Harrah's Club

National Labor Relations Board - Board Decisions

May 10, 1966

158 N.L.R.B. 758 (N.L.R.B. 1966)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made from final proofs have been returned to the shop from the out-
side trade shop or shops who make them. This is the only dispute
before us.
We shall, accordingly, determine the existing jurisdictional dispute
by awarding the disputed work to pressmen represented by the Press-
men rather than to typographers (composing room employees) rep-
resented by the ITU. In making this determination, we are assign-
ing the disputed work to the employees of Bell Press, Inc., d/b/a
Golden Bell Press, Inc., who are represented by the Pressmen, but not
to that union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10 (k) of the National Labor Relations Act, as
amended, and upon the basis of the foregoing findings and the entire
record in this proceeding, the National Labor Relations Board makes
the following determination of dispute
Pressmen employed by Bell Press, Inc., d/b/a Golden Bell Press,
Inc., who are represented by Offset Workers, Printing Pressmen and
Assistants' Local Union No. 40, International Printing Pressmen and
Assistant's Union of North America, AFL-CIO, are entitled to per-
form the work of stripping, masking, opaquing, and imposition of
negatives, and the burning and preparing of plates for use on the
Employer's offset presses.
Harrah's Club and International Alliance of Theatrical Stage
Employees & Motion Picture Operators of the United States
and Canada, Local 363, AFL-CIO
Harrah's Club and Donald W. Rux. Cases Nos. 3O-CA-3009,
2O-CA-3009-2, and 2O-CA-3338. May 10, 1966
DECISION AND ORDER
On October 21, 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the Respondent filed excep-
tions and the General Counsel cross-exceptions to the Trial Examiner's
Decision together with supporting briefs. Respondent also filed a
brief in answer to the General Counsel's cross-exceptions.
158 NLRB No. 76.
HARRAH'S CLUB 759
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins]
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Trial
Examiner's Decision and the entire record in these cases, including
the exceptions, cross-exceptions, and briefs, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the modifications noted below 1
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
order the Recommended Order of the Trial Examinei, as modified
herein, and orders that the Respondent, Hairah's Club, Stateline,
Nevada, its officers, agents , successors , and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified
1 Delete from paragraph 1(c) of the Trial Examiner's Recom-
mended Order the last clause beginning with the words, "except to
the extent "
2 Delete paragraph 2(c) thereof and substitute therefor the
following
"(c) Offer Allen Cole and Bruce Lovelady immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges
previously enjoyed, and make them whole for any loss of pay which
they may have suffered as a result of the discrimination against them
by payment to them of a sum of money equal to that which they would
normally have earned from the date of their discharge to the date
of Respondent's offer of reinstatement, less their net earnings during
said period (Crossett Lumber Company, 8 NLRB 440) and in the
manner prescribed in F W W oolwortlh Company, 90 NLRB 289,
i We find merit in the General Counsel 's cross exceptions to the Trial Examiner s refusal
to order the reinstatement of discriminatees Allan Cole and Bruce Lovelady We agree
with the Trial Examiner 's finding that Respondent s offers of reinstatement to both Cole
and Lovelady contained unreasonable reporting dates Unlike the Trial Examiner how
ever we do not consider Cole's and Lovelady's failure to request a reasonable extension
of the reporting time as evidence that the proposed reporting dates did not influence
their rejection of these offers because in our opinion, such a holding places an undue
and unwarranted burden upon the discriminates to make a counterproposal to Respond
ent's offer The reinstatement obligation properly rests with Respondent and is satisfied
only by a valid and unconditional offer of reinstatement As we here conclude that
Respondent's offers to Cole and Lovelady did not satisfy this obligation, we shall make
provision for their reinstatement in our Order
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together with interest thereon at the rate of 6 percent per annum, as
set forth in Isis Plumbing i6 Heating Co. 138 NLRB 716."
3. Add the following as paragraph 2(d) to the Trial Examiner's
Recommended Order, and renumber the present paragraph 2(d) and
all succeeding paragraphs : ,
"(d) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in :accordance with the Selective Service
Act and the Universal Military Training, and Se"r"'"vice Act, as amended,
after discharge from the Armed Forces."
4. Delete from the third indented paragraph of the notice the last
clause beginning with the words; "except to the extent ....
5. The fourth indented paragraph.of the Appendix attached to the
Trial Examiner's Decision is amended to read :
WE. WILL offer immediate and full reinstatement to Allan Cole
and Bruce Lovelady and make them whole for any loss of 'pay
they may have suffered as a result of the discrimination against
them.
6. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision :
NOTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This proceeding , with all parties 'represented, was heard before Trial Examiner
James R. Webster in Carson City, Nevada, on October 6, 1964, and April 5, 6, 7, 8,
9, 12, 13 , and 14 , 1965, and in San Francisco , California , on April 16 , 1965, on
consolidated and amended complaint of the General Counsel and answer of Harrah's
Club, herein called Respondent . The consolidated complaint in Cases Nos. 20-CA-
3009 and 20-CA-3009-2 was issued on June 30 , 1964; on November 25, 1964, a
motion was made to consolidate cases and to amend consolidated complaint, and
this motion , adding Case No. 20-CA-3338 , was granted by my order dated Decem-
ber 11, 1964. Charges on which the amended consolidated complaint herein is based
were filed on March 12 ( amended on June 24), April 1, and November 2, 1964. The
complaint alleges that Respondent has refused to bargain with the International
Alliance of Theatrical Stage Employees & Motion Picture Operators of the United
States and Canada, Local 363, AFL-CIO, as the certified collective-bargaining repre-
sentative of an appropriate unit of employees of Respondent , and that Respondent
has discriminatorily terminated three employees and has withdrawn an annual
Christmas bonus, and has discontinued a practice of permitting employees in the
bargaining unit to accept gratuities from featured performers , and has thereby vio-
lated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, herein called the Act.
The General Counsel and the Respondent, pursuant to extensions duly granted,
filed briefs on August 30, 1965, and they have been carefully considered . Upon the
entire record and my observation of the witnesses , I hereby make the following:
HARRAH'S CLUB
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
761
The Respondent is a Nevada corporation with its main office in Reno, Nevada,
and is engaged in the business of owning and operating restaurants and gambling
casinos located in Reno and Stateline, Nevada During the past 12-month period
Respondent, in the course and conduct of its business operations, purchased goods
and materials valued in excess of $50,000 directly from places and points outside the
State of Nevada During the same period Respondent sold and distributed goods
and services at Reno and Stateline, Nevada, of a gross value in excess of $500,000
I find that Respondent is and has been at all times material herein engaged in
commerce within the meaning of Section 2(6) and (7) of the Act I
II THE LABOR ORGANIZATION INVOLVED
International Alliance of Theatrical Stage Employees & Motion Picture Operators
of the United States and Canada, Local 363, AFL-CIO, herein called the Union is,
and has been at all times material herein , a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Sequence of events and issues
1 Representation proceedings
On August 14, 1963, the Union filed a representation petition, Case No 20-RC-
5597, seeking to represent Respondents stage technicians at its South Shore Room
in Stateline, Nevada On September 6, 1953, Respondent and the Union entered
into a stipulation for certification upon consent election for said employees An
election was conducted on October 14, 1963, in which all 11 stage technicians cast
ballots for the Union On October 18, 1963, Respondent filed timely objections to
conduct affecting the results of the election On November 15, 1963, the Regional
Director for Region 20 of the Board issued his report on objections recommending
that they be dismissed Respondent filed timely exceptions On February 27, 1964,
the Board issued its Decision and Certification of Representatives (unpublished),
adopting the findings and recommendations of the Regional Director dismissing the
objections, and ceitifying the Union as the exclusive bargaining representative of the
employees in the following appropriate unit
All stage technicians, apprentice stage technicians, and sound console operator
in the South Shore Room employed by Harrah s Club, Lake Tahoe, Nevada,
excluding all other employees, guards, and supervisors as defined in the Act
2 Prior unfair labor practice case
On September 5, 1963 , the Union filed an unfair labor practice charge , Case No
20-CA-2839 , against Respondent , a complaint issued November 22, 1963 , alleging,
among other things , the discriminatory discharge of a stage technician , Robert H
'6etherhill , on or about September 1, 1963 Hearing was held between January 28
and February 5, 1964, a Trial Examiner 's Decision issued on October 16, 1964, and
Board Decision and Order issued on February 12, 1965 There has been no com-
pliance with this Board Order
3 Conduct alleged as unfair labor practice in instant proceedings
(a) On December 23, 1963, Respondent posted a notice on a bulletin board to
the stage technicians to the effect that since there had been some friction or dissension
among them on the matter of ieceiving gratuities, or "tokes" as they are commonly
reterred to, they were no longer to be accepted, and if they were, disciplinary action
would be taken 2
iEl Dorado Club 151 NLRB 579 Harrah's Club 317 F 2d 177 (C i 9) 57 LRRII
2198 denying enforcement of a Board decision on other grounds Harrah's Club 58 LRRM
1333 150 NLRB 1702
a The original copy of said notice was requested of Respondent and not produced
The above finding is based on the testimony of the seleral witnesses to the content of
the notice
762 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
(b) In December 1963, no Christmas bonuses were paid employees of Respond-
ent, although in 1962 employees received Christmas bonuses. (Some were not
received until June 1963 for reasons that will be explained herein.)
(c) On January 19, 1964, stage technician Allan Cole was laid off. Cole had the
least seniority among the stage technicians; also he had served as union observer in
the representation election on October 14, 1963. He was informed that the layoff
was a part of a general cutback, that it had nothing to do with his work and that
he would be called back when needed. Following the layoff,. Cole was recalled a
week later for 1 day of work; he was again called back to work on February 7,
1964, and was laid off'on March 5, 1964. He was offered temporary employment
on May 7, 1964, and again on June 23; 1964; on July 1, 1964, he, was offered a full-
time'position on the stage crew. He rejected these offers.3 -
(d) On February 29, 1964, the Union requested Respondent to bargain collec-
tively pursuant to certification issued February 27, 1964. On March 1, 1964,
Respondent refused, and continuously thereafter has refused, to bargain collectively
with the Union .4
(e) On'March 5, 1964, Assistant Stage Manager Bruce Lovelady was laid off.
After Cole, Lovelady had the least seniority among the stage technicians, and he was
told that his layoff was a part of Respondent's general cutback and that it had nothing
to do with his ability to handle the job. He was offered temporary employment on
May 5, 1964, and on June 23, 1964; on June 26, 1964, he was offered a "full time
position" due to the resignation of a stage technician. Lovelady rejected these offers.5
(f) In the early morning of October 27, 1964, Respondent discharged stage tech-
nician Donald W. Rux.
4. Contentions of Respondent
Respondent contends that the receiving of "tokes" from persons doing contractual
work for Respondent (such as entertainers) has always been against company reg-
ulations, unless it is pay for "extra work" performed outside an employee's duties
and work hour, and that dissention among stage technicians regarding a toke received
by Stage Manager Sy Lein caused the reiteration of company regulations on the
matter by the posting of the notice of December 23, 1963.
Regarding the Christmas bonuses, Respondent contends that it endeavored to
replace these bonuses with a profit-sharing plan but was ^ unable to have its plan
approved by the Internal Revenue Service. It announced to employees in June 1963,
prior to the advent of the Union, that the money set aside for the plan would be
distributed to eligible employees, and that in December 1963 only, merit checks would
be distributed to eligible employees based on length of service, and that as of that
time nothing was planned for 1964. Two stage technicians-Bruce Lovelady and
Paul Jordan-received merit checks in December 1963.
Regarding the layoffs of Cole and Lovelady in January and March, 1964, Respond-
ent contends that these layoffs were economically motivated and were part of a cost
reduction program, which program was instituted in stages or steps and was based
on reports and recommendations of a management consultant firm whose initial
8 On July 1, 1964 , he was asked to report by Sunday, July 5. He replied "Physically
impossible to give three days notice to present employer , lease our home here, move furni-
ture , and find apartment in Tahoe in July. Thanks for the offer but cannot accept at
this time . Would need at least four weeks to prepare." Although Respondent 's offer of
employment did not give Cole a "reasonable" period of time within which to report, Cole
on the other hand did not ask for or indicate that he would accept employment in a
reasonable period . I find that the 4-week period he stated that he would need to
prepare to be unreasonable . I therefore find that he rejected Respondent's offer of
July 1, 1964.
1 Respondent did not deny the allegations in paragraphs 7 and 8 of the consolidated com-
plaint herein and, pursuant to Section 102.20 of the Board's Rules- and Regulations,
the allegations are deemed to be admitted to be true by Respondent and are so found.
Respondent sought to have me receive evidence on, and consider the merits of, Re-
spondent 's objections to the election, but these objections have already been considered
and ruled upon by the Board , and I am bound by the Board' s determination . Thunder-
bird Hotel Company, 149 NLRB 362.
8In the last offer Lovelady was asked to report by June 30 . He replied "No mention
of unconditional reinstatement or backpay. The answer 1s no. This reply doesn't in
any way forfeit any backpay due me." Although Respondent' s offer did not give Love-
lady a reasonable time in which to report, I find that his answer constitutes a rejection
of offer of reemployment.
HARRAH'S CLUB 763
reports were received in September 1962. These two employees were selected for
layoffs strictly in accordance with seniority. Also it is contended that Lovelady is a
supervisor within the meaning of the Act.
Regarding the refusal to bargain, Respondent contends that there is no evidence
supporting the General Counsel's allegations of a demand and a refusal to bargain,
and furthermore that the certification is invalid, that Respondent's objections to the
election should have been sustained and that Respondent was erroneously denied a
hearing on its objections.
Regarding the discharge of Rux on October 27, 1964, Respondent contends that
he was discharged for sleeping on the job and neglect of duties.
5. Issues
The issues are (1) whether the announcement of December 23, 1963, regarding
tokes, and the replacement of general Christmas bonuses with limited merit checks
in December 1963, were discriminatorily motivated or were for the reasons contended
by Respondent; (2) whether the layoffs of Cole and Lovelady in January and March
1964 were discriminatorily motivated or for economic considerations; (3) whether
Respondent is obligated to bargain collectively with the Union; and (4) whether
Rux's discharge was discriminatorily motivated or was for cause.
B. Findings in Case No. 20-CA-2839
The General Counsel contends that the discontinuance of gratuities and Christmas
bonuses in December 1963, and the layoffs of Cole in January 1964, of Lovelady in
March 1964, and of Rux in October 1964, were discriminatorily motivated. In this
connection judicial notice was requested and taken of the findings of the Trial Exam-
iner adopted by the Board in Case No. 20-CA-2839. The following findings are
pertinent and material to the issue of Respondent's motive in the conduct complained
of herein. All of the following events and statements occurred during September
and October 1963.
On September 5, 1963, a conference was held at the Regional Office of the Board
in San Francisco, California, in connection with the representation petition filed by
the Union in Case No. 20-RC-5597. Lovelady was present at this meeting. It was
on this date that the stipulation for certification upon consent election was signed.
The next evening Stage Manager Sy Lein asked Lovelady for an account of what
had happened at the meeting at the Regional Office. When Lovelady related what
had occurred, Lein remarked, "I guess you know because you were at the hearing-
management thinks you are on the Union side." On September 9, Lein told Lovelady
that if the employees brought the Union in at this time, they would have less job
security, and would probably not all be kept on. On the morning of September 9
Producer Arthur Barkow stated to stage technician Rux, "Of course, you know the
crew will be cut back because of the union activity." He also told Rux that even
though the stage technicians had signed cards designating the Union, they could
still vote no in the election and that it would be advantageous to them if they did.
On the evening of October 15, 1963, the day after the representation election,
Robert Brigham, director of industrial relations, approached a group of the stage
technicians seated at a table in the employees' cafeteria. He stated "I have just been
made a fool of and I don't like it.... It may take me six to eight months to get
even, but I will," pointing to each of the members of the group and addressing them
by name. Brigham then returned to his own table in the cafeteria, where he remained
briefly, then started to leave. As he approached the exit, Brigham turned and pointed
to another table at which several other stage technicians were seated and stated
"I will get them too."
Soon afterward, Rome Andreotti, vice president of administration of Respondent,
notified Brigham that a member of the stage crew had complained that Brigham had
threatened the men. The following evening, October 16, Brigham encountered two
employees (Ponts and McNerthney) at the club; he told them that there seemed to
be some misunderstanding about the remarks he had made in the cafeteria. Brigham
stated, "What I said [which] may have been construed as a threat was that the crew
would be reduced in the next couple of months and that the next eight to ten months
would prove to be highly educational." He also stated that "he really didn't know
how he personally could get even with anybody, but the whole thing would be proven
out in the next months to follow, as the crew was cut back from 30 to 40 per cent."
On the next evening Brigham went to the cafeteria where he found a group of
the stage technicians. He told them that if he had either threatened or cursed them,
he wanted to apologize because he did not believe it necessary to threaten and would
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not want to curse. One of the employees interrupted Brigham and stated, "You
didn't curse us. You threatened us." To which Brigham rejoined, "If I did not
then, I do it [now]. I am a vindictive man, and, believe me, what I said still goes.
Within six to eight months this crew will be reduced 30 to 50 percent."
On October 16 or 17, 1963, Robert Vincent, director of entertainment, stated to
Lovelady, "Are you aware that we would have done anything to have stopped this
Union thing?" He added that management would have discharged Barkow, Lein, or
Vogt (Jacques A. Vogt, chief lighting technician), like the snapping of his fingers,
if necessary to combat the Union. He also stated to Lovelady that "Mr. Harrah was
basically against all Unions, that he didn't want any part of this or any other union,
that he had worked long and hard for his business and had gotten it where it was
today and he felt that he had the right to run it and control it the way he wanted it
without outside interference." Later the same evening Vincent told stage technician
Walker that he regarded Walker's conduct in voting for the Union as "very foolish,"
and his chances for a position with management "washed up."
Late in October 1963, while driving Lovelady to a local restaurant, Stage Manager
Lein remarked "If we have a show that only needs two ... or . . . three men, it
won't be like in the past where you all stayed on working. That is all we will use
and the rest of you will be out of work "
On October 17, 1963, Joseph L. Seeketski, a shift manager of Respondent, stated
to employee Karla Murray, wife of William F. Murray, a stage technician, "You
know there is a possibility of cutting down on the men back stage ... and you also
know that your husband could possibly be one of the men to go since he is lower in
seniority;" that in negotiating a union contract, it was probable that only a basic
crew would be retained at the club, and that it was "quite possible" that her husband
might be without a job.
C. Tokes
Prior to December 23, 1963, the stage technicians at the South Shore Room of
Respondent customarily were given gratuities, or tokes, from featured entertainers.
Usually the gratuities were in the form of money, although occasionally they were in
the form of material gifts. Based on the estimates of the stage technicians and
particularly on the records of stage technician William Murray, which show tokes
totaling $410 during 1963, I find that the stage technicians generally received in
excess of $300 annually in tokes.
Following the posting of the notice on December 23, token were no longer received
by the stage technicians, with the exception of an electric razor given to employee
Paul Jordan (when he was serving as entertainment lounge manager, outside the
appropriate unit). He told Dick Lane, his supervisor, of the toke, and Lane told
him to "keep it quiet, they might make you send it back."
Respondent contends that during all times material herein it has had a policy that
tokes are acceptable from customers only and not from noncustomers, that is,
persons who are under contract with Respondent or otherwise are performing a
service for or selling something to Respondent. Entertainers and featured perform-
ers are under contract with Respondent. In support of this contention Respondent
offered in evidence a booklet, "You & Your Job," published in June 1963, and dis-
tributed to employees, which contained the following statement of policy:
If you maintain Harrah's high standards of sincere friendliness, courtesy and
cheerfulness, you will find that a number of customers will appreciate your
attitude to the extent that you will be offered a gratuity, tip or "toke". These
are acceptable and we are pleased to see you receive them if offered under
the above circumstances.
This publication only indirectly suggests that tokes from other than customers are
outside the scope of the policy statement.
Early in 1964, in a reprinting of the booklet "You & Your Job," the following para-
graph was added on the matter of tipping or token:
When a service is performed not for a customer but for someone doing con-
tractual work for Harrah's and when Harrah's pays the employee specifically
for performing such service, no toke may be accepted by the employee perform-
ing such service.
Irrespective of these publications, the record is clear that it was an established
practice at the South Shore Room for entertainers, with very few exceptions, to give
tokes to the stage technicians. Walker's record on tokes covers a period of 2
years and 3 months prior to December 1963. Generally the tokes were handed
HARRAH'S CLUB 765
in envelopes to each of the stage technicians on the closing night of a show by one
of Respondent's supervisors, such as Producer Barkow or Stage Manager Lein; occa-
sionally the performer himself would give the tokes to the technicians.
Respondent contends that the incident that occasioned the December 23d notice
was the discontent among the stage technicians because of an alleged $800 toke given
by the Flower Drum Song Show to Stage Manager Sy Lein, which was kept by him
and not apportioned among the stage crew. Although this show had its own stage
manager, Lein assisted by passing out paychecks to its members and he did "a couple
of other things." Respondent contends that this was "extra work," but Patrick
France, vice president of public relations, testified that since the show had its own
stage manager, Lein's duties or functions were "much less" than he did when other
shows were there. According to the records of stage technician Murray, he received
no toke for this show.
Irrespective of the propriety of Lein's alleged conduct in retaining the total sum,
the Flower Drum Song Show was presented at the South Shore Room, in December
1962. It seems surprising that action on the matter was not taken until a year later.
In that interim following the Flower Drum Song Show, Murray, for one, received
$410 in tokes. Brigham could cite no other incident of a problem on tokes among
the stage technicians. It seems more likely, in view of the statements and conduct
of Brigham and other representatives of Respondent as found in paragraph B, above,
that following the representation election of October 14, 1963, Respondent was
looking for some explanation for the fact that all of the stage technicians voted for
the Union. Brigham testified that in October or November 1963, he was told by
Robert Vincent, director of entertainment, that "there was great discontent among
the stage crew because a large toke in the past had been misappropriated" by Sy Lein.
Brigham asked "a couple of the crew members about it." One was Lovelady and
he could not recall any other. He testified that Lovelady "told me so little I didn't
press the investigation." Nevertheless, Respondent then terminated Stage Manager
Lein, "based on this supposition and other alleged signs of misconduct or bad super-
vision," and canceled the Practice of tokes among the stage technicians.
Following the posting of the notice, Trudy Greimeister, the wardrobe mistress, not
in the bargaining unit, went to Robert Vincent, and inquired if the notice regarding
tokes included her. He told her that it did not. She has received tokes from enter-
tainers since that date. Counsel for Respondent contends that the tokes given her
were for "extra work." Greimeister testified that she worked with the chorus line
and that "if the others [the featured performers] need me, well, I think it is extra. I
don't know," and stated, "I always do what they ask me"; on cross-examination she
testified to an incident of assisting a dancing group and stated that "this is my regular
work."
I find that the notice of December 23, 1963, to stage technicians regarding token
and Respondent's action in thereafter prohibiting these employees from receiving
them from performers was caused by and in retribution for their union activities.
In all other departments I find that the regulations on tipping and tokes as
announced in Respondent's second booklet have been strictly adhered to both before
and after December 1963. But this does not discount the fact that gratuities to the
stage technicians was a well-recognized practice at the South Shore Room. There
is also evidence both for and against a finding that toking of stage technicians by
entertainers is a general practice in the entertainment business. There appears to be
places where it is done and places where it is not done. Irrespective of this, since
the giving of gratuities is initiated by the entertainer and the stage technician is
merely on the receiving end, and since all entertainers, with very few exceptions, gave
tokes at the South Shore Room, and the tokes were usually transmitted through super-
visory personnel, the practice of toking there clearly existed and was known and
accepted by management until the December 23, 1963, notice. Respondent has the
right to discontinue this practice, but not as a retribution to the employees because
of their union activities.
D. Christmas bonus
In 1962, Respondent endeavored to put into effect a profit -sharing program for
its employees . Details of such program were set forth in a booklet distributed to
employees in July of that year. With the institution of this plan , the Christmas
bonuses that employees had received were discontinued ; and those employees who
would become eligible to participate under this plan were not paid Christmas bonuses
in December 1 962. The profit-sharing plan was not approved by the Internal Revenue
Service. By a notice dated June 27, 1963, the employees were advised of this fact,
and were informed that because of the termination of the plan , no contribution to
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plan would be made by Respondent for the year ending July 30, 1963, and the
moneys that had been set aside by Respondent for the plan would be divided among
the eligible employees. It was announced that other employees who were eligible
for but did not receive Christmas checks in December 1962 would be given Christmas
bonus checks at the same time. It was also announced in June 1963 that "in
December, 1963, only, checks will be distributed to all deserving employees based
on length of service." They were advised that these would be "merit checks" and
would be "distributed to eligible employees on the basis of length of service."
Nothing was planned for 1964.
In December 1963, two of the stage technicians received merit checks; these were
Bruce Lovelady and Paul Jordan. At the time, Jordan was working as lounge man-
ager, outside the appropriate unit, but during most of the preceding year he had been
a stage technician, and France, vice president of public relations, testified that the
merit check was paid him based primarily on his work as a stage technician. In
the latter part of June 1963, stage technicians Monte Norman and Dick Pouts
received delayed 1962 Christmas bonus checks.
Following the distribution of merit checks in December 1963, three stage tech-
nicians filed grievances with the board of review concerning their failure to receive
such checks.° These were Tony Himenez, Don Rux, and Allan Cole. The board
of review, with Lovelady participating as a member, decided that it had no jurisdic-
tion over the matter of the issuance of merit checks. During the course of the review
board's consideration of the matter, it was pointed out by Entertainment Director
Vincent that if Lovelady could name any stage technician who was qualified to per-
form the various functions that Lovelady performed and could do them as well, a
merit check would be given to him.
The General Counsel endeavored to show that merit checks were distributed in
large numbers to employees in other departments whereas among the stage technicians
only 2 out of 11 received them. Brigham testified that in some departments, out of
approximately 75 departments or units, 80 percent of the employees received merit
checks, and that he was sure there were some departments in which no merit checks
were given as "we have large and small departments, and difficult supervisors, and we
have 75 departments, and if I had to do the research, I could find the extremes." He
testified he had no knowledge of the percentage of Respondent's total employees
that received merit checks.? Several of the stage technicians testified to knowledge
of certain employees and supervisors receiving merit checks, but there is no cogent
evidence as to the percentage receiving them nor as to any definitive standards used
for determining qualifications.
The General Counsel urges that Christmas bonuses were discriminatorily denied
to stage technicians because of their union activities. Two of the stage technicians,
or approximately 20 percent of them (including Lovelady, an outstanding union
advocate), did receive merit checks. There is no evidence upon which to find that
this is out of balance; and in the absence of evidence of some standards for selection
and evidence of qualification of certain of, or all of, the stage technicians, I find that
the General Counsel has not sustained the burden of proof that merit checks were
discriminatorily denied to stage technicians.
E. The refusal to bargain
The facts constituting Respondent's refusal to bargain are not in dispute; that is,
the Board's determination of the appropriate unit, the results of the representation
election and the Board's certification of the Union as the bargaining representative,
the Union's request for bargaining on or about February 29, 1964, and the Respond-
ent's refusal on and after March 1, 1964, to bargain collectively with the Union.
Respondent contends that the Board has no jurisdiction over Respondent and that
the certification is invalid as Respondent's objections to conduct affecting the results
of the election were improperly dismissed by the Board and further that the dismissal
was without affording Respondent the opportunity and right to a hearing on the
matter.
9 A board of review consisted of employee and management representatives and con-
sidered grievances filed with it by employees.
7 When asked on cross -examination if it was more or less than 10 percent, Brigham
imagined it was more ; when asked if it was more than 50 percent , he testified he did not
believe it was more than 50 percent and that these estimates are based on the fact that
50 percent " is a big number and 10 is a little number."
HARRAH'S CLUB 767
I have no authority to* review or consider issues decided by the Board upon which
its certification of the Union herein is based.8 Respondent, having refused to bargain
with the Union as the certified bargaining representative on and after March 1, 1964,
has thereby violated Section 8(a) (5)'of the Act.
Furthermore, Respondent, without consultation or bargaining with the Union on
the matter of gratuities or tokes, did on December 23, 1963, discontinue the practice
of tokes for stage technicians, and did thereby unilaterally change a condition of
employment and the remuneration of the stage technicians. By this conduct Respond-
ent violated Section 8(a) (5) of the Act.
The General Counsel also contends that Respondent unilaterally discontinued
Christmas bonuses for the stage technicians and thereby refused to bargain with the
Union on this matter. But, the changeover from Christmas bonuses to the profit-
sharing plan and merit checks for "December, 1963, only" was decided and announced
to employees before the advent of the Union. The announcement was made to the
employees in June 1963, and as found by the Board in Case No. 20-CA-2839, the
Union "began to organize the stage crew early in August 1963." Therefore, since
Respondent's action canceling Christmas bonuses was done before the Union became
bargaining representative for the stage technicians, and further having found that
there was no discriminatory denial of merit checks to stage technicians in December
1963, I find that there has been no unilateral action violative of the Act by Respondent
on either the Christmas bonus or the merit checks.
F. The layoffs of Cole and Lovelady
Respondent contends that the layoffs of Cole and Lovelady were the result of
economic measures instituted on the recommendations of a management consultant
firm and that Cole and Lovelady were the stage technicians with the least seniority and
were selected in the order of seniority. Respondent further contends that Lovelady, as
assistant stage manager, was a supervisor within the meaning of the Act. The General
Counsel contends that Respondent's resentment toward the stage technicians because
of the results of the representation election, and Respondent's expressed intention to
retaliate were clearly manifested, and found by the Board in Case No. 20-CA-2839,
and that the economy move was used as a pretext for the layoffs.
Respondent's contention that Lovelady, as assistant stage manager, was a super-
visor, I find to be without merit. Stage Manager Sy Lein delegated to Lovelady the
job of drawing up the "cue sheets," or list of cues or tasks to be performed by members
of the stage crew at specified points or times during the course of a show. He would
show Lein how he had designed and arranged the setup for his approval. Lein or
Lovelady would call the cues to the stage hands, where necessary; in Lein's absence
Lovelady directed this work. He also pulled cues himself. He had no authority to
hire, fire, transfer, promote, or discipline any employee. His wages were $18 a shift
when he started his employment with Respondent and were $26 a shift when he was
laid off. One stage technician, Richard Ponts, was receiving $27 a shift at the time.
I find that Lovelady was not a supervisor within the meaning of the Act.
In May or June 1962, Respondent engaged the services of the management con-
sultant firm of Strong, Wishart and Associates. Respondent employs several thousand
persons in approximately 75 departments or units. The first report of the consultant
firm was issued in September 1962, and recommended a general reorganization of
Respondent's operations; it set forth lines of authority and job and departmental
jurisdictions. This report did not recommend manpower totals or optimums. Also,
based upon the advice of the consultants, Respondent instituted budgeting and wage
ratio reports for each department. Respondent's fiscal year is from July 1 through
June 30. In early 1963, Respondent began more earnest efforts to forecast budgets.
Economy was affected in a number of ways. In the latter part of 1963 or the first
part of 1964, a secretarial and stenographic pool was created for the first time at
Respondent's Lake Tahoe operations; this caused the reduction of two secretaries, one
of whom was offered another position. In the latter part of 1963, the chorus line at
the South Shore Room was reduced from 16 to 12 girls. (The chorus girls are not
employed by Respondent but are employed by an independent contractor, and this
reduction reduced Respondent's reimbursements to said contractor.) The advertising
budget was cut between $100,000 and $200,000; the size and number of ads were
reduced. The number of automobiles assigned to directors was reduced. The number
of acts featured in the lounge was reduced from four or five to only one or two, and
the hour's of entertainment in the lounge was reduced from 24 to approximately 12.
8 Thunderbird Hotel Company, supra.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The purchasing department at Respondent's Lake Tahoe operation was abolished,
leaving only a senior buyer and a total staff of three persons. This effected a reduction
of approximately three to five persons, but with the exception of one or two, these
employees were offered other positions. The position of director of gaming was
eliminated at the Lake Tahoe operation , causing a $20,000 annual savings; the person
in this position was transferred to the position of assistant club manager at Respond-
ent's Reno operation . In the engineering and construction department an employee
quit during the fiscal year 1963-64 and was not replaced. In 1962 the food and
beverage departments merged and the positions of scheduling supervisor, head hostess,
and head busboy were eliminated, two of these persons were terminated, one for not
doing good work, and the fate of the head hostess is not disclosed in the record. In
the South Shore Room, Respondent sought to effect a savings by eliminating or
obtaining less expensive opening acts and by having more "light" shows and less
"heavy" shows .9
By these economy measures the overall 1963-64 budget was reduced 10 percent,
and further 10 percent reduction was planned or forecast for the 1964-65 budget.
Some personnel reduction did occur; some of it was by attrition. Where it occurred
otherwise, an effort was apparently made to find other positions for meritorious
employees. Nevdrtheless, some employees were terminated, other than those that
occurred normally and by change of business seasons.10
On January 16, 1964, Allan Cole was called into the office of Producer Barkow
and told that a general cutback was taking place throughout Respondent's organiza-
tion, and since he had the least seniority he would be the first to be laid off, and that
it had nothing to do with his work. He was laid off on January 19, 1964; but
apparently the need for his services was not carefully considered since he was called
back a week later for 1 day's work; then he was again called back to work on
February 7, 1964, and worked for 4 weeks, until March 5, 1964, receiving approxi-
mately $ 1,000 for his services during this period.
On March 5, 1964, both Cole and Bruce Lovelady were laid off. Their choice and
order of selection was in strict accordance with seniority. In fact, Lovelady was
highly regarded by Respondent for his ability and diversity; he had previously been
picked, out of seniority, for the position of assistant stage manager; also he was one
of the two employees out of the 11 stage technicians in December 1964 to receive a
merit check (this includes Paul Jordan who at that time had been transferred to the
position of lounge manager).
Here again the layoffs were ordered by top management without consideration of
the needs of the department. Patrick France, vice president of public relations
(responsible for entertainment, publicity, special events, and advertising), testified
that "I made a decision I wanted to cut in all departments, wherever I could, and
every way I could. They [Entertainment Department] wanted to postpone it, and I
wouldn't let them. In other words, I told them to do something. They were disobey-
ing me, and I said, `I want to do it now."' France did not take into account the person-
nel requirements of the stage crew. He was asked , "Isn't it true in order to utilize
those props you needed all of the men in the stage crew at that time [March 5, 1964]?"
He testified "I don't know how many men we needed. I asked my Entertainment
Department to simplify the productions and they said to me, `Well, we want to do it
starting with, the next show.' I said, `I want to start now,' and I said the same thing
to my Advertising Department, Public Relations, all departments. I said, `I want to
start immediately."' Also, at this particular time Respondent was short a full-time
stage manager (Sy Lein had been terminated in November or December 1963 and
Producer Barkow was doubling as stage manager and as producer). It seems a
rather inept time to lay off the assistant stage manager.
This action of Respondent took place within a few days of the Board's Decision
overruling Respondent's objections and certifying the Union (February 27, 1964), the
Union's request for collective bargaining (February 29, 1964), and Respondent's
refusal (March 1, 1964).
The issue here is whether the economy program of Respondent was "used" as a
pretext to accomplish the termination of stage technicians. Respondent was economy
conscious and was successfully reducing costs and expenses. At the same time
e A heavy show as distinguished from a light show, usually has more members, more
costumes , more scenery , and more changes and the like.
10 The normal turnover of personnel is substantial. For example, the total hired and
terminated or laid off in January 1963, was 46 and 110, respectively, in June 1963, 772
and 167, in January 1964, 65 and 128, and in June 1964, 883 and 201. These occurred
primarily in the gaming and food departments , but also in other departments.
HARRAH'S CLUB 769
Respondent was antiunion conscious and had engaged in unfair labor practices (Case
No. 20-CA-2839) during the fall of 1963, which unfair labor practices remain
unremedied. The layoffs served both purposes.
When we consider the timing of the layoffs, the unreasoned haste with which they
were done, and the warning and predictions that this would be a consequence of
union activity, the evidence appears clear and overwhelming that the layoffs stemmed
from Respondent's strong opposition to the union activities of the stage technicians,
and that the economy program was used as a pretext to accomplish these acts. On
September 9, 1963, Stage Manager Lein told Lovelady that if the employees brought
the Union in, they would probably not all be kept on. On the same day, Producer
Barkow told Rux that the crew would be cut back because of the union activities.
On October 15, 1963, the day after the representation election, Director of Industrial
Relations Brigham told a group of stage technicians that he had been made a fool of
and that it may take him 6 to 8 months to get even, but that he would. On Octo-
ber 16 or 17, 1963, Director of Entertainment Vincent told Lovelady that Respond-
ent would have done anything to have stopped the Union, including the discharge of
supervisors.11 On September 1, 1963, Respondent discharged stage technician
Robert Wetherill for his responsibility in organizing the stage technicians for the
Union. In January, 1964, Patrick Fiance made the following statement to stage
technician Rux:
This guy Lovelady-he has you bamboozled. He has you saying he is the best
man for the job of stage manager . . . . Well, time is running out. If you and
Dick Ponts will try to get a new vote for the Union contract, I will take it from
there. You and Dick will be the top on the list for the stage manager's job and
more money .... This guy Wetherill, the guy with the mustache, is telling you
guys what to do. You are letting a man who made $3200 last year and you
made $10,000 tell you what to do. . . Do you think in the past before this
Union came up you would have gotten two weeks off for watching television ....
No, you would not have. If the Union comes in, you are going to be watched
very closely, and one more mistake and you are through." France also told
him he knew of Rux' impending marriage to one of the girls in the chorus and
stated, "Do you know what will happen if I went to George Morrow and told
him to get rid of her? .... Do you think I would hesitate to tell him to get rid
of her? .... Think about it You get together with Dick Ponts and talk about
it, and I will take the ball from there." He gave Rux his unlisted home telephone
number.12
It is feasible that with Respondent's economy moves, a reduction in the total
number of stage technicians would have come about at some point. In fact the total
personnel in the stage crew was reduced from 11 to 10 in November 1963, at which
time Paul Jordan was transferred to the position of lounge manager. About the
same time Stage Manager Sy Lein was terminated, further reducing the complement
of the stage crew. I am inclined to the view that if any further reductions would
have occurred, absent the union activities of the stage technicians, they would have
been accomplished by attrition, or by the reassignment of stage technicians to other
positions. On March 15, 1964, Paul Jordan quit his position of lounge manager; also,
in June 1964 stage technician Richard Ponts quit. In August 1964 an addition was
made to the stage crew by the employment of Douglas Bushousen as stage manager.
Both Lovelady and Cole were offered temporary employment during the months
following their layoffs and in the latter part of June 1964 (a little over 3 months
later), Lovelady was offered a permanent position on the stage crew, and on his
decline, Cole was offered the position. I am convinced by the evidence that in the
absence of the union activities of the stage technicians, both Lovelady and Cole would
n Stage Manager Sy Lein was discharged within a few weeks thereafter, ostensibly
based on the alleged $800 toke he received the prior year from the Flower Drum Song Show
12 France denied all incriminating statements attributed to him by Rua , but admits
the reference to Wetherill and telling Rux on the occasion that although everyone thinks
Lovelady has the inside track for stage manager, it is not necessarily true and that
Ponts and Rux have as much experience as Lovelady, as far as he is concerned. Rux'
version of the conversation is more consistent with Respondent's general attitude toward
the Union as found by the Board from expressions of other supervisors and I credit it;
also it supplies a motive for France's encouragement of Rux and Ponts for the job rather
than Lovelady. I was not impressed by France's denials.
On a prior occasion Rux and two other employees were disciplined for watching tele-
vision during a monologue by Jack Benny on stage and received 2 weeks off without pay.
221-731-67-vol. 15 8-5 0
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have continued in their employment with Respondent, and I find that the layoff of Cole
on January 19, 1964, and again on March 5, 1964, and the layoff of Lovelady on
March 5, 1964, were discriminatorily motivated, and constitute violations of Section
8(a)(1) and (3) of the Act.
G. The discharge of Rux - . .
On October 27, 1964, Respondent discharged stage technician Donald Rux.
Respondent contends that it was caused by his sleeping on the job and neglect of
duties. The General Counsel contends that it was a continuation of Respondent's
predicted effort to separate stage technicians because of their union activities by
using trivial reasons as pretexts for terminations.
On October 26, 1964, Rux was scheduled to "open"; that is, he was scheduled to
report for work at 5.30 p.m., before the other stage technicians, and perform a set
group of tasks, including sweeping and cleaning the stage, setting the house lights,
placing the band cart in proper position, lowering the curtain, "clipping the legs" and
cuing the orchestra for the dinner music, which commenced at 7:30 p.m.
At 7 p.m. Stage Manager Bushousen arrived and found Rux sitting at the stage
manager's desk with his head on his arms. Rux did not hear Bushousen enter and
apparently was asleep.'-3 Bushousen took him by the arm, shook him and aroused
him, and stated, "You are kind of out of it, aren't you, boy?" Rux replied, "I don't
feel well. I think I have the flu." Bushousen stated he thought 8 hours of sleep
would help his condition. Then, or shortly thereafter, he gave Rux a small sack that
Rux' wife had given him to give Rux. Rux stated that he was going to the booth to
put his coat away and take two pills. Shortly thereafter, Bushousen called him on
the intercom to come down on the stage and fix some broken masking, which
Rux did. Rux then returned to the lighting booth, took some cough medicine, felt
dizzy and "like I was going to collapse." There was a blanket on the floor between
the sound panel, the amplifiers, and the wall, a space of about 26 inches. There is a
counter in the lighting booth that blocks one's vision of this area. Rux lay down on
the blanket and then either fell asleep or passed out.14
About 7:20 p.m. Bushousen went on stage and noticed that some of the opening
work remained to be done and Rux was not about. Rux had not "clipped the legs"
nor lowered the grey curtain next to the band cart. Bushousen went to the light-
ing booth and then downstairs to the employees' cafeteria looking for Rux. He
asked two stage technicians if they had seen Rux and they replied that they had not.
He asked them to help him complete the opening chores, which were to be com-
pleted by 7:30 p.m.
When the dinner music started at 7:30 p.m., Bushousen observed that the light
to be focused on the conductor was not on. He went to the lighting booth to see
why this light was not on. Stage technician Fred Marsden , who was assigned to
the dinner music that night was there , and Bushousen told him he wanted to see
Rux as soon as Rux came to the booth , or if time did not permit , then right after
the show. Marsden had arrived about 7:30 p.m. as his assignment that evening
started at 7:30 p.m. He did not notice Rux lying on the blanket until about 7:40
p.m. Rux appeared pale and ill, and "looked extremely bad."
The first thing Rux remembers after lying down is Marsden asking him where the
dimmer switch was. Marsden told him that Bushousen wanted to see him. He
continued to lie on the blanket as he did not feel well. About 7:50 p.m. stage
technician Helderbrand came to where Rux was lying and asked him how he felt.
Rux replied that he felt "lousy." Helderbrand told him, "Well, it is about ten min-
utes to 8:00. You had better get up and collect yourself so you can do the show."
At 8 p m. Bushousen called the booth on the intercom to give some instructions and
Rux answered; he then knew that Rux was there. Rux completed his tasks that
evening although he regurgitated and used the bathroom several times during the
course of the evening.
After the first evening performance, about 9 p.m., Rux went to Bushousen's
office and asked if he wanted to see him. Bushousen told him he would see him'
18 Rux admitted on cross-examination that in a termination interview with Personnel
Manager Ross, "I may have said something to the effect that I might have dozed off."
14 ltnshousen testified that Rux did not tell him until 11:30 that evening that he thought
he was coming down with the flu and and he denies that Rux said anything about tak-
ing pills. Rux ' version of the timing of the statement about the possibility of his having
the flu and the reference to the pills seems more plausible and I credit it ; he had just
been found apparently asleep on the job by his supervisor and an explanation seemed
in order ; he had just been given a sack left by his wife , and in his condition the taking
of pills seemed in order.
HARRAH'S CLUB 771
later. Rux, assigned to the opening chores, had duties to perform between per-
formances. After the close of the last performances, about 1:30 a.m., Rux was
called into Bushousen's office. Producer Barkow was also present. Bushousen
told Rux about the opening chores that were not completed. Rux stated that he
had forgotten to lower the drapes and had gone to the booth and had fallen asleep
or passed out, he did not know which; that his wife had told him he should not go
to work, that he was too sick to work and that he should go to the doctor; and that
the only reason he had come to work that evening was that he knew two men were
off and had left the area and could not be contacted. Bushousen stated he could
not accept Rux's explanation, that it was his decision to make about replacements
or personnel shortage, and that it was Rux's duty to let him know he was sick.
Rux was told that he was terminated He stated he was going to ask for a board
of review. As he was leaving he stated, "I want to tell you something, Art [Barkow),
and I want Doug [Bushousen] to hear it. I think this is a pretty chintzy way to get
rid of the Union."
Prior to the termination of Rux that evening, Bushousen informed his super-
visor, Producer Barkow, as to what had happened and inquired as to whether he
could terminate Rux. Barkow suggested that they call Brigham, director of indus-
trial relations. At the time unfair labor practice charges involving the layoffs of
Cole and Lovelady were pending against Respondent. Bill Ross, manager of per-
sonnel, Robert Vincent, entertainment director, and Rome Andreotti, vice president
of administration, were called on the matter. Rux's personnel file and prior record
were reviewed. On a prior occasion he had been given 2 weeks off for watching
television on the job. Bushousen had started as stage manager in August 1964, but
during the time between then and October 27, 1964, he had occasions to criticize
Rux about the manner in which he performed certain tasks. • Early in September
1964, Bushousen criticized Rux for a "sloopy job" in opening the show, and Rux
suggested a more specific outline of duties would be helpful. On another occasion
a couple of lights came on that should not have been on during the show. Rux had
not checked "these two particular dimmers." On another occasion Rux and another
stage technician left drapery on the floor. On another occasion Rux questioned
Bushousen's directions to do certain work after the second performance and in a
certain manner. Rux suggested it should have been done between shows and in a
different way. All of these matters were, in fact, minor, but they caused some irri-
tation to Bushousen. After consideration of Rux's file and record, Bushousen
decided to terminate him for sleeping on the job and neglect of duties on the eve-
ning of October 26, 1964, and his failure to communicate with him to his condi-
tion; and Respondent representatives consulted concurred.
The General Counsel contends that the assigned reason for Rux's discharge is
trivial and that if it had not been for the union activities of the stage technicians,
Rux would not have been terminated for his conduct on October 26. The record
contains substantial evidence of union animus by Respondent; as pointed out in
prior paragraphs, Respondent predicted a reduction -in the number of stage techni-
cians because of their union activities, and Rux was told in January 1964, "one more
mistake and you are through." But this cannot mean that every termination is
illegally motivated because it coincides with these predictions and placates Respond-
ent's union animus. Respondent may still discipline the conduct of its employees.
There are some issues of fact as to whether Rux was in fact ill or merely sleepy,
and if ill, when the illness started and whether it was caused or aggravated by a
hunting trip earlier the same day; but I do not consider it material as to what caused
his condition on the evening of October 26, or how long it had lasted prior to that
evening. He had had a cold for about 2 weeks, and although he may have
neglected proper care of it, nevertheless he was ill on the evening of October 26.
This is affirmed by medical examination and treatment on October 27, 1964. Judg-
ing from Rux's testimony and that of other employees, his illness had reached seri-
ous proportions, rendering his capacity to work highly questionable. Because of the
gravity of the matter he certainly should have communicated it to Bushousen for
his judgment as to what should be done. Merely stated to him, "I don't feel well. I
think I have the flu" and that he was going to take two pills does not convey to
Bushousen the true seriousness of his condition. To Bushousen he looked "tired,"
but only Rux (and perhaps Marsden and Helderbrand) knew the extent of it. To
Bushousen, Rux, an employee with whom he had had some friction, was caught
asleep on the job and later could not be located to complete his opening chores
(because he had again fallen asleep or passed out-this, of course, was unknown to
Bushousen until later). Rux's excuse was that he was very ill, but this he failed to
communicate to his superior until his termination interview.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In consideration of Rux's conduct on the evening of October 26, his failure to
communicate and level with the stage manager about his condition , and his past
record and relations with Bushousen, I find that the preponderance of the evidence
supports the conclusion that Rux's discharge was for cause.I5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes, burdening and obstructing commerce and the tree
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by
the discriminatory layoffs of employees Lovelady and Cole, and having found that
Respondent offered reinstatement to these employees on June 26 and July 1, 1964,
respectively, it will be recommended that Respondent make them whole for any loss
of pay they may have suffered, if any, by reason of the discrimination against them,
by payment to each of them of a sum of money equal to the difference, if any,
between the wages they would have earned absent the discrimination, and the
amount they actually earned, with interest thereon; backpay and interest is to be
computed in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent discriminatorily and unilaterally discontinued the
practice among the stage technicians of receiving tokes or gratuities from enter-
tainers at the South Shore Room, it will be recommended that Respondent reinstate
this practice as it existed prior to its discontinuance on December 23, 1963, and
that Respondent make whole the stage technicians for loss of remuneration that
they suffered by reason of this discrimination against them, with interest thereon;
the remuneration lost by each of the stage technicians and interest thereon is to be
computed in the manner prescribed by the Board in F W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
To remedy Respondent's refusal to bargain, it will be recommended that it cease
and desist therefrom and that it bargain collectively with the Union, upon request,
and that it cease and desist from making any changes in the remuneration or work-
ing conditions of the employees in the appropriate unit without first discussing and
bargaining with the Union on such matters. I shall also recommend that the
Respondent post at its Lake Tahoe operation, the notice attached to this Decision
as an appendix.
CONCLUSIONS OF LAW
1. Respondent, Harrah's Club, is, and at all times material herein has been, an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
2. International Alliance of Theatrical Stage Employees and Motion Picture
Operators of the United States and Canada, Local 363, AFL-CIO, is, and at all
times material herein, has been , a labor organization within the meaning of Section
2(5) of the Act.
3. By laying off Allan Cole on January 19, 1964, and again on March 5, 1964,
and by laying off Bruce Lovelady on March 5, 1964, Respondent has thereby
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
16 The General Counsel contends that prior to the Union, employees were not discharged
for conduct similar to that of Rux Rux and Marsden testified to the following Incidents.
In August or September 1963, Richard Ponts became very ill with vomiting and diarrhea
and could not continue his work and went home . Supervisor Jacques Vogt did his as-
signments. About 1962 stage technician Jim Craig regurgitated at work, went to
the bathroom and did not continue his work that evening. About 1960 stage technician
Ron Quinn came to work intoxicated and Supervisor Barkow sent him into the "ramp"
room to sleep it off. These incidents are similar to that of Rux only in illness on the
job; there Is no showing of a failure to communicate with management regarding the
condition nor a failure to continue working without knowledge and direction of manage-
ment in these other incidents.
HARRAH'S CLUB 773
4. All stage technicians, apprentice stage technicians, and sound console operator
in South Shore Room employed by Harrah's Club, Lake Tahoe, Nevada, excluding
all other employees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
5. At all times material herein, the Union has been the exclusive bargaining
representative of the employees in the aforesaid appropriate unit within the meaning
of Section 9(a) of the Act.
6. By refusing on and after March 1, 1964, to recognize and bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit, Respondent has thereby engaged in and is engaging in an unfair
labor practice within the meaning of Section 8(a) (5) of the Act.
7. By unilaterally discontinuing on December 23, 1963, the practice among the
stage technicians of receiving gratuities , or tokes, from entertainers at the South
Shore Room of Respondent, without discussing or bargaining with the Union on
this matter, and because of the union activities of the employees, Respondent has
thereby engaged in an unfair labor practice within the meaning of Section 8(a)(3).
and (5) of the Act.
8. By the conduct described above in paragraphs 3, 6, and 7, Respondent has
thereby interfered with, restrained, and coerced employees within the meaning of
Section 8(a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not engaged in an unfair labor practice within the meaning
of Section 8(a)(3) or 8(a)(1) of the Act by the discharge of Donald Rux on
October 27, 1964, nor has Respondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1), (3), or (5) of the Act as alleged regarding the Christ-
mas bonus or merit checks in December 1964.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and-conclusions of law, and the
record herein, and pursuant to Section 10(c) of the Act, I recommend that Harrah's
Club, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally charging the remuneration or working conditions of employees
in the appropriate unit without discussing and bargaining with the Union on such
matters, and refusing to bargain collectively with the International Alliance of
Theatrical Stage Employees and Motion Picture Operators of the United States and
Canada, Local 363, AFL-CIO, as the exclusive bargaining representative of all
stage technicians, apprentice stage technicians, and sound console operator in the
South Shore Room employed by Harrah's Club, Lake Tahoe, Nevada, excluding all
other employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in or activities on behalf of the Union, or any
other labor organization of its employees, by laying off employees or discontinuing
the practice of receiving gratuities or otherwise discriminating against employees in
regard to hire or tenure or any terms or conditions of employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join, or assist the Inter-
national Alliance of Theatrical Stage Employees and Motion Picture Operators of
the United States and Canada, Local 363, AFL-CIO, or any other labor organiza-
tion, except to the extent that such rights might be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the International Alliance of Theatri-
cal Stage Employees and Motion Picture Operators of the United States and Canada,
Local 363, AFL-CIO, as the exclusive bargaining representative of all the employees
in the above-named appropriate unit, and, if an understanding is reached, embody
such an understanding in a signed agreement.
(b) Reinstitute the gratuity or toke practice for the stage technicians as it existed
prior to December 23, 1963, and make whole all stage technicians for losses of
remuneration suffered as a result of this discrimination, in the manner set forth in
the section of this Decision entitled "The Remedy."
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole Allan Cole and Bruce Lovelady for any loss of pay they may
have suffered by reason of Respondent's discrimination against them in the manner
set forth in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay and the amount of gratuities due under the terms
of this Recommended Order.
(e) Post at its Lake Tahoe, Nevada, installation, copies of the attached notice
marked "Appendix." 16 Copies of such notice, to be furnished by the Regional
Director for Region 20, shall, after being signed by a managing representative of
Respondent, be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that such notices are not altered, defaced,
or covered by other material.
(f) Notify the Regional Director for Region 20, in writing, within 20 days of
the date of the receipt of this Decision, what steps Respondent has taken to comply
therewith.17
IT IS RECOMMENDED that the complaint be dismissed insofar as it alleges an unfair
labor practice with regard to the matter of the Christmas bonus or the merit checks
in December 1964, and insofar as it alleges a discriminatory discharge of Donald
Rux.
IT IS FURTHER RECOMMENDED that unless, within 20 days from the date of this Deci-
sion , the Respondent shall notify the said Regional Director, in writing, that it will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order requiring the Respondent to take the aforesaid action.
1e In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "Recommended Order of a Trial
Examiner" In the notice. In the additional event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
17In the event that this Recommended Order is adopted by the Board, paragraph 2(f)
hereof shall be modified to read: "Notify the said Regional Director, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYESS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Alliance of Theatrical Stage Employees and Motion Picture Operators of
the United States and Canada, Local 363 , AFL-CIO, or any other labor orga-
nization of our employees , by laying off employees or discontinuing the practice
of their receiving gratuities or tokes from entertainers or otherwise discriminat-
ing against any employee in regard to hire, tenure , or any terms or conditions of
employment.
WE WILL NOT refuse to recognize or bargain collectively with the above-
named union as the exclusive representative of our employees in the bargaining
unit described below, nor will we make unilateral changes in the remuneration
or working conditions of our employees without discussing and bargaining with
the Union regarding such matters.
WE WILL NOT in any manner interfere with , restrain , or coerce any of our
employees in the exercise of their rights to self-organization , to bargain col-
lectively through representatives of their own choosing , and to engage in any
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain
from any or all of such activities , except to the extent that such rights may be
affected by the provisions of Section 8(a) (3) of the Act.
FLORENCE PRINTING COMPANY 775
WE WILL make whole Allan Cole and Bruce Lovelady for any loss of pay
they may have suffered as a result of the discrimination against them.
WE WILL reinstitute the gratuity, or toke, practice for the stage technicians as
it existed prior to December 23, 1963, and WE WILL make whole all stage tech-
nicians for losses of remuneration suffered by them as a result of our discon-
tinuance of this practice.
WE WILL bargain collectively upon request with International Alliance of
Theatrical Stage Employees and Motion Picture Operators of the United States
and Canada, Local 363, AFL-CIO, as the collective-bargaining representative
of all our employees in the unit described as follows:
All stage technicians, apprentice stage technicians, and sound console
operator in the South Shore Room employed by Harrah's Club, Lake
Tahoe, Nevada, excluding all other employees, guards, and supervisors as
defined in the Act.
All of our employees are free to become or to remain or to refrain from becom-
ing or remaining members of the above-named Union or any other union, except
to the extent that such rights may be affected by the proviso in Section 8(a)(3) of
the Act.
HARRAFI'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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 450
Golden Gate Avenue, Box 36047, San Francisco, California, Telephone No.
556-0335.
Florence Printing Company and Charleston Typographical
Union No. 43 . Case No. 11-CA-028. May 10, 1966
SUPPLEMENTAL DECISION AND ORDER
On November 21, 1963, the National Labor Relations Board issued
its Decision and Order in the above-entitled proceeding,' finding,
among other things, that the Respondent's employees had engaged in
an unfair labor practice strike, and ordering the Respondent to offer
to all the strikers, upon their application, reinstatement to their former
or substantially equivalent positions, and to make them whole for any
losses of pay they might suffer as a result of failure to reinstate them
within 5 days after their application. Thereafter, the Board's Order
was enforced by the United States Court of Appeals for the Fourth
Circuit 2
Pursuant to a backpay specification and appropriate notice issued
by the Regional Director for Region 11, a hearing was held on June 23
and 24, 1965, before Trial Examiner Maurice S. Bush, for the purpose
of determining the amounts of backpay due the claimants.
1145 NLRB 141.
2 Florence Printing Co. v. N.L.R.B., 833 F. 2d 289.
158 NLRB No. 1.