to be any wage increases so contract length
would not make any difference.
During this meeting, according to Fox, Keiler said the par-
ties were at an impasse and he was going to implement the
June 27 offer. Fox responded the offer was so ridiculous that
it was clear Respondent was not bargaining in good faith. He
said the Union did not see it as an impasse but as an intent
not to negotiate a contract and to force a strike. Fox reports
that Keiler continued to make the same remarks about
‘‘Tommy,’’ quoting him to the effect that if the Union did
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 During the last meeting, Keiler did agree to some very minor
changes in his proposal including modifying the holiday and vaca-
tion eligibility, maintaining the IUOE’s health insurance plan, and
accepting its shop steward proposal.
13 It should be noted here that under the Efroymsom implementa-
tion of April 25, 1989, Respondent had been paying into the Team-
sters pension plan.
not want this contract proposal, it was a simple matter, it
should go on strike. Furthermore, he asserted, Tommy had
said they were not very good engineers anyway and he
would just as soon replace them. Fox says this was a repeti-
tion of what had gone on at the previous meetings.
Fox also says Respondent did make one change during the
course of that meeting, to withdraw its health plan proposals
advising the Union that it would remain in the IUOE’s health
and welfare plan.
When he was asked whether Keiler referred to the Compa-
ny’s future with the Union, Fox recalled that Keiler repeated
Tommy’s preference that the Union go on the strike, that
there be no collective-bargaining agreement and that he
would just as soon have it that way for all the unions.12
On November 19, Keiler wrote Fox a letter in which he
reaffirmed a statement made at the last meeting to the effect
that Respondent would implement its final offer on Decem-
ber 1. As promised, on December 1 that proposal was imple-
mented resulting in wage reductions, loss of the pension
plan, and numerous other changes.
Keiler’s treatment of the Teamsters was similar. I have al-
ready observed that his June 27 proposal did not acknowl-
edge the fact that there were two bargaining units and that
at the outset his proposal was flawed. Nonetheless, on Au-
gust 6 Keiler met with Secretary-Treasurer Richard Thomas.
He, like Fox before him, was dismayed by Respondent’s
June proposal. He says he had never seen anything like it in
35 years as a union representative. During a discussion about
the 2000-hour eligibility rule, Thomas says he remembers
telling Keiler that it was totally ridiculous and he could not
expect anybody to accept a proposal like that. He says Keiler
told him, ‘‘Tom don’t care. He’d like to have a strike any-
way.’’ They went on to discuss the fact that Keiler’s pro-
posal eliminated the hiring hall, eliminated the daily guaran-
tees, the weekly guarantees, the business agents’ visiting
privileges, the steward privileges, and the pension plan.
Moreover, for both the front and the back end units, Keiler
eliminated all the individuals whom he regarded as super-
visors. In general, the wages remained the same except for
the laborer. Under the Efroymson implementation of April
25, 1989, the laborer had been receiving $11.92 per hour.
Under Keiler’s proposal that rate was reduced to $6.50.
Thomas says he explained to Keiler that the Teamsters
could not accept his discharge language because it was so
foreign to what they were used to; that it was very restrictive
and did not even call for warning notices. He remembers
Keiler saying, ‘‘It means we can virtually fire anybody for
anything.’’ Thomas responded, ‘‘You know, we’re not going
to buy this.’’ He says Keiler replied, ‘‘Tom don’t care. Tom
would like a strike. Tom would like to get rid of the
unions.’’ When Thomas asked Keiler who ‘‘Tom’’ was,
Keiler responded that Tom was the general manager and
‘‘the guy calling the shots.’’
The next meeting was September 7. Because Thomas was
unable to attend, two Teamsters business agents, Bill Carter
and Steve Burris met with Keiler. Because of a mix-up that
morning, those two did not have a counterproposal with
them, so the session was adjourned until the afternoon
whereupon they presented Keiler with one. Although Keiler
roundly protested their supposed unpreparedness, it is hardly
enough to constitute misconduct on the Teamsters’ part.
What is clear is that the Teamsters’ counterproposal did not
accept the concept of a merged bargaining unit.
The next meeting was on September 27 and was between
Thomas, Carter, and Keiler. Thomas testified Keiler told him
he had reviewed the Teamsters proposal and replied that he
could not agree to any of it. When Thomas pressed him, say-
ing surely there was something Keiler could agree upon,
Keiler replied, ‘‘No. The only thing we want to talk about
is our proposal.’’
Thomas says they went on to discuss the 2000-hour holi-
day and vacation eligibility issues. They were able to agree
on two or three of Respondent’s minor points which were
close to what the Union was proposing. The agreements in-
volved changing the 90-day probationary period to 30 shifts,
jury duty, uniforms and a rolling 2000 hours’ eligibility,
rather than an anniversary date cutoff.
When the parties returned to discussing the discharge lan-
guage, Keiler would not move, again saying, ‘‘Tom don’t
care.’’ And, with respect to the hiring hall, Keiler told
Thomas, ‘‘Tom don’t want a hiring hall. He thinks he can
get better off the street than you can provide.’’ When Thom-
as told him that ‘‘would not fly’’ and his membership would
not accept it, Keiler replied, ‘‘Tom don’t care. Tom would
like to have a strike. Tom would like to get rid of the
unions.’’
Keiler also refused to discuss the pension issue saying they
were not going to have one. When Thomas told him that a
settlement would not be possible without a pension, Keiler’s
broken record repeated, ‘‘Tom don’t care. Tom wouldn’t
mind having a strike.’’13
Thomas says at some point during that meeting Keiler
asked him to take the proposal back to his membership.
When Thomas said he would eventually do so, he added he
would not recommend it because it was not going to get a
settlement. Again, the response: ‘‘Tom don’t care. Tom
would like to have strike.’’
Thomas testified that on either October 5 or 6 the proposal
was given to the membership and by secret ballot the mem-
bers unanimously rejected it.
Finally, on October 12, the last meeting occurred. Thomas
advised Keiler of the membership’s rejection and Keiler told
him, ‘‘You got this proposal. This is it. This is our last and
final. And we don’t care if we have a strike or not.’’ Thomas
says he attempted to discuss some of the proposals but,
‘‘Keiler’s position was that that was the last and final; it
wasn’t going to change. They weren’t going to agree to any-
thing out of our proposal, and the people if they wanted a
contract, that was it. And if they didn’t, they could strike or
do whatever they felt like doing.’’
Thomas also recalls Keiler saying that if the Teamsters did
not accept by November 1, Respondent would implement its
proposal. Thomas says he replied he did not believe the par-
ties were yet at an impasse and any implementation would
be illegal.
875FRONTIER HOTEL & CASINO
14 How Patton came into possession of Thomas’ papers is unex-
plained. Patton had not participated in a single negotiation meeting.
Indeed, Patton’s selection as personnel director is most unusual. He
had no background in personnel. He had previously been in charge
of security at another hotel owned by the Elardis, had served as a
private polygrapher and was a retired police officer. His entire career
has been in security, a curious background unless one takes the view
that he was hired to prepare the Hotel for a lengthy strike.
Eventually, on November 8, 1990, Keiler sent Thomas a
letter. In that letter he said:
We met on October 12, 1990, and you promised to
give me an answer by the end of October 1990 as to
whether the union would agree to the Frontier’s final
proposal. You have not contacted me. Therefore, as of
December 1, 1990, the Frontier Hotel is implementing
its final proposal.
It should be noted here that Keiler’s assertion in the letter
that Thomas had made such a promise is specifically re-
jected. There was no point in Thomas returning to his mem-
bership with the exact same offer it had unanimously rejected
days before.
On November 19, 1990, however, before Thomas re-
sponded, Keiler advised him that Respondent would not,
after all, implement its own health insurance proposal, but
would continue to contribute to the health insurance set forth
in the expired contract, i.e., the Teamsters plan.
On November 28 Thomas sent Keiler a mailgram referring
to the November 8 letter, saying he did not consider negotia-
tions to be at an impasse. He requested another meeting.
Keiler did not respond and on December 1, 1990, Respond-
ent implemented its proposal, as modified. Curiously, when
Thomas called John Patton, the personnel director, to ask
him if the offer had been implemented, Patton could only
reply, ‘‘Yes. I think so.’’ Thomas asked if he could be more
specific, but Patton said, ‘‘I’m not sure.’’ A few days later
Thomas went to the Hotel and Patton gave him a copy of
a document which had been in Thomas’ own file, Keiler’s
original proposal containing Thomas’ handwritten notes.14
Patton told him, ‘‘This is what’s been implemented.’’
E. Coleman
James E. Coleman was an engineer who had been hired
in 1987. Sometime in 1989 he became the IUOE steward.
Principally a maintenance engineer, he served in several ca-
pacities. His duties were to perform maintenance in the hotel
rooms, such as light plumbing, air-conditioning repair, and a
small amount of electrical work. Occasionally he served as
a senior watch-relief. At some point in 1990 the chief engi-
neer left and was not replaced. The construction manager,
Cosmo Giancola, assumed some of his duties, although he
apparently delegated most daily duties to the assistant chief
engineer, John Durfee.
As Giancola testified, he is not a person who concerns
himself with ‘‘paperwork,’’ preferring instead ‘‘only to see
that the job gets done.’’ To that end, with Patton’s concur-
rence, he created a new job, the multipurpose employee. The
multipurpose employee was to perform certain tasks nor-
mally done by employees in the IUOE unit. For example, the
multipurpose employee was assigned to perform room main-
tenance such as those duties which Coleman commonly did.
Occasionally, the multipurpose employee was asked to per-
form certain laborer duties, a Teamsters job. Nonetheless, as
Patton testified, the multipurpose employee is part of the en-
gineering department and seems to have reported to Durfee
or one of his subordinates.
Patton initially testified that the multipurpose employee
was created about March 1991. Later he testified, after hear-
ing Coleman’s testimony, that the multipurpose employee
classification had been created much earlier, perhaps as early
as May 1990. He does say that the idea was initially
Giancola’s and that Giancola had come to him with it. Patton
says the job was actually created after he had consulted with
Keiler.
According to Patton, Giancola currently hires multipurpose
employees at a rate somewhere between $10 and $12 per
hour. That rate is between $3.25 and $5.25 less than the least
highest paid in the IUOE unit, even under Keiler’s June 27
proposal. It is between $3.50 and $5.50 higher than Keiler’s
proposed laborer’s rate under the Teamsters unit; but perhaps
commensurate with the $11.92 per hour laborer’s rate under
the Efroymson implementation.
Coleman did not accept Keiler’s suggestion on cross-ex-
amination that the first multipurpose employee, Brent Autry,
was hired on July 2, 1990, but did agree that he was hired
sometime in 1990. At that time, however, Coleman did not
know for what job Autry had been hired, believing he had
been hired as a laborer. At some point Coleman became
aware that Autry was performing multiple tasks, including
carpentry, cleaning, and other things. Neither Patton nor
Giancola ever told Coleman or any union official of the cre-
ation of the multipurpose employee classification before it
was actually established. Nor did anyone clearly advise Cole-
man afterwards; he could only chance upon what Autry or
the others were doing.
Although it would be inaccurate to say Coleman was an
extremely active steward, he was nonetheless involved in
several grievances or complaints. His procedure, however,
was not to complain directly to Respondent’s officials, but
to advise Business Agent Brian Reive and allow the IUOE
to proceed as it thought it should. Some of the grievances
which he initiated involved removing an apprentice engineer
from duty as a lifeguard at the swimming pool, attempting
to obtain a no smoking section in the Helps’ Hall (an em-
ployee cafeteria), and complaining that a laborer (apparently
the multipurpose employee) was doing engineers’ work. Both
Giancola and Patton claim that they were not aware that
Coleman was the IUOE steward. Their claimed lack of
knowledge cannot be credited.
Moreover, Coleman was the most senior engineering de-
partment employee in terms of length of employment. Fur-
thermore, at no time had Respondent’s management com-
plained to him that his work was inadequate or that he was
somehow failing to perform his job.
Nonetheless, on February 8, 1991, he was laid off. His ter-
mination slip shows that layoff was ‘‘reduction in staff due
to lack of business.’’ It further remarked that it was a ‘‘tem-
porary layoff.’’ The slip was approved by Giancola. Coleman
appears to have been laid off with several other employees
from other departments. Yet, after Coleman was laid off at
least three additional multipurpose employees were hired.
Giancola gave conflicting reasons for the layoff. He first
asserted that Coleman had been laid off due to a slowdown
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in business and that he had hoped to recall Coleman within
30 days. He then went on to say that he had selected Cole-
man because Coleman was the worst engineer on his staff.
When he was asked to describe Coleman’s shortcomings, he
was unable to do so saying he had to rely on oral reports
made to him by his subordinates and other employees. At no
time, however, had any supervisor ever told Coleman that he
had areas of work which needed improving. Indeed, the con-
trary appears to be true for he was often used as a relief-
watch engineer and paid the higher rate which that job en-
tailed.
Furthermore, it is clear that the multipurpose employees
regularly performed work that the maintenance engineers did;
as noted at least three were hired after Coleman was laid off.
Under article 11 of the expired IUOE contract, the parties
had agreed that an employee ‘‘having the longest continuous
time of service shall have preference for retaining and re-
gaining employment in case of curtailment or expansion of
operations; provided such employee has the ability to per-
form the work involved satisfactorily.’’
Giancola admitted that he had not taken seniority into ac-
count and Patton admitted he did not know what Coleman’s
seniority was, although he says it is his policy to respect the
seniority of long-time employees.
F. The Information Demand
Lastly, on January 15, 1991, Teamsters Secretary-Treas-
urer Thomas wrote Patton a letter. He asked for certain infor-
mation in order ‘‘to intelligently police the current working
conditions covering the employees we represent in both the
‘front end’ and ‘back end’ . . . .’’ He sought the names, ad-
dresses and telephone numbers of all front end employees
hired since January 22, 1990; the same information for back
end employees since May 11, 1990, together with classifica-
tions, time in their job, copies of newspaper advertisements,
and offerings submitted to universities, colleges, and employ-
ment agencies covering both front and back end jobs begin-
ning January 22, 1990.
Patton did not respond, but turned the matter over to
Keiler, who, by letter dated January 22, 1991, declined to
provide it. He claimed that the information was being re-
quested ‘‘solely for the purposes of an NLRB complaint
hearing,’’ i.e., the instant proceeding.
IV. ANALYSIS AND CONCLUSIONS
I have previously touched upon some legal conclusions.
Specifically, I have found that Respondent’s refusal to honor
the two Teamsters bargaining units was a per se violation of
Section 8(a)(5) and (1) of the Act. In addition, I have ob-
served that Respondent’s negotiator, Keiler, did not approach
bargaining with an eye towards reaching a collective-bargain-
ing agreement, at least as a factual matter. It will not add
much to this decision to once again observe that his entire
approach to this matter was to lay the groundwork to argue
that the Hotel had reached impasses with both Unions.
Clearly Keiler came to the bargaining table with a pro-
posal which was not designed to reach an agreement. It was,
as the General Counsel and both Charging Parties have per-
suasively argued, extremely regressive and confrontational.
Keiler’s personal attitude towards the whole matter was one
of challenge on the one hand while trying to create evidence
of his good faith on the other.
The union negotiators’ main problem was that Keiler per-
sonally, and also because of directions given him by Re-
spondent’s general manager, Tom Elardi, was not about to
permit an agreement to blossom no matter what. Thus, noth-
ing which the unions could propose could have resulted in
an agreement. Elardi, by his directions to Keiler, and Keiler,
due to his own version of reality, could not bargain in good
faith. That conclusion is demonstrated not only by Keiler’s
personal behavior, but also by the manner in which he ap-
proached bargaining and by the proposals themselves.
The whole matter was simply a charade. Keiler had been
given marching orders by Tom Elardi to go through the mo-
tions of collective bargaining in order to force the Unions ei-
ther to strike and risk losing their jobs or to tame them to
such an extent that their representation of employees would
be ineffectual. Such an attitude is contrary to the policies of
Section 8(d) and Section 8(a)(5) and (1) of the Act and I so
find. This was classic surface bargaining. Keiler approached
this table with the attitude that it was all take and no give.
It may well have been true that some of the collective-bar-
gaining clauses in the expired contracts warranted modifica-
tion; it may also have been true that economic conditions
were such that wage adjustments were needed. But Keiler at
no time ever approached these bargaining tables with the at-
titude that corrections needed to be made. Instead he went
for the jugular by demanding wholesale concessions includ-
ing abandonment of pension, wage cuts, and total authority
over the hiring/tenure process. The latter, of course, would
mean that that there would be no oversight available cover-
ing discharge of disciplinary matters. He knew that the
Unions could not live with those regressions.
Knowing that, his first act was to antagonize one union of-
ficial by reminding him that 20 years before he had
‘‘whipped his ass’’ and then presented a pugnacious and ob-
structive stance throughout bargaining. Keiler’s daring both
Unions to strike is almost unbelievable in today’s day and
age, but the attitude he displayed during the hearing simply
underscores the veracity of the union officials on the point.
With respect to the decision to cease using the Teamsters
hiring hall, I find that that policy was implemented surrep-
titiously and that even if it occurred outside the 10(b) period,
the Teamsters could not reasonably have discovered it until
shortly before they filed the charge. Accordingly, I find that
Respondent’s unilateral decision to cease using the hiring
hall violated Section 8(a)(5) and (1) of the Act. American
Gypsum Co., 285 NLRB 100, 101 (1987); Howard Electrical
& Mechanical, 293 NLRB 472, 474–475 (1989). Similarly
its ceasing to advise the Teamsters of the employees it was
hiring outside the referral system likewise constituted an un-
lawful unilateral change.
Indeed, the creation of the multipurpose employee job
classification was also done semi-secretly. Neither the IUOE
nor the Teamsters could find out about it for a period of
time. Even if Coleman was somewhat suspicious of the cir-
cumstances, he was unable clearly to distinguish between the
hiring of a laborer (who was represented by another union
and therefore outside his IUOE purview) and the hiring of
a new, wholly unknown job classification. Certainly Re-
spondent had no desire to tell either Union what it was
doing. Therefore, Section 10(b) offers Respondent no refuge.
877FRONTIER HOTEL & CASINO
15 Patton testified toward the end of the hearing that Respondent
had just recalled Coleman, apparently after hearing the General
Counsel’s case involving him. At that time the recall was so recent
Coleman had not yet had the opportunity to reply. In addition to ap-
pearing to be connected to the evidence, it may also have been con-
nected to the strike which was then underway. Therefore, the recall
may simply have been a tactical one to see whether Coleman would
join the strike. These issues, of course, must be left for compliance.
Burgess Construction, 227 NLRB 765 (1977), enfd. 596 F.2d
378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979).
Moreover, it appears to me that the individuals hired for
the multipurpose job were in reality maintenance engineers
entitled to the higher rate of pay under the expired contract.
Even if Giancola sometimes used them in capacities other
than those traditionally performed by the engineers, that does
not change the fact that they were part of the IUOE bargain-
ing unit. They were engineering department employees per-
forming engineering department work. In essence these per-
sons were hired as part of a secret effort to remove tradi-
tional engineering work from the IUOE bargaining unit. That
conduct also violated Section 8(a)(5) and (1) of the Act.
Howard Electrical & Mechanical, supra.
Given the timing of the Teamsters demand for information
regarding new hires, coming in January 1991, about 2 weeks
after the complaint in Case 28–CA–10606, which alleged hir-
ing hall violations, it is clear that the request for information
was indeed aimed to assist the Teamsters and the General
Counsel in the presentation of evidence relating to the com-
plaint. The Board has recently held that even if the material
sought would have been producible for collective-bargaining
or representational purposes, it is not producible as a sub-
stitute for discovery. Union-Tribune Publishing Co., 307
NLRB 25 (1992), relying on WXON-TV, 289 NLRB 615,
617–618 (1988). Accordingly, I decline to find that Respond-
ent’s failure to produce that material violated Section 8(a)(5)
and (1) of the Act.
With respect to the claim that Respondent’s withdrawal of
its Gemini and Health Care Plan of Nevada health insurance
proposals, I am unable to concur with the General Counsel
and the Teamsters that the withdrawal was a breach of Sec-
tion 8(a)(5) and (1) of the Act. Respondent has been paying
into the Teamsters plan for many years. The trust which op-
erates that plan has not been shown to have been concerned
about the lack of a current contract. Nonetheless, there is no
reason to conclude that Respondent’s decision to remain with
the Teamsters plan is somehow unlawful. It is true that the
Hotel’s plans were encompassed in its proposal which it an-
nounced it would implement on December 1. Nonetheless, its
decision to stay with the Teamsters plan, coming before im-
plementation, has not been shown to be in bad faith. Section
8(d) mandates in hiatus situations that conditions remain the
same until lawful impasse or a new contract. In this case that
is all Respondent did with this working condition— keep it
the same. I recognize that the Teamsters believe Keiler was
simply trying to take advantage of some sort of difficulty
which the Teamsters plan was experiencing and which would
result in additional monies coming from the employees’ own
pockets, but I do not think that has been clearly proven. Ac-
cordingly, I decline to find a violation where all Respondent
did was maintain the existing system of health insurance.
Coleman’s Layoff/Discharge
With respect to the so-called layoff of James E. Coleman,
I find that it was in fact a discharge and that the discharge
violated both Section 8(a)(3), (5), and (1) of the Act. The
only way which Respondent can justify choosing him out of
seniority is to assert that a good-faith impasse had been
reached in the collective-bargaining process with the IUOE.
In that event it would be privileged to implement its final
proposal, which in this case included a provision deleting the
seniority protections. However, because I have found above
that Respondent entered into this bargaining process without
the desire to enter into an agreement, and that it engaged in
bad-faith bargaining throughout, the right to implement the
last offer did not exist as no lawful impasse had occurred.
Taft Broadcasting Co., 163 NLRB 475 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968). Therefore, Coleman was at all
times protected by the seniority clause of the expired con-
tract. That condition of employment had been maintained as
a matter of law by Section 8(d) of the Act during the hiatus
between agreements. Respondent was not privileged to
change that until there had been a lawful impasse. Its depar-
ture from the seniority clause in selecting him for
layoff/discharge clearly violates Section 8(a)(5) and (1) of
the Act. Phillip Wall & Sons Distributing, 287 NLRB 1161
(1988).
Moreover, all the elements of an unlawful discharge under
Section 8(a)(3) are present. Coleman was a known union ac-
tivist, being a union steward who had been involved in a
number of grievances. Respondent’s animus against the
union is self-evident from the face of this decision. It desired
to get rid of the Union or emasculate it. What better way to
disable a union than to see to it that its steward is removed?
The factor of timing is also present. The discharge occurred
in the middle of an antiunion effort. Moreover, the reasons
advanced by Respondent to explain his discharge are incon-
sistent. He was treated as a ‘‘temporary layoff’’ but never re-
called until the course of the hearing.15 He was accused,
without any objective support for the accusation, of being a
poor employee. The credible evidence shows that he was at
all times more than adequate to perform the job. Finally, he
is the victim of Respondent’s effort to create the multipur-
pose employee, a job classification which paid a significantly
lower hourly wage. That creation, as noted above, was un-
lawful. Nonetheless, it was more economical to hire multi-
purpose employees and keep them away from the IUOE,
than it was to keep a union steward whose job could be re-
placed by the cheaper, illegally created classification. Clearly
Respondent violated Section 8(a)(3) and (1) when it dis-
charged Coleman. Respondent has failed altogether to rebut
the elements of the prima facie case.
IV. THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(a)(1), (3), and (5) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. The affirmative action will include re-
scission of all unilateral changes found herein, a return to the
status quo ante, immediate reinstatement of Coleman to his
former job, making him whole for any losses he may have
suffered, and making whole any employees who were paid
at an improper rate, plus interest for any amounts due. Back-
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Because the provisions of employee benefit fund agreements are
variable and complex, the question of whether Respondent must pay
additional sums to the pension fund in order to satisfy the ‘‘make
whole’’ remedy, shall be left to the compliance stage. Merryweather
Optical Co., 240 NLRB 1213 (1979).
17 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
pay for Coleman shall be computed on a quarterly basis from
date of his discharge to the date of a proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Other individuals entitled to backpay are those
whose pay rates (including holiday and vacation pay, if any)
were reduced as a result of Respondent’s unlawful imposi-
tion of its pay scales on December 1, 1990, and the multipur-
pose employees who were, in reality, maintenance engineers
in the IUOE bargaining unit. Their backpay shall be cal-
culated by adjusting their actual pay to reflect the rate they
should have been paid under the IUOE contract, unless a
higher rate has gone into effect, in which case the higher rate
shall remain in effect. Interest on those amounts shall be
computed as in New Horizons for the Retarded, supra. In ad-
dition, Respondent shall be required to make whole employ-
ees by making appropriate contributions to the pension plans
in effect at the time it ceased making those payments. Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).16 It shall continue to
make such payments until such time that a new collective
bargaining contract is achieved or until a lawful impasse on
that subject is reached.
The affirmative action shall also require Respondent, upon
request, to bargain in good faith with Professional, Clerical
and Miscellaneous Employees, Local 995, affiliated with
International Brotherhood of Teamsters, AFL–CIO and Inter-
national Union of Operating Engineers, Local 501, AFL–CIO
in the appropriate bargaining units described in their respec-
tive expired collective-bargaining contracts, and if agree-
ments are reached, to reduce them to writing and sign them.
Finally, because Respondent has demonstrated its rejection
of the good-faith bargaining obligation imposed upon it by
the Act and because it has engaged in artifice to avoid its
fundamental obligations under the Act, a broad cease-and-de-
sist order is appropriate. Hickmott Foods, 242 NLRB 1357
(1979).
CONCLUSIONS OF LAW
1. The Respondent, Unbelievable, Inc., d/b/a Frontier
Hotel & Casino, is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Professional, Clerical and Miscellaneous Employees,
Local 995, affiliated with International Brotherhood of Team-
sters, AFL–CIO and International Union of Operating Engi-
neers, Local 501, AFL–CIO are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent has failed to bargain in good faith within
the meaning of Section 8(d) and Section 8(a)(5) and (1) with
each of the aforementioned labor organizations by:
(a) Entering into negotiations without any intent to reach
a collective-bargaining contract with either Union; having a
closed mind regarding what subject matters should be in-
cluded in a collective-bargaining contract; and by presenting
the Unions with proposals which were intended to cause a
strike.
(b) Making unilateral changes in the wages, hours, and
other terms and conditions of employment of employees in
the bargaining units represented by those Unions including:
(i) Abandoning its obligatory use of the Teamsters hiring
hall and the rules associated with it, such as giving notice
to that Union of the hire of any individual secured from an-
other source.
(ii) Implementing so-called ‘‘last offer’’ proposals at times
when a lawful impasse has not been reached because it had
not bargained in good faith.
(iii) Creating new job classifications to perform work nor-
mally done by bargaining unit employees.
(iv) Rejecting the concept of seniority as described in the
expired collective-bargaining agreement between it and the
IUOE in circumstances where no impasse over that subject
had been reached.
(c) Discharging, under the guise of layoff, employees
without regard to their seniority rights as set forth in the ex-
pired contract governing preference for selection for layoff.
(4) On February 8, 1991, it violated Section 8(a)(5), (3),
and (1) by discharging its employee James E. Coleman be-
cause of his membership in and activities on behalf of Inter-
national Union of Operating Engineers, Local 501, AFL–
CIO, including serving as its shop steward.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Unbelievable, Inc., d/b/a Frontier Hotel
& Casino, Las Vegas, Nevada, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith within the meaning of
Sections 8(d) and 8(a)(5) and (1) with Professional, Clerical
and Miscellaneous Employees, Local 995, affiliated with
International Brotherhood of Teamsters, AFL–CIO and Inter-
national Union of Operating Engineers, Local 501, AFL–
CIO.
(b) Entering into negotiations without any intent to reach
a collective-bargaining contract with either Union; having a
closed mind regarding what subject matters should be in-
cluded in a collective-bargaining contract; and presenting the
Unions with proposals which are intended to cause a strike.
(c) Without notice and without giving the Unions an op-
portunity to bargain, making unilateral changes in the wages,
hours, and other terms and conditions of employment of em-
ployees in the bargaining units represented by those Unions
such as:
(i) Abandoning its obligatory use of the Teamsters hiring
hall and the rules associated with it, such as giving notice
to that individuals have been secured from another source.
(ii) Implementing proposals at times when a lawful im-
passe has not been reached.
879FRONTIER HOTEL & CASINO
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(iii) Creating new job classifications to perform work nor-
mally done by bargaining unit employees.
(iv) Rejecting the concept of seniority as described in the
expired collective-bargaining agreement between it and the
IUOE in circumstances where no impasse has been reached.
(d) Discharging employees, in the guise of a layoff, with-
out regard to their seniority rights as set forth in the expired
collective-bargaining contract governing preference for selec-
tion for layoff.
(e) Discharging or otherwise discriminating against any
employee for supporting or acting on behalf of International
Union of Operating Engineers, Local 501, AFL–CIO or any
other union.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In the Teamsters and IUOE bargaining units, restore
the wages, hours, and terms and conditions of employment
to those which were in effect prior to December 1, 1990 (ex-
cept that any wage rates which now exceed those in effect
at that time shall not be reduced).
(b) On request, bargain in good faith with International
Union of Operating Engineers, Local 501, AFL–CIO as the
exclusive representative of the employees in the bargaining
unit described in its 1983–1987 collective-bargaining contract
concerning wages, hours, and terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement.
(c) On request, bargain in good faith with Professional,
Clerical and Miscellaneous Employees, Local 995, affiliated
with International Brotherhood of Teamsters, AFL–CIO as
the exclusive representative of the employees in the ‘‘Front
End’’ and ‘‘Back End’’ bargaining units as described in its
1983–1987 collective-bargaining contracts concerning wages,
hours, and terms and conditions of employment and, if un-
derstandings are reached, embody those understandings in
signed agreements.
(d) Make whole those employees, together with interest as
described in the remedy section of this decision, who suf-
fered wage and/or pension losses resulting from the unlawful
unilateral changes described herein.
(e) Offer James E. Coleman immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings, plus interest,
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(f) Remove from its files any reference to the unlawful
discharge of James E. Coleman and notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
(g) Preserve and, on 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 Order.
(h) Post at its hotel and casino in Las Vegas, Nevada, cop-
ies of the attached notices marked ‘‘Appendix A’’ and ‘‘Ap-
pendix B.’’18 Copies of the notices, on forms provided by
the Regional Director for Region 28, after being signed by
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.