Holiday Hotel & Casino

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 926 (N.L.R.B. 1977)

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carda Hotels, Inc., d/b/a Holiday Hotel & Casino and
Hotel-Motel-Restaurant Employees & Bartenders
Union, Local 86, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO. Cases
20-CA-9797-1, 20-CA-9803-4, 20-CA-9853-4,
20-CA-9869-4, 20-CA-9897-4, and 20-CA-
9905-4
March 21, 1977
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND
WALTHER
On December 22, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,I and the Charging Party filed
an answer to Respondent's exceptions, and the
General Counsel refiled its brief to the Administra-
tive Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Reno , Nevada, on June 29,
1976.
The six charges herein, filed and amended on various
dates 1 by Hotel-Motel-Restaurant Employees & Barten-
ders Union, Local 86, Hotel & Restaurant Employees &
Bartenders International Union , AFL-CIO (herein called
the Union), allege violations of the National Labor Rela-
tions Act, as amended, by Carda Hotels, Inc., d/b/a
Holiday Hotel & Casino (herein called Respondent) and
other employers not involved in this hearing. To distinguish
this hearing from those under the same docket numbers
involving other employers, suffixes (-4 and -1) have been
added to the case numbers as reflected above in the
caption.
The complaint on which this matter was heard issued on
October 3, 1975, was amended on May 26 and June 18,
1976, and during the hearing, and alleges that Respondent
violated Section 8(a)(5) and (1) of the Act.
The parties were permitted at the hearing to introduce
relevant evidence , examine and cross-examine witnesses,
and argue orally. Briefs were filed for the General Counsel
and for Respondent.
1. ISSUES
The issues are whether Respondent violated Section
8(a)(5) and (1) by refusing to recognize and bargain with
the Union on and after December 15, 1974; and violated
Section 8(a)(1) by its no-solicitation rule.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Carda Hotels,
Inc., d/b/a Holiday Hotel & Casino, Reno, Nevada,
its officers, agents, successors , and assigns, shall take
the actions set forth in the said recommended Order.
MEMBER WALTHER, dissenting in part:
For the reasons enunciated by me in my dissenting
opinion in Tahoe Nugget, Inc., 227 NLRB No. 72
(1976), I dissent from my colleagues ' conclusion that
the presumption of majority status flowing from the
contract in the multiemployer unit survives Respon-
dent's timely withdrawal from that unit and carries
over to the newly created single employer unit.
Accordingly, in the absence of proof of majority
standing, I would dismiss the 8(aX5) allegations of
the complaint.
I Respondent's request for oral argument is hereby denied , as the record
and beefs adequately present the issues and positions of the parties.
228 NLRB No. 108
U. JURISDICTION
Respondent operates a hotel, restaurant , bar, and casino
in Reno, Nevada. It annually receives revenues exceeding
$500,000, and purchases and causes to be delivered across
state lines goods and materials valued in excess of $10,000.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.2
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
I The charge in Case 20-CA-9803 was riled on December 16, 1974, and
amended seven times, most recently on June 2,1975. That in Case 20-CA-
9853 was filed on January 13, 1975, and amended on June 17,1975. That in
Case 20--CA-9869 was filed on January 16, 1975, and amended on June 17,
1975. That in Case 20-CA-9897 was filed on January 23, 1975, and amended
on June 17, 1975. That in Case 20-CA-9905 was filed on January 27, 1975,
and amended on May 7 and June 25, 1975. That in Case 20-CA-9797 was
filed on December 16,1974, and amended on June 26, 1975.
2 Respondent's argument is rejected that Board jurisdiction over it should
not be asserted because of the extensive state regulation of the gaming
industry in Nevada . Nevada Lodge, 227 NLRBNo. 73 (1976); Grand Resorts,
Inc., 221 NLRB 539 (1975); El Dorado, Inc., d/b/a Eldorado Club, et al, 151
NLRB 579 (1965).
HOLIDAY HOTEL & CASINO 927
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(5)
Facts. Respondent became a member of the Reno
Employers Council (herein called the Council) in 1955. As
such, it was subject to a succession of multiemployer unit
labor contracts between the Council and the Union 3
covering the bar and culinary employees of the Council's
several employer-members, the most recent running from
February 16, 1972, through February 15, 1975. The record
does not disclose the number of bar and culinary employees
employed by Respondent at the times now in question.
By letters dated November 15, 1974, Al Bramlet, an
official of the Union, informed the Council and its
members , including Respondent, of the Union's desire "to
change and modify for the period following February 16,
1975, the terms and conditions of our current Collective
Bargaining Agreement with you." The letters requested that
the employers "communicate with the undersigned for the
purpose of arranging for collective bargaining negotia-
tions."
By letter to the Council dated December 12, 1974, copy
to the Union, Respondent stated:
This is to notify the Reno Employers Council ... of
our desire to, and by this means do, hereby withdraw
our authorization for ... the Reno Employers Council
.. to represent us in connection with collective
bargaining or labor relations matters.
And, by letter to the Union dated December 12, Respon-
dent stated in relevant part:
This is to. . . notify you in accordance with the existing
Reno/Sparks Collecitve Bargaining Agreement that we
desire to, and do, hereby terminate said Agreement
effective as of the end of the term thereof.
The Union received a similar letter of the same date from
the Council.
By letter to Respondent dated December 13, the Union's
attorney, Philip Bowe, wrote:
As you know, our office represents Hotel-Motel-Res-
taurant Employees and Bartenders Local 86.
Although a contract reopener letter concerning your
bar and restaurant agreement was mailed to you on
November 15, 1974, with a request for you to contact
Mr. Bramlet to arrange for negotiations, no response
has been received to date from you or from your
Association representative.
Unless you contact Mr . Bramlet immediately , refusal to
bargain charges will be filed with the National Labor
Relations Board without further notice.
Bowe sent similar letters of the same date to other recently
withdrawn members of the Council, and to the Council
itself.
It is established by the pleadings, as amended at the
hearing, that Respondent has refused to recognize and
bargain with the Union since December 15,1974.
Al Ferrari, Respondent 's president and general manager,
testified that Respondent's refusal to recognize the Union
was based upon his belief that the Union did not represent
a majority of Respondent's bar and culinary employees in
late 1974. Ferrari continued that his belief derived from
several factors:
Ferrari cited two articles appearing in Reno papers, one
on August 20, 1974, the other on August 22. The August 20
article quoted from a piece written by Bramlet for the
Union's monthly magazine in which he deplored working
conditions in the bar and culinary industry in the Reno
area. The August 22 article, after stating that the Union was
engaged in "a full-scale campaign to organize Reno and
Lake Tahoe food and beverage workers," also quoted
Bramlet as deploring working conditions in the area and as
saying that "Las Vegas is 98 per cent unionized while Reno-
Tahoe is less than 20 per cent." The August 22 article closed
with this paragraph:
lie [Bramlet] said, however, union strength is growing
fast in the north and that the real test will come in
November when the northern local contract expires at
Lake Tahoe. He said the Reno contracts expire in
February and that, by then, he hopes to have many
more culinary workers in the area unionized.
Neither article mentioned Respondent, or any other em-
ployer, by name. Both mentioned that Bramlet had been
appointed "international trustee" of the Union.
Ferrari testified that the newspaper articles inspired him
to ask Respondent's payroll clerk to ascertain the extent of
employee turnover in the previous "approximately two
years." The clerk reported back, according to Ferrari, that
turnover "was in excess of 100 percent."
Ferrari testified that, between about August 20, 1974, and
early December, he had "many conversations; maybe every
other day or third day," with Food Manager Bailey and Bar
Manager Turner concerning the Union's status. Without
recalling any specific conversation, Ferrari asserted that
"Mr. Bailey stated to me on many occasions we had very
few culinary and bartenders who belonged to the Union";
and that "Mr. Turner stated to me we had very few
bartenders or cocktail waitresses who were members of the
Union."
Neither Bailey nor Turner testified. There is no evidence
that any of the employees voiced displeasure with being
represented by the Union.
Ferrari also testified that he arrived at his belief of the
Union's lack of majority in part because "we never had any
unfair labor practices filed against us, or any grievances
filed." The Union in fact had filed an unfair labor practice
charge against Respondent on August 15, 1974, alleging
that it had unlawfully denied union agents access to its
premises .4 Regarding the absence of grievances , Ferrari
conceded on cross-examination that Respondent at all
3 And the Union's predecessors . The Union came into being in 1968 , the 4 Case 2G-CA-WI.
result of a merger of two unions.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times had "lived up to" the contract and that he was "not
aware of any violations" of it.
Ferrari further testified that his belief was influenced by
Nevada's being a right-to-work state, and "the fact we had
no dues check-off system , and we did not have a closed
shop arrangement."
Finally, according to Ferrari, he was influenced by there
never having been a representation election among Respon-
dent's employees.
The refusal-to-bargain aspect of this case is a mirror
image of Nevada Lodge, 227 NLRB No. 73 (1976), and
Tahoe Nugget, Inc., 227 NLRB No. 72 ( 1976). Issuance of
this decision was delayed , pending issuance of those
decisions by the Board, because of their obviously control-
ling impact over the present situation.
The Board held in Nevada Lodge and Tahoe Nugget, Inc.
that "the presumption of majority status flowing from the
contract in the multiemployer unit survives Respondent's
timely withdrawal from that unit and carries over to the
newly created single-employer unit." Nevada Lodge, fn. 3.
The Board further held in both cases , adopting the
conclusions of Judge Taplitz without comment, that the
assorted grounds advanced by Respondents in those cases,
and this, to overcome the presumption - the newspaper
articles, employee turnover, employee nonmembership in
the Union , minimal grievance activity by the Union,
Nevada's being a right-to-work state, the absence of a
representation election, etc. - did not accomplish that
purpose.
It is concluded, therefore, that Respondent's refusal to
recognize and bargain with the Union after its withdrawal
from multiemployer unit bargaining violated Section
8(a)(5) and (1) of the Act.
B. The Alleged Independent 8(a)(1) Violation
For some years past, Respondent has had a posted rule
stating : "Solicitation on company premises by employees
after employees' shift has been completed is prohibited."
Employees are permitted to remain on the premises after
shift completion for other purposes . Some are encouraged
to do so by the availability of free drinks.
In M Restaurants, Incorporated d/b/a The Mandarin, 221
NLRB 264 ( 1975), the Board stated that a rule prohibiting
solicitation by off-duty employees "is presumptively invalid
and unlawful" when off-duty employees are allowed on the
premises for other purposes . See, also, East Bay Newspapers,
Inc., d/b/a Contra Costa Times, 225 NLRB 1148 (1976).
The presumption applies in this case , and Respondent has
done nothing to overcome it. Respondent's rule banning
post-shift solicitation on the premises therefore violates
Section 8(a)(l).
CONCLUSIONS OF LAW
1. Carda Hotels, Inc., d/b/a Holiday Hotel & Casino is
an employer engaged in and affecting commerce within the
meaning of Section 2(2),(6), and (7) of the Act.
S All outstanding motions inconsistent with this recommended Order
hereby are denied . In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions and recommended Order herein shall, as provided
2. Hotel-Motel-Restaurant Employees and Bartenders
Union, Local 86, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent Carda
Hotels, Inc., d/b/a Holiday Hotel & Casino in its bar and
culinary operations at its Reno, Nevada, place of business,
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.
4. At all times material herein, the above-named labor
organization has been the duly designated and exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about December 15, 1974, and at
all times material thereafter, to bargain collectively and to
recognize the Union as the exclusive bargaining representa-
tive of Respondent's employees , Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain collectively and to
recognize the Union, and by maintaining a rule which
prohibits employee solicitation on company premises after
shift completion, Respondent has interfered with, re-
strained, and coerced, and is interfering with, restraining,
and coercing employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Carda Hotels, Inc., d/b/a Holiday
Hotel & Casino, Reno, Nevada, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to bargain collectively in
good faith concerning rates of pay, wages , hours of
employment, and other terms and conditions of employ-
ment with Hotel -Motel-Restaurant Employees and Barten-
ders Union, Local 86, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All employees employed by Carda Hotels, Inc., d/b/a
Holiday Hotel & Casino in its bar and culinary
operations at its Reno, Nevada, place of business,
excluding all other employees, guards and supervisors
as defined in the Act.
in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
HOLIDAY HOTEL & CASINO 929
(b) Maintaining any rule prohibiting its employees from
soliciting on company premises after their shifts have been
completed unless such prohibition is demonstrably neces-
sary to maintain production, discipline, or security.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Reno, Nevada, facility copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after, being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
6 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Hotel-Motel-Restau-
rant Employees and Bartenders Union , Local 86, Hotel
and Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL NOT prohibit our employees from soliciting
on company premises after their shifts have been
completed unless such a prohibition is demonstrably
necessary to maintain production, discipline , or securi-
ty.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages , hours , and other terms
and conditions of employment , and, if an understand-
ing is reached , embody such understanding in a signed
agreement . The bargaining unit is:
All employees employed by Carda Hotels, Inc.,
d/b/a Holiday Hotel & Casino in its bar and
culinary operations at its Reno, Nevada , place of
business , excluding all other employees , guards
and supervisors as defined in the Act.
CARDA HOTELS, INC.,
D/B/A HOLIDAY HOTEL &
CASINO