Mapes Hotel, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1977

230 N.L.R.B. 61 (N.L.R.B. 1977)

MAPES HOTEL, INC.
Mapes Hotel, Inc. and Hotel-Motel-Restaurant Em-
ployees & Bartenders Union, Local 86, Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO. Cases 20-CA-9803, 20-CA-
9853, 20-CA-9869, 20-CA-9897, 20-CA-9905,
20-CA-10037, and 20-CA-10216
June 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 7, 1977, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Mapes Hotel,
Inc., Reno, Nevada, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
I Respondent asserts that the Board should refuse to assert jurisdiction
over the gaming industry under the same rationale by which we decline to
assert jurisdiction over the horseracing industry. For reasons previously
expressed, we do not consider the two industries analogous. See El Dorado
Inc., d/b/a El Dorado Club, 151 NLRB 579 (1965).
2 In the absence of exceptions thereto, we adopt pro forma the
Administrative Law Judge's conclusion that the discharge of Anna Diane
Parker did not violate Sec. 8(aX3) and (I) of the Act, and that the
interrogation of Margaret Tuma by Respondent's housekeeper, stipulated to
be a supervisor under the Act, did not violate Sec. 8(aXI) of the Act. In any
event, we would not adopt the Administrative Law Judge's reliance on
Bonnie Bourne, d/b/a Bourne Co. v. N.LR.B., 322 F.2d 47 (C.A. 2, 1964).
Additionally, we find in agreement with the Administrative Law Judge that
Respondent did not violate Sec. 8(aX3) and (I) of the Act by failing to hire
Margaret Tuma in view of the fact that Tuma was a nonemployee applicant
for a supervisory position. Pacific American Shipowners Association, 98
NLRB 582, 597-598 (1952). In this light, we find it unnecessary to resolve
the dispute over whether or not Tuma had formerly been a supervisor while
she held the position of assistant housekeeper.
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
230 NLRB No. II
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBuRY, Administrative Law Judge: Based
upon charges and amended charges filed in the above cases
by Hotel-Motel-Restaurant Employees & Bartenders
Union, Local 86, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, hereinafter
referred to as the Union, an amended consolidated
complaint issued on September 24, 1975.' This amended
complaint alleges Mapes Hotel, Inc., Respondent herein, to
have violated the National Labor Relations Act, as
amended (herein Act), by (1) interrogating an employee
from mid-November through December 1974 regarding the
employee's support for the Union; (2) by implementing
and discriminatorily enforcing an unlawful no-solicitation
rule from November 12, 1974, in violation of Section
8(aXI) of the Act; and (3) by discharging employee Anna
Parker on December 6; and (4) by laying off employee
Margaret Tuma on February 3, 1975, and thereafter
refusing to reemploy Tuma, because of their respective
interests and activities on behalf of the Union in violation
of Section 8(aX3) and (1) of the Act. Respondent's answer,
filed on October 1, 1975, denied the commission of any of
the alleged unfair labor practices.2
This hearing was first opened in Reno, Nevada, on July
26, 1976, Administrative Law Judge James Jenson presid-
ing. Without evidence ever having been received an
indefinite continuance was granted because of the unex-
pected illness of counsel for the General Counsel. Pursuant
to due notice, the hearing was reopened in Reno on August
10 before me and evidence taken on August 10, 11, 12, and
13, 1976.
Upon the entire record and from my observations of the
demeanor of the witnesses I hereby make the following: 3
Charges in the above-listed cases were filed as follows: (I) in Case 20-
CA-9803 on December 16, 1974, and amended on December 17, 23, and 30.
1974, January 2 and 3, May 8, and June 2, 1975; (2) in Case 20-CA-9853 on
January 10, 1975, and amended on June 16. 1975; (3) in Case 20-CA-9869
on January 15, 1975, and amended on June 16, 1975; (4) in Case 20-CA-
9897 on January 23, 1975, and amended on June 16, 1975; (5) in Case 20-
CA-9905 on January 27, 1975, and amended on May 6, and June 24, 1975;
(6) in Case 20-CA-10037 on March 7, 1975, and amended June 19, 1975; (7)
in Case 20-CA-10216 on May 6, 1975, and amended on June 19, 1975.
Based on these numerous charges which included multiple-party respon-
dents in addition to the Mapes Hotel, an order consolidating cases and a
consolidated complaint was issued on August 27. 1975, by Natalie P. Allen.
the Regional Director for Region 20 in San Francisco. Thereafter, on
September 4, 1975, counsel for each of the various named respondents
served a motion to sever and requested separate trials for each of the
respective respondents. On September 18, 1975, an order issued by the
Regional Director for Region 20 granted the Respondent's motion for
severance. As indicated in the text above, the amended consolidated
complaint relating to the charges against Mapes Hotel was then issued and
served on this single Respondent on September 25, 1975.
2 A number of minor amendments to the complaint were permitted at
the beginning of the hearing and Respondent stipulated to certain data
regarding interstate commerce and supervisor status of several employees.
The real issues were joined as set forth in the text above.
3 The facts found herein are based on the record as a whole, upon my
(Continued)
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The first issue raised by the Respondent which must be
resolved relates to assertion of jurisdiction by the Board.
The Mapes Hotel, herein Respondent, is a corporation
engaged in the operation of a large hotel that has on its
premises three restaurants, three banquet rooms, two bars,
and a large casino area for gambling. During the past
calendar year in the course and conduct of its business
operations, Respondent received gross revenues in excess
of $500,000. During that same period Respondent admitted
receiving goods and materials valued in excess of $10,000
which originated outside the State of Nevada.
While Respondent's counsel has admitted these facts,
nevertheless counsel argues logically and vigorously that
assertion of jurisdiction by the Board in this instance is
arbitrary and capricious and thus contrary to law.
Respondent submitted several exhibits 4 showing the close
scrutiny of the State of Nevada over the gaming operation
and argues the similarities between gaming and the
dogracing and horseracing operations wherein the Board
has refused to assert jurisdiction.
The Board has heretofore considered the argument that
the gambling industry is no different from horseracing and
has also given consideration to the extensive state regula-
tions of the gaming industry by the State of Nevada in El
Dorado Inc., et al., 151 NLRB 579, 583-584 (1965). In that
case the Board said:
The Employers urge that the Board follow its
decision in Walter A. Kelley, [139 NLRB 744] where,
under Section 14(c), we declined to assert jurisdiction
over the horse racing industry. However, the Kelley
case does not require us to forsake jurisdiction herein.
In Kelley, it was our conclusion that "The Board's
limited resources can be better devoted to industries
and operations where labor disputes are likely to have a
more substantial impact on commerce than disputes in
the racing industry." In the instant matter, as we have
already sought to make clear, a labor dispute in an
industry which directly employs a large number of
employees in the dominant industry in the State and is
dependent upon substantial and closely related inter-
state activity could disrupt commerce substantially.
Upon consideration of all the foregoing, we conclude
that it would effectuate the purposes of the Act to assert
jurisdiction over the Employers whose gross annual
revenue from gambling operations is in excess of
$500,000. [Footnotes omitted.]
The Board has more recently been presented with the
issue of whether to assert its jurisdiction over the opera-
tions of a jai alai fronton adjacent to the MGM Grand
Hotel in Las Vegas, Nevada, in Grand Resorts, Inc., 221
observation of all of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits with
due regard for the logic of probability, the demeanor of the witnesses, and
the teaching of N.LR.B. v. Walton Manufacturing Company & Loganville
Pants Co., 369 U.S. 404 (1962). As to those witnesses testifying contrary to
the findings herein, their testimony has been discredited, either as having
been in conflict with the testimony of credible witnesses or because it was in
NLRB 539 (1975). In Grand Resorts the Board applied the
El Dorado rationale and concluded (at 540) that: "In the
circumstances of this case we see no reason why the
foregoing rationale should not be applied here and
therefore reject the contention that we should decline
jurisdiction because of the extensive degree of regulation
exercised by the State over the Employer's jai alai
operation."
As indicated earlier, although counsel for Respondent
has presented an interesting and logical argument as to
why jurisdiction should not be asserted by the Board in this
case, nevertheless, because of the Board's clear and
unmistakable assertion of jurisdiction over similar gaming
operations, I am bound by precedent to find that
Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
policies of the Act for the Board to assert jurisdiction
herein.5
I1. THE LABOR ORGANIZATION INVOLVED
At the hearing the Respondent's counsel stipulated to the
allegation contained in paragraph IV of the complaint and
I herewith find the Union to be, and at all times material
herein to have been, a labor organization within the
meaning of Section 2(5) of the Act.
1II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. What were the true motivating factors which caused
the discharge of Anna Diane Parker?
2. What caused the termination of Margaret Tuma
from her employment at Respondent's hotel and was she
unlawfully denied reemployment because of her union
activities?
3. Did Respondent, through the activities of the head
housekeeper, Catherine Appleberg, interrogate an employ-
ee in violation of Section 8(aX 1) of the Act?
4. When was Respondent's "no-solicitation rule" estab-
lished and made known to the employees and does it
infringe upon the employees' rights of self-organization in
violation of Section 8(a)(1) of the Act?
B. The Evidence
1. As related to Anna Parker
Anna Diane Parker was first employed by Respondent as
a hostess in the coffeeshop on February 2, 1974. At the
time she was hired, Donovan was manager of the
coffeeshop and remained so for a period of approximately
3 months, after which Jack Seaver was manager of the
coffeeshop; after Seaver was promoted, Marchesi became
the coffeeshop manager. It was during the time Marchesi
and of itself incredible and unworthy of belief. All testimony and exhibits
have been reviewed and weighed in light of the entire record.
4 See Resp. Exhs. 24-27.
5 See also The Anthony Company, d/b/a El Dorado Club, 220 NLRB 886
(1975); Sparks Nugget, Inc., d/b/a John Ascuaga's Nugget, JD-SF-284-76
1230 NLRB 275 (1977)1, and cases cited therein; Tahoe Nugget, Inc., 227
NLRB 357 (1976).
62
MAPES HOTEL, INC.
was the coffeeshop manager that Ms. Parker was dis-
charged on December 6, 1974.
Ms. Parker testified that she became a member of the
Bartenders and Culinary Workers Union, Local 86, in 1973
and continued as a member during the period of her
employment with the Respondent. 6
On December 6, 1974, according to the testimony of Ms.
Parker, she received a telephone call from Marchesi's
secretary asking her (Parker) to come to Marchesi's office
at the conclusion of her shift. There, in the presence of the
secretary, Daphne Pettel, Marchesi told her, "Ms. Parker, I
am letting you go because you are working for the Union,
you are on the Union payroll, and you are soliciting for the
Union." According to Ms. Parker, she protested and told
Marchesi he was mistaken, but to no avail; she was
discharged.
There is no serious dispute between the parties or in the
evidence presented to the court that Respondent has
consistently maintained that Ms. Parker was discharged
because of violating the Company's no-solicitation rule.
Raelene Houston, a waitress formerly employed by the
Respondent, testified that in October, shortly after she was
employed, she engaged in a conversation about the Union
with Ms. Parker. At the time she (Houston) was on duty
and Ms. Parker was seated at the coffeeshop lunch counter
just before assuming her working duties for the Respon-
dent. Pursuant to that conversation, Houston later received
a union card from Ms. Parker and, after completing the
card, she returned it with part of the first month's dues to
Ms. Parker, again during a period of time she (Houston)
was on duty. Houston also testified that, at the request of
Marchesi, she had given him a written statement generally
setting forth this information to which she testified (see
Resp. Exhs. 30 and 31). It was while armed with this kind
of information against Ms. Parker that Marchesi proceeded
to discharge Parker on December 6, 1974. It should be
noted that Mary Ann Lee [sic] thought she reported this
incident a week or so after it occurred - late October -
but Parker was not fired until December 6.
The General Counsel contends the discharge of Ms.
Parker was a violation of the Act because (1) the discharge
occurred pursuant to a presumptively invalid no-solicita-
tion rule; (2) the discharge violated the Act because there
was no showing that the solicitation incident interfered
with either work or discipline; and (3) the discharge of Ms.
Parker constituted discriminatory enforcement of the no-
solicitation rule.
If I were to accept as credible the reason advanced by the
Respondent as the cause of the discharge of Ms. Parker,
then it would be necessary to more deeply consider and
s Because of the numerous charges that have been filed against the many
casinos and restaurants in the Reno-Lake Tahoe area (see the numerous
charges herein and appearing as part of the General Counsel's formal papers
in Exh. l(a)-l(pp)), and the multiple complaints that have issued, it is rather
common knowledge that, following the withdrawal of a number of
employers from the Reno Employers Council, a period of unsettled labor
relations has followed. The pnmary union involved has accused the various
respondents of assuming an antiunion attitude and generally seeking to
evade and escape their collective-bargaining responsibilities. The most
recently expired collective-bargaining agreement which was applicable to
this Respondent covered the period for 1972 75 and expired on February
15. 1975.
7 The issue regarding the validity of Respondent's "no-solicitation rule"
analyze the contentions made by the General Counsel.7
However, I am convinced from all of the testimony that
Marchesi seized upon this pretextual reason for discharging
Ms. Parker in order to give some aura of respectability to
his real reason - namely; to hire his girlfriend, Candy
Kanada.
While Marchesi's conduct might very well be a violation
of the Federal Age Discrimination in Employment Act and
certainly is not conducive to good employee relations, it is
not violative of the National Labor Relations Act. I am
convinced of the accuracy of this determination as to why
Parker was discharged because of the following extremely
revealing and candid - albeit inadvertent - testimony of
Jack Seaver, the General Counsel's principal witness. At
the time of the discharge Seaver was the assistant manager
of the Respondent's operation. [Cross-examination of
Seaver by Magor.]
Q. Who is this Candy?
A. Candy Kanada was a Keno writer and runner at
the Mapes Hotel. Mr. Mapes felt that she was dating a
Teamster official and wanted her out of the hotel, and
he told Ken Sanders, "Get rid of Candy. She is a
troublemaker."
This is an assumption; I don't know; but Sanders
told Marchesi he had to get rid of Candy.
So, Marchesi put Candy to work; in Parker's place or
not, it was none of my business, I wasn't concerned
with it. Anyway, Candy went to work as the day
hostess.
JUDGE RASBURY: That occurred shortly after Ms.
Parker had been discharged, however.
THE WITNESS: No, sir. There was about a week there
that Marchesi knew that Candy was going to have to be
out of a job. You see, she worked with the casino
operation, not the hotel operation.
One day she pops up, Parker is gone and Candy is
working.
So, I went to Mapes. I said, "Look, we have got a
problem. We have got that redhead down there
working as a hostess, and she is going with Marchesi."
Marchesi had gone to the airport, him and her,
drunk, and raised heck out there. The chef and Kramer
came to the office and were upset at the way Candy
handled herself down there.
So, Mapes ordered Marchesi to get rid of Candy, and
Marchesi couldn't do it; he would not do it.
So, four or five days went by and I went up and I
told Mr. Mapes, "Look, she is still here. She is a
troublemaker; the employees in the restaurant are
shall be discussed later herein and will be found under sec. I11. B. 3.
Moreover, Respondent's contention that Parker had the authority to hire
and fire and thus is a supervisor under the Act is supported by numerous
personnel transaction forms bearing her signature as the initiating
supervisor (Resp. Exhs. 2-14). This evidence is persuasive, even though
General Counsel argues Parker's role was a routine ministerial act. The
testimony of Leary, the hotel manager at the time of the hearing, lends
further support to Respondent's contention when he testified regarding the
duties and authority of the hostesses. Had I not deemed it important and
significant to identify the real reason for Parker's discharge, I would have
dismissed the allegation relating to her on the basis that she was a supervisor
and not an employee under the Act.
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming up to me. Why don't you get involved in this?
You are our boss."
He said, "I am not your boss. You have a
department head, Marchesi."
I said, "Hell, he is going with her. What can you do
with him? She is a little Hitler."
Q. (By Mr. Magor) Is this what you told Mr.
Mapes?
A. Yes.
Q. Tell us what else you told him.
A. He called Marchesi in and he said, "I -"
Q. Were you present?
A. Yes, I was right there.
Q. All right. Go on.
A. He said, "I want her out, gone. Do you
understand?" Vince's head was down like this, and he
said, "Yes, sir." That was all: "Dismissed, both of you."
So we walked out - Ray Brown was there also, Mr.
Magor.
We walked out of the office. I walked down to my
office, Marchesi went in with Brown and said, "I want
to see the old man again."
He went back in, told Mapes he was giving him two
weeks' notice, and Mapes said, "You don't have to give
me two weeks' notice. Get out of here today." With
that, they both left.
Q. That is Marchesi and Candy?
A. Yes.
Q. Did Marchesi discharge Parker so he could put
Candy in the coffee shop?
A. I cannot truly answer that, Mr. Magor. That is
what Parker told me, but I don't know that.
Q. When did Parker tellyou?
A. The next day.
Q. When you called her up and told her to come
down and meet you?
A. Yes, I asked her what the problem was.
Q. What did she tell you?
A. She said he wanted to put his girlfriend to work.
Q. This is what Parker told you?
A. Yes.
Q. Did she say anything else?
A. She may have, Mr. Magor - concerning that?
Q. Did she ask you why was she discharged?
A. That is what she told me.
Q. So you asked her why she was discharged, and
Parker told you -
A. That Marchesi wanted to put his girlfriend to
work.
Q. Marchesi wanted to put his girlfriend to work; is
that right?
A. Yes, sir - I cannot say "yes, sir" to that, Mr.
Magor, but I think that was it; all right?
Q. This is what Parker told you?
A. Yes, I think that is what she told me.
[Emphasis supplied.]
The accuracy of the above-quoted testimony as revealing
the true motive for Parker's discharge is supported by the
I The complaint did not allege Respondent's failure to rehire Parker as a
violation and at the hearing Parker testified she was not interested in
reinstatement or further employment with Respondent.
testimony of George Psaros who stated that he heard Vince
Marchesi tell Mike Luonga - at that moment the
coffeeshop manager - to find a reason to get rid of Diane
Parker because he (Marchesi) wanted to bring in his own
people.
On the basis of this undenied and undisputed candid
testimony which I have concluded reveals the real reason
why Ms. Parker was discharged, I shall recommend
dismissal of that allegation contained in the General
Counsel's complaint at paragraph VII (a), alleging the
Respondent to have discharged Ms. Parker because of her
membership in or activities on behalf of the Union.8
2. As related to Margaret Tuma
a. Interrogation and payroll "severance"
Margaret Tuma was first employed by the Respondent
as a waitress in July 1973 and worked in that capacity until
she voluntarily severed in July 1974. After working at the
El Dorado, another restaurant and casino in the Reno area,
Tuma went to work for The Money Tree on September 24,
1974, as a waitress. (The Money Tree is a separate and
distinct corporation from the Respondent herein, although
the record indicates that the ownership of The Money
Tree, Mapes Enterprises - which apparently has the
gambling and restaurant concessions at the Reno, Nevada,
airport - and the Mapes Hotel is the same for all three
corporations.) In mid-November 1974, while working as a
waitress at The Money Tree, Tuma was asked by Jack
Seaver if she would be interested in the position as assistant
housekeeper at the Mapes Hotel. The parties stipulated
that on November 15, 1974, Tuma was "transferred" to the
Respondent and assumed the position as assistant house-
keeper. It was during this period of time - mid-November
1974 through December - that General Counsel has
alleged Margaret Tuma was interrogated by her supervisor,
Catherine Appleberg, concerning her union interests and
activities and allegedly laid off Margaret Tuma because of
her union activities. I am of the opinion that General
Counsel has not proven either of these allegations.
If it were necessary to do so, I would find that during the
period of time Margaret Tuma was the assistant house-
keeper she was a supervisor under the Act. I reach this
conclusion because the evidence and testimony is undis-
puted that (1) she was paid on the basis of a monthly
salary; (2) Respondent paid for and carried some form of
insurance on her as it did for other members of manage-
ment; (3) she assumed the duties of Catherine Appleberg
during her absence and directed the efforts of the maids
during that period of time; and (4) on at least one occasion,
she was the only person to sign a personnel transaction
form relating to the termination of a maid (Resp. Exh. 20).
However, regardless of her supervisory or employee status,
I can find nothing within her testimony relating to the
conversations she had with Catherine Appleberg that are of
an interrogative nature tending to interfere with, restrain,
or coerce Margaret Tuma in the exercise of rights
guaranteed in Section 7 of the Act.
64
MAPES HOTEL, INC.
Margaret Tuma testified that she had been a business
agent for the Union in 1972, during which time she had
become well known to many of the managerial employees
of Respondent because she was frequently in and out of the
hotel collecting dues, signing up new employees, and
generally handling the employees' grievances and the usual
duties associated with the administration of the labor
agreement. It is hard to conceive that under such
circumstances her membership, sympathies, and activities
on behalf of the Union were not fully known to the
Respondent at the time she assumed the position as
assistant housekeeper in 1974.
It is against this background that one must evaluate and
consider Tuma's own testimony as to how and in what
manner she was "interrogated" by Appleberg. For exam-
ple, Tuma testified:
Kathryn [sic] Appleberg said, "You are in culinary.
You have been in culinary all your life."
I said, "Yes."
Then she said, "You are no doubt Union."
I said, "Yes, that is right."
She said, "That is all right." She had been in Union
all her life.
Then she said, "What would you do in the event of a
strike?"
I said, "Well, Kathryn, [sic you could hardly expect
me to walk through a picket line. I have been a Union
member for over 30 years."
Another innocuous conversation between Appleberg and
Tuma was elicited by the General Counsel to the effect that
Appleberg had told Tuma about one of her (Tuma's)
friends being in to see her. On this occasion Appleberg told
Tuma that Charles Launius, a union business agent, had
been in the hotel inquiring concerning the whereabouts of
Tuma. On another occasion, according to Tuma, Apple-
berg asked her just how she (Tuma) had benefited from the
Union and, "How do you really feel about the Union?" to
which Tuma stated she replied, "Well, Kathryn, [sic] I
think if something gets too much power, too much money,
it could lead to a form of, like, dictatorship, and then bad
management will ensue. And if we have our union that
they can help us."
According to the testimony of Appleberg the subject of
the Union was first mentioned some 2 or 3 weeks after
Tuma was employed as an assistant housekeeper and it
stemmed from the fact that she had on one or two
occasions seen strangers in the housekeeping area of the
hotel which she (Appleberg) knew to be against the hotel
rules. Appleberg told Tuma if she saw any nonemployees
in areas of the hotel where they were not permitted that she
should report it to Appleberg immediately. Appleberg also
acknowledged that on one occasion she spoke to Tuma
about collecting dues during working hours because she
had learned that one of the night maids was leaving her
dues for "Maggie" (Tuma) to take care of. Catherine
Appleberg appeared to me to be an extremely capable,
hard-working, conscientious, and honest individual who
sought to convey to the court exactly the relationship that
9 Tuma acknowledged having received $50 from the Union in December
existed between Margaret Tuma and herself. This relation-
ship is exemplified by the following portion of the
transcript testimony which occurred during questioning of
the witnesses by Respondent's counsel.
Q. Did you have a conversation with Maggie Tuma
at any time while she was in the housekeeping
department in which you stated to her or asked her in
words or substance, "I want to know something: What
has the Union done for you? How do you feel about the
Union?"
A. Once I knew Maggie was Union - which she
stated - I backed off completely. As a department
head, I realized I must do this.
Q. Did she ever state to you at any time in words
and substance, the Union is good because sometimes
management gets too big?
A. Maggie talked of the Union, but it was in an
adult, sensible way, and she gave her feelings the way
she thought about it. She was very proud of the Union.
Q. That is what the judge wants to know: What did
she tell you her feelings were, in her words, to the best
you recall.
A. She felt the Union could do quite a lot for
maids, and people she felt was underpaid for the type
work they did, and overall the Union was a good thing
to belong to.
Q. Were these statements she made to you?
A. Yes; this is the way Maggie felt.
JUDGE RASButRY: Was she making such statements
to you in response to your questions of her?
THE winNEss: No, I did not ask any questions of her.
Maggie made the statements to me that she was
definitely Union. She said, "Of course, you know I am
Union."
I said, "No, Maggie, I didn't know."
JUDGE RASBURY: These are statements that she
volunteered to you?
THE wrTNEss: Yes.
In accepting Catherine Appleberg's version of the conver-
sation between her and Maggie Tuma as the more
accurate, it is not intended to discredit or cast dubious
shadows on the integrity of Tuma. It was obvious, however,
that Tuma was an excitable, concerned, and ill-at-ease
witness whose testimony was oftentimes difficult to follow
and understand. I believe Appleberg's testimony reflects
the more accurate tenor and tone of the conversations.
There are other factors that cause me to believe that
these union conversations were not violative of the Act. At
the time of the alleged wrongful interrogation, Respon-
dent's employees were represented by the Union and a
collective-bargaining agreement was in effect. Maggie
Tuma had been, for a number of years, an active and vocal
union adherent, well known to many of the managerial
employees of Respondent and, in my opinion, not the kind
of individual who would be inclined to suppress her
feelings for the Union regardless of who might be within
the sound of her voice.9 In Bonnie Bourne, an individual
d/b/a Bourne Co. v. N.LR.B., 332 F.2d 47 (C.A. 2, 1964),
1974, 5200 from the Union in January 1975. and $150 from the Union in
(Continued)
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the court stated that interrogation, itself not threatening, is
not an unfair labor practice unless it meets certain fairly
severe standards which include: (I) The background, i.e., is
there a history of employer hostility and discrimination? (2)
The nature of the information sought, i.e., did the
interrogator appear to be seeking information on which to
base taking action against individual employees? (3) The
identity of the questioner, i.e., how high was he in the
company hierarchy? (4) Place and method of interrogation,
e.g., was the employee called from work to the boss' office?
Was there an atmosphere of "unnatural formality"? (5)
Truthfulness of the reply.
Applying these standards to all of the evidence intro-
duced by the General Counsel to support the allegations
contained in paragraph IV (a) of the complaint compels the
conclusion that said allegation must be dismissed and I
shall so recommend. 0
The evidence is unmistakably clear from the testimony of
Margaret Tuma that she was not laid off from her job as
assistant housekeeper, as alleged by the General Counsel,
but rather she quit upon the advice of her own doctor. The
following questions and answers appear in the transcript
from the witness, Margaret Tuma, under cross-examina-
tion by Respondent's counsel:
Q. You say you left the job in the housekeeping
department due to doctor's orders; is that correct?
A. Yes.
Q. And this was a chest pain?
A. First it was a chest pain, very severe chest pain
here. I went to the Washoe Medical and they asked me
if I had any heart trouble and they examined me and
gave me something for muscular spasms.
I went home, I waited a couple of days, it fell on my
days off and I went to my own doctor.
Q. And did you get a slip from your doctor telling
what your condition was?
A. Yes.
Q. What happened to that slip; do you know?
A. No. I gave it to Mr. Seaver, I think I gave it to
Fred Turner, and I don't know what happened to it.
Following several pages of similar testimony this ques-
tion was then propounded:
JUDGE RASBURY: Is it your testimony, Ms. Tuma,
that the doctor's note which you turned over to Mr.
Seaver, indicated that you should no longer work in the
housekeeping department because of the tensions?
THE WITNESS: Yes.
In addition to the above testimony, which should satisfy
even the most skeptical as to why Margaret Tuma severed
her relationship with the Respondent as an assistant
housekeeper, the following appears in an affidavit, or
February 1975. According to Tuma this money was not paid to her as a
salary but as reimbursement for expenses she incurred by paying for
lunches, dinners, taxicabs, etc. for employees she was encouraging to
become members of the Union.
io Although the standards set forth in the text up above were taken from
the Second Circuit Court of Appeals' decision, they have found support in
other circuits. See Chauffeurs, Teamsters and Helpers, Local 633 of New
Hampshire, IBT v. N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974).
statement of facts, signed by Margaret Tuma in connection
with her claim for unemployment compensation:
I was advised by my doctor that I would be unable to
continue working as assistant housekeeper and my
doctor even sent a letter to my employer advising them
that I should be reinstated in my usual occupation as a
waitress because I could not take the pressure as
assistant housekeeper. [See Resp. Exh. 21.]
Respondent's Exhibit 22 is a personnel transaction form
relating to "TurMA, MARGAREr L." which indicates that she
was "terminated" as assistant housekeeper for the follow-
ing reason: "Due to doctor's orders was forced to
terminate."
There is not the slightest doubt but that Margaret Tuma
elected to terminate from her position as assistant house-
keeper with the Respondent on or about February 2 or 3,
1975, because of her own desires as she followed the
recommendation of her physician. Insofar as the complaint
alleges a wrongful "layoff," I shall recommend dismissal of
that allegation, because of the total absence of any proof.
However, the allegation regarding the refusal to rehire
Tuma as a hostess is a different matter and shall be
considered herein below.
b. The alleged failure to rehire as a hostess
Tuma testified concerning her efforts to find reemploy-
ment with Respondent following her resignation as
assistant housekeeper including her conversations with
Gregg Rivet, at the time personnel assistant for the Mapes
Hotel, who she said expressed willingness to hire her as a
waitress if and when a vacancy occurred. A portion of her
testimony concerned her efforts and conversations with
Mr. Black at The Money Tree with innuendoes that after
some early encouragement of a probable job she was later
brushed aside with the comment that they were curtailing
their night shift. Tuma stated that The Money Tree did hire
another waitress about this same time.1I
Mrs. Tuma further testified that on or about February
8 or 9 at or about 8 p.m. she received a call from George
Psaros whom she identified as the person then in charge of
the coffeeshop at the Mapes Hotel who offered her a relief
shift job as a hostess in the coffeeshop. According to Tuma,
while it was not a waitressing job which she desired, she
accepted saying that she would take anything and Psaros
asked her to come in about 1:30 p.m. the following day and
he would be able to tell her of her working hours. On the
following day she met Psaros at the coffeeshop and was
told that she was not going to go to work. In Tuma's own
words taken from the transcript, this is what occurred:
Q. [By the General Counsel] And where were you
when you saw George [Psaros ]?
" In addition to this self-serving declaration by a witness who had much
to gain from the suggested conclusion, but which is not otherwise supported
in the record by a single piece of factual evidence, I have tried to totally
ignore it because it is directed toward an entirely different corporate entity
from the Respondent herein.
66
MAPES HOTEL, INC.
A. I went into the coffee shop, saw him, and sat
down in the first booth on the side.
Q. Will you tell us what was said, and by whom, in
your conversation with George Psaros?
A. I sat down, and I said, "When do I go to work?"
He said, "You are not going to work."
I said, "Well, George, you could have at least
extended me the courtesy of calling me and telling me.
It took time and money, because I had to take a cab, to
get down here. What happened?"
Then he said, "I am going to tell you the truth." He
was a little upset.
I said, "What happened?"
He said, "I talked to Chef LaFontan, and Mr. Leary,
and Daphne, about your coming to work. And when
the chef said, 'No, she is pro-Union. I don't want her.
We are having enough trouble. She is trouble.' "
He said something about Bill Leary - I was very
angry - and I said, "George, I don't want to get you
into any trouble."
He said, "They are going to tell you they have five
applications, or other applications, to consider."
I said, "You go get Bill Leary and Gregg Rivet."
Gregg Rivet and Bill Leary were at the table. The
chef walked up. The chef said something to George, he
just looked at me and walked right away.
I asked him why I wasn't coming to work.
Mr. Leary looked right at me and said, "I have
other applications to consider."
I said, "You are discriminating against me." I still
didn't want to say that I knew anything.
Gregg says - I don't remember who was there at the
time but it was Gregg and Larry I am sure in the booth.
I said, "This is my state. My children were born here.
I am going to stay here."
It was just as if nothing, "we will consider the other
applications."
I said, "I am qualified and competent."
They said, "We will consider the other applications."
Then Gregg was very kind and he said, "You come
back and see me again." I don't know if he said in a day
or two but, "We will then know."
Q. Will you explain to us, very briefly, what was
chef LaFontan's position?
A. He was the head chef.
Q. And what was Mr. Leary's position?
A. Mr. Leary, at that time I think, was food and
beverage director.12
George Psaros, who is no longer employed by Respon-
dent and appeared to testify for the General Counsel
pursuant to a subpena, stated that he was first employed by
Respondent in February 1974 and in February 1975 he was
manager of the coffeeshop and as such supervised the
busboys, waitresses, cashiers, hosts, and hostesses for the
12 Parties stipulated that at the time of the conversation above as related
by Tuma that chef LaFontan was a supervisor. Respondent's counsel was
unwilling to stipulate that Leary was a supervisor but provided the following
information regarding Leary's employment status: He was hired May 1970
as a purchasing agent; on February 19, 1975, he was acting food and
beverage director; on March 1,. 1975., he was food and beverage director;
and on May 26, 1976, he was made the hotel manager. The supervisory
three shifts. Psaros further testified he had the authority to
hire and fire employees and when he was first promoted to
coffeeshop manager he reported to Jack Seaver and later to
Bill Leary. Psaros testified that he first learned from Jack
Seaver that Tuma was looking for work and later had a
conversation with Maggie Tuma and learned directly from
her that she was anxious to return to work. The latter
information was obtained shortly after Seaver left his
employment with the Respondent.
According to Psaros when it worked out that he finally
had a hostess job opening he checked with Gregg Rivet
and Bill Leary regarding offering the job to Maggie. At that
time, Rivet said, "There was no reason why we could not
hire her [Tuma] back, and that he himself was looking for
some place to put her either at The Money Tree or the
Mapes, and that it would be great because he was looking
too. And it would take the burden off him." Rivet asked
Psaros to check with Leary whom Psaros stated was the
purchasing agent and also the acting food and beverage
director at the time. Accordingly, Psaros spoke to Leary
and "We discussed if Maggie could come back to work
there, I explained to him who she was because he had
heard the name before but he was trying to remember the
face to go with it, I think. And after I reminded him that
she was a maid previously and had just left the Mapes he
did remember who she was, and remembered there was a
maid. And he said that she was qualified, she had worked
as a waitress, and there was no reason to acknowledge [sic]
why she couldn't perform that job." Whereupon, according
to Psaros, he called Tuma and explained to her that there
was a relief hostess job available that would only work 4
days a week and after Tuma expressed her interest he
asked her to come in the next day about 1:30 p.m. and he
would give her the exact time of her hours and days to
work. Psaros then related the following as his version of
what had happened the following day regarding Tuma
coming to work:
A. That morning I had been looking for Bill Leary
to tell him that Maggie was coming in and that I was
going to give her the hours and days at that time, and I
found him in the food and beverage office. And at that
time there was also Daphne Pettel and Chef LaFontan
was there.
I started to tell him she was coming in that
afternoon.
Then the chef mentioned he was surprised because
she was a very strong Union member, Union organizer,
and he didn't feel that would be somebody Mr. Mapes
would want us to hire.
Daphne agreed she had heard she was a Union
member.
Bill Leary said, "Well, you are right. I have enough
problems. I really don't want any new problems, so, let
us tell her when she comes that we want to interview
status of George Psaros was disputed by Respondent and will be discussed
and considered hereinafter. It was further stipulated that Gregg Rivet at this
time was a personnel representative in the personnel department. On March
I. 1975. he was made personnel director. These people changed jobs and
titles so frequently that it is difficult to follow all the changes; however, I
have concluded that both Rivet and Leary were supervisors at the time of
the above-related conversation.
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some other people and check some other people out
and not hire her right now." And we would probably
bring somebody up from the maids department.
I went on to say, "Well, I am not going to tell her
that she doesn't have a job because I told her last night
she had a job. You said yesterday it was all right. I
checked with you and I checked with Greg and no one
said no. Now, you tell me no. I am not going to tell her.
You tell her."
He said, "Fine. When she comes get ahold of me and
I will tell her she doesn't have a job."
Q. Did you talk with Ms. Tuma that afternoon?
A. Yes, I talked with her when she came to the
hotel.
Q. Where did the conversation take place?
A. It took place in the coffee shop in a booth
behind counter two.
Q. And who was present?
A. Initially Maggie and myself.
Q. What was said and by whom?
A. The greetings, hello, how are you?, and that type
thing.
She asked me when she starts and I said, "You are
not going to start, Maggie."
She asked why and I said, "Bill Leary would like to
interview some people for the job."
She said, "But you told me I had the job yesterday."
I said, "Yes, I did, but Bill Leary wants to check
some other things out, and wants to be sure because
this will be the first hostess that we will be hiring and he
wants to get the person he wants for the job."
She said, "You said I had it."
I said, "Yes, I did."
She said, "Something else happened. What is it?"
I didn't want to tell her but she kept asking and
asking and I finally then told her what had happened
up in the office. That the chef had remarked that she
was a Union organizer and because of the chefs
comments Bill Leary decided he did not want to hire
her for that reason, and that is why we are going to
interview other applicants. And that is what Bill Leary
wanted to talk to her about.
Q. Then what happened?
A. Well, she said, "Well, where is Bill Leary?"
Immediately.
I don't know if I mentioned to him earlier that she
was going to come in but in any event he did come and
sit down.
Q. Were you present when Mr. Leary sat down?
A. I was present at first during the beginning of the
conversation.
Q. What was said, and by whom, during the time
you were at the table?
A. Bill Leary then told her what I had told her
earlier, what he said he was going to say in the office,
that she did not have the job and that he was going to
interview other people for the position.
Maggie said, "You are discriminating against me.
George said I had the job and now you say I don't. I
don't understand what is going on. Are you discrimi-
nating against me?"
At that point I got up and left.
Psaros further testified that after a short while he
returned to the booth and overheard a portion of the
conversation between Rivet and Tuma. According to
Psaros he heard Rivet express some surprise that Tuma was
not going to get the job and heard Rivet say that he would
"talk to Bill Leary and find out exactly what happened."
Bill Leary confirmed the incident in the coffeeshop
relating to speaking to Maggie Tuma regarding possible
employment as a hostess, but he denied that he ever said
anything more to her other than "she would be considered
along with other applications which they had on file."
Leary specifically denied that Psaros had told him that he
(Psaros) had offered the job as relief hostess to Tuma and
further added that Psaros never had the authority to offer
Tuma a job. Leary denied ever having knowledge that
Tuma was, or had been, a union organizer and specifically
denied that chef LaFontan had informed him that Tuma
was a union activist and organizer who should not be
employed. Leary further testified that Caroline Esser, who
at that time was the assistant housekeeper, was transferred
to the job of hostess. When asked why Margaret Tuma was
not hired, Leary replied, "because I believed at that time
that is a job for a young girl. It is the girl who greets the
people, and I think it is more enticing to have a younger
person."
Gregg Rivet testified that he recalled having a conversa-
tion in one of the booths in the coffeeshop with Margaret
Tuma and George Psaros sometime around February 10,
1975, but it was his recollection that both he and Psaros
were merely indicating to Tuma that they would assist her
in getting a job with Respondent if and when there were
openings. Rivet had no recollection of the fact that Tuma
was there at the specific request of Psaros and for the
purpose of telling her the hours on a job which she had
accepted. Rivet further denied that he had ever heard chef
LaFontan condemn Margaret Tuma as being a union
activist and union organizer. Rivet's testimony was not
particularly enlightening as to why Tuma was not rehired,
but it did reveal his view of the employment status of
Psaros when he said, "George and I, as one manager to
another, were saying; 'what are we going to do about this
lady?' "(Emphasis supplied.)
Neither chef LaFontan nor Daphne, the secretary, who
supposedly heard the discriminatory remark by chef
LaFontan, is presently employed by Respondent and their
whereabouts are not known. Respondent is not to be
faulted for failing to produce these witnesses.
Respondent argues (1) Tuma was a paid union organizer
and not a bona fide employee or applicant within the intent
of Section 2(3) of the Act, and thus under the court's
holding in N.LR.B. v. Elias Brothers Big Boy, Inc., 327
F.2d 421 (C.A. 6, 1974), is not entitled to reinstatement or
backpay under the provisions of the Act; (2) Tuma was a
deceitful and evasive witness who should not be believed
and Respondent points to the fact that Tuma did not claim
in her statement to the Nevada employment department
that she was denied the relief hostess job because she was
union activist or union organizer; (3) the hostess job is a
supervisory position and the failure of Respondent to hire a
known union sympathizer and union organizer into a
68
MAPES HOTEL, INC.
supervisory position does not violate either Section 8(aX1)
or (3) of the Act.
The fact that Tuma received certain reimbursements for
out-of-pocket expense money from the Union during the
time of her employment as assistant housekeeper with the
Respondent' 3 is readily distinguishable from the facts in
Elias Brothers Big Boy. In the cited case the employee was
denied backpay and reinstatement because she had been
sent to the place of employment by the union for the
specific purpose of attempting to organize the employees.
In this case there is no proof that Tuma was anything other
than a bona fide employee exercising her legally permissi-
ble Section 7 rights.
Nor am I disposed to accept Respondent's argument
that, because Seaver went to work for the Union within 2
or 3 weeks following his quitting the job as assistant
manager for Respondent, or the fact that Tuma was a
union activist for 30 years and a known off-and-on
business agent during the 70's, or the mere fact that Psaros
went to Seaver seeking a job after he had been discharged
by Respondent, as justification for perceiving these events
as a conspiracy worthy of discrediting and rejecting all of
their testimony.
Psaros no longer lives in Nevada. He lives and works in
the Los Angeles, California, area. His testimony regarding
his supervisory role and authority as coffeeshop manager,
the fact that he offered the job as hostess to Margaret
Tuma, and his testimony that Leary told Psaros to advise
Tuma that the final decision had not been made after he
(Leary) learned that Tuma was a former union business
agent and organizer are truthful and are to be fully
credited.
Appleberg's testimony that Leary talked to her regarding
the qualifications of Caroline Esser does not conflict with
the above conclusion, because there was no time fixed as to
when the Leary-Appleberg conversation occurred. I have
concluded it was after Leary had decided to deny Tuma
the job because of her union activities.' 4
However, in spite of accepting Psaros' testimony as
truthful and the concomitant rejection of Leary's denial of
the testimony linking him with refusal to hire Tuma in the
hostess job because she was a union organizer and
troublemaker, I am forced to reject the General Counsel's
contention that this conduct is violative of Section 8(aX3)
and (1), because the weight of the evidence causes me to
conclude that the hostess job was supervisory. This
determination may seem harsh in light of the relatively
low-paying job classification involved, but the statute does
not differentiate between highly skilled, high-paid supervi-
sors and relatively unskilled, low-paid supervisors., 5 In
addition to the numerous personnel transaction forms
which appear in the record reflecting that the hostess
initiated "hiring" and "discharging" employees in the
busboy category, the record clearly supports the conclusion
13 Although I hasten to add that the rather large sums in round dollar
figures paid to Tuma for the reimbursement of expenses has caused me some
mental anguish.
14 I should have noted earlier herein that Appleberg is no longer
employed by Respondent and had nothing to gain by slanting her testimony
in a manner designed to be helpful to Respondent.
15 Sec. 2(1 1) of the Act provides the definition of a supervisor:
that the hostesses and hosts had the responsibility to direct
the busboys and waitresses in their daily routine. As
indicated earlier, while the exercise of this authority does
not require superb craft skills or a college degree,
nevertheless a certain level of mature judgment and
common sense is required and is more than merely routine
or clerical in nature.
I have heretofore found that Tuma voluntarily, and in
accordance with the request of her doctor, resigned her
position as assistant housekeeper, thus she was in the
position of an applicant applying for a supervisory
position. I know of no instance where the Board has ever
found an 8(aX3) or (1) violation because an employer has
discriminatorily refused to hire an applicant (nonemploy-
ee) directly for a supervisory position. Discriminatorily
refusing to hire directly into a supervisory position is
readily distinguishable from discriminatory conduct in
refusing an applicant a rank-and-file job. I shall recom-
mend dismissal of the allegation relating to the discrimina-
tory refusal to employ Margaret Tuma as set forth in
paragraph VII (b) of the complaint.
3. Relating to the "no-solicitation" rule
Gregg Rivet testified that he caused the Respondent's
no-solicitation policy to be included with or attached to the
payroll checks of all employees during the week of
November 12, 1974 (see Resp. Exh. 18). The Respondent's
no-solicitation rule as distributed to all employees by
Gregg Rivet read as follows:
1. Solicitation of any type by employees during
working time is PROHIBITED.
2. Solicitation on company premises by employees
after employees' shift has been completed is PROHI-
BITED.
3. Distribution of literature of any type or descrip-
tion by employees during working time is PROHIBIT-
ED.
4. Distribution of literature of any type or discrip-
tion [sic] in working areas is PROHIBITED.
5. Violation of any of the above rules will result in
IMMEDIATE DISCIPLINARY ACTION, including
DISCHARGE.
The General Counsel's allegations regarding the no-
solicitation rule as contained in paragraph VI (c) of the
complaint would seem to charge Respondent with an
untimely and unlawful publication of the no-solicitation
rule as well as an allegation that the rule is presumptively
invalid and unlawful.
Rivet testified that he caused the Respondent's no-
solicitation rule to be dispersed and made available to all
employees by having it either attached to or included with
the paychecks they received from Respondent during the
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment. [Emphasis supplied.l
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week of November 12 (see Resp. Exh. 18). Nothwithstand-
ing the fact that a number of employees and even some
supervisors may have been unaware of the Respondent's
no-solicitation policy, I cannot regard that lack of
knowledge as overcoming the direct testimony of Rivet. He
testified that he re-published the Respondent's policy
which was taken from the files and had been in existence
for a number of years. Rivet's testimony regarding the
"age" of the policy was corroborated by Merle Winburn,
the Respondent's engineer, and Ray Brown, Respondent's
controller, whose testimony regarding this point I herewith
credit.16
However, the Respondent's rule appears to be invalid
and a violation of Section 8(aXl) of the Act. In M
Restaurants, Incorporated, d/b/a/ The Mandarin, 221
NLRB 264, the Board found identical language with that
contained in the no-solicitation rule here involved (see par.
2 of Resp. Exh. 18) invalid, stating:
The rule in the instant case was directed solely at
employee solicitation. In fact Respondent permitted
off-duty employees to wait for fellow employees to
finish work, to pick up their paycheck on their days off,
and to return to the premises to eat with their
coworkers. Under these circumstances and particularly
in view of the majority's holding in Lenkurt, it is
evident that even under the standard enunciated in that
case Respondent's no-access rule is presumptively
invalid and unlawful.
In GTE Lenkurt, Incorporated, 204 NLRB 921 (1973), the
Board had found lawful a no-solicitation rule that "An
employee is not to enter the plant or remain on the
premises unless he is on duty or scheduled for work." The
Lenkurt case, however, involved a manufacturing establish-
ment where the public is not normally permitted. This case
is more similar to the Mandarin case. While Respondent's
employees were not encouraged to remain on the premises
when they were off duty, neither were they told that they
should not remain and the evidence clearly supports the
conclusion that many of the employees enjoyed various
aspects of Respondent's hospitality during their off-duty
hours.
Again in East Bay Newspapers, Inc., d/b/a Contra Costa
Times, 225 NLRB 1148 (1976), the Board found the
employer's no-solicitation policy which was identical to the
no-solicitation here involved (see Appendix A attached to
the Board's decision) invalid. The Board's opinion sought
to explain the difference between the Mandarin decision
and the Lenkurt decision by stating:
. . . where a rule also prohibited solicitation on
company premises by employees after employees' shift
had been completed, there is an obvious difference in
emphasis between such rules. The rule here, and in
Mandarin, is directly aimed at solicitation, while the
Lenkurt rule is directly aimed at employees who "enter
. . . or remain on the premises" when not "on duty or
scheduled for work." Consequently, the validity of the
"t See Ramada Inns Incorporated, 190 NLRB 450 (1971). As earlier
indicated herein, the fall of 1974 was a critical and active period of
"organizing" the employees in the restaurant, hotel, and casino industry
instant rule must be determined in accordance with the
standard applicable to no-solicitation rules, and it is
well established that employer rules which infringe
upon the employees' right to solicit union support
during nonwork time while on their employer's premis-
es are presumptively unlawful.
Also as noted by Chairman Murphy in Mandarin,
the rule there, as here, applies even in situations where
the employees have completed their shifts but are
nevertheless still lawfully and properly on company
premises pursuant to the work relationship, whereas the
Lenkurt rule applied to employees who were not
lawfully and properly on the company premises
pursuant to the work relationship. The significance of
this distinction is that, in a case like this one and
Mandarin, the employees' right to self-organization is to
be balanced against the employer's interest in produc-
tion, safety, or discipline but in the Lenkurt situation
the employees' right was balanced against the employ-
er's private property rights. [Fn. omitted.]
Accordingly, inasmuch as Respondent has not
established that the no-solicitation rule in question was
necessary for protection, safety, or discipline, it violated
Section 8(aX 1) of the Act.
Any proof that Respondent's very broad no-solicitation
policy was necessary for protection, safety, or discipline
was wholly lacking and I herewith find Respondent's
action in maintaining such a rule or policy to be violative
of Section 8(aX I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operation of
Respondent as described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent's no-solicitation policy has been found to be
presumptively unlawful, and Respondent shall be required
to post notices that are adequate to inform employees of
their Section 7 rights.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act for the Board to
assert jurisdiction.
operating within the Reno-Lake Tahoe, Nevada, area, because of the
aforementioned withdrawal of a number of the employer-members from the
Reno Employers Council.
70
MAPES HOTEL, INC.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining a no-solicitation policy which prohi-
bits its employees from soliciting on company premises
after their shifts have been completed, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Contrary to the allegations of the complaint issued
herein, the Respondent has not, except as specifically found
above, violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '7
The Respondent, Mapes Hotel, Inc., Reno, Nevada, its
officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Maintaining any rule or regulation prohibiting its
employees from soliciting on its premises after their shifts
have been completed until and unless such prohibition is
demonstrably necessary to maintain production, discipline,
or security.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its Reno, Nevada, facility copies of the
attached notice marked "Appendix." 18 Copies of said
notice on forms provided by the Regional Director for
Region 20, after being duly signed by its authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
17 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.
is 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our employees from soliciting
on our premises after their shifts have been completed
unless such a prohibition is demonstrably necessary to
maintain production, discipline, or security.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights protected by the National Labor Relations
Act.
MAPES HOTEL
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