Mgm Grand Hotel

National Labor Relations Board - Board Decisions

Jul 8, 1985

275 N.L.R.B. 1015 (N.L.R.B. 1985)

MGM GRAND HOTEL
MGM Grand Hotel and Emma Menendez . Case 31-
CA-14218 _
8 July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 April 1985 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings,' and
conclusions as modified' and to adopt the recom-
mended Order as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, MGM Grand Hotel, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as- modified.
1. Renumber paragraph l as "1 (a)."
2. Insert the following as paragraph 1 (b).
"(b) Cease and desist from in any like or related
manner interfering with, restraining, or coercing
employees in the exercise of their- Section 7 rights."
3. Substitute the attached notice for that of the
administrative law judge.3
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is -not to overrule an administrative
law judge's credibility- resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir, 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In concluding that the Respondent violated Sec 8(a)(3) and (1) of the
Act by discharging Emma Menendez for allegedly engaging in strike mis-
conduct , 'the judge found it unnecessary to pass on whether Menendez
had yelled "scab" at the occupants of employee Cook's car Even assum-
ing that Menendez yelled "scab" during the incident, we do not find that
she engaged in conduct justifying her discharge under the standards of
Clear Pine Mouldings, 268 NLRB 1044 (1984) Further, in adopting the
judge's finding of a violation herein , we do not rely on the cases, other
than Clear Pine Mouldings, cited by the judge in his decision
2 We have substituted a new notice which conforms to the revised
order, and which includes certain language inadvertently omitted by the
judge from his notice
APPENDIX -
1015
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
' WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or tenure
of employment, or any term or condition of em-
ployment, for engaging in permissible conduct re-
lated to picketing during the course of the strike
which occurred from 1 April to 6 June 1984.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by 'Section 7 of
the Act. -
WE WILL make Emma Menendez whole for any
loss of earnings she may have suffered by reason of
such unlawful discrimination by paying her a sum
of money equal to the amount she normally would
have earned from the date of discharge until the
date of reinstatement, plus interest.
WE WILL expunge from our files any reference
to the disciplinary discharge of Emma Menendez
on 12 June 1984, and WE WILL notify her that this
has been done and that evidence of this unlawful
discharge will not be used as a basis for future per-
sonnel actions against her.
MGM GRAND HOTEL
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Las Vegas, Nevada, on December
3 and 4; 1984. The initial charge was filed on June 13,
1984, by Emma Menendez, an individual, and an amend-
ed charge was filed by Menendez on July 26, 1984.
On July 26, 1984, the Regional Director for Region 31
of the National Labor Relations Board (the Board) issued
a complaint and notice of hearing alleging a violation by
MGM Grand Hotel (Respondent) of Section 8(a)(1) and
(3) of the National Labor Relations Act.
The parties were afforded a full opportunity to be
heard, to call, examine , and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been - received from the General
Counsel and counsel for Respondent.
275 NLRB No. 146
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record, and based on my observation of
the witnesses and .consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , is a Nevada corporation with an office
and principal place of business located in Las Vegas,
Nevada , where it is engaged in the operation of a hotel
and casino : In the course and conduct of its business op-
erations , Respondent annually ' purchases and 'receives
goods or services valued in excess of $50 ,000 directly'
from suppliers located outside the State - of ' Nevada, and
annually derives gross revenues in excess of $500,000.
It is admitted , and I find, that Respondent is now, and-
has been at all times material herein , an employer en-
gaged in commerce and in a business affecting commerce,
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Culinary Workers
Union, Local 226 is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act. -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Respondent 's termination of employee Emma Menen-
dez for alleged strike misconduct is-violative of Section
8(a)(1) and (3) of the Act.
B. The Facts
Emma Menendez has worked for Respondent since
1972. She is currently a showroom captain . ' Menendez
was terminated . for alleged strike misconduct during her
participation in an economic strike against Respondent
by Culinary Workers Union, Local 226. The strike ex-
tended from April. 1, 1984, until June 6, 1984, and the
parties stipulated that during the course of the strike
there was conduct that could reasonably cause nonstrik-
ing employees to be fearful of working or crossing the
Union's picket line. According to Respondent's records,
dated June 12,' 1984, Menendez was terminated for en-
gaging in "physical and verbal threats and intimidation."
On July 27, 1984, following the issuance of the com-
plaint on July 26, 1984, Menendez was reinstated to her
former position which she currently occupies.
The incident for which Menendez was terminated oc-
curred on May- 13 , 1984, about 1 a.m. Menendez had
been picketing, along with her husband, Ted Menendez,2
at the front of Respondent's large hotel and casino'com-
plex, and volunteered to picket at an'employee entrance
located at the rear of Respondent's facility. This en-
trance, from the record description, is apparently dimly
lit and isolated, and fronts a narrow one-lane road which
borders Respondent's property and leads to Las Vegas
Boulevard, also known as "The Strip," a main north-
south thoroughfare. Las Vegas-Boulevard intersects at
the first, comer to the north with Flamingo Road, an
east-west artery- on which are located the various main
entrances to Respondent's complex. A short distance
beyond Respondent's property, heading east on Flamin-
go Road , was a small shelter and refreshment area estab-
lished by the Union, which was also utilized as the loca-
tion where the pickets were to sign in and out at the be-
ginning and end of their daily tour of picket duty.
Ted and Emma Menendez drove in their car to the
aforementioned rear employee entrance and picketed at
that location. They were later joined by three individ-
uals, Mary Larvo and Betty Brown, employees of Re-
spondent who were participating in the strike, and
Maxine McNeely, a union official who supervises the
business agents and was in charge of the picket- lines at
Respondent's premises. About 1 a.m. the group decided
to leave the area and return to the sign-out location. Ted
Menendez was the -driver of one vehicle occupied by
Emma Menendez, who was in the front passenger's seat,
and-Betty Brown, who was seated in the back seat. The
other vehicle was' driven by McNeeley; and Mary Larvo
was in the front passenger 's seat.
-
_ -
Immediately prior to the time the aforementioned indi-
viduals proceeded to drive in their separate vehicles to
the sign-out area,,Freddy Cook,-a nonstriking employee,
picked up two other nonstriking employees, Dottie
Dunlap and Phyllis Gaye, who were leaving Respond-
ent's premises at the end of their workshift. Cook no-
ticed that a station wagon (McNeeley's car), with its
bright lights on, had pulled up behind his vehicle while
he was waiting for the employees at the rear entrance,
and then apparently pulled out while Cook continued to
wait . After picking up Dunlap and Gaye, Cook proceed-
ed to drive down the "alleyway" to where Dunlap's car
was parked, and -observed the station wagon behind
them, and another vehicle (the Menendez car) behind the
station wagon . He then noticed through the rear-view
mirror that the station wagon was driven by McNeeley
and was occupied by Larvo. At this point Cook, believ-
ing he was being followed, became concerned and decid-
ed to go around the block rather than drop Dunlap off at
her car, and proceeded down the narrow road or alley-
way to Las Vegas Boulevard. .
The aforementioned road is narrow and there is room
for only one vehicle. In addition, there are speed bumps
in the road. As a result, all three vehicles were traveling
' Respondent indicated at the hearing that the possible status of Men-
endez as a supervisor was a "close question ," and refused to stipulate to
her nonsupervisory status. The record clearly shows, and I find, that
Menendez neither possesses nor exercises any supervisory authority as a
showroom captain . Rather, she merely acts as a hostess in seating pa-
trons, and does not direct the work of the other showroom employees.
Respondent does not argue to the contrary in its brief.
2 Ted Menendez, although not an employee of Respondent, is a
member of the Union and participated in the stake which involved nu-
merous employers in addition to Respondent. As Ted Menendez was not
a permanent employee of any employer, but rather worked banquets
through the Union's hiring hall, he was given the option of picketing at
any strike location.
MGM GRAND HOTEL 1017
at a relatively slow speed. As the road approaches Las
Vegas Boulevard it becomes, wider, and when Cook
stopped his car prior to making a right turn onto Las
Vegas Boulevard, Ted Menendez drove his car into the
right-hand lane (blocked by a barrier or island which
precluded Menendez from making a right turn at that
point) and pulled up on the passenger side of Cook's ve-
hicle. At this point, according to Cook, Ted Menendez
hollered, "You mother fuckers." Cook turned right on
Las Vegas Boulevard and, after waiting for several min-
utes at a red light, turned right again on Flamingo Road,
during which time the two vehicles, according to Cook,
remained "sort of close" behind him. During this portion
of the incident Cook heard Larvo singing "some little
scab song." He then turned right into one of Respond-
ent's entrances and returned Dunlap to her car. The two
vehicles did not follow him but rather proceeded down
Flamingo Road. Cook did not report the incident as he
did not consider it to be' sufficiently serious.
Phyllis Gaye corroborated Cook's testimony and said
the car behind them was "like tailgating" and estimated
it to be 6 or 8 feet behind them in the alley although
"you can't travel that fast [through the alley] and we
were going to drop Dottie off so we were just driving
along." Gaye testified that as they turned into Respond-
ent's entrance off Flamingo Road, Emma Menendez
yelled, "scab." Gaye said she had been called "scab"
prior to that incident, bur ignored it because it "wasn't
anything, that you -would really get alarmed [sic], dust
call you a scab, you know. That's nothing." Gaye said
she was "really frightened" during the incident even
though she had worked, with Emma Menendez for years
and had previously met her husband.
Dottie Dunlap, who reported the matter to Respond-
ent, was not in a favorable position to observe the inci-
dent as she was "frightened to death" and, apparently
because of the possibility of physical harm, lay down in
the back seat of the. car. Her knowledge of what oc-
curred is derived from Gaye's description of the event.
However, she did hear the aforementioned epithet ut-
tered by Ted Menendez and could hear persons singing,
"Scab. Scab." Dottie and Phyllis. Scab. Scab." Further,
Gaye testified that Dunlap asked her whether she (Gaye)
heard Emma Menendez yell "scab."
While Ted and Emma Menendez denied that Ted
Menendez yelled "mother fuckers" at the employees, but
rather said, "Look at that, a car full of scabs," Betty
Brown, who was riding in the same car, forthrightly ad-
mitted that Ted Menendez said, "a car full of fucking
scabs." All three individuals denied that Emma Menen-
dez yelled "scab" at the occupants of Cook's car at any
time. Further, each of the striking employees, and also
the Union's official, McNeely, denied that they were fol-
lowing Cook's car for purposes of harassment, but each
testified that they were merely returning to the shelter
refreshment area where the Union had established its
picket headquarters, located beyond Respondent's prem-
ises on Flamingo Road.
C. Analysis and Conclusions
Contrary to Respondent 's stated reasons for terminat-
ing Emma Menendez , I find that she engaged in no
"physical and verbal threats . and intimidation" which
warrant, 'under established Board precedent, her dis-
charge for strike misconduct.
The record evidence fails to show that the cars driven
by McNeely or Ted Menendez' tailgated Cook's vehicle
or pursued in a reckless or unsafe manner , or caused
Cook to drive in other than •a normal fashion. Indeed,
the fact that the narrow road required a slow rate of
travel would account for the fact that in the estimation
of the passengers in Cook's vehicle, they were being fol-
lowed. Rather, the credible evidence indicates that the
three automobiles, by coincidence, were being driven
along the same road at the same time , and the route trav-
eled supports the testimony of the General Counsel's wit-
nesses that they .were merely heading toward the picket
headquarters. I credit Betty Brown and find that Ted
Menendez did call the occupants of Cook's car "fucking
scabs." Whether Emma. Menendez uttered the word
"scab" at any point seems to be immaterial.
Respondent would justify the termination of Emma
Menendez on the authority of the Board's decision in
Clear Pine. Mouldings, 268 NLRB 1044 (1984). Therein,
the Board determined that it would apply an "objective
test for determining whether verbal threats by"strikers di-
rected at fellow employees justify an employer's refusal
to reinstate." The test to be applied is "whether the mis-
conduct -[verbal threats] is such that, under the circum-
stances existing, it may reasonably tend to coerce or in-
timidate employees in the exercise of rights protected
under the Act." Clearly, there were no threats, actual or
implied, verbal or nonverbal, of any harm-to the person
or property of the occupants,of Cook's vehicle. Further,
there is no showing that Emma Menendez was a partici-
pant in any preconceived scheme to follow, tailgate,
harass, or intimidate the employees. Rather, she was
merely an occupant of a vehicle from which her husband
happened to emphasize, with the aforementioned epithet,
his contempt for the nonstrikers. Similarly, the fact that
Emma Menendez happened to be in a procession of cars
during a time when the occupants of another vehicle
were singing "some little scab song" directed at nonstrik-
ing employees is not the type of situation which the
Board, in Clear Pine Mouldings, and other cases, infra,
would deem misconduct, even though the occupants of
Cook's vehicle were legitimately concerned.3
On the basis of the foregoing, I find that Respondent
unlawfully discharged Emma Menendez in violation of
Section 8(a)(1) and (3) of the Act, as alleged. See Ohio
Power Co., 215 NLRB 862 (1974); Moore Business Forms,
224 NLRB 393, 395-396 (1976); MP Industries, 227
NLRB 1709, 1710 (1977); Gibraltar Sprocket Co., 241
NLRB 501 (1979); Matlock Truck Body & Trailer Corp.,
248 NLRB 461 (1980).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
3 Under the circumstances , I find it unnecessary to decide whether
Emma Menendez also yelled "scab "
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Culinary Workers Union, Local 226, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (3)
of the -Act by discharging employee' Emma Menendez
from June 7. to July 27, 1984.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7)-of the Act.
THE REMEDY
'i .
Having found that Respondent violated Section 8(a)(1)
and- (3) of the Act, I recommend that it be required to
cease and desist therefrom-and from in any like or relat-
ed -manner - interfering with , restraining , or coercing its
employees in the exercise of their rights under Section 7
of the Act, and take certain affirmative action' described
herein, including the posting of an appropriate notice.
Having found that Respondent unlawfully discharged
employee Emma Menendez, it is recommended that Re-
spondent make her whole, with interest, for any loss of
pay she may have suffered as a result of the discrimina-
tion against her. Backpay is to be computed in the
manner prescribed in F. W. Woolworth Co., 90. NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
IT IS FURTHER RECOMMENDED that Respondent
remove from its records any reference to the foregoing
unlawful discharge and advise Emma Menendez that it
has done so. See Sterling Sugars, 261 NLRB ` 472 (1982).
On • these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4 - -
4' If no - exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall -, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses r
ORDER
The Respondent, MGM Grand Hotel,' Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease' and desist from discharging employees be-
cause of their lawful activity in connection with picket-
ing during the course of a strike. .
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act. ,
(a) Make employee Emma Menendez whole in the
manner set forth in the section. of this -decision entitled
"The Remedy." In this connection, -Respondent shall
preserve and on request make available'to the Board-or
its agents, for examination and-copying, all records, in-
cluding the payroll records of other employees, neces-
sary to analyze and compute the amount of backpay due.
(b) Remove from its records any reference to the un-
lawful discharge of Emma Menendez. -
(c) Post at its Las Vegas, Nevada facility, copies of the
attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized- representative, shall be posted by-the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days. in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered-by
any other material.
(d) Notify the Regional Director- in writing within 20
days from the date of this Order what.steps- the Re-
spondent has taken to comply. - • .
5 If this Order is enforced by a Judgment of a United States Court of
Appeals,, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."