Hacienda Hotel and Casino

National Labor Relations Board - Board Decisions

Jan 13, 1981

254 N.L.R.B. 56 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hacienda Hotel and Casino and Toni Linebarger
and Willow P. Bowe. Cases 31-CA-9215, 31-
CA-9228, and 31-CA-9483
January 13, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 30, 1980, Administrative Law
Judge William L. Schmidt issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and counsel
for the General Counsel filed a brief in response to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) the
National Labor Relations Act, as amended, of the
National Labor Relations Board has delegated its
authority 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, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge found that Respondent violated Sec.
8(aX3) and (1) of the Act by its discharge of cocktail waitresses Sharlene
Knight and Diane Olsen on March 5, 1979. The consolidated complaint
did not contain an allegation with respect to the discharges of Knight
and Olsen.However, it did allege that Respondent's discharge of Willow
Bowe was unlawful. The facts show that Respondent simultaneously dis-
charged Knight, Olsen, and Bowe for the identical conduct which oc-
curred during the same incident. As noted by the Administrative Law
Judge, the issues relevant to the discharges of Knight and Olsen were es-
sentially one and the same as the issues relevant to the question of the
lawfulness of Respondent's discharge of Bowe. Bowe and Knight both
testified about the events relating to their discharges and Respondent had
ample opportunity to cross-examine them on their testimony. Further-
more, Respondent presented rebuttal evidence which responded not only
to Bowe's account of events, but also to Knight's testimony. In this
regard, we note that Respondent specifically questioned Katherine Cur-
tiss about certain statements concerning the March 5 discharges that were
attributed to her by Knight. Moreover, as the Administrative Law Judge
found. Knight and Olsen were fired on that occasion only because Re-
spondent wanted to "lend verisimilitude to Bowe's discharge." In view of
the foregoing, we agree with the Administrative Law Judge's conclusion
that the issue was fully and fairly litigated and adopt his findings as to
Knight and Olsen. Alexander Dawson. Inc.. d/b/a Alexander's Restaurant
and Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d 1300, 1304 (9th Cir.
1978). See also Free-Flow Packaging Corporation, 219 NLRB 925 (1975),
enfd. 566 F.2d 1124 (9th Cir. 1978); and Retail Clerks Union, Local 770. et
al. (The Frito Company), 138 NLRB 244 (1962), enfd. in relevent part sub
nom. Frito Company, Western Division v. N.L.R.B., 330 F.2d 458 (9th Cir.
1964).
254 NLRB No. 7
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hacienda Hotel
and Casino, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge:
This matter was heard by me on February 28 and 29,
1980, in Las Vegas, Nevada. The proceeding is based on
a consolidated complaint issued on behalf of the General
Counsel by the Regional Director for Region 31 on Oc-
tober 5, 1979,' and a consolidated amended complaint
issued by the Acting Regional Director for Region 31 on
November 20. The original charge in Case 31-CA-9215
was filed by Toni Linebarger, an individual, on July 20,
and was amended on September 28. The original charge
in Case 31-CA-9228 was filed by Willow Bowe on July
27, and was amended on September 28. The charge in
Case 31-CA-9483 was filed on October 17 by Bowe.
The issues were joined by the answer filed on behalf of
Hacienda Hotel and Casino (herein called the Respon-
dent) to the consolidated complaint on October 18 and
the Respondent's answer to the consolidated amended
complaint which was filed on December 7. 2
The complaint alleges that the Respondent violated
Section 8(a)(3) of the Act by discharging Bowe and
laying Linebarger off; by imposing more onerous condi-
tions on Bowe on two separate occasions; by issuing
written warnings to Bowe on three separate occasions;
and by refusing to promote Bowe. The complaint further
alleges that the Respondent independently violated Sec-
tion 8(a)(1) of the Act by certain specific conduct of Su-
pervisor Katherine Curtiss. The Respondent's answer
admits certain of the preliminary allegations of the com-
plaint and admits that it did issue written warnings to
Bowe, alleged by the General Counsel to be unlawful,
but the Respondent denies the commission of any unfair
labor practice.
The General Counsel and the Respondent were repre-
sented at the hearing by counsel and all parties were pro-
vided with the opportunity to be heard and to present
any relevant evidence. Upon a review of the entire
record herein, after carefully considering the briefs
which have been filed by the General Counsel and the
Respondent, and having considered the demeanor of the
witnesses who appeared in this matter, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Nevada corporation with its prin-
cipal place of business in Las Vegas, Nevada, where it is
If the calendar year is not designated hereafter, it is 1979.
2 Hereafter the operative pleading of the General Counsel is called the
complaint.
56
HACIENDA HOTEL AND CASINO
engaged in the operation of a hotel and gambling casino.
The Respondent annually derives gross revenues from its
Las Vegas business operations which are valued in
excess of $500,000. In addition, the Respondent annually
purchases and receives goods or services valued in
excess of $2,000 directly from suppliers located outside
the State of Nevada. The Respondent admits, and I find,
that at all times material herein it was an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act. I
further find that it will effectuate the purposes of the Act
to assert jurisdiction in this dispute.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Culinary
Workers Union, Local 226 (herein called the Union), has
been at the times material hereto a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE EVIDENCE
A. Willow Bowe
1. Background and Bowe's activity
Willow Bowe has been employed by the Respondent
as a cocktail waitress since May 24, 1974. During the
period of her employment she had been a member of the
Union, which has a collective-bargaining agreement ap-
plicable to the Respondent's employees.
Between February and September 1978, Bowe filed
four grievances with the Union. The first two grievances
involved a "change of station" dispute. The third griev-
ance, filed in July 1978, involved Bowe's termination
while on a medical leave of absence; and this grievence
resulted in her being reinstated to her former position. A
fourth grievance, filed in August 1978, involved another
termination of Bowe and again she was reinstated. In
September 1978, Bowe filed an unfair labor practice
charge with the Board but withdrew the charge follow-
ing an assurance from the Respondent's then food and
beverage director, Louis Connors, that Bowe would no
longer be harassed.3 According to Bowe, prior to Febru-
ary 1978, she had never been disciplined by the Respon-
dent.
2. Respondent's hostility toward Bowe
On March 21, Agustine Lee, a black man, was em-
ployed by the Respondent as the assistant food and bev-
erage director. 4 According to Lee, on March 19 or 20,
in the course of his hiring process, he was briefed on his
duties by the vice president and general manager, Clem
Bernier, in Bernier's office and in the presence of the
3 Bowe also testified that she was encouraged by a representative of
the Union to withdraw the charge.
4 In its answer, the Respondent denied the General Counsel's allega-
tion that Lee and Katherine Curtiss, who is described more fully below,
were supervisors and agents of the Respondent "[alt all times material
herein." At the hearing, the parties stipulated that Lee was a supervisor
within the meaning of the Act from March 21 through May 3, and that
Curtiss was a supervisor within the meaning of the Act in two periods, to
wit, from March 20 to April 16 and again from May 24 to August 20. As
the record fully supports the parties' stipulation, I find Lee and Curtiss
were supervisors in the periods specified in the stipulation.
food and beverage director, Chris Schneider.s5 Accord-
ing to Lee, Bernier told him in the course of the briefing
that he "hated niggers" and added that he did not con-
sider Lee to be a "nigger" but rather Lee was "colored."
Bernier continued by saying that Willow Bowe was a
"nigger," and went on to explain that Bowe was a cock-
tail waitress and a troublemaker. Bernier told Lee that
one of his first assignments would be to terminate Bowe;
that she had filed many grievances with the Union; that
Bowe was a "smart bitch"; and that, because Lee was
black, Bowe could not accuse Lee of discriminating
against her. Bernier acknowledged briefing Lee but
denied that he told Lee to get rid of Bowe or that he
referred to Bowe as a "nigger." According to Bernier, "I
don't talk that way . . . Mr. Lee happens to be a colored
person himself and I would certainly not use those
words." Schneider was not called to testify. Although he
was no longer the Respondent's food and beverage di-
rector at the time of the hearing, his unavailabilty was
not explained. 6
On March 20, Katherine Curtiss was promoted to the
position of head cocktail waitress. Sue Geary, a cocktail
waitress, credibly testified that she had two separate con-
versations with Curtiss concerning the management's dis-
pleasure with Bowe while Curtiss was the head waitress.
In the first conversation, Geary testified that Curtiss told
her that when she took the head waitress' job, she was
told to harass Bowe and get rid of her because the man-
agement did not like her. In the second conversation,
Curtiss told Geary that the management wanted to get
rid of Bowe because she had won some union griev-
ances.
Diane Gant was employed as a cocktail waitress by
the Respondent from March 1978 to December 1979.
Gant credibly testified that Curtiss told her shortly after
she initially became the head waitress that she (Curtiss)
was going to the day shift to get rid of the troublemak-
ers. Gant said that Curtiss identified the troublemakers as
Bowe, Olsen, Knight, and Marge Hendricks. Gant testi-
fied that Curtiss told her "[uJpstairs thought Willow
Bowe was a troublemaker and the other girls were trou-
blemakers and didn't do their job." 7 Gant testified that
on a later occasion, Curtiss told her that Bowe was a
troublemaker and, if she could, she would get rid of her.
On a third occasion, after Gant had filed a grievance
over her schedule, Curtiss told her, "You're just as big a
troublemaker as Willow Bowe and if you don't like it,
why don't you go down the road."8
Sharlene Knight, another of the Respondent's cocktail
waitresses, testified that when she returned to work on
March 14 following a discharge discussed below, Curtiss
told her that in her opinion Olsen and herself had been
innocent bystanders; that the hotel wanted to fire Bowe
b Schneider appears to have succeeded Connors. Schneider was subse-
quently succeeded by William Kelly.
I Based on the total circumstances of this case, I am satisfied that Lee's
version of the conversation is credible. This is especially true where, as
will be noted below. Bowe had been the source of difficulty for the Re-
spondent only a few days earlier.
The term "upstairs" refers to the Respondent's executive offices.
At the hearing. the General Counsel stated that this testimony was
offered solely for background purposes.
57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because she was a troublemaker involved in union activi-
ties and filing grievances, and that Knight should end her
friendship with Bowe to avoid trouble herself. 9
Bowe testified that in the course of processing a griev-
ance concerning warning notices, which she received on
March 25, which are discussed more fully below, Curtiss
told her, "[u]pstairs wants you to take a hike. They want
you [out] of here." Curtiss denied that she made the fore-
going remarks attributed to her. For reasons set forth
below in the section entitled "Concluding Findings" I do
not credit her denials of the foregoing statements.
The uncontradicted testimony of Bowe about an Octo-
ber 5 telephone conversation she had with David
Lowden, brother of the Respondent's owner, Paul
Lowden, further reflects the extreme hostility of the Re-
spondent toward Bowe. According to Bowe she had
been advised to telephone David Lowden to explain her
position about a dispute which had arisen that day over
her use of the house telephone. In the course of her con-
versation with David Lowden, Paul Lowden interrupted.
Bowe's testimony of what transpired then is as follows:
And, about that point Paul Lowden interrupted
the conversation and said, "This is Paul Lowden.
Let me tell you one thing." He said, "You're going
to get two warnings slips." And I said, "For what,
Mr. Lowden?" He says, "For unauthorized use of
the telephone and for talking to ownership." And I
said, "Well, sir, I wasn't aware that Mr. Dave
Lowden was an owner." He said, "You're a liar.
You knew. You knew." And I said, "No, sir. I
didn't." I said, "I know that he's your brother, but
that's all that I know about him. Myself and no
other employee knows what capacity he's here in
just, other than your brother. We don't know what
he does." And he insisted that I was a liar and that
I had no business talking to ownership and I said,
"Well, sir the only reason I called was because I
was advised to do so." He said, "By whom?" And I
said, "By the Equal Rights Commission." And he
said, "Who at the Equal Rights Commission advised
you to do that?" And I said, "Mrs. Sanchez."
And he said, "Your're lying," and I said, "No, sir. I
don't have to lie to you about that or anything else
really" . . . I couldn't reason with him so I just bid
him a good day and I hung up.
3. The alleged unfair labor practices against Bowe
The complaint alleges that the Respondent unlawfully
discharged Bowe on March 5. The evidence with respect
to this allegation shows that by memorandum dated
March 1 the Respondent revised its rules regarding the
employees' use of the hotel and casino facilities in order
to permit the employees access as paying customers to
certain specified theater, restaurant, and lounge facilities,
including the lounge known as the Island Bar, during
9 The evidence is not sufficient to show that this conversation took
place after Curtiss became a supervisor. However, Curtiss testified that
she and the Respondent's financial vice president, Ron Radcliffe, dated
during this period of time.
nonworking hours. Notice of this change in policy was
posted on the employee bulletin boards. Theretofore, it
appears that employees were prohibited from utilizing
any of the Respondent's facilities during their nonduty
hours.
On March 4, Bowe and Knight finished their work
shift at 6 p.m. According to Bowe, she punched out at
the Island Bar and remained there with Knight until 7:30
p.m. when a third cocktail waitress, Diane Olsen, joined
them; and all three had drinks together. Between 6 and 8
p.m., when the three employees left the premises, the
only hotel representative who approached them was a
security guard who asked the three employees if they
had punched out. The three women informed him they
had punched out at the Island Bar.'°
The following day Bowe and Olsen were at the hotel
and were summoned to Connors' office where they were
informed that they were being discharged. Ultimately,
Bowe was issued a written termination notice, which
stated that she was terminated for "[w]ilful misconduct &
drinking at bar without punching out." According to
Bowe's uncontradicted testimony, while Olsen and her-
self were in Connors' office, Connors told them that
there had been an executive board meeting that morning
and he had been instructed to terminate them. Initially,
Olsen pressed Connors to learn if all three employees
were being discharged and when advised that that was
the case, Olsen asked for an explanation in view of the
revision in the Respondent's rules. Bowe testified that
Connors replied, "Diane, I didn't write the memo. I did
not attend the meeting. This was not my decision. I was
given a security report when I came in and was told by
Paul Lowden's secretary that I was to terminate the
three of you." Thereafter, Connors made a telephone call
and inquired of the individual with whom he spoke as to
whether or not that person had attended the meeting
that morning. A discussion ensued and at the conclusion
of the telephone conversation, Connors stated, "Well, if
that's what Paul wants, that's what we have to do."
When the telephone conversation ended, Connors sum-
moned his secretary and instructed her to prepare the
three termination notices." Olsen was given her notice
at the end of the work shift that day and Bowe and
Knight were given their notices when they attempted to
report for work on March 7, which was their next
scheduled workday. 12 Grievances were immediately
filed with the Union.
On March 12, a meeting was held in Summerfield
Horner's office concerning the grievances. '3 Present
were Horner, Connors, two union representatives, and
the three discharged employees. In the course of that
1o There is evidence that at least the cocktail waitresses punched in
and out at both the Island Bar and the timekeeper's office located outside
the hotel near the entrance to the premises.
' I According to Bowe, Connors' secretary thought he was joking and
it was necessary for Connors to convince the secretary that he was seri-
ous.
'1 Connors attempted to give Bowe her termination notice while she
was in his office that day but Bowe refused to take it because it was her
day off.
13 Horner is the Respondent's personnel director and Paul Lowden's
uncle.
58
HACIENDA HOTEL AND CASINO
meeting, the Respondent's position was that the three
employees had violated an "unwritten rule" by drinking
at the bar in uniform.t 4 As a result of the meeting, an
understanding was reached between the Respondent and
the Union that the discharge action would be changed to
a suspension and the three employees would be returned
to work without pay. Bowe testified that the three em-
ployees reluctantly agreed to this resolution at this time
in order to avoid a protracted period of unemployment
awaiting the outcome of an arbitration proceeding. Sub-
sequently, the three employees filed grievances to obtain
the pay they lost as a result of the March 5 discharge,
but there is no evidence that this grievance was ever re-
solved.
The complaint also alleges that Bowe was assigned a
more onerous position on March 21. The evidence in
support of this allegation shows that at the time Curtiss
became the head waitress on March 20, Bowe's assigned
station on weekends included two separate areas. One
area included three crap tables, and the other area,
which was known as the mini-pit, included five blackjack
tables, located near the coffee shop. On March 21, Cur-
tiss changed Bowe's assignment by removing the three
crap tables from Bowe's assigned station. The effect of
this change was to reduce Bowe's tip potential. Curtiss
testified that this action was taken because she received
complaints from the bosses of both sections that the
cocktail service was not adequate. Neither of the individ-
uals in charge of the sections involved was called to cor-
roborate Curtiss' testimony nor was their unavailability
explained. Bowe filed another grievance with the Union,
and the grievance was.resolved by giving Bowe the op-
portunity to choose which of the two areas she desired
to work. Bowe chose the crap tables. Subsequently,
however, Bowe was reassigned to both areas and in the
6-month period prior to the hearing, she worked at both
stations apparently without complaint.
The complaint alleges and the answer admits that
Bowe received two warning notices on March 25. One
notice warned Bowe for clocking in before starting time
and not reporting to her work station until 15 minutes
after her starting time. The other warning was for exces-
sive talking. Although Lee actually prepared both warn-
ings and Curtiss issued both warnings to Bowe, the late-
start warning was based on conduct Curtiss reported,
and the excessive talking warning was based on conduct
which Lee personally observed. Even though there is
some exculpatory evidence in Bowe's testimony about
the accusation that she was engaged in excessive talking,
the fact remains that Lee was no longer employed by the
Respondent at the time of the hearing and testified with-
out hesitation in a manner favorable to Bowe as to other
matters but failed to provide evidence thet the excessive
talking warning was other than for lawful reasons.
Hence, I am satisfied that the other circumstantial evi-
dence is not sufficient to overcome this defect in the
General Counsel's case concerning the excessive talking
14 Bowe's and Knight's testimony shows that they never heard of the
so-called unwritten rule. Although Horner began to discuss the so-called
rule at one point in his direct examination, the Respondent's counsel in-
terrupted this testimony.
warning and, accordingly, it will not be belabored fur-
ther here. 5
The late-start warning is based on conduct which Cur-
tiss reported to Lee. Bowe credibly testified that her fail-
ure to be at her station on time on that date resulted
from the fact that Curtiss granted her permission to go
to the "cage" to obtain some scotch tape to repair a
dress hanger. In her testimony, Curtiss generally ac-
knowledged the sequence of events described by Bowe.
Curtiss testified that when she observed Bowe "messing"
with the hanger she told Bowe that the cage probably
had scotch tape. Curtiss conceded that Bowe probably
took the latter statement to mean that she had permission
to go to the cage and obtain the tape to repair the
hanger. After Bowe filed a grievance and the Union con-
tacted the Respondent in an effort to resolve the matter,
Lee conferred with Curtiss and Bowe. According to
Lee, he initially questioned Curtiss privately about the
incident and she denied she had given Bowe permission
to get the tape and repair the hanger. Thereafter, Lee
called Bowe to his office and, in Curtiss' presence, asked
Bowe who had given her permission to be away from
her station. When Bowe told him it was Curtiss, Curtiss
acknowledged that she had told Bowe that she could
take care of the dress. Upon being advised of this admis-
sion, Lee offered to rescind the warning in return for
Bowe's promise to withdraw her grievance and orally
reprimanded Curtiss in Bowe's presence. However,
Horner testified that the late-start reprimand by Curtiss
was never rescinded.
The complaint alleges that on March 28 Curtiss threat-
ened an employee with discharge if she did not with-
draw a pending grievance. The evidence in support of
this allegation shows that in the course of the give and
take over the March 25 warnings, Curtiss approached
Bowe and began by saying, "Willow, upstairs wants you
to take a hike." Bowe acknowledged that she was aware
of that and Curtiss responded by telling Bowe that she
thought that she could get them to give Bowe a fresh
start if Bowe would not challenge the warnings. Bowe
insisted that she was not deserving of the warnings and
declined to withdraw the grievances that she had already
filed. Curtiss denied that she had ever made the "take a
hike" comment or the "fresh start" comment to Bowe.
The complaint alleges that Bowe was denied a promo-
tion because of her union activities. The evidence in sup-
port of this allegation shows that Curtiss was relieved of
her position as head cocktail waitress by Lee effective
April 16. Lee initially solicited Curtiss' assistant, Ella
Manthly, to take the position but she declined. There-
after, Lee promoted Knight to the head waitress position
on April 18. When Knight was promoted, Manthly asked
to be relieved of the assistant's position. As a result of
this development, Lee offered the assistant's job to Bowe
on April 22. When Bowe accepted, Lee undertook to
secure his superior's approval of his appointment. Lee
testified that when he sought such approval he was in-
' Entirely apart from this consideration, Lee subsequently voided the
excessive talking warning.
16 The handling of this matter is based on the credited testimony of
Lee and Bowe.
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed by Horner that Bowe was not acceptable to the
management because of all the problems Bowe had
caused the hotel with the warnings and with going to the
Union and that, with the number of warning notices in
Bowe's file, the management did not want Bowe as the
assistant or the head cocktail waitress. Knight testified
that she was told by Lee that the executive board did
not approve of Bowe as her assistant because of her
union activities and the on-going fight she had with the
Respondent. Bowe testified that Lee informed her that
his designation of her as the assistant had been rejected.
According to Bowe, Lee told her that he had done ev-
erything he could but that Paul Lowden "hates you" and
that it was all he could do to keep Knight in the head
cocktail waitress' position."
Horner denied that he ever told Lee that Bowe was
unacceptable because of her union activities, her griev-
ance filing, or any similar reason. Instead, Horner testi-
fied that he discussed the names under consideration
with Lee and that Knight's file reflected over 60 call-ins
and that Bowe's file reflected a similar attendance prob-
lem.18 Because of this problem, Horner told Lee that
they had to have someone who was going to be there. In
denying the statements attributed to him by Lee, Horner
testified that he did not hire "these people." Apart from
the foregoing testimony of Horner, there is no evidence
concerning the consideration by the Respondent's man-
agement, which caused the rejection of Bowe as the as-
sistant head waitress.
Knight testified that in the 5-week period she was the
head waitress, the only criticism she heard of Bowe from
the management occurred when she attempted to issue a
warning to Curtiss. Knight spoke with Schneider and
Radcliffe about the warnings and in the course of the
conversation, Radcliffe told Knight, "[I]f you want a
warning notice for someone, why don't you write one
for Willow Bowe . . . I understand the bosses are com-
plaining about her work and that she's a terrible waitress
and does nothing but delight in causing trouble for this
hotel." Although Radcliffe acknowledged that he direct-
ed Knight to rescind the warning to Curtiss, he denied
that Bowe's name was ever mentioned in the course of
the conversation.
The complaint alleges that Bowe was assigned to more
onerous work on May 28. The evidence in support of
this allegation shows that Curtiss assigned Bowe to work
the swimming pool area in the event business became too
slow inside. It was generally agreed by all of the wit-
nesses who testified on the subject that the swimming
pool area is one of the least desirable stations. Bowe
claims that she was immediately reassigned to her former
station after she filed a grievance. However, Curtiss testi-
fied that Bowe's swimming pool assignment at this time
was on a contingency basis only, and that Bowe never
really worked in that area. This latter assertion by Cur-
tiss was never rebutted by the General Counsel. More-
" Although there is evidence that the head waitress position involves
supervisory authority, there is no evidence as to whether or not the same
is true of the assistant's position. Notwithstanding, it appears that both
positions are in the bargaining unit.
is No documentary evidence was introduced showing this to be the
case.
over, the evidence pertaining to Linebarger's layoff, dis-
cussed infra, shows that Curtiss assigned herself to the
swimming pool area on June 6.
The complaint alleges that Bowe was issued a warning
on July 14, in violation of the Act. The evidence of the
General Counsel in support of this allegation shows that
on that date Bowe was at the service bar preparing to go
to work. According to Bowe, there were four other
waitresses present. Curtiss approached the area and an
exchange occurred between Curtiss and Bowe which
Bowe described in the following manner:
Q. What did she say to you and what was your
response to her, if any?
A. "Willow, break it up." I said, "Break up
what?" She said, "Just break it up." I said, "Break
what up. I'm not doing anything." And then I said,
"Girl, leave me alone. I am so sick of you, I don't
know what to do." I said, "You harass me contin-
ually. I'm fed up." She went to the phone.
Following this exchange, Curtiss returned with William
Kelly, the newly appointed food and beverage director.
At that time, Curtiss requested that Bowe leave the
premises, and when Bowe declined to do so, Kelly asked
Bowe to leave. Bowe again refused and told Kelly that
she wanted something in writing telling her why she was
being ordered from the premises and by whom. Kelly
and Curtiss left, and a short while later Curtiss returned
with a warning slip which was signed by Kelly. Bowe
then left the premises. Kelly, who had never met Bowe
before this incident, credibly testified that there were
customers at the service bar who observed this incident
and that his sole purpose in asking Bowe to leave was to
quiet things down until he had an opportunity to investi-
gate what was occurring.
The complaint alleges that two disciplinary notices
were issued to Bowe on October 5, in violation of the
Act. The supporting evidence shows that both notices
were signed by Kelly. One notice warned Bowe for "un-
authorized use of telephone for personal business while
on duty" and the other notice provides, "Hotel House
Rule #12 which includes" Bypassed culinary rule for
filing grievances."' Rule # 12 of the Hacienda Hotel's
general rules provides that the failure to observe compa-
ny policy is a basis for discipline.
Bowe's scheduled assignment on Fridays was to re-
lieve other waitresses for their lunchbreaks. It is not dis-
puted that Bowe was permitted to complete the break
schedule-which took 4 hours-and then leave work
rather than work on another assignment which she ap-
parently had a right to do. It is likewise not disputed that
in the 4-hour workshift, Bowe was entitled to take a 10-
minute break but, since Bowe acted as a relief person, no
time was specified for this break. Rather, Bowe took her
10-minute break whenever business was slow. While at
work on Friday, October 5, Bowe made a phone call
from the lobby of the hotel. Bowe claims she was on
break at the time. She was observed making the tele-
phone call by David Lowden. Subsequently, Lowden
questioned other waitresses at the service bar in Bowe's
presence to learn if any of the waitresses were on break
60
HACIENDA HOTEL AND CASINO
while Bowe was taking her phone call but, according to
Bowe, he said nothing to her. Additionally, the evidence
shows that Lowden called Kelly who was away from
the hotel at the time having lunch with his wife and in-
quired if he had authorized Bowe to use the house
phone. When Lowden learned that Kelly had not autho-
rized Bowe to use the phone, he directed Kelly to return
immediately to the hotel and investigate Bowe's use of
the phone while on duty. Kelly complied. Kelly testified
that when he talked to Bowe, she told him that she had
to make an emergency call to her daughter but said
nothing about being on break. Bowe testified that she did
tell Kelly she was on break. The General Counsel made
no inquiry about this matter of Knight and Geary who,
according to Bowe, were present when she spoke with
Kelly.
Having observed the flurry of activity over her con-
duct on that day, when she arrived home that day Bowe
telephoned an agent of the Nevada Equal Rights Com-
mission where she had a complaint pending. The agent
suggested that Bowe telephone David Lowden and ex-
plain the situation in an effort to avoid further difficul-
ties. Bowe followed the agent's suggestion and tele-
phoned David Lowden. Bowe claims that she told
David Lowden she was on break in the course of this
conversation. David Lowden was not called to testify.
When Bowe reported to work the following morning,
the timekeeper handed Bowe the two warning slips.
Bowe filed a grievance with the Union, but at the time
of the hearing it appears that the grievance had not been
resolved.
The Respondent's explanation of the October 5 Rule
#12 warning is contained entirely in the following testi-
mony of Kelly:
A.... [M]y interpretation of the culinary con-
tract is that they are the exclusive bargaining agent
for their employees; therefore, it is my interpreta-
tion that when, if there is a grievance or something
wrong with the employer the very first person by
their own contract which they sign and of which
the hotel signed and agreed to is that they immedi-
ately file a grievance or call up the culinary union.
And this is done all of the time. All of the time.
The very first word I hear is a call from the union.
Why did you do this, why did you do that, etcetra.
She by-passed that contract which she herself
agreed to and contacted ERA. And then stated that
they gave her or advised her to call directly to the
executive office.
Q. By the ERA do you mean the Equal Rights
Commission of Nevada?
A. Yes, sir.
B. Toni Linebarger
1. Background
Linebarger was employed by the Respondent from
May 27, 1978, until she was terminated after she took a
leave of absence on October 2. The General Counsel did
not show that Linebarger was conspicuous by her union
activities or that she engaged in any protected activity
prior to her layoff in June.
2. The alleged unfair labor practice involving
Linebarger
The complaint alleges that Linebarger was laid off on
June 6 for her union or concerted activities, and since
that time the Respondent has refused to reinstate Line-
barger. At the hearing, the General Counsel stipulated
that Linebarger was reinstated on August 27 and aban-
doned the reinstatement aspect of the complaint.
Curtiss testified that Linebarger was laid off when her
position was eliminated as a result of a sharp downturn
in business in the summer of 1979. At the same time,
Curtiss eliminated her own graveyard shift and com-
menced working the swimming pool on days. 9 At the
time, Linebarger was the least senior waitress and no
full-time positions remained available. Nevertheless, Cur-
tiss offered Linebarger employment as an extra employee
for 3 days a week which was to include one day shift
and two night shifts.
Shortly after Curtiss offered Linebarger work as an
extra employee on June 6, Linebarger called the Union
and spoke 'with Ted Tedesco, a union representative.
Tedesco advised Linebarger not to return to work as an
extra employee because she would lose her seniority as a
permanent employee. Instead, Tedesco suggested that
Linebarger agree voluntarily to work only 3 days a week
as a permanent employee. Armed with this advice, Line-
barger returned to Curtiss and told her that it was
Tedesco's view that she would lose all of her seniority
by agreeing to work as an extra. Linebarger testified that
Curtiss' initial response was to inquire why Linebarger
had called the Union. When Linebarger told Curtiss that
she was double checking what Curtiss had told her, Cur-
tiss told Linebarger that her best bet was to stay away
from the Union, that Linebarger should trust her and she
would be back to work in a few weeks; and that there
was no need to call the Union. When Linebarger persist-
ed in working only on the basis that she remain a perma-
nent employee, Curtiss called Tedesco and spoke with
him for a few minutes. Following this phone call, Curtiss
told Linebarger that she would be hired every Monday
as a permanent employee and laid off every Friday. Lin-
ebarger testified that Curtiss told her not to go near the
Union if she did not want to go on the list upstairs with
Bowe and another waitress. Curtiss denied that she ever
told Linebarger not to go to the Union.
Linebarger worked the assigned night shifts on June
13 and 14, and then she was advised by Curtiss that the
previously agreed upon arrangement was not satisfactory
because there was a need for a second person on the
night shift on a full-time basis. Linebarger reminded Cur-
tiss that the night shift was her bid shift and if there was
19 As explained by Curtiss, by eliminating her own shift, she went lo
the bottom of the list, so far as the opportunity to select a work station
was concerned. However, inasmuch as her seniority date preceded Line-
barger's, she would have the first opportunity as between the two of
them to select a work station
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a need for someone fulltime on that shift Curtiss should
be working that shift. In explaining why she was not
going to return to the night shift, Curtiss told Linebarger
that the bosses wanted her on the day shift because she
had to get rid of two girls and straighten up the day
shift. Linebarger testified that Curtiss told her the two
girls she was supposed to get rid of were "Bowe and
Marge," and that the reason she was supposed to get rid
of Bowe was because Bowe went to the Union a lot and
was not doing her work. Linebarger then told Curtiss
that if she did not go back to the night shift, she was
going to go to the Union. Curtiss responded by telling
Linebarger, "[F]or your own good, stay away from the
union and just do what I'm asking you. I know its a big
favor but do it for me." Linebarger offered to resolve
the stalemate between the two at that time by requesting
Curtiss to give her any of the extra work which came
about on the day shift. Curtiss agreed to do that.
On July 12, Linebarger went to the hotel and discov-
ered that two new waitresses had been employed to
work in the slot machine area and in the swimming pool
area. Linebarger then telephoned Curtiss, reported what
she had seen and asked why she had not been called for
the extra work on the day shift. Curtiss responded by
saying that she did not think Linebarger would be inter-
ested in that work. Linebarger became upset at Curtiss'
response and told Curtiss that she should have called
her; that she was going to file a grievance, that Curtiss
had played around with her long enough; and, that she
was going to get her shift back. At this time, Curtiss re-
sponded by telling Linebarger that she had never really
ever been made a permanent employee and that she
could take her shift away from her at anytime she
wanted. 20 Linebarger also testified that Curtiss warned
her to stay away from the Union as they would only
cause her more problems; that she would end up on the
list upstairs with the others; and that she should quit
breathing down her neck and find a job at another hotel.
The conversation terminated when Linebarger hung up
the phone. That same day, Linebarger filed a grievance.
In the evening of July 12, Curtiss called Linebarger at
home and told her that she could give her 3 or 4 days at
the pool and then everything would get straightened out.
Linebarger agreed to take the work but inquired if she
would retain her seniority. Linebarger testified that Cur-
tiss told her, "No, Toni-I'll tell you what. Come in to-
morrow at 10. We'll start you out fresh as a new hire
date but you've got to drop your grievances." When
Linebarger told Curtiss that she had to contact the
Union to let them know what was arranged, Curtiss told
her that the bosses had said that she was not to call the
Union and that she was not to speak to the Union again.
Linebarger insisted that she had to call the Union to let
them know what was going on and Curtiss responded to
this insistence by telling Linebarger that she (Curtiss)
had been told to tell her that she had an hour to decide
and that if she did not want to drop the grievance, they
0o In apparent anticipation that the Respondent would attempt to es-
tablish that Linebarger never was a permanent employee, the General
Counsel elicited testimony from Lee that he had observed the paper
work making Linebarger a permanent employee while he was employed
as the assistant food and beverage director.
did not want to see her face in the hotel again. Curtiss
concluded the call by telling Linebarger to think about it
and call her back in an hour. Linebarger never called
back. As noted above, Lineberger was returned to her
former position on August 27. According to Kelly, this
resulted from a meeting between Tedesco and Kelly
over Linebarger's grievance.
Curtiss claims to have offered Linebarger three or four
shifts per week if another employee were off or called in
sick but that it would have involved a couple of day
shifts and a couple of night shifts. When Linebarger
learned that a new employee was being utilized for the
pool area on July 12, Curtiss claims that she told Line-
barger that if she wanted the pool work she could have
it and that Linebarger told her she would check with the
Union and call her back, but Linebarger never did call
back. Curtiss denied telling Linebarger, at anytime, to
stay away from the Union or not to file a grievance, re-
questing that she withdraw a grievance, or offering her a
specific schedule if she would withdraw a grievance.
C. Concluding Findings
1. The discrimination against Bowe
I am satisfied that the evidence presented in support of
the General Counsel's prime facie case with respect to
Bowe establishes the Respondent's predisposition to rid
itself of Bowe because of her repeated successful use of
the Union's grievance procedure to thwart the Respon-
dent's desire to terminate her. In view of the case of the
General Counsel, the burden was clearly shifted to the
Respondent to go forward with the evidence showing
that the various actions it took against Bowe were moti-
vated for lawful reasons. 21
In my judgment, the Respondent has shown that only
three of the numerous adverse actions taken with respect
to Bowe were motivated for lawful purposes. Thus, Cur-
tiss' testimony that she scheduled Bowe on a contingen-
cy basis for the swimming pool station on May 28 ap-
pears to have been motivated by legitimate business con-
siderations to provide adequate work in the event work
in the casino became too slow. As there is no evidence
to rebut Curtiss' assertions concerning the contingency
nature of this assignment, and in view of the fact that
Bowe never actually worked the swimming pool station,
I cannot perceive how this action represents a more
onerous assignment. Accordingly, I shall recommend
that this allegation be dismissed.
I shall likewise recommend that the allegation pertain-
ing to the July 14 reprimand be dismissed. In this regard,
Kelly's credible testimony shows that the reprimand re-
sulted from Bowe's obdurate insistence on having some-
thing in writing. In view of this fact, any conclusion that
the Respondent's action pertaining to the July 14 inci-
dent was unlawfully motivated would have to be
grounded on the theory that Curtiss provoked the inci-
dent. Such a conclusion is not warranted by the evidence
in this record.
21 As previously noted, I find the General Counsel failed to prove a
prima facie case with respect to Lee's reprimand of Bowe on March 25
for excessive talking.
62
HACIENDA HOTEL AND CASINO
I am also satisfied that Kelly's warning to Bowe for
using the telephone on October 5 was not motivated by
any unlawful intent. The clear thrust of Kelly's testimo-
ny was that when he asked Bowe about the October 5
phone call she made no mention to him that she was on
break at the time, and that he did not learn of Bowe's
contention in this regard until several days later. Al-
though Bowe asserted that she did tell Kelly that she
was on break, she further asserted that Geary and
Knight were present during this conversation with Kelly,
but the General Counsel did not seek to elicit testimony
from either of them to contradict Kelly's testimony. As I
was equally impressed with the credibility of Bowe and
Kelly, I find the General Counsel has failed in his burden
of establishing by a preponderance of the evidence that
Kelly was motivated for unlawful reasons in issuing the
October 5 warning to Bowe concerning the making of a
phone call while on duty, and I shall recommend, there-
fore, that this allegation be dismissed.
With respect to the remaining adverse actions taken
against Bowe, I am satisfied that the record supports the
allegations of the complaint. The evidence of the Gener-
al Counsel establishes the Respondent's desire to rid itself
of Bowe because of her grievance-filing activity and this
evidence serves as the only explanation in this record for
the March 5 discharge. The Respondent made no effort
to support the statement on the termination notice that
Bowe was being terminated for patronizing one of its
bars while on duty notwithstanding that it presumably
could have easily done so with the three employees' ti-
mecards of that date if, in fact, that were the case. On
the contrary, the Respondent appears to have abandoned
that reason within a week when at the grievance meeting
it asserted that the three waitresses were discharged for
violating the "unwritten rule" against patronizing the bar
in uniform. In the instant hearing, the Respondent chose
not to offer even that explanation for the March 5 dis-
charges. Knight's bewilderment at this explanation at the
grievance meeting is certainly understandable in view of
the fact that the Respondent's March I policy memo
makes no mention of patronizing the Respondent's facili-
ties in or out of uniform and the discharges occurred
only 4 days later. Moreover, the fact that the discharge
occurred without prior warning and appears to have per-
plexed even the head of the department in which Bowe
worked further suggests that the various out-of-court
reasons given for the March 8 discharges were pretexts
to hide the Respondent's real desire to rid itself of the
troublesome Bowe. Having concluded that Bowe's dis-
charge on March 5 was unlawfully motivated, the fur-
ther conclusion that the Respondent unlawfully dis-
charged Knight and Olsen at the same time over the
same incident is likewise warranted, as the only plausible
explanation for their discharges is that it was done to
lend verisimilitude to Bowe's discharge. While it is true
that the discharges of Knight and Olsen were not alleged
in the charges or in the complaint, the issues concerning
their discharges were one and the same with Bowe's dis-
charge, and the entire matter was fully litigated. Hence,
to withhold remedial action simply because Bowe initiat-
ed the present action to seek redress for her individual
wrong would ignore the public policy requiring that all
unfair labor practices shown to exist be remedied. Ac-
cordingly, I find that the Respondent violated Section
8(a)(l) and (3) of the Act by its discharge of Bowe,
Knight, and Olsen on March 5, and I shall recommend
an appropriate remedy for all three individuals. Frank B.
Smith d/b/a Little Lump Coal Co., 144 NLRB 1499
(1963).
I further find that the Respondent violated Section
8(a)(1) and (3) of the Act as a result of Curtiss' action in
splitting Bowe's work station on March 21. The General
Counsel's case is replete with evidence that Curtiss told
employees that the Respondent's management told her to
get rid of Bowe when she was appointed head cocktail
waitress. Curtiss' testimony that Bowe's station was split
the day following Curtiss' ascendancy to the head wait-
ress' position was not supported by the testimony of the
section bosses who allegedly complained about Bowe's
performance nor was the lack of such corroborating evi-
dence explained. The inference that no such corroborat-
ing evidence exists is especially warranted where, as
here, Bowe was subsequently restored to both portions
of her station where she has worked for the 6-month
period prior to the hearing without any apparent com-
plaint.
With respect to the allegation concerning the March
25 warning to Bowe for arriving at her station late, I am
satisfied that Curtiss' true motive was to further the in-
struction she had been given to get rid of Bowe. The
evidence fully supports Bowe's assertion that Curtiss, in
fact, gave Bowe permission to go to the cage to get tape
and repair her hanger. Curtiss' action in subsequently is-
suing a warning to Bowe is completely inexplicable by
any evidence other than that showing that she was moti-
vated by unlawful reasons in her conduct toward Bowe.
Accordingly, I find the Respondent violated Section
8(a)(l) and (3) of the Act as a consequence of Curtiss'
warning of March 28 to Bowe. Although there is evi-
dence that Lee subsequently rescinded that warning,
Horner testified that it continued to be effective. In this
circumstance, I find that an appropriate remedial order is
necessary.
The General Counsel established through the testimo-
ny of Lee and Knight that Lee's recommendation of
Bowe for the position of assistant head cocktail waitress
was rejected because of her grievance-filing activity.
Horner's testimony was the sole evidence of the Respon-
dent in defense of this action. Although Horner's testi-
mony supports the conclusion that he believed both
Bowe and Knight were not qualified for the positions
Lee had recommended them for, on the basis of their at-
tendance problems, there is no evidence that Bowe was
ever reprimanded for her attendance record. But, entire-
ly apart from this fact, Horner's testimony discloses that
Lee only consulted him for advice concerning the selec-
tion of the two supervisory positions and that he is not
responsible for hiring individuals for those positions.
Hence, the Respondent has, in effect, presented no expla-
nation as to why Lee's actual recommendation of Bowe
was rejected and, thus analyzed, this record is simply
devoid of any explanation by officials of the Respondent
who did reject Lee's recommendation of Bowe. The sum
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
total of the Respondent's argument with respect to this
issue in its brief is as follows:
This allegation is beyond belief. In view of Bowe's
discharge for insubordination in 1978, which was
not contested, her numerous warnings and the many
defiant and unreasonable challenges to management,
it was manifestly proper that Bowe not receive a
promotion to a supervisory position.
Until the incident for which Kelly properly warned
Bowe in July-nearly 3 months after Lee's recommenda-
tion had been rejected-this record is devoid of evidence
that Bowe made any "defiant and unreasonable chal-
lenges to management" other than the grievances she
filed with the Union. Moreover, the sole evidence in this
record of an uncontested discharge in 1978 for insubordi-
nation is the following brief exchange during Bowe's
cross-examination:
Q. You mention that you were discharged in
August of 1978. Was that for refusing a direct order
from one of your supervisors?
A. That was the charge, yes.
Impliedly, the Respondent's contention appears to be
that this limited evidence merits the finding that Bowe
was, in fact, insubordinate. Such a finding is totally un-
warranted in view of Bowe's response to the question
and where, as here, the evidence on direct examination
established that Bowe was reemployed following that
discharge after filing a grievance. Accordingly, I find
that the preponderance of the evidence here establishes
that the Respondent violated Section 8(a)(1) and (3) of
the Act by refusing Lee's recommendation that Bowe be
promoted to the assistant head cocktail waitress position
because of her grievance-filing activities.
The Rule #12 reprimand dated October 5 must be ana-
lyzed by focusing the inquiry on the proscription con-
tained in the reprimand as amplified by Kelly's testimo-
ny. By this approach, it becomes immediately clear that
the Rule #12 reprimand reflects in reality an extremely
broad proscription against employees, either individually
or concertedly, from initially seeking recourse with re-
spect to matters pertaining to wages, hours, or working
conditions through any means other than the Union. Pre-
sumably the policy expressed in the Rule #12 reprimand
would even preclude an employee from filing a charge
before this agency before seeking redress under the con-
tractual grievance procedure. The overly broad restric-
tion reflected by the Rule #12 reprimand violates Sec-
tion 8(a)(1) of the Act. Dover Garage II, Inc., 237 NLRB
1015 (1978). In view of the foregoing conclusion, I find
it unnecessary to consider whether or not the Rule #12
reprimand violated the Act on the basis of the rationale
of the Board's decision in Alleluia Cushion Co., Inc., 221
NLRB 999 (1975), and its progeny.
2. The discrimination against Linebarger
Although the complaint alleges that the Respondent
discriminatorily laid Linebarger off on June 6, the Gen-
eral Counsel appears to have abandoned that allegation
in its brief in favor of a finding that the Respondent dis-
criminatorily refused to recall Linebarger after she filed
a grievance and unlawfully conditioned her reemploy-
ment, until August 27, upon her withdrawal of the griev-
ance she filed with the Union. I find that the General
Counsel's position is amply supported by the credible
evidence of Linebarger concerning her telephone con-
versations with Curtiss. Linebarger impressed me as
making an honest effort to objectively state her recollec-
tion of her telephone conversations with Curtiss after she
discovered new employees had been employed at the
hotel, and after she had filed a grievance. By contrast,
Curtiss' testimony about her transactions with Line-
barger on these occasions is confused and obviously in-
complete. Moreover, I find it most unlikely that Line-
barger would have delayed returning to work until
Tedesco resolved her grievance with Kelly had Curtiss'
July 12 offer been unconditional as Curtiss testified, or
that she would file a charge. Accordingly, I find the Re-
spondent violated Section 8(a)(1) and (3) of the Act be-
tween July 12 and August 27 by conditioning Line-
barger's reemployment upon the withdrawal of her July
12 grievance.
3. The restraint, coercion, and interference
In its brief, the General Counsel contends that the Re-
spondent violated Section 8(a)(l) of the Act by the fol-
lowing statements of Curtiss to employees:
(I) the statement to Bowe that "upstairs want
you To] take a hike"
(2) the statement to Gant that she was going to
get rid of the day shift troublemakers including
Bowe
(3) the statement to Linebarger that she should
stay away from the Union or she would go on a list
with the others upstairs
(4) the statment to Linebarger that the Respon-
dent did not want her talking to the Union
(5) the statement to Geary that management
wanted to get rid of Bowe because she won some
grievances.
The various witnesses of the General Counsel who testi-
fied in support of the foregoing statements by Curtiss im-
pressed me as truthfully attempting to recount their con-
versations with Curtiss, wherein these remarks were ut-
tered. By contrast, Curtiss' testimony was often vague,
occasionally hostile, and she was demonstrably uncom-
fortable throughout the course of her testimony. In sum,
Curtiss failed to inspire me with confidence that her den-
ials of these similar statements of several different wit-
nesses were honest and straightforward. Accordingly, I
find that the Respondent violated Section 8(a)(1) of the
Act by the foregoing statements of Curtiss.
IV. 'riE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent described
above in section III, A through C, above, occurring in
connection with the operations of the Respondent de-
scribed in section I, above, have a close, intimate, and
64
HACIENDA HOTEL AND CASINO
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to disputes
burdening and obstructing commerce and the free flow
of commerce.
v. THE REMEDY
Having concluded that the Respondent has violated
the Act in the manner specified above, I shall recom-
mend that the Respondent be required to cease and desist
therefrom and to take certain other affirmative action de-
signed to effectuate the purposes of the Act. In this latter
regard, I recommend that the Respondent rescind the
unlawful warnings dated March 25 and October 8, 1979,
which it issued to Willow Bowe. I further recommend
that the Respondent be ordered to expunge from its re-
cords any reference to such warnings. I also recommend
that the Respondent be required to make Willow Bowe,
Sharlene Knight, and Diane Olsen whole for the losses
they incurred as the result of their discharge on March 5;
that the Respondent be required to make Willow Bowe
whole for its unlawful refusal to promote her to the as-
sistant head cocktail waitress position; that the Respon-
dent make Willow Bowe whole for any losses incurred
from the unlawful splitting of her station on March 21;
and that the Respondent be required to make Toni Line-
barger whole for the losses she incurred as a result of its
failure to employ her between July 12 and August 27,
1979.22 It is recommended that backpay be computed in
the manner prescribed by the Board in F. W Woolworth
Company, 90 NLRB 289 (1950), and that interest be in-
cluded on the amounts due as specified by the Board in
Florida Steel Corporation, 231 NLRB 651 (1977), and
Olympic Medical Corporation, 250 NLRB 146 (1980), and
see, generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962). It is also recommended that Willow Bowe be
offered the position of assistant head cocktail waitress,
displacing, if necessary, any individual employed in that
position since April 22, 1979. Finally, it is recommended
that the Respondent be ordered to post the notice to em-
ployees attached hereto as the Appendix and that the
Respondent notify the Regional Director for Region 31
of the steps it has taken to comply with the recommend-
ed Order entered hereinafter.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce or a business affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Willow Bowe, Sharlene Knight, and
Diane Olsen on March 5, 1979; by splitting Willow
Bowe's work station on March 21, 1979; by issuing a
written reprimand to Willow Bowe dated March 25 for
reporting late to her station; by refusing to promote
Willow Bowe to the position of assistant head cocktail
waitress on or about April 22, 1979; and by conditioning
Toni Linebarger's reemployment between July 12 and
22 In so recommending, it is my finding that Toni Linebarger's regular
position no longer existed, but that she had expressed a clear willingness
to work available day shifts.
August 27 on Linebarger's withdrawal of a grievance
she filed with the Union, the Respondent has violated
Section 8(a)(3) of the Act.
4. By issuing a written reprimand to Willow Bowe
dated October 5 for seeking the assistance of the Nevada
Equal Rights Commission, rather than following the con-
tractual grievance procedure; by advising an employee
that the Respondent wanted her to quit her employment
because she filed grievances; by advising an employee
that the Respondent intended or wanted to get rid of em-
ployees for filing grievances; by threatening an employee
with reprisals if she did not stay away from the Union;
and by advising an employee that the Respondent did
not want her talking to the Union, the Respondent has
violated Section 8(a)(1) of the Act.
5. By issuing Willow Bowe a written reprimand dated
March 25 for excessive talking; by assigning Willow
Bowe to a separate work station contingent upon the
lack of business at her regular station on May 28; by issu-
ing a written reprimand dated July 14, 1979; and, by issu-
ing a written reprimand to Willow Bowe dated October
6, 1979, for using the telephone while on duty, the Re-
spondent did not violate the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the Act and upon the
foregoing findings of fact, conclusions of law, and the
entire record herein, I hereby issue the following recom-
mended:
ORDER2 3
The Respondent, Hacienda Hotel and Casino, Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging, refusing to promote or reemploy, as-
signing to less desirable work stations, reprimanding, or
threatening with reprisals, any of its employees because
they choose to file and process grievances, or refuse to
withdraw grievances already filed, pursuant to any col-
lective-bargaining agreement applicable to them.
(b) Advising employees against, or threatening em-
ployees with reprisals for, talking with union representa-
tives.
(c) Reprimanding employees because they seek assis-
tance with matters related to their wages, hours, and
working conditions from any source other than their col-
lective-bargaining representative.
(d) In any like or related manner, interfering with, re-
straining, or coercing employees, or discriminating
against employees, because they engage in the activities
of a labor organization or otherwise choose to exercise
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
2 In the event no exceptions are filed a pro,.ided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Iloard, the
findings, conclusions, and recommended Order herein hall as provided
in Sec. 102 48 of the Rules and Regulations, he adopted bh the Hoard and
become its findings, conclusions, and Order. and all obhjection, thereto
shall be deemed v.arised for all purposes
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Rescind the written reprimands issued to Willow
Bowe dated March 25 and October 5, 1979, which have
been found unlawful herein and expunge any reference
to said reprimands from its records.
(b) Offer Willow Bowe the position of assistant head
cocktail waitress displacing, if necessary, any individual
who was promoted to that position on or after April 22,
1979.
(c) Make Willow Bowe, Sharlene Knight, Diane
Olsen, and Toni Linebarger whole for the losses they
suffered as a result of the discrimination against them in
the manner specified in the section of this Decision enti-
tled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or useful to a determination of the
amount of backpay due under the terms of this Order
and the propriety of any offer to Willow Bowe in order
to comply with paragraph 2(b) of this Order.
(e) Post at its hotel and casino in Las Vegas, Nevada,
copies of the attached noticed marked "Appendix."24
Copies of such notice, to be furnished by the Regional
Director for Region 31 of the Board, shall be duly
signed by the Respondent's authorized representative,
and be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, includes all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint insofar as
it pertains to the matters specified in paragraph 5 of the
section entitled "Conclusions of Law" be, and the same
hereby is, dismissed.
24 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice so that you
will be fully informed about this matter.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT advise any of our employees not
to talk with union representatives or threaten any of
our employees with reprisals for talking with union
representatives.
WE WILL NOT reprimand or restrict any of our
employees for seeking assistance with matters deal-
ing with their wages, hours, and working conditions
from sources other than their collective-bargaining
representative.
WE WILL NOT in any like or related manner in-
terfere with, restrain, coerce, or discriminate against
any of our employees because they choose to file
and process grievances, engage in union activities,
or exercise any of the other rights which are guar-
anteed to them by Section 7 of the National Labor
Relations Act.
WE WILL rescind the written reprimands issued
to Willow Bowe for reporting late to her work sta-
tion on March 25, 1979, and for seeking assistance
from the Nevada Equal Rights Commission on Oc-
tober 5, 1979, and WE WILL expunge any reference
to those reprimands from our records.
WE WILL offer Willow Bowe the position of as-
sistant head cocktail waitress, displacing, if neces-
sary, any individual appointed to that position after
April 22, 1979.
WE WILL make Willow Bowe, Sharlene Knight,
and Diane Olsen whole for the losses they incurred
as a result of their discharge on March 5, 1979, to-
gether with interest thereon.
WE WILL make Willow Bowe whole for the
losses she incurred as a result of our failure to pro-
mote her to the position of head cocktail waitress
on April 22, 1979, together with interest thereon.
WE WILL make Toni Linebarger whole for the
losses she incurred as a result of our refusal to
reemploy her between July 12 and August 27, 1979,
together with interest thereon.
HACIENDA HOTEL AND CASINO
66