Hotel Tropicana

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1220 (N.L.R.B. 1966)

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from becoming
or remaining , members of a, labor organization except to the extent that such rights.
may. be affected by an agreement conforming to the provisions of Section 8(a)(3),
of the National Labor Relations Act, as amended.
HUGHES & HATCHER, INC.; A/K/A HUGHES HATCHER SUFFRIN,
Employer.
Dated- ----------------- By---------------------------------- --------
(Representative) (Title)
HUGHES & HATCHER , INC., AND ITS WHOLLY OWNED SUBSIDIARY,
OPPENHEIM 'S, INC.,
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, 500'
Book Building, 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone
226-3244.
Hotel Conquistador , Inc., d/b/a Hotel Tropicana and American,
Federation of Casino and Gaming Employees . Case £0-CA--
3278. June x4,,1966,.
DECISION AND ORDER
On March 4, 1966, Trial Examiner Maurice S. Bush issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's, Decision and a supporting brief, and the General
Counsel filed an answering brief in support of the Trial Examiner's
Decision.
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 [Members Fanning, Brown, 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, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified herein.'
1 We correct certain minor inadvertent errors in the Trial Examiner 's Decision.
159 NLRB No. 105.
HOTEL .CONQUISTADOR ' 1221
[The Board adopted the Trial Examiner's Recommended Order
with the following modification:, The first paragraph of the Appen-
dix is amended to read :
[WE WILL NOT discourage membership in American Federation
of Casino and Gambling Employees, or any other. labor organi-
zation, by discharging, laying off, or otherwise discriminating in
regard to hire, tenure, or other term or condition of employment.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
On September 1, 1964 , the Hotel Tropicana , one of the topflight casinos on the
fabulous Las Vegas gambling "Strip ," fired its head slot machine mechanic. By
this and other acts, the complaint herein charges the owner of the Tropicana with
unfair labor practices under the National Labor Relations Act.
Tropicana 's defense is both technical and on the merits. Of its two technical
-defenses , its first is a challenge to the Board's assertion of jurisdiction over the
labor practices of the Nevada gambling industry and accordingly over Tropicana as
a member thereof . Its second technical defense is a challenge ; to all of ,the allega-
tions of the complaint , except the allegation of the discriminatory discharge, on the
ground that they are,not supported -by the statutorily+required ,precomplaiiit filing of
appropriate charges by, the Union (Charging Party ). 'On ,the - merits, Respondent
-denies all -the charges of the complaint . A more detailed , statement of'the issues
is shown below. - -
The complaint herein was issued on April 22, 1965, pursuant to a charge i filed
,by the Union . on September 28, 1964 .- An amendment to, the complaint, setting
forth the name - of an additional - supervisor, was issued -on July, 13, 1965 . 'During
the course of •the hearing , numerous amendments , chiefly-reflecting corrections in the
names and positions of supervisors , were made to the amended complaint pursuant
to leave granted by the Trial Examiner . -By direction of '-the, Trial Examiner
-these have been reduced to writing and filed as of August 26, 1965. Similarly the
oral answer made by the Respondent at the hearing to,these - amendments has been
reduced to writing and also filed herein . The names , and positions of the casino's
supervisors hereinafter referred to will be shown ,as corrected by the amendments
to the complaint . • . , , -
The case was heard before Trial Examiner Maurice S. Bush at Las Vegas,
Nevada, on August 4 and 5 , 1965 . Comprehensive briefs were filed by General
.Counsel and counsel for Respondent in the latter part of September 1965 .1 These
have been carefully reviewed and considered.
Upon the entire record , and from my observation of the, witnesses , I make the
following: -
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent herein is the Hotel Conquistador, Inc., a Nevada corporation,
-doing business as the Hotel Tropicana . It is engaged -in the operation of a hotel
and gambling casino, known as the aforementioned Hotel Tropicana , at Las Vegas,
Nevada. The Company during the past year received gross revenue in excess of
$500,000 in the course and conduct of its business operation.
U. THE LABOR ORGANIZATION
The American Federation of Casino and Gambling Employees , herein called the
Union, is a labor organization within the meaning of the Act.
. 1 Pursuant to Respondent 's unopposed motion , the statement appearing in the transcript
of the proceedings -herein at page 294, lines 3 and 4, reading "Houssells admitted that to
Hanley" is corrected to read "Houssells did not admit that to Hanley."
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether the National Labor Relations Board should assert jurisdiction over
employers engaged in the gambling industry in the State of Nevada, such as
Respondent?
2. Whether the Section 8(a)(1) violations alleged by the complaint, as amended,
are barred by the 6-months limitation provision of Section 10(b) of the Act?
3. Whether the Respondent, in violation of Section 8(a)(1), on or about
August 6, 1964, through its supervisor, George Harvey, gave one of its employees,
Frank Yockman, the impression that the Company was engaging in surveillance of
employees' union activities?
4. Whether the Respondent, in violation of Section 8(a)(1), on or about
June 1, 1964, through its supervisor, Harry Farnow, unlawfully interrogated its
aforementioned employee, Frank Yockmen, about his union activities?
5. Whether at all times here pertinent Phillip Daly had supervisory status in the
position he held with Respondent?
6. Whether the Respondent, in violation of Section 8(a)(3) and (1), discrimina-
torily discharged the said Frank Yockmen because of his union activities?
B. Issue as to Board's jurisdiction over Nevada gambling industry
The Respondent at the hearing moved for a dismissal of this proceeding on the
ground that the Board "lacks" jurisdiction over employers engaged in the gambling
industry in the State of Nevada, of which Respondent is a member. The Company
has filed a 25-page addendum brief in support of its motion. From the brief, it
appears that Respondent is not attacking the legal authority of the Board to assert
jurisdiction over the gambling industry of the State of Nevada, but is merely request-
ing the Board in its admitted discretionary powers not to assert such jurisdiction.
The Board, to effectuate the purposes of the Act, has heretofore asserted jurisdic-
tion over certain employers in the gambling industry within the State of Nevada
with gross annual income from gambling operations in excess of $500,000. El
Dorado Inc., d/bla Eldorado Club, 151 NLRB 579. In recognition of this,
Respondent in its addendum brief acknowledges that its present motion for dismissal
of the complaint on discretionary jurisdictional grounds "is in reality a motion for
reconsideration of the Board's prior ruling in El Dorado." In connection with this
motion for reconsideration, pursuant to Respondent's request, I have taken official
notice of certain documents, such as the Nevada Gambling Control Act and portions
of the transcript in the El Dorado case, which for purposes of convenience have
been submitted to me for my consideration.2
From its addendum brief, it appears that Respondent is seeking a reversal of the
Board's ruling in the El Dorado matter to assert jurisdiction over the Nevada gam-
bling industry on the basis of the same facts presented in that case and essentially
on the basis of the same arguments advanced therein, the crux of which is that the
gambling industry in Nevada is already adequately regulated by the State of Nevada.
The prior determination of the Board in the El Dorado matter to assert jurisdiction
over employers (with the requisite annual revenue) engaged in gambling operations
in the State of Nevada in order to effectuate the purposes of the Act is binding upon
me in the instant case. Moreover, the decision of the Board in the El Dorado case
appears to be more than amply justified in view of the fact that 75 percent of the
persons engaged in nonagricultural pursuits in the State of Nevada are employed,
directly or indirectly, by the gambling industry within the State and by the further
fact that over 20 million tourists are attracted annually to Nevada, in large part,
because of the facilities therein for gambling .3
I find that Respondent is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise jurisdiction herein.
The motion of Respondent, taken under advisement at the hearing, for a dismissal
of the complaint herein for want of jurisdiction is denied.
2 The copies of the Nevada Gaming Control Act and the partial copy of the transcript
in the El Dorado case, thus submitted to me by Respondent, will be transmitted to the
Record Section for association with the file herein upon the filing of the Trial Examiner's
Decision In this matter.
s These statistical findings are from the findings of the Board In the El Dorado case,
supra.
HOTEL CONQUISTADOR 1223
C. Issue as to whether Section 8 (a)(]) allegations of complaint are time-barred
At the opening of the hearing the Respondent moved 4 for a dismissal of the two
8(a)(1) violations= alleged in paragraph 5 of the complaint, as amended, on the
-ground "that there was no charge filed upon which an independent allegation of a
violation of Section 8(a) (1) could be based." This challenges the authority of the
Board to proceed with the allegations of paragraph 5 of the complaint.
Under Section 10(b) of the Act, a complaint may not be issued without the prior
filing of a supporting charge of an unfair labor practice. Further under the proviso
of Section 10(b), the issuance of a complaint is barred where it is "based upon any
unfair, labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person against
whom such charge is made ...:'
The charge in the instant case was filed by the Union on September 28, 1964 on
Form NLRB-501. For present purposes, the pertinent portions of the Union's
charge are contained in the paragraphs thereof numbered paragraphs I and 2. Par-
agraph 1 in the portion here pertinent, set forth almost entirely in print , reads as
follows:
The above-named employer has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a), subsection (1) and (3) of the
National Labor Relations Act . . . " (Editorial note : All of the above is in
printed form except for, the "(3)" which.is typed in.)
Paragraph 2 of the charge consisting of two paragraphs (the first of which is
printed and the second typed in) reads as follows:
2. Basis of the Charge (Be specific as to facts, names, addresses, plants
involved, dates, places, etc.)
On September 1, 1964, the above-named employer discharged Frank Yock-
men, who had been employed by it as a slot machine mechanic, because of his
membership in, activities on behalf of, and sympathy for the below-named labor
organization.
Paragraph 5 of the complaint, as amended, contains the following allegations
charging unlawful surveillance (by impression thereof) and interrogation in violation
of Section 8(a)( I) of the Act:
On or about August 6, 1964, the Respondent by George Harvey gave an
employee the impression that the Respondent was engaging in surveillance of
employees' union activities.
On or, about June 1, 1964, they Respondent by Harry Farrow unlawfully
interrogated Frank Yockmen about his union activities.
Respondent contends that the above 8 (a) (1) violations of the complaint must be
dismissed because the unfair labor practices therein described have not been specif-
ically spelled out in the Union's charge and that the mere allegation in the Union's
charge of 8(a) (1) violations is insufficient in itself to support the complaint's specific
8(a)(1) allegations.
In support of this contention Respondent argues that the charge's' "printed state-
ment alleging a violation of Section 8 (a) (1) . is not intended to cover and does
not cover matters independent of the specific charge contained in the body of the-
formal document itself." (Emphasis supplied.) The "specific charge" the Respond-
ent has reference to is the allegation in the Union's charge that the Respondent dis-
criminatorily discharged the aforementioned Frank Yockmen because of his union
activity in violation of Section 8(a)(3). Since under established law a violation of
Section 8 (a) (3) is also automatically a violation of Section 8(a) (1) and since the-
Union's charge does not specifically set forth any independent or separate 8(a)(1).
violations, Respondent argues that the printed reference to Section 8(a)(1) viola-
tions in the Union's charge must be interpreted as being merely derivative, or flow-
ing, from the alleged 8(a) (3) violation. Thus, because of the absence of specifically
spelled-out independent allegations of 8(a)(1) violations in the Union's charge,
Respondent argues it is entitled to a dismissal of the portions of the complaint, as-
amended, which allege violations of Section 8 (a) (1).
'Although Respondent made two motions, one for dismissal of the 8( a) (1) allegation-
of paragraph 5 of the original complaint and another for the dismissal of another 8(a) (1)
allegation set forth in an amendment to paragraph 5 of the complaint, I deem and treat
the two motions as essentially one
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue raised by, Respondent will necessarily turn on the facts here involved,
but the applicable rules of law 'governing the decision thereon are well established.
The courts have over the years rejected the attempts made by employers "to restrict
the Board's, complaint to the precise violations specified in the charge." N.L .R.B. v.
Pecheur Lozenge Co., Inc., 209 F 2d 393, 401 (C.A. 2), cert. denied 347 U.S. 953,
and cases cited therein. The rule' for determining whether a complaint issued by
the Board is properly supported by a charge is stated in N.L.R.B. v. Dinion Coil
Company, Inc., 201 F.2d 484, 491, as follows: "the complaint . . . may allege vio-
lations not alleged in the charge if (a) they are closely related to the violations
named in the [Charging Party's] charge, and (b) "occurred within six months before
the filing of the charge."
In the instant case, the complaint alleges an impression of surveillance and inter-
rogation in violation of Section 8(a)(1) well within the 6-month period *before the
filing of the charge herein and accordingly part (b) of the rule established in the
,Dinion case is satisfied.
.,It is also apparent that part (a) of the Dinion rule is also met here. As; surveil-
lance ( or the impression thereof ) and interrogation are normally 8(a)(1),preludes
to 8(a)(3) discriminatory discharges, it follows and I so find, that the impression
of,surveillance . and the interrogation pleaded in paragraph 5 of the amended,com-
plaint "are closely related to the violations named [a discriminatory discharge of an
employee] in the charge" and accordingly part (a),of the rule in the Dinion case is
also 'satisfied. As will be shown below, the evidence, adduced by General Counsel
shows that the sole subject of the alleged surveillance and interrogation was the
alleged discriminatee, Frank -Yockmen. This further shows that the 8 (a) (1) viola-
tions charged by the complaint are, indeed, very closely and intimately related to
the 8(a)(3) violation set forth in detail in the Union's charge and in the complaint
issued thereunder.
The fairly recent decision of the Board in Champion Pneumatic Machinery Co.,
152 NLRB 300, cited by Respondent in support of its contention, is obviously inap-
posite here because it involved a wholly different set of facts which reveals on its
face that the amendments to the complaint offered in that case were wholly unre-
lated to the allegations contained in the Union's charge in that case.
Respondent 's motion , taken under advisement at the hearing, for a dismissal of
the 8 ( a) (1) violations alleged in paragraph 5 of the complaint , as amended, on the
ground that they have not been specifically described in the charge as filed by the
Union, is denied.
D. Background facts
Respondent 's Tropicana Hotel, one of the showplace hotel casinos on the Las
Vegas "Strip ," has accommodations for 700 guests and employs from 600 to 700
employees.
The casino has the usual gambling devices common to all gambling establish-
ments in the Las Vegas area , such as roulette , craps , blackjack , keno, and cards,
all of which are open to the public 24 hours a day. ,
In addition the Tropicana maintains 180 slot machines on its playing floor for
the use of patrons at all hours of the day and night. The machines are, kept in
repair by 10.slot machine mechanics, the chief personnel of which are involved
in this proceeding , and serviced by 20 female change booth cashiers who make
change for customers and assist in 'seeing that jackpots are paid off . This crew of
mechanics and change girls works in shifts around the clock.
The issues in the case revolve around the Tropicana 's former head slot machine
mechanic, Frank Yockmen, the alleged discriminatee, who has had some 14 years
'of experience as a slot machine mechanic . Yockmen was hired by Harry Farnow,
supervisor of Tropicana's slot mechanic department, on March 18, 1962. He was
also discharged by Farnow on September 1, 1964, under the circumstances described
below. Farnow with 24 years experience as a slot machine mechanic supervisor
at various casinos in Las Vegas has been supervisor of the slot machine mechanics
at Tropicana since 1957. Prior to his employment at the Tropicana, Yockmen
had worked briefly under Farnow's supervision some 10 years ago at another
,casino.
Yockmen became a charter member of the Union on April 7, 1964. He was
subsequently elected to the position of recording secretary of the Union, and on
July 17, 1964, became a member of its executive board.
In May of 1964, the Union filed a petition with the, Board seeking to represent
a unit of 'gaming employees at the Tropicana. A hearing was held on the petition
HOTEL CONQUISTADOR 1225
(20-RC-5956 ) as consolidated with other petitions (20-RC-5951 and 20-RC-
5953 ) before Hearing Officer Kintz , but before the completion of the consolidated
hearing the Union withdrew its petition (20-RC-5956 ) to represent the involved
unit at the Tropicana with the approval of the Regional Director for the Region
involved . The approval of the withdrawal was announced by the said Hearing
Officer Kintz at a resumed hearing held at Las Vegas on the consolidated petitions
on July 14, 1964.
Yockmen 's testimony establishes that he actively engaged in organizing for the
Union at the Tropicana . He solicited authorization cards from the change girl
cashiers , the floormen , and the slot machine mechanics . He contacted all of the•
30 employees in the slot machine department and obtained about 18 cards from
them.
Yockmen in late May 1964 also solicited his colleague Phillip Daly, who
occupied a position of special trust with Supervisor Farnow as will be shown below.
Daly's status as a 'supervisor at the times here material has been placed in issue
by the pleadings , but the evidence shows that he became assistant slot mechanic
department supervisor on an unspecified date in August 1964 . Yockmen , it will
be recalled , was terminated on September 1, 1964. Daly declined Yockmen's
solicitation to become a member of the Union . The solicitation is' established by
the testimony of both Yockmen and Daly.
Yockmen's union activity at the Tropicana became directly known to his super-
visor, Farnow , on or about June 1, 1964 , when Yockmen and Farnow were alone
in the slot -machine repair shop in the casino. Farnow, pointing to a copy of-
the aforementioned representation petition of the Union on the shop wall, inquired'
of Yockmen if he "knew anything about this." Yockmen replied that he was a'
member and officer of the Union . Farnow received this news without comment
,and walked out of the shop.
From the above evidentiary findings and other similar evidence of record, I
find and conclude that Respondent had knowledge of Yockmen 's union activities
at the Tropicana at all times herein material.
E. Issue as to surveillance
The complaint charges that Respondent by its ' agent and supervisor , George
Harvey, gave an unnamed employee, identified at the hearing as the aforesaid'
Frank- Yockman,'the' impression that,the Respondent' was engaging in-surveillance
of employees' union activities . ' This ^ is denied • by Respondent's 'answer!
Harvey, an employee of the Tropicana for over 8 years, holds -the position of
blackjack pit foreman and in this capacity he supervises the dealers in the Tropi-
cana's blackjack pit who play for the house from - their places -inside the pit or
enclosure from which the public is excluded . Although Harvey is an acknowledged
supervisor , his supervision ' relates exclusively to the blackjack dealers who work
under him.. Harvey and Yockmen have known 'each other'for about 3 lyears. On or about
August 6, 1964, Yockmen stopped ' at the blackjack station , for a brief chat withe
Harvey. There is disagreement in' the testimony given by Yockmen and Harvey
as to what was said on this occasion which will be resolved below . Prior to the-
conversation, information had reached Yockmen that' a list of union officers and
others active in, the Union -had come into the possession of casino interests and'
was being distributed to all the casinos ; that his name (Yockmen's), marked by
two stars , was on the list; and that all persons whose names were on the list and
marked by stars were scheduled for discharge on account of their union activities.
Yockmen testified as follows as to what transpired at his chat of August 6 with
Harvey. ' Referring to the aforementioned list of names of union participants,
Yockmen said to Harvey, "I hear there is a list in the pit." Harvey acknowledged
that he had such a list and volunteered that Yockmen's name was on'the list and'
was marked ' by two stars. Expressing disheartenment over this news; Yockmen
inquired as to the maximum number of stars after the names of the persons on
the list. When told that three stars was the maximum , Yockmen wryly remarked
that his name should have been marked with three stars as he was on the executive
board of the Union. - Harvey laughed and Yockmen continued on, his rounds.
Harvey in his testimony admitted having conversed with Yockmen on or about
the above-indicated date at his blackjack pit station , but testified that the only sub-
ject of conversation between Yockmen and himself on that occasion was Yock-
men's solicitation that he become a member of the Union. He was not specifically
asked and did not specifically deny that the conversation between Yockmen and
himself related to the aforementioned list of union participants.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From my observation of the straightforward testimony and demeanor of Yock-
men and from the obvious high regard Respondent's witnesses held for Yockmen
'both as to his honesty and as a person, although reluctantly admitted as company
witnesses, I credit Yockmen's testimony as related above as to what was said in the
conversation he had with Harvey and discredit Harvey's version of the conversation.
Discussion and Conclusions
The evidentiary findings set forth above not only show that the Respondent had
in its possession in the forepart of August of 1964, a list of employees in the
casino industry who were prominent in union activities, but also that the list had
been duplicated and distributed to its supervisors, as there would otherwise be no
explanation of the fact that such a list was in the possession of Tropicana's black-
jack pit boss Harvey.
Harvey's frank acknowledgement to Yockmen that he had such a list and his
voluntary statement that Yockmen's name was on the list and marked by two stars
clearly gave Yockmen, an avowed union advocate, the impression that the Com-
pany was engaging in surveillance of its employees' union activities, as his testi-
mony plainly reveals.
In my opinion it is immaterial that this impression of surveillance would not
have come about if Yockmen had not initiated the inquiry about whether Harvey
had the list at his blackjack station. Similarly it is immaterial that Yockmen was
given this impression of surveillance by a man who was not his direct supervisor.
The pertinent fact is that Yockmen as an employee was given the impression by
Respondent through one of its responsible agents (Harvey) that the Company was
,engaging in surveillance of the union activities of its employees and particularly
that of Yockmen; whop-was discharged some 3 weeks., later; uncjert;,gircumstances
charged by the complaint as being discriminatory, hereafter considered..
Under these circumstances, I find and conclude that the Respondent by its said
agent and supervisor, George Harvey, unlawfully gave its employee, Frank Yock-
men, the impression that the Respondent was engaging in surveillance of employ-
ees' union activities in violation of Section 8(a)(1) of the Act.
F. Issues as to interrogation
The complaint, as amended, alleges that the Respondent on or about June 1,
1964, unlawfully interrogated its aforementioned employee Frank Yockmen about
his union activities through its Agent and Supervisor Harvey Farnow. The Respond-
ent in its answer denies the charge.
As heretofore noted, Farnow is Tropicana's slot machine department supervisor.
He was the man who hired Yockmen in 1962 and discharged him on September 1,
1964, under circumstances charged by the complaint as being discriminatory. Dur-
ing much of his tenure at the Tropicana and at his termination, Yockmen was head
slot machine mechanic. As head of the slot machine mechanic department, Far-
now was Yockmen's supervisor during all of Yockmen's tenure with the Company.
The slot machine department has a shop on the premises of the Tropicana
where slot machines are taken for repair.
As heretofore noted, the Union sometime in May of 1964 filed a petition with
.the Board for an election in which it sought to represent a unit at the Tropicana.
Shortly thereafter a copy of the petition was posted in the slot machine repair
shop. As shown above in another connection, Farnow was alone with his head
mechanic Yockmen in the shop on or about June 1, 1964, when pointing to the
petition on the wall, Farnow asked Yockmen if he "knew anything about this."
Yockmen answered "Yes" immediately, adding that he was a member and officer