Ponderosa Hotel & Casino, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1977

233 N.L.R.B. 92 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ponderosa Hotel & Casino, Inc. and Hotel-Motel-
Restaurant Employees & 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,
and 20-CA-9905
October 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 23, 1977, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Party
filed a letter in answer thereto.
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, brief,
and answering letter and has decided to affirm the
rulings, findings,I and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order. 2
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, Ponderosa Hotel
& Casino, Inc., Reno, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
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,
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.
Further, we find no merit in Respondent's exception to the adequacy of the
Administrative Law Judge's reasons for his credibility findings. The
Administrative Law Judge made independent credibility resolutions for
each witness, and while we do not adopt his comment on the adequacy of
counsel's questioning of witnesses, we find that, independent of those
comments, his credibility resolutions meet the requirements of our recent
decision in Maremont Corporation, 229 NLRB 746 (1977). We have further
considered Respondent's contention that the Administrative Law Judge's
credibility findings reflect a bias against Respondent. We have carefully
considered the record and the attached Decision, and we have determined
that there is no ment to Respondent's contention.
2 Sierra Development Company)' d/hb/a Club Cal-Neva, 231 NLRB 22
(1977).
233 NLRB No. 18
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
case was heard at Reno, Nevada, on July 21 and 22, 1976.
The amended consolidated complaint, issued September
22, 1975, and based upon seven charges filed in Case 20-
CA-9803 on various dates between December 16, 1974,
and June 2, 1975; upon two charges filed January 13 and
June 17, 1975, in Case 20-CA-9853; upon charges filed
January 16 and June 17, 1975, in Case 20-CA-9869; upon
charges filed in Case 20-CA-9897 on January 23 and June
17, 1975; and upon charges filed January 27, May 7, and
June 25, 1975, in Case 20-CA-9905, all by Hotel-Motel-
Restaurant Employees & Bartenders Union Local 86,
Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO, herein the Union, alleges that Respon-
dent, Ponderosa Hotel & Casino, Inc., herein Ponderosa,
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act. Extensive briefs have
been received from the parties.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, Ponderosa Hotel & Casino, Inc., is a
corporation engaged in the operation of a hotel, restaurant,
bar, and gambling casino in Reno, Nevada. It enjoys gross
revenues in excess of $500,000 per annum. Respondent has
disputed an allegation that it purchases and receives goods
and materials valued in excess of $ 10,000 per annum which
originate outside the State of Nevada. There is no evidence
to support said denial and, indeed, Respondent ultimately
admitted this allegation without conceding that the Board
has jurisdiction over the gaming industry in Nevada. I find
that the operations of Respondent affect commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel-Motel-Restaurant Employees & Bartenders Union
Local 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction, the Issues
The amended complaint alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(aX5) and (1) of the Act. This is one of a number
of cases tried in the Reno-Lake Tahoe area resulting from
the breakdown of associationwide bargaining into an
alleged refusal to bargain by Respondent and other casinos
on an individual employer basis, plus allegations of
interference, restraint, and coercion. Issuance of this
Decision has been deferred pending a definitive declara-
tion by the Board in related cases as to the quantum of
92
PONDEROSA HOTEL & CASINO, INC.
evidence sufficient to support a purported good-faith doubt
by an employer of majority representation by a labor
organization. As of the date of this writing, I am not aware
that this has been specifically or definitively spelled out by
the Board.
B. Sequence of Events
The Reno Employers Council, herein REC, is a Nevada
corporation with its office in Reno, Nevada. It has at all
times material herein represented employers engaged in the
casino and restaurant industry in collective bargaining,
negotiating, and administering collective-bargaining agree-
ments with labor organizations including the Union.
From 1956 through 1975, REC voluntarily recognized
the Union as the representative of all bar and culinary
employees of its members and, at least since 1959, in behalf
of its members who have shifted, has been party to a series
of multiemployer collective-bargaining contracts with the
Union. Respondent voluntarily joined REC in 1958, absent
any showing of majority representation by the Union, and
thereafter automatically became subject to the terms of the
1969-72 contract.'
A subsequent contract ran from 1972 through 1975 and
Respondent, as well as other casinos, timely withdrew from
REC on December 10, 1974. This followed a request by
one, Bramlet, the International trustee of the Union under
the previous contract, for negotiation and modification of a
new contract. On December 12, 1974, President Lawrence
Tripp of Respondent further advised the Union of its intent
to terminate the contract upon its expiration and REC
similarly wrote to the Union that the contract would be
duly terminated on February 15, 1975, and, further, that it
was no longer authorized to represent Respondent for
collective-bargaining purposes.
On December 13, 1974, the Union wrote Respondent, as
well as REC, referred to the prior communications from
the Union, and asked that they contact the Union as to
further negotiations. This was repeated in a December 17
letter wherein the possibility of unfair labor practice
charges was raised. Counsel for Respondent responded on
December 20 with a letter expressing a "genuine doubt"
that the Union represented a majority of its employees in
an appropriate unit. Respondent has since withdrawn
recognition from the Union as the representative of its bar
and culinary employees and has refused to bargain with the
Union in behalf of same; this, in essence, is the gravamen
of the instant case, although there are also some allegations
of independent interference, restraint, and coercion.
C. Interference, Restraint, and Coercion
1. Waitress Dolores O'Melveny of the dining room
testified, and I find, that on or about December 6, 1974,
she was directed at the end of her shift to appear at the
office of Vice President and General Manager Kathy
Tripp, the wife of President Lawrence Tripp of Respon-
dent. The record amply demonstrates that both Tripps are
supervisors under the Act.
I Nevada is a right-to-work State.
2 The former, if agreed to, would perforce violate the Nevada right-to-
work law.
O'Melveny placed employee Joan Hale upon the scene.
The latter is a reservations clerk for Respondent and is
stationed in a two-desk office behind the reservations desk.
She did recall one occasion when O'Melveny spoke to Mrs.
Tripp in her presence. O'Melveny testified that Mrs. Tripp
told her on this occasion that she, Mrs. Tripp, was calling
in the girls to ascertain whether they wished a union or a
nonunion house.2
Mrs. Tripp asked for the views of O'Melveny, a
member of the Union, who in turn replied that she had
been prounion all her life and had no desire to change; she
further expressed her pleasure with various union benefits
over the years. Mrs. Tripp next asked O'Melveny to
indicate on a writing pad her name, the time and date, and
whether or not she desired representation by a labor
organization.
O'Melveny expressed reluctance to depose her true
sentiments in fear of incurring the wrath of Respondent.
Mrs. Tripp responded that Respondent was a family hotel
and that it would attempt to provide improved insurance
benefits. O'Melveny referred to union benefits such as
dental insurance, eyeglasses, and improved retirement
benefits.
Mrs. Tripp asked O'Melveny again to record her
preference; the latter again asked for an expression
protecting her against discharge if she put down a truthful
response. Ultimately, O'Melveny agreed to record her
name, the date and hour, but nothing further; she did so. 3
Joan Hale in turn testified that, commencing in Decem-
ber 1974, a number of employees came to the office she
occupied behind the front desk. They stated that they
understood they were to sign a document reflecting
whether or not they were in favor of the Union. Hale
allegedly responded that Respondent, after contact by the
Union, wished to ascertain their prounion or antiunion
preferences and that the employees were not required to
sign anything; she added further that they were not even
required to talk with her.
However, if the employee so indicated, Respondent
would accept a response. Hale admitted knowing
O'Melveny, but had no recollection of any conversation
when Mrs. Tripp and they had participated in any
discussion. She modified this thereafter to reflect that other
employees might have been present with Mrs. Tripp,
O'Melveny, and herself.
She did recall occasions when other employees entered
the office and stated that they understood that they were to
advise Mrs. Tripp whether they were in favor of or opposed
to the Union. But she recalled only one occasion on an
afternoon when O'Melveny was on the scene. I find that
this was consistent with the testimony of the latter. Hale
further testified that O'Melveny stated she understood it
was in order for her to sign a statement supporting or
rejecting the Union. According to Hale, Mrs. Tripp denied
this and added that signing the statement or refusing to do
so would in no way jeopardize the position of O'Melveny.
Mrs. Tripp vaguely recalled only one occasion when
O'Melveny spoke with her about the Union, allegedly in
3 O'Melveny was discharged by Respondent or quit in September 1975.
Her termination is not at issue herein.
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the presence of Hale and others who did not testify herein.
O'Melveny allegedly asked, "what's all about this union,"
and Mrs. Tripp asked what O'Melveny wished to know. On
her version it would seem that this ended upon an impasse.
As indicated, the version of O'Melveny, upon my observa-
tion of the witnesses, impresses me as the more reliable.
2. Bertha Walker worked for Respondent as a waitress
from May 1973 until she left its employ in November 1975.
She claimed that James Wireman, as Mrs. Tripp, general
manager and vice president of Respondent, told her, was
the maitre d' of the dining room and Walker's supervisor;
that he was in charge and the host; and that he seated the
guests.
Wireman, according to Walker, made out the work
schedules and, indeed, when she was terminated it was
Wireman who made out her termination slip. On occasion,
when a patron was dissatisfied with the entree, she
observed that Wireman would "comp" the bill, this
meaning approval of the bill at the expense of the house, or
he would present another dish without additional cost.
Wireman also, upon occasion, did authorize overtime for
Walker.
Respondent disputes this, but I find, on a preponderance
of the evidence, that Wireman meets the definition of a
supervisor within the meaning of the Act. His contrary
testimony as to his status during his tenure is less than
impressive and is therefore not credited. The record does
disclose that he effectively recommended the discipline or
discharge of employees. It further discloses that he hired an
employee, as described below, without the advance
approval of Mrs. Tripp.
During July 1974, according to Walker, she chanced to
enter the office of Mrs. Tripp. The latter stated that she
wished to talk with her and asked, "What do you hear from
the Union?" Mrs. Tripp stated further that the club
operators in the area had held a meeting and agreed that
any employees who went on strike "couldn't come back to
work." No one else was present.
Mrs. Tripp recalled that Walker had been a waitress
with Respondent. She previously had denied any talk with
an employee named Walker concerning union activity. She
denied having a talk with any employee in July 1974
concerning the possibility of termination in the event of a
strike. Walker impressed me as an honest witness and the
questioning of Mrs. Tripp by counsel for Respondent left
something to be desired. I therefore credit Walker.
3. Eva Nancy Tramaglino, a waitress from August 13
through December 7, 1974, testified that she received her
instructions in the dining room from Wireman, who had
hired her.4
Tramaglino testified, and I find, that late in November
1974 Wireman approached her in the dining room as she
waited for an order or orders and stated that everyone who
joined or belonged to the Union would be "automatically
terminated and I mean fired." Wireman denied such a
conversation with any employee in November 1974 or for
4 She was interviewed by him on August 13, and he handed her a work
application; he told her to fill it out, to return it and commence work at 5
p.m. that day. She did submit the work application upon her appearance at
the casino at 5 p.m. that day. I find that he hired her upon his own authority.
5 Wireman, I note, now works full time in the public relations area for
Respondent. Paradoxically, the General Counsel ultimately managed to
that matter having a conversation with any employee on or
about December 3, 1974, concerning union activity, this
bearing upon the testimony of Veronica De Santis, treated
below, which attributes certain remarks to Wireman.5
4. Veronica De Santis entered the employ of Respon-
dent in 1966 or 1967, quit for some months in 1972,
returned in December of that year as a waitress, and was
discharged in December 1974. On or about December 3,6
in the presence of De Santis and several other employees,
Wireman asked if they were "for or against a union." De
Santis replied that she had belonged to a labor organiza-
tion "[a ]l my life and could not speak for the other girls."
Wireman, as she testified, promptly left the scene.
To sum up, I find the conduct of Mrs. Tripp and
Wireman, as specified above, to be attributable to
Respondent and violative of Section 8(aXI) of the Act.
Some statements in the record are attributed to President
Lawrence Tripp but these, in my judgment, clearly fall
within the protection of Section 8(c) of the Act and no
findings adverse to Respondent are based thereon.
D. The Refusal To Bargain
I. The appropriate unit
The complaint alleges that all bar and culinary workers
of Respondent, excluding all other employees, guards, and
supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act. There is ample recent authority by the Board
supporting this view, cited below, and I so find.
2. Majority representation in the appropriate unit
The Board has, in a number of recent cases, held, in
effect, that a presumption of majority status flowing from a
union contract in a multiemployer unit, as was the fact
here, survives timely withdrawal from that unit and carries
over to a newly created single-employer unit. As set forth
above, this was the precise sequence of events herein. I find
therefore, subject to the establishment of a good-faith
doubt as to majority status in the single-employer unit, also
treated below, that the Union was presumptively the
majority representative of these employees within the
meaning of Section 9(a) of the Act. See Nevada Lodge, 227
NLRB 368 (1976); Tahoe Nugget, Inc., d/b/a Jim Kelley's
Tahoe Nugget, 227 NLRB 357 (1976); Silver Spur Casino,
228 NLRB 1147 (1977); and Carda Hotels, Inc., d/b/a
Holiday Hotel & Casino, 228 NLRB 926 (1977). In another
context, this view has recently been adopted by a circuit
court of appeals. See Nazareth Regional High School v.
N.LR.B., 549 F.2d 873 (C.A. 2, 1977).
establish that Wireman receives no compensation from Respondent and is
paid by the motels whose patronage Ponderosa, not a motel, solicits as part
of tours. Be that as it may, I nevertheless find that Wireman was a
supervisor for Respondent at the time material herein.
6 The transcript incorrectly reflects the year as 1975.
94
PONDEROSA HOTEL & CASINO, INC.
3. The attempt to rebut the presumption of
majority representation
Respondent has advanced a number of reasons as to its
purported good-faith doubt, from August 1974 through
mid-December of that year, that the Union represented a
majority of the employees in the above-described appropri-
ate unit. These are as follows:
President Tripp relied on daily terminations in the entire
enterprise beyond the instant unit, although mostly in the
culinary department, these being at a rate of 300 percent in
1973, in excess of a rate in 1972.
The Union lost an election in 1968 for a unit of
employees other than those in the unit involved herein.
The Union never won an election for the employees in
the unit involved herein.
In August 1974, a Reno morning newspaper attributed to
Bramlet a statement that the Union enjoyed but a 20-
percent representation in establishments organized in this
area.
No grievances had been filed concerning the working
conditions of employees at Respondent.
Respondent was located in a right-to-work State and
perforce there could not be compulsory union membership.
A number of employees in the culinary department
queried Mr. Tripp during the period from August through
December 1974 concerning union membership. Twelve to
15 employees, and he named several of them, were
involved. Mr. Tripp allegedly was questioned concerning
the company insurance benefit as contrasted with the
union plan. He allegedly replied that they did not have to
make a choice; Mr. Tripp added that two or three
employees questioned the requirement that union dues be
paid.
Mr. Tripp further testified that his wife told him that
during the first 10 days of December 1974, "a very vast
majority" of the employees in the indicated unit expressed
disinterest in the Union.
Mr. Tripp further relied on the fact that there was no
checkoff of union dues.
Mr. Tripp testified that he was duly advised by named
counsel in San Francisco, after telling him of his belief that
there was little interest in the Union, that an election
should be held; the record demonstrates that such an effort
by Respondent was abortive.
Respondent also relies on the fact that the Local had
been placed under trusteeship by its International and that,
pursuant thereto, the Union strove, at the time material
herein, to enroll members.
It would appear to be manifest, on the basis of the cases
cited above, that the Board considers this to be qualitative-
ly insufficient to support a good-faith doubt by an
employer that it would not honor an assertion by a labor
organization that it represented a majority of the employ-
ees in the appropriate unit. It therefore follows that I am
constrained to reject the defense of the employer herein
and I accordingly find that the employer has refused to
bargain in good faith within the meaning of Section 8(a)(5)
and (I) of the Act.7
CONCLUSIONS OF LAW
1. Ponderosa Hotel & Casino, Inc., is an employer
within the meaning of Section 2(2) of the Act.
2. Hotel-Motel-Restaurant Employees & Bartenders
Union Local 86, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All bar and culinary workers of Respondent at its
place of business in Reno, Nevada, excluding all other
employees, guards, and supervisors, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union was and now
is the majority representative of the employees in the
aforesaid bargaining unit within the meaning of Section
9(a) of the Act.
5. By refusing to recognize and bargain with the Union
as the representative of the employees in the above-
described appropriate unit, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the foregoing, by questioning employees concern-
ing their union sympathies, by asking employees to record
their desires as to union representation, by asking employ-
ees what they heard from the Union, by stating that any
employees who went on strike would not be rehired, and by
stating that anyone who joined or belonged to the Union
would be discharged, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has violated Section
8 (aX5) and (1) of the Act by unlawfully withdrawing
recognition from the Union and by refusing to bargain
with said Union as the exclusive representative of its
employees in the above-described appropriate unit, I shall
recommend that Respondent be ordered to recognize and,
upon request, bargain in good faith with the Union as the
exclusive representative of its employees in said unit and, if
an understanding is reached, embody such understanding
in a signed agreement.
Upon the foregoing findings of fact, conclusions of law,
and on the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
But cf. Star Manufacturing Co., Division of Star Forge, Inc. v. N LR. B..
536 F.2d 1192 (C.A. 7, 1976).
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER8
The Respondent, Ponderosa Hotel & Casino, Inc., Reno,
Nevada, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Hotel-Motel-Restaurant Employees & Bartenders Union
Local 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, as the representative of its
bar and culinary workers, excluding all other employees,
guards, and supervisors.
(b) Questioning employees concerning their union
sympathies, asking employees to record their desires for
union representation, telling employees that any employees
who went on strike would not be rehired, and telling
employees that everyone who joined or belonged to the
Union would be automatically discharged.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Recognize and, on request, bargain in good faith with
Hotel-Motel-Restaurant Employees & Bartenders Union
Local 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, as the exclusive represen-
tative of its employees in the unit described above and, if a
contract is reached, sign same.
(b) Post at its premises in Reno, Nevada, copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by a representative of
Respondent, shall be posted by it, immediately upon
receipt thereof, and 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 Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(c) 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.
I 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.
9 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 refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Hotel-Motel-Restau-
rant Employees & Bartenders Union Local 86, Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO, as the exclusive representative of
our bar and culinary workers, excluding all other
employees, guards, and supervisors.
WE WILL NOT question employees concerning their
desire for union representation, ask employees to
record such desires, tell employees that any employees
who went on strike would not be rehired, or tell
employees that anyone who joined the above-named
labor organization would be automatically discharged.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them under Section 7 of the
Act.
WE WILL, upon request, recognize, and bargain with
the above-named labor organization as the exclusive
representative of all employees in the bargaining unit
described above with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement.
PONDEROSA HOTEL &
CASINO, INC.