Kings Castle and Casino

National Labor Relations Board - Board Decisions

Feb 23, 1972

195 N.L.R.B. 537 (N.L.R.B. 1972)

KINGS CASTLE AND CASINO 537
A.L.W., Inc. d/b/a Kings Castle and Casino ' and Sta-
tionary Engineers , Local 39, International Union of
Operating Engineers , AFL-CIO. Case 20-CA-6603
Counsel for the General Counsel and the Respondent filed
briefs'
Upon the entire record in the case,' including my observa-
tion of the witnesses, I make the following:
February 23, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 19, 1971, Trial Examiner Melvin J.
Welles issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing brief, and the General Counsel filed a brief in sup-
port of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, A.L.W., Inc. d/b/a Kings Castle and
Casino, Incline Village, Nevada, its officers, agents
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
' The name of Respondent appears in the caption as amended at the
hearing.
2 In affirming the Trial Examiner, we do not rely on his finding with
respect to the amount of snow which fell in the Lake Tahoe area during the
month of February 1971.
The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all' of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d
362 (C.A 3) We have carefully examined the record and find no basis for
reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Melvin J . Welles, Trial Examiner: This case was heard at
Reno, Nevada, on July 13 and 14, 1971, based on a charge
filed February 24, 1971 , and a complaint issued April 29,
1971. The complaint alleges that Respondent violated Section
8(a) (1) and (3) of the Act. Respondent filed an answer deny-
ing that it violated the Act, subsequently amended to claim
affirmatively that the alleged discnminatee, Steven Shinn,
was at all pertinent times a supervisor within the meaning of
the Act, and therefore not, entitled to the Act's protection.
195 NLRB No. 106
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the operation of a
resort hotel at Incline Village, Nevada . Its gross income from
its operations during the past year exceeded $500,000. Its
purchases of goods and supplies from points located outside
the State of Nevada amounted to more than $50,000 during
the past year . More than 75, percent of the guests at Respond-
ent's facility are transients who reside , at the hotel for less
than 30 days. Respondent concedes , and I find , that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) ofthe Act.
II THE LABOR ORGANIZATION INVOLVED
Stationary Engineers , Local 39, International Union of Op-
erating Engineers , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(1) by interrogating its employees concerning their union
membership, by threatening them with the loss of benefits
and with refusing to bargain if they selected the Union, and
by requiring employees to sign a letter withdrawing their
support from the Union; and that Respondent violated Sec-
tion 8(a)(3) and (1) by constructively discharging Steven
Shinn. Respondent asserts that alleged unlawful interroga-
tion was in fact a lawful polling of the employees. In all other
respects, Respondent asserts that the events did not occur as
the General Counsel's witnesses testified, raising a square
credibility question, and as to Shinn, that even if he were
constructively discharged (which Respondent denies) he was
a supervisor within the meaning of Section 2(11), and hence
not protected by the Act.
B. The Facts
King's Castle was purchased by Nathan Jacobson in 1969,
and began major construction in May of that year. In the
spring of 1970, when the construction was in the final stages,
a union representative asked Jacobson to sign a contract for
the maintenance department employees, then numbering
only two. He said he could shut down the construction work
if Jacobson did not agree. The union representative, Ekar,
returned in June, and made the same request, which was
again denied.
Steven Shinn, hired by the Company about May 11, 1970,
as a senior watch engineer, became, on July 1, senior engineer
(also known as shift supervisor), on the graveyard shift, when
the Company's operations as a resort and casino actually
began. Shortly after he was hired by the Company, Shinn had
a conversation with Edward Hansen, then working at another
resort, and subsequently hired by the Respondent as assistant
I On September 8, 1971, the firm of Levy and Van Bourg, of San Fran-
cisco, California, by its attorney Michael B Roger, entered an appearance
as counsel for the Charging Party in this case Counsel also indicated that
the Charging Party wished to adopt General Counsel's brief to me as his
own
' Absent opposition, General Counsel's motion to correct the transcript
is granted
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chief engineer , later to become chief engineer . In that conver-
sation Hansen said that the Union was going to talk to the
employees on June 15.'
In July 1970, Griffin , at that time a watch engineer , subse-
quently, about August 25, 1970, promoted to senior engineer,
contacted Ekar , who asked Griffin to get signed authorization
cards from the maintenance employees . Griffin received a
number of cards, including Shinn's, and mailed them to the
Union , which on October 1 wrote Jacobson again demanding
recognition . Jacobson called Hansen into his office and asked
Hansen if he knew any discontent among the employees in
the maintenance Department . He also told Hansen to call a
meeting of the employees.'
Jacobson then met with 12 to 14 (the testimony varies)
maintenance department employees .' The October 3 meeting
and a subsequent meeting on February 3, 1971, were very
similar in context, so much so that the testimony concerning
their contents could have placed statements at one which
were made at the other . My findings as to these meetings are
based on a amalgam of the testimony of General Counsel's
witnesses Zink , Griffin , and McFarland , and of Nathan
Jacobson . The differences between the testimony of the Gen-
eral Counsel 's witnesses and, that of Jacobson are not really
very great, but are of crucial significance with respect to two
of the 8 (a)(1) violations alleged . The General Counsel's wit-
nesses testified to the general effect that Jacobson said he
would not bargain with union goons; Jacobson-testified that
he said he was a "tough son-of-a-bitch" to bargain with. The
General Counsel 's witnesses testified that Jacobson threat-
ened to take away certain benefits, insurance and profit shar-
ing if the Union came in; Jacobson denied such threats. Al-
though the employees may well have received the impression
from Jacobson's "tough" talk that benefits would be taken
away and that Jacobson would not bargain , and, therefore,
testified accordingly , I am satisfied from my observation of
Jacobson that his testimony as to what he said was substan-
tially accurate except in one respect where I believe his mem-
ory was faulty, as to questioning of individual employees at
the February meeting (see below). As to alleged threat not to
bargain, the testimony of the same General -Counsel's wit-
nesses, that Jacobson said he would be a "tough negotiator,"
or "a tough guy to bargain with ," itself supports Jacobson's
testimony that he did not say he would not bargain.
It is clear , however, that at the October 3 meeting Jacobson
told the employees he had received a request for recognition,
that he was upset by this request ; and that he wanted to find
out if the Union 's claim was correct. He asked the employees
for a show of hands of those who had signed cards . He then
asked the employees if there were any other employees on
other shifts ' who had signed , cards. At that point he said he
would deny the Union 's request for' recognition . He then told
the employees that they would not benefit by having the
Union come in, and that he would fight the Union. He men-
tioned benefits that they were receiving and told them that
they would find it very hard to get an insurance plan like the
one at King 's Castle wherever they might go, that if they were
to accept the' Union they might make a big mistake. It is the
latter remarks that the employees might well have construed
Hansen was a member of the Union at that time . He confirmed this
conversation-adding that he had obtained the information from the then
chief engineer working at King 's Castle , Roy widell
The General Counsel contends that Jacobson 's testimony to the effect
that Hansen told him there was no discontent among the employees should
be discredited because there had been a layoff of one -third of the mainte-
nance department employees just a few weeks earlier and Hansen had
discussed unionization with one of the employees, Shinn , prior to this I am
inclined to credit Jacobson 's version of the conversation , however.
Apparently all the day-shift employees.
as being a threat to take away benefits. I have found , as noted
above, that Jacobson did not so threaten.
Following the October 3 meeting , there was no organiza-
tional activity by the Union until early in January 1971. At
that time Shinn went to Griffin and said that he thought more
people were interested in the Union because of the discharge
of employee Eickhoff. Griffin indicated to Shinn he "had
enough" and gave the cards previously obtained and some
new blank ones to Shinn. Shinn then solicited a number of
employees ' signatures on cards, and gave cards to McFar-
land, who returned his own signed card and a number of
other signed cards to Shinn . In the middle of January, Shinn
mailed these cards to the Union . The next day in a conversa-
tion between Griffin and Hansen , Hansen told Griffin that he
was aware Shinn had mailed the cards to the Union, that he
did not understand why the men wanted the Union , that all
they were doing was causing trouble , and they would be
financially better off if they went along with Mr . Jacobson
without a union . Hansen denied that he ever discussed
Shinn 's union activities with Griffin . I do not regard Hansen
as a credible witness, based both on his demeanor and on
aspects of his testimony which I discuss below. My finding as
to the above conversation is based on the credible testimony
of Griffin.
On January 29, 1971 , the Union filed a petition for an
election among the employees of the maintenance depart-
ment. A union representative , either Ekar or Viat, called
Jacobson either that same day or the next day, again demand-
ing recognition, and Jacobson again refused. Jacobson then
asked Hansen to set up another meeting of the maintenance
department employees.
On February 2, 1971, in the evening, Hansen called Shinn
at his home and told him not to come in for his scheduled
graveyard shift at midnight . Hansen said he had received a
call from Jacobson to get Shinn off the shift . When Shinn
asked why , Hansen said "because you have been pushing this
union deal ." Hansen said he would discuss the matter at 8
a.m., the next day.
When Shinn met Hansen , in the latter 's office at , 8 o'clock
the morning of February 3, Hansen repeated .that it was
because Shinn was pushing the union deal, and added that he
was going to put Shinn on the day shift and assign him every
nasty detail he could , as well as have a man with him 8 hours
a day to see that he did not let up . When Shinn said , "In other
words, you are supposed to work me like a slave labor?"
Hansen replied , "That's right." Shinn responded , "Well,
would you stick around under those conditions?" Hansen
said, "No." Shinn asked for the rest of the day off, and
Hansen replied that if Shinn left, Hansen would have to fill
out a termination slip stating that Shinn had refused to work.
Shinn punched out at 9 a.m., that day, telling Hansen that he
would wear his uniform and bring it back the next day be-
cause it was the only thing he had to wear at the time. The
morning of the next day Shinn came back to King's Castle
to pick up his pay and return the uniform . Hansen at that
time had a letter that he asked Shinn to sign , which said that
Shinn was quitting because he could not find it practical to
change shifts . Shinn told Hansen that he would not sign such
a letter because it was not true.
My findings with respect to the various conversations be-
tween Hansen and Shinn on the second , third, and fourth of
February 1971 are based on the credible testimony of Shinn,
as well as the testimony of Zink to the effect that Hansen said
to him on February 2 that he had to pull Shinn off the
graveyard shift because of a call from Jacobson regarding his
union activities . While the statements of Hansen to'Zink are
not directly corroborative of Shinn 's testimony, and Hansen
KINGS CASTLE AND CASINO 539
denied the conversations with Zink as related by Zink,' the
testimony of each does tend to support that of the other.
Griffin's testimony, adverted to above, that Hansen told him
Shinn had mailed the cards to the Union is also a factor
supporting the testimony of Shinn and Zink, in that it sug-
gests that Hansen was prone to mention such matters to the
employees. As already stated, I do not regard Hansen as a
credible witness. His version of the events of early February
concerning Shinn was itself in several respects so unlikely as
to bring into serious question his credibility.
Thus, Hansen testified that he did not tell Shinn, when he
called him at 8 p.m., on February 2, why he should not come
in at midnight and report the next morning, even though
Shinn asked for a reason. Hansen said that he would discuss
the matter with Shinn the next morning. Yet Hansen's tes-
timony does not indicate that he gave Shinn any reason the
next day. As the General Counsel persuasively argues, it is
extremely unlikely that Hansen would have changed some-
one's shift, and on very short notice, without giving that
person a reason for the transfer. Furthermore, Hansen tes-
tified that after Shinn requested the day off to think about the
matter,' Hansen said to Shinn "if you take the day off I will
consider you quitting." When asked by the General Counsel
why he said that, Hansen said, "I really couldn't tell you
why." This testimony alone goes far towards showing that
Respondent's conduct was desigend to get rid of Shinn, for
the combination of a sudden transfer, announced only 4
hours before Shinn's shift was to begin, and a refusal of time
of is hardly compatible with a business judgment to rotate
people in the interests of efficiency, or to take care of a snow
removal problem on the graveyard shift allegedly due to
Shinn. Indeed, Hansen, when asked whether as a normal
policy he gave more than 3 or 4 hours notice before telling
an employee that he was no longer to work on a shift, re-
sponded "depending on the circumstances." And when asked
whether he gives plenty of advance notice if he has time, he
responded "Yes." But there was absolutely no explanation as
to why in this instance such expedition was required.
Also on February 3, before the meeting with Jacobson,
Hansen told a number of employees in the maintenance de-
partment that they should write letters withdrawing their
support from the Union. I base this holding on the credited
testimony of employees McFarland, Zink, and Herb. Hansen
testified that he discussed such letters with 'some employees
after the meeting, as a result of some employees at the meet-
ing saying they wanted to get their cards back but could not,
and Jacobson testified that he indicated at the meeting that
employees should send a written memorandum, not a letter,
to the effect that they had asked the Union to return their
cards and the Union had refused to do so. Even assuming that
Jacobson may have so indicated at the meeting, this does not
mean that Hansen did not seek the letters earlier, and I
discredit Hansen's denial in this respect. Although Herb tes-
tified that when Hansen approached him he asked him to
write a letter but did not specify what the letter was to be
about, Herb did in fact write a letter saying that he did not
want to be represented by the Union, and' testified' that he
knew what Hansen meant. In view of the other testimony in
this record, that of McFarland and Zink, and the fact that
6 At the time he testified before me, Zink had left King's Castle to take
a position in the Department of the Interior at Conger National Park in
Moab, Utah. I found him a credible witness
' When asked on cross-examination whether Shinn told him that he
wanted an hour or so to think the matter over, Hansen responded, "No. He
requested the day off" I regard his "no" in this respect as going to the time
requested and not to whether the reason, that is, to think the matter over,
was given to him by Shinn.
this conversation took place shortly before the meeting called
by Jacobson for the very purpose of discussing the Union's
request for recognition and petition filed with the Board, I
have no difficulty concluding that Hansen's conversation
with Herb concerned writing a letter indicating he did not
want the Union to represent him.
About noon on the same day, February 3, another meeting
of the maintenance department employees was held in Jacob-
son's office. After indicating his surprise that the "union
thing" was still going on, and telling employees he had
another letter from the Union claiming to represent the
majority of the employees, Jacobson asked for a show of
hands of those who had signed cards before October and
those who had signed since then. Following the show of
hands, Jackbson spoke to individuals and asked them why
they signed cards. Although Jacobson testified that he did not
so ask individuals, I believe that his memory was faulty in this
respect, and credit employee Griffin's'testimony that he did
so. Jacobson spent the rest of the meeting talking to the
employees about his feelings concerning unions. He conced-
edly spoke in a loud tone and used quite a few obscenities
during his talk. As indicated above, I credit Jacobson's ver-
sion of what he said at this stage of the meeting, and conclude
that he did not tell the employees that he would not bargain
with the Union if they selected one, and that he did not
threaten to withdraw benefits from the employees if they
selected a union.
C. Concluding Findings
1. The 8(a)(1)
As noted above, I have found that Jacobson did not
threaten either to take away benefits or that he Would not
bargain if the Union were selected. Accordingly, I dismiss
these allegations of the complaint.
I find, however, that the request by Jacobson for a showing
of hands by the employees at both the October 3, 1970, and
February 3, 1971, meetings, and his questioning of individu-
als at the February 3 meeting, constituted coercive and un-
lawful interrogation, and that Respondent thereby violated
Section 8(a)(1) of the Act. I also find that Hansen's requests
to a number of employees to sign letters withdrawing from
the Union were similarly violative of Section 8(a)(1) of the
Act.
As to the requests for a showing of hands, Respondent
argues that the circumstances were such as to make the poll-
ing of the employees legitimate under the principle set forth
by the Board in the Struksnes case (Struksnes Construction
Co., 165 NLRB 1062, 1063.) The facts of this case, however,
demonstrate quite the contrary. Thus, although Respondent
may well have been motivated, in asking for a show of hands,
by a desire to ascertain whether or not the Union had a
majority, the method of polling the employees, far from com-
porting with the Struksnes standards, clearly was conducted
in disregard of two of the safeguards set forth in that case.
First, there were no assurances against reprisal given to em-
ployees. Second, the employees were not polled by secret
ballot. Although Respondent argues that the fact that no
reprisals were taken after the first meeting was a guarantee to
the employees that no action would be taken against them in
connection with the poll at the second, such argument would
in no event apply to the first meeting itself, and in any event
I do not regard the lack of actual reprisals as meeting the
Struksnes criterion that the Employer give assurances against
reprisals. Respondent argues further that since Jacobson did
not know the names of the men at either of the two meetings,
the requirement of secrecy was essentially met. This argu-
ment ignores the fact that Hansen, who was at both meetings,
did know all of the men. And even if Hansen had not been
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there, the fact that the questioner does not know the names
of the people he is questioning is hardly the equivalent of the
secret ballot required by Struksnes.
The requests by Hansen that employees sign letters with-
drawing from the Union and submit them to management,
particularly when viewed with the unlawful polling of the
employees at the meeting held shortly thereafter, and the
constructive discharge of Shinn at virtually the same time,
constitute clear violations of Section 8(a)(1) of the Act. Davis
Transport Company, 169 NLRB 557, 559; Phil-Modes, Inc.,
159 NLRB 944, 960.
2. The discrimination against Shinn
The facts found above clearly establish that Shinn was
constructively discharged because of his activities on behalf
of the Union. Hansen's statements to Shinn over the tele-
phone on February 2, and again the next morning, alone
suffice to establish a violation of Section 8(a)(3), for Hansen
told Shinn that he was being taken off the graveyard shift
because he had been "pushing this union deal," and he added
the next morning that the reason for the transfer and for the
assignment to Shinn of every nasty detail he could give him
was "the union deal." Hansen's earlier remarks to Griffin
about Shinn's activity in procuring union cards, his contem-
poraneous remark to Zink about Shinn being removed from
the graveyard shift because of his union activity, and'his later
remark to Zink several weeks after Shinn left, all confirm
Respondent's motivation.
It is true, as noted above, that Hansen denied making these
statements, and instead claimed that the transfer was business
motivated, both in terms of a desire to rotate the supervision
among the shifts in keeping with a company policy of rotation
in other departments,' and in terms of the Company's dissatis-
faction with the performance of the graveyard shift on snow
removal. Analysis of these claims not only refutes them, but,
in view of the timing of the action taken, immediately after
the union petition, and just before the meeting conducted by
Jacobson, actually supports the General Counsel's position
that Shinn was discriminatorily discharged.
Thus, as noted above, a policy of rotating the heads of
departments or of supervisors hardly required the extreme
haste with which Respondent attempted to change Shinn
from the graveyard shift to the day shift. Shinn was expected
in at midnight, and at 8 p.m., just 4 hours earlier, he was
called by Hansen that,he should not come in then, but should
come in on the day shift the following morning. Furthermore,
at that time Hansen had been unable to get a different senior
engineer to transfer and was intending to have an employee
who was not a senior engineer on another shift take over the
graveyard shift. Hansen was unable to give any reason for
such haste.
The claimed justification for the transfer that Shinn and his
crew, which at that time consisted of only two men, was not
proficient in snow removal and was thereby causing King's
Castle problems, again hardly explains the haste with which
the Company sought to effect this particular change. The
time was February, and although I have no evidence in this
record as to the snowfall in and around Lake Tahoe at that
time of year, it does not seem likely that a heavy snow season
was imminent. Rather, it is much more likely that the snow
season had either come to an end or was fast approaching an
end.
The fact that Hansen would not give Shinn even a day off
to consider such an abrupt change in his scheduling, with
Hansen conceding that he could not even think of a reason
why he would not give, him a day off for that purpose at that
time, similarly tends to support, the General Counsel's posi-
tion that Respondent's motive was discriminatory in nature,
and that the transfer was intended to get rid of Shinn. Indeed,
even had Hansen not told Shinn the reason. for the action
taken, a very strong case of discriminatory motivation would
be made out on this record.
Respondent argues in its brief to me that Shinn's testimony
as to what Hansen told him, both on the evening of February
2, and the morning of February 3, is hearsay. It is true, of
course, that Shinn's testimony in this respect does not estab-
lish that Jacobson told Hansen what Shinn testified Hansen
told him. However, Hansen was at the time the department
head, and his statement to Shinn clearly establishes Respond-
ent's knowledge, even if it does not establish Jacobson's
knowledge, of Shinn's activities. The statement also estab-
lishes Hansen's knowledge of Shinn's union activities, even
though it does not show how he obtained such knowledge.
Similarly, Griffin's testimony about what Hansen told him
concerning Shinn's having mailed cards to the Union some
time in January shows that Hansen was aware of" Shinn's
activities on behalf of the Union. In short, I am satisfied on
the basis of the testimony in this case that Respondent con-
structively discharged Shinn because of the latter's union
activities. If, as Respondent contends, Shinn was a supervisor
within the meaning of the Act, its conduct in this respect
would not be covered by the Act. I turn, therefore, to the
question whether or not Shinn was a supervisor.
Shinn was hired as a senior watch engineer on May 11,
1970, by then Chief Engineer Roy Widell. He became senior
engineer on the graveyard shift about July 1, 1970. At that
time he was changed from a monthly salary of $600' to an
hourly rate. Respondent's maintenance department operates
on a three-shift basis around the clock.
In charge of all three shifts is a chief engineer, Hansen at
times material to this proceeding, and an assistant chief engi-
neer. From September 1970, after a layoff occurred among
the maintenance department employees, to the time of the
hearing herein, there were only two employees other than
Shinn on the graveyard shift. As each employee worked a
5-day week, all three were on duty at the same time only once
a week-and on two of the shifts only the watch engineer and
the junior engineer were on duty. The maintenance depart-
ment head, Hansen, described the duties and functions of a
shift supervisor as follows:
They run the shift. They see that it is operating properly,
and they maintain logs and records. They have the right
to call a man over for overtime. They have the right to
hire or fire for insubordination, drunkenness, or some-
thing in this order. They are basically, responsible for the
operation of this individual shift.
Respondent's contention that Shinn and other senior engi-
neers are supervisors within the meaning of the Act rests to
a large extent on the testimony of Hansen as to their duties
and functions, including the fact that there is no other super-
visor on either the swing or the graveyard shift, and on what
Respondent claims is record evidence to demonstrate that
Shinn exercised the kind of authority that Hansen testified he
had. Thus Respondent claims that the record shows that (1)
Shinn made determinations as to manpower needed, utilizing
outside contractors when he believed necessary and request-
ing the assistant chief engineer to provide him with extra
help; (2) Shinn effectively recommended that raises be put
through for employees under him; (3) he directed employees
to work overtime; (4) he venfied timecards; (5) he advised his
superior how men on the shift were getting along; (6) he
evaluated employee job performance for Chief Engineer
Hansen; and (7) he maintained the log book.
The record either does not support these claimed examples
of Shinn's authority, or strongly suggests that the exercise of
it was relatively ineffective, primarily routine in nature, and
KINGS CASTLE AND CASINO 541
always subject to independent review and evaluation by the
chief engineer or the assistant chief engineer. To begin with,
as noted above, despite the fact that Shinn "ran the shift," he
had only one other employee with him on the shift 4 of his
5 working days. This is not, therefore, the kind of situation
where you have a group of employees who would be super-
visorless if Shinn were not found to be a supervisor. Further-
more, on the two shifts per week when Shinn is not working,
there is admittedly no one on the job who is a supervisor
within the meaning of the Act.
Significantly, Hansen himself testified that he did not tell
Shinn about any authority he had in matters such as hiring
and firing and other personnel actions. His precise answer to
the question whether he did tell Shinn about his authority to
hire or fire was, "per se, I don't believe so. I have always been
under the stipulation that the man in charge of the shift is the
one that has the powers. This is the way we operated at the
Sahara [the place Hansen had previously worked] and I don't
know whether I passed this on to him or not."
Turning to the specific examples adverted to by Respond-
ent, as to the first, the only outside contractor utilized by
Shinn was the company that installed the elevators, which
was always on 24-hour call at King's Castle, and Shinn had
standing instructions to call that compnay when elevator
repairs could not be handled by the maintenance crew. In
other types of emergencies Shinn would have to call the
assistant engineer for permission to get extra help, and the
assistant engineer would tell him whom to call. As to his
recommendations with respect to raises, the testimony shows
that Shinn only recommended one employee, Ron Herb, for
a raise during his tenure. Yet, although the recommendation
was made in November 1970, Herb had still not received a
raise when Shinn left Respondent's employ February 3, 1971.
Although the record does show that a raise for Herb was put
through on February 9, 1971, I do not regard this as an
"effective recommendation" by Shinn. Respondent's claim
that Shinn directed employees to work overtime seems to rest
on Shinn's answering "I did" to the question "Who advised
Herb that he was going to stay over?" However, the rest of
the testimony in connection with this particular incident is to
the effect that Shinn was required to work his people overtime
on only one occasion, to clean snow off the roof around
ventilation inlets, and the decision to keep the men overtime
on that occasion was made by Frank Cano, the assistant chief
engineer. It is plain that Shinn was no more than a conduit
to Herb of Cano's direction that'both Shinn and Herb work
overtime. Both the verification of timecards and the keeping
of the logbook by Shinn are primarily ministerial functions,
not requiring any particular discretion and not constituting
indicia of supervisory authority. As to Shinn's advice to his
superiors as to how men on his shift are progressing or getting
along, the evidence shows only one incident that remotely
verges on giving advice in this regard. The testimony suggests
that Shinn was asked how he was getting along with a par-
ticular individual not so much because of any supervisory
authority Shinn had over him, but merely as another em-
ployee on the shift.
The record is clear and uncontradicted that Shinn did no
hiring or firing:' he was not consulted when an employee was
added to his shift at one time, nor when the layoff occurred
in September 1970.9 Chief Engineer Hansen's own testimony
indicates the degree of control exercised by the chief engineer,
and corresponding lack of any real authority on the part of
the shift supervisors with respect to personnel actions. For
when Griffin complained about an employee who had a habit
of disappearing, Hansen did not remove him until "after
making a survey and talking to several people." Hansen also
testified that on any discharge recommendation by a senior
watch engineer he would normally make an independent
investigation, would talk to the person involved, and would
talk to other people on the shift to evaluate the performance
of the person involved.
With respect to the direction of employees, it is clear from
the testimony that the chief engineer decides what assign-
ments should be done by each shift. It is also clear that much
of the "assigning" of work on the swing and graveyard shifts
is routine, involving regularly done tasks. Further, anyone on
a shift could receive and respond to emergency calls without
telling the senior engineer. Although the senior engineer
could choose which employee to send to respond to a call for
a maintenance man, as noted, on all except one night a week
Shinn's "choice" was not very meaningful, as from Septem-
ber 1970 to the date he left Respondent's employ, only one
other employee was there. In sum, the credible testimony
does not establish that Shinn possessed to any significant
degree the criteria for "supervisor" set forth in Section 2(11)
of the Act. His authority with respect to personnel matters
was virtually nonexistent, and his direction of other em-
ployees was essentially routine in nature, and was normally
limited to one other employee. I find accordingly that Shinn
was at all material times an employee within the meaning of
Section 2(5) of the Act. As I have concluded that he was
constructively discharged because of his union activities, I
find that Respondent thereby violated Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. By constructively discharging Steven Shinn on February
3, 1971, because of his activities on, behalf of the Union,
Respondent engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(3) and (1) and 2(6)
and (7) of the Act.
2. By coercively interrogating its employees on October 3,
1970, and February 3, 1971, and by requesting its employees
to send letters withdrawing their support for the Union, Re-
spondent engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and 2(6) and (7)
of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist from
its unfair labor practices, that it offer reinstatement to Steven
Shinn, with backpay, computed as provided in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716, for losses sustained by Shinn as a result
of his constructive discharge on February 3, 1971.
ORDER'°
Rspondent King's Castle Hotel and Casino, its officers,
agents, successors, and assigns, shall:
' Although Griffin, senior engineer on the swing shift, "fired" a man for
being at the gaming table and intoxicated when he was supposed to be
working, even then, Gnffin told Chief Engineer Hansen about the incident,
and Hansen told Griffin to fire him
' He did not even know of the layoff until it occurred while he was on
his day off
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided, in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discharging any employee for engaging in concerted
activities protected by Section 7 of the National Labor Rela-
tions Act.
(b) Interrogating employees concerning their union mem-
bership or activities in a manner interfering with , restraining,
or coercing employees in the exercise of their rights under the
Act.
(c) Soliciting employees to withdraw from the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Steven Shinn immediate and full reinstatement to
his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of earnings he may have suffered, in the manner set forth in
the section hereof entitled "The Remedy."
(b) Notify Steven Shinn if presently serving in the Armed
Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examining or copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its hotel at Incline Village, Nevada, copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 20,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are not
altered, defaced or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
days from the receipt of this Decision, what steps the Re-
spondent has taken to comply herewith."
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20 in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any employee for engaging in
union activities.
WE WILL NOT question employees about their union
activities.
WE WILL NOT solicit employees to withdraw from the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights under Section 7 of the Act.
WE WILL offer Steven Shinn his former job and pay
him for losses he suffered as a result of his discharge.
WE WILL offer Steven Shinn immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, and pay him
for losses he suffered as a result of his discharge.
KING'S CASTLE
HOTEL AND CASINO
(Employer)
Dated By
(Representative) (Title)
WE WILL NOTIFY immediately the above-named individual if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Training and Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, 13050 Federal Building, Box 36047, 450
Golden Gate Avenue, San Francisco , California 94102, Tele-
phone 415-556-3197.