Golden Nugget, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1974

215 N.L.R.B. 50 (N.L.R.B. 1974)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden Nugget , Inc. and Gaming and Office Em-
ployees Union . Case 31-CA-4122
November 22, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 23, 1974, Administrative Law Judge Her-
man Corenman issued the attached Decision in this
proceeding. Thereafter, Respondent Golden Nugget,
Inc., filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that, a
substantial fact motivating the discharge of Murphy,
the Union's financial secretary and chief organizer, was
Murphy's protected union activity. Respondent ex-
cepts to this conclusion asserting that Murphy was
terminated on August 12, 1973, because of his poor
attitude and his insolent refusal to abide by manage-
ment's rules. We find merit in these exceptions.
The Golden Nugget is a Las Vegas casino. During
June and July 1973, Stephen A. Wynn and certain
coinvestors acquired control of the casino through cor-
porate stock purchases. On August 1, 1973, there was
a complete turnover of officers with Wynn assuming
the position of president and chief executive officer.
Upon taking control, Wynn began implementing se-
veral major changes. The casino was extensively re-
modeled at a cost of approximately $2.5 million. Dur-
ing renovation, certain areas of the casino were sealed
off and the games located therein eliminated. Accord-
ingly, it became necessary to terminate approximately
150 employees. Those who were most efficient in their
technical skills and who had the best attitude towards
their jobs were retained.'
Wynn also immediately sought to formalize person-
nel procedures and rules of discipline. A central per-
sonnel office was established; timeclocks were installed;
all employees were required to fill out job application
forms;' and a code of conduct incorporating 59 sepa-
i There is no contention that any of these discharges were unlawful.
2 Wynn testified that the applications were utilized as a basis for determin-
ing how many employees they had and what their job experience was Prior
to Wynn 's assumption of control , the Golden Nugget did not have a person-
rate rules was promulgated. It is against this back-
ground of management turnover, severe cutbacks in
personnel, and a general tightening of discipline that
the events culminating in Robert Murphy's discharge
must be viewed.
Murphy was employed at the Golden Nugget as a
"dealer." He was also the financial secretary for the
Gaming and Office Employees Union. For several
years the Union has been engaged in an as yet unsuc-
cessful effort to organize Las Vegas casino dealers. For
period of some 6 months prior to August 1, Murphy
had been soliciting authorization cards from Golden
Nugget dealers in hopes that one day he might acquire
a sufficient number to institute NLRB proceedings.
Murphy's efforts on behalf of the Union were well
known to the Golden Nugget management. Such ac-
tivities were viewed with little concern, however, since
the Gaming and Office Employees Union, unlike other
unions which had acquired a foothold in Las Vegas
(e.g., Teamsters, Culinary Workers), had been gener-
ally unsuccessful in its organizing efforts and was not
regarded by casino owners as a viable labor
organization.'
As mentioned, Wynn assumed control of the Golden
Nugget on August 1, 1973. On August 2 or 3, Murphy
was observed by Casino Manager Ehrenberg dealing
"21" with his collar unbuttoned and his tie pulled down
4 or 5 inches in strict violation of rule 54. 4 Pit Boss
Don Ring was instructed to tell Murphy to button his
collar and pull up his tie. When Ring carried out these
instructions, Murphy sarcastically responded by say-
ing, "Tell them that you told me." He made no effort
to correct his appearance. Thereafter, Assistant Shift
Boss Hubert approached Murphy and asked, "Did you
get the message about the tie," to which Murphy again
sarcastically replied, "I got the message." As before,
Murphy refused to follow instructions. When Wynn
was informed of Murphy's insubordination, he decided
that Murphy should be fired immediately. This order
was subsequently rescinded, however, when Wynn was
informed that Murphy had been involved in prior
NLRB proceedings.
It was also during the initial week of Wynn's presi-
dency that Murphy posted a notice in the dealers'
lounge . The notice generally attacked the new rules and
regulations then being implemented , particularly the
requirement that employment application forms be
nel department and the precise identity and number of employees was
unknown Wynn further testified that he needed to know the job experience
of his employees so that an effort could be made to avoid losing his most
experienced employees to a new casino about to open nearby.
3 Indeed, on cross-examination Murphy acknowledged that the Union
does not have a central office , has no employees, maintains no bank ac-
counts, does not collect dues, and has less than 10 active members.
' Rule 54 provides that "Dealers shall not loosen ties or unbutton collars
on shift "
215 NLRB No. 20
GOLDEN NUGGET, INC
completed by all employees. The notice also contained
several derogatory comments about Jack Gaughn.s
It is undisputed that Wynn never saw the notice until
the day of the trial. It is also undisputed that he was
informed that the notice accused Gaughn of being a
"bullshitter and treacherous." Concerned with such
accusations being leveled at a director, Wynn spoke
with Murphy and informed him that Gaughn played
no active role in the daily operation of the Golden
Nugget. Wynn also indicated that he hoped Murphy
had not been "disrespectful" in the notice. The record
contains no evidence that Wynn in any way repri-
manded Murphy for posting the notice, admonished
him for engaging in union activities, or threatened dis-
charge should such conduct persist.
However, Murphy's flagrant insubordination con-
tinued. At one point Murphy approached Wynn and
asked him, "Have you got the Z's telephone
number?"' Wynn interpreted Murphy's slang inquiry
as being an accusation that he (Wynn) and Zarowitz
were "chums." In view of Zarowitz' undesirable repu-
tation, Wynn took Murphy's inquiry to be an insubor-
dinate, smart-aleck gesture.'
The fourth incident involving Murphy also occurred
during the first week of August. According to the cred-
ited testimony, Casino Manager Ehrenberg observed
Murphy improperly dealing cards by failing to deal
them low and down. Ehrenberg testified that Murphy
appeared dizzy. When Assistant Shift Boss Hubert
asked Murphy whether he was drunk or doped up,
Murphy replied, "You got to be doped up to work in
a toilet like this.s8
The event which precipitated Murphy's discharge
occurred on the night of August 11. Murphy was work-
ing as the "stick man" on a dice table. According to the
credited testimony of Wynn, Ehrenberg, and Assistant
Casino Manager Paul Ettinger, Murphy was not con-
centrating on his work. Instead of paying close atten-
tion to the dice, he was gazing around the room, calling
out numbers in a lackadaisical fashion, and was gener-
ally not moving the game along as stick men are re-
quired to do.9 Even though the three officials were
5 Jack Gaughn operates the El Cortez hotel and casino, and is a personal
friend of Wynn Gaughn owns a substantial stockholder's interest in the
Golden Nugget and is a member of its board of directors
6 "Z" refers to Jerry Zarowitz , a former Golden Nugget stockholder who
was the subject of Justice Department and Internal Revenue Service litiga-
tion He was also ordered by the Gaming Control Board to divest himself
of all Golden Nugget stock Zarowitz was deemed by the Gaming Control
Board to be "unsuitable" to maintain such ownership
7 As Wynn testified, "the whole experience of Zarowitz 's stock ownership
at the Golden Nugget was an embarrassment to the Gaming Control Board
and to the Golden Nugget , and it is unorthodox and out of the ordinary for
one of my dealers to come up and broach a subject in that way "
6 The Administrative Law Judge also cites Hubert's testimony to the
effect that over the past 4 years of his association with Murphy , "He has
made the statement to me and other people, 'I don' t care what they think
about my attitude If they, fire me, that's all right , I'll see them in court,' or
'I hope they fire me , I'll see them in court
51
standing directly in front of Murphy approximately 10
feet away, he continued to disregard his work. Indeed,
at one point Murphy looked at Wynn, arrogantly nod-
ded his head, and continued to gaze around the room.
Wynn finally concluded that Murphy's intentional in-
subordination and flagrant disobedience of orders
could no longer be tolerated. Accordingly, he ordered
that Murphy be discharged at the conclusion of his
shift.10
In our judgment, the foregoing credited testimony
establishes an overwhelming case for the discharge of
Robert Murphy. We have here a situation in which a
new management, attempting to modernize and im-
prove operations, is faced with a totally recalcitrant
employee; an employee who on several occasions dur-
ing a short 12-day period defiantly refuses to abide by
applicable rules of conduct, and is openly contemptu-
ous of management officials. When such conduct is
viewed in light of Respondent's need to terminate 150
employees during renovation, the case for Murphy's
discharge becomes even more compelling.
The Administrative Law Judge nevertheless con-
cludes that Murphy's discharge violated Section 8(a)(3)
and (1) of the Act. He infers that the discharge was
motivated in part by Murphy's engagement in certain
union activities; specifically, the posting of the notice in
the dealers' lounge and Murphy's alleged attempts to
represent discharged employees who were members of
the Union." In our view, the record does not support
this inference. Rather, the evidence substantiates
Wynn's own testimony that:
I took into consideration the smart aleck remark
he made to either Ring or Hubert that came back
to me through the casino manager ; and I took into
consideration the rather smart aleck and insolent
attitude he showed when he was on the stick.
Now, I made the evaluation for Murphy, and I
terminated him for those reasons only.
[Emphasis supplied.]
First, Wynn's testimony makes clear that it was not
the posting of the notice which upset him, but rather
the degrading and insolent remarks which he
9 Wynn testified that a good stick man is essential The pace of the entire
game is determined by the way the stick man calls out points, the way he
moves the dice around, and the fashion in which he solicits bets offering the
best percentage for the house
10 Murphy's conduct on the evening of August 11 so outraged Casino
Manager Ehrenberg that he threatened to resign if Murphy were not ter-
minated
i i There is absolutely no evidence in the record to support the conclusion
that Murphy's threat to represent discharged union members played any
part whatsoever in Wynn's decision to discharge him Indeed, the Adminis-
trative Law Judge credited Wynn's testimony as against that offered by
Murphy with regard to the discussion in which this topic is alleged to have
been discussed
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understood 'Z had been made about Jack Gaughn, a
member of the Golden Nugget's board of
directors.13 In fact, after brief discussion of the notice
and Wynn's admonition that he hoped Murphy had not
been disrespectful, the entire matter of the notice was
dropped completely. Murphy's eventual termination
did not occur until well over a week later when he once
again violated casino rules and engaged in insubordi-
nate conduct while serving as a "stick man."
Second, Respondent had no logical reason for dis-
charging Murphy on account of his union activities.
Both Murphy and the Union had proven to be rather
inept at organizing, and consequently neither con-
stituted very much of a threat. For example, 6 months
of union solicitation had failed to provide Murphy with
sufficient support among Golden Nugget dealers to
justify institution of NLRB representation proceedings.
As for the Union itself, it has participated in several
elections at other Las Vegas casinos but has yet to
acquire a majority vote.14 Indeed, the Union appears
to consist of nothing more than a loose coalition of six
to eight individuals who favor unionization of casino
dealers and who are willing to devote a portion of their
time to organizing. As described by Wynn, the Union
"is not a viable operating Union like the other . . .
people we do business with, like Culinary or Teamsters,
and nobody in the business really takes that Union very
seriously."
Third, there is nothing in the record to indicate that
Respondent harbored any union animus or was other-
wise disposed to discriminate against employees on the
basis of union membership or support. Aside from
Murphy's discharge, no other 8(a)(1) conduct is found
by the majority. In addition, the Golden Nugget al-
ready recognizes and has entered into collective-bar-
gaining agreements with the Teamsters, Culinary
Workers, Operating Engineers , Carpenters, and Elec-
tricians. There is, in short, no basis upon which to draw
the inference that Murphy's efforts on behalf of the
Union constituted even a partial motivation for his
discharge.
The Administrative Law Judge's conclusions, if
adopted, could only serve to strengthen the fears re-
12 It is important to recall that Wynn never saw a copy of the notice prior
to Murphy 's discharge. His conduct must accordingly be judged in terms of
what he understood Murphy to have said , namely, that Jack Gaughn was
a "bullshitter and treacherous." It is for this reason that Wynn's testimony
on cross-examination regarding his initial reaction to the notice upon seeing
it for the first time at the hearing is totally irrelevant in determining his
motivation for discharging Murphy nearly 7 months earlier
13 Thus, Wynn testified that he "wasn't about to put up with any insulting
remarks to a director of this corporation by one of its employees " At
another point Wynn stated , "I don ' t like insolence about a director of the
Company, even if that director isn't a controlling stockholder "
14 There wa. testimony that casino dealers are very reluctant to organize
for fear that they will be forced to relinquish their individual tips to a
common union fund
cently expressed by the Eighth Circuit in N.L.R.B. v.
Prescott Industrial Products Company, 500 F.2d 6
(C.A. 8, 1974), to the effect that:
The Board apparently is enunciating a general
principle that insolent, rough, and intimidating
conduct cannot serve as a basis for discharge if
that conduct is carried out in connection with the
assertion of protected activity under §7 of the Act
and that unless such improper conduct, including
threats, intimidations and acts adverse to the oper-
ation of the employer's business is "egregious," the
same must be accepted as a normal and usual
incident of labor-management relationships.
[Citing N.L.R.B. v. Red Top, Inc., 455 F.2d 721,
728 (C.A. 8, 1972).]
We agree completely with the Eighth Circuit's rejec-
tion of any such rule. The Board recently dismissed an
8(a)(3) allegation with the explanation that "The mere
fact that an employer may want to part company with
an employee whose union activities have made him
persona non grata does not per se establish that a subse-
quent discharge of that employee must be unlawfully
discriminatory. If the employee himself obliges his em-
ployer by providing a valid independent reason for
discharge-i.e., by engaging in conduct for which he
would have been discharged anyway-his discharge
cannot properly be labeled a pretext and ruled
unlawful. 15 We adhere to the view expressed by the
Board in Klate Holt Company, et al., 161 NLRB 1606
(1966). The Board there stated:
Moreover, even if we were prepared to find that
Respondent was seeking an opportunity to termi-
nate Davis because of its annoyance with the way
in which he engaged in protected activity, we
would not, in this case, find that Respondent dis-
criminatorily discharged him. The mere fact that
an employer may desire to terminate an employee
because he engages in unwelcome concerted activi-
ties does not, of itself, establish the unlawfulness of
a subsequent discharge. If an employee provides an
employer with a sufficient cause for his dismissal by
engaging in conduct for which he would have been
terminated in any event, and the employer dis-
charges him for that reason, the circumstance that
the employer welcomed the opportunity to dis-
charge does not make it discriminatory and there-
fore unlawful. This, at most, is the situation in the
present case. Accordingly, we find, contrary to the
Trial Examiner, that the General Counsel has not
proved by a preponderance of the evidence that
Respondent discriminatorily discharged Davis.
[Emphasis supplied.]
13 P. G Berland Paint City, Inc., 199 NLRB 927 (1972)
GOLDEN NUGGET, INC.
In our view, extended organizing efforts by an em-
ployee do not insulate him against a discharge for
cause. As this Board has repeatedly been warned by the
courts, where "the employer has proper cause for dis-
charging an employee, the Board may not rely on scant
evidence and repeated inferences to make a finding that
places the Board in the position of substituting its own
ideas of business management for those of the
employer.""
Robert Murphy was not discharged as a result of his
activities on behalf of the Union. He was discharged
because he refused to abide by casino rules and because
he repeatedly engaged in insubordinate conduct. He
was, in other words, lawfully discharged for cause. Ac-
cordingly, the decision of the Administrative Law
Judge is reversed and the complaint is dismissed in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
MEMBER FANNING , dissenting:
I do not agree with my colleagues that Robert Mur-
phy was discharged because he refused to abide by
casino rules and because he repeatedly engaged in in-
subordinate conduct . Rather, I would affirm the Ad-
ministrative Law Judge 's finding that a substantial fact
motivating Wynn to discharge Murphy was his pro-
tected union activity.
The Respondent , Golden Nugget , is a Las Vegas
casino . On August 1, 1973, there was a complete
change of corporate officers with Stephen Wynn be-
coming the president and chief executive officer. In
early August, Murphy posted a notice in the dealers'
lounge which warned that Wynn's newly instituted
policy requiring employees to complete employment
application forms was a device to "screen union person-
nel" and to deprive employees of protection against
discharge . The notice also asserted , among other
things , that Jack Gaughn , a substantial stockholder
16 E g, N.LR B. v Blue Bell, Inc., 219 F 2d 796, 798 (C A 5, 1955) See
also the following observation of the First Circuit in NLR B v Fibers
International Corporation, 439 F.2d 1311 (1971), denying enforcement in
part 181 NLRB 731.
Ike would consider it a gross miscarriage for the company to be
saddled by Board action with this ill-behaved, not to mention perjun-
ous, employee. If the Board wanted to overlook de Jesus obvious mis-
conduct vis-a-vis itself, that was its affair The company was not obliged
to be as forgiving No evidence warrants a finding that the company's
decision, although no doubt pleasing to it, cf. N L R B v. Lowell Sun
Pub Co, 1 CIr, , 1963, 320 F 2d 835, 842, NLRB. v Birmingham Pub.
Co., 5 Cir, 1959, 262 F 2d 2, 9, was not motivated by proper business
considerations
53
and a member of Respondent's board of directors, had
always fought unions and had been found guilty of
illegal discharges by the NLRB in the past."
It is undisputed that Murphy was generally recog-
nized as the chief organizer of the Union. In 1972,
Murphy became financial secretary of the Gaming and
Office Employees Union and since that time had en-
gaged in organizational activity on behalf of said Un-
ion. During July and August 1973, Murphy's organiza-
tional activity increased. He passed out authorization
cards to approximately 100 of the 200 casino's dealers,
as well as discussing unionization with employees dur-
ing their breaks.
The notice to the casino dealers posted by Murphy
on the bulletin board in the dealers' lounge remained
posted for several days until taken down by an un-
known person. Although Wynn testified he had never
seen a copy of the notice until the morning he testified
in this proceeding, it is clear from the record that
shortly after the notice appeared, Wynn was informed
that Murphy had posted the notice and that the notice
made assertions relative to the employment application
forms and their possible use in getting rid of employees
and procuring break-in help who would receive lower
wages, in addition to the references to Jack Gaughn.
Thus, when asked whether he was told that the notice
said something to the effect that the applications were
a way of getting rid of employees and getting in break-
in help, Wynn himself responded, "That and that
Jackie Gaughn was a bull-shitter and treacherous, were
the words I was told."
Wynn, nevertheless, contended that Murphy was
terminated because of his insolent attitude and his
refusal to abide by management's rules. Rarely does an
employer, in discharging employees, openly state that
they are being discharged for union membership or
activity. Yet, here, Wynn's own testimony indicates
that among the acts of insolence perpetrated by Mur-
phy, and thus leading to his discharge, was the posting
of the notice to the casino dealers.
Thus, at one point in his direct testimony, Wynn
acknowledged that upon being told that the notice said,
"Jackie Gaughn is a bullshitter and he's treacherous,"
he wanted to see if such a notice was posted on the
bulletin board, and he "wasn't about to put up with any
insulting remarks to a director of his corporation by
one of its employees." At another point in his direct
testimony, Wynn testified as follows:
I just didn't discharge Murphy . . . I felt that he
was being insolent at the time. And Murphy did
17 As noted by the Administrative Law Judge, this indication of Jack
Gaughn's prior violation of the Act is accurate Gaughn operates the El
Cortez hotel and casino The El Cortez has been found guilty of unfair labor
practices including unlawful discharges in Exber, Inc., d/b/a El Cortez
Hotel, 160 NLRB 1442 (1966)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledge to me that he put the notice up. And
I don't like insolence about a director of the Com-
pany, even if that director isn't a controlling stock-
holder. I thought that Murphy was insolent and as
such, I wasn't anxious to have him around the
place.
When counsel for the General Counsel asked on cross-
examination if Wynn would consider the notice author-
ized and posted by Murphy to be insulting remarks or
insolence, Wynn responded, "I would consider the use
of the word-the sentence-'Jack Gaughn has always
fought unions', and the next sentence, `The El Cortez,
meaning Gaughn is famous for low wages, big promises
and treachery'-that's disrespectful; that's insolent;
and that's grounds for termination. If it was true, it
probably wouldn't be grounds. The man's a director of
the Company. I regard that as insolent and disrespect-
ful." Additionally, when asked why Murphy was
barred from the premises in addition to being dis-
charged, Wynn testified, "The notice about Jackie
Gaughn is the thing that in my opinion, puts Murphy
into the area-takes him out of the area of a fellow with
his own beliefs and puts him in the area of disrespectful
and a wiseguy."
My colleagues overlook the probative value of
Wynn's own testimony by contending that "it was not
the notice which upset him, but rather the degrading
and insolent remarks which he understood had been
made about Jack Gaughn, a member of the Golden
Nugget's Board of Directors." This contention ignores
certain facts and incorrectly applies those recognized to
the legal principles determinative in this case. Wynn, as
indicated above, was aware of the notice's contents
relative to union personnel and working conditions.
Even conceding that the references to Gaughn were
particularly upsetting to Wynn, such remarks were in-
cluded in a notice which was designed to express the
need for union protection against possible employer
abuses. The reference to treachery was included in a
sentence referring to low wages and big promises at the
El Cortez. As indicated by the Administrative Law
Judge, by means of his notice Murphy sought to have
other employees join the Union and oppose the Re-
spondent's policies. In this context, the posting of the
notice is clearly protected concerted activity. Although
the notice may have been offensive to Wynn, it was not
so "defamatory or opproprious" as to remove its au-
thor, Murphy, from the Act's protection."
My colleagues insist that we should heed the view
Is Cf Crown Central Petroleum Corporation, 177 NLRB 322 (1969),
Boaz Spinning Co, sub. of Standard-Coosa-Thatcher, 165 NLRB 1019
(1967), The Bettcher Manufacturing Corporation, 76 NLRB 526 (1948),
The Leece-Neville Company, 140 NLRB 56 (1962), Thor Power Tool Com-
pany, 148 NLRB 1379, 1380 (1964), BlueBell, Inc, 107 NLRB 514 (1953);
Union Carbide Corporation, 171 NLRB 1651 (1968),. The Hamlet Stsmt
House, Inc, 197 NLRB 632 (1972)
that the circumstance that an employer welcomes the
opportunity to discharge does not make it discrimina-
tory and therefore unlawful if the discharged employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason.19
I do not deny that Murphy engaged in conduct
which may have constituted cause for discharge.20 But
whether or not Murphy's transgressions may have es-
tablished lawful cause is not germane to this particular
inquiry. For it is well established that, where the dis-
charge of an employee is motivated in substantial part
by conduct which discourages legitimate union or con-
certed activity, the existence of legitimate contempo-
raneous grounds for such discharge affords no defense
to a finding of an unfair labor practice by the
employer.21
In my view the discharge of Robert Murphy, the
Union's financial secretary and chief union spokesman
in the casino, discouraged union membership and ac-
tivity and coerced employees in the exercise of their
Section 7 rights.22 In making this determination, I do
not rely on scant evidence or repeated inferences, as
suggested by my colleagues, but rather I base my con-
clusion-on Wynn's repeated testimony that he consid-
ered Murphy's notice to demonstrate insolence and
that such "insolence" was a substantial motivating fac-
tor in Wynn's decision to terminate Murphy.
Nor do I accept my colleagues view that the Em-
ployer had no logical reason for discharging Murphy
on account of his union activities in light of his Union's
past failures to receive sufficient support among casino
dealers to warrant institution of NLRB representation
proceedings.23 The discharge was by new manage-
ment. By his own admission, Wynn viewed Murphy's
activity, in posting a notice promoting the Union, as
troublesome. It is the Board's function not to examine
whether that view is meritorious but only to determine
whether Respondent's actions are motivated by that
view. The position taken by my colleagues tends to
undermine the purpose of the Act by according its
19 See Klate Holt Company, 161 NLRB 1606 (1966)
20 A number of incidents in August which culminated in Murphy's dis-
charge on August 12, 1973, can be described as follows. Murphy's unbut-
toned collar in violation of management 's rule 54 ; the lofting of cards, not
paying attention at the crap pit, and the "Jerry Z" remark I accept the
characterization of these incidents as enunciated by the Administrative Law
Judge in his opinion
21 See, e g, N.L.R.B. v Whitfield Pickle Company, 374 F 2d 576, 582
(C A. 5, 1967), Hugh H. Wilson Corporation, 171 NLRB 1040, 1046
(1968); N.L.R.B v Whitin Machine Works, 204 F.2d 883, 885 (C.A 1,
1953), N.L.R B v. Park EdgeSheridan Meats, Inc, 341 F 2d 725, 728 (C A
2, 1965)
22 The Barnsider, Inc., 195 NLRB 754, 760 (1972), Carbet Corporation,
191 NLRB 892 (1971)
23 The Union had been unable to win a Board-conducted election in other
casinos where it had sought exclusive representation
GOLDEN NUGGET, INC. 55
protection only to adherents of unions with a demon-
strably high likelihood of success.24
Accordingly, I would affirm the Administrative Law
Judge and adopt the recommended Order.
24 While Murphy's posting of the notice was especially instrumental in his
termination, the Administrative Law Judge also indicates that Murphy's
conduct in seeking to represent discharged employees who were members
of the Union was one of the acts of insolence as viewed by Wynn My
colleagues state there is no evidence to support this conclusion However,
when Murphy returned to the casino with six recently terminated em-
ployees about 1 week after his discharge to ascertain if the Respondent was
giving these former employees bad references and also to learn if the Re-
spondent would rehire them, Murphy was ordered off the premises but the
other people were told they could return individually without Murphy This
singling out of Murphy by this kind of treatment tends to suggest that
Murphy's efforts on behalf of other dischargees were viewed as insolent by
Wynn
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: This case
was tried before me at Las Vegas, Nevada, on March 13 and
14, 1974, upon a charge filed by Gaming and Office Em-
ployees Union, herein called the Union, on November 30,
1973, against Golden Nugget, Inc., herein called the Re-
spondent, and a complaint issued January 18, 1974, by the
Regional Director for Region 31 in behalf of the General
Counsel of the National Labor Relations Board, herein called
the Board. The complaint alleged in substance that the Re-
spondent violated Section 8(a)(1) and (3) of the Act in the
discharge of an employee named Robert Murphy and vi-
olated Section 8(a)(1) of the Act by a threat to discharge an
employee and a promise to grant wage increases to em-
ployees. The Respondent's answer denied engaging in any
unfair labor practices and also denied that the Union was a -
labor organization within the meaning of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following:
to improve their wages , hours, and working conditions with
employers . The Union is, therefore , a labor organization
within the meaning of Section 2(5) of the Act, and it has so
been held by the National Labor Relations Board in The
Landmark Hotel and Casino, 194 NLRB 815 (1972); Club
Cal-Neva 194 NLRB 797 (1971); and Nevada Club, 178
NLRB 81 (1969).
III THE ALLEGED UNFAIR LABOR PRACTICES
Stephen A. Wynn, together with other investors, acquired
control of the Respondent in June and July 1973 through
corporate stock acquisitions. On August 1, 1973, there was
a complete change of the corporate officers. Mr. Wynn
became the president and chief executive officer of the Re-
spondent, and Murray Ehrenberg became the casino
manager . Prior to assuming the office of president on August
1, Mr. Wynn spent about 6 weeks at the casino in the office
of vice president where he assumed no executive functions but
merely stayed on as an observer until he became president. As
president, Mr. Wynn made a number of radical changes. He
extensively remodeled and restructured the casino at a cost
of approximately $2,500,000, and during remodeling dis-
charged approximately 150 casino employees whom manage-
ment considered least valuable to the casino ' He set up a
central personnel office, installed a timeclock for the em-
ployees to punch, and required all Respondent's employees to
complete applications for employment forms irrespective of
their prior length of service . These employment applications
required the employee, inter alia, to divulge his physical con-
dition, experience, his friends and relatives, his education, his
employment history, and his previous employers The ap-
plication required the signer to certify that the answers given
in the application form were true and that applicant agreed
to comply with all orders, rules, and regulations of the
Golden Nugget. Untrue statements in the application sub-
jected the employee to dismissal from employment. Attached
to the application was a document containing the general
rules of the Golden Nugget Casino consisting of 59 rules with
which the employee, by signing the application, agreed to
comply.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find that
the Respondent Golden Nugget, Inc., is a Nevada corpora-
tion with its principal place of business at Las Vegas, Nevada,
where it operates a gaming casino, bar, and restaurant. In the
course and conduct of its business operations, Respondent
annually derives gross revenues in excess of $500,000 and
annually purchases and receives, at its place of business in Las
Vegas, goods valued in excess of $50,000 directly from firms
located outside the State of Nevada.
II THE LABOR ORGANIZATION INVOLVED
It was established without dispute by the testimony of
Robert Murphy, financial secretary of the Union, that the
Union represents casino employees whom it admits into
membership, and who participate in the affairs of the Union,
A. The Discharge of Robert Murphy
Robert Murphy was a craps (dice) dealer and was consid-
ered by his contemporaries as an excellent dealer. He was
financial secretary of the Union and devoted his energies to
signing up new members in the Union with the hope of some
day procuring enough new members so as to become majority
representative of the Respondent 's casino employees. The
Union had been unable to win a Board -conducted election in
other casinos where it had sought exclusive representation.
When Murphy returned from his vacation in July 1973, he
was assigned to dealing a card game called "21" rather than
being assigned to his regular job as a "craps" or dice dealer.
This aroused a suspicion in Murphy 's own mind that he was
being set up for discharge because of his union leadership and
Wynn instructed Casino Manager Ehrenberg and Assistant Casino
Manager Ettinger to retain those employees who were the most efficient in
their technical skills and who had the nicest attitude Many older employees
advanced in age were discharged
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity in recruiting new meinbers to the Union. Conse-
quently, Murphy had the Union's attorney, Mr. Albert M.
Dreyer, write a letter under date of July 17, 1973, to Mr. S.
C. Blaine, who was then the Respondent's president.'
Attorney Dreyer's letter complained that the shift of Mur-
phy to the "21" table was a device to get rid of Murphy. The
letter read as follows:
Mr. Robert Murphy, who is one of the business re-
presentatives of my client, the Gaming And Office Em-
ployees Union, has been employed by the Golden Nug-
get for the past several years. He has been very active in
the organization of the Union and in the advancement
of its interests and the interests of its members and
casino employees generally. Until a short time ago, in-
deed since he was employed more than two years ago,
he was employed as a craps dealer. Recently, however,
he has been shifted to a `21' table. There can be but one
explanation for the change. You are desirous of ridding
yourself of his services because of his union activities,
and think if he is placed in a position where he is dealing
by himself it will be easier for you to manufacture or
fabricate evidence justifying his discharge (such as evi-
dence that he has insulted customers or engaged in dis-
honest acts or practices). In this you have followed a
practice which has been engaged in by many other em-
ployers in the gambling industry and with which both
the Union and I have long been familiar.
Demand is hereby made upon you that you restore
Mr. Murphy to his former position. Otherwise, I shall be
constrained to file a charge against you with the Na-
tional Labor Relations Board.
A number of incidents in August culminated in Murphy's
discharge on August 12, 1973.
Initially, it is noted that Murphy, by a notice posted in the
dealers' lounge in early August, sounded the alarm that the
newly instituted policy of the Respondent, requiring em-
ployees to complete employment application forms, was a
device to "screen union personnel" and to deprive employees
of any type of protection against discharge . Among other
things Murphy's notice asserted that Jack Gaughn' has al-
ways fought unions and has been guilty of illegal discharges
by the Board in the past.
The notice to the casino dealers posted by Murphy on the
bulletin board in the dealers' lounge frequented by them dur-
ing breaks and while off duty and which remained posted for
several days in early August 1973, read as follows:
NOTICE
DEALERS:
THE APPLICATIONS YOU WERE ASKED TO FILL OUT ARE JUST
ANOTHER WAY OF SCREENING UNION PERSONNEL JACK
2 Mr. Wynn had not yet ascended to the presidency but remained on the
premises as a vice president and observer , familiarizing himself with the
Respondent 's operations.
3 Jack Gaughn operates the El Cortez hotel and casino He owns a sub-
stantial stockholder's interest in the Respondent and is a member of the
Respondent's board of directors The El Cortez hotel has been found guilty
of unfair labor practices by the Board in Exber, Inc, d/b/a El Cortez Hotel,
160 NLRB 1442 (1966)
GAUGHN HAS ALWAYS FOUGHT UNIONS AND HAS BEEN FOUND
GUILTY OF ILLEGAL DISCHARGES BY THE N L R B. IN THE PAST
WHAT YOU ARE TOLD TO SIGN IS NOTHING BUT A CONTRACT TO
DISCHARGE ANYONE FOR ANY REASON WITHOUT PROTECTION
CLAUSES FOR YOUR BENEFIT THE EL CORTEZ IS FAMOUS FOR LOW
WAGES, BIG PROMISES AND TREACHERY SPOTTERS ARE BEING
EMPLOYED TO SURVEY GAMING PERSONNEL FROM THE EL
CORTEZ IN STRICT VIOLATION OF STATE AND FEDERAL LAWS ALL
EMPLOYERS SHOULD NOTE THE FIRST PARAGRAPH AND PAY PAR-
TICULAR ATTENTION TO THE STATING OF THE HISTORICAL BACK-
GROUND AND POLICY STRESSING THE IMPORTANCE OF APPEAR-
ANCE AND COURTESY WHO IS TO DEFINE WHAT NEATNESS AND
COURTESY MEANS' DOES IT MEAN PHYSICAL APPEARANCE' IS
YOUR HAIR CUT AS TO THE LIKING OF THE MANAGEMENT' IS
COURTESY SUBJECT TO THE WHIMS OF DIFFERENT SUPERVISORS
OR MANAGEMENT, OR IS IT JUST A GIMMICK OR WAYS OR MEANS
TO GET RID OF SOMEONE OR A GROUP WHO IS INTERESTED IN
ESTABLISHING PROTECTION FOR DEALERS IN THE FORM OF AN
ORGANIZED UNION TO INCLUDE ALL GAMING EMPLOYEES' IF
YOU WISH TO OPPOSE THIS POLICY THEN CONTACT YOUR UNION
REPRESENTATIVE ON THE PREMISES, SWING SHIFT,
ROBERT H MURPHY
Word got back to Mr. Wynn about this notice which Mur-
phy had posted in the dealers' lounge. Mr. Wynn testified he
was told that the notice asserted in effect that the employ-
ment applications were a means of getting rid of employees
and procuring break-in help, who would receive lower wages.
Wynn was also told that the notice recited that Jackie
Gaughn was a "bullshitter and treacherous." Wynn went to
the dealers' lounge to inspect the notice, but it had already
been removed.
Wynn testified credibly that after he was unable to find the
notice that Murphy had posted in the dealers' lounge, he
approached Murphy and told him he understood he had
posted the notice about Jackie Gaughn and that the applica-
tions are just another way of us getting rid of regular dealers
and putting in break-ins. Wynn then told Murphy that the
Golden Nugget did not intend to use break-in help while it
was humanly possible to get experienced help. Wynn also told
Murphy that Jackie Gaughn was not in charge and does not
make the rules for the Golden Nugget. Wynn asked, "Do you
really believe that we're about to fire everybody and put in
break-in help?" Murphy replied, "Yes." Wynn told Murphy
he would like to have a copy of the notice and that he hoped
Murphy hadn't been disrespectful. Murphy replied , "I just
said what I believe." Murphy did not supply Wynn with a
copy of the notice. Wynn testified he had never seen a copy
of the notice until that morning he testified in this case. Wynn
testified that there is a sentence in the notice, "big promises
and treachery," that he didn't like at all.
The Respondent asserts that Murphy was terminated on
August 12, 1973, because of his poor attitude and his insolent
refusal to abide by the rules of conduct established by the new
management.
The first incident occurred on August 2 or 3 when Casino
Manager Ehrenberg noted that in violation of rule 544 of
the newly established rules, Murphy was dealing "21" with
4 Rule 54 provides that "Dealers shall not loosen ties or unbutton collars
on shift."
GOLDEN NUGGET, INC 57
his collar unbuttoned and his tie pulled down 4 or 5 inches.
Ehrenberg instructed Assistant Casino Manager Paul Et-
tinger to tell Murphy to button his collar and pull up his tie.
Ettinger in turn relayed these instructions to Pit Boss Don
Ring . Ring approached Murphy at the "21" table and told
him he had been instructed to tell him to "button up his tie."
At the moment, Murphy made no motion to button his collar
or pull up his tie and replied to Ring, "Tell them that you told
me." Assistant Shift Boss Hubert subsequently approached
Murphy and inquired of Murphy, "Did you get the message
about the tie?" and Murphy replied, " I got the message."5
Hubert reported back to Ettinger of Murphy's refusal to
comply with the order. Ettinger then reported this to Ehren-
berg and of his intention to fire Murphy and Ehrenberg
agreed . At this point Hubert, who had been employed by the
Golden Nugget for some time, cautioned Ehrenberg and Et-
tinger, who were new at the Golden Nugget, that on a previ-
ous occasion, Murphy had been fired in connection with the
Union and had been reinstated by the Board." Thereupon
Ehrenberg took no disciplinary action against Murphy and
decided to present the problem to Mr. Wynn. Ehrenberg
related the events to Wynn and of Murphy's reply, "Tell 'em
the message is received." When Wynn told Ehrenberg to fire
Murphy, Ehrenberg related to Wynn what Hubert had told
him of Murphy's involvement in prior NLRB proceedings.
Wynn decided to deal with Murphy himself. That evening,
Wynn approached Murphy at his table and told him he
wanted to talk to him on his next break. On Murphy's break,
he joined Wynn in the California room where Wynn admon-
ished him that when the assistant casino manager has a pit
boss tell him to pull up his tie and button his collar, "You
don't tell him `message received'." Murphy told Wynn he had
always worn his collar this way because he had a short heavy
neck, but if Wynn wanted him to button his collar, he would
button his collar. Wynn told Murphy to obey the instructions
of his supervisors and admonished, "When you tell the pit
boss to tell the assistant casino manager , `Tell 'em that his
`message is received', it looks like you're looking to get fired."
Murphy replied that he was "not looking to get fired."
Murphy testified that after he assured Wynn that he
wanted to continue working at the Golden Nugget, he asked
Wynn if he had received a letter from the Union. When Wynn
answered in the negative, Murphy told him it was in the mail
and he should receive it in the morning. Murphy further
testified he told Wynn that, "We will represent any of the
employees that you discharge if we feel or they feel that
they've been discriminated against for union activities." Mur-
phy testified further that Wynn said, "He was not going to
put any of those people back to work, and he felt that those
people were criminals, and he had detectives or he had wit-
nesses watching these people-and, that if I [Murphy] was
5 There is credible evidence from Murphy and other former dealers of the
Respondent that the air conditioning in the Golden Nugget was very poor
and that it had been the practice prior to August 1 for the dealers to
unbutton their collars and loosen their ties while at work Murphy testified
that it was impractical to button up his collar and pull up his tie while dealing
"21," but he testified that he pulled up his tie after the break, although it
may have fallen down a bit later.
6 Hubert's reference was to the Board's Decision and Order in 203 NLRB
642 involving Murphy The Golden Nugget was required to post a notice,
but Hubert was mistaken in asserting that Murphy had been discharged or
reinstated.
going to represent these type of people, he'd have no respect
for me, and if I tried to bring them back to work or represent
them, that he'd discharge me or fire me."
Wynn's testimony concerning this subject of Murphy
representing the discharged employees is somewhat different
than Murphy's testimony above recited. According to
Wynn's testimony developed on cross-examination, Murphy
said, "I want to ask you why you fired some of these people."
Wynn testified he told Murphy, "I'm not going to discuss it
with you; it's none of his business." Wynn testified further
that Murphy asked, "Why did you let these guys go? Do you
think they're thieves or crooks?" Wynn testified he replied,
"I'm not going to answer a question like that. I'm not going
to discuss it with you." Mr. Wynn categorically denied telling
Murphy that he would be terminated or might be terminated
for representing the discharged people.
Comparing the testimony of Murphy and Wynn in connec-
tion with Murphy's seeking to represent certain discharged
employees, Wynn's testimony is the more credible. I have so
concluded because Wynn impressed as a very knowledgeable
and intelligent witness who would not openly charge his for-
mer employees as criminals. Moreover, in Wynn's letter of
August 15, 1973, replying to the Union's letter received by
Wynn on that same day,' Wynn pointed out what clearly
appears from the record evidence, that the employee termina-
tions were the consequence of the closing down of several
blackjack and crap games. It appears, moreover, that the
General Counsel makes no contention, and the record does
not disclose, that the discharges were in any way related to
the employees' union membership or activity. So far as the
evidence shows, those selected for discharge were considered
by the Respondent to be the least valuable to them as em-
ployees, and it appears that in a number of cases employees
advanced in age were selected for discharge.
The record is clear, and in fact Mr. Wynn concedes, that
he regarded Murphy as a "wise guy." He gained that impres-
sion initially when Murphy, in response to a request to button
his shirt and pull up his tie, failed to obey instructions, even
though he notified Assistant Shift Boss Hubert that he "got
the message ." Wynn 's resentment against Murphy became
more aggravated when Murphy attempted to intercede in
behalf of certain discharged employees. Wynn likewise
conceded that he took offense when Murphy asked him if he
had Z's phone number. Mr. Wynn explained the reason for
his mental reaction as follows: "When one of my dealers
comes and right off the bat brings up the subject of, `Have you
spoken to the `Z' and refers to him in a slang way-in
a-wise guy fashion, that's like a nickname, there's a conno-
tation, Mr. Zigman, perhaps if you knew the history of it. He
shouldn't have been asking me about Jeny Zarovitz, as if I
was a chum of his. And the whole experience of Zarovitz's
stock ownership at the Golden Nugget was an embarrass-
ment to the Gaming Control Board and to the Golden Nug-
get, and it is unorthodox and out of the ordinary for one of
my dealers to come up and broach a subject in that way."
Following the necktie incident referred to above, and in the
same week, according to the testimony of Casino Manager
7 Although the Union's letter is dated August 11, 1973, Murphy was
unable to establish when it was prepared or mailed I therefore credit
Wynn's positive testimony that it was not received until August 15, 1973
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ehrenberg, he was standing in the "21" pit, and he observed
that Murphy, who was dealing "21," "was taking the cards
and lofting them in the air. It looked like he was dizzy. He
was just taking the cards and throwing them straight up in
the air." Ehrenberg testified that the cards should be dealt
down. Ehrenberg testified he sent Hubert to see what was
wrong with Murphy. Hubert went over to talk to Murphy
and then returned to Ehrenberg where he reported that he
asked Murphy what was wrong, was he drunk or doped up
or something, and why was he throwing the cards up in the
air. Ehrenberg testified that Hubert told him Murphy replied
to his questions with these words, "You got to be doped up
to work in a fucking toilet like this." Ehrenberg reported
Murphy's remarks to Wynn, who said he would take care of
it.,
Mr. Murphy testified he was not lofting cards as described
by Ehrenberg or Hubert and denied that Hubert, or any one
else, had talked to him about such an incident. The denials
of Murphy were not emphatic but framed in the terminology,
"Not to my knowledge." Murphy further testified that it
would virtually be impossible for him to loft cards in the
manner described by Ehrenberg and Hubert without spread-
ing at least 30 percent of the cards on the floor, in drinks,
coffee cups, ash trays, or anything else that would be on the
table. In resolving credibility of the testimony of Ehrenberg
and Hubert as opposed to Murphy's testimony that he was
not lofting the cards, I must note that Murphy was very
unhappy in being assigned to the "21" table instead of the
craps table, and it is likely that his dissatisfaction was re-
flected in his conduct. Additionally, I must note that Mur-
phy's denials that he lofted the cards were not emphatic but
in the words "Not to my knowledge," whereas the testimony
of Hubert and Ehrenberg was convincing that Murphy was
lofting cards. I am convinced, however, that the cards were
not lofted in the exaggerated fashion described by Hubert and
Ehrenberg, but, nevertheless, were not being dealt down. I
find, however, that Murphy made the remark attributed to
him by Hubert concerning "working in a toilet."
According to the testimony of Ettinger, Ehrenberg, and
Wynn, in the late night of August 11 Ettinger came over to
Ehrenberg and Wynn and said , "Come here, I want you to
see something ." They walked into the pit and observed Mur-
phy who at the time was on the stick on the dice table. All
three, namely Ettinger, Ehrenberg, and Wynn, agree that
they stood in the pit directly facing Murphy and observed
him for several minutes . The substance of their testimony was
that instead of paying strict attention to the dice, Murphy was
gazing around the room, was calling out the numbers in a
lackadaisical fashion and was not moving the game along as
the "stick man" is required to do. Wynn testified that his
attention was first directed to Murphy's conduct about 9:30
or 10:30 at night when he came out of his upstairs office to
the casino. Ehrenberg was agitated with Murphy's conduct
8 Hubert corroborates Ehrenberg 's testimony concerning this card lofting
incident and that he reported to Ehrenberg Murphy's exclamation concern-
ing working in a toilet Hubert also testified that in the last 4 years during
his association with Murphy, "He has made the statement to me and to
other people, 'I don't care what they think about my attitude If they fire
me, that's all right, I'll see them in court,' or 'I hope they fire me; I'll see
them in court' "
and took Wynn to the middle of the dice pit where Murphy,
as stick man, faced him, Ettinger, and Ehrenberg.
According to Wynn's testimony, he asked of Ehrenberg,
"What's the matter" and Ehrenberg replied, "This has been
going on all night." "We tell him to speak up." Wynn testified
he was only 10 feet away from Murphy, and he observed that
he could hardly hear Murphy as he called out the points and
in the meantime Murphy, instead of watching the action
closely, was gazing around the room from the far right to the
left-"and he looks me (Wynn) right in the eye, nods his head
and keeps looking around the room." Wynn testified that
Murphy, "didn't keep his eyes on the layout more than 5
percent of the time, and he was doing it in full view of myself
and the casino manager." Wynn continued to testify as fol-
lows: "I took that as a sign of insubordination and a flagrant
disobedience of orders. I know that Murphy knew better."
Wynn testified that Casino Manager Ehrenberg said to him,
"You can't have a situation, Steve, where we enforce the rules
for some people but not for Murphy. It's very bad for morale
around here. This fellow is flaunting it," and I said, "Termi-
nate him," and I walked out of the pit. Murphy was ter-
minated later on that night at the end of his shift. Hubert
made out the memorandum of termination of employment.
The termination memorandum under "employer remarks,"
bears the handwritten remarks "overstaffed" "not for
rehire." Mr. Everett 0. Pequen no longer in Respondent's
employ, but who was the shift manager on the graveyard shift
on the night of Murphy's discharge, testified credibly and
without dispute that about 3.45 a.m. on August 12, 1973,
Wynn instructed him as follows: "Pete, you've been chosen
or you've been elected to inform Mr. Murphy that his services
are no longer required," and he said "to explain to Mr. Mur-
phy that we have rearranged our crews as a result of closing
down the Nevada room, and we're laying off some crews and
that he is one of those that's going to be laid off; and also
when you terminate him, explain to him that we do not care
to have him on the premises at any time in the future, now,
or in the future." Pequen testified credibly that he delivered
the message verbatim as instructed by Wynn.
Murphy agrees that on the last day he worked he gazed
straight ahead for a moment and saw Ehrenberg and Wynn
standing in the-pit in front of his dice table while he acted as
stick man , and he nodded to Wynn. Murphy denied,
however, that he gazed around the casino 4 or 5 minutes.
Murphy testified that this would be impossible and the game
would come to a complete standstill in such event. Murphy
testified that he looked up more on this particular occasion
than normally because he noticed that Ehrenberg, Ettinger,
and Wynn were looking in his direction and pointing to him
with angry looks, and it was making him very nervous and
that he "wanted to view more or less what they were pointing
out" to him. Murphy testified that Ettinger was pointing over
at him and it was making him very nervous because they were
talking about him, and he had been threatened to be fired I
or 2 days prior to this incident.' Murphy further testified
that while they were standing there, different bosses would
come up to them, and Ettinger, Ehrenberg, and Wynn would
9 Murphy testified that it was the night before this incident that Wynn had
told him that if he tried to represent other employees, he was going to fire
him
GOLDEN NUGGET, INC. 59
be pointing at him and then they moved in around behind
him, and he would glance around to see who was behind him.
Murphy testified, "They were standing about 10-15 feet
away, and they were arguing . It was making me very nervous.
I knew-you know-he told me he was going to fire me; so
I figured, well, this was it ." I find that Murphy's inattention
to his stick man duties was in part due to the harassment
described by him.
B. Analysis and Conclusionary Finding
Wynn testified that Murphy' s termination was based on
"disobedience of rules and insolence " At another point in his
testimony on cross-examination, Mr. Wynn testified as fol-
lows: "I evaluated Mr. Murphy personally. He was being
reviewed because of the fact we were to cut back, that we
didn't need everybody that was working there, and I took into
consideration the smart aleck remark he made to either Ring
or Hubert that came back to me through the casino manager,
and I took into consideration the rather smart aleck and
insolent attitude he showed when he was on the stick." The
record is clear that among the acts of insolence perpetrated
by Murphy, according to Wynn's view, was his posting the
notice on the bulletin board, which according to Wynn's
understanding called his respected friend and board of direc-
tors member, Jackie Gaughn, "treacherous" and a "bullshit-
ter," and also warned the employees that the taking of ap-
plications was a way of getting rid of employees and getting
in break-in help.
When inquiry was made by counsel for the General Coun-
sel on cross-examination if Wynn would consider the notice
authored and posted by Murphy on the bulletin board to be
insulting remarks or insolence, Wynn answered as follows: "I
would consider the use of the word-the sentence-'Jack
Gaughn has always fought unions' and the next sentence,
`The El Cortez, meaning Gaughn, is famous for low wages,
big promises and treachery'-that's disrespectful; that's inso-
lent; and that's grounds for termination If it was true, it
probably wouldn't be grounds. The man's a director of the
Company. I regard that as insolent and disrespectful-Oh. I
know that he's not treacherous, and I know that he's not
famous for big promises. I consider him to be an honorable
man, as all directors of the Golden Nugget are honorable "
At another point in his testimony, on direct examination,
Wynn testified that when he was told that the notice said,
"Jackie Gaughn is a bullshitter and he's treacherous," he
wanted to see if such a notice was posted on the bulletin
board, and he "wasn't about to put up with any insulting
remarks to a director of this corporation by one of its em-
ployees."
At another point in his direct testimony Wynn, in acknowl-
edging that he probably gave the order that Murphy be
barred from the premises because he was insolent, testified as
follows:
And Murphy did acknowledge to me that he put the
notice up. And I don't like insolence about a director of
the Company, even if that director isn't a controlling
stockholder. I thought that Murphy was insolent, and,
as such, I wasn't anxious to have him around the place.
And again Wynn, in giving his reason for terminating Mur-
phy, testified:
When anybody's ever insulted, to me, or publicly in-
sulted one of the directors of the corporation, they would
certainly get thrown out of the Golden Nugget.
It is clear from the foregoing evidence that Wynn ter-
minated Murphy because of his several acts of insolence as
viewed by Wynn. One of those incidents was the notice posted
by Murphy on the bulletin board in the dealers' room,
another was Murphy's conduct in seeking to represent dis-
charged employees who were members of the Union. I regard
both of these activities by Murphy as protected, concerted
activity. I agree with counsel for the General Counsel that it
is well established that where the discharge of an employee
is motivated in part by conduct which discourages legitimate
union or concerted activity, the existence of legitimate con-
temporaneous grounds for such discharge affords no defense
to a finding of an unfair labor practice by the employer.
N.L.R.B. v. Whitfield Pickle Co., 374 F.2d 576, 582 (C.A. 5,
1967); Hugh H. Wilson Corporation, 171 NLRB 1040, 1046
(1968); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883,
885 (C.A. 1, 1953); N.L.R.B. v. Park Edge Sheridan Meats,
Inc., 341 F.2d 725, 728 (C.A. 2, 1965). It is clear and I find
that the discharge of Murphy, the Union's financial secretary
and chief union spokesman in the casino, discouraged union
membership and activity and coerced employees in the exer-
cise of their Section 7 rights. The Barnsider, Inc., 195 NLRB
754, 760 (1972); Carbet Corporation 191 NLRB 892 (1971).
The notice posted by Murphy was critical of the applica-
tion for employment forms employees were being required to
complete. It accurately pointed out that Jack Gaughn, a
board of directors member, had been guilty of unfair labor
practices. It expressed the opinion that the application forms
did not give the employees protection clauses against dis-
charge and it expressed Murphy's low opinion of the wages,
big promises and treachery, and the use of spotters at the El
Cortez. Although the notice was considered by Wynn to be
offensive and insulting to his respected friend, Mr. Gaughn,
as well as to himself, the notice, in my opinion, was not so
"defamatory or opprobrious" as to remove its author, Mur-
phy, from the protection of the Act.
See, for example, the following cases where offensive re-
marks were held not so defamatory or opprobious as to be
removed from the protection of Section 7 of the Act. Crown
Central Petroleum Corporation, 177 NLRB 322 (1969), where
the employee accused the employer of lying; Boaz Spinning
Co., 165 NLRB 1019, where the employee told the employer
he was no different than Castro; Bettcher Manufacturing
Corporation, 76 NLRB 526, where an employee told the em-
ployer that the Company's books could be "juggled or
manipulated"; Leece-Neville Company, 159 NLRB 293
(1966), where an employee spoke out against the plant
manager after the latter had delivered an antiunion speech to
a group of employees; Thor Power Tool Company, 148 NLRB
1379, 1380 (1964), where the employee called the employer
a "horse's ass"; Blue Bell Inc., 107 NLRB 514 (1953), where
an employee prepared and signed a letter addressed to the
Company's vice president referring to his "obvious contempt
for the truth" and three times characterizing him as a "liar",
Union Carbide Corporation, 171 NLRB 1651 (1968), where
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee called the Company's plant manager "The lying
son-of-a-gun ." Hamlet Steak House, 197 NLRB 19 where a
waitress told her employer that he had "cheated" her.
The notice prepared by Murphy and posted on the bulletin
board in the dealers' lounge was relevant to the fears gene-
rated among the employees by the wholesale termination of
employees, the introduction of exacting rules of conduct, the
new management's emphasis on appearance and courtesy,
and Murphy's expressed need for union protection against
possible employer abuses. These fears and alarms expressed
by Murphy were not entirely groundless in view of previous
Board decisions finding against the Respondent in Golden
Nugget, Inc., 203 NLRB 642 (1973), and against Mr.
Gaughn's firm in Exber Inc., d/b/a El Cortez Hotel, 160
NLRB 1442 (1966). By means of this notice, Murphy was
seeking to have other employees join the Union and oppose
the Respondent's policies. There is no evidence that the
printed matter contained in the notice was deliberately or
maliciously false so as to cause the forfeiture of the statutory
protection of Section 7 of the Act. See Owens-Corning Fiber-
glass Corporation, 172 NLRB 148, 155 (1968) and cases cited
at page 155.
I find that a substantial fact which motivated Wynn to
discharge Murphy, and to bar him from the premises, was his
protected union activity in posting the notice on the bulletin
board in the dealers' lounge. Wynn, by his own testimony,
admitted this to be the fact. I, therefore, find that the dis-
charge of Murphy violated Section 8(a)(1) and (3) of the
Act.10
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
10 When Murphy returned to the casino with six recently terminated
employees about 1 week after his discharge to ascertain if the Respondent
was giving these former employees bad references and also to learn if the
Respondent would rehire them, Murphy was ordered off the premises by
Casino Manager Ehrenberg, but the other people were told they could
return individually without Murphy
THE REMEDY
It having been found that the Respondent engaged in un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It will be recom-
mended that the Respondent offer employee Robert Murphy
immediate and full reinstatement to his former position, and
if not available, to an equivalent position, without prejudice
to his seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason
of the discrimination against him by payment to him of a sum
of money equal to that which he would have earned from the
date of his discharge on August 12, 1973, to the date of the
offer of reinstatement, consistent with Board policy set forth
in F W. Woolworth Company, 90 NLRB 289 (1950), with
interest on backpay to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Golden Nugget , Inc., is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union, Gaming and Office Employees Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the tenure of employment
of Robert Murphy, thereby discouraging membership in the
Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
4. By engaging in the conduct set forth in section III,
above , Respondent interfered with, restrained , and coerced
its employees and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]