John Ascuaga'S Nugget

National Labor Relations Board - Board Decisions

May 17, 1990

298 N.L.R.B. 524 (N.L.R.B. 1990)

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sparks Nugget , Inc., d/b/a John Ascuaga's Nugget
and Hotel, Motel , Restaurant Employees &
Bartenders Union Local 86, affiliated with
Hotel & Restaurant Employees & Bartender
International Union, AFL-CIO. Cases 32-CA-
4586 and 32-CA-4631
May 17, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 18, -1984, Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief
and a request for oral argument, and the General
Counsel and the Charging Party filed answering
briefs.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings,2 and
conclusions3 and to adopt the recommended Order
as modified.
I. BAD-FAITH BARGAINING4
In section IV of his decision , the judge conclud-
ed that the Respondent violated Section 8(a)(5) and
i The Respondent's request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and positions of the
parties
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully exanuned the record and find no basis for reversing
the findings.
e We agree with the judge 's finding that the Respondent engaged in
unlawful surveillance in violation of Sec. 8(a)(1) of the Act by photo-
graphing employees while they were attending a union press conference
in a public park. We therefore find it unnecessary to pass on the judge's
finding that the Respondent also engaged in unlawful surveillance by -
photographing nonemployee proumon picketers on public property abut-
ting the Respondent 's property, as such a finding is cumulative and
would not materially affect the remedy in this case.
4 On January 22, 1982, the Union filed a "surface bargaining" charge.
The Union withdrew this charge on February 26, 1982 . However, the
day before , February 25, the Union filed a refusal-to-bargain charge. That
charge also was withdrawn , on April 8, 1982, 2 months before filing the
first of its two charges in the instant case, alleging that the Respondent
violated Sec 8(a)(5) by refusing to bargain with the Union since on or
about December 17, 1981 (The Union's other charge in the instant case,
32-CA-4631 , alleging only violations of Sec. 8 (a)(1), was filed June 29,
1982.)
The Respondent asserts that the Union 's repeated filing and withdraw-
al of refusal-to-bargain charges should act as grounds for dismissal of the
instant refusal-to-bargain allegations, under either Rule 41 (a)(l) (the so-
called "two dismissal" rule) or Rule 41(b) (failure to prosecute) of the
Federal Rules of Civil Procedure In reply to the Respondent's assertions,
the Union suggests, inter aha , that "the timing of the withdrawals and re-
filings indicates that these actions were taken to accord with the 30-day
processing deadlines utilized internally by the Board." The "30-day"
(1) of the Act by engaging in bad-faith bargaining
with the Union from December 10, 1981, onward.5
For the reasons discussed below, we affirm the
judge 's finding of bad-faith bargaining.6
Some background facts are helpful here. The Re-
spondent and the Union had an initial 13-year bar-
gaining history, which was interrupted by the Re-
spondent's December 1974 withdrawal of recogni-
tion from the Union. In June 1977 the Board found
that this withdrawal of recognition had been in
violation of Section 8(a)(5) of the Act.7 The Board
ordered the Respondent , inter alia, to recognize
and, on request, bargain collectively with the
Union and to cease and desist from refusing to do
so. That order was enforced by the United States
Court of Appeals for the Ninth Circuit in May
1980, as amended in September 1980.8 The Su-
preme Court then denied the Respondent 's petition
for a writ of certiorari in April 1981 and, in June
1981, denied a further Respondent motion on that
petition.9 Thus, some 6-1/2 years after the Re-
spondent had unlawfully withdrawn recognition
from the Union , the parties again took up their re-
lationship.
In mid-July 1981 ,1 0 the Union was preparing to
begin contract negotiations with the Respondent,
Vincent Sirabella , the Union's principal negotiator,
suggested to Clinton Knoll, the Respondent 's prin-
cipal negotiator, that it would be in the parties'
mutual best interests if they met regularly and for
deadline referred to by the Union is the guideline established by the Gen-
eral Counsel that within 30 days from the filing of a charge the investiga-
tion of that charge must be completed and the parties must be informed
of the Regional Director 's intention either to issue a complaint or dismiss
the charge if the charging party refuses to withdraw it voluntarily At
the end of each month, Regional Directors are required to advise the
General Counsel of any cases in which investigations have not been com-
pleted within 30 days. Thus, the Union appears to imply that its with-
drawals of charges were to accommodate the Regional Director, in order
to avoid has having to report to the General Counsel a case in excess of
the 30-day guideline.
We deny the Respondent's motion to dismiss the refusal -to-bargain alle-
gation on these procedural grounds and note further that the record does
not support either party's assertions.
5 The judge noted that Sec. 10(b) of the Act precludes a finding of un-
lawfulness based on the Respondent 's conduct in bargaining prior to De-
cember 10, 1981 , i.e., more than 6 months prior to the filing of the unfair
labor practice charge in Case 32-CA-4586 on June 10, 1982 However,
the judge considered the Respondent 's conduct in bargaining prior to De-
cember 10, 1981 , insofar as it shed light on the Respondent 's conduct
thereafter. See fn . 87 and accompanying text in the judge's decision
8 In affirming the judge's finding of bad-faith bargaining, we do not
rely on the statement made by the Respondent 's principal negotiator,
Clinton Knoll, during the October 27, 1981 negotiating session, that the
Respondent wanted to compare itself with nonunion employers. Nor do
we rely in this context on the remarks made by the Respondent's presi-
dent, John Ascuaga Sr., to the employees in the December 1981 meet-
ings, discussed in the following section of this decision.
7 230 NLRB 275 In that decision , the Board found additional 8(a)(5)
violations and also found that the Respondent had engaged in certain acts
in violation of Sec. 8(a)(3) and (1).
8 623 F.2d 571
9 See 451 U.S 906 and 452 U S. 931, respectively
io The following dates are 1981, unless otherwise stated.
298 NLRB No. 69
JOHN ASCUAGA'S NUGGET 525
reasonably long periods of time." Knoll told Sira-
bella that the Respondent could not meet as regu-
larly as Sirabella would like, nor could they meet
for any long periods of time, because the Respond-
ent's managers were "businessmen, and they have
to take care of their business." Sirabella told Knoll
that he would be happy to adjust his schedule to
suit the Respondent's convenience. Knoll told Sira-
bella, "No, my clients don't want to do that."
On October 21, the Union sent the Respondent
its contract proposals on all issues except wages.
The Union's proposal was identical in all re-
spects-except wages-to its current- contract with
Circus Circus, another Reno hotel-casino. In a
letter accompanying its contract proposals, the
Union advised the Respondent that its wage pro-
posal would be submitted later.
The first negotiating session was held on Octo-
ber 27. Following opening remarks by both Sira-
bella and Knoll, the latter told Sirabella that the
Union was making it rather difficult by asking for a
contract that somebody else had negotiated, i.e., a
reference to the fact that the Union's proposal was
identical to the contract it had with Circus Circus.
Sirabella replied that the Union did not have to
have a total adoption of the Circus Circus contract
right away, although basically the Union sought to
achieve the same type of contract. Knoll repeated
that this would make it rather difficult. Later
during this session, Sirabella reiterated that while
the Union's proposals were patterned after the
Circus Circus contract, the Union was not ada-
mant, and did not have to have the Circus Circus
contract verbatim. Sirabella asked Knoll to specify
any objections he had to the Union's proposal, and
said that the Union would consider them and
modify its position if necessary. Knoll replied that
the Respondent wanted to return to the 1972-1975
contract between the parties, incorporating the
wages that were in effect at the start of bargaining
in October . 1981. At length, the negotiations fo-
cused on, inter alia, wages, seniority, hiring hall, in-
demnification, and profit sharing.
With regard to wages, Knoll proposed existing
wage rates and a merit system under which the Re-
spondent would unilaterally decide when and
which employees received increases, with no guar-
anteed wage increases under the contract. Knoll re-
jected the notion of contractually mandated period-
ic across-the-board wage increases, declaring that
wage increases were a matter for management
alone to decide, and the Union would not be in-
volved. Sirabella told Knoll that he thought this
was very unfair, and that he had never before
11 Sirabella's office was in Los Angeles, about 500 miles from Reno,
where all the negotiations were to be conducted.
heard of an employer proposing that a union would
have nothing to say about wages.
With regard to seniority, Knoll would not agree
to accept a seniority clause, declaring that the Re-
spondent would unilaterally determine who had se-
niority and for what purposes. Sirabella replied
that he had never before in his experience heard of
such a seniority proposal. Regarding a hiring hall,
Knoll declared that the Respondent would never
agree to one. -Sirabella emphasized that the Union
was not proposing one. Regarding indemnification,
Knoll stated that the Respondent would never
agree to such a clause. Sirabella withdrew it.
Finally, with regard to profit sharing, Knoll pro-
posed retention of the Respondent's profit-sharing
plan in lieu of the Union's pension plan. Sirabella
replied that he was not proposing a pension plan,
and that the Union would agree to the Respond-
ent's ongoing administration of its profit-sharing
plan.
The next negotiating session was held on No-
vember 10. The Union submitted its wage proposal.
The Union proposed that effective November 1,
1981, the highest paid worker in a given classifica-
tion (the Union proposed approximately 45 classifi-
cations) would receive a 15-percent increase. The
other, lower paid workers in that classification
would receive cents-per-hour increases, also effec-
tive November 1, 1981, that would make their
wages equal, or approaching equal, to the highest
paid worker in that classification. In some classifi-
cations, the entire differential between highest and
lowest paid worker would be made up effective
November 1. In other classifications, the differen-
tial would be made up over the course of 1 or 2
years. In any event, the Union proposed that on
November 1, 1982, and November 1, 1983, the
highest paid worker in each classification would re-
ceive a 12-percent increase, while the lower paid
workers in that classification would at the same
time receive cents-per-hour increases that would
make up the differential between their pay and that
of the highest paid worker in their classification.
Sirabella explained that the Union's wage pro-
posals were predicated on three factors: (1) the ef-
fects of inflation; (2) a comparative wage analysis
with unionized employers in the industry' in the
Nevada-California area; and (3) equal pay for equal
work, by the end of the first 3-year contract.
Knoll stated that the Respondent was not claim-
ing inability to pay but nevertheless wanted to rein-
state the 1972-1975 contract, updated to embody
October 1981 wage levels. Knoll reiterated that
under the Respondent's proposal, the Union would
have no say in' any wage increases, as they would
be based entirely on merit as determined by the
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent. Sirabella argued against that aspect of
the Respondent's proposal, and reiterated that the
Union hoped to achieve a contract comparable to
the one it had with Circus Circus.
The November 10 session lasted only about an
hour, and' ended when Knoll announced that the
members of the Respondent's negotiating team had
to return to their regular jobs. Knoll proposed that
the next meeting be,scheduled for December 1 be-
cause in view of the intervening Thanksgiving holi-
day, the Respondent would need that long to study
and prepare a response to the Union's total pack-
age. Sirabella objected to the length of the delay
but ultimately agreed to reconvene on December 1.
Ernest Cuno, an associate with the Reno Em-
ployer's Council, ;substituted for Knoll as the Re-
spondent's principal negotiator at the December 1
session . He set forth the Respondent's contract pro-
posal . It followed the 1972-1975 contract between
the parties, except as updated to reflect current
wage levels and other existing terms and condi-
tions . The Union caucused to review the Respond-
ent's proposal. When the parties reconvened, Sira-
bella critiqued the Respondent's proposal in several
areas, including wages, seniority, work rules, and
maintenance of benefits. Cuno responded that the
Respondent was not going to involve the Union in
the area of seniority, that it wanted unimpaired lati-
tude to decide layoffs, transfers, promotions, leaves
of absence, work rules, and removal of any bene-
fits. Cuno emphasized that the Respondent was not
going to negotiate at all about work rules.
The next negotiating session was held on De-
cember 17. Sirabella missed his morning flight from
Los Angeles to Reno, and the start of this session
was delayed until the afternoon. Knoll announced
at the start of the session that because of the late
start and other commitments, the session could last
only 45 minutes. He then gave Sirabella the latter's
requested written description of benefits under the
Respondent's medical-care plan., Next, Knoll dis-
paraged the Union's wage proposals, asserting that
they, were patterned after a Las Vegas contract.
Sirabella denied it and replied that, in any event,
the Union's proposals were only the "opening
gambit," not the "bottom line," and that they were
"modifiable and were not etched in concrete."
Knoll replied that the Respondent was proposing
the 1972-1975 contract, as updated, and that was
"going to be it." Sirabella continued to oppose this.
Thereafter, discussion focused on seniority, with
Knoll reemphasizing the Respondent's position that
it alone would determine who gets laid off, re-
called, and promoted.
Knoll also asserted, as he had in the October 27
session, that the Respondent would never agree to
a hiring hall. Sirabella repeated his earlier assur-
ances that the Union was not seeking a hiring hall,
and that it had not even proposed one.
Toward the end of this session, Sirabella pro-
posed that the parties submit all unresolved issues
to binding arbitration or Federal mediation. Knoll
said that he would have to discuss this matter with
his principals.
The next session was held on January 8, 1982.12
Knoll stated at the outset that the Respondent
would agree to Federal mediation, but not binding
arbitration. Then, as if bringing the meeting to a
close, Knoll announced "That's all we have to
say." Sirabella became "very irate," by his own ad-
mission, protesting to Knoll that he had undertaken
a 1000-mile round trip to get-from Los Angeles to
Reno, and that Knoll should have simply tele-
phoned him in advance if that was all that Knoll
was prepared or willing to discuss at this meeting.
Sirabella continued that, as long as the parties were
there together, they had an obligation to discuss
the proposals, to keep trying to resolve some of the
matters and "break the logjam." Thereafter, the
parties did discuss the proposals, but no new agree-
ment was reached on any of them. The Respondent
continued to insist on the terms of the 1972-1975
collective-bargaining agreement, updated to reflect
current wages and existing terms and conditions.
The session ended with Sirabella obtaining Knoll's
consent to request a Federal mediator on behalf of
both parties.
The next bargaining session was held on January
14. A Federal mediator was present. He asked the
parties to state their respective positions. Sirabella
stated that the Union was prepared to modify its
demands with respect to wages and "a variety of
other issues." Sirabella voiced the Union's particu-
lar disagreement with the Respondent's insistence
on unilateral determination of wages based on indi-
vidual merit and its refusal to include any seniority
provisions. Knoll expressed the Respondent's posi-
tion much as he had in previous sessions. There
was no progress toward an agreement at this ses-
sion.
The next (and what turned out to be the final)
negotiating session was held on January 28. Re-
garding seniority, Knoll stated that the Respondent
would make seniority determinations "solely and
independently from any involvement with the
Union." Regarding wages, Knoll stated that the
Respondent would determine wage increases, and
the Union would have "nothing to say about it."
Sirabella continued to reject the Respondent's pro-
posals, and announced that he had filed an unfair
12 The following dates are 1982, unless otherwise stated.
JOHN ASCUAGA'S NUGGET 527
labor practice charge, alleging surface bargaining,
against the Respondent. As the parties prepared to
caucus separately, Knoll asked Sirabella why the
Union would not agree to an election. Sirabella re-
plied that it was because the Union had fought in
the courts for a number of years and had estab-
lished that the Respondent had an obligation to
bargain with the Union.
The parties then caucused. Subsequently, Knoll
sent word to Sirabella through the mediator that
the Union must either accept the Respondent's
"last and final" offer, or proceed with its unfair
labor practice charge. Sirabella asked the mediator
to reconvene the parties, so that Knoll could give
this ultimatum to Sirabella directly. Knoll did so.
Sirabella chose to proceed with the unfair labor
practice charge. There were no further negotiating
sessions.
Like the judge, we agree that among the signifi-
cant manifestations of bad-faith bargaining are a re-
fusal to budge from an initial bargaining position, a
refusal to offer explanations for one's bargaining
proposals (beyond conclusional statements that this
is what the party wants), and a refusal to make any
efforts at compromise in order to reach common
ground. Such conduct is indicative of bad faith be-
cause it is not the conduct of a party seeking sin-
cerely to reach agreement.
On the other hand, in Atlanta Hilton & Tower,
271 NLRB 1600 (1984), decided shortly after the
judge issued his opinion in this case, the Board,
noting the provision in Section 8(d) that the duty
to bargain in good faith "does not compel either
party to agree to a proposal or require the making
of a concession," emphasized that an employer will
not automatically be found to violate the Act
simply because it insists on its bargaining position
and declines to agree to immediate improvements
in wages and benefits. Nonetheless, the Board did
not abandon the principles stated above. It ac-
knowledged that an employer is "obliged to make
some reasonable effort in some direction to com-
pose his differences with the union, if § 8(a)(5) is to
be read as imposing any substantial obligation at
all." Id. at 1603, quoting NLRB v. Reed & Prince
Mfg. Co., 205 F.2d 131, 135 (1st Cir. 1953), cert.
denied 346 U.S. 887 (1953). The Board also noted
that in determining whether there was a lack of
good-faith effort to reach agreement it could con-
sider the totality of a party' s bargaining conduct,
including the presence of unreasonable bargaining
demands. Id. The Board reiterated this approach in
Reichhold Chemicals, 288 NLRB 69 (1988), dis-
claiming any intention of passing on the acceptabil-
ity of each proposal made by the parties, but
noting that insistence on "extreme proposals" could
be part of the evidence considered in determining
whether a demand was "designed to frustrate
agreement on a collective-bargaining contract."
We find that the above indicia of bad-faith bar-
gaining accurately - characterize the Respondent's
tactics in this case. First, while the Union repeated-
ly offered during negotiations to modify its bar-
gaining proposals, the Respondent adamantly re-
fused to budge from its only contract proposal-
the 1972-1975 collective-bargaining agreement up-
dated to incorporate current wages and terms and
conditions of employment. When the Union asked
the Respondent to specify objections it had to the
Union's proposal, the Respondent refused to do so,
stressing simply that it wanted to return to the
1972-1975 contract.
Second, the Respondent insisted that it alone
would establish wages and seniority and that the
Union would be allowed absolutely no say in these
matters . Despite the Union's protestations that this
position was unfair and unheard of in collective
bargaining, the Respondent, made no attempt to ex-
plain its views but merely asserted that wages and
seniority were a -matter for management alone to
decide. In the same vein, the Respondent stated,
without any explanation, that it simply would not
negotiate about work rules.
We find that the Respondent's adamant refusal to
make any modification in its only contract propos-
al, in the face of the Union's willingness to modify
its proposals, and the Respondent 's unwillingness
to explain or justify its proposals clearly demon-
strate an unwillingness on the part of the Respond-
ent to negotiate toward the possibility of reaching
an acceptable common ground, and a predeter-
mined resolve by the Respondent to insist on its
initial position, as embodying the only collective-
bargaining agreement to which it would agree.13
The nature of some of the Respondent's propos-
als also evinces a lack of serious intent to reach
agreement. The Respondent's unwavering demand
for total control of wages, seniority, and work
rules-which amounted to excluding these from
the bargaining process both at the contract-negotia-
tion table and throughout the term of the contract
proposed by the Respondent-was all the more
likely to frustrate agreement because of the Re-
spondent's refusal to provide any justification for
placing subjects of such importance to the employ-
ees beyond the influence of the employees' collec-
tive-bargaining representative.14
13 See generally Atlanta Hilton & Tower, supra. See also Port Plastics,
279 NLRB 362 (1986); Case, Inc., 237 NLRB 798 (1978), American Parts
System, 232 NLRB 41 (1977).
14 See generally Reichhold Chemicals, supra See also Port Plastics,
supra; A-1 King Size Sandwiches, 265 NLRB 850 (1982), enfd. 732 F 2d
Continued
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Other aspects of the Respondent's conduct indi-
cate that it was not engaged in a bona fide effort to
bargain collectively. Thus, the Respondent asserted
at the very outset of negotiations that it could not
meet very regularly with the Union or for long pe-
riods of tune because its managers had to "take
care of their business."
Placing such restrictions on the length of meet-
ings was especially likely to impede reaching
agreement when, as here, the Union's representa-
tive had to fly in from another city in order to
attend bargaining sessions. The Respondent's state-
ment also indicated its view that collective bargain-
ing was not part of its business, but rather some-
thing to be fitted in at odd moments, without
regard to whether significant progress toward
reaching agreement could be made by proceeding
in this manner. Further, the Respondent declined,
without explanation, to respond positively to Sira-
bella's followup offer to adjust his schedule to suit
the Respondent's convenience.15
The Respondent also demonstrated a lack of seri-
ous intent to reach agreement through its repeated-
ly expressed refusal to accept a hiring hall, not-
withstanding the Union's repeated assurance that it
was not even proposing a hiring hall. Through this
behavior, the Respondent seemed almost to be
searching for matters on which it could express dis-
agreement with and opposition to the Union. Fur-
thermore, Knoll's question to Sirabella, as negotia-
tions were breaking down, concerning why the
Union would not simply agree to an election indi-
cates that the Respondent did not respect the
Union as an equal partner and was hoping to
escape its obligation to continue dealing with the
Union. See Prentice Hall, Inc., 290 NLRB 646
(1988) (noting employer representative's frequent
comment during certification year bargaining on
the slim majority by which union won the elec-
tion). The background of the bargaining relation-
ship is of some significance in this regard. The Re-
spondent might reasonably have hoped that sup-
port for the Union had waned, in the absence of
any bargaining between December 1974, when the
Respondent withdrew recognition from the Union,
and June 1981, when the Respondent's attempt to
defend the legality of that withdrawal before the
Board, the court of appeals, and the Supreme
Court was definitively rejected in the Supreme
872 (11th Cir 1984); Consolidated Fiberglass Products Co., 242 NLRB 10
(1979); Schuylkill Metals Corp., 218 NLRB 317 (1975), Underwriters Ad-
,lusting Co., 214 NLRB 388 (1974). Cf Colorado-Ute Electric Assn., 295
NLRB 607 (1989) (bargaining to impasse on institution of ment pay pro-
gram with amounts to be determined solely by employer not violative
based on totality of circumstances). Member Devaney finds it unneces-
sary to rely on the citation to Colorado-Ute
is Member Devaney relies only on the factor noted in the last sentence
of this paragraph as an indicator of bad-faith bargaining in this case.
Court's denial of a motion for reconsideration of its
earlier denial of the Respondent's certiorari peti-
tion.
Finally, the Respondent's bad-faith bargaining is
shown by its abrupt unilateral termination of fur-
ther discussion by presenting the Union with the
ultimatum that it either accept then and there the
Respondent's one and only contract proposal, or
press on with its bad-faith bargaining unfair labor
practice charge against the Respondent.
In conclusion, we find that the Respondent's
stated refusal to negotiate about work rules;' 6 its
asserted inability to meet very regularly or for long
periods of time;17 its repeated rejection of a hiring
hall when the Union was not even proposing one;
its implication to the Union that it wanted an elec-
tion rather than continued negotiating sessions; and
its unilateral and peremptory scuttling of any fur-
ther negotiations,18 all in conjunction with its re-
fusal to even express a willingness to modify its
total contract proposal and with its expressed de-
termination that the Union would have nothing to
say about wage levels and seniority, demonstrate
that the Respondent had no real intent to reach a
collective-bargaining agreement with the Union.
Accordingly, we conclude that the Respondent has
engaged in bad-faith bargaining in violation of Sec-
tion 8(a)(5) and (1) of the Act. 19
II. ALLEGEDLY UNLAWFUL REMARKS OF JOHN
ASCUAGA SR.
In section V,A of his decision, the judge found
that the Respondent violated Section 8(a)(5) and
(1) of the Act when its president, John Ascuaga,
Sr., told employees- at regularly scheduled group
meetings in December 1981 that the Respondent
had an open-door policy for dealing with employ-
ees on a one-to-one basis and that it did not need
third parties. Ascuaga thanked the employees for
not having a third party to help run the operation
and advised them that the Respondent had never
needed outside influence to solve any of its prob-
lems and would handle them in the future. Al-
though the Union was never expressly mentioned
in any of these meetings, the judge found that As-
cuaga's references to "third parties" and "outside
influence" were references to the Union. Accord-
ingly, the judge concluded that Ascuaga's remarks
violated Section 8(a)(1) by effectively telling the
16 See Port Plastics, supra; A-1 King Size Sandwiches, supra
iT See Southside Electric Cooperative, 243 NLRB 390 (1979); Lawrence
Textile Shrinking Co., 235 NLRB 1178 (1978) Member Devaney finds it
unnecessary to rely on this factor in this case
18 See Carpenters Local 1780, 244 NLRB 277 (1979); Television Wiscon-
sin, 224 NLRB 722, 738 (1976). '
19 See generally Brannan Sand & Gravel Co, 289 NLRB 1492 (1988)
JOHN ASCUAGA'S NUGGET 529
employees that they could take their problems to
him independently of the Union and that it was
pointless for them to be represented by the Union.
The judge also concluded that Ascuaga's remarks
violated Section 8(a)(5) as well, on the grounds
that the judge found them to be calculated to un-
dermine and bypass the Union. We disagree with
both of the judge's unfair labor practice findings in
this area.
In finding that Ascuaga's remarks violated Sec-
tion 8(a)(1), the judge relied entirely on Quality En-
gineered Products Co., 267 NLRB 593 (1983). How-
ever, we find that case to be inapposite. In Quality
the employer's owner-president-chief operating of-
ficer twice expressly told his employees that it
would be futile for them to support the union and
coupled those statements on both occasions with
express threats of plant closure if the employees
chose to be represented by a union. Moreover, the
same official subsequently interrogated employees
about the filing of a particular unfair labor practice
charge. It was in this context of unlawful threats
and interrogations that the employer's owner as
well as its general manager told the employees that
they did not need to be represented by the union,
that they could speak to management directly, and
that the employer did not want anyone to tell it
how to run its operation. Thus, the crucial distinc-
tion between Quality and the instant case is the ab-
sence here of the threats of futility and plant clo-
sure, and subsequent interrogations about the filing
of unfair labor practice charges.
Absent any accompanying or related threats and
interrogations, we find that Ascuaga's remarks to
his employees are within the bounds of acceptable
speech established for both employers and unions
in Section 8(c) of the Act.20 Thus, Ascuaga's re-
marks that the Respondent had never needed out-
side influence to solve any of its problems and that
it_ would handle them in the future constitutes nei-
ther an implicit solicitation of grievances, nor an
implicit promise to rectify grievances.
Similarly, we find Ascuaga's remark to employ-
ees that the Respondent had an open-door policy
for dealing with employees on a one-to-one basis
did not violate the Act. Although the record does
not establish that the Respondent actually had an
open-door policy, there is no contention to the
contrary. Accordingly, we find that Ascuaga's ref-
erence to a presumably existing open-door policy
through which the Respondent was willing to deal
with employees on an individual basis is bereft of
any unlawful implications.21
Finally, the "problems" referred to by Ascuaga
in his remarks are expressly identified as the Re-
spondent's ("its") problems-not those of employ-
ees. Beyond that, Ascuaga's remarks that no "out-
side influence" was needed to solve the Respond-
ent's problems-even accepting the judge's finding
that the "outside influence" referred to was the
Union-carry with them no express or implied
threats of reprisals or promises of benefits. In short,
these remarks also are, protected by Section 8(c)
and not violative'of Section 8(a)(1).22
The judge found that Ascuaga's remarks also
violated Section 8(a)(5) on the grounds that they
were calculated to undermine and bypass the
Union. The judge's conclusion in this regard is ap-
parently premised on his finding that the Respond-
ent was engaged in bad-faith bargaining with the
Union at the time the remarks were made. While
we agree with the judge that the Respondent bar-
gained in bad faith, and that Ascuaga's remarks
may be considered in assessing the Respondent's
bargaining conduct, we do not find that the re-
marks constitute independent violations of Section
8(a)(5) of the Act.23
HI. ALLEGEDLY UNLAWFUL REMARKS BY
REZA ZOLGAHR
In section V,C of his decision, the judge found
that alleged Supervisor Reza Zolgahr unlawfully
interrogated employee Cheryl Valcarce about her
union sympathies and threatened her with loss of
her job if she became involved with the Union.,
While Valcarce's testimony about the incident in"
question is credited, we nevertheless do not affirm
the findings and conclusion of the judge in this
regard, because we find that the record fails to es-
tablish that Zolgahr was a supervisor within the
meaning of the Act or that his remarks to Valcarce
were. otherwise attributable to the Respondent.,
At the time of the hearing, Zolgahr was no
longer employed by the Respondent, and he was
not called to testify. Only Valcarce testified about
Zolgahr's alleged supervisory status. According to
Valcarce, Zolgahr's duties were "supervising,
scheduling and reprimanding." Regarding schedul-
ing, the record shows only that Zolgahr scheduled
the regular workdays and hours of the waitresses
on his shift; according to Valcarce, her dining
20 Sec. 8(c) provides that
The expressing of any views , argument, opinion , or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall
not constitute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains 'no threat of
reprisal or force or promise of benefit.
21 See Butler Shoes New York, 263 NLRB 1031, 1032-1033 (1982), Visa-
dor Co., 245 NLRB 508 (1979).
22 See Rich Plan of Western Reserve, 271 NLRB 1010, 1015-1016
(1984).
22 As the judge noted, Ascuaga's remarks were not alleged in the com-
plaint to have violated Sec. 8 (a)(5).
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
room worked no overtime hours.24 As for repri-
manding, while Valcarce claimed to be certain that
Zolgahr had reprimanded more than one employee,
she was unable to specify even one particular in-
stance of Zolgahr reprimanding anyone .25
With regard to hiring, Valcarce testified that she
did not know whether Zolgahr had the authority
to hire and that she in fact never saw Zolgahr hire
anyone. However, Valcarce also testified that Zol-
gahr played a role in the Respondent's hiring proc-
ess: "You go through him." More specifically, Val-
carce testified that job applicants were sent from
the Respondent's personnel department to Zolgahr,
at which point Valcarce believed that Zolgahr
"consulted" with his superiors. According to Val-
carce:
Well, I know that he could go to his supervi-
sor and recommend for hiring and firing, and I
don't know if he had the power- to actually do
it without advising his supervisor, I don't
know.
Again, however, Valcarce failed to relate any spe-
cific instance in which Zolgahr demonstrated his
alleged authority effectively to recommend hiring.
Finally, Valcarce also testified that she did not
know whether Zolgahr had the authority to dis-
charge. She testified to what she described as an
instance when Zolgahr discharged an employee: "I
saw him pull somebody off the floor and then they
left and I was told that they left because they were
fired, that [Zolgahr] told him that he was fired."
However, Valcarce conceded, in regard to this
purported instance, that she did not hear what, if
anything, was said by any of the participants, and
that she simply "assumed that [Zolgahr] talked to
somebody and they decided to fire them . . . . It's
just my assumption."
The above constitutes all the material evidence
on the question of whether Zolgahr is a supervisor
within the meaning of Section 2(11) of the Act. On
this evidence, the judge, in footnote 96, found it
"inferable" that Zolgahr had a "meaningful role" in
the hiring process and the authority to discipline
and discharge. Based on our review of the evi-
dence, we find that the judge's inferences are not
supported by the record, and contrary to him, we
conclude that the General Counsel has failed to es-
tablish that Zolgahr is a supervisor within the
24 See Ahrens Aircraft, 259 NLRB 839 (1981) (routine assignment of
work, no showing of exercise of independent discretion). Accord: Meyer
Jewelry Co., 230 NLRB 944, 946 (1977) (re Dorothy Kea).
25 Valcarce did testify that she did not have a very good relationship
with Zolgahr and that "he was always threatening to fire me ... he
always used to write me up; and then before I'd sign it, he'd rip up the
write-up." Valcarce conceded that she had never been formally or mfor-
mally disciplined by Zolgahr-"just verbal threats."
meaning of the Act.26 Accordingly, we shall dis-
miss the allegations of unlawful activity premised
on Zolgahr's remarks to Valcarce.
IV. ALLEGEDLY UNLAWFUL DENIAL OF ACCESS
TO UNION PICKETERS
In section V,E of his decision, the judge found
that the Respondent unlawfully denied nonem-
ployee union picketers and handbillers access to
the Respondent's premises, thus preventing them
from effectively communicating to the public the
Union's ongoing dispute with the Respondent. For
the reasons discussed below, we agree with the
judge and find that the Respondent acted unlawful-
ly in denying the nonemployee union picketers and
handbiilers access to its premises.
The Respondent's facility has two customer en-
trances. The front entrance is on a public street,
but relatively few customers enter or exit through
the front entrance. Most customers arrive by tour
bus and they enter and exit through the rear en-
trance, which is on the Respondent's private drive-
way. Tour buses bringing customers to the hotel-
casino pull directly up to the rear entrance, and
customers go directly from their bus through the
rear entrance and into the facility. Also, the Re-
spondent's customer parking lot is located at the
rear of the property, and customers who park their
cars in the lot enter and exit through the rear en-
trance.
On June 17, 1982, the Union began a campaign
to publicize its dispute with the Respondent. As
part of this campaign, the Union began to picket
and handbill at the Respondent's premises. The
record does not reveal what specific message was
carried on the picket signs . Only one of the union
handbills was introduced into evidence; it stated:
John Ascuaga's Nugget in Sparks is a law-
breaker.
They refuse to bargain in good faith with
their employees. In spite of what is fair. And
in spite of a federal court order.
You can help end this unlawfulness. The
Nugget figures they can defy anybody as long
as the chips keep rolling in. But if the well
runs dry, they may have a change of heart.
Please don't gamble with the employees'
future.
BOYCOTT THE SPARKS NUGGET.
None of the union picketers were employees of
the Respondent. Initially, the picketing and hand-
26 Ahrens Aircraft, supra at 842 , citing Tucson Gas & Electnc Co, 241
NLRB 181 (1979) (burden of establishing supervisory status is on party
asserting that status).
JOHN ASCUAGA'S NUGGET 531
billing was conducted both at the Respondent's
lightly trafficked front entrance, on a public street,
and at the Respondent's heavily trafficked rear en-
trance, on the Respondent's property. About 20
minutes after the start of the Union's picketing and
handbilling, local police, accompanied by the Re-
spondent's security guards, evicted the picketers
and handbillers from the rear entrance area. The
police advised the union leaders at the scene that
the rear entrance was on private property and that
the picketers and handbillers would be arrested if
they did not leave that area. The picketers with-
drew from the rear entrance to the end of the Re-
spondent's private driveway, where it intersected
with a public street, about 40-50 yards from the
rear entrance itself. From then on, the picketers
walked on the public sidewalk bordering the Re-
spondent's property. As indicated, the picketers
normally came no closer than 40-50 yards from
customers using the Respondent's rear entrance.
Occasionally, however, several tour buses parked
in the Respondent's driveway at the same time, and
some of the newly arriving tour buses then unload-
ed at or near the intersection of the Respondent's
driveway and the public street, somewhat closer to
the picketers.
Subsequent to the removal of the union picketers
from the rear entrance area, employees of the Re-
spondent were permitted, to engage in pro-Re-
spondent picketing in the same rear entrance area
from which the prounion picketers were evicted.
The pro-Respondent picketing was not directed at
the Union and made no reference to the Union's
dispute with the Respondent. Rather, the picketing
was limited to promotion of the Respondent's culi-
nary services, with picket sign messages such as "5
Star Buffet" and "Ascuaga serves fresh orange
juice."27 The employees engaged in this pro-Re-
spondent picketing did so at the Respondent's ex-
press invitation, wearing the Respondent's uni-
forms, and with the Respondent's financial sup-
port. 28
27 Although the Respondent 's two handbills set out in full in sec
IV,A,4 of the judge's decision addressed the Union's labor dispute with
the Respondent , evidence of the possible distribution of these handbills to
customers is sparse . Employee Lois Malay testified without elaboration
that on one occasion she saw three or five other employees "handbill-
ing." However , with specific reference to the two handbills in evidence,
former employee Lucille McMeekin testified that Supervisor Lynn Reed
distributed the first one to employees at work and that copies of the
second , handbill were placed in stacks next to where employees obtained
their timecards . Finally, Union Business Agent Jeffrey Kovac testified
without elaboration that "If I'm not mistaken," the picketing employees
did distribute handbills to the public.
28 In this regard, in sec V,F of his decision, the administrative law
judge found, and we affirm, that the Respondent violated Sec. 8(a)(1) of
the Act when Supervisor Lynn Reed solicited employees to engage in
antiunion picketing while being paid by the Respondent (i e., while "on
the clock")
Also, on July 3, 1982, the Respondent's security
guards expelled nonemployee union supporter
Pearl Staub from the Respondent's parking lot as
she was attempting to copy the license plate num-
bers of tour buses. She was told by the guards that
the Respondent's lot was private property and that
she was not permitted to engage in union activities
there.
In assessing the legality of the Respondent's ac-
tions in evicting the nonemployee union supporters
from its property, the judge attempted to achieve
an accommodation of employee Section 7 rights
and employer private property rights. On the basis
of his analysis the judge concluded that the Union's
picketing and handbilling in the area of the rear en-
trance did not intrude unduly on the Respondent's
private property rights, and that it was therefore
unlawful for the Respondent to have expelled the
union picketers and handbillers from its property.
The judge also concluded that Pearl Staub's effort
to copy the license plate numbers of tour buses in
the Respondent's parking lot was protected activity
that impinged only slightly on the Respondent's-
property rights, and that the Respondent also acted
unlawfully in expelling ,Staub from its lot. For the
reasons discussed below, we agree with the judge's
unfair labor practice findings in both regards.
Subsequent to the judge's decision, the Board
issued Jean Country, 291 NLRB 11 (1988), in
which the Board reconsidered its analytical ap-
proach to access issues in light of the Supreme
Court's two principal guiding decisions in NLRB v.
Babcock & Wilcox, 351 U.S. 105 (1956), and Hud-
gens v. NLRB, 424 U.S. 507 (1976). The Board con-
cluded that, once the threshold property interest is
demonstrated, the availability of reasonable alterna-
tive means of communication must be considered in
every access case, in conjunction with a consider-
ation of the Section 7 rights and property rights in-
volved. The Board identified numerous factors that
may be relevant to assessing the relative weight of
the competing rights asserted as well as the avail-
ability of alternative means . The Board then stated
(at 14).
Accordingly, in all access cases our essential
concern will be the degree of impairment of
the Section 7 right if access should be denied,
as it balances against the degree of impairment
of the private property right if access should
be granted. We view the consideration of the
availability of reasonably effective alternative
means as especially significant in this balancing
process. In the final analysis, however, there is
no simple formula that will immediately deter-
mine the result in every case.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board in Jean Country found that the fol-
lowing factors may be relevant to assessing the
weight of a property right: the use to which the
property is put; the restrictions, if any, that are im-
posed on public access to the property; and the
property's relative size and openness. The factors
that may be relevant to the consideration of a Sec-
tion 7 right include: the nature of the right; the
identity of the employer to which the right is di-
rectly related (e.g., the employer with whom a
union has a primary dispute); the relationship of
the employer or other target to the property to
which access is sought; the identity of the audience
to which the communications concerning the Sec-
tion 7 right are directed; and the manner in which
the activity related to that right is carried out. Fi-
nally, factors that may be relevant to the assess-
ment of alternative means include: the desirability
of avoiding the enmeshment of neutrals in labor
disputes; the safety of attempting communications
at alternative public sites; the burden and expense
of nontrespassory communication alternatives; and
the extent to which exclusive use of the nontrespas-
sory alternatives would dilute the effectiveness of
the message. (Id. at 13-14.)
Applying this framework for analysis to the in-
stant facts, we first find, as a threshold matter, that
the Respondent's conduct in removing union pick-
eters and handbillers from the rear entrance area of
the Respondent's hotel-casino was based on a prop-
erty interest granting the Respondent control of
the property in issue . As found by the judge, the
Respondent owns the walk and driveway adjacent
to the rear entrance of the hotel-casino from which
the picketers and handbillers were removed. As-
sessing the strength of the Respondent's property
right, we note that the Respondent's hotel-casino,
including its restaurants and bars, is open to the
general public. The commercial nature and purpose
of the Respondent's property are self-evident: to
provide lodging, entertainment, food, and drink to
the general public. The facility has two public en-
trances, one on a public street, the other off the
customer parking lot at the rear of the facility.
Most of the Respondent's customers arrive by tour
bus; the rest arrive by private car, local transporta-
tion, or on foot. Customers arriving by tour bus are
brought directly up the driveway to the rear en-
trance of the Respondent's facility; customers arriv-
ing by private car may park in the Respondent's
customer parking lot, at the rear of the facility.
The record does not reveal any particular restric-
tions on the public's access to the Respondent's
property. In short, the public is extended a broad
invitation-indeed, it is presumably 'encouralged-to
come on to the Respondent's property.
There is nothing in the record to show that the
Respondent's customers would be significantly ob-
structed or interfered with by the presence of pick-
eters or handbillers in the area of the rear entrance
to the Respondent's facility. -
Taking account of the above factors, it is clear
that maintenance of the privacy of the Respond-
ent's hotel-casino is not a particular concern be-
cause the presence of the public in large numbers is
intrinsic to the commercial goals of the Respond-
ent. Accordingly, we find that the private property
right asserted by the Respondent in reaction to the
Union's picketing and handbilling at the rear cus-
tomer entrance to the Respondent's facility is not
especially strong.
With regard to the strength of the Section 7
right asserted in this case, the record establishes
that the Union's picketing and handbilling were un-
dertaken to protest the Respondent's unfair labor
practice of refusing to bargain in good faith with
the Union as the certified collective-bargaining rep-
resentative of the Respondent's employees. Thus,
the Section 7 right at stake here is the fundamental,
core right to protest and call public attention to an
employer's unfair labor practices committed against
employees represented by the picketing union.29
The Union sought to exercise this core Section 7
right only at the sites of the employer who com-
mitted the unfair labor practice. Thus, there is no
enmeshment of neutral secondary employers stem-
ming from the Union's exercise of its right publicly
to protest the Respondent's unfair labor practices
at the situs of that unlawful activity, the Respond-
ent's hotel-casino. The audience that the Union's
message was intended to reach was, of course, the
Respondent's customers at the facility in question.
Again, there is no showing that the ingress and
egress of these customers would be significantly
interfered with by the Union's presentation of its
protest of the Respondent's unfair labor practice
through picketing and handbilling at the rear cus-
tomer entrance.
We find that the instant picketing and handbill-
ing at the Respondent's facility, aimed at the Re-
spondent's customers, in protest against the Re-
spondent's unfair labor practice, is one of the
strongest of Section 7 rights.
Turning to an assessment of the alternative
means by which the Union might be able to com-
municate its message , we note that the Union's in-
tended audience was the Respondent's customers,
most of whom arrive at the Respondent's facility in
tour buses, which deliver the customers directly to
29 See Thriftway Supermarket, 294 NLRB 173 (1989), United Supermar-
kets, 283 NLRB 814, 815 (1987)
JOHN ASCUAGA'S NUGGET 533
the rear entrance of the Respondent's facility,
where they go directly from the bus into the facili-
ty. Customers arriving by private car also enter the
facility through the rear entrance after parking in
the Respondent's parking lot.
The only alternative means of communicating
the Union's message to the great majority of the
Respondent's customers that. warrants discussion
under these circumstances is that which was im-
posed on the Union by the Respondent itself-pick-
eting and handbilling on public property at the
intersection of the public street and the Respond-
ent's private driveway. Except on those apparently
few occasions when four or five tour buses arrive
virtually simultaneously at the Respondent's rear
entrance (causing them to extend in a line back
from the rear entrance, along the driveway, to-
wards the street), the Section 7 activity in question
would be conducted no closer than approximately
40-50 yards from its intended audience, i.e., the
Respondent's customers getting on and off tour
buses and customers going to and from private
cars, as they enter and leave from the Respondent's
rear customer entrance. In view of the considerable
distance from the Respondent's rear entrance to the
intersection of the Respondent's private driveway
with the public street, the effectiveness of the
Union's message in terms of both its substantive
impact and the number of customers potentially
reached via picketing or handbilling would be sub-
stantially diluted, if not defeated, if this message
were regIired to be conveyed to its audience only
from the relatively remote alternative location in
question, We note particularly that the Union's
message of protestation of the Respondent's unlaw-
ful refusal to bargain is not easily conveyed by
picket signs, or at least picket signs alone; handbill-
ing is a reasonable, effective means of communicat-
ing this message . Moreover, customers arriving en
masse in tour buses cannot reasonably be provided
with handbills as the buses enter the Respondent's
driveway to proceed directly to the customer en-
trance. Likewise, customers arriving in this fashion
are not likely to be able to see picket sign messages
as their bus passes the picketers on its way directly
to the customer entrance.30
80 Regarding the large proportion of the customers who arrive in com-
mercial buses, Chairman Stephens notes that, unlike customers who enter
the Respondent 's property by foot or in private cars-who may make
personal decisions , based on the mere sight of a picket line, not to patron-
ize the establishment-the bus passengers have no direct control over
their travels land thus no opportunity to respond to the Union' s appeal. It
is therefore especially important in this case for the Union to be able to
handbill the Respondent's customers as they alight from the bus at the
casino entrance. See NLRB v Retail Clerks Local 1001, 447 U.S. 607, 619
(1980) (Stevens, J, concurring in part), citing Teamsters Local 802 v.
Wohl, 315 US. 769, 776-777 (1942) (Douglas, J, concurring).
In light of the above considerations, we find that
communication of the Union' s message from the
end of the Respondent's driveway leading to the
rear customer entrance was not a reasonably effec-
tive alternative and that there was in fact no rea-
sonable method of effectively communicating the
Union's message other than by entry onto the Re-
spondent's property.
In sum, as found above, the Respondent's private
property right to restrict the union picketers and
handbillers from the rear entrance area of its prem-
ises is not strong; the Union's Section 7 right pub-
licly to protest the Respondent's unlawful refusal
to bargain is strong; and there was no reasonable,
effective alternative means for the Union to com-
municate its Section 7 message to the audience for
which it was properly intended-the Respondent's
customers. Thus, on balance, the degree of impair-
ment of the Union's Section 7 right to protest pub-
licly the Respondent's unfair labor practice if
access to the Respondent's rear entrance area were
denied greatly exceeds the degree of impairment
the Respondent's private property right would
suffer if such access were granted. Accordingly,
we conclude that the, Respondent's refusal to
permit the Union to engage iii the above-described
Section 7 activity on the Respondent's premises
violated Section 8(a)(1) of the Act.31
V. ALLEGEDLY UNLAWFUL THREAT OF LAYOFF
In section V,F of his decision, the judge con-
cluded that the Respondent violated Section 8(,a)(1)
of the Act by threatening to lay off employees in
order to meet the Union's bargaining demands.
Specifically, Supervisor Reed told employee Malay
that "John Ascuaga couldn't . . . pay what the
Union wanted . . . so he would have to lay off ap-
proximately 20 percent of the, work force." In ford-
ing that Reed's remark constituted an unlawful
threat of layoff, the judge reasoned that "[a]
union's bargaining demands, even if beyond an em-
31 We also find, in agreement with the judge, that the Respondent vio-
lated Sec . 8(a)(1) of the Act on July 3, 1982, by evicting nonemployee
union supporter Pearl Staub from the Respondent's parking lot as she
was attempting to copy the license plate numbers and places of origin of
tour buses parked there. We agree with the judge that Staub 's efforts
were reasonably aimed at developing an alternative means of publicly
communicating the Union's protest of the Respondent's unlawful refusal
to bargain, and that these efforts were undertaken as a direct conse-
quence of the Respondent's above-discussed earlier refusal to grant the
Union a reasonable, effective means to communicate that message . Thus,
we find that the Respondent 's eviction of Staub from the parking lot is
intertwined with its unlawful eviction of the union picketers and hand-
billers from the' rear customer entrance 2 weeks earlier , and was there-
fore in violation of Sec . 8(a)(1) of the Act. Under these circumstances we
find it unnecessary to address the question of whether Staub's eviction
from the parking lot would have been unlawful in the absence of the Re-
spondent's prior unlawful eviction of the picketers and handbilleis from
the rear customer entrance.
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer's economic capability, do not become em-
ployer obligations without the employer's agree-
ment."
While we agree with the judge's ultimate conclu-
sion, we do not rely on his reasoning to the extent
that it implies that an employer must first agree to
a union's demands before it can lawfully predict
adverse economic consequences resulting from the
acceptance of those demands. Rather, we analyze
the facts relevant to this allegation in light of the
following standard, quoted also by the judge, set
forth in NLRB v. Gissel Packing Co., 395 U.S. 575,
618 (1969):
An employer may . . . make a prediction as to
the precise effect he believes unionization will
have on his company. In such a case, howev-
er, the prediction must be carefully phrased on
the basis of objective fact to convey an em-
ployer's belief as to demonstrably probable
consequences beyond his control.
Here, Reed did not phrase his prediction (i.e., a
20-percent layoff if the Respondent accepted the
Union's proposals) on the basis of any objective
facts; Reed's bald assertion of John Ascuaga's in-
ability to pay certainly does not, without more,
meet the standard of an "objective fact." Thus,
Reed's prediction of a 20-percent layoff certainly
did not convey his belief concerning "demonstra-
bly probable consequences." In light of those short-
comings, we find that Reed's remark to Malay con-
stituted an unsupported-and therefore unlawful-
threat of layoff.
THE REMEDY
As an aspect of his proposed remedy, the judge
has recommended that the Respondent be required
to reimburse the Board for all its costs and ex-
penses in the litigation of this proceeding. On care-
ful consideration of the judge's recommendation,
we find that effectuation of the policies of the Act
and service of the public interest do not, under the
circumstances of this case, necessitate the imposi-
tion of this extraordinary remedy.
In Autoprod, Inc., 265 NLRB 331 (1982), relied
on by the judge, the Board found that the employ-
er's "flagrant misconduct" had capped a decade of
"contumacy and flagrant disregard" of employee
rights, involving the "flouting" of a court-enforced
Gissel bargaining order, which itself was predicated
on the employer's earlier attempts to undermine
the union's organizing campaign by, inter alia, dis-
criminatorily discharging half of the principal em-
ployee organizers. In ordering the employer in Au-
toprod to reimburse the Board for its litigation ex-
penses, the Board thus cited the employer's "long
history of intransigence" and litigation costs that
the Board found that the employer had "wantonly
and unnecessarily forced upon" the Board.
While we do not in any way excuse or minimize
the seriousness of the unfair labor practices which
we have found that the Respondent committed, we
nevertheless are satisfied that the remedial meas-
ures we impose on the Respondent in this case are
sufficient to effectuate the policies of the Act and
to serve the public interest . In contrast to Autoprod,
we cannot hold that this Respondent has "wanton-
ly and unnecessarily forced" litigation on the
Board . Cf. Neely's Car Clinic, 242 NLRB 335
(1979), citing Tiidee Products, 194 NLRB 1234
(1972).3 2 Although we have found certain of the
Respondent 's defenses here to be without merit, we
do not find that they are patently frivolous. Ac-
cordingly , we do not adopt the judge 's recommen-
dation in this regard . See generally Carbonex Coal
Co., 262 NLRB 1306 (1982); Charmer Industries,
250 NLRB 293, 301 ( 1980); Standard Homes, 249
NLRB 1085 fn . 2 (1980).
ORDER
The National Labor Relations Board orders that
the Respondent, Sparks Nugget, Inc., d/b/a John
Ascuaga's Nugget, Sparks, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Hotel,
Motel, Restaurant Employees & Bartenders Union
Local 86, affiliated with the Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO as the exclusive collective-bargaining
representative of the employees in the following
appropriate unit:
All employees employed by Respondent in its
bar and culinary operations at its Sparks,
Nevada, place of business, excluding all other
employees, guards, and supervisors as defined
in the Act.
(b) Dealing directly with the employees in the
above unit, in disregard of the said Union as their
exclusive collective-bargaining representative, by
polling them concerning the break-relief system.
(c) Attempting to induce employees to engage in
antiunion picketing by telling them they would be
paid to do it.
(d) Engaging in unlawful surveillance of the
union activities of employees and others by photo-
graphing those activities.
s2 Nevertheless, we approve the judge's inclusion of a broad cease-
and-desist order as the Respondent has engaged in egregious misconduct.
Hickmott Foods, 242 NLRB 1357 (1979)
JOHN ASCUAGA'S NUGGET 535
(e) Threatening employees that layoffs- will be
necessary because the Respondent cannot afford
the bargaining demands made by the Union.
(f) Prohibiting representatives of the Union from
engaging in the protected activities of picketing
and distributing handbills, and from obtaining the
license numbers and origins of tour buses, by bar-
ring them from those activities on the Respondent's
property.
(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain collectively, in good
faith, with the said Union as the exclusive repre-
sentative of the employees in the above unit; and if
an agreement is reached, embody it in a signed
document.
(b) Destroy all photographs and copies and nega-
tives thereof taken by or on behalf of the Respond-
ent at the press conference held by the Union on
June 17, 1982, and of the prounion picketing and
handbilling that subsequently took place.
(c) Post at its place of business in Sparks,
Nevada, copies of the attached notice marked "Ap-
pendix."33 Copies of the notice, on forms provided
by the Regional Director for Region 32, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
33 If this Order is enforced by a judgment ' of a United States court of
appeals, the words in the notice reading' "Posted by Order of the Nation-
al 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
WE WILL NOT refuse to bargain in good faith
with Hotel, Motel, Restaurant Employees & Bar-
tenders Union Local 86, affiliated with Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO as the exclusive collective-bar-
gaining representative of the employees in this ap-
propriate unit:
All employees employed by us in our bar and
culinary operations at our Sparks, Nevada,
place of business, excluding all other employ-
ees, guards, and supervisors as defined in the
Act.
WE WILL NOT deal directly with employees in
the above unit, in disregard of the said Union as
their exclusive collective-bargaining representative,
by polling them concerning the break-relief system.
WE WILL NOT engage in unlawful surveillance of
the union activities of employees and others by
photographing those activities.
WE WILL NOT attempt to induce employees to
engage in antiunion picketing by telling them they
will be paid to do it.
WE WILL NOT threaten employees that layoffs
will be necessary -because we cannot afford the bar-
gaining demands made by the Union.
WE WILL NOT prohibit representatives of the
Union from engaging in the protected activities of
picketing and distributing handbills, and from ob-
taining the license numbers and origins of tour
buses, by barring them from those activities on the
Respondent's property.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively, in
good faith, with the said Union as the exclusive
representative of the employees in the above unit;
and, if an agreement is reached, embody it in a
signed document.
WE WILL destroy all photographs and copies
thereof (including negatives and positives) taken by
or on behalf of us at the press conference held by
the Union on June 17, 1982, and of the prounion
picketing and handbilling that subsequently took
place.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
SPARKS NUGGET, INC., D/B/A JOHN
ASCUAGA'S NUGGET
Douglas Gallop, Esq., for the General Counsel.
William W Wertz, Esq. (Severson, Werson, Berke & Mel-
chior), of San Francisco , California, and Peter D.
Laxalt, Esq. (Laxalt & Berry), of Reno , Nevada, for
the Respondent.
Geoffrey V White, Esq. (Davis, Cowell & Bowe), ^ of San
Francisco, California, for the Charging Party.
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matters was tried in Reno, Nevada, on October 17 to 20
and December 6 to 9, 1983. The charge in Case 32-CA-
4586 was filed on June 10, 1982, and that in Case 32-
CA-4631 on June 29, 1982, both by Hotel, Motel, Res-
taurant Employees & Bartenders Union Local 86, affili-
ated with the Hotel & Restaurant Employees & Bartend-
ers International Union, AFL-CIO (Union). The com-
plaint issued on March 31, 1983, was amended on Octo-
ber 4, during the trial, and by counsel for the General
Counsel in his posttrial brief,2 and alleges that Sparks
Nugget, Inc., d/b/a John Ascuaga's Nugget (Respond-
ent) has negotiated in bad faith with the Union since De-
cember 10, 1981, thereby violating Section 8(a)(5) and (1)
of the National Labor Relations Act (Act); that it cir-
cumvented the Union as concerns employee grievances
in February 1982, further violating Section 8(a)(5) and
(1); and that it engaged in assorted other conduct viola-
tive of Section 8(a)(1) between December 1981 and June
1982.3
FINDINGS OF FACT
1. JURISDICTION
Respondent operates a hotel and casino, and bars and
restaurants therein, in Sparks, Nevada , near Reno. It an-
nually realizes revenues exceeding $500,000, and takes
delivery from outside Nevada of goods valued in excess
of $10,000. It ` is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5)
of the Act.
III. LITIGATION HISTORY
By decision dated June 17, 1977, the Board affirmed
the decision of an administrative law judge that Re-
spondent had violated Section 8(a)(5) and (1) by with-
drawing recognition from the Union, as the collective-
bargaining representative of its bar and culinary employ-
ees, in December 1974, and by then unilaterally institut-
ing a new employee grievance procedure to be adminis-
tered by a mechanism known as the Sparks Nugget Em-
ployees' Council.4
i At the outset of the trial, this matter also included Case 32-CA-4781,
based on a charge filed by Linda Van Orman on August 17, 1982. That
was settled during the trial, and thus was removed from the larger case.
2 In his brief, counsel for the General Counsel withdrew as legally un-
sustainable an allegation that Respondent had acted improperly by virtue
of the reason given an employee for her discharge in January 1982.
8 Sec. 8(a)(5) proscribes an employer's "refus[al] to bargain collectively
with the representatives of his employees . ." Sec. 8(a)(1) makes it an
unfair labor practice for an employer "to mterfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in Section 7 "
Sec. 7 states in relevant part. "Employees shall have the right to self-or-
ganization , to form, ,loin, or assist labor organizations, to bargain collec-
tively through representatives of their choosing . "
4 John Ascuaga's Nugget, 230 NLRB 275, 276, 288 (1977). Respondent
also was found to have instituted a new employee insurance program in
The Board ordered Respondent, among other things,
to "recognize and, upon request, bargain collectively
with" the Union as concerns the terms and conditions of
employment of the bar and culinary employees; to "cease
and desist from . . . refusing" to so recognize and bar-
gain; to "cease and desist from . . . unilaterally instigat-
ing, establishing, maintaining, or utilizing the Sparks
Nugget Employees' Council and the grievance proce-
dure of which said Council is a part"; and to "cease and
desist from . . . unilaterally instituting any alterations,
modifications, or changes in the terms and conditions of
employment which are mandatory subjects of bargaining
with" the Union.5
The Board's Order was enforced in these and other
particulars by a judgment of the United States Court of
Appeals for the Ninth Circuit entered on May 27, 1980,
and amended on September 12, 1980.6 The United States
Supreme Court denied Respondent's petition for a writ
of certiorari by order dated April 20, 1981, and denied
Respondent's motion for rehearing on that petition by
order of June 8, 1981.7
IV. RESPONDENT 'S PRESENT ALLEGED NEGOTIATING
BAD FAITH
A. Facts
1. Preliminaries to bargaining
By letter dated April 29, 1981, prompted by the Su-
preme Court's April 20 order, Vincent Sirabella, then an
administrative assistant to the general president of the
Union's parent International,8 informed Respondent that
he had been assigned to represent the Union in contract
negotiations with Respondent, and proposed that he and
Respondent's president, John Ascuaga Sr., meet "for the
purpose of getting acquainted and to discuss . . . a mutu-
ally acceptable format to start negotiations." The letter
added that the Union had entered into a contract with
another Reno area hotel and casino, the Circus Circus,
the preceding February, and with the Sahara-Tahoe, a
hotel and casino at nearby Lake Tahoe, the previous
week; and that it was the Union's "sincere desire to es-
tablish a similar kind of friendly atmosphere" in its nego-
tiations with Respondent.
Respondent's attorney, William Wertz, replied by
letter dated May 14, stating that Sirabella's request for
bargaining was "premature" inasmuch as Respondent
had filed a motion for rehearing with the Supreme
Court.
violation of Sec 8(a)(5) and (1), to have issued a warning notice in viola-
tion of Sec. 8(a)(3) and (1), and otherwise to have violated Sec. 8(a)(1).
Id at 277, 288. The trial underlying these determinations was held in
August 1976, and the decision of the administrative law judge issued on
December 9, 1976
5 Id. at 277, 288 The unit as described by the Board is- "All employees
employed by the Respondent in its bar and culinary operations at its
Sparks, Nevada, place of business , excluding all other employees , guards,
and supervisors as defined in the Act." Id. at 288.
8 NLRB Y. Silver Spur Casino, 623 F.2d 571 (9th Cir. 1980).
7 Reported at 451 U.S. 906 and 452 U.S 931, respectively.
8 By the time of the trial, Sirabella had become national director of or-
ganization for the parent International
JOHN ASCUAGA'S NUGGET 537
Apparently undeterred, Sirabella informed Wertz by
letter dated June 2 that it was the Union's desire "to con-
clude a mutually acceptable agreement . . . within a rea-
sonable period of time," and that he would be free to
begin negotiations anytime between then and June 15, be
it in San Francisco, Los Angeles, or Lake Tahoe. Wertz'
office is in San Francisco; Sirabella's then was in Los
Angeles. Lake Tahoe is about an hour's drive from the
Reno area. The letter in addition asked that Respondent
provide Sirabella with certain information-including the
names, addresses, telephone numbers, dates of hire, clas-
sifications, and wage rates of all bargaining-unit employ-
ees-so he could "prepare for the bargaining."
On June 8, as earlier noted, the motion for rehearing
was denied.
In a telephone conversation on July 10, Wertz told
Sirabella that Respondent would be represented- in nego-
tiations, and with regard to Sirabella's June 2 request for
information, by Clinton Knoll, general manager of the
Reno Employers Council. Wertz confirmed that disclo-
sure by letter to Sirabella dated July 13. Sirabella there-
upon telephoned Knoll, commenting that "the fight was
over" and that, 7 years having elapsed since Respondent
"had illegally withdrawn its recognition," the Union was
"anxious to get to the bargaining table to conclude an
agreement as expeditiously as possible." To achieve that
objective, and since he would be coming from Los An-
geles and everyone else involved in the negotiations was
already in Reno, Sirabella suggested that it would be in
the parties' "mutual best interests if [they] met regularly,
and met for some reasonably long periods of time."
Knoll responded that his "clients could not meet as regu-
larly as [Sirabella] would like, nor could they meet for
any long periods of time." To Sirabella's asking why,
Knoll answered, "They're businessmen, and they have to
take care of their business." Sirabella rejoined that he,
too, was "heavily preoccupied with [his] responsibil-
ities," but nevertheless would "be happy" to adjust his
schedule to suit Respondent's "convenience." Knoll re-
plied, "No, my clients don't want to do that." Sirabella
then raised his June 2 request for information, and Knoll
said he would do what he could "to get it to" Sirabella.
On July 20, the request for information still begging,
the Union filed a charge with the NLRB alleging Re-
spondent's noncompliance to be in violation of Section
8(a)(5) and (1).9 Respondent began to supply the infor-
mation in August-in "bits and pieces," according to Sir-
abella; and on August 19, in a related development,
Tonnis', Lubbers, Respondent's executive vice president
and general manager , caused this memorandum to be dis-
tributed to the employees:
from a case started early in 1974 determined that
the Nugget would have to bargain in good faith
with Local 86 of the Hotel, Restaurant Employees
and Bartenders International Union.
B. Part of the Company's obligations under the
Board order requires the Nugget to furnish to the
Union the names and addresses of all employees in
the Bar and Food Departments. We feel it is impor-
tant that all employees realize, that in the event
they receive mail from the Union at home, just how
and why their names and addresses were released,
which we consider very private information.
C. Please be aware that Nevada is a "Right to
Work State" and that no employee need belong to a
labor organization in order to be employed by the
Nugget.
We will continue to keep you informed on all as-
pects of the above situation and we appreciate your
continued support.
On receipt of the requested information, the Union
asked that its charge be withdrawn, which request was
approved by the Regional Director for Region 32 of the
NLRB on August 28.
On September 29, Sirabella telephoned Knoll with the
suggestion that forthcoming negotiations involving the
Union and three Knoll clients-Respondent, the Nevada
Club, and the Silver Spur Casino-be conducted jointly,
and that bargaining begin the week of October 26. Knoll
rejected joint bargaining, but agreed to a first meeting
concerning Respondent on October 27.
2. Proposals summarized
On October 21, in anticipation of the October 27 meet-
ing, Sirabella mailed to Knoll a document containing the
Union's proposals on all but the wage issue. It was iden-
tical to the corresponding portions of the Circus Circus
contract.1 ° In an accompanying cover letter, Sirabella
stated that the Union's "wage proposal and other eco-
nomic proposals" were being deferred "pending a full
explanation of [Respondent's] current policies relative to
these matters." The Union submitted its wage proposal
during the second bargaining session , November 10.11 It
did not mirror the Circus Circus contract.12 With it
were a one-page explanation of the "formula" from
which its figures were derived, and a two-page "wage
rationale" citing and elaborating upon the three "princi-
pal factors" taken into account in its shaping-equal pay
for equal work, past and future inflation, and comparabil-
ity with other union houses in the area.
TO ALL EMPLOYEES:
RE: BAR AND CULINARY UNION
There has been recent developments regarding the
above Union that the Company feels every employee
should be aware of:
A. A recent Supreme Court decision enforcing
an earlier National Labor Relations Board order
9 Case 32-CA-3793.
10 And to the corresponding portions of the Union's opening proposals
to the Nevada Club and the Silver Spur Casino
11 As is developed below in fn 27, resolving a credibility conflict in
favor of the Union, it is found that the Union submitted its complete
wage proposal on November 10.
12 Crediting Sirabella. And, while the record is not explicit on the
point, it seems unlikely that the Union would have been so bold as to
demand higher pay for Respondent's employees than was in the Circus
Circus contract, although its maintenance -of-benefits proposal perhaps
would have had that effect as concerns some of the more highly paid em-
ployees.
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent, although informally disclosing its position
on certain issues during the two preceding sessions, ten-
dered a total offer in writing during the third session,
December 1. It followed the format of the last-1972 to
1975-contract between the parties, and corresponded
with that contract in substance, as well, except as modi-
fied to reflect changes in wages and other terms and con-
ditions of employment subsequently made and currently
in effect.
Other than the Union's withdrawal at management re-
quest of its union-security indemnification proposal, a
proposal deemed by the Union to be to Respondent's
benefit, neither party departed from its initial position in
the surrounding negotiations. 13 This is not to say, how-
ever, that there was not presumed agreement on several
of the lesser issues. Sirabella testified that he inferred
agreement on "three or four items . . . based on compar-
ison of the company's proposal and the Union's propos-
al" and upon "casual comments" by Knoll that Respond-
ent would have "no problem with this or . . . could go
along with that." Thus, Sirabella particularized, there
was agreement "maybe on the bulletin board, uniforms
maybe, the provision of uniforms for the workers and
the laundering and maintenance of them"; on a "nondis-
crimination clause, which is a legal obligation"; and on
"one or two others of that variety."
The wage proposals. The Union proposed that the most
highly paid employees in each of some 47 job classifica-
tions receive a 15-percent wage increase as of November
1, 1981, and a 12-percent raise on November 1 of each of
the succeeding 2 years; and that those less highly paid
receive specified larger raises so that, by November 1,
1983, everyone in a given classification would be at the
same pay level. The Union also proposed a maintenance-
of-benefits clause whereby anyone then above union
scale would suffer no wage loss by operation of the con-
tract.
Respondent, committed to the existing wage system
and levels, proposed that those within a given classifica-
tion, of which 30 were designated, be paid on the basis
of a daily rate within a specified "merit range" for that
classification. 14 Respondent further proposed that it be
free to grant raises unilaterally, and to take away raises
previously granted so long as minimum contract levels
were maintained.
The health-and-welfare and profit-sharing proposals. The
Union proposed that Respondent contribute $100 per
month to the parent international's welfare fund for each
employee working at least 64 hours that month, to pro-
13 Sirabella testified, in explanation of the Union's lack of movement.
"It's customary in collective bargaining ... to get a signal from each
side before either side modifies its position. And we never got that signal
from them. We had given them the signal, but they didn't give us any
signal in return. They kept saying it will be the [1972 to 1975] contract,
incorporating the present rates, period. Hence, we had no signal. If we
had gotten a signal from them, then certainly we would have modified
our position, because we were on the record, clearly, that we were will-
ing to do that in all areas , wages, et cetera. . . . Had we gotten a signal,
we would have moved with dispatch, no question. We wanted a con-
tract. We wanted the fight to end. We didn't want to precipitate another
confrontation; it was not in our best interest or the company's "
14 For example, pastry cooks were receiving from $42 to $56 per day;
waiters and waitresses, from $27 to $30; service bartenders, from $36 to
$48
vide the employee with health-and-welfare benefits. The
Union made no pension or profit-sharing proposal.
Respondent, in keeping with its status quo disposition,
proposed continuation of the existing medical-care and
profit-sharing programs, details of which were not
spelled out.
The seniority proposals. The Union proposed that proba-
tionary employees be laid off first in the event of a re-
duction in force, after which order of layoff (and recall)
be dictated by seniority, provided the senior employee
was capable of satisfactory performance. The Union also
proposed that promotions be governed by seniority, the
competing employees being "relatively equal" in qualifi-
cations; and that transfers within a classification be dic-
tated by seniority as well, the senior employee willing,
provided that that employee was capable of performing
satisfactorily in the new position and that a suitable re-
placement was available for the position being vacated.
Respondent proposed nothing concerning seniority.
The union-security proposals. The Union proposed that
a 30-day union-security clause become operative should
the Nevada right-to-work law be repealed; that Respond-
ent in any event deduct union dues from the pay of em-
ployees so authorizing and remit to, the Union; and that
the Union indemnify Respondent for any liability in-
curred for conduct undertaken at the Union's behest in
violation of the right-to-work law or with regard to dues
checkoff.
Respondent's offer was silent concerning union securi-
ty and related subjects.
The management-rights proposals. The Union proposed
that Respondent have the right to manage its business
and to direct its employees, including the right to
"direct, plan and control hotel operations," to "deter-
mine the number of employees to be employed," to "pre-
scribe duties and to assign employees to work as
needed," to "determine the means, methods and sched-
ules of operations," to "reprimand, suspend, [or] dis-
charge employees for just cause," and to "determine
when a lack of work exists and to relieve employees
from duty for lack of work." The Union further pro-
posed that Respondent retain "absolute authority and dis-
cretion over the number, composition, times and basis for
all schedules and all shifts and all changes thereof"; and
that any dispute whether Respondent had exceeded its
management-rights prerogatives be subject to the
grievance/arbitration procedure.
The Union also proposed that Respondent be permit-
ted to "establish and administer reasonable rules, regula-
tions and procedures governing the conduct of employ-
ees," provided they not be inconsistent with any provi-
sion of the contract and that the Union have an opportu-
nity to discuss them with Respondent before their institu-
tion. The Union proposed, in addition, that the "reason-
ableness" of any such rules, regulations, and procedures
be subject to the grievance/arbitration procedure.
Respondent proposed that it retain "without limita-
tion" and free of the grievance/arbitration procedure all
"rights, powers and authority possessed . . . or exer-
cised" by it before execution of the contract unless "spe-
cifically abridged, delegated . . . or modified" by the
JOHN ASCUAGA'S NUGGET
contract. The proposal continued that Respondent
"retain the essential rights to manage the facility and
direct employees," including those to "plan, direct and
control operations," to "hire and to assign employees to
work," to "transfer employees from one job to another
or one department to another," to "promote, demote,
discipline, suspend or discharge employees for just
cause," to "relieve employees from duty because of lack
of work or for any other legitimate reason," to "intro-
duce new and/or improved methods, equipment or facili-
ties," and to "make and enforce rules and regulations not
in conflict with" the contract.
Respondent further proposed that it have the right to
"determine the starting and quitting time of employees"
and "the number of hours to be worked by employees,"
and to "schedule rest periods and meal periods at [its]
discretion" so long as such scheduling was not in conflict
with any other term of the contract.
Respondent's management-rights proposal went on
that Respondent retain the right, among others, to deter-
mine "the nature and extent of services to be rendered to
its customers," "the location of its business including .. .
the relocation or closing of existing facilities," "the
layout and equipment to be used in the business," "the
processes, techniques, methods and means of providing
service to its customers," and "the size of the work
force, [and] the allocation and assignment of work to in-
dividual employees as well as to departments" so long as
such determination was not in conflict with any other
term of the contract.
Respondent proposed, finally, that it "have the right to
subcontract any work covered by" the contract if, in its
opinion, "such subcontracting will achieve legitimate
economic or operating efficiencies."
The proposals regarding contract term. Neither party
specified a contract term in its written proposals. It is ap-
parent, however, that the Union was seeking a 3-year
term, whereas Respondent envisioned a 1-year contract.
Other proposals. Among the parties' other proposals
were these:
(a) Hiring: The Union proposed that Respondent be
"the sole judge" of any applicant's suitability for unit
work, that it be free to "accept or reject any applicant
.. . referred by the Union," and that it provide the
Union with the name, classification, and wage rate of
anyone hired to a unit position.
Respondent proposed that it be permitted to hire from
any source and to reject anyone referred by the Union,
having given equal consideration to -those so referred;
and that matters of hiring not be subject to the
grievance/arbitration clause.
(b) Gratuities: Both parties proposed that "all gratu-
ities left by customers [be] the property of the employees
exclusively," that nonunit employees not be entitled to
"any part of" them, and that they not be treated as an
offset against wages.
(c) Visitation: Both parties proposed that representa-
tives of the Union be permitted to visit Respondent's es-
tablishment for the purpose of ensuring contract compli-
ance.
(d) Combination jobs: The Union proposed that those
working in more than one classification during a shift be
539
paid in accordance with the time spent in each. Respond-
ent proposed that the employee be paid, in that situation,
at'the'one rate most favorable to the employee.
(e) Discharge: Both parties proposed that the dis-
charge of nonprobationary employees be based on "just
cause."
(f) Early shift release: The Union proposed that an em-
ployee, with Respondent's permission, be able to leave
work early, being paid only for time worked. Respond-
ent proposed nothing in this respect.
(g) Work shifts and overtime: Both parties proposed
that the workday consist of 8 hours and the workweek
of 5 days, and that time worked in excess of either be
compensated at the overtime rate of time and one-half.
(h) Vacations: Both parties proposed a 1-week vaca-
tion entitlement after 1 year on the payroll, and a 2-week
entitlement after 2 years. The Union further proposed a
3-week entitlement after 6 years, and a 4-week entitle-
ment after 12 years, while Respondent proposed an addi-
tional entitlement of 3 weeks after 7 years.
(i) Holidays: The Union proposed eight paid holidays
per year, including the employee's birthday, and that
those working on any such day receive doubletime pay.
Respondent proposed six paid holidays, with those work-
ing any such day receiving time and one-half.
(j) Breaks: The Union proposed that full-shift employ-
ees be given one 30-minute meal break, and one 10-
minute break both before and after. Respondent pro-
posed a 30-minute meal break and one 15-minute break
before and after.
(k) Meals: The Union proposed that Respondent fur-
nish each food employee two meals per day, and each
beverage employee one. Respondent proposed that each
food employee receive three meals per day, saying noth-
ing about beverage employees.
(1) Uniforms: Both parties proposed that Respondent
provide and maintain uniforms for those required to
wear them.
(m) Leaves of absence: The Union proposed that em-
ployees be entitled to an unpaid leave of absence while
temporarily disabled because of injury or illness compen-
sable under the Nevada Industrial Insurance Act; and to
unpaid leave for up to 6 months because of pregnancy or
an injury or illness not so compensable. Respondent pro-
posed nothing on this subject.
(n) Union buttons: The Union proposed that each em-
ployee be permitted to wear one union button while
working. Respondent's offer did not address this.
(o) Probationary period: Both parties proposed a 60-
day probationary period for the newly hired, and that
the discharge of probationary employees not be subject
to the grievance/arbitration procedure.
(p) Successors and assigns: The Union proposed that
Respondent be required, as a condition of selling or as-
signing the business, to obtain from the purchaser or as-
signee a "written assumption" of Respondent's contract
with the Union. Respondent's proposal said nothing
about this.
(q) Subcontracting and subleasing: The Union pro-
posed that unit work not be performed under subcon-
tract or other arrangement unless by unit employees. As
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
previously mentioned, Respondent's management-rights
proposal included a clause that it "have the right to sub-
contract any work covered by" its contract with the
Union if, in its opinion, "such subcontracting will
achieve legitimate economic or operating efficiencies."
(r) New equipment: The Union proposed that Re-
spondent, before installing new equipment having the po-
tential to "significantly or substantially affect" unit em-
ployees, afford the Union a "reasonable opportunity" to
discuss the effects with it, with any unresolved disputes
being subject to arbitration. As earlier noted, Respondent
proposed as part of its management-rights package that it
retain the right to "introduce new and/or improved
methods, equipment or facililties," and to determine "the
layout and equipment to be used in the business."
(s) Jury duty: The Union proposed that employees
missing work to do jury duty be paid the difference be-
tween their jury fee and their straightime rate for a full
shift. Respondent's proposal was silent on the subject.
(t) Grievance/arbitration procedure: Both parties pro-
posed a three-step grievance/arbitration procedure, the
final step being binding arbitration, with Respondent pro-
posing that it be confined to disputes over the "interpre-
tation and application of' the contract and the Union
proposing that it be confined to that and to alleged con-
tract violations. The Union proposed a time limit for in-
voking the procedure of 10 days for a discharge and 30
days for other matters, whereas Respondent proposed 7
and 15-day limitations, respectively.
(u) No-strike/no-lockout: Both sets of proposals con-
tained no-strike/no-lockout clauses.
(v) Zipper clause: Respondent proposed a clause
whereby it and the Union would waive the right, during
the life of the contract, to bargain "with respect to any
subject or matter not specifically referred to or covered
in" the contract, "even though such subject or matter
may not have been within the knowledge or contempla-
tion of either or both of the parties" when they negotiat-
ed the contract. The Union made no proposal in this
area.
3. The bargaining sessions
There were seven bargaining sessions-on October 27,
November 10, December 1 and 17, 1981, and January 8,
14, and 28, 1982. All were in the offices of the Reno Em-
ployers Council. Sirabella, with about 30 years of collec-
tive-bargaining experience, did all or nearly all of the
talking for the Union. Others present for the Union at
every session were Miguel Contreras, an organizer on its
staff, and Harold Dickinson, a unit employee soon to
leave the payroll. Also in attendance for the Union at
some of the sessions were other union officials and unit
employees.
Knoll, likewise richly experienced in collective bar-
gaining, was Respondent 's principal spokesman in all but
the December 1 session, when illness occasioned his
being replaced by Ernest Cuno, an associate with the
Reno Employers Council. Present at every session were
three management-members of Respondent's negotiating
team-its executive vice president and general manager,
Tonnis Lubbers, its senior vice president for finance and
administration, Parley Johnson, and its director of per-
sonnel and labor relations, Ray Pelfrey. Cuno appeared
at all but the October 27 session. Also present for Re-
spondent, from time to time, where its director of com-
munity relations, Kate McKenzie, and a colleague of
Knoll's and Cuno's with the Reno Employers Council,
Art Peterson.
Sirabella was the General Counsel's main witness con-
cerning the sessions, beyond which the parties stipulated
that, were Contreras to have testified about them during
the General Counsel's case in chief, his testimony would
have corresponded with Sirabella's. Dickinson also testi-
fied about the sessions as part of the General Counsel's
case, and Contreras was called by the General Counsel
as a rebuttal witness on the subject.15 For Respondent,
Cuno carried the major burden, testifying about all but
the first session. Knoll, despite being Respondent's prin-
cipal spokesman, testified about only the first and last
sessions . Of the management-members of Respondent's
team, Johnson testified to some small extent and desulto-
rily about several of the sessions, while Lubbers and Pel-
frey confined their testimony to a portion of the final ses-
sion.
Sirabella projected an earnestness, a dignity, and a pro-
fessionalism that were most impressive. He seemingly
saw nothing to fear in the truth, and imparted the im-
pression that, even if he had, he would not have reduced
himself to fabrication or distortion. Contreras usually
evinced integrity and competence, as well.'s The stipula-
tion that certain of his testimony would have corre-
sponded with Sirabella's thus is of important corrobora-
tive value. Dickinson, on the other hand, was often con-
fused and weak in recall, although obviously putting
forth an honest effort.
In contrast to Sirabella and, for the most part, to Con-
treras, Respondent 's witnesses seemed quite unencum-
bered by scruple during their recitals about the sessions.
Their stories were flawed by superficiality and incom-
pleteness, by the absence of corroboration, by would-be
corroboration that did not correspond in critical detail,
and by excessive leading from Respondent's counsel.
Beyond that, their demeanor in the telling was less than
confidence-inspiring. Cuno, the point man in a transpar-
ent strategy to paint Sirabella with the sins of intransi-
gence and procrastination of which Respondent had been
accused, while at the same time depicting Respondent as
the very embodiment of reason, suppleness, and ardor to
conclude an agreement, exhibited all the glibness and
mien of a born storyteller. Knoll, without Cuno's linguis-
tic flair,17 after describing the first session in terms so
15 Sirabella, reportedly attending a conference in Geneva, Switzerland,
at the time, gave no rebuttal testimony.
16 Contreras's denials on rebuttal that this or that was said, elicited by
counsel for the General Counsel in rapid fire fashion and sometimes me-
chanically rendered , were not always convincing , however. In one nota-
ble instance , denying that Sirabella said at any time that the Union would
never agree to Respondent 's merit pay system or to a contract without a
seniority clause , Contreras controverted not only Cuno, as doubtless was
the intent, but also Sirabella . "It is no reason for refusing to accept every-
thing that a witness says, because you do not believe all of it; nothing is
more common in all kinds of judicial decisions than to believe some and
not all." NLRB v. Universal Camera Corp., 179 F 2d 749, 754 (2d Cir.
1950).
17 Which perhaps accounts for Knoll 's disproportionately brief time on
the witness stand
JOHN ASCUAGA'S NUGGET 541
cursory as to be obviously inaccurate, came across as to-
tally script-bound in his lead role describing Respond-
ent's version of the crucial last session. Johnson, given to
self-serving abstractions frequently at odds with the
weight of evidence and sometimes with his own more
specific testimony, plainly was a witness of expedience
rather than conviction;18 and Lubbers and Pelfrey,
during their brief appearances, simply were abject.
The following summary of the seven sessions conse-
quently relies primarily on the generally credible testimo-
ny of Sirabella and of Contreras, both live and as stipu-
lated. Certain testimony of Cuno, Knoll, and Johnson
sometimes is relied upon, as well-where plausible, not
in conflict with that of Sirabellla and Contreras, and not
palpably self-serving."9 And Dickinson, despite his limit-
ed reliability, is given isolated credence. Significant con-
flicts in testimony are specifically addressed.20
October 27. The October 27 session began with intro-
ductions and related amenities, after which Sirabella
gave a lengthy opening statement-done in "very profes-
sional fashion" according to Knoll. Sirabella first re-
viewed the parties' litigation history; stated that it was
"in the best interest of both . . . to develop an amiable
and harmonious relationship . . . now that that was all
behind" them; voiced the Union's desire "to work' out an
agreement that was fair to both sides . . . as expeditious-
ly as was possible," the process having been delayed "for
so long"; and stressed "the obligation of both parties .. .
to bargain responsibly," supporting their positions "with
facts [and] with as much documentation as [they] possi-
bly could develop."
Sirabella then spoke about certain aspects of the
Union's proposals, emphasizing "the workers' strong
desire for a seniority clause," with the protections it
would afford. A "second major goal," Sirabella contin-
ued, "was the achievement of equal pay for equal work"
among all qualified employees in a given classification.
Sirabella concluded his presentation by offering to ex-
plain "any ambiguity" that Knoll might perceive in the
proposals.
Knoll responded that, having compared the Union's
proposals with '-the Circus Circus contract, of which he
had a copy, he "assumed" they were identical. To Sira-
bella's verification, Knoll stalled that he, too, hoped to
reach an agreement "as rapidly as possible . . . by bar-
gaining in good faith," but that the Union was "making
is The words having been put in his mouth by Respondent's counsel,
Johnson testified variously that Respondent never "msist[ed] . on re-
taining complete discretion to increise or decrease employee wages,
fringe benefits, leaves of absence, or establishing or abolishing work
rules"; that it never "msist[ed] on retaining .. unfettered discretion re-
garding hiring, promotions, layoffs, merit wage increases, [or] employees'
hours of work"; and that it never "refuse[d] to consider any union pro-
posal concerning seniority or the concept of equal pay for equal work "
The parties stipulated, to enable the shortening of Curio's testimony, that
he would have testified to the same effect As again more specific evi-
dence-of which there is ample in the form of other testimony and Re-
spondent's contract offer-this testimony, live and as stipulated, was of so
global a purport as to be meaningless, and will not be dignified by further
mention or consideration.
19 Cuno also is credited in some instances in which his testimony was
refuted by Contreras on rebuttal.
20 Notes of the sessions are not in evidence. Respondent 's proffer of a
"bargaining synopsis," prepared months after the fact, was rejected.
it rather difficult" by asking for a contract "that some-
body else negotiated." Sirabella interjected that the
Union did not "have to have" an in toto adoption of the
Circus Circus contract "right now," although, "basical-
ly" it sought "to wind up with the same type of con-
tract." Knoll repeated that this would "make it rather
difficult."
With that, Knoll requested a caucus, explaining that
Lubbers, Johnson, and Pelfrey "had not had an opportu-
nity to study" the Union's demands, and that he and they
would "have to discuss" them so he could "see what
their reaction is." Sirabella expressed regret that this was
now necessary, saying he had thought that opportunity
would have arisen beforehand. Although Knoll had re-
ceived the proposals on October 22, and mailed them to
Pelfrey that same day, Lubbers and Johnson supposedly
did not see them until October 27, in Knoll's office. Nor,
Respondent would have it, had there been prior discus-
sion of them by any members of the management team.
During the ensuing caucus, as revealed by Johnson,
Knoll "made the total decision," first advanced "as a rec-
ommendation" to the management-members of Respond-
ent's team, concerning Respondent's answer to the
Union's proposals. This included a decision to propose
continuation of Respondent's "current wage policies,"
even though the Union had yet to make a wage propos-
al. The caucus lasted perhaps 30 minutes.21
Returning from caucus, Knoll termed the Union's de-
mands "a radical departure from" its past contracts with
Respondent'22 adding that Respondent would not agree
to something "patterned after the Las Vegas contract."
Sirabella replied that the proposals were not so pat-
terned; that there were "substantial distinctions" between
them and the standard Las Vegas contract. Rather, he
repeated, they were "fashioned after" the Circus Circus
contract, that being the only contract the Union then
had with a hotel and casino in greater Reno, which
seemed to him to be a "logical" approach.
Knoll asserted that Respondent "want[ed] to compare
[itself] with the nonunion employers." Sirabella rejoined
that it would not be "very logical" for the Union to go
along with that; and that, while the Union's proposals
were "patterned after" the Circus Circus contract, they
were not "etched in stone" and the Union "did not have
to [have] the Circus Circus contract verbatim." 23 Sira-
bella continued that, if Knoll would "point out" specific
objections to the proposals, the Union would give them
"a most serious consideration"; and that, if Respondent's
situation had "peculiarities" requiring special consider-
2 1 Sirabella testified that "about half of the meeting time during the
several sessions was taken up by caucuses , which "in the main" were
called by Respondent. With few exceptions, this being one, the record
contains little specific information about their length or when and in
what circumstances they were called.
22 Knoll may also have labeled the Union's proposals "a Cadillac pro-
posal." It is undisputed that he did so on occasion.
23 Knoll conceded, in his testimony, that Sirabella never said "point-
blank" that the Union "would only accept the Circus Circus
contract "Similarly, Johnson testified that Sirabella never said that the
Union would not, under any circumstances, change its position.
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ation, the Union was "prepared to modify" its position
"in connection with that particular problem."24
Knoll stated that Respondent wanted "to go back to"
the 1972-1975 contract between the parties, "and incor-
porate the wages" existing as of the 1981 onset of bar-
gaining . Sirabella responded that the former contract
"was a long time ago"; that "lots of things had changed
that needed to be taken into consideration"; and that,
had Respondent "not illegally withdrawn recognition
and fought through the Board and the courts for eight
years," there would have been "the opportunity" to ne-
gotiate three 3-year contracts in that time, and "it would
be safe to assume . . . that a number of improvements
would have been achieved."
At length, the exchange focused on specifics. Thus:
(a) Wages: Beyond stating that existing wage rates
"would go into the contract unchanged," Knoll pro-
claimed that Respondent would continue to apply the
merit system whereby it "alone would determine when
workers would get wage increases [and] there would be
no guaranteed wage increases under the contract."
"This," Knoll said, "is something that management
should decide," and the Union "would not be involved."
Sirabella countered that this was "a very unfair posi-
tion"; that, in his more than 30 years of bargaining expe-
rience, he never before had "heard an employer . . . say
the union would have nothing to say about wage in-
creases."
(b) Seniority: Knoll stated that a seniority clause
would not be "acceptable to" Respondent; that it "alone
would determine who had seniority and for what pur-
poses." Sirabella responded that he had heard "a lot of
arguments . . . over the years" about seniority, but
never before had he heard an employer say that "under
no set of circumstances would the worker have any kind
of seniority applied."
(c) Maintenance of benefits: Knoll declared that the
Union's maintenance-of-benefits proposal was "not ac-
ceptable"; that Respondent was not going to give the
Union "a blank check." Sirabella answered that the
Union was not "looking for a blank check." Rather, he
elaborated, it was "just looking for two things"-"to
make certain that any existing wages or benefits or prac-
tices . . . would not be unilaterally taken away," and it
"did not want to have the workers experience the ero-
sion of any benefits" in the area 'of health and welfare.
"Otherwise," Sirabella went on, "the workers would be
buying a pig in the poke" because of the potential of a
midcontract reduction in hospital coverage to inflict "a
severe blow" on them and their families.
(d) Hiring hall: Knoll, "quite aggressive and quite ada-
mant" in Sirabella's words, announced that Respondent
would "never" give the Union a hiring hall. Sirabella as-
sured him that the Union was "not seeking a hiring hall";
indeed, that it did not have one anywhere in northern
Nevada and did not have "a pool of people on reserve"
for that purpose.
24 Johnson acknowledged, in his testimony , that Sirabella asked "on
several occasions" that Knoll and Cuno state what they found "objec-
tionable" in the Union's demands.
(e) Successors: Knoll objected to the proposal con-
cerning successors and assigns, saying it would impair
Respondent's ability to sell the business, as demonstrated
by the experience of another Reno area hotel and casino,
Beck's Riverside. Sirabella said that such clauses are
"quite automatic" in labor contracts, and the inclusion of
one in Respondent's contract should not be "upsetting."
(f) Indemnification: Knoll declared that "in no circum-
stances would the company ever grant the Union's re-
quest for an indemnification clause." Sirabella, startled,
explained that it was for Respondent's "protection."
Knoll nevertheless persisted, whereupon Sirabella an-
nounced its withdrawal "from the table."25
(g) Profit sharing: Knoll proposed retention of Re-
spondent's profit-sharing plan in lieu of the Union's pen-
sion plan. Sirabella replied that the Union was not pro-
posing a pension plan; that, although it hoped to have
one for Respondent's employees someday, it had no pen-
sion plans in northern Nevada at that time and was not
seeking to begin with Respondent. Sirabella also stated
that the Union would agree to Respondent's ongoing ad-
ministration of its profit-sharing plan.
As adjournment neared, Knoll said that he "expected
the Union to cost out" its package. Sirabella, after com-
menting that this would be "somewhat unusual" inas-
much as the employer normally does that, said he would
do it, but would need "a variety of records from the
company." Johnson then asked that the management
team caucus; and, after the caucus, he or Knoll said Re-
spondent would cost out the proposal.
The meeting ended with agreement to reconvene No-
vember 10, having lasted about 1-1/2 hours.
November 10.26 Respondent having mailed the request-
ed underlying data on November 2, Sirabella began the
November 10 session by tendering the Union's wage-pro-
posal document.27 With it were the two explanatory
21 As earlier mentioned , this was the only instance of give and take
throughout negotiations.
26 The record is in conflict whether the start of the November 10 ses-
sion was delayed ; and, if so, why. Dickinson testified that it was delayed
from morning to afternoon because Lubbers was detained at the casino.
Contreras testified that Lubbers was detained, but that the session began
as scheduled, without him Cuno testified that Sirabella's tardiness neces-
sitated a 30-minute delay. Sirabella testified that he was late just once, for
the December 17 session . The testimony of Dickinson not being especial-
ly trustworthy , and Cuno plainly being intent on unwarrantedly making
Sirabella out as delay-causing and obstructive in various ways , it is found
that the November 10 session began on time , in keeping with the testimo-
ny of Sirabella and Contreras.
27 Sirabella and Contreras testified that the Union 's total wage package
was submitted November 10, whereas Cuno and Johnson averred that
only half of it was then forthcoming . Knoll, whose testimony ignored the
November 10 session, perforce did not corroborate Cuno and Johnson
Cuno testified that Sirabella said "the other half had been lost," where-
upon Knoll remarked that "accidents will happen," expressed regret that
the complete proposal was not there so the parties could "get down to
brass tacks," and urged that the Union supply the missing material "in a
timely fashion' ... to expedite the exchange of views . and provide
some impetus to the negotiation process." The remainder was provided
"within a week," according to Cuno. Sirabella and Contreras are credited
for the reasons previously indicated for crediting them generally over
Respondent's witnesses , and for the added reason that Sirabella's impec-
cable professionalism belies the shoddiness implicit in the Cuno and John-
son stones.
JOHN ASCUAGA'S NUGGET 543
documents previously mentioned, which were being pro-
vided, Sirabella stated, in keeping with his October 27
urging that the parties back their positions with "some
kind of supportable evidence or supportable body of
facts."
On making tender, Sirabella explained that the Union's
figures "were predicated upon . . . three factors":
(a) "The effects from inflation, which [the Union]
could not ignore and would not ignore." Sirabella said,
in addition, that he was prepared to"graph out the spe-
cifics with respect to the CPI [Consumer Price Index]
and its real effect on the wages of the workers" if that
were Respondent's desire.
(b) A "comparative wage analysis with union houses."
Sirabella enlarged that such a comparison "under-
score[d]" the Union's "moderate position"; that, although
its demands "were significantly higher than [Respond-
ent's] existing wage rates," so too were rates at the
Circus Circus and the Sahara-Tahoe; and that rates in
San Francisco were "substantially more," even absent
gambling profits.
(c) Equal pay for equal work. Sirabella stated that the
Union did not "expect to achieve" equal pay for all in a
given classification "overnight," but did "want to estab-
lish the principle and work towards its realization at
some point down the road"-i.e., by the end of the first
3-year contract.
Knoll responded-whether immediately or after a
management caucus is unclear-that the Union was not
at all "bashful" in its demands, and by labeling those de-
mands "a Cadillac proposal." Sirabella announced that
they "might be considered" extravagant from Respond-
ent's "point of view," but that was, only because it "had
failed to keep wages abreast of the developing times";
and that the Union's demands in fact were "based on
economic realities confronting the workers." Sirabella
then remarked, much as he had in 'the first session, that
wages "probably would be . . . not nearly as low as
they were' had there been "three contracts in the eight
years" that Respondent had fought recognition.
Knoll commented that Respondent was not "claiming
inability to pay" in accordance with the Union's de-
mands23 but nevertheless wanted the 1972-1975 con-
tract, as updated to embody current wages. Knoll further
stated, as he had in the earlier session, that the Union
"would have nothing to say about" wage increases; that
they instead would be based on merit as determined by
the supervisors. Sirabella replied that this was "a very
dangerous practice" in light of the Union's "experience
in this industry," as was disregard of the "seniority prin-
ciple," because it "frequently results in the worker
having to curry favor with the supervisor."
Again in this meeting, at what point in the sequence is
not clear, Sirabella said that the Union hoped to achieve
a contract "comparable to the one" it had with the
Circus Circusone.29
29 Sirabella, corroborated by Contreras' stipulated testimony, is cred-
ited that Knoll said this. The contrary testimony of Cuno and Johnson,
uncorroborated by Knoll, is discredited for the reasons earlier given.
29 Cuno's testimony was plausible and is credited that Sirabella said
this. His additional testimony , uncorroborated, that Sirabella said during
this and the January 14 and 27 sessions that the Union was "not about to
The session came to an end when, after about an hour,
Knoll announced that the management-members of Re-
spondent's team had to return to their regular jobs.30
Knoll proposed that the next meeting be December 1,
explaining that, with the disruption of the Thanksgiving
holiday, Respondent would need that long to study and
prepare a response to the Union's total package.31 Sira-
bella objected to such a delay, but finally agreed to re-
convene December 1.
December 1. Cuno, substituting for Knoll, began the
December 1 meeting by eliciting Sirabella's confirmation
that Respondent had received the Union's "complete
proposals." He then propounded the "philosophy" un-
derlying Respondent's bargaining position, after which
he proffered a document setting forth Respondent's
offer.32 The offer, prepared by Knoll after little if any
consultation with other members of the management
team,33 followed the 1972-1975 contract both in form
and substance, except as updated to mirror current wage
levels and other existing terms and conditions.
In his prefatory remarks, Cuno conceded that there
were "a number of subjects" among the Union's de-
mands that had been standard in Reno-area contracts for
a number of years, and with which management and
labor apparently "had been quite comfortable." On the
other hand, he went on, the Union was "reaching for the
moon" in other respects.34 He amplified that poor "eco-
have a dozen different contracts" with a "dozen different" wage sched-
ules is not credited Not only was it refuted by Contreras on rebuttal, but
its intimations of inflexibility on Sirabella's part are incompatible with
Sirabella's convincing testimony that he at times voiced the Union's ame-
nabihty to compromise.
Also discredited is Johnson's uncorroborated testimony that Sirabella
said he "was not going to give any lesser contract to anyone in the Reno
area" than the Circus Circus contract. Apart from Sirabella's convincing
testimony indicative of flexibility, Johnson's testimony was contradicted
in substance by Johnson, himself, and by Knoll, as reported above (fn.
23), and seems but another manifestation of the strategy to portray Sira-
bella as obdurate.
20 Dickinson, despite generally suspect reliability, is credited that
Knoll brought the meeting to an end in this manner. Johnson admitted
that one of the meetings so ended
Si Cuno conceded that, even as of the November 10 session, the man-
agement-members of Respondent's team had had "very little opportunity
to go over" the proposals submitted by the Union before the October 27
session.
32 Cuno assertedly referred to Respondent's offer as the "initial em-
ployer response," and was at pains throughout his testimony to refer to it
in those or similar terms. Contreras, during rebuttal, denied that Cuno or
Knoll ever used that label during negotiations, adding that Cuno instead
called the offer Respondent's "entire response." Contreras was the more
convincing and is credited Cuno's pointed testimonial references to Re-
spondent's "initial" response came across as an after-the-fact contrivance
designed to impart an aura of flexibility to Respondent.
33 Johnson testified that, other than being supplied with wage informa-
tion by management, Knoll did not "have any input at all" from manage-
ment in preparing Respondent 's offer. Moreover, Johnson testified, the
offer was "virtually identical to" offers submitted by Knoll at about that
time as bargaining spokesman for the Silver Spur Casino and the Nevada
Club.
34 Asked on cross-examination why Respondent considered the Union
to be reaching for the moon when its offer corresponded in most respects
with the Circus Circus contract, Cuno testified. "The idea of the Nugget
having to start off at a plateau that the Circus Circus management and
the Union had reached after a number of years seemed to us to be opti-
mistic, hopeful." In fact, the Circus Circus contract then in existence was
its first with the Union.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nomic conditions" in the community and in the gaming
industry had caused the closure "within recent weeks" of
three casinos, and precipitated "a price war . . . among
the hotels and motels . . . to win a declining tourist pop-
ulation"; and that Respondent's concern about these de-
velopments was "reflected in part" in its offer.35
The Union held a lengthy caucus upon receiving the
document, after which Sirabella expressed disappoint-
ment with it, declaring that Respondent was "living in
the dark ages" and that the parties were "worlds apart in
[their] outlook."36 Sirabella then embarked upon a
"point by point" critique of Respondent's offer. Thus:
(a) Wages: Sirabella remarked that "the highest wage
rate in" Respondent's offer was "lower than the lowest"
in the Circus Circus contract; and that, in all the time he
had been involved in contract negotiations, he had never
seen a contract that did not provide for guaranteed wage
increases.37 Sirabella also stated that Respondent's offer
"had omitted a number of classifications" contained in
the computer printout it earlier had supplied to the
Union. Cuno said he had not been aware of that discrep-
ancy, and would "check it out." 38 His rejoinder to Sira-
bella otherwise on the subject of wages, if any, is not
clearly revealed.
(b) Seniority: Sirabella, noting the absence from Re-
spondent's offer of a seniority clause, commented that he
had never seen a contract without some provision for se-
niority. Cuno responded that Respondent was not "going
to involve the Union . . . in the area of seniority"; that it
wanted unimpaired latitude to decide matters of layoff,
promotion, and transfer. Sirabella iterated the point made
November 10 that this "would make the employees have
to curry favor."39
(c) Leaves of absence: Regarding the lack of a leave-
of-absence clause "in Respondent's offer, Sirabella stated
that he had not negotiated a contract "in many years"
without such a clause; that they were "standard." Cuno
35 Dickinson, uncorroborated, testified that comments of this character,
by Knoll, also were made during the November 10 session. The weight
of evidence , in combination with Dickinson 's generally shaky recall, sug-
gests that he had reference to Curio 's remarks in the December 1 session.
36 Cuno depicted Sirabella as waging "a tirade" of "ranting and
raving" following the caucus. "It was," Cuno elaborated, "a nonstop out-
pouring of anger and frustration and indignation." Johnson, on the other
hand, testified that he could not recall a tirade by Sirabella on December
1; that he did not see Sirabella "visibly angry" until the final session.
Curio's description, obviously part of the larger strategy to portray Sira-
bella as unbending and irrational, is not credited Curio's additional testi-
mony is not believed that, having asked Sirabella if he was saying that
the Union would accept only a contract "which pretty much reflects"
the Circus Circus contract, Sirabella replied, "We didn't just get this stuff
off the shelf " This testimony, refuted by Contreras on rebuttal and at
odds with convincing testimony by Sirabella that he made clear at times
his willingness to bend, is perceived as still another of Curio's studied in-
sinuations that Sirabella was unyielding.
37 Cuno testified that Sirabella further stated, in this and the January
14 session, that the Union "would never agree" to a "merit pay system in
which the employer would unilaterally determine who would receive an
increase and how much." Sirabella, testifying that he made such a state-
ment, but not until the January 28 session , is credited.
sa The Union never heard further from Respondent about this.
39 Cuno testified that Sirabella also declared, in this and the January 14
session, that the Union "would never agree" to a contract without a se-
mority clause Sirabella, admitting that he said such a thing in the Janu-
ary 28 session, is credited that he did not do so earlier.
answered that Respondent would decide if leaves of ab-
sence would be given.
(d) Work rules: Sirabella said that the Union recog-
nized Respondent's "right to establish reasonable work
rules," and had so proposed, but was concerned that the
rules would be reasonable and related to the workers'
employment." Cuno declared that this was "a matter"
that Respondent was "not going to negotiate with the
Union at all"; that Respondent would "decide what the
work rules are, period."40
(e) Dues checkoff: Sirabella professed surprise that Re-
spondent had failed to address the matter of dues check-
off, explaining that checkoff was "more or less stand-
ard." Cuno declared that Respondent was "not going to
collect any dues for" the Union.
(f) Gratuity policy and early shift release: Sirabella
stated that Respondent had not addressed the Union's
proposal regarding gratuities, which the Union "consid-
ered to be important";41 and that it also had ignored the
Union's proposal for early shift release, provision for
which was "customary in the casino industry." Cuno's
reply, if any, is not disclosed by the record.
(g) Maintenance of benefits: Sirabella, seeing that Re-
spondent's proposal was silent concerning maintenance
of benefits, stated that the Union wanted "to make cer-
tain that any benefits or practices that were favorable to
the workers were not unilaterally taken away .. .
during the life of the agreement," making particular men-
tion of health-and-welfare protection. Cuno replied that
Respondent wished "to reserve the right to take away
benefits" should it so choose.
Sirabella's critique over, Cuno suggested that, working
from Respondent's offer, Sirabella "make suggestions"
that he thought "the parties might be able to agree to."
Sirabella rejected that idea, suggesting that they instead
"work from" the Union's proposals, and that Respondent
"give . . . specific reasons why [it] can't or won't
accept" them. Cuno said that Respondent would be
"happy" to do that, but not until the next session, after
"tak[ing] the time to sit down with the employer . . . to
find out exactly how he feels with respect to each and
every element" of the Union's package.42
The session adjourned at about that point, having
lasted perhaps 2-1/2 hours. It was agreed to meet again
December 17.
December 17. The December 17 session, to begin in the
morning, was delayed until afternoon because Sirabella
missed a flight. Knoll opened the session by announcing
40 So stating, Cuno may have overreached the written word of Re-
spondent 's proposal-that Respondent be empowered to "make and en-
force rules and regulations not in conflict with" the contract. (Emphasis
added.)
4i As earlier disclosed in the summary of proposals, Respondent in fact
did advance a proposal, practically identical to the Union's, concerning
gratuities
42 Cuno is credited that this exchange occurred. His reference to "the
employer" doubtless contemplated John Ascuaga Sr., and such a review
of the Union's package with him supposedly never happened Knoll testi-
fied that he "never talked to Mr Ascuaga about this matter"-i.e, the
negotiations, and Lubbers testified that the management-members of Re-
spondent's team never spoke with Ascuaga about the negotiations after
he appointed them to the team "right prior to" the first session. "He gave
us complete authority," according to Lubbers.
JOHN ASCUAGA'S NUGGET 545
that, because of the late start and other commitments, it
could last only 45 minutes; and by complying with Sira-
bella's earlier request for a written description of benefits
under Respondent's medical care plan.
Preliminaries out of the way, Knoll once more dispar-
aged the Union's proposals, focusing on the wage as-
pects, charging that they were "patterned after the
Vegas contract." Sirabella countered that that was "not
correct at all"; and that, besides, the Union's proposals
were "only the opening gambit" and not "the bottom
line," which Knoll, as "a professional . . . in the field of
labor-management relations," knew full well. Knoll per-
sisted that the Reno area is "different than" Clark
County (Las Vegas) and Douglas County (Lake Tahoe),
prompting Sirabella to observe that Reno-area gaming
revenues were up 18 percent over the preceding year,
according to figures recently released by the Nevada
Gaming Commission, whereas the Las Vegas increase
was only 3 percent; and that it was well known that Re-
spondent was planning a major expansion of its facili-
ty.43 The Union's wage demands consequently "were
justifiable," Sirabella continued, "although they were
modifiable and were not etched in concrete by any
means."
Knoll declared that Respondent was proposing the
1972-1975 contract, as amended to incorporate existing
wage rates, and that that was "going to be it." Sirabella
came back that, with the intervening changes in the
economy and the cost of living, Respondent's position
had "gone out with high-button shoes."44 The two
spokesmen then discussed other issues as follows:
(a) Seniority: Knoll renewed Respondent's opposition
to the seniority concept, exclaiming: "We will determine
layoffs. . . . We will determine the recall. We will de-
termine who gets promoted."' Knoll amplified that se-
niority would be at odds with Respondent's longstanding
"philosophy" of granting its supervisors "the responsibil-
ity and the authority" to utilize employees "on the basis
of merit and need"; and that unit-wide seniority would
clash with "the manner in which the Nugget was com-
partmentalized." Respondent wanted to "reserve the
right," Knoll went on, "to be able to reward and retain
the person who is most productive and most loyal and
reliable, and not strictly on a seniority basis . . . in the
event there was ever a change in personnel or a
layoff."4 s
Sirabella responded that the Union was "not trying to
limit the company's legitimate right to lay someone off
who is less desirable than somebody else," as long as the
decision was based on "objective criteria." He continued
43 At the time of the trial, Respondent was engaged in the construction
of a $40-million, 28-story, 610-room "hotel tower."
44 Curio, who wears high-topped therapeutic shoes, placed one of them
on the table at this point and made "some facetious remark"-his
phrase-that that would prove the sincerity of Respondent's position.
Cuno's purpose, he testified, was "to ameliorate what was becoming an
obviously strained situation." That effect was not achieved, as Cuno re-
called-Knoll was "the only person who chuckled," and Sirabella
"seemed rather shocked."
45 Cuno's testimony is not believed that Knoll "invited the Union to
consider its seniority position and offer other language." This was both
uncorroborated and in clear conflict with the weight of evidence that Re-
spondent was unalterably opposed to the seniority principle throughout
negotiations
that, while the Union's seniority proposal did not "spell
[it] out that way," its "effect" was to favor the more
senior employee only when "qualifications and skills" be-
tween employees were "relatively equal."46 Knoll stated
that Respondent did not want "to get into a whole
bunch of grievances over seniority," and did not want
"to deal with" Sirabella's "coming in from Los Angeles"
in each such instance. Sirabella replied that he had "no
intention" of doing that; that grievances instead "would
be handled by" Contreras and his Reno-based staff unless
there should be "a major problem" requiring Sirabella's
presence. Knoll then commented that Respondent al-
ready had an "in-house" procedure for dealing with
grievances.47
(b) Hiring hall: Knoll exclaimed, as before, that Re-
spondent would "never agree" to a hiring hall. Sirabella
stated once more that the Union was "not seeking a
hiring hall," and challenged Knoll to show him "where
the Union's proposal suggests a hiring hall."
(c) Health and welfare: Knoll stated that only about
one-fourth of Respondent's employees were in the bar-
gaining unit , and that, out of regard for equality of treat-
ment and "for ease of administration," it would be "inap-
propriate to carve out a small segment of the work force
and provide them with an entirely different plan."48
(d) Dues checkoff: Knoll remarked that the collection
of dues was "an in-house union function and responsibil-
ity . . . that the Union should handle on its own."
At length, Sirabella stated that it was "clear" the par-
ties were not "getting anywhere," and that the time had
come "to think of some other way of breaking the
logjam and getting some real bargaining going." To that
end, he announced, the Union was "prepared to submit
all the unresolved issues to final and binding arbitration";
or, if Respondent would not agree to that, to bring in a
Federal mediator.49 This prompted a management
46 As mentioned above in the summary of proposals, the Union pro-
posed that the senior employee be favored for promotion if qualifications
were "relatively equal"; and in layoff, recall, and transfer situations if ca-
pable of satisfactory performance.
47 As previously noted, the Board's Order in the former case, enforced
by the court of appeals, directed Respondent to "cease and desist from
... unilaterally instigating , establishing , maintaining , or utilizing the
Sparks Nugget Employees' 'Council and the grievance procedure of
which said Council is a part."
48 The record does not establish unit size with any precision. Sirabella
testified: "[W]e never could agree on the number. We were, laboring
under the impression that the number was in the neighborhood of 1,200
at peak employment . They told us . . . it was a lesser number . I just
forget, 700 or something like that, or S00."
49 Cuno testified that he took Sirabella's mediation/arbitration sugges-
tion to be "an ultimatum," and that he was "shocked" and knoll was
"taken aback" by it. Explaining his feeling of shock, Cuno averred that,
while the parties were not "making substantial progress," they'were "in
the midst of dialoguing" and Respondent "had not really been given an
opportunity to see any variation or alternative in the Union's', position
Johnson perceived the situation quite differently, first testifying that he
thought the mediation/arbitration ', idea "was kind of a mutual thing" aris-
ing spontaneously from both Sirabella and Knoll, and only later conced-
ing that it originated with Sirabella Cuno, effectively impeached by
Johnson, is not credited that Sirabella's suggestion was tantamount to an
ultimatum, and that he was shocked and Knoll taken aback by it This,
patently, was another of his attempts to paint Sirabella with an unwar-
ranted veneer of intractability.
Continued
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
caucus, after which Knoll said that he "personally" felt
that binding arbitration was unwise," but would have to
take the matter up with his "principals" and report
back.-90
Sirabella urged that they next meet between Christmas
and New Year's. Knoll said he would be vacationing in
Hawaii until January 4, and it was agreed to reconvene
January 8.
January 8.51 Knoll announced, at the outset of the
January 8 session, that Respondent would not submit to
binding arbitration, but was agreeable to Federal media-
tion.52 Then, as if bringing the meeting to a close, he
stated, "That's all we have to say." Sirabella, "very
irate" by his own admission, protested that, if that was
all Knoll had to say, he could have accorded Sirabella
the "courtesy" of saying it by telephone, saving a 1000-
mile round trip. Sirabella continued that, as long as they
were there, he thought they "had an obligation to dis-
cuss" the proposals; "to keep trying to resolve some of
the matters and break the logjam." He added that, if ne-
gotiations failed to move "any better than" they had, he
intended to file a charge with the the NLRB alleging
that Respondent was engaging in "surface bargaining" in
violation of Section 8(a)(5).53
With that, there was some discussion of the proposals.
Sirabella termed the exchange "just a rehash" of those in
previous sessions, and the session in general as "totally
unproductive." Knoll repeated Respondent' s insistence
on the 1972-1975 contract, as updated; and' Sirabella un-
derscored the importance to the Union of the seniority
principle, remarking that high wage levels were pointless
without the concomitant of seniority-ensured job securi-
ty. Medical coverage also was discussed . Sirabella com-
mented on the "glaring discrepancies " between Respond-
ent's plan and the Union's health-and-welfare plan, espe-
cially with regard to dependent coverage. Knoll coun-
Likewise discounted , as additional in the series of gratuitous imputa-
tions to Sirabella of unreasoning rigidity, are Cuno's assertions , uncorro-
borated and refuted by Contreras on rebuttal, that Sirabella 's manner was
"vituperative" during the December 17 session (defined by Cuno to mean
"fighting, snide, critical , demeaning , intend[ing] to hurt and belittle, to in-
flict emotional hurt"), and that Sirabella proclaimed during that session
that the parties were "either going to reach agreement rather quickly or
something very unpleasant (was] going to happen."
50 It is undisputed that, by "principals ," Knoll meant John Ascuaga Sr
As noted above in fn. 42, Knoll testified that he "never talked to" As-
cuaga about the negotiations , and Lubbers testified that, after their ap-
pointment , the management-members of the team never did, either.
51 Cuno's uncorroborated testimony that Sirabella was 30 minutes late
for this session was unconvincing and is not credited . See fn. 26, supra.
52 Curio testified that Respondent decided against arbitration after
"careful consideration," during a meeting between Knoll and "representa-
tives of the Nugget." His basis for this knowledge , Cuno stated, was that
Knoll "returned to the office and advised [him] of what the determina-
tion was." Other than this nonprobative hearsay, there is scant evidence
of the procedure by which the decision was'made As earlier noted, in fn
50 and accompanying text, Knoll had intimated during the December 17
session that he would have to take the matter up with John Ascuaga Sr.,
but supposedly never discussed the negotiations with Ascuaga
52 Sirabella is credited that he urged the meeting 's continuation after
Knoll had evinced an intent to leave upon announcing the acceptability
of mediation . Curio would have it that Respondent intended to stay and
negotiate ; indeed, that he defended Knoll's failure to telephone Sirabella
by saying it was Respondent's "feeling that if the parties sat down again,"
rather than communicating by telephone, "perhaps dialogue might
resume." As against Sirabella's impressive sincerity under oath , this testi-
mony by Cuno came across as sheer after-the-fact invention.
tered that, since Respondent did not want a separate plan
for just that fragment of its complement represented by
the Union, it had to be mindful of the larger "economic
implications." Sirabella asked that Respondent supply
him with the annual premium cost, per employee, under
its plan. Johnson said he would obtain that informa-
tion. 54
Other details of the session are hazy, although Sira-
bella did crack that, if the Union's proposals were "a
Cadillac," Respondent's were "a wheelbarrow."55 The
session ended with Sirabella obtaining Knoll's consent to
request a mediator on behalf of both parties.
January 14. The first session with the Federal mediator
was January 14. The mediator invited the parties, at the
beginning, to state their positions and attitudes, after
which he separated them and served as a go-between.
Sirabella, in his opening remarks, stated that the Union
was "prepared to modify" its demands with respect to
wages "and a variety of other issues," but that the nego-
tiations nevertheless appeared "stuck in the mud and .. .
not going to move" because of a "serious question
whether [Respondent was] going to really bargain in
good faith." Sirabella particularized that Respondent's
offer was "totally inadequate" in its "unheard of" failure
to include seniority and leave-of-absence provisions, and
in its proposal that wages be based on merit as unilateral-
ly determined by Respondent.
Knoll expressed Respondent's position much as he had
in previous sessions . He rejected the mediator's sugges-
tion that economic and noneconomic issues be dealt with
separately, stating that it is "difficult to separate the so-
called economic issue from a noneconomic issue"; and,
noting that the Union's contingent had fewer unit em-
ployees than before, remarked that employee support for
the Union appeared to be waning.56
The record reveals little of what happened after the
parties were separated, other than that there was no
progress.57 At session's end, it was agreed to try again
January 28.
January 28. As before, the mediator called the parties
together for an exchange of views at the start of the Jan-
uary 28 session, after which they repaired to separate
rooms, the mediator acting as liaison.
During the beginning exchange, Knoll stated that Re-
spondent had "provided" the Union "with many provi-
sions" it could accept. Sirabella replied that there had
been no response in "the critical areas of interest", to the
Union, and that Respondent's proposed management-
rights clause "was so tight and so all-inclusive that it
54 The Union never did receive the information.
55 Cuno was believable that Sirabella made this remark, and is credited
despite Contreras' refutation during rebuttal. Cuno's testimony is reject-
ed, however, that Sirabella stated during this session that he "wasn't
going to give" Respondent a counterproposal and that the Union's exist-
ing proposals were "basically what [it] want[ed] to end up with. Curio's
recital at this point was so labored , so much the product of leading ques-
tions, and so tentative ("I think," "something on the order," "if I recall
correctly") that it seemed premised more on speculation than recall.
55 Cuno's uncorroborated testimony that Knoll told the mediator that
Respondent's position was not "cast in stone," that Respondent was
"open to suggestion," and that it hoped discussions "would continue,"
was singularly unconvincing and is not credited
57 The mediator, precluded by statute, did not testify.
JOHN ASCUAGA'S NUGGET
... gutted and negated . .. many of the things that the
company had submitted."
Knoll, proceeding to specific issues, said that Respond-
ent "was retaining its existing medical plan and profit-
sharing plan." Sirabella asked, rhetorically, what Re-
spondent was "guaranteeing with respect to the plan,"
inasmuch as it had "only offered a one-year contract."
Knoll went on that the "main issues" were seniority and
wages; and that, as concerns seniority, Respondent
"would make the decision solely and independently from
any involvement with the Union," and, with regard to
wages, Respondent "would determine the . . . increases"
and the Union "would have nothing to say about it."
Sirabella answered that these were "unacceptable" po-
sitions both "on the grounds of equity" and because,
Nevada being a right-to-work state, the Union "wouldn't
be able to sign anybody up" if it were to " sign an agree-
ment that gave management the right to establish wages
and the right on seniority . . . to lay people off with 15
years' service and keep junior employees without any
justification . . . based on . . . qualifications and skills."
Sirabella continued that the one-year contract term pro-
posed by Respondent "inevitably set [the Union] up for
decertification"; that the "combination of' Nevada's
being a right-to-work state, "the failure to give the
Union any voice in the establishment [of] matters of criti-
cal concern to workers, and the short duration of the
contract was an invitation to destroy" the Union; and
that, "after the eight-year [legal] fight," the Union was
not "going to accept that position."
Sirabella then announced that he had filed an 8(a)(5)
"surface-bargaining" charge against Respondent , stating
that "the record" to that point "fully demonstrate[d] that
the company did not come prepared to really bargain,"
but "to dictate . . . rather than negotiate."58
As the parties were about to be separated, Knoll asked
why the Union would not "agree to an election." Sira-
bella replied that it was because the Union had "fought"
in the courts for a number of years and had established
that Respondent "had an obligation . . . to bargain" with
it.ss
During the ensuing period of separation, the mediator
summoned Sirabella to the hall to report that he had "a
message" from Respondent--that the Union either
accept Respondent's "last and final offer, which was on
the table at that time, or else . . . proceed with [its]
8(a)(5) charge." Sirabella, saying that this was "too criti-
cal a position" to be conveyed "by way of a third
party," asked that the mediator "reconvene the parties
and have Mr. Knoll tell [him] that across the table." The
mediator honored S,irabella's request, 'whereupon one or
the, other asked Knoll to "repeat the company's posi-
tion." Knoll replied that "the Union would either accept
as the company's last and final offer" what was then "on
the table . . . or else proceed with its 8(a)(5) charge.
Sirabella, "quite upset" by his own assessment , stated
that the "conspiracy" of the northern Nevada hotel and
58 The charge was filed January 22. The Regional Director approved
the Union's withdrawal request on February 26. Case 32-CA-4222.
69 Contreras' uncontroverted testimony was persuasive and is credited
that this exchange took place.
547
casino operators, "which began in '74 when they simulta-
neously withdrew recognition from" the Union, obvious-
ly continues";60 that he had had "suspicions at the outset
of the bargaining that [the Union was] going to be con-
fronted with this kind, of bad- faith bargaining," but was
"hoping against hope" that he was wrong; that he would
like to thank John Ascuaga for his "generosity"; and that
the Union "would proceed with" the charge.61
80 A number of Reno-area and Lake Tahoe establishments withdrew
recognition about the time Respondent did. Those withdrawals, each
found unlawful , are chronicled in Harvey's Resort Hotel, 236 NLRB 1670
(1978); Ponderosa Hotel & Casino, 233 NLRB 92 (1978); Club Cal-Neva,
231 NLRB 22 (1977); Nevada Club, 229 NLRB 1186 (1977); Palace Club,
229 NLRB 1128 (1977); Sahara-Tahoe Hotel, 229 NLRB 1094 (1977);
Silver Spur Casino, 228 NLRB 1147 (1977); Holiday Hotel & Casino, 228
NLRB 926 (1977); Nevada Lodge, 227 NLRB 368 (1976); and Jim Kelley's
Tahoe Nugget, 227 NLRB 357 (1976).
81 Sirabella is credited that the mediator conveyed Respondent's mes-
sage as described ; and, corroborated by Contreras ' stipulated and rebuttal
testimony and by Dickinson , is further credited that subsequent events
were substantially as set forth . Respondent would have it that the roles
were reversed , with the Union sending word through the mediator that it
wanted Respondent's final offer ; and that, having "to choose between
what we have out there and what they have out there ," as Knoll put it,
Respondent chose to stay with its present position -but only after obtain-
ing Sirabella's verification that the mediator 's message was accurate
Beyond the demeanor of Sirabella and Contreras (and, yes, Dickinson),
which was most convincing on the point, it would have been inconceiv-
ably absurd for the Union, by so seasoned and able a spokesman as Sira-
bella, to have invited a breakoff of negotiations in this manner , thereby
all but licensing Respondent to walk away from the bargaining relation-
ship the Union had fought so long and hard to preserve . (That the Union
was "trying to set us up," as Knoll supposedly theorized at the time,
offers no viable justification , for it already had achieved all it could-a
bargaining order-through the Board and the courts.) Moreover , it is un-
likely, had Respondent 's final offer been called for and the predictable
response received , that one of Sirabella 's professionalism would have re-
acted, as he inarguably did, with incendiary anger. Finally, Respondent's
witnesses-Knoll, Cuno, Johnson, Pelfrey, and Lubbers-were so un-
impressive in their reconstruction of events after the mediator 's supposed
visit as to expose the scenario as yet in rough draft and ill-rehearsed.
They not only were halting and otherwise uneasy in their demeanor, but
were discrepant in critical detail. For that matter, all but Knoll generally
were unburdened by any but the scantest of detail,
More specifically, Knoll testified that, after receiving the mediator's
message, the management team had "a little consultation " in which it was
decided to adhere to the existing offer and to authorize Knoll to tell the
Union that Respondent's position was "not in concrete ," that Respondent
was "still willing to dot .. . is and cross t's," and that Respondent re-
mained "available for meetings at any time." (Knoll testified : "That's a
stock response I've learned over the years to make at a time like that ")
Cuno, in marked departure from Knoll, offered only that the manage-
ment team spent "several minutes ... reviewing ... why this request
had been made," eventually deciding that there was "no point in trying
to fathom the Union's motivation ," after which Knoll asked the manage-
ment-members if they "were prepared ... to make a final offer " They
answered , according to Cuno, that they would "have to utilize what
[was] on the table" Johnson, likewise departing from the Knoll version,
testified that there was "a lot of discussion ," with the management-mem-
bers asking Knoll "what all this meant and .. to give [them] his advice
on what [they] should do " Knoll's advice, Johnson added, "was that we
should consider going back into the meeting and presenting the offers
asked by Mr. Sirabella."
Pelfrey's story was that Knoll "did counsel with" the management-
members following the mediator 's visit, the "general conversation" being
Knoll's "astonishment that [Sirabella] had made this kind of thing"; and
that it was decided to return to joint session "to find out if that is what
Mr. Sirabella had requested " and to report that Respondent "was ready
to continue negotiating and would be available if and when [the Union]
wanted to meet again on the contract ." Asked if any consideration was
given to "upping the employer's offer," Pelfrey testified- "I can't recall. I
don't think that was discussed ." Lubbers, as if fearful that anything sub-
Continued
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On that note, the session ended. There has been no
communication between the parties since.
4. Other developments
The December 1981 employee meetings. For a number
of years, Respondent has held employee meetings each
December. Parley Johnson, responsible for "setting up"
the meetings, testified that their purpose is to enable "top
management" to bring the employees "up to date on
what was going on with the casino operation, as well as
reporting on the profit-sharing plan, . . . as well as a
review of the fringe benefits . . . ." Three substantially
identical meetings of this type were held in mid-Decem-
ber 1981-which is to say, at about the time of the
fourth bargaining session . They were scheduled to ensure
that all employees, unit and nonunit, would be able to
attend one, and each lasted about 1 hour. Among man-
agement personnel present were John Ascuaga Sr.,
Tonnis Lubbers, and Johnson.
Ascuaga announced to the employees at each of the
1981 meetings that profits were "up" and the business
was "doing very well"; that Respondent had an "open-
door policy" for dealing with the employees on a "one-
to-one basis"; and that it did not need "third parties." In
one or the other of the meetings, as well, if not all of
them, he characterized the business as "a family oper-
ation"; thanked the employees "for not having a third
party to help run the operation"; and stated that Re-
spondent had "never needed outside influence to solve
any of [its] problems and [would] handle them in the
future." 62 In at least one of the meetings , after Ascuaga
made this last statement, Lubbers exclaimed, "That's
stantive he might say would undermine the script , ventured no more than
that Knoll "said that we should keep the negotiations open." "I think,"
Lubbers testified, "that is what we went back with " Asked if there was
7
any conversation "about what to do with respect to the Union 's request,"
or "about what would be submitted as [Respondent 's] final offer," Lub-
bers testified that he could not recall . Back in joint session, so Knoll testi-
fied, he expressed surprise at the Union's request, told Sirabella that Re-
spondent's "final settlement offer ... is that proposal . . . on the table,"
and then gave the "stock response " mentioned above . Cuno, otherwise
echoing Knoll, differed importantly in that he had Knoll announcing that
"the initial response . . on the table, along with the notations ... made
indicating changes in that document or additions to that document,
would constitute [Respondent 's] final offer." There of course were no no-
tations, changes , or additions Johnson's account of Knoll 's pronounce-
ment was so abstract that it might be said to comport with those of both
Knoll and Cuno-or with neither . Johnson further testified, however,
that Sirabella responded with the arresting remark that "the die is cast in
hell," whereas Knoll testified that he did not hear any such remark and
Cuno averred that Sirabella made "no response of any significance." Pel-
frey assertedly could remember nothing said by Knoll after Sirabella's
supposed confirmat ion that the Union wanted Respondent 's "final, final
offer"; and Lubbers testified , similarly, that he could not recall Knoll's
presenting a final offer . Indeed, the only thing Lubbers professed to
recall was that Knoll "made it clear that we would be available in the
future if they wanted to continue negotiations," and that the session
"broke up" with Respondent "looking forward to another meeting " PeI-
frey, the words unaccountably having been put in his mouth by counsel
for the General Counsel, testified that Sirabella made the die -is-cast-in-
hell remark Lubbers said nothing about that. (Contreras testified credibly
on rebuttal that the remark was not made.)
62 That Ascuaga so spoke derives from an amalgam of the essentially
consonant testimony of Johnson , Harold Dickinson, and Lois Malay, then
and now a waitress in one of Respondent 's restaurants, the General Store.
what we like to hear," and broke into applause . The au-
dience followed hisexample.63
Ascuaga did not expressly state what he was referring
to with his third-party remark. The Union apparently
was not mentioned in explicit terms during the meet-
ings.64 Given that negotiations were in process and that
any other meaning is beyond conjuration, however, the
conclusion is inescapable that Ascuaga was talking about
the Union.
The procompany picketing and handbilling starting in
June 1982. On June 17, 1982, as is discussed more fully
later, the Union began to picket and handbill at Respond-
ent's premises, the idea being to inform the public of its
side of the ongoing difficulties with Respondent. These
activities continued for several months.
Apparently responding to the Union's picketing and
handbilling, some of the employees engaged in procom-
pany picketing and handbilling at the entrances and
around the perimeter of the building. Their placards
touted Respondent's restaurants, saying nothing about
the Union. The handbills, however, addressed the labor
dispute at length. The first to be circulated stated:
THE UNION'S FLYER SAYS:
"THE PEOPLE vs
JOHN ASCUAGA'S NUGGET"
WE ASK:
WHAT PEOPLE vs
JOHN ASCUAGA 'S NUGGET?
Those are not Nugget employees carrying the
boycott signs.
The culinary employees of the Sparks Nugget
have never had an opportunity for an election to
determine whether or not they wish Culinary Local
#86 to represent them.
The Nugget has repeatedly requested elections
but has received no response from the union.
At a recent election, the employees of the
Nugget Meat Packers voted unanimously not to be
represented by a union.
The Nugget has consistently upgraded the com-
pensation levels and fringe benefits on a regular
basis since the beginning of the operations in 1955.
The Nugget feels that employees would prefer to
have their wages increased by a merit system rather
than a method whereby the efficient worker subsi-
dizes the inefficient.
The Nugget is not a lawbreaker. The Nugget has
consistently complied with all laws and regulations.
A second handbill, to be circulated a few weeks
later, stated:
63 Malay, evincing both sincerity and competence, is credited that this
occurred Johnson 's contrary testimony was not convincing Lubbers did
not speak to this incident in his testimony.
64 Johnson testified: "I don't know what was in [Ascuaga 's] mind, [to]
tell you the truth. He never . . shared that with me." Malay testified: "
I came to the opinion that he was talking about any outside influence,
including the Union " Ascuaga did not testify
JOHN ASCUAGA'S NUGGET
FACTS
YOU SHOULD KNOW . . .
CONCERNING THE ATTEMPTED
BOYCOTT BY CULINARY WORKERS
LOCAL 86 AGAINST
JOHN ASCUAGA'S NUGGET
The Nugget's food and beverage employees have
wanted an election since 1974 to determine if the
union should represent them.
National Labor Relations Board regulations pre-
vent an election as long as unfair labor practice"
charges are pending. So, the union's leadership,
knowing it has no Nugget employee support, con-
tinuously files charge after charge, one immediately
after the other. As quickly as one claim is investi-
gated and dismissed by the NLRB, another is filed
to take its place. It's a deliberate delaying tactic
which union leaders hope will force Nugget man-
agement into a contract out of sheer desperation.
Everyone at the Nugget, employees and manage-
ment alike, wants an election. It is the American
way to determine the wishes of the majority. In
fact, if an election could be held today, this very
minute, Nugget management and all food and bev-
erage employees would welcome the opportunity to
settle this matter once and for all.
A controversy that has dragged on through
boards and courts for eight years desperately needs
to be settled. Too much time, too much money and
much too much effort has been wasted by all.
The union has imported "boycott expertise" used
by the California Migrant Farm Workers Union.
The purpose of the boycott is to harm the Nugget's
business in every way possible. The union is now
promoting a "secondary boycott" which threatens
other companies who do business with the Nugget.
This is a totally illegal activity.
The people who are occasionally carrying those
union signs in front of the Nugget are union offi-
cials and casual labor workers paid by the hour to
picket. THERE IS NOT ONE NUGGET EM-
PLOYEE ON THE PICKET LINE.
The answer to this controversy is very
simple. . . .
PUT IT TO A VOTEI
Respondent also conveyed its message through the
Nugget News Today, a sheet summarizing the day's main
news stories for the customers. The Nugget News Today
of July 12, 1982, included this item:
The Nugget Facts-Culinary and bar workers at
the Nugget would welcome an election to deter-
mine if they want to be represented by a union, but
Culinary Workers Local 86 has for years stymied
elections by repeatedly filing unjustified charges of
"unfair labor practice."
The election petitions. On June 21, 1982, Respondent
petitioned the NLRB for an election among Respond-
ent's unit employees to determine if they wished to retain
549
the Union as their bargaining representative.65 That was
followed by a petition docketed on July 30, 1982, also
seeking an election, submitted along with the supporting
signatures of a number of coworkers by unit employee
Carol A. Shepard.66 These petitions have not been proc-
essed to election because of the present complaint.67
B. Conclusion Concerning the Alleged Negotiating
Bad Faith
Among the slipperier of adjudicative tasks imposed by
the Act is that of distinguishing the lawful from the un-
lawful in the context of "hard" bargaining.66 The Act
itself reveals not so much what is proscribed as what is
not. Section 8(d) defines the bargaining obligation only
in the abstract-as one of "meet[ing] at reasonable times
and confer[ring] in good faith .. .." That section later
specifies that the obligation "does not compel either
party to agree to a proposal or require the making of a
concession." This latter, having been construed by the
Supreme Court to mean that "the Board may not, either
directly or indirectly, compel concessions or otherwise
sit in judgment upon the substantive terms of collective
bargaining agreements,"69 has been an inhibiting and
confounding influence in the delineation of bad faith.
Then there is Section 13, which states:
Nothing in this Act, except as specifically provided
for herein, shall be construed so as either to inter-
fere with or impede or diminish in any way the
right to strike, or to affect the limitations or qualifi-
cations on that right.
This, too, has inhibited and confounded, for it means-
abstract logical analysis" perhaps to the contrary-that
"the use of economic pressure ... is of itself not at all
inconsistent with the duty of bargaining in good faith. 117 0
The Act otherwise offers no real signs by which to tell
good from bad-faith bargaining-the principal task of
elaboration was left for the Board and the courts,"7 i
ss Case 32-RM-262
66 Case 32-RD-414.
67 Casehandling Manual (Part Two), Representation -Proceedings, Sec.
11730 3 states in relevant part: "If, upon completion of investigation of
the ULP [unfair labor practice] charges, it is determined that the charges
have merit and that a complaint should issue . the Regional Director
should determine whether the further processing of the R [representation]
case should be blocked by the C [charge] case For the purposes of that
determination, the Regional Director shall accept the ULP allegations
which are or would be set forth in the complaint as true. . Where the
meritorious ULP allegations involve violations of 8(a)(5) . and the
nature of the alleged violations, if proven, would condition or preclude
the existence of a question concerning representation, the R case should
promptly be dismissed, subject to reinstatement by the petitioner upon
final disposition of the C case."
68 See generally Cox, The Duty to Bargain in Good Faith, 71 Harv L
Rev. 502 (1958); Wellington, Freedom of Contract and the Collective Bar-
gaining Agreement, 112 U Pa. L Rev 467 (1964)
69 NLRB v. American National Insurance Co., 343 U S. 395, 404 (1952).
See also H. K Porter Co v. NLRB, 397 U.S. 99, 102 (1970)
70 NLRB v. Insurance Agents, 361 U S. 477, 489-491 (1960)
71 Wellington, supra at 112 U. Pa. L Rev. 470
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nor does a reading of the cases reduce the subject to
perfect pellucidity . As has been said , albeit in another
context: "There is more than enough scripture upon the
subject to enable any devil to cite some of it for his pur-
pose."' 2 Nevertheless , certain guidelines do emerge.
First , the test is one of subjective attitude . To quote
from NLRB v. Reed & Prince Mfg. Co., a landmark deci-
sion in the area:
The ultimate issue whether the Company conducted
its bargaining negotiations in good faith involves a
finding of motive or state of mind which can only
be inferred from circumstantial evidence. It is simi-
lar to the inquiry whether an employer discharged
an employee for union activity ....73
Second, the good-faith state of mind has been defined
variously as "a desire to reach ultimate agreement, to
enter into a collective bargaining contract";74 "a willing-
ness to negotiate toward the possibility of effecting com-
promise";75 a "willingness among the parties to discuss
freely and fully their respective claims and demands and,
when these are opposed, to justify them on reason";76
"the serious intent to adjust differences and to reach an
acceptable common ground"; 77 "a genuine desire to
compose differences and to reach agreement";78 and a
readiness "to enter into discussion with an open and fair
mind, and a sincere purpose to find a basis of agree-
ment."79 Good faith is "inconsistent with a predeter-
mined resolve not to budge from an initial position,"80
although it "does not require the yielding of positions
fairly maintained";81 "requires more than a willingness
to enter upon a sterile discussion of union -management
differences," yet does not demand that a party "engage
in fruitless marathon discussions at the expense of frank
statement and support of his position";82 and is not satis-
fied by shadow boxing to a draw"83 or "the mere will-
ingness of one party in the negotiations to enter into a
contract of his own composition."84
Third, the assessment of good faith "is based on rea-
sonable inferences drawn from the totality of the parties'
conduct at, and away from, the bargaining table"; 85 and
"an employer's bargaining positions and proposals" are
relevant to that assessment.86
72 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 469 (9th Cir.
1966).
78 205 F 2d 131, 139-140 (1st Cir. 1953).
74 NLRB v. Insurance Agents, supra at 485.
75 Evansville Chapter AGC v. NLRB, 465 F.2d 327, 335 (7th Cit. 1972).
76 NLRB v. George P. Pilling & Son Co., 119 F.2d 32, 37 (3d Cir. 1941)
77 U.S. Gypsum Co, 200 NLRB 1098, 1101 (1972); enf. denied 484 F.2d
108 (8th Cir. 1973)
78 Akron Novelty Mfg. Co., 224 NLRB 998, 1001 (1976).
79 NLRB v, Herman Sausage Co, 275 F.2d 229, 231 (5th Or. 1960)
80 NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154 (1956) (separate Frank-
furter opinion).
81 NLRB v. Herman Sausage Co, supra at 275 F.2d 231.
82 NLRB v. American National Insurance Co., supra at 343 US 402, 404.
83 NLRB v. Herman Sausage Co., supra at 232.
84 U.S. Gypsum Co, supra at 1101.
85 Akron Novelty Mfg. Co., supra at 1001
88 A-1 King Size Sandwiches, 265 NLRB 850, 858 (1982). As stated in
NLRB v. Wright Motors, 603 F.2d 604, 609 (7th Cir. 1979): "Sometimes,
especially if the parties are sophisticated, the only indicia of bad faith
may be the proposals advanced and adhered to."
Fourth, while Section 10(b) precludes a finding of ille-
gality as concerns conduct more than 6 months before
the filing of the charge-in this case, before December
10, 1981-"earlier events may be utilized to shed light on
the true character of matters occurring within the limita-
tions period."87
Applying this overlay of legal principle to the matter
at hand, it is concluded that Respondent lacked the req-
uisite good faith throughout negotiations, and that this
deficiency after December 10 violated Section 8(a)(5) and
(1) as alleged.
A lack of good faith is inferable, among other ways,
from Respondent's ill-disguised resolve to reduce the
Union to cipher status in the negotiating process, and
from its overall arrogance while purporting to discharge
its bargaining obligation. Among the major factors re-
vealing of this resolve and this arrogance are these:
(a) Respondent's offer, from which it never relented,
was little more than an incorporation of existing terms
and conditions of employment.
(b) Respondent was insistent that the Union be ex-
cluded from any role in wage increases, and intransigent
in its refusal to consider other issues of fundamental im-
portance to almost any labor organization, such as se-
niority, maintenance of benefits, and dues checkoff.
(c) Apart from their summary dismissal of issues vital
to the Union, Respondent's spokesmen showed slight in-
terest in exploring the Union's demands specifically or
with seriousness of purpose, instead injecting false issues
by misrepresenting those demands as being "patterned
after" the Las Vegas contract and containing a hiring-
hall provision, and recurrently disparaging them with
shibboleths-that they were "a Cadillac proposal," con-
stituted "reaching for the moon," and would give the
Union "a blank check."
(d) Despite the obvious unacceptability of its offer and
its pointed avoidance of meaningful discourse until then,
Respondent in effect abandoned negotiations by its Janu-
ary 28 ultimatum that the Union either accept its "last
and final offer" or proceed with its unfair labor practice
charge.
(e) Knoll stated, during the October 27 bargaining ses-
sion, that Respondent "want[ed] to compare [itself] with
the nonunion employees."
(f) The antiunion remarks by John Ascuaga Sr. in the
December 1981 employee meetings-thanking the em-
ployees "for not having a third party to help run the op-
eration," telling them that Respondent had an "open-
door policy" for dealing with them on a "one-to-one
basis" and did not need "third parties," and saying that
Respondent had "never needed outside influence to solve
any of [its] problems and [would] handle them in the
future"-amounted to a ringing renunciation of Respond-
ent's bargaining obligation.88
87 Machinists Local 1424 v. NLRB, 362 U.S. 411, 416 (1960)
88 As is later' concluded , these remarks violated Sec 8(a)(5) and (1) in
and of themselves. The assertions of Knoll and Lubbers, reported above
in fns. 42 and 50, that they never discussed the negotiations with Ascuaga
after their onset, presumably offered to create an illusion of distance be-
tween Respondent's negotiators and Ascuaga's stated rejection of the bar-
gaming concept, were implausible and are not credited.
JOHN ASCUAGA'S NUGGET
Other factors contributing to the inference of bad faith
include these:
(a) Knoll's comment to Sirabella, before the start of
negotiations, that Respondent "could not meet as regu-
larly as [Sirabella] would like," nor for "any long periods
of time," because his clients were "businessmen, and they
have to take care of business"; Knoll's further comment,
when Sirabella offered to adjust his schedule to suit Re-
spondent's "convenience," that his clients did not "want
to do that"; and Knoll's ending the November 10 session,
after only an hour, with the explanation that the manage-
ment-members of Respondent's team had to return to
their regular jobs.89
(b) Knoll's intent, until dissuaded by Sirabella, to ter-
minate the January 8 session upon announcing Respond-
ent's willingness to submit to mediation, despite his un-
doubted awareness that Sirabella had come all the way
from Los Angeles for that session.
(c) The failure of the management-members of Re-
spondent's team to have gone over the Union' s nonwage
proposals, and to have discussed them with Knoll, before
the October 27 session, even though they had been re-
ceived by Knoll on October 22; and their additional fail-
ure, as conceded by Cuno, to have examined those pro-
posals before the November 10 session.
(d) Respondent's failure to reconcile the discrepancy
in the number of unit job classifications as between its
and the Union's wage proposals, although Cuno had said
during the December 1 session that he would "check it
out"; and its failure to follow up on Johnson' s assurance,
during the January 8 session, that he would supply the
per-employee premium cost under Respondent's medical
plan.
(e) Knoll's insistence that Respondent would need 3
weeks-from November 10 to December 1-between the
second and third sessions, because of the Thanksgiving
holiday and to allow time to study and prepare a re-
sponse to the Union's demands, when the "total deci-
sion" concerning Respondent's position was reached
during caucus in the October 27 session, the manage-
ment-members of the team did not have "any input at
all" into the preparation of the response, and it was the
same "boilerplate" response proffered by Knoll for the
Nevada Club and the,Silver Spur Casino.
(f) Knoll's observation during the January 14 session
that employee support for the Union appeared to be
waning, his question during the January 28 session why
the Union would not "agree to an election," and Re-
spondent's assertions by handbill and in the Nugget News
Today in the summer of 1982 that the unit employees
wanted an election.
(g) Cuno's December 1 citation to economic hard
times as a justification for Respondent's less than gener-
ous offer, when Knoll previously had said Respondent
was not claiming an economic inability to meet the
Union's demands and Ascuaga shortly was to tell the
employees that profits were "up" and the business was
"doing very well."
s9 "Collective-bargaining negotiations are entitled the importance and
attention of any other business affairs." Eastern Maine Medical Center,
253 NLRB 224, 247 ( 1980).
551
Finally, the inference of bad faith is reinforced by Re-
spondent's offering a contract of only 1 year's duration,
and by the preemptive scope of its management-rights
and zipper-clause proposals.90
V. OTHER CONDUCT IN ISSUE
A. The Allegedly Unlawful Remarks by John
Ascuaga Sr. in December 1981
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) during the employee meetings in December
1981 when John Ascuaga Sr. stated that Respondent
"had handled problems without a union in the past and
would continue to do so in the future."
2. Facts
As earlier found,91 Ascuaga told the employees during
three largely identical meetings in mid-December 198192
that Respondent had an "open-door policy" for dealing
with them on a "one-to-one basis," and did not need
"third parties"; and, in one or more of the meetings, as
well, he characterized the business as "a family oper-
ation," thanked the employees "for not having a third
party to help run the operation," and stated that Re-
spondent had "never needed outside influence to solve
any of [its] problems and [would] handle them in the
future."
3. Conclusion
As previously concluded, Ascuaga's "third party"
usage ineluctably alluded to the Union. Therefore, by
thanking the employees "for not having a third party to
help run the operation," by telling them that Respondent
had an "open-door policy",for dealing with them on a
"one-to-one basis," and did not need "third parties," and
by stating that Respondent had "never needed outside in-
fluence to solve any of [its] problems and [would] handle
them in the future," he proclaimed in effect that the em-
ployees did not need the Union, that they could take
their problems to him independently of the Union, and
that it was pointless for them to be represented by the
Union.
So doing, Ascuaga engaged in conduct indistinguish-
able in principle from that held violative of Section
8(a)(1) in Quality Engineered Products Co., 267 NLRB
573 (1983). It is concluded, therefore, that his remarks
violated that section substantially as alleged. It is con-
90 Before leaving the subject of the negotiations , it perhaps needs
saying that there was nothing improper in the Union's aspiring to con-
tract comparability among Respondent , the Circus Circus, the Nevada
Club, and the Silver Spur Casino. "[A] legitimate aim of any labor orga-
nization is to obtain uniformity of labor standards ." United Mine Workers
v. Pennington , 381 U.S . 657, 666 ( 1965). "[A] union may adopt a uniform
wage policy and seek vigorously to implement it" among several employ-
ers. Id. at 665, fn. 2
91 In the text accompanying fn. 62, supra.
92 Harold Dickinson testified credibly and without refutation that the
meetings were "around the middle of December" and after December
10-i e , less than 6 months before the first of the two charges herein was
filed.
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cluded, as well, that these remarks violated Section
8(a)(5), although not so alleged, inasmuch as they obvi-
ously were "calculated to undermine the Union and set
the stage for further attempts to bypass and ignore the
Union . . . ." Walker Die Casting, 255 NLRB 212, 212
fn. 2 (1981). See also Marhoefer Baking Co., 258 NLRB
511, 515 (1981).
B. The Allegedly Unlawful Solicitation of Grievances
by Joseph (Lynn) Reed in February 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (5) in February 1982 when Joseph
(Lynn) Reed "solicited employees' grievances and im-
plicitly promised to resolve them . . . to undermine the
Union."
2. Facts
During his 4 years as a supervisor in Respondent's
General Store restaurant, Joseph (Lynn) Reed had con-
ducted some 15 irregularly scheduled employee meet-
ings. Their "main purpose," he testified, was "to keep
employees informed of changes, portion control, custom-
er service, appearance, [and] just generally everything
that it takes to run a dining room." These meetings were
a "very good forum" for gathering employee complaints,
according to Reed, which he sometimes called for and
which he sometimes then sought to remedy.
One such meeting was held in February 1982, attended
by 20 to 30 unit employees. Reed, after speaking about
the sundry matters on his mind, asked if the employees
had any "gripes, comments, or improvements" they
wished to discuss.93 Waitress Lois Malay responded that
the break-relief system, of which she had complained
previously, "had not been resolved" and was "really get-
ting to be a pain in the neck."94 At least one other em-
93 Lois Malay, corroborated in substance by waitress Lucille McMee-
kin, was convincing and is credited that Reed invited employee participa-
tion in this manner. Reed 's nonspecific denial that he solicited grievances
was unpersuasive.
94 Under the break-relief system, each waiter and waitress spent 1 day
a week filling in for those on break , receiving the regular hourly wage
from Respondent, plus $1 from the person being relieved for each 15-
minute break . Malay's complaint , first voiced to her coworkers and to
Reed in December 1981 , was that many chose not to take breaks, leaving
those on break relief with nothing to do while depriving them of the $1
in income for each 15 minutes and costing Respondent a needless wage
outlay . Upon Malay's initial complaint to Reed, he said he would "take
care of it"; and, for a week or so afterwards , everyone was required to
take breaks. The practice then reverted, however; and, in early January
1982, Malay again spoke to Reed about it. He replied that he would "see
that something was done."
Soon thereafter , nothing having changed, Malay had a conversation
with Reed's immediate superior, Bob Dunn, about the situation She told
Dunn that she had spoken to Reed about the matter "and it had not gone
anywhere", and that she did not wish to pursue it if it would "cause trou-
ble" for her with Reed . Dunn responded that this was "a problem" Re-
spondent wanted "to solve, to keep everyone happy"; and that he would
take it up with his superior, Gene Barry
The next day , Reed told Malay that she was fired . He explained, cred-
iting Malay and disregarding as nonprobative Reed's nonspecific denial,
that Malay had been "complaining about the break system" and "upset-
ting the family operation of the Nugget," adding that, since she was "a
complainer and did not want to cooperate with the system in the General
Store . . there was no need to keep [her] any further." Malay was rein-
ployee echoed Malay's sentiments. Reed, saying that it
was "up to" the employees how the system would oper-
ate, "put it before the room as a vote," as he recalled,
and a majority voted to retain the existing practice.
The employees also raised other complaints-about the
procedure for seating guests and about the lack of assist-
ance for the waitresses and waiters from the supply
stockers-and Reed said he would "take care of"
them.95
Nothing was said about the Union during this meeting.
The next meeting of this sort was held perhaps 6 months
later.
Respondent told the Union nothing about this meeting,
either before or after it was held.
3. Conclusions
Hedison Mfg. Co., 260 NLRB 1037 (1982), and Shen-
ango Steel Buildings, 231 NLRB 586 (1977), involved em-
ployer polling of represented employees to ascertain if
they wished to shorten the workweek by lengthening the
workday. In Hedison Mfg. Co., a majority reportedly
having been in favor, the change was instituted without
negotiating with the union. In Shenango Steel Buildings,
the company conveyed the employees' sentiment for
change to their union, along with its proposal that the
change be made. The union, however, rejected the idea
and it was dropped. The Board determined in both cases
that the company had engaged in direct-dealing violative
of Section 8(a)(1) and (5).
It is concluded that Reed's polling of the employees as
concerns the break-relief system was direct dealing of
the same character, also violating Section 8(a)(1) and
(5).96
It is further concluded, however, that Reed 's assur-
ances that he would "take care of' the problems of guest
seating and the supply stockers were not improper. Al-
though these matters were raised in response to Reed's
call for "gripes, comments, or improvements," there is
no reason to infer that his purpose was to undermine the
Union, and these were matters about which Respondent
was under no obligation to bargain with the Union. See
Gould, Inc., 260 NLRB 54, 59-60 (1982); Moody Chip
Corp., 243 NLRB 265, 271 (1979).
stated the next day, after signing "a paper" that she would not "cause
any more trouble " There is no pending allegation or contention that
Reed's announcement of the discharge, or the reasons given by hun for
it, violated the Act.
95 Malay and McMeekin testified credibly that the employees com-
plained about the seating of guests McMeekin is further credited that the
matter of the stockers was raised , and that Reed said he would "take care
of both matters.
99 That it had been Reed's practice, for about 4 years, to invite and
attempt to remedy employee complaints is not exonerative as an estab-
lished practice in light of Respondent's unlawful refusal to recognize and
bargain going back to 1974 Chester Valley, Inc, 251 NLRB 1455, 1456
In. 5 (1980).
JOHN ASCUAGA'S NUGGET
C. The Allegedly Unlawful Remarks by Reza Zolgahr
in April 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) in April 1982 when Reza Zolgahr "interro-
gated [an] employee as to the employee 's union activities,
sympathies , and desires , and threatened an employee
with discharge if she became involved with the Union."
2. Facts
Cheryl Valcarce is a waitress in Respondent's buffet
restaurant, the Rooster Room. Reza Zolgahr was one of
her superiors in the Rooster Room in April 1982.97 That
month and year, at a party in a private home, Zolgahr
asked Valcarce how she felt "about the Union." To her
answer that she thought representation "would be a
good idea" if it led to "better benefits and job security,"
Zolgahr cautioned her not to "get involved with the
Union" or her job would "be in jeopardy."98
3. Conclusion
It is concluded that, by asking Valcarce how she felt
"about the Union," and then cautioning her not to "get
involved" lest her job "be in jeopardy," Zolgahr interro-
gated and threatened her in violation of Section 8(a)(1).
While the interrogation alone, conducted by a low-level
supervisor in a social setting, probably would not meet
the "surrounding circumstances" standard contemplated
by Rossmore House, 269 NLRB 1176 (1984), the cheek-
by-jowl juxtaposition of the warning about union in-
volvement, clearly an unlawful threat, necessarily con-
taminated the whole.99
D. The Allegedly Unlawful Photographic Surveillance
on and after June 17, 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1), on and after June 17, 1982, by
"photograph[ing] employees at a union boycott organiz-
ing meeting at a public park . . . and photograph[ing]
prounion pickets and handbillers . .. at [Respondent's]
Sparks facility ...."
9' Zolgahr's supervisory status is in dispute . Valcarce credibly testified
that he interviewed job applicants, was the person to contact when call-
mg in sick, "was always threatening to fire" her , and "always used to
write [her] up" for her shortcomings and then would "rip up the write
up." It thus is inferable that Zolgahr had a meaningful role in the hiring
process, along with the authority , actual or apparent, to discipline and
discharge. The conclusion follows that he was a supervisor as defined in
the Act. See Restaurant Hortkawa, 260 NLRB 197, 204 (1982)
98 Valcarce was convincing and is credited that she and Zolgahr had
this exchange . Zolgahr, no longer with Respondent, did not testify.
99 The social setting in which the remarks were made, although un-
doubtedly a circumstance to be considered under Rossmore House, supra,
1178 fn . 20, does not preclude their being improper General Thermo,
Inc., 250 NLRB 1260 (1980) (company picnic); Metropolitan Life Insur-
ance Co., 166 NLRB 553 (1967) (nightclub).
2. Facts
553
On the morning of June 17, 1982, the Union's negotiat-
ing spokesman, Sirabella, presided over a press confer-
ence in which he announced the onset of the compaign-
to include picketing and handbilling at Respondent's
premises-to publicize the Union's side of its dispute
with Respondent. The press conference was held in the
gazebo of a public park about a block from Respondent's
facility. Among those covering it, in addition to televi-
sion and newspaper reporters and photographers, was a
photographer working in Respondent's publicity depart-
ment, John Marti. Onlookers included 10 or 12 bargain-
ing-unit employees "invited" by Harold Dickinson of the
Union's negotiating team. They observed from an area
perhaps 50 feet from the gazebo.
Picketing and handbilling, as earlier mentioned, began
outside Respondent's facility the same day, continuing
for several months. It was done solely by nonemployees
at all times.
Marti testified that he attended the press conference on
the suggestion of Respondent's director of publicity, Art
Long, who told him he first should clear with Parley
Johnson since it had "something to do with the Union."
Johnson, supposedly noting that it was a press confer-
ence, authorized Marti to go. 10 0
Marti snapped an undisclosed number of pictures at
the event, some of which he developed and submitted to
Long. Long decided that "there wasn't anything there
that we could use for anything," Marti recounted, and
"just gave them back to" Marti. None of the pictures is
in evidence.
Dickinson credibly testified that he saw a photogra-
pher, whom he did not know but described in terms fit-
ting Marti, take pictures of the unit employees, who
were "kind of back by themselves," over a period of
"probably 15, 20 minutes"; and that the employees
"turned their heads and used their purses or their hands"
to evade the camera when this happened.10 t Miguel
Contreras believably testified that he, too, saw a person
of Marti's description photograph the employees as they
were "huddled together . . . away from the main
group." Marti testified that he did not recognize anyone
as an employee and thus did not know if he took pictures
of employees; and that he saw no one take measures to
evade his camera. He estimated that 40 to 50 people at-
tended the press conference, with "practically every-
body" being in the gazebo.
Later on the 17th, soon after the start of the picketing
and handbilling, Marti began taking pictures of those en-
gaged in that activity. This continued with regularity,
apparently, for the next 2 or 3 days, and at least sporadi-
ioo Johnson denied that he asked Marti to photograph employees at
the press conference, or that Marti said "anything" to him "about taking
pictures."He conceded, however, that Marti had a camera at the time-
John Marti is never without his camera."
toi As contrasted with his testimony about the negotiations, which as
earlier mentioned was often unreliable despite an underlying sincerity,
Dickinson's recital about the June 17 picture taking was delivered with
strength and conviction.
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cally thereafter. 1102 Marti testified that he was "doing
this openly," and that he assumed Respondent's employ-
ees knew he was doing it. None of these pictures is in
evidence. Marti testified that he was carrying out John-
son's instruction "to take pictures of the pickets" in an-
ticipation of legal action against the Union. Johnson in
turn testified that he had been advised by counsel to
obtain pictures to support a contemplated secondary-
boycott charge and/or a mass picketing suit against the
Union, and that he directed Marti accordingly.
Respondent did file a secondary boycott charge
against the Union on June 21, submitting various of
Marti's pictures in its support.103 The charge later was
dismissed by the Regional Director. There is no evidence
that a mass picketing suit ever was brought.
One of the picketers, Pearl Staub, credibly testified
that her picture was taken-obviously by Marti, from
her description-from a distance of 4 to 5 feet; and Dick-
inson credibly testified that his picture was taken while
handbilling-clearly by the same person-from a dis-
tance of 5 or 6 feet.104
Cameras from local television stations sometimes re-
corded the picketing and handbilling.
3. Conclusions
The press conference. An employer's photographing of
employees, while they are engaged in activities protected
by the Act, is deemed to be improper surveillance, vio-
lating Section 8(a)(1), absent "legitimate justification."
E.g., United States Steel Corp., 255 NLRB 1338, 1338-
1339 (1981); Smith's Complete Market, 237 NLRB 1424,
1433 (1978); Glomac Plastics, 234 NLRB 1309, 1320-1321
(1978); Colonial Haven Nursing Home, 218 NLRB 1007,
1011-1012 (1975).
Employee attendance at the press conference undeni-
ably was a protected union activity. And, by any stand-
ard of foreseeability, Respondent had reason to expect
that employees would attend. Marti's camera work,
sometimes directed toward employees even if randomly
aimed, thus carried a substantial likelihood of recording
protected activity-and presumably did, in fact. As indi-
cated by employee 'efforts to evade Marti's camera,
moreover, his endeavors imparted to them the impression
that they were under surveillance.
It is concluded, therefore, Respondent having failed to
bring forth any legitimate justification for Marti's picture
taking, that it violated Section 8(a)(1).105
The picketing and handbilling. The photographing of
nonemployees, while engaged in union activities, likewise
violates Section 8(a)(1), absent legitimate justification-at
least, if done in the presence of employees or with em-
102 Marti testified that he was "a little hazy" whether he took pictures
after June 21-the date Respondent filed a charge against the Union with
the NLRB. Johnson testified, however, that pictures did continue to be
taken, and the weight of evidence otherwise is that this indeed was the
case
103 Case 32-CC-604.
104 Dickinson by then had left the payroll
ios That media reporters and photographers were covering the event
does not detract from this conclusion. United States Steel Corp., supra at
1339.
ployee knowledge.106 National Steel Products, 252
NLRB 833, 845 (1980); Crown Cork & Seal Co., 254
NLRB 1340 (1981); Excavation-Construction, 248 NLRB
649, 666 (1980); Faith Garment Co., 246 NLRB 299, 301-
302 (1979); Holly Farms Poultry Industries, 186 NLRB
210 fn. 1 (1970).
The picketing and handbilling at Respondent's prem-
ises unquestionably were qualifying activities; and it is as-
sumable, as Marti conceded, that the employees were
aware that he was photographing those activities. It fol-
lows, there being no convincing evidence of legitimate
justification, that this camera work also violated Section
8(a)(1).107
E. The Allegedly Unlawful Denial to the Union of
Access to a Customer Entrance on and after
June 17, 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) on and after June 17, 1982, when its security
guards "denied the Union access to the primary entrance
to Respondent's premises, which access was necessary
for the Union to directly communicate a consumer-boy-
cott message to . . . the general public ...."
2. Facts
Respondent's facility has two customer entrances. The
front entrance, so called, is on a public sidewalk and
thoroughfare, "B" Street. The back entrance is on a walk
and driveway owned by Respondent. Tour buses bring-
ing patrons to the facility unload at the back entrance,
and it is more convenient to Respondent's parking lots
than is the front entrance.
The Union's initial June 17 picketing and handbilling
was conducted at both entrances, with heavier emphasis
on the back entrance because of its greater patron
volume. About 20 minutes after the activity began, sev-
eral Sparks city policemen, accompanied by Respond-
ent's security guards, appeared at the back entrance. One
of the policemen asked for "the person in charge" of the
union activity, and Miguel Contreras stepped forward.
The policeman told him that the demonstrators were on
private property and that "the owner" wanted them re-
moved. Contreras protested that they were on "a public
thoroughway" and had "the right to be out there picket-
1°e The theory being that the employees thus may be deterred from
participating in the union activities.
107 That the pictures were taken on advice of counsel, supposedly in
contemplation of legal action, and that some in fact were submitted in
accompaniment of the secondary-boycott charge, does not provide the
requisite justification The record provides no basis for Respondent rea-
sonably to have anticipated actionable misconduct by those picketing and
handbilling, and there is no evidence that misconduct did occur. The
filing of a charge, later dismissed, hardly overcomes this deficiency;
indeed, the filing appears to have been for little purpose other than to
cloak Respondent's surveillance-by-film with colorable legitimacy. Ex-
tracting from United States Steel Corp., supra at 1338: "Purely 'anticipato-
ry' photographing of peaceful picketing in the event something 'might'
happen does not justify (an employer's) conduct when balanced against
the tendency of that conduct to interfere with the employees' right to
engage in [protected] activity." (Quoting from Glomac Plastics, supra at
1320-1321.)
JOHN ASCUAGA'S NUGGET
ing and informing the patrons of [the] dispute" with Re-
spondent. The policeman persisted that it was private
property, admonishing Contreras that the demonstrators
"would be subject to arrest" if they "did not leave."
Contreras, first conferring with another union official,
told the policeman that, although he felt that the picket-
ers had "every right" to be there and that their removal
was "an unfair labor practice," they would leave. Con-
treras then asked the policeman where, in his view, pick-
eting would be permissible. The policeman answered that
they could do it on the public sidewalks, but not on
those along private driveways; and, repeating, that they
would "be arrested" if they did otherwise.
With that, the demonstrators retreated to the nearest
public sidewalk, on 11th Street at the head of the private
driveway to the back entrance, never again to occupy
the private property in the area of that entrance. This re-
sulted in their being some 4 to ;5 buslengths from the en-
trance and well away from the pedestrian routes general-
ly taken by patrons using that entrance, whether from
buses or the parking lots. Their ability to convey the
Union's message thus was significantly impaired.
The record leaves to speculation by whom and how
the police were summoned on the 17th. Parley Johnson
denied that he had anything to do with it, or that he in-
structed Respondent's security guards to restrict union
activities in the back entrance area.
Subsequent to the removal of the union demonstrators
from the area around the back entrance, procompany
picketing and handbilling took place from time to time,
without being disrupted, in that same area.
On July 3, in a kindred development, Peary Staub re-
peatedly was expelled by Respondent's security guards
from one of its parking lots, thereby being prevented
from writing down the license numbers and origins of
tour buses. She had been asked to do this by Jeffrey
Kovac, a union business agent. The explanation given
her by the guards was that, the lot being "private prop-
erty," she could not engage in union activities there. The
lot was open to the public.
3. Conclusions
Although the Union's picketing and handbilling on Re-
spondent's property plainly were activities protected by
Section 7 of the Act, that is not dispositive of the ques-
tion whether illegality attached to the compulsion that
those activities be conducted elsewhere. i 08 The answer
to that question depends on an "accommodation of Sec-
tion 7 rights and private property rights `with as little de-
struction of one as is consistent with the maintenance of
the other."' Hudgens v. NLRB, 424 U.S. 507, 522 (1976),
quoting from NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 112 (1956).
Arrayed against Respondent's interests as owner are
these countervailing considerations:
1°8 The act of oustmg the demonstrators, effected by city pohce m the
company of Respondent's secunty guards, is properly attributable to Re-
spondent. See .Iarr,san Steel Castings Co., 262 NLRB 450, 455 fn. 6
(1982).
555
(a) The property involved was that of the employer
with whom the Union had its dispute, rather than that of
a neutral employer; and it was open to the public.
(b) Respondent's employees were the intended benefi-
ciaries of the Union's activities.
(c) Respondent's customers were the principal audi-
ence contemplated by the Union's activities; and most of
them used the back entrance, thus crossing the property
in issue.
(d) There is no indication that the Union's activities
were, or were likely to be, other than orderly.
(e) After the Union's ouster, counterpart activities of a
procompany character, on the same property, were toler-
ated and most likely instigated by Respondent.
(f) There were no comparably effective alternative
means for the Union to reach the intended audience. The
remoteness from the back entrance of the nearest public
property perforce narrowed the audience mainly to those
in motor vehicles, thereby necessarily diluting the thrust
of the picket signs and effectively defeating the handbill-
ing. That same remoteness, and confinement to public
thoroughfares, also carried an increased likelihood of in-
flicting the dispute on noncustomers.
Based on this weighing of factors, it is concluded that
the Union's picketing and handbilling in the area of the
back entrance did not intrude unduly on Respondent's
ownership rights. The forced cessation of those activities
therefore violated Section 8(a)(1). See generally Ameron
Automotive Centers, 265 NLRB 511 (1980); Montgomery
Ward & Co., 265 NLRB 60 (1980); Seattle-First National
Bank, 243 NLRB 898 (1979); Giant Food Markets, 241
NLRB 727 (1979); Scott Hudgens, 230 NLRB 414 (1977).
It also is concluded that Pearl Staub's efforts to obtain
the license numbers and origins of the tour buses, doubt-
less undertaken to develop an alternate channel by which
to impart the Union's message in the aftermath of the
ouster from the back entrance area, were protected ac-
tivities; that they impinged upon Respondent's property
rights in only the most minor and technical sense; and
that Respondent consequently violated Section 8(a)(1)
when its security guards frustrated those activities by ex-
pelling Staub from the parking lot.
F. The Allegedly Unlawful Remarks by Joseph (Lynn)
Reed Soliciting Antiunion Picketing and Threatening
Layoffs on About June 23, 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) on about June 23, 1982, when Joseph (Lynn)
Reed "solicited and encouraged an employee to picket
against the Union while on the clock," and when Reed
"told employees that if Respondent entered into the col-
lective-bargaining agreement proposed by the Union it
would lay off about 20 percent of its employees."
2. Facts
In the "latter part of June" 1982, Lois Malay had a
conversation with two coworkers, Nancy Speed and
Jerry Erquiaga, in which Speed asked if she would "join
a picket against the Union . . . in support of the Nugget.
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Malay replied that, while she felt that "the Union had
outlived its usefulness," she preferred not "to get in-
volved." Either Erquiaga or Speed then remarked that, if
Malay were not to picket, "it could very well mean [her]
job" when the winter layoffs came, because of her lack
of seniority. Speed added that the employees "would get
paid to picket . . . against the Union."
Later that day, Malay asked Reed, her supervisor,
how the employees "would go about getting paid if
[they] picketed" against the Union. Reed answered that,
when they "decided to picket," they were to "go to the
time office [and] clock in"; and, when they "got done
picketing," they were to "go back to the time office and
clock out."109
Malay also asked Reed, either in the conversation just
mentioned or in another at about the same time, if it
were true, as she had heard from Speed and Erquiaga,
that she would "be laid off . . . when winter layoffs
come up" if she did not picket for Respondent. Reed re-
plied to the effect that John Ascuaga had said Respond-
ent could not afford the Union's demands, and so would
"have to lay off approximately 20 percent of the work
force." To Malay's asking if "the 20 percent" would in-
clude her, Reed answered, "Yes, but don't worry about
it." 11 o
Malay was not among those employees to engage in
the procompany picketing and handbilling. Although the
employees so engaged wore their work uniforms, there is
no convincing evidence• that they in fact were "on the
clock."
3. Conclusions
Reed's response to Malay's query how the employees
were to "go about getting paid" for picketing against the
Union-to clock in before starting and out after finish-
ing-was a promise of benefit for engaging in antiunion
conduct. As such, it violated Section 8(a)(1). E.g.,
Murco, Inc., 266 NLRB 1176 213 (1983); Keeler Brass
Co., 262 NLRB 180 (1982); Smith Auto Service, 252
NLRB 610 (1980).
Reed's answer to Malay's question about her layoff
prospects-that Ascuaga had said Respondent would
have to lay off about 20 percent of the employees, which
would include Malay, because it could not afford the
Union's demands-also violated Section 8(a)(1). As
stated in NLRB v. Gissel Packing Co., 395 U.S. 575, 618-
109 Malay, still on the payroll, was convincing and is credited that
Reed made these remarks . Reed was a less than impressive witness in
general-m demeanor , recall, and testimonial detail ; and his denial in this
instance-"absolutely no"-lacked the ring of truth.
110 Malay is credited that Reed spoke in substantially these terms,
Reed's denial that he made these or "any similar" statements again being
unpersuasive. Malay testified that Reed reported Ascuaga's having said
Respondent "couldn't afford to pay what the union dues would be", later
amending that Reed recounted Ascuaga's saying Respondent could not
afford "union dues or what the Union wanted " Pressed about the mis-
conception of the bargaining process implicit in her recital, Malay testi-
fied. "It amounted in my mind to the same." To discredit Malay, an obvi-
ously sincere and otherwise impressive witness, when she perceived the
thrust of Reed's words with convincing accuracy although falling to dis-
tinguish in her mental computer between union dues and union demands,
would be to hold employees to a standard of sophistication in matters of
collective bargaining tending to the Act's nullification.
619 (1969), the projection to employees of adverse ef-
fects of unionization:
... must be carefully phrased on the basis of objec-
tive fact to convey an employer's belief as to the
demonstrably probable consequences beyond his
control .... [A]n employer is free only to tell
"what he reasonably believes will be the likely con-
sequences of unionization that are outside his con-
trol," and not "threats of economic reprisal to be
taken solely on his own volition.""'
A union's bargaining demands, even if beyond an em-
ployer's economic capability, do not become employer
obligations without the employer's agreement. They con-
sequently do not give rise to "demonstrably probable
consequences" beyond the employer's control, legitimiz-
ing projections of the sort conveyed by Reed.112 Hinky
Dinky Super Markets, 247 NLRB 1176, 1179 fn. 12
(1980); Sportspal, Inc., 214 NLRB 917 (1974).
G. The Allegedly Unlawful Remarks by John Ascuaga
Jr. in Late June 1982
1. Allegation
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) in late June 1982 when John Ascuaga Jr.
"told an employee that John Ascuaga Sr., was 'mad' at
employees who had not supported Respondent' s antiun-
ion position."
2. Facts
In the spring or summer of 1982, "within a week"
after Cheryl Valcarce had refused to sign an antiunion
petition being circulated by employees John Ascuaga Jr.,
and Jerry Erquiaga, young Ascuaga stated in the pres-
ence of several Rooster Room employees, including Val-
carce, that his father was "upset" with the employees in
that room, or "really mad," because of their nonsupport
of him.113 Valcarce supposed that he was alluding to the
matter of the petition, although he made no explicit ref-
erence to it; nor, apparently, to the Union.
For all the record shows, young Ascuaga had no su-
pervisory or managerial authority, and enjoyed no spe-
cial perquisites, when this incident occurred.
3. Conclusion
Without passing on their legality otherwise, it is con-
cluded that the remarks in question are not properly at-
tributable to Respondent and that Respondent, therefore
did not violate Section 8(a)(1) with regard to them.
111 The quotations within the quotation are from NLRB v. River Togs,
Inc., 382 F 2d 198, 202 (2d Cir 1967) See also McGraw Edison, 259
NLRB 702, 703 (1981); Patsy Bee, Inc., 249 NLRB 976, 976-977 (1980)
112 Moreover, as previously found, Knoll stated during the November
10 bargaining session that Respondent was not claiming an economic in-
ability to meet the Union's demands See text accompanying fn. 28, supra.
Reed's cryptic, not-to-worry postscript did not cancel the threatening
purport of the rest of his statement to Malay.
112 Valcarce was convincing and is credited that Ascuaga Jr. ex-
pressed himself in this manner He did not testify.
JOHN ASCUAGA'S NUGGET
That they were made by the son of Respondent's
president does not alone warrant attribution, and there
are no additional bases-such as management's having in-
stigated or ratified them-for bridging the gap. Van Pelt
Fire Trucks, 238 NLRB 794, 798 (1978); Fairland Market,
233 NLRB 708, 713 (1977). Compare Airborne Freight
Corp., 263 NLRB 1376 (1982); Aircraft Plating Co., 213
NLRB 664 (1974).
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(5) and (1), as found
herein, in each of these repects:
(a) After December 10, 1981, by failing to bargain in
good faith with the Union during contract negotiations.
(b) During employee meetings in mid-December 1981,
when John Ascuaga Sr. thanked the employees "for not
having a third party to help run the operation," told
them that Respondent had an "open-door policy" for
dealing with them on a "one-to-one basis" and did not
need "third parties," and stated that Respondent had
"never needed outside influence to solve any of [its]
problems and [would] handle them in the future."
(c) During an employee meeting in February 1982,
when Joseph (Lynn) Reed conducted a poll with regard
to the break-relief system.
Respondent additionally violated Section 8(a)(1) as fol-
lows:
(a) In April 1982, when Reza Zolgahr asked Cheryl
Valcarce how she felt "about the Union" and cautioned
her not to "get involved" with it or her job would "be in
jeopardy."
(b) On June 17, 1982, when John Marti photographed
employees attending the Union's press conference.
(c) On and after June 17, 1982, when Marti photo-
graphed those engaged in prounion picketing and hand-
billing.
557
(d) On June 17, 1982, when city police in the company
of Respondent's security guards demanded the cessation
of prounion picketing and handbilling on Respondent's
property; and, on July 3, 1982, when security guards ex-
pelled Pearl Staub from one of Respondent's parking
lots, thereby preventing her from writing down license
numbers and origins of tour buses.
(e) In late June 1982, when Reed told Lois Malay, in
effect, that employees would be paid for picketing
against the Union.
(f) In late June 1982, when Reed told Malay that John
Ascuaga Sr. had said Respondent would have to lay off
20 percent of the employees, which would include
Malay, because it could not afford the Union's demands.
Respondent did not otherwise violate the Act as al-
leged.
REMEDY
For nearly 10 years now , Respondent has evaded its
statutory obligation to recognize and bargain in good
faith with the Union . It has flouted the Board and the
courts Lwhile so doing, sorely testing the Board 's ability
under the Act to deal effectively with an employer de-
terminedly opposed to the collective -bargaining princi-
ple.
It is concluded, in these circumstances , that ' traditional
forms of relief would not sufficiently effectuate the poli-
cies of the Act and serve the public interest . Respondent
therefore should be required, as a means of restoring the
status quo ante , to reimburse the NLRB for all its costs
and expenses in the litigation of this matter, including
those incurred in the investigation, preparation, presenta-
tion, and conduct of this proceeding , such as salaries,
witness fees , transcript and record costs, and travel ex-
penses and per diem . Autoprod! Inc., 265 NLRB 331, 332
(1982).
[Recommended Order omitted from publication.]