Harrah's Club

National Labor Relations Board - Board Decisions

Aug 15, 1963

143 N.L.R.B. 1356 (N.L.R.B. 1963)

1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrah 's Club and Reno Local Joint Board , Bartenders, Culi-
nary, and Hotel Service Workers , Hotel and Restaurant Em-
ployees and Bartenders International Union . Case No. S0-CA-
1396. August 15, 1963
DECISION AND ORDER
On April 22, 1963, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel and the Charging Party filed exceptions to the
Intermediate Report. The General Counsel filed a brief in support of
his exceptions and the Respondent filed a brief in support of the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modification.
The Trial Examiner found that Respondent's rule prohibiting the
wearing of emblems, including small, neat, and inconspicuous union
buttons, on the uniforms of its waiters did not violate Section 8 (a) (1)
of the Act. The Trial Examiner would distinguish our decision in
Floridan Hotel of Tampa, Inc.,' primarily on the basis of his findings
that the rule was instituted, without reference to any union activity
some years prior to the occurrences herein, and that the rule applied
not only to union insignia but to insignia of other groups as well2
These findings, however, do not constitute "special circumstances" 3
sufficient to justify a rule which deprives employees of their right to
wear union insignia at work. Nor does the record reveal any other
"special circumstances" showing that such a rule is necessary to main-
tain production and discipline. There is no evidence that the union
pins caused customer complaints, occasioned any loss of business to
Respondent, caused friction between union and nonunion employees,
or detracted from the dignity of Respondent's business operation.
1137 NLRB 1484, enfd. as modified on other grounds 318 F. 2d 545 (C A 5)
2 It is not necessary to decide whether the record supports these findings by the Trial
Examiner.
3 Floridan Hotel of Tampa, Inc ., supra, and cases cited in footnote 5 of that decision.
143 NLRB No. 127.
HARRAH'S CLUB 1357
Accordingly, for the reasons expressed in our Floridan decision, we
find that Respondent 's rule as applied to wearing union insignia,
violates Section 8 (a) (1) of the Act
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By maintaining a rule prohibiting its employees from wearing
union buttons and insignia, and threatening to discharge or otherwise
discipline employees for violations thereof, Respondent has interfered
with, restrained , and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices within the meaning of the Act by acts of interference, re-
straint, and coercion, it will be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Harrah's Club,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Maintaining a rule prohibiting its employees from wearing
union buttons or insignia , or threatening to discharge or otherwise
discipline employees for violations thereof.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist Reno
Local Joint Board , Bartenders, Culinary, and Hotel Service Workers,
Hotel and Restaurant Employees and Bartenders International Un-
ion, or any other labor organization , to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, or
to refrain from any and all such activities.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its establishment at Stateline, Nevada, copies of the
attached notice marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by Respondent's representative, be posted
by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
MEMBER LEEDOM, dissenting :
I would not assert jurisdiction.
The Respondent is engaged in the business of operating gambling
casinos. As I have stated in other cases,' I do not believe it effectuates
the policies of the Act for the Board to expend its time and funds
resolving disputes affecting local enterprises in the amusement in-
dustry. The fact that the parties have agreed to the jurisdiction of
the Board over this type of enterprise cannot in my opinion support
the assertion of jurisdiction where it ought not to be asserted. Nor
does such an agreement warrant the conclusion that the assertion
of jurisdiction would effectuate the policies of the Act when that is
not the case.
As I would dismiss the complaint for the foregoing jurisdictional
reasons,' I need not consider whether the Trial Examiner correctly
resolved the issues raised by the complaint.
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
G See, e.g ., my dissenting opinion in Walter Carl Ray, et at, d/b/a Ray, Davidson d Ray,
131 NLRB 433, 436.
6 At the very least, I would remand this case for further hearing so that evidence may
be spread on the record as to the control exercised by the State of Nevada over Respond-
ent's operations. See Hialeah Race Course, Inc., 125 NLRB 388.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations:
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
HARRAH'S CLUB 1359
WE WILL NOT maintain a rule prohibiting our employees from
wearing union buttons or insignia, or threaten to discharge or
otherwise discipline our employees for violations thereof.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce, our Employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
Reno Local Joint Board, Bartenders, Culinary and Hotel Serv-
ice Workers, Hotel and Restaurant Employees and Bartenders
International Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
HARRAH'S CLUB,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate with the Board's Regional Office,
703 Market Building, 830 Market Street, San Francisco, California,
94102, Telephone No. Yukon 6-3500, Extension 3191, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard by Trial Examiner David
F. Doyle in Zephyr Cove, Nevada, on November 7 and 8, 1962, on complaint
,of the General Counsel and answer of the Respondent. The issue litigated was
whether the Respondent had violated Section 8(a) (1) of the Act by certain acts and
conduct by particular persons on its supervisory staff. These acts will be more
fully described hereinafter.'
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF HARRAH'S CLUB
Harrah's Club is a Nevada corporation with its main office and principal place
of business located in Reno, Nevada. The Company has for several years past been
engaged in the business of owning and operating gambling casinos and restaurants
located in Reno and Stateline, Nevada. The operations of the Company at State-
line, Nevada, are the only operations here involved.
I In this report Reno Local Joint Board, Bartenders, Culinary, and Hotel Service Work-
ers, Hotel and Restaurant Employees and Bartenders International Union is referred to as
the Union ; Harrah's Club as the Company ; and the premises operated by Harrah's Club
at Stateline, Nevada, as the Club or Harrah's; the National Labor Relations Board as
the Board; the General Counsel of the Board and his representative at the hearing as
the General Counsel ; and the Labor-Management Relations Act, as amended, as the Ac't.
It should also be noted that all dates in this report are in the year 1962, unless specified
.otherwise.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past fiscal or calendar year, the Company, in the course and conduct
of its business , purchased goods, materials , and services valued in excess of $50,000
directly from places and points located outside the State of Nevada . During the same
period of time, the Company , in the course and conduct of its business, sold
and distributed goods and services, the gross value of which exceeded $500,000.
It is conceded , and I find, that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that the assertion of jurisdiction
is warranted.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded and I find that the Union is, and at all times material has been , a labor
organization within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The complaint alleges that the Union and the Company are parties to an effective
labor agreement which provides in article 1, section 4, that business representatives of
the Union may enter the premises of the Company to investigate the standing
of employees or job conditions.
The complaint then alleges that while the Union's business agents were lawfully
upon the premises of the Company pursuant to the agreement, the Company caused:
(1) the ejection of Junior Business Agent Bills from the employees cafeteria on
July 7; (2) the ejection of Business Agent Warren from the same employee cafeteria
on August 3; (3) security guards or supervisors to accompany Warren while he met
with employees in the Company's cafeteria; and (4) surveillance of Warren when
he was on the Company's premises.
The complaint further alleges that the Company promulgated and enforced a rule
forbidding its waiters and waitresses employed in the South Shore Room from wearing
union buttons while at work. The General Counsel contends that each of the above
acts constitutes a violation of 8 (a) (1) of the Act.
The answer of the Company denies the commission of unfair labor practices, and
sets up the same article 1, section 4, of the agreement in its defense. At the hearing,
the Company contended that the named business agents came upon its premises for
purposes other than those specified in the labor agreement, and, in effect, used the
Company's premises as an office for the conduct of all types of union business, not
authorized by the agreement, and that the Company was well within its rights in taking
the action of which the General Counsel complains.
It is undisputed that the contract pleaded in both the complaint and answer became
effective on December 1, 1960, and by its terms ran to November 30, 1962, thereby
covering the period of time alleged in the complaint.
Article 1, section 4, of the contract reads as follows:
SECTION 4. BUSINESS REPRESENTATIVES
Business Representatives of the Union shall be permitted to investigate the
standing of employees or job conditions at any time ; provided , however, that no
interviews shall be held during the rush hours . Such interviews shall not interfere
with the employees ' service to the customers.
Background and Undisputed Facts
Stateline, Nevada, as its name implies, is a small town located on the Nevada
side of the State line between that State and the State of California. It is located
on the shores of Lake Tahoe, and is at the center of the world-famous resort area
which is known as the Lake Tahoe area. One of the best known places of entertain-
ment and amusement in this area is Harrah's Club located at Stateline, Nevada.
Some brief description of the operation and physical plant of Harrah's Club is neces-
sary to a complete understanding of the issues herein.
Harrah's Club is composed of a multimillion dollar complex of buildings devoted
to the entertainment of its patrons. The main building houses a large casino devoted
exclusively to gambling by means of all kinds of games of chance, such as craps,
roulette, blackjack, keno, baccarat, and bingo. The casino also has many rows of
slot machines. The casino proper will accommodate upward of one thousand
patrons while they are engaged in gaming or watching others at play. Adjacent
to the casino are bars of conventional type, and other bars where entertainment is
also presented. In the same building there are small snackbars and a large coffeeshop
which will accommodate other hundreds of patrons. In the same building the South
HARRAH'S CLUB 1361
Shore Room is located. This room is a large theater-restaurant which will accom-
modate approximately 750 patrons. The room faces toward a large full-scale stage,
comparable in size to any of the large theater stages in New York. In this room the
Company offers dinner to its patrons together with entertainment by the highest
paid stars of "stage, screen and television." The decor, service, food, and entertain-
ment furnished in the South Shore Room are on a par with similar services rendered
by the finest theater-restaurants in the world. In addition, the building has such
incidental facilities as are necessary in the accommodation of large numbers of people,
such as restrooms, first-aid rooms, and large parking lots. The facilities described
above are all in what might be termed the "public areas" of the Club.
As might be expected in such a large operation, there are many nonpublic
areas in the Club devoted to the maintenance and operation of the public facilities.
There are the usual places devoted to the production of power, light, heat, and air-
conditioning. There are lockerrooms and washroom facilities for all employees
and there are rooms for storage of food, equipment, scenery, etc.
At Lake Tahoe the Company employs between 1,500 to 2,000 employees of
all types. Of that number about 500 employees are engaged in the culinary trades,
which include waiters, waitresses, busboys, bartenders, cocktail waitresses, etc. For
the convenience of employees and the Club, the Company maintains two employee
cafeterias on the basement level of the main building. One cafeteria is known as
the culinary employees cafeteria because it is used exclusively by culinary employees
who receive such meals as they wish, pursuant to the contract with the Union, as a
prerequisite of the job. A second cafeteria is used by other employees who must pay
for such food as they order. The two cafeterias are side by side on the lower level
and both open from a common hallway. Adjacent to the cafeterias is a TV room
which all employees may use as a lounge. All of these areas and the cafeterias are in
the portion of the building not open to the public.
Harrah's Club at Lake Tahoe is open 24 hours a day, year round. Employees
work in three 8-hour shifts.
It should be noted that gambling is legal under license of State authorities in
Nevada. Also, in labor relations Nevada is a so-called "right to work" State,
one in which union-security contracts are banned by State statute.
For approximately 10 years prior to the issuance of the complaint herein, the
Company had been a member of an association of employers known as Lake Tahoe
Employers, who had a contract with a group of unions known as Reno Joint Executive
Board of Hotel and Restaurant Employees and Bartenders International Union,
namely, Culinary Workers Union Local 45 and Bartenders Local No. 86. The most
recent contract between the parties has been described previously. Some months
prior to September 1962, approximately sometime in July, the Company gave a
timely notice of its withdrawal from the Association and from the multiemployer
unit.
From all the evidence, it is clear that by the spring of 1962 the Union had become
dormant, if not moribund. A new slate of officers was elected in April, and they
hired Alvin Warren as business agent. Some of his efforts on behalf of the Union
will be described hereinafter.
A few months after Warren's advent on the scene, Harrah's Club hired Robert
Brigham as employee relations counsellor. He entered upon his duties on July 28.
At the hearing it was stipulated that the following individuals occupied supervisory
positions with the Company: Kenneth E. Clever, assistant club manager; Kenneth
Watkins, shift manager; Ronald L. Schultz, assistant food and beverage shift super-
visor; John Petrinovich, food and beverage manager; Clifford Kehl, maitre d'hotel
in the South Shore Room; and Robert Brigham, employee relations counsellor.
The Activities of Warren; Company Countermeasures; the Continuing
Controversy Over Interpretation of the Contract
From all the evidence it appears that the relationship of the Union and the Com-
pany through the years was uneventful until approximately June 1962. It is also
apparent that the relationship of the Company to the union representatives had been
quite normal, and that the contract provision which gave business agents of the
Union the right to enter on the premises of the Company for certain purposes had
given rise to no particular disagreements until the same date.
This amicable relationship was soon changed into a running squabble between
Warren on one side and the supervisors of the Company on the other. As to the
various incidents of this controversy both Warren and the supervisors testified.
Though there are conflicts in the testimony on minor points, there is no disagree-
ment as to the positions of the parties in this controversy and the action which each
took.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the testimony of the supervisors, which I credit, and from certain
very significant admissions which Warren made in the course of his cross-
examination, that Warren believed the labor agreement gave him an unlimited right
to enter on the premises of the Company, to conduct any union activity which he
desired, for such a length of time and at such hours as he chose. It is not denied
that Warren entered on his new duties with vigor. He spent a good deal of time in
both the public and the nonpublic areas of the Club. In the nonpublic area he spent
his time in the culinary employees cafeteria, and in the public area he made his
headquarters at the keno bar. This is an area where there are may small tables and
chairs which patrons may use when they play keno. It became Warren's custom to
meet with night-shift workers in the keno bar area. In these two areas, principally,
he carried on his union business which included the solicitation of employees to
membership in the Union, the issuance of union membership cards, receipts for dues,
the collection of dues and initiation fees, and the issuance of travel cards. When
Warren came to the Club, he had with him a large dues receipt book in which he
carried such papers as were needed in his activities. He also discussed union business
matters and union affairs with the employees in both the public and nonpublic areas
of the Club. In the course of his testimony Warren said that in a "few instances
he checked the classifications of employees." He also said that he never went into
the Club on a complaint from an employee, but that he occasionally received a
complaint from an employee while in the Club. In a few instances he checked
whether the employees were working under safe and healthy conditions, although
he never had occasion to discuss any such matter with management.
Warren testified that some employees refused to join the Union, and that he
had "differences of opinion" with them. Though he and the employees argued
fully, tempers were not lost very badly, the arguments did not become loud, and
there were no fights. He also said that the number of employees meeting with him
at the keno bar varied from 5 to 25, but these were not formal meetings where a
chairman was elected. These meetings usually occurred around midnight.
Warren admitted that the Union maintained an office within one-half block of the
Club, but he said this office was small and would not accommodate many persons.
Warren Encounters Clever and Petrinovich
Warren first encountered difficulty with management on or about June 28, 1962.
On that date Warren was in the culinary employees cafeteria talking to a few of
the employees during their "break time" when Clever, assistant club manager, ap-
proached him and asked who Warren was and what he was doing there. Warren
introduced himself as a representative of the Union and, producing a copy of the
labor agreement, told Clever that under article 1, section 4, the union business
agents "had certain visitation rights." Clever requested Warren to leave the
premises, but said that he would check with Reno about the contract provision.
Warren asked him about how long that would take. Clever replied that it would
take him a few hours. Warren then left the premises of the Club.
In or about 2 hours Warren returned to the employees cafeteria where he found
Clever seated at a table having lunch with two other men. Warren went to Clever's
table and asked Clever if he could see him for a few minutes. Clever replied that
he was busy, so Warren excused himself and went to the culinary employees section
of the cafeteria. After a short time Clever passed through the corridor and Warren
approached him and asked if he had checked with Reno in the matter of Warren's
visitation rights, but Clever did not give him a definite answer at that time and
walked away. Warren returned to the culinary cafeteria and resumed his conversa-
tion with the employees.
A short time later Petrinovich, food and beverage manager, came into the room
with a man named Smith Petrinovich came up to Warren and asked him what he
was doing there Warren told him that he was talking to the employees on their own
time. Petrinovich suggested that it would be more convenient for all concerned if
Warren talked to employees at the timeclock area, inside the employees entrance.
Warren replied that the suggested area would be a difficult place for the employees
and himself to converse and that he preferred to talk to employees in the cafeteria.
Petrinovich then said that he had received complaints from employees that Warren
was bothering them during their "break time." Warren asked the names of the em-
ployees who had complained, but Petrinovich did not comply with his request.
Petrinovich then left Warren.
In his testimony, Petrinovich said that on this occasion, after Warren and he had
stepped aside from the employees, Petrinovich asked Warren what he was doing
there. Warren said he was checking classifications Petrinovich then protested that
Warren was doing it while employees were working. That ended the conversation.
HARRAH'S CLUB 1363
In the course of his cross-examination Warren said that he had gone into the
kitchen on a few occasions while the men were working. When the cross-examiner
asked Warren if he had not engaged in loud conversations with nonunion employees
in the cafeteria, Warren said, "To the best of my knowledge, I never had any loud
conversations, no quarrels where there were tempers very badly lost, or names
called, and if employees declined interest or showed that they were hostile, or indi-
cated they were not interested, I simply left."
The Incident of "Junior Business Agent Bills"
In point of time, the next incident which disturbed relations of the Union and the
Company occurred in early July. The alleged union representative was Robert H.
Bills, who testified as a witness for the General Counsel. Bills testified that he was
18 years of age at the time of the hearing and that from February 1961 to February
1962 he had been employed as a busboy at the Club. In June he became a "Junior
Business Representative" for the Union. In early July he entered Harrah's Club,
"on union business, to investigate union standing and things such as that." He went
to the culinary workers section of the cafeteria. He seated himself at a table and
visited with waiters Ivanhoff and Stuck and a couple of other employees whom he
did not recall. After he had talked to them a few minutes, he moved to a second
table and was talking to some of the employees there when Clever came into the
cafeteria. Clever came to Bills and asked Bills to leave the premises. Bills asked
Clever why, and Clever replied because Bills was soliciting membership in the Union
and passing out union literature that he had no business to be passing out. Bills
denied that he was passing out any union literature. Clever then left.
As a witness, Bills stated categorically that he did not pass out any pamphlets or
union literature on this occasion. However, he explained that employee Ivanhoff,
who was present in the cafeteria on that occasion, had passed out a green booklet
entitled, "Why Should I Join the Union." Under questioning by the General Counsel,
Bills explained that Ivanhoff had taken these pamphlets from Bills' coat pocket
without Bills being aware of that action According to Bills, Ivanhoff "sort of picked
his pocket " Bills did not try to retrieve the pamphlets because the whole matter
was a big joke About this time Clever returned to the cafeteria and repeated his
request that Bills leave the employees' cafeteria. Bills told Clever that he would
not leave, as he was a union representative Clever said if Bills did not leave, that
he would have Bills thrown out or arrested. Bills testified that he didn't know what
to do so he stepped aside for a moment. Clever was then joined by Tyler, director
of security, and then by Speccio, another supervisor. Bills overheard Speccio say
that, "They had enough trouble with this punk when he worked here." In a few
moments a deputy sheriff came down and asked Bills to leave the premises. The
deputy sheriff stated that if he did not, he would have to arrest him. With that Bills
left the premises, under the escort of the deputy sheriff.
Bills was asked to explain the statement about having "trouble" with "this punk"
when he worked there. He explained two incidents which he considered trouble
during his employment by the Club. He said that on one occasion he had run away
to be married and because he didn't want his parents to know, he kept his departure
a secret, so he did not show up for work at Harrah's for some time. When he came
back, he didn't expect to have a job, but somehow it was arranged and his employ-
ment with Harrah's was continued . Prior to that there had been another incident,
when Bills and another busboy and a busgirl, desiring to see Harry Belafonte in
the show in the South Shore Room, had crawled up a ladder onto one of the catwalks
in the flies of the stage, and from that perch had watched the show. Their presence
was detected by a security man and they were taken down to the security office
where Tyler talked to them. Bills said that he was 18 at the time of his testimony
and 17 at the time of his employment by Harrah's.
On cross-examination Bills explained that he had quit his employment at Harrah's
when it looked as though he was going to be fired anyway. Bills admitted that when
he went into the premises of the Club he had approximately 10 copies of the booklet
"Why Should I Join the Union" in his pocket. He had obtained these at the union
hall where they were given to him for his personal study. All 10 pamphlets were
identical. Bills said that he did not tell Clever that Ivanhoff had taken the pamphlets
from his pocket because that was none of Clever's business. Bills said that he knew
that it was against the law of the State of Nevada for a gambling organization to
permit anyone under 21 to come on to the premises except if the person was an
employee.
Upon being questioned further Bills said that he had gained entry into the premises
of the Club through the employees' entrance at the rear . He said he had no per-
717-672-64-vol. 143-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mission to enter by the employees ' entrance . Bills said there was a security guard
at the back door when he entered between 4 and 5 p in, but that the security guard
did not stop his entrance . He said that the guard may have been the same guard
that was there when Bills was an employee of the Club . Bills also said that before
he went to Harrah's Club on that day, he had not, and no one connected with the
Union had , notified the management of the Club that he was a "Junior Business
Representative" or that he was coming to the Club on business . Bills said that he
became a "Junior Business Representative " in the middle of June and that his position
ended in the middle of July.
Lester Stuck , a waiter in the South Shore Room , testified in support of Bills.
Stuck testified that he saw Bills in the employees ' cafeteria on the night in question.
Stuck had arrived early that day and was eating his dinner . Bills came over to
Stuck and informed Stuck that he was "working with the union ." Stuck said that
be was pleased by that fact because Bills is a son of a very good friend of Stuck. He
congratulated Bills on his new position . Bills then left Stuck and sat down at a
table with several waiters . Stuck noticed "that some one took some literature from
his pocket and was passing it around ." Stuck identified this some one as Ivanhoff.
Stuck finished his dinner and went to the lockerroom . A few moments later he
noticed that a security guard was standing with Bills. Stuck passed Clever in the
,hall, so he asked Clever what was doing with Bills. Clever replied that they were
Z
Ze eating Bills from the Club because he was passing out union literature. Stuck
ten told Clever that Clever was mistaken , that somebody had taken the pamphlets
from Bills' pocket and that Bills "wasn't doing this on his own volition." Stuck
then went about his business . On cross-examination Stuck said that he had been
elected union steward by those waiters in the South Shore Room who were union.
On redirect examination Stuck testified with much detail as to how Bills was sitting,
and in what pocket he had the pamphlets at the time Ivanhoff removed them from
his pocket . He also testified as to the way in which Bills had his head turned at the
time the documents were removed . According to Stuck, when Ivanhoff removed
the pamphlets from Bills' pocket , Ivanhoff passed them around, but as far as the
witness could determine , Bills did not notice Ivanhoff do this. Stuck also said that
at the time of this incident he did not know that Bills was the "Junior Bus'necs
Representative" of the Union.
The Warren-Musso Incident
The next incident involving the visitation rights of the Union occurred on or about
July 28 . The principal participants were Warren and Musso , assistant club manager.
Warren testified that on that occasion Warren was seated with some of the culinary
employees in the cafeteria section when Musso approached him and asked him to
leave . Warren didn 't know Musso , so he introduced himeslf and told Musso that
he was there under contractual arrangements between Harrah 's Club and the Union
and showed him a copy of the agreement . After he looked at the agreement, Musso
again asked him to leave but Warren refused. Musso then left but in a few minutes
he returned with Speccio . Speccio and Musso then requested Warren to go upstairs
to Musso's office. Warren agreed. When they were seated in the office , Musso stated
that Warren had no real business in the Club unless he checked in with them and told
them whom he was going to see and what he was going to see the employee about.
Warren protested against this procedure and refused to agree to it. Warren also
told Speccio and Musso that he had a meeting coming up with Petrinovich on the
next day and that he would take that occasion to discuss with Petrinovich this matter
of entry. They made no reply to that. According to Warren, Musso stated to him
that Warren would have to check in with the cashier at the Club's office when he
came on the premises , and that a guide or supervisor would be assigned to take
Warren to any area to which he wished to go,, but that Warren would be required to
tell them whom he wanted to see and where he wanted to go in the Club.
Approximately 2 days later Business Agent Frank White of the Bartenders and
Warren went to Harrah's Club to confer with Petrinovich. This meeting was at-
tended by Clever, Petrinovich, White, and Warren. Warren introduced the topic of
visitation rights, quoted the contract, and claimed that the business agents had the
right of entry at any time for any union business as long as they did not interfere
with the employees' service to guests during the rush hours. Clever denied this and
stated that they had a new procedure which required the business agents to check in
at the cashier 's office with the manager on duty, who would assign someone to escort
the business agent to the employees ' cafeteria , or wherever he wanted to go White
and Warren stated that this was contrary to the labor contract and to their past
practice and that they would not agree to any such procedure . However, after some
HARRAH'S CLUB 1365
discussion , the business agents accepted the procedure but temporarily, and under
protest . Warren explained that he agreed , until he could get legal advice on the
matter from the Union 's attorney . Warren further testified that at this meeting
Clever stated that the business agents were free to go on the floor of the casino with-
out restrictions or surveillance and that they could collect dues; that management's
only concern was with the nonpublic area such as the employees ' cafeteria. The
meeting ended around 3:30 in the afternoon . At that time Warren left the premises.
In about 30 minutes he returned to the Club and went to the cashier 's office. When
he introduced himself, the cashier provided Schultz, a supervisor , to escort Warren
to the culinary cafeteria . Warren sat down at a table with two employees and dis-
cussed grievances . Schultz also sat at the table for a time. Then Schultz left the
area . Shortly thereafter he returned and asked Warren if he would accompany
him upstairs to see Musso and Clever in the cashier 's office. At the cashier 's office
there were Clever, Musso , and Schultz . Musso told Warren that he would have to
check in from now on , that they were going to assign him a man who would escort
him to whomever he wanted to see, and that Warren could talk to the employees one
at a time. Warren told Clever that was not the agreement they had made a few
hours ago , and Clever said that was the way it was now. Warren said he could not
agree to any such procedure ; that he had only agreed to the prior procedure under
protest until such time as he could get legal advice on the issue. A short time after
that Warren left.
Clever in his testimony said that he attended the meeting in the office of Petrino-
vich. At that meeting White asked why they suddenly had put restrictions on the
business agents. Petrinovich said that he had been on the bargaining committee
which had met with Grodin , the counsel of the Union, and negotiated the contract in
question . He said the contract provision permitted them to come on the premises
for only three reasons: (1) To investigate or adjust a grievance , (2) to check classi-
fications and working conditions , and (3 ) to check the standing of an employee, mak-
ing sure that the employee was doing the type of work for which he was hired.
White then explained that if the business agents didn 't come on the premises on
payday and collect dues , the dues were not paid . Petrinovich was sympathetic, but
said , "That's your problem."
According to Petrinovich , at the meeting with Warren and White , he explained
that the labor agreement gave the business agents the right of access only for the
three purposes mentioned . He told them that was the intent of the provision, as
negotiated by himself and Grodin , counsel for the Union. The business agents pro-
tested for a while, but finally agreed with his interpretation of the contract. The
business agents were most reluctant to forgo the right of coming on the premises to
collect dues. Petrinovich rejected their claim in this regard and finally the business
agents agreed . According to Petrinovich, at this meeting nothing was said about the
business agents checking in when they came on the premises.
In his testimony Schultz said that when he was called to escort Warren to the
cafeteria , he did so, and left Warren there. He took care of his duties and returned
to the cafeteria and ate his lunch. Warren was approximately four tables distant
from him, and he could not hear what Warren said to the employees. Schultz saw
Warren collect dues from one man and give him a receipt. Schultz knew the paper
was a dues receipt, because he had been a member of the union and recognized
Warren's receipt book.
Events of August 2
On the next night , August 2, Warren, accompanied by White, went to the Club and
proceeded directly to the employees ' cafeteria . They did not check in. Warren said
that he had consulted union officials in Reno and the union attorney and had been
instructed to proceed in the same manner as he had in the past . After he had been
in the culinary cafeteria for about 15 minutes , Musso came in and asked him to
leave the premises . Warren replied , "I am not going to leave as long as I have
business to conduct with the employees here under our contract ." Musso said, "If
you don 't leave I'll throw you out." Warren replied , "That 's up to you." A few
moments later, Mr. Williams , the under -sheriff, came into the room and asked
Warren why he didn't cooperate with them and leave the premises . Warren took
the contract out of his pocket and showed him the section on visitation rights. Then
Williams called over to Musso and asked him to put a call in to the district attorney.
In a few minutes Williams left , and a little later Musso came back and said, "Evi-
dently, you fellows know what you are doing. You are just barely legal and some-
body has conned you into taking this position." Then Musso left. Warren and
White remained in the cafeteria for approximately 10 or 15 minutes and then they
left the premises.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Events of August 3; Arrest of Warren
On August 3, about 5:30 p.m., Warren again went to the employees ' cafeteria.
He did not check in. He was there a few minutes , and in the act of collecting dues
from a captain of waiters named Suarez, when Clever came into the room. Clever
approached them and took the money that Suarez was offering to Warren and gave
it back to Suarez. Clever then told Warren he was not permitted to collect dues in
the cafeteria and asked Warren to leave. Warren refused. Clever then left the
cafeteria . Warren continued his business , moving from table to table. Shortly
thereafter two deputy sheriffs came in and one of them said to Warren, "I am
going to have to ask you to leave." Warren inquired on what grounds he was being
ejected and the deputy sheriff replied that if Warren did not go, he would have to
arrest him. When Warren again inquired why he was to be arrested, the deputy
sheriff replied that Musso was "signing a citizen's complaint." Warren then said
that if the deputy was arresting him, he would leave with him. The deputy said,
"If you don't leave with me, I will have you on some real serious charges, resisting
arrest." The two deputies then escorted Warren from the building. They escorted
him to the Zephyr Cove courthouse where he was detained for approximately 1i to
2 hours.
Meetings of August 7, 10, and 17
Robert I. Brigham, labor relations counselor for the Company, testified that he
entered the controversy on August 7 when he attended a meeting in the office of
Petrinovich Present with him for the Company was Petrinovich. Warren was
accompanied by Brown who represented the Union but worked at the Wagon Wheel
Club on the North Shore. When this meeting opened, Brigham told Warren that
he had been brought into the picture only because various employees had placed
complaints with the supervisors that Warren was harassing them to pay dues or to
join the Union during their "break times." Brigham told him that the supervisors
had tried to deal with Warren about these complaints, but since they had not been
able to reach any accommodation with Warren that he had been called in. Warren
said that he was only doing his job. As business representative he had union mem-
berships to sell and he was going to sell them, and when dues were owed, he was
going to collect them.
After some further discussion, Brigham produced his copy of the contract and read
it aloud Warren then said that his interpretation of the phrase "to investigate the
standing of employees" meant that he could come on the premises and investigate
whether employees were members of the Union, inactive members of the Union, if
they had cards in a different union, also whether the employee was paid up in his
dues, etc. Brigham told Warren that he had never heard of any "such goings on"
as Warren was conducting in Harrah's. He said that Warren apparently spent all
his time there, and asked Warren if he didn't have something else to do. Warren
said no, his assignment was Harrah's Club and that only. Brigham then said that
the Union had a business office across the street from Harrah's and he asked why
Warren did not conduct his business there. They came to a disagreement on the
interpretation of the contract provision. Warren claimed that it allowed him to
do all the things which he was doing. Brigham said that he doubted that very much,
but since he was new, he would check with people who were familiar with the ne-
gotiation of the contract and that he would meet with Warren again on Friday,
August 10.
fin August 10, Warren and Brigham met in Musso's office. Present with
Brigham was Musso. Warren was unaccompanied. Brigham told Warren that he
had checked with one Knoll, who had represented the employers at the time the
contract was negotiated. Brigham said that Knoll's interpretation of the contract
was the same as his own that the phrase "to investigate the standing of employees"
meant that the business representatives could check whether a man was being paid
at the proper rate for the work he was performing, or if he was doing work which
was not in the classification for which he was being paid . Then Brigham enumerated
to Warren what he considered improper. He told Warren that he could not collect
dues and could not bother people when they were working. He told Warren that
if Warren wanted to check working conditions, the Company would be glad to take
him to any area during working hours, if necessary , so he could observe what the
people were doing and ask them any questions concerning their jobs. Brigham
explained that the Company was not trying to prevent him from finding out facts
concerning the jobs of the employees . Brigham also said he could come in at
any time to present a grievance, but he hoped that Warren would present grievances
which were not trifles . Brigham then said that inasmuch as he could see that
Warren was abusing the right of entry on the premises and was using the place as
HARRAH'S CLUB 1367
a union office, all around the clock, management on his advice had decided to restrict
Warren to 1 hour a day, visitation period, other than any time which was spent
by Warren in the investigation or presentation of grievances. The time was to be
measured from noon until noon. Warren asked if he had an hour on Saturday
and Sunday and Brigham replied that he did. Then Wairen said that he did not
work on Saturday or Sunday, and asked if he could save those 2 hours and use them
on a weekday. Brigham said that would not do. Warren said that Brigham was
unduly harsh, but he did not in any way signify that he would not go along with
this procedure.
After the mechanics of Warren's visits were explained, Brigham said that the
Company wanted to deal with everyone, including Warren, courteously, but for the
safety of all concerned and because the Company had to exert control over all
operations in the buildings, it wished that Warren would report to the cashier's
office when he came on the premises, and the Company would arrange that he be
escorted to the place of his business. Since most likely he would want to see the
people engaged in food and beverage service, the Company would try to arrange
for the shift food and bar supervisor to be on hand to take him wherever he wanted
to go and to leave him there. If Warren was going to be in the area checking
working conditions, the food and bar supervisor would assist him in any way
necessary, or if Warren desired they would leave him alone, so that Warren could
talk and investigate without any interference on the part of the supervisor. If
Warren was going to the employees' cafeteria, he would be escorted there and left
there. Brigham then said that this did not pertain to any presentation or adjustment
of grievances; so as far as they were concerned the business agents could come on
the premises at any time to present a grievance especially to Petrinovich who was the
head of all such activities.
Around August 23 Brigham met with Warren again in Clever's office. On this
occasion they talked about some grievances and then Warren brought up the ques-
tion of visitation rights again and they again started to argue about "standing of
employees." Warren remonstrated with them saying that he thought that he should
be allowed to collect dues and solicit members. Brigham told him that they had
laid down the ground rules and he thought that they were fair for both sides con-
cerned and he saw no reason to change them. They argued once more about "stand-
ing of employees." Warren then said that he thought he should be allowed to talk
to employees while they were on duty as long as they were not busy. Brigham
said that if they had employees who were on duty and not busy, they ought to be
laid off. Brigham then told Warren that he was not to hold meetings in the keno
bar in the early hours of the morning. Warren said that this was a place where
people generally met with him. Brigham said that employees could gather there,
if they were playing keno or drinking, but he did not want Warren to conduct union
meetings and transact union business at the keno bar. Brigham told Warren that
Harrah's Club believed that the only people who should conduct business in the
Casino should be the Company. Brigham said that the only reason for imposing
these restrictions upon Warren were the complaints from the employees who pro-
tested to supervisors that if they didn't have money to pay their dues they did not
want to be dunned for it during their coffee breaks, and if they did not want to
join the Union, they did not want to be continually arguing with Warren about it
in their break time.
From all the evidence, it appears that after August 17 the controversy stemming
from the contract subsided. Warren said that after that date he checked in at
the cashier's office when he went into the Club on business and the Company pro-
vided an escort who took him to the place where he wanted to go. Usually, this
was the culinary employees' cafeteria. There the escort left him. He continued
his visits on a daily basis.
The Wearing of Union Buttons
It is undisputed that in the labor agreement between the Union and Harrah's
Club section 3 covers the subject of uniforms. This section reads as follows:
SEC. 3. Linens and Uniforms:
A. It is understood and agreed between the parties hereto that standard
working attire for bar and culinary employees, working in contact with the
public (Generally known as "Front Help") is plain black skirt and white
blouse for waitresses, black trousers and white shirts for bar employees, dark
dresses for hostesses and white uniforms for kitchen employees The afore-
mentioned clothing shall be furnished and maintained by the employees at
their own expense except as provided herein. Should the employer require
any uniforms to be worn by any employee covered hereunder other than the
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clothing referred to above, the employer , at its expense shall furnish , maintain,
launder and/or clean any such uniforms.
It is likewise undisputed that the Company furnishes to its waiters in the South
Shore Room a uniform, which is a mess jacket, red in color, and a cummerbund
and a nameplate which is pinned on the uniform. The waitresses also are provided
with uniforms which are laundered and cleaned at the expense of the Company.
It is likewise undisputed that for many years the Company has maintained what
are known as "standard procedures" for certain operations in the Club. Three
pages which constitute the preface of Harrah's Club Standard Procedures were
introduced in evidence. These procedures are the rules which govern the conduct
of employees on the premises. The first page of this exhibit deals with friendliness,
attitude, and courtesy. The second page deals with appearance, and is specific about
the maintenance of a well-groomed and pleasing appearance. All employees are
exhorted to cleanliness, as to linen, haircut and hair styling, hands, and hygienic
care of teeth and mouth. Women employees are directed to wear natural makeup
and to check the bulletin board for acceptable clothing, colors and styles, shoe
styles, and the rules governing the wearing of permissible jewelry. It is undisputed
that the women employees could not wear any jewelry except a small or incon-
spicuous necklace.
Petrinovich testified credibly that in like manner the waiters and waitresses had
been forbidden to wear any pins, emblems, or insignia of any kind, except the
nameplate, furnished to them by the Company, which they were required to wear
on their left lapel. This prohibition extended to insignia of any kind, fraternal,
school, political, or religious. According to Petrinovich, this rule had been in
effect for many years and had been invoked against the wearing of religious crosses,
De Molay lodge pins, and in the case of student help, college or class insignia.
Each of the waiters who testified on this aspect of the case admitted that up to
approximately August 9 each had not worn any type of insignia on their uniforms
except their nameplates.
Clifford Kehl, the maitre d'hotel in the South Shore Room, testified that he
and his staff conduct regular inspections of the waiters and waitresses employed in
that room These inspections are usually held daily, and follow a short meeting of
the staff of that room. The inspection is held in the kitchen area adjacent to the
South Shore Room. The corps of approximately 30 waiters and 30 waitresses
line up and Kehl and his staff proceed down the line as in a military inspection,
checking the appearance of the employees.
About the middle of August in the course of an inspection , Kehl noticed that a
number of employees in the South Shore Room were wearing buttons. Kehl,
who wears glasses, did not observe that they were union buttons . In fact one type
of button he thought was an Air Force button , for it had wings as part of the design.
He brought to the attention of Petrinovich the fact that these buttons were appearing
on the uniforms . Petrinovich furnished Kehl with copies of the following notice,
which Kehl directed be posted alongside the work schedules of the waiters and
waitresses. It read as follows:
To: All Employees.
Fr: Management Committee.
AUGUST 11, 1962.
We want to remind you again of HARRAH 'S standing rule that no emblems,
badges, buttons, jewelry, or ornaments of any kind, except your name pin, shall
be displayed on uniforms worn by employees who come into contact with the
public.
Your cooperation in observing this rule will be appreciated.
A day or two after this, at inspection , Kehl noticed that waiter Heimerer and some
others, approximately 20 employees , were wearing two different types of union buttons
in addition to their nameplates . Kehl inquired of Heimerer if he was going to insist
upon wearing the button. Heimerer replied that he was. Kehl then said that in that
case he might be forced to terminate Heimerer. Heimerer then asked why he would
be terminated. Kehl replied that he would be terminated for violation of the Com-
pany's long-established rule forbidding the wearing of pins or insignia on uniforms.
Heimerer then took off his button and, turning to the others, told them to remove
their buttons also. All the button-wearers then removed the buttons.
Kehl testified that the rule against wearing unauthorized jewelry , insignia , or pins
had been in effect for some time before he began working for the Company on
August 15, 1959, and that in the course of inspections through the years he had
frequently requested employees to remove jewelry, corsages, bracelets, or pins.
Heimerer, the waiter to whom Kehl spoke about the buttons at the inspection,
also testified as to his version of the incident . Like the other waiters who testified
HARRAH'S CLUB 1369
on this subject, he said that he had never worn any emblem, insignia, or button of any
kind on his uniform before August 5 or 6. He explained that he rejoined the Union
at the keno bar and that he purchased a button. He wore it on his uniform for
the first time about August 8. On August 11 Kehl read to the staff the notice set forth
previously. On August 12 Kehl read the same notice again and then conducted the
inspection . Heimerer was first in line of the button-wearers. Kehl asked him if he
had heard the notice which he had just read. He replied in the affirmative and
told Kehl that his union representative had told him there was ". . . no reason why
they shouldn't wear them, and it is against the law to make us take them off. . ."
Kehl then said, "I won't (don't) make you take them off, I just want to know if you
will continue wearing the button." Heimerer replied in the affirmative. Then Kehl
said, "I will be forced to fire you" for violating this "Company rule." Heimerer then
took off his button.
About a half hour later Kehl was standing near Heimerer's station, so he spoke
to Kehl again . He asked Kehl what the whole thing was about, "Why we shouldn't
wear union buttons." Kehl replied that he hadn' t said anything about union buttons,
that he meant "any buttons, Mickey Mouse buttons, or Nixon buttons," and that if
Heimerer wore any of them he could be fired for "disobeying a Company rule."
In the course of his examination Heimerer in reply to a question put by the Trial
Examiner said that he had spoken to Warren about wearing the button. Warren
said that they could wear the buttons, that "There was a case in Tampa, Florida,
where this was already tried once before, and it was proven that the employees could
wear union emblems or pins, if they want to."
Upon the credited testimony of Petrinovich, Kehl, and Heimerer, I find that for
several years prior to August 1962 the Company had a rule that, "no emblems,
badges, buttons, jewelry, or ornaments of any kind, except name pins , shall be
displayed on uniforms worn by employees who come into contact with the public."
The summary of testimony stated above is largely based on the testimony of wit-
nesses Petrinovich, Kehl, Schultz, Clever, and Brigham. Individually, these men, who
are executives or supervisors of the Company, testified in a straightforward manner.
They exhibited no rancor or animus toward any of the employees or toward Warren.
Their attitude toward the controversy seemed to be that something had to be done
to control Warren's activities, which were disrupting their orderly conduct of
business, and they exhibited no hesitancy or evasion in testifying to the various actions
which each took. Also they were fair in depicting Warren's conduct and position.
In general, each corroborated the others, and the impression they made collectively
was excellent. In the course of his examination and cross- examination Warren, point
by point, agreed with all the principal facts stated in their testimony.
Warren, too, I deem to be a trustworthy witness. As to the principal events com-
prising the controversy, Warren was also straightforward and direct. In some
instances, particularly in portraying the attitude of company officials at various stages
of the controversy, Warren colored his testimony but I deem that a natural result of
the frequent verbal clashes he had with these officials. Therefore, I have credited
Warren's testimony on the main events of the controversy, and have made what I
deem a proper discount as to these minor points. I have also credited the testi-
mony of Heimerer, and it is notable that it is not at substantial variance with
that of Kehl.
The testimony of witnesses Bills and Stuck will be dealt with hereafter.
The testimony of witnesses Darajky, Argimon, and Basta has also been considered,
but the narration of it has been omitted in the interest of brevity. The testimony of
these witnesses has been credited to the extent that it is consistent with the sum-
mary of the testimony of the principal witnesses set forth above.
Concluding Findings
The Ejection and Surveillance of Bills and Warren
As the summary above amply illustrates, the principal controversy between
the Company and Business Agent Warren grew out of the interpretation of article 1,
section 4, of the labor agreement , which stated that union representatives would "be
permitted to investigate the standing of employees or job conditions at any time."
The complaint alleged that while Warren and Bills were lawfully on the premises
of the Company, pursuant to this provision, they were ejected from the premises
by officials of the Company. The complaint has a second count which is similar
in nature, that while the business agents were lawfully on the premises, officials
of the Company accompanied them or caused security guards to accompany them;
alleged acts of surveillance. The answer of the Company, in its turn, pleaded the same
provision of the contract, and it contended that the business agents came upon its
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises for purposes not permitted by the contract and therefore their observation
and ejection by company officials was proper and lawful. Thus, it becomes crystal
clear from the pleadings and the evidence that both the General Counsel and the
Union on one side , and the Company on the other , seek in this proceeding an
adjudication of rights , arising from the contract , and not from the Act . The testi-
mony is almost exclusively confined to the exposition of facts, relative to the many
confrontations between Warren and the Company's supervisors , on the meaning of,
and interpretation of, "to investigate the standing of employees ." From first to last,
the representatives of the parties sought to exert what each considered its contract
rights . Thus, this issue is one involving the interpretation of this particular provision
of the labor agreement.
I In its brief the Company contends that , in this posture of the case, the pertinent
allegations of the complaint must be dismissed because the Board , through all of
its history, has consistently refused , with court approval , to interpret and police
labor agreements that have been reached as the result of free, fair, collective bargain-
ing. There appears to be every reason for adhering to this policy in this case, because
the contract here under scrutiny has been called into question in the 10th year of
the union-company contractual relationship . How long the specific provision has
been in the contract is not disclosed by the evidence , but apparently the provision
served the parties well , until Warren acted on his interpretation that the provision
gave him access to the Company's premises for the transaction of union business of
every type , kind , or description.
The Board has stated its policy on controversies involving the interpretation
of contracts in many cases. In United Telephone Company of the West and United
Utilities, Incorporated (1955) 112 NLRB 779, the Board stated that the policies
of the Act would not be effectuated by the Board 's deciding whether a dispute between
an employer and a union arising out of the parties' conflicting interpretations of a
collective-bargaining contract constitutes an unfair labor practice under the Act.
The Board , dealing with the complaint in that case , stated:
The complaint alleges no violation of the Act other than the one arising out
of the parties ' conflicting contract interpretations . It is obvious from the con-
flicting interpretations of the parties that the contract was no sufficiently clear
to avoid a dispute over its terms. There is no showing that the Respondents,
in carrying out the contract as they did, were acting in bad faith. Furthermore,
the Respondents ' action was in accordance with the contract as they construed it,
and was not an attempt to modify or to terminate the contract . Regarding
the question of which party correctly interpreted the contract, the Board does not
ordinarily exercise its jurisdiction to settle such conflicts . As the Board has held
for many years, with the approval of the courts : ". it will not effectuate
the statutory policy . . . for the Board to assume the role of policing collective
contracts between employers and labor organizations by attempting to decide
whether disputes as to the meaning and administration of such contracts con-
stitute unfair labor practices under the Act."
The Board is not the proper forum for parties seeking to remedy an alleged
breach of contract or to obtain specific enforcement of its terms.
Upon the pleadings and the testimony here, the Trial Examiner and the Board
are being asked to find that the contract provision permits a business agent to enter
the Company's premises for the purposes exhibited by Warren's conduct, and that
the Company was required by the provision to permit such conduct. This appears
to be the function of a court of appropriate jurisdiction which would have authority
to enforce specific performance of the agreement or enjoin a breach of the agreement.
Section 301(a) of the Labor-Management Relations Act authorizes suits in
Federal district courts (or State courts) for violations of collective-bargaining agree-
ments. The courts have held that this section not only confers jurisdiction upon
the courts in suits or breach of contract between employers and labor organizations,
it is and was intended to, and did, create substantive rights and liabilities of parties
to collective-bargaining agreements in businesses or industries affecting commerce.2
The United States Supreme Court in Association of Employees v. Westinghouse
'Corp. (1955) 348 U.S. 437, 75 S. Ct. 489, 35 LRRM 2643, agreed with the above-
stated policy of the Board that once the parties have achieved a contract through
2 United Electrical R. & M. Workers v. Oliver Corp ., 205 F. 2d 376 (C.A. 8, 1953)
International Brotherhood , etc. v. W. L Mead, Inc., 230 F. 2d 576 (C.A. 1, 1956)
Schatte v . International Allhance, etc., 182 F 2d 158 (CA. 9, 1950 ) ; Studio Carpenters
Local Union v. Loew's, Inc., 182 F. 2d 168 (C A 9, 1950).
HARRAH'S CLUB 1371
.,ollective bargaining , the enforcement of that contract should be left to the proper
courts. In discussing the scope of Section 301 of the Act, the Court in footnote 2
stated the following:
... No other provisions of the Act indicates that substantive federal law was
to guide the determination of the contractual rights and liabilities that are to
flow from a collective -bargaining contract ... Section 8 enumerates unfair labor
practices ; these may in some instances become relevant to the validity or inter-
pretation of a collective agreement . Certain procedural safeguards are placed
about the collective bargaining agreement : an obligation to confer in good
faith on questions arising under it; a duty to follow certain steps prior to termi-
nating or modifying the agreement unilaterally . . . . And a limited number of
substantive rights conferred under the Act may incidentally involve the inter-
pretation of the collective agreement . E.g., § 9(a ). It is significant , however,
that breach of contract is not an "unfair labor practice ." A proposal to that
end was contained in the Senate bill, but was deleted in conference with the
observation : "Once parties have made a collective bargaining contract the
enforcement of that contract should be left to the usual processes of the law
and not to the National Labor Relations Board... .
By the citing of cases which hold that breaches of contract are not unfair
labor practices , I do not intend to imply for a moment that , on the credible
evidence here adduced, the Company breached its contract. It is intended
that the thrust of the citations shall be in the direction of demonstrating that the
Board's policy of not interpreting labor agreements or enforcing their terms, is a
policy approved by the highest of legal authority. And it seems to this Trial Exam-
iner that this is an eminently proper case for the application of that policy. I deem
it highly significant in this connection that in this entire long transcript of testimony
there is not one word of argument , or disagreement , between an employee of the
Company and any supervisor or official of the Company. The only disagreement
in this aspect of the case is between the Union 's business agent and the company
officials over a contract right running peculiarly to the Union and not to the em-
ployees, such as the right to solicit membership and collect dues on the premises.
Thus, this disagreement occurred in an atmosphere devoid of even the semblance
of any union animus on the part of the Company toward any employee . Indeed,
there seems to have been no union animus directed even at Warren. Certainly
Warren 's interpretation of the contract-provision was unrealistic and extremely
self-serving and his conduct pursuant to his interpretation , most aggressive. But
the evidence demonstrates that the conduct of the supervisors of the Company was
directed at all times toward trying to effect a practical accommodation with Warren,
whereby he could perform his proper, contractually defined duties on the Company's
premises , and the Company could conduct its business in an orderly fashion.
Upon the pleadings , the pertinent evidence , and the authorities cited , I am con-
strained to dismiss paragraphs VII, VIII , and IX of the complaint.
There is an additional reason for the dismissal of paragraph VII(a ) of the com-
plaint. This arises from the testimony of witnesses Bills and Stuck . Bills is a young
man, 18 years of age. As I observed his demeanor and bearing on the witness stand,
he seemed much less mature than his years would indicate . He testified with an
air of juvenile irresponsibility , which was borne out by his testimony . He entered
the Club knowing it was a violation of State law for him, a minor, to enter a gam-
bling establishment. And I find it impossible to credit his testimony that before
his foray into the Club he was an authorized representative of the Union. His testi-
mony, that he made an authorized entry into the premises of the Company by sneak-
ing through the employees entrance, past a guard, and that thereafter his pocket
was picked of 10 identical pamphlets, which he had for his own study, and which
were then distributed to employees in his presence, all without his knowledge, I find
to be fantastic. If he told such a tale to boys of his own mental age, they would
certainly credit him with a "whopper." However, when such a tale is offered as
testimony under oath, for the purpose of affecting the legal rights of others in a legal
tribunal, such testimony must be condemned for what it is, plain perjury. In my
judgment, the testimony of Stuck on this topic is tainted with the same falsity.
Stuck is a mature, intelligent man, who testified glibly, but when he assayed to de-
scribe the direction in which Bills' head was turned, at the moment that Ivanhoff
extracted the pamphlets from Bills' pocket, the Trial Examiner's credulity was again
overtaxed I reject the entire testimony of Bills and Stuck as false, and therefore
find that the General Counsel has failed to establish by credible evidence the allega-
tions set forth in paragraph VII(a) of the complaint.
In his brief the General Counsel appears to have modified his theory of the case, as
he pleaded it, and as he sought to establish it at the hearing. The General Counsel's
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument is that the labor agreement gave the union business agents the right to enter
the premises of the Company ; he accepts the contract provision to that point.
But, then, according to his argument , the limiting clauses on the right of entry are
to be disregarded , and in their place and stead , we are to take the Board 's decision
in Marshall Field Company, 98 NLRB 88 . Of course , this piecing together of one
right from the contract and other rights, extracted from the decision , rewrites the
contract of the parties to the General Counsel 's liking, but I know of no legal
legerdemain by which it may be accomplished . In my judgment neither the General
Counsel nor the Union has the right to play "pick and choose " with the labor agree-
ment of the parties, thus affixing the guilt of unfair labor practices on the Company,
not by virtue of the contract , or by virtue of the Act, but by such a combination of
a piece of the contract , a piece of the Act, as may suit their purposes . This case was
tried by counsel to the pleadings , which are firmly based on the contract. In my
judgment , the General Counsel 's argument based on Marshall Field Company, supra,
is beside the point.
The Union Buttons
The General Counsel contends that the Company violated Section 8(a)(1) of
the Act by promulgating and enforcing its rule prohibiting the wearing of emblems,
insignia , or pins on the uniforms of those employees who come into contact with
the public . His argument is premised on the case of Floridan Hotel of Tampa, Inc.,
137 NLRB 1484.
However, in my judgment the facts in this case are far different from those in the
Floridan case . Here, the rule at issue is different in several respects : ( 1) From all
the evidence in this case it appears that the rule came into being years ago, and
without reference to union or concerted activities on behalf of this or any other union.
(2) It is a general rule against the display of insignia of any group of a religious,
political , or fraternal nature . The rule has been invoked in the past against religious,
social , and school insignia . Now, in the ordinary course of events it has been invoked
against union insignia, but that act does not change the nature of the rule , which is
general and nondiscriminatory . ( 3) The rule applies only to uniformed employees
who come into direct contact with the public . (4) It applies only when those em-
ployees are on duty.
There is a belief among businessmen , which is as old as the Law Merchant itself,
that a merchant, shopkeeper, or innkeeper , who depends upon the patronage of the
public for his livelihood must refrain from becoming embroiled in the religious,
political, and sociological controversies of the day, if he is to continue to enjoy the
patronage of the public at large . From time immemorial it has been recognized that
a merchant who offends any large segment of the public will not stay in business
very long. The rule in this case merely recognizes this fact of commercial life and
seeks to preserve the neutrality of the Company on religious , political , and sociological
issues . As Kehl said to Heimerer , he did not care whether the button was for Mickey
Mouse or Nixon , the button had to come off. This rule merely implemented the
policy of the Company of avoiding involvement in the controversies of the day.
I think it had that right . Therefore , I find that the Company has not committed
the unfair labor practice alleged in paragraph X of the complaint.3
Finally, on the credibility findings set forth above, I find that the General Counsel
has failed to prove by a preponderance of the credible evidence that the Company
has committed any of the unfair labor practices alleged in the complaint.
Therefore , it is recommended that the complaint be dismissed in its entirety.
I See N.L .R.B. v. Power Equipment Company, 313 F . 2d 438 (C.A. G).
Deaton Truck Lines, Inc. and Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local Union 612. Case No. 10-CA-5055.
August 15, 1963
DECISION AND ORDER
On February 4, 1963, Trial Examiner John P. von Rohr issued
his Intermediate Report in the above-entitled proceeding, finding
143 NLRB No. 124.