Harrah's Club

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 433 (N.L.R.B. 1969)

HARRAH 'S CLUB 433
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
Harrah 's Club and International Alliance of
Theatrical Stage Employees & Motion Picture
Operators of the United States and Canada, Local
363, AFL-CIO, Petitioner . Cases 20-CA-3009,
20-CA-3009-2, 20-CA-3338, and 20-RC-5597'
December 16, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 10, 1966, the National Labor Relations
Board issued a Decision and Order' in which it
found that Respondent had violated Section 8(a)(5),
(3), and (1) of the National Labor Relations Act, as
amended, by its refusal to recognize and bargain
with the Union as the representative of its
employees in an appropriate unit; by its unilateral
discontinuance of the practice of permitting unit
employees to accept gratuities; and by its
discriminatory layoff of employees Cole and
Lovelady. Accordingly, the Board ordered
Respondent to cease and desist from engaging in
such activities and to take certain affirmative action
designed to remedy these unfair labor practices.
Thereafter, the General Counsel filed a petition for
enforcement of the Board's Order with the United
States Court of Appeals for the Ninth Circuit, and
Respondent filed an opposition thereto in which it
requested that the Court deny the petition for
enforcement, or in the alternative that the Court
remand this proceeding to the Board for the purpose
of permitting Respondent to adduce certain
additional evidence.
In its Decision,' dated November 12, 1968, the
Court expressed agreement with some, but not all of
the Board's findings. The Court agreed that there
was substantial record evidence to support the
Board's findings that the layoffs of employees Cole
and Lovelady4 and the discontinuance of the practice
of permitting employees to accept gratuities were
discriminatorily motivated. However, the Court also
concluded that the Union' s status as bargaining
representative was drawn into question by the
Board's failure to grant Respondent a hearing on its
objections to the representation election upon which
the Union's certification is based.' Accordingly, the
Court remanded the proceeding to tlF Board with
directions that a hearing be conducted on
'Case 20-RC-5597 was consolidated with and made a part of the
proceeding by order of the Regional Dirctor for Region 20 , dated March
13, 1969.
'158 NLRB 758.
Respondent's objections. Pursuant thereto, the
Board issued an Order on March 3, 1969, reopening
the record and directing a hearing before a trial
examiner on the objections to the election filed by
Respondent in Case 20-RC-5597.'
On July 21 and 22 and August 7, 1969, a hearing
was held before Trial Examiner Martin S. Bennett,
and on September 24, 1969, the Trial Examiner
issued his Supplemental Decision' in which he found
that Respondent's objections were lacking in merit
and recommended that the Board overrule the
objections and reaffirm its prior decisions herein.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Supplemental Decision and a supporting
brief.
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 this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearings and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the
exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner' with
the following modification.
Although we agree with the Trial Examiner's
recommendation that the Board reaffirm its prior
Decisions herein, we are mindful of the fact that the
Court has expressed its disagreement with the
Board's finding that Respondent did not make valid
offers of reinstatement to discriminatees Cole and
Lovelady. We accept the Court's view on the
'403 F 2d 865.
'The Court did not agree however with the Board ' s finding that
Respondent's offers of reinstatement to these employees were not valid.
'Case 20-RC-5597
'On March 13 , 1969, the Court handed down a Decision (408 F 2d 1006)
denying a request by the General Counsel for a partial enforcement of the
Board 's Order on the ground that such a request was premature
'The Trial Examiner inadvertently termed his Report a Trial Examiner's
Decision instead of a Trial Examiner's Supplemental Decision
'For the reasons stated by the Trial Examiner in his Supplemental
Decision, Respondent ' s Motion to Revoke Union's Certification without a
Hearing is hereby denied
'Respondent alleges that the Trial Examiner prepared his Supplemental
Decision in advance of the receipt of Respondent 's brief and Motion to
Correct Official Transcript, both of which were filed by Respondent on the
same day. In support of this allegation , Respondent notes that the
Supplemental Decision refers to witness Richard Lusiani as a wiring
supervisor when in fact, as indicated in Respondent's motion to correct the
Transcript, Lusiani held the post of lounge supervisor , not wiring
supervisor From this and the fact that Respondent 's motion and brief
were filed with the Trial Examiner on the same day, we are asked to infer
that the Trial Examiner prejudged the issues presented here. In our
judgment , Respondent 's charge is an unwarranted attack upon the integrity
of the Board 's Trial Examiner We think it is obvious that the Trial
Examiner's reference to Lusiani as a wiring supervisor was the result of an
inadvertent error and nothing more. In reaching this conclusion , we note
that Respondent' s motion and brief were filed with the Trial Examiner
some 20 days prior to the issuance of his Supplemental Decision, and that
the Trial Examiner made specific reference to both Respondent's motion
and brief in his Supplemental Decision
180 NLRB No. 28
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement issue as the law of the case, and we
shall modify our Order, accordingly. In all other
respects, however, we reaffirm our earlier Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board reaffirms its Order in 158 NLRB
758, but with the following modifications:
1. Delete paragraph 2(c) of the Board's Order and
substitute therefor paragraph 2(c) of the Trial
Examiner ' s Recommended Order.
2. Delete the fourth indented paragraph of the
Board's Appendix and substitute therefor the fourth
indented paragraph contained in the Appendix
attached to the Trial Examiner 's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner : This matter was
heard at South Lake Tahoe, California, and Reno,
Nevada, on July 21 and 22 and August 7, 1969, and arises
as follows. On May 10, 1966, the Board issued a Decision
and Order finding that Respondent, Harrah's Club, had
engaged in various unfair labor practices , including a
refusal to bargain with International Alliance of
Theatrical Stage Employees & Motion Picture Operators
of the United States and Canada, Local 363, AFL-CIO,
herein called the Union, as the representative of a unit of
its employees within the meaning of Section 8(a)(5) and
(1) of the Act. Harrah's Club. 158 NLRB 758. This unit
of twelve eligibles, of whom eleven had voted in favor of
the Union, included stage technicians, apprentice stage
technicians , and a sound console operator at a dinner and
supper club operated by Respondent. On November 12,
1968, the United States Court of Appeals handed down a
decision declining to enforce a portion of the Board's
decision. N.L.R.B v. Harrah's Club, 403 F.2d 865 (C.A.
9).
However, the Court remanded the case to the Board for
a hearing on objections by the Employer to a consent
election held on October 14, 1963, in Case 20-RC-5597,
which led to the certification of the above-named Union
on February 27, 1964, and to the resulting finding of a
refusal to bargain herein.' On March 13, 1969, the Court
revised its decision , based upon objections to the Board's
submitted judgment , and denied enforcement in toto,
pending a hearing upon the objections. N.L.R.B. v.
Harrah's Club, 408 F.2d 1006 (C.A. 9).
A brief has been submitted by the Employer together
with a motion to correct certain errors in the transcript.
The motion has merit and it is hereby granted. The
Union's brief was untimely received and has not been
considered.
Upon the record before me, and from my observation
of the witnesses, I find as follows:
'The Regional Director , after an exparte investigation , had previously
decided that the Employer 's objections did not raise substantial or material
issues with respect to the election and overruled them.
1. INTRODUCTION : THE ISSUE
The matter was duly referred to the undersigned to
conduct a hearing on the objections to the election; this
has been done. Respondent urged before the Court that
the certification of the Union by the Board on February
27, 1964, was invalid because the Union had engaged in
certain improper conduct prior to the election. The Court
stated that this conduct, as proffered by Respondent, was
as follows:
(1) The Union induced employees to vote for it by
promising them:
(a) back overtime pay allegedly due;
(b) jobs in Las Vegas, Nevada, or in California; and
(c) that it would prevent Respondent from reducing its
stage crew to less than its existing complement of twelve
(2) The Union threatened to blacklist employees and
prevent them from obtaining employment elsewhere under
the jurisdiction of the Union if they did not vote for the
Union.
(3) The Union waived its rules with respect to taking
tests, paying initiation fees and other requirements and
issued union membership cards to employees on the
condition that they vote for the Union.
The Court enunciated that ". . . the facts contended for
by the Respondent, if true, would warrant setting aside
the election ..." It later opined that ". . . if all the facts
contended for by the Respondent were credited, there
would be grounds which would warrant setting aside the
election ..." Thus, honoring the Court's mandate in this
case to grant a hearing before the objecting party's rights
can be affected by an enforcement order, Respondent has
been afforded such opportunity and it has come forward
with the following.
H. THE EVIDENCE
(1) Justus Morrow, a former employee of Respondent,'
was not in the bargaining unit but was a friend of
stagehand Larry Helderbrand who was. According to the
uncontroverted testimony of Morrow, about 3 weeks
before the election, he and his wife visited the
Helderbrand home to play cards.
During the evening, Helderbrand mentioned that the
stagehands would be voting on union representation.
Morrow asked how the Union could benefit him and
Helderbrand replied that the group could then obtain their
"back overtime pay" and that the Union had guaranteed
"if we lose our jobs we will not lose any time, that they
will get us a job in Las Vegas or California or some T.V.
station the very next day." Morrow later testified on
cross-examination that Helderbrand said "they" had told
him about the backpay, that no individuals were
mentioned and that the statement was that the Union
would do "such and such."
A second talk took place a week or 10 days after the
election when Morrow was joined at lunch by
Helderbrand and Morrow asked Helderbrand what the
stagehands had gained by voting in the Union.
Helderbrand replied that they would receive their "back
overtime pay and we do have a certified statement that we
'Respondent has also filed herein on June 25, 1969, a motion to revoke
the certification of the Union without a hearing and this is treated below.
Therein, it stressed that two prospective witnesses were unavailable because
of residence outside the State of Nevada and that a third was deceased
Morrow is one of the first two and was brought to Nevada from Nebraska
to testify.
HARRAH'S CLUB
will definitely not lose one day 's pay ." He also stated that
if they were discharged by Respondent, the Union would
find them engagements in Las Vegas, California, or at a
television station "the very next day." Helderbrand did
not identify the direct source of the "certified statement"
except to state that "We have it." Morrow never saw any
written document and Helderbrand at no time provided
any names . In addition , Morrow was entirely unfamiliar
with any regulations of the Union.
Stage Manager Jacques Vogt of Respondent testified
that there was no back overtime pay due any of the men
and that they customarily worked a 6-day week at straight
time with time and a half paid for a seventh day.'
Viewing this evidence in the light most favorable to
Respondent, I do not equate the referral to back overtime
pay as a promise of a cash payment. It is rather a
promise that the Union would attempt to obtain this pay
for the men from the employer. This is hardly a promise
of a benefit but rather a promise of assistance . Needless
to say, it is readily apparent that most persons who join
labor organizations do so on the premise or thought that
the labor organization will benefit or assist them.
In addition , even on Morrow ' s uncontroverted
testimony , there is not an iota of evidence that a union
promise was made in return for a vote in favor of union
representation. His testimony in this area discloses only
Helderbrand's subjective view of how the Union could
benefit him.
As for the guarantee that the men would lose no money
because the Union could find other positions for them,
this is not remotely a promise of a benefit . It is rather a
promise that in the event they voted in the Union, they
need not fear being dropped from Respondent's payroll,
whether in reprisal or otherwise . Stated otherwise, the
promise at best was that they would not suffer
economically for voting in the Union. In view of the
foregoing considerations , I see no merit in this objection.
(2) Robert Sterling, now a food shift supervisor and a
supervisor under the Act, uncontrovertedly testified that
about one week after the election , stagehand Paul Jordan
commented on the union victory. Sterling, in turn, asked
how the Union could help Jordan. The latter replied that
the Union had "promised us more money and job
protection ." Sterling pressed for details and Jordan
responded, that the Union would "protect him on the job
because of his membership in the local ." Jordan further
explained that in the event of a layoff a Union member
with five years' seniority would be retained in preference
to a nonmember with ten years ' tenure . Jordan did not
identify anyone as the source of his understanding. He did
not state that the alleged job protection proposal was in
any way related to how he would vote in the election.
This may be disposed of briefly. In the posture most
favorable to Respondent, a voter gave his subjective view
one week after the election why he had voted for the
Union. There is no evidence as to what he may have been
told. The promise of more money and job protection are
the normal promises of the advancers of union
representation . But there is a failure of proof (a) that
Jordan' s statement of preference in layoffs reflects
anything that was said to Jordan rather than his personal
belief and (b) that even assuming such a statement had
been made to him it was conditioned upon his vote in
favor of union representation . I see no merit to this
'I can only assume , although there is no evidence either way , that there
was a view or aspiration among the electors that they had a colorable
claim to premium pay for the sixth day of work
435
contention.
(3) Richard Lusiani, formerly entertainment director
and wiring supervisor for Respondent, testified that about
one week after the election Jordan told him that "the
Union had told them" that if the Union won the election
it could obtain increased wages for the men, that the crew
would remain the same size and that they would get "a
special seniority deal" based upon membership in the local
with the result that someone "coming from the outside"
could not bump them.
Here as well, this does not reflect what may have been
said to Jordan before the election and this is at the very
least equally consistent with his subjective interpretation
of what a union representative had said. And, even on the
face of the statement, I see nothing wrong in a statement
by a union official that the Union would attempt to raise
wages, protect a reduction in the complement of personnel
and protect seniority against new arrivals in the area. In
addition, this was not coupled to a vote favorable to the
Union in the election. I see nothing here to help
Respondent.'
(4) Stage Manager Jacques Vogt uncontrovertedly
testified that about I week before the election stagehand
Allen Cole informed him that the Union had control over
the jobs of stagehands and that if he were to leave the
employ of Respondent he would need a membership card
in the Union to obtain employment in related companies,
pointing out that the Union operated hiring halls which
amounted to a "tight closed shop." Cole mentioned no
names in this conversation and, after the election, made a
similar statement to Vogt.
Initially, one must note that the Supreme Court has
decreed that hiring halls are presumptively operated in a
nondiscriminatory manner . Local 357, Teamsters v.
N.L.R.B., 365 U.S. 667. While this presumption may or
may not be correct in terms of current labor relations, it
does constitute Genesis in this context. Secondly, there is
no evidence that Cole was reporting what had been said to
him rather than giving his subjective approach to the
realities of obtaining employment in his field. Finally,
there is no evidence that a representation of this nature
was made to him as consideration for voting in favor of
the Union. I see no support for Respondent in this
testimony.
(5) Richard Luciani presented testimony that about 1
week after the election he asked stagehand Paul Jordan if
he had a Union card. Jordan replied that he had paid $61
for a card but that one, Bob Weatherall, an employee and
also business agent for the Union, had retained "our
cards" pending the outcome of the election. Luciani
claimed that Jordan stated he did not possess a card at
the time. He also testified that Jordan said that
Weatherall had not as yet given the men their cards and
that Jordan did not offer any reason to him, Luciani, for
the delay. Luciani later modified his original testimony,
testifying that he only "drew the inference" from Jordan's
statement that the cards had been retained by the Union
pending the outcome of the election. The thrust of this, it
would appear, is that the Union allegedly retained these
valuable cards to coerce the electorate in the election.
Luciani's testimony, as is apparent, was somewhat
modified by his later partial recantation. In addition, there
'In its brief, Respondent has deposed that Robert I. Brigham , a witness
it was unable to locate, would have presented testimony on this objection
There is no offer or proof as to the content of his testimony . Assuming
that he would have testified in a vem similar to that of Sterling and
Luciani , this would still provide no succor to Respondent
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is impressive testimony by Herbert Hinze, then
secretary-treasurer of the Union and an experienced union
official. He testified that Jordan had in fact obtained his
union card from Hinze in person at a union meeting on
August 20, 1963, long before the election. Jordan was one
of a group of 12 persons who were physically handed their
cards by Hinze on this occasion when they were initiated
into union membership. Hinze never retrieved the card of
Jordan or any other initiate. Jordan paid a $25 deposit on
his $100 initiation fee, the customary fee on this occasion
and later paid the balance. The original union ledger sheet
for Jordan is in evidence and Respondent has argued that
certain of the entries thereon pertaining to Jordan, and
pertinent herein, reflect different handwriting in a lighter
color of ink, thus demonstrating that certain entries were
made more recently and for the purposes of this hearing
An inspection of the exhibit discloses to the
undersigned, not a handwriting expert, only some
differences in shading of the ink. At the very least, they
are equally consistent with different pressures on the pen
by the same scribe. I therefore find that the evidence does
not support the position of Respondent herein, and indeed,
upon all the foregoing considerations, preponderates
otherwise. I further find that the evidence does not
support a finding that Jordan's card was retained by a
union official in order to coerce his vote in the election.
(6) This presents for consideration Respondent's motion
to revoke the certification without a hearing. It does stress
the unavailability of one witness and the death of another.
The testimony of the unavailable witness has been
considered, in essence, as though he had testified
consistently with the witness who did. What the deceased
witness would testify to has not been proffered to me
because there has been no offer of proof or of secondary
evidence such as an affidavit. Accordingly, this motion is
hereby denied.
III. CONCLUSIONS
The court at one point stated that "if all the facts"
urged by Respondent were credited there would be
grounds to set aside the election . As is readily apparent, a
substantial portion of the facts urged by Respondent
before the court have not been documented before the
undersigned . This, it would seem, vitiates the basic thrust
of the court ' s reasoning.
Furthermore , the evidence actually adduced by
Respondent lacks substance for a number of reasons.
These are paucity of direct probative evidence , subjective
theorizations after the election, and , in actuality, the
absence of a promise of a benefit or a threat of reprisal
coupled to a vote in favor of the Union. Respondent has
argued that there has been a complete turnover of
personnel in the unit and that, in equity, a labor
organization not selected by its employees should not be
foisted upon them . There is, however , established
substantial authority to the contrary . N.L.R.B. v. Small
Tube Products , Inc, 319 F.2d 561 (C.A. 3); N.L.R B. v.
John Swift & Co., 302 F.2d 342 (C.A. 7); and N.L.R.B
v. Sam 'l Bingham 's Son Mfg. Co, 227 F.2d 751 (C.A. 6).
Cf. N.L R.B. v. Ray Brooks, 348 U.S. 96 In addition,
much of the delay was caused by the litigation and this
was perforce before the court at the time of its remand.
RECOMMENDED ORDER
In view of all the foregoing considerations, I
recommend that the objections of the employer to the
election be overruled , and that the Board reaffirm its prior
decisions herein . See N L R. B v. Golden Age Beverage
Co., 71 415 F 2d 26 (C.A. 5); and N L R.B. v. Crest
Leather Mfg. Corp , 414 F.2d 421 (C A. 5).