Primadonna Club

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 111 (N.L.R.B. 1967)

PRIMADONNA CLUB 111
Primadonna Hotel , Inc., d/b/a Primadonna
Club and American Federation of Casino
and Gaming Employees . Cases 20-CA-3733
and 20-CA-3901
May 31,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 16, 1966, Trial Examiner Allen
Sinsheimer, Jr., issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Trial
Examiner ' s Decision and a brief in support thereof,
and a brief in answer to the General Counsel's cross-
exceptions. The General Counsel filed a brief in
answer to the Respondent's exceptions, cross-
exceptions to the Trial Examiner's Decision, and a
brief in support of cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this proceeding, including the Trial
Examiner's Decision, the Respondent's exceptions,
the General Counsel's cross-exceptions, and the
briefs, and hereby adopts the findings,' conclusions,
and recommendations ' of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Primadonna Hotel, Inc.,
d/b/a Primadonna Club, Reno, Nevada, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
i On October 15, 1966 , after the close of the hearing but prior to
issuance of the Trial Examiner 's Decision on November 16, the
Charging Party , in a telegram to the Trial Examiner , asserted that
it had " information that testimony of two witnesses in support of
the complaint in these cases was in part untrue " Thereafter, by
letter dated October 28, the Regional Attorney for Region 20
requested the Charging Party to -advise him immediately of any
such information This request was repeated on November 17 and
December 5 We have been advised by the Regional Attorney that
the Charging Party's attorney , on December 29, reviewed the
transcript of the hearing and advised the Regional Attorney "that
he did not intend to take any further action in this case because
the Trial Examiner had discredited the testimony of the witnesses
which allegedly had testified falsely " By letter dated January 10,
and served on all the parties , the Regional Attorney requested the
Board to proceed with the processing of these cases in light of the
Charging Party's failure to furnish information substantiating its
assertion
On January 26, 1967, the Respondent filed its exceptions and
supporting brief attached to which is an undated , unsigned
document purporting to be a "Memorandum of Charging Party in
Support of Respondent ' s Exceptions to the Trial Examiner's
Decision " This "Memorandum ," inter alia , asserts that
"evidence available to the charging party indicates" that Florence
Dyer, found by the Trial Examiner to have been discharged by
Respondent in violation of Section 8(a) 3), "was not
discriminatorily discharged and that evidence given at the
trial that she was is untrue " On February 20, the General
Counsel, in his answering brief, states that the Respondent, not
the Charging Party, furnished Region 20 with this
"Memorandum " poor to the filing of the Respondent's
exceptions , and again points out that "The Union has not at any
time offered any specific evidence to support its assertion that it
believed that two witnesses had lied "
On the basis of our analysis of the entire record , we conclude
that there is no evidence warranting reversal of the Trial
Examiner's credibility resolutions with respect to the discharge of
Dyer or in any of the other respects urged by the Respondent
Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F 2d
362 (C A. 3).
L We deem it unnecessary to decide whether the Respondent
engaged in certain 8 (a)(1) violations in addition to those found by
the Trial Examiner , as urged by the General Counsel's exceptions,
as such violations , if found, would be cumulative , and as such
findings would, in any event, not enlarge the scope of our Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , J R., Trial Examiner: This
proceeding was heard before me in Reno , Nevada, on
March 15-18, 21-25, and 29-31 and April 1, 19, and 20-22,
1966.' The consolidated amended complaint (issued
February 16, 1966 ), as further amended at the hearing,
alleges that Primadonna Hotel, Inc., d /b/a Primadonna
Club 3 has engaged in numerous specified violations of
Section 8 (a)(1) and (3) of the National Labor Relations Act,
as amended . Respondent ' s answer4 admits certain
jurisdictional facts, but denies the allegations as to the
' Charges were filed in Case 20-CA-3733 on August 10 and 16
and November 29, 1965 A charge was filed in Case 20-CA-3901
on December 30, 1965
i The consolidated amended complaint was further amended
during the hearing on March 23, 1966 (over objection of
Respondent), by adding on the fourth line of paragraph IV,
subparagraph (d) after the words " providing for" the words "paid
vacations "
9 The legal name of Respondent as corrected at the hearing
' Respondent 's answer was amended at the hearing to correctly
reflect its legal name , and to apply to both Cases 20 -CA-3733 and
20-CA-3901
165 NLRB No. 14
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filing and service of the charges,5 that Respondent is
engaged in commerce or operations affecting commerce
within the meaning of the aforesaid Act, that the Union is a
labor organization within the meaning of said Act, and the
commission of any alleged unfair labor practices.
Respondent also moved at the hearing to dismiss
paragraph VI of the complaint on the ground that there
was no charge filed pursuant to Section 10(b) of the Act,
upon which the detailed allegations thereof could be
based. This motion was denied. The charges upon which
the complaint is based allege certain discharges were in
violation of the Act and "by the above and other acts and
conduct, the employer has interfered with, restrained and
coerced employees in the exercise of rights guaranteed
them under Section 7 of the Act."6 Respondent contends
that his charge is too general to support paragraph VI.
Both the Board and the courts have held otherwise,' and I
find that the charges are sufficiently related thereto to
permit the allegations of paragraph VI. The Charging
Union had sought to have the Regional Director dismiss
the allegations of violation of Section 8(a)(1) contained in
paragraph VI of the complaint, which request was denied
by the Regional Director. Respondent, at the hearing
requested me to dismiss these allegations based on the
same request of the Union. This was denied. Respondent
apparently contends that such was tantamount to a
request to withdraw the charge so there was no charge on
which paragraph VI of the complaint could be based. This
contention also is without merit and was rejected at the
hearing and is herein.8
5 Although denying the allegations as to filing and service of the
charges, at the hearing , Respondent stated that it had no question
as to service of the formal papers Moreover, the formal papers
received in evidence containing verifications of the individuals
serving the charges by registered mail, together with the post
office return receipts therefore, establish that said charges were
served on or about the times alleged in the complaint To the
extent there may have been any variances from the exact dates
alleged, they are immaterial to any issue herein
" Respondent also sought to introduce other withdrawn charges
filed against it by the same union which had been more detailed
and specific These were rejected as immaterial
r N L R B v. Raymond Pearson Inc, 243 F 2d 456 (C A 5);
Texas Industries v N.L.R B., 336 F.2d 128 (C.A 5), Raser Tanning
Company v N L.R.B., 276 F 2d 80 (C A. 6), N.L.R B. v Kohler
Company, 220 F 2d 3 (C.A 7)
" Once a proper charge is filed, action to be taken thereon is
within the sound discretion of the General Counsel acting through
his representatives-in this case , the Regional Director "who
proceeds not in vindication of private rights, but as representative
of an agency entrusted with the power and the duty of enforcing
the Act in which the public has an interest " New York Central
Transport Company, 141 NLRB 1144; Local No. 511, United
Brotherhood of Carpenters & Joiners of America, AFL-CIO (New
Mexico Building Branch, Associated General Contractors of
America), 120 NLRB 1658 In its brief, Respondent cites the
recent Board Decision in Local 638, United Association of
Journeymen, Plumbers (Rowland Tompkins, Inc.), 158 NLRB 140,
for the authority of a Trial Examiner to grant a Charging Party's
motion to withdraw charges even over objections of the General
Counsel. No such question was here presented, since the
Charging Party did not appear at the hearing or file such a motion
with the Trial Examiner
" No testimony having been adduced as to subparagraph (q) of
paragraph VI of the complaint, it was dismissed upon motion of
Respondent without objection at the conclusion of the General
Counsel's case
On August 8, 1966, the General Counsel filed a motion to
correct the record in certain detailed respects On August 29,
Respondent filed a motion joining in the General Counsel's
motion with the exception of five items which Respondent
opposed and one which Respondent agreed to with a change.
Upon the record, including consideration of briefs filed
by the parties, and upon my observation of the witnesses, I
hereby make the following:9
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Nevada corporation, operates a
restaurant, bar, and gambling casino in Reno, Nevada. It
annually receives revenue in excess of $500,000 from these
business operations and in the course thereof, annually
purchases and receives goods valued in excess of $50,000
from outside the State of Nevada.
Respondent contends alternately that the business
involved, i.e., "Gambling" does not affect commerce
within the meaning of the Act, and if it does, that it will not
effectuate the policies of the Act to assert jurisdiction over
such business. The Board has carefully considered like
contentions in other cases involving this industry in
Nevada and asserted jurisdiction.10 I find that the
business of the Respondent affects commerce within the
meaning of the Act and that, within current Board
jurisdictional standards, it will effectuate the policies of
the Act to assert jurisdiction over it. I 1
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Casino and Gaming Employees
is, and contrary to Respondent's denial, has been at all
Respondent also moved to correct the record in certain additional
respects as to which no opposition has been filed The foregoing
motions and opposition have been duly considered and the court
reporter consulted as to accuracy of transcription of notes relative
to page 281, line 11; page 1520, lines 5 and 9, and page 2000, line
20 Based on the foregoing, the General Counsel' s motion is
denied as to changes requested on page 47, line 22, page 281, line
11, page 1520, lines 5 and 9, page 2000, line 20, and page 2265,
line 10 which appears to be gramatically accurate as is However,
in passing , I note that page 281, line 11 , may make better sense as
$25 instead of $45, but, it is not entirely clear, from the context,
what was intended Also, page 2000, line 20, would seem to make
better sense with the word"promise" than the word " guarantee "
With respect to the following, the General Counsel's motion is
granted so as to correct the second "she" on page 249, line 24, to
"he", to correct the second "you" on page 419, line 3, to "he", and
at page 1177, line 9, to correct "$25" checks to "twenty $5
checks " In all other respects, the General Counsel's motion to
correct the record is granted Respondent' s motion to correct the
record is granted in all respects requested. [Additional
corrections in the record have also been made sua sponte.] All of
the record corrections as made pursuant to the above are set forth
in Appendix "A" [not published]
10 El Dorado Inc., d(b)a El Dorado Club, 151 NLRB 579;
NLRB v Harrah's Club, 362 F 2d 425 (C A 9)
" The facts set forth are admitted Respondent presented
additional evidence similar to that considered in the El Dorado
cases which was received without objection Respondent sought
to introduce still other evidence consisting of a compilation of
data as to racing revenues in other States of the United States
which at first rejected as hearsay, was ultimately rejected as
immaterial In its brief, Respondent again requested that this
material be considered, asserting that it's rejection was
erroneous The rejection, on ground of immateriality, is hereby
affirmed Respondent also on July 5, 1966, filed a motion to
reopen the record for the purpose of receiving additional evidence
on the jurisdictional issue on the ground that receipt of such was
necessary because of the Decision of the Court of Appeals for the
Ninth Circuit in Harrah's Club supra, fn 10. A like motion was
presented to the Board in that case and denied on July 18, 1966
The aforesaid motion filed herein is accordingly denied
PRIMADONNA CLUB
times material herein , a labor organization within the
meaning of Section 2(5) of the Act."
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges some 18 items of violation of
Section 8(a)(1) of the Act by officials or supervisors of
Respondent, including threats of discriminatory treatment
for joining the Union or engaging in union activity,
promises of benefits, or announcement of plans for
benefits after the Union started an organizing campaign,
interrogation of employees concerning signing of union
authorization cards and union activities, illegal restrictions
on soliciting for the Union on company premises,
instigation of informing as to union contacts, etc. The
complaint further alleges violation of Section 8(a)(3) of the
Act by discharging four employees, three on August 6 and
7, 1965, and one on November 22, 1965. Respondent
denies commission of any violations of Section 8(a)(1),
although in some instances, through testimony, admitted
that certain conduct occurred. There is no issue as to the
occurrence of the discharges on or about the dates alleged,
but in each case, valid cause is asserted and
discriminatory motive denied. Respondent also denies
knowledge of any union activity on the part of any of the
persons discharged. Supervisory status of persons, where
material , is stipulated or conceded.
B. Supervisory Status
Accordingly, it is found that at all times material to the
issues herein, the following named persons occupied the
positions set forth opposite their respective names, and
have been at all times material herein, agents of the
Respondent acting on its behalf and are supervisors within
the meaning of Section 2(11) of the Act: Ernest J. Prim,
Respondent's president; Allen Roberts, general manager
and vice president; George Piazza, shift manager; Herb
Grellman, shift manager; and William R. Troye, assistant
shift manager or shift manager.
C. Background and Commencement of Union Activity
According to Union Treasurer Emery, organizational
activities commenced in Reno at the gambling casinos
including the Primadonna about the middle of March 1965.
The campaign at the Primadonna, among the casino
employees, appears to have been active during April, with
the record reflecting signed union authorization cards
beginning with dates of April 9 and 10. The Respondent
admits learning of organizational activity on April 17,
when George Piazza, shift manager, saw three women
employees in the alley between the Primadonna gambling
casino and its restaurant. Piazza asked what the white
cards were that they were holding, and was shown blank
union authorization cards. Piazza reported this to General
Manager Roberts that day. The following day, April 18,
Roberts observed a union organizer, Mahan, in the alley
and about the same time, spoke to three other persons
" El Dorado Club, supra, fn 16 of that Decision In addition,
the constitution of said organization and testimony in the record
establish that it is an organization "in which employees
participate and which exists for the purpose in whole or in part of
dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment or conditions of work "
113
whom he identified as union representatives, in the bar of
the Primadonna. One of these, according to Roberts, told
him that when "this is organized" they would get rid of the
women and then the men would not have any trouble
getting a job. The Union continued its activities and a
number of women employees signed union authorization
cards on April 23 and 24.
D. Alleged Acts of Interference, Restraint, and Coercion in
Violation of Section 8(a)(1) of the Act
1. The April 24 discussion with Roberts
On Saturday, April 24, an incident occurred involving
Roberts as to which the testimony is in dispute. According
to Lucille Hagemeyer (who voluntarily terminated her
employment May 24), she had signed a card on April 23.
The following day, in the presence of Molly Turnbow and
Marjorie Curtis, Roberts, while sitting at a "21" table in
the casino and holding an authorization card, pointed out
that the card had no local union number, that they were
authorizing the Union to use them in any way it wanted,
were actually signing their "jobs" away, and "that we
could be replaced by men dealers." According to
Hagemeyer, Roberts also said "he knew most of us had
signed those cards and he didn't think that his girls could
be so stupid as to let these people use us in that way."
Molly Turnbow13 (who finally terminated her employment
September 7), testified that Roberts, while holding a card
in his hand and talking to her, Curtis, and Hagemeyer,
asked them if they had signed cards and said: "I give you
credit for having more sense than that. Don't you know you
have just signed your `lives' away?" and then said "you
can be replaced by men dealers." Roberts also mentioned
that there was no local union number on the card.
According to Molly Curtis," a witness for the Respondent,
who has been employed by the Primadonna for 4 years, on
the afternoon of April 23, 1965, Roberts came up to her
table and stood beside her while Molly Turnbow was at the
table behind her facing the opposite direction. Curtis
stated she did not see Hagemeyer,15 that Roberts asked her
if she signed a card, to which she answered "Yes" and he
asked "Why?" She replied, "All the girls were signing
them, and one was handed to me and they asked me if I
would sign it." According to Curtis, Roberts also said,
"there is no price on this card, they can charge you
anything they want to join this union." Curtis denied that
Roberts had said they could be replaced by men dealers,
or that they "just signed their `lives' away" or "He did not
think the girls were so stupid as to let the Union use them"
in this way.
Roberts testified that he was reading a card which had
been obtained from organizer Mahan when Curtis came up
and asked where he got it and then volunteered that she
had just signed one. Roberts asked: "What organization
was it, what is the number of your local? You have now
joined the Union"; to which Curtis replied, "No, I signed it
just in blank and I can get it back." According to Roberts,
Turnbow said it was for the purpose of getting materials to
show what the Union will get them. Roberts then read from
the card which read: "I hereby designate the American
" Turnbow signed a card April 24.
" Curtis signed a card April 24.
's On cross-examination , in response to a question , "Do you
recall seeing Mrs Hagemeyer there9" Curtis answered, "yes "
There was no amplification of this, and it is not clear whether
Curtis was changing her previous testimony.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation of Casino and Gaming Employees, Local Union
No. to represent me for the purpose of collective
bargaining. . . " and said, "I thought my girls were too
smart to sign a piece of paper in blank and hand it to
anyone. You have now signed your `rights' away for these
people to represent you." (Emphasis supplied.) He stated
that Hagemeyer was not present and denied saying that
the girls were signing their jobs away, or they could be
replaced by men dealers, or that they had signed their
"lives" away, but rather he had used the word, "rights."
Roberts also denied saying they could be replaced by men
dealers, but when questioned by Respondent's counsel,
admitted he may have mentioned, "That the men were
only trying to get the Union organized around there ... so
they could scoot the girls out like they did in Vegas and
take their jobs." Later, when asked by the General
Counsel, Roberts denied that he had relayed this
conversation to the girls.
Significantly, bearing on this reference to replacing
women with men dealers, is the fact that it is mentioned in
both a release distributed by Respondent to its employees
on or about April 27, and another issued soon thereafter.
The April 27 document addressed to "employees" reads:
"Why should an outsider from Las Vegas suddenly
become interested in my welfare? [in Las Vegas there is
an ordinance preventing women from working as
dealers]." The other release addressed to all casino
employees poses the following question: "Ask the Union
representative about the surplus of male 21 dealers in Las
Vegas. Do they intend to put them to work in Reno?" It is
evident from these documents that the Respondent had in
mind, as part of its presentation in opposition to the Union,
this potential threat of replacement of women by men
dealers. Roberts knew of this before speaking to the girls
on April 24, and it is emphasized in both the above
releases. Whether used in the context of "signing `jobs'
away" (Hagemeyer), "signing `lives' away" (Turnbow),
"signed `rights' away" (Roberts), it is logical to assume
that some additional reference or specificity was asserted
such as a statement, "You can be replaced by men
dealers." That this was made in such context is
accordingly supported, not merely by the testimony of
Hagemeyer and Turnbow in this respect, which I credit,
but also by the timing of this conversation shortly after
Robert' s meeting with the organizers, and shortly before
the releases. In addition, I considered Turnbow's
testimony throughout to be forthright and reliable.
Assuming the statement that the women "could be
replaced by men dealers" was made in the context of
"signing away `jobs' or `lives' or `rights'," is there any
material difference in result as to its impact or effect
herein, which of these was said? I think not. Does it imply
a threat to the jobs of the girls to whom it was addressed?
Since Respondent has control over employment, it is
evident, although not specifically I so stated, that any
one of the quoted statements as to the effect of signing
when coupled with the assertion that the women could
then be replaced by men, is the equivalent of a threat that
by so signing, the employees were subjecting themselves
16 LMRA as amended 29 U S C Sec 151, et seq , particularly
158 (a)(3) and 158 (b)(2)
" Nev Rev Stat 613 230 to 613 300
18 See also the fair employment provisions of the Civil Rights
Act of 1964 (Public Law 88-352) effective commencing July 1965
i" Insofar as Respondent sought to renew its motion to dismiss
this allegation in its brief, it is denied
to discharge. This conclusion is further supported by the
fact that, neither under the LMRA as amended," nor the
Nevada right to work law," could the Union have legally
brought about such a result.'' I accordingly find, as
alleged, that on or about April24, 1965, Respondent
threatened employees with discharge for signing union
authorization cards in violation of Section 8(a)(1))9
2. The April 26 discussion with Prim and the matters of
insurance, vacations, and holidays
Ernest Prim, president and principal stockholder of
Respondent, testified that he first learned of the union
organization from George Piazza about April 19 or 20. On
April 26, a discussion, which related to the Union, took
place in the "21 Pit"20 between Prim and the dealers who
were waiting to go to work. Present were: Prim and
employee-dealers, Lucille Hagemeyer,VirginiaiMcKeehan,
Verda Wilson, Jean Hansen, and Molly Turnbow, who
were witnesses for the General Counsel, and Lorraine
McSkimmings, Marie Bennett, and Marjorie Curtis, who
were witnesses for Respondent. There is considerable
conflict in the testimony as to what was said by Prim and
how he appeared and acted. According to Hagemeyer,
Prim told them to ask anything they wanted about the
Union, that the Union could not guarantee them job
security, that, as to paid vacations, paid holidays, group
insurance , and other benefits, this "Union was offering us,
we did not need a Union to give us these things, that he
could give them to us himself." Hagemeyer further
testified that McKeehan asked Prim why he waited until
the Union came in to tell them about these things, to which
Prim replied that the club had been in the process of
getting insurance for them. Prim then went on "to tell us
about Hanley's gang and what a mobster gang they were
and how he had been in jail and wanted to know if this was
the kind of leader we wanted, if this was the kind of union
we wanted." Hagemeyer then said Prim made a statement
"to the effect that he could get any number of people to
say that we were thieves and that we could all be replaced
at any time and then see what kind of a situation we would
be in."
According to McKeehan, when Prim came in, he was
very red-faced and waving his arms and asked in a loud
voice "who signed up for the Union? I have reports that all
my swing shift signed for the Union." She stated that
someone asked about job security, which the Union was
promising, and Prim said the Union could not get us job
security, "that only the employer could give us job
security." She then asked about reasons for termination,
and Prim said he always gave reasons. Marie Bennett
asked what about the termination of George Redican, to
which Prim replied, this had nothing to do with the
conversation. The subject of job security was again
discussed, and Prim was quoted as saying, "If I want to
fire anybody, I can do so and I can get 15 people to swear
or testify that they are a thief, then let's see them get a
job." According to McKeehan, Lorraine McSkimmings
came in, put her arm around Prim and said, "What are you
'0 The "21 Pit" is that area in the casino where the blackjack or
"21" game tables are located Respondent operates from 15 to 17
tables ( depending on the time of year ) located on either side of an
aisle which runs the length of the pit Supervisors constantly
watch and supervise the play , either by standing by or walking
back and forth
PRIMADONNA CLUB
going to do for us Big Daddy?" to which Prim replied,
"Oh, I'm going to take care of all of you." McKeehan
added that Prim said he was going to get us insurance and
paid vacations, and showed pictures of Hanley stating, "Is
this the kind of people you want to run your jobs? They are
nothing but a bunch of hoods and racketeers and all they
want from you is your money."
Verda Wilson testified that Prim said, "I have been told
that all of the swing shift people signed cards ... all you
have to do is come to me. You don't need a union to do
these things. . . . I am going to give you paid vacations. I
am going to see to it that you have insurance and other
benefits. I will do all these things for you. I have been
making plans and you will all receive a letter about this
tomorrow." According to Molly Turnbow, Prim said that
we didn't need a union; that he could give us all the things
that a union could.
Hagemeyer, McKeehan, and practically all witnesses for
both General Counsel and Respondent testified that, prior
to this time, no one from management had mentioned paid
vacations, paid holidays, or hospitalization.
Prim stated that when he came in, the girls were looking
at clippings taken from Las Vegas newspapers referring to
the Union. He was asked about job security and replied he
had never heard of job security in a gambling house. He
told them they were going to get health insurance , "we had
already started it." As to job security, he said, "the Union
could guarantee [promise?] them anything, but couldn't
guarantee them anything unless I agreed to it." Prim said
he couldn't give seven holidays. "I might get in two," and
"I told them that I could do anything for them that the
Union could do for them." With respect to union
leadership, while the girls were looking at clippings (which
referred to alleged violence and criminal charges involving
certain union officials), Prim said "that's the type of union
that you might be involved with here." Prim denied asking
about who signed up for the Union, and denied saying that
he had reports that all of his swing shift signed up for the
Union. He further denied any statement to the effect that
he could fire anybody he wanted to, and could get any
number of people to testify "they were a thief." Prim
stated he told the girls they would get a letter the next
morning outlining the Company's position.
Those matters as to which testimony is in conflict which
may be material are: (1) Whether Prim asked who joined
and said he had been told all or most of his swing shift had;
(2) whether, and to what extent Prim promised paid
vacations, paid holidays, and paid insurance ; (3) whether
Prim stated he could fire anyone he wanted and have
witnesses who would testify he (or she) was a thief.
Further, if such statements were made, in what context?
And what do they signify?
In addition to the testimony of McKeehan and Wilson,
that Prim said the swing shift signed cards, Respondent's
witness Curtis testified she believed Prim said, "He had
heard most of the club signed up" and McSkimmings, a
Respondent witness, testified "he (Prim) said that he had
heard rumors that a great deal of us had signed." The
foregoing indicates , contra to Prim's denial, that he had
" In July 1964, by resolution of the Board of Directors, the
Company had adopted, effective immediately, a vacation plan for
the maintenance department, keno department , slot machine
mechanics, and casino cashiers Previously, only business office
employees and employees covered by contract with Bartenders
Local 86 and Culinary Workers Local 45 had received vacations
Chairman Prim expressed a desire to extend vacations to the rest
of personnel " in gradual steps as financial condition of company
115
asserted that all or most of his swing shift had joined, and I
find that he made such a statement. If he asked, "Who
signed up?" (as testified to by McKeehan) followed by a
reference to "I have reports that all my swing shift signed
up for the Union" it would appear at most, to be part of a
total statement rather than an attempt at interrogation.
However, I do not find that Prim said "who signed up"
since it is not referred to by any other witness who testified
in detail. While the assertion of knowledge as to the swing
shift signing, is not alleged or found to be an unfair labor
practice, it does indicate knowledge by the Respor?-nt of
union activities and membership of its employees.
As set forth, Prim admitted stating that the employees
were going to get health insurance and that he had said he
could not give seven holidays, but might "get in two."
Testimony of practically all of General Counsel
witnesses and of Respondent witnesses, Curtis and
McSkimmings were that he said he was working on, and
they would have paid vacations and insurance. According
to Respondent witness Bennett, Prim said insurance was
in the making, and he would like to give vacations.
Respondent witness, McSkimmings, on cross-
examination, testified as follows:
Q. Did Mr. Prim tell you at that meeting you didn't
need the Union to get vacation benefits and
insurance?
A. Yes.
Q. He said that he could get them for you, right?
A. Yes.
Q. All you had to do was go to him and ask him,
right?
A. He didn't say we had to come to him and ask
him. We did ask him. We would like to have
insurance.
Q. Didn't he said at the meeting that the benefits
you wanted could be obtained by asking him without
going to the Union?
A. Yes.
The testimony of Hagemeyer, Wilson, Turnbow, and
Curtis was to similar effect. As set forth, Prim himself
admitted saying, "He could do anything for employees the
Union could do." By itself, this may be nothing more than
a proper declaration of fact, but in connection with other
assertions and context, it can be construed as a promise to
do certain things the Union had promised to do as an
alternative to union organization.
Respondent, however, contends otherwise and says it
was introducing an insurance program and proposing
vacations and holidays in accord with plans previously
considered and adopted by other departments, and in
order to meet competition. It offered evidence that it
adopted a vacation program for certain other employees by
action of the Board of Directors in July 1964,2 t but did not
apply it to all employees because of financial limitations,
and that the same prevented the introduction of a
participating insurance program which Prim had
purportedly discussed as early as 1963.
However, no showing of improved financial position was
made, and no participating insurance program or vacation
permitted " Consideration of a participating group like insurance
plan "was deferred for future action due to financial
commitments of the Company " No further meetings of the Board
of Directors relative to insurance benefits, vacations (or holidays),
were held prior to the discussions and announcements relating
thereto in April and May 1965 set forth above and the introduction
of participating insurance in May and June
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or holiday proposal covering casino employees was
instituted or proposed until after the Union commenced
organizational activities. Respondent's Secretary-
Treasurer Mooney was asked who brought up the subject
of a group insurance plan in 1965 and when. Mooney
replied he believed Prim did in May.22 As for the alleged
loss or threat of loss of employees to competitors because
of lack of these programs, the record shows that the
programs at two of its largest competitors have been in
effect for years. One, Harold's Club, had a paid vacation
plan for employees since 1960 and a participating group
insurance for approximately 13 years,23 and the other,
Harrah's, has given participating group insurance,
vacations, and holidays to casino employees for several
years. Further testimony indicated that practically all
present employees of Primadonna were formerly
employed at other clubs. There is no testimony that the
Respondent was actually unable to obtain help during the
summer peak season, and in fact, as set forth hereinafter,
it terminated three employees on one shift within 2 days,
early in August during the busy season.
From the foregoing and the entire record, it is manifest
that no definitive plans to put into effect participating
insurance, vacations, or holidays had been projected prior
to the advent of the Union.24 Moreover, even discussion of
extension of participating insurance and vacations to
employees here involved had been shelved because of
financial commitments, and there is no evidence of any
change in this respect. Nor was there indicated any
competitive pressure in 1965 different from that existing
for several years prior thereto which was not shown to
have resulted in any inability of Respondent to obtain an
adequate staff.25
Accordingly, I find Prim on April 26, 1965, made such
promises relating to insurance, vacations, and holidays, as
stated by McSkimmings, et al., supra, to cause employees
to abandon the Union or not to join or participate in the
Union or its activities. I do not find any promise to grant
pay increases other than the statement that he could do
anything for the employees that the Union could do, which,
apart from a more specific context, I do not infer as a
promise to give a pay increase.
On or about April 27, Respondent distributed to all
employees the announcement previously referred to in
which it stated:
... Management of the Primadonna Club over the
past several months has been planning a fringe
benefit program which consists of paid vacations,
hospitalization, insurance benefits, and paid holidays.
We are starting with two paid holidays-(Thanksgiv-
ing Day and Christmas Day.)26 This plan is in process
of being finalized. We want you to clearly understand
that we were working towards these plans prior to this
attempted organization , and in fact portions of these
it Actually, the letter from Respondent to employees dated
April 27, following the discussion between Prim and certain
employees on April 26, 1965, supra, also refers to group insurance
as well as vacations and holidays as set forth tnfra.
21 It appears that the first knowledge by Primadonna of details
of the plan at Harold's Club was obtained during the course of the
hearing in this case
24 Hence, cases cited by Respondent such as T L. Lay Packing
Company, 152 NLRB 342, and Derby Coal & Oil Co, 139 NLRB
1485, are inapropos.
25 Here too, cases cited by Respondent dealing with benefits
granted, due to competitive pressures, are inapplicable
is These holidays were not put into effect on advice of counsel
following the filing of a petition with the NLRB Regional Office by
plans have heretofore been put into effect in regard to
other departments in the Club. In the event you are
represented by the Union, these matters will be subject
to negotiation. (Emphasis supplied.)
I find the promise of benefit contained in this
announcement as well as Prim's statements of April 26 to
the effect that the employees would be given insurance
benefits, paid vacations, and paid holidays to constitute
interference with, restraint, and coercion of employees in
the exercise of rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1).
About May 10 and 14, 1965, Respondent caused and
permitted representatives of an insurance company to
solicit employees enrollment in a participating group
health insurance plan, and on June 1, 1965, said plan
became effective pursuant to an announcement of
Respondent issued late in May which read: "We are
pleased to notify you that the group insurance plan
recently discussed with you goes into effect June 1, 1965.
As you knew, the Primadonna Club is paying half the
premium on this plan...."
I find that by causing such solicitation for enrollment in
said plan, Respondent further interfered with, restrained,
and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) thereof.
Respondent vigorously denies that Prim, on April 26,
said he could "fire anyone and have 15 persons say he was
a thief" or words to such effect. A preliminary issue is
whether or not it is necessary to resolve credibility in this
respect. The General Counsel contends this statement
supports an allegationL7 that Prim "threatened to fire all
union members and hire nonmembers of the Union in their
stead." I have carefully analyzed the testimony as to the
context in which this alleged statement was made, some of
which is set forth above. Respondent claims any
discussion as to right or ability to terminate related to one
Redican and to no union issue. While not precisely
"pinned down" in the testimony, the alleged discussion as
to discharge or termination appears to relate, follow, or be
connected to a discussion of union security.28 Accordingly,
the claimed assertion would seem to be at most a threat
that the Union could or would not be effective in dealing
with discharge grievances. There is no allegation in the
complaint as to such. Rather, the General Counsel
contends that by such statement, Prim threatened to
discharge employees for joining the Union. I am unable to
draw such an inference from the testimony relating to the
discussion with Prim on April 26.
3. Conduct of George Piazza
Subparagraph (e) of paragraph VI of the complaint
alleges that on or about April 27, 1965, George Piazza, shift
the Union April 28, which Respondent learned of April 30
t' Subparagraph (b) of paragraph VI
is Although in accord that Prim had said words to the effect
that he could fire a person and get witnesses to say the person was
a thief, the witnesses for the General Counsel could not all place
the context of such claimed assertion . Hagemeyer and Wilson
could not recall what preceded it. McKeehan , Hansen, and
Turnbow testified that it followed a discussion of job security in
which Prim asserted only the Employer could give it. Respondent
witnesses Bennett and McSkimmmgs had no recollection of any
discussion of job security Respondent witness Curtis and Prim
himself admitted a discussion of job security , but they, Bennett
and McSkimmings , denied that Prim made any statement about
"firing" and having witnesses who would call a person a thief
PRIMADONNA CLUB
manager , interrogated an employee concerning his signing
a union authorization card. Employee lone Paulk testified
that Piazza interrogated her on April 25. She said he asked
her on that date whether she had signed an authorization
card, and after trying to avoid answering him, she replied
that she had. Piazza admitted interrogating Paulk, but
claimed that it took place on April 18, and that she had
refused to answer whether or not she had joined the Union.
Piazza admitted that he had interrogated practically
everyone on his shift, and named six persons specifically
whom he had questioned. One of these, Turnbow, testified
that Piazza had questioned her on April 21 after she had
signed a card, and that she admitted signing it . Piazza
testified that he had questioned her, that she had admitted
signing a card, but claimed that the date of the
interrogation was April 18. It is evident from the card in
evidence, dated April 21, that if Turnbow answered "yes,"
as testified to by both her and Piazza, then the
conversation must have occurred on or after April 21. In
the light of this and the testimony of Paulk, I am convinced
that Piazza is in error, and the conversation with Paulk
occurred on April 25, and was as testified to by her. This is
sufficiently related to the allegation in the complaint to
support a finding that Piazza interrogated her as alleged in
subparagraph (e) of paragraph VI of the complaint.20 I so
find and that such was in violation of Section 8(a)(1).
Subparagraph (f) of paragraph VI of the complaint
alleges that George Piazza threatened an employee who
had signed a union authorization card on or about April 27,
that he would have the employee "blacklisted" in the
gambling industry in Las Vegas, Nevada. The evidence in
support of this consists of the testimony of lone Paulk that
on April 27, Piazza asked her why she had signed an
authorization card and if she would sign a deauthorization
card, to which she responded, she did not know; that she
asked him why he was picking on her, to which he replied
that he was not, but was talking to her as a friend; she then
said he wasn't her friend because she had just met him.
Whereupon he said "You know in Las Vegas, there is a list
of people who belong to the Union and they can't get jobs
anywhere." She looked away and Piazza laughed.
Piazza admitted having a conversation which he said he
could not recall, but denied seeking to obtain a
deauthorization, and denied any reference or statement
about blacklisting in Las Vegas. The question is, does this
statement , if made, constitute a threat on his part to
blacklist Paulk in Las Vegas. One related item which may
be pertinent, is a statement that Piazza allegedly made to
another employee, Molly Turnbow, who said that Piazza
asked her, "if the Union didn' t get in , where did we think
that we would be able to work." She said that she didn't
answer him. Piazza denies making such a statement to
Turnbow. Was the statement to Paulk (whose testimony I
credit in this respect)30 a thinly veiled threat to blacklist
her in Las Vegas, or was it merely an observation made in
the hope that it might have an effect? Piazza was a lesser
representative of the Company; what his connections in
Las Vegas would be, are conjectural. Prim, the head of the
Company, according to testimony, did have connections in
25 As indicated, Piazza also had interrogated practically
everyone on his shift at one time or another, and some of them
within a short time period in relation to April 27
30 Paulk appeared to be a disinterested and credible witness,
while Piazza was an interested supervisor of Respondent Piazza,
also on numerous occasions, admittedly manifested a direct
interest in union activities and his opposition thereto
31 (See In 30, supra, re Piazza) It should be further noted that
117
Las Vegas. On the other hand, the individual to whom the
statement was made, Paulk, continued in the employ of
the Company up to the time of the hearing without any
apparent repercussions. While not free from doubt, I think
that the ambiguity here should be resolved in favor of the
Respondent, and, accordingly, I do not find that the
statement, as made, amounted to a threat to blacklist.
Subparagraph (j) of paragraph VI of the complaint
alleges that on or about May 24, George Piazza threatened
an employee that, if the employee solicited for the Union at
any time and at any location on Respondent's premises,
the employee would be discharged. It appears that on
May 24, an employee, Lucille Hagemeyer had stopped to
discuss the Union with one or more employees who were
on duty, and then proceeded to the ladies' dressing room.
Piazza saw her and ascertained that there was a discussion
with respect to the Union. He subsequently proceeded to
the ladies' dressing room, knocked on the door, and when
Hagemeyer came out, told her, according to her version,
that she was not to solicit on behalf of the Union at any
time and "I mean it." Hagemeyer said she had spoken to
just one employee who was at work. According to Piazza,
she had spoken to several employees who were working,
and he had told her that she was not to solicit or bother
employees while they were at work. He denied that he told
her that she was not to solicit at any time and denied
saying "I mean it."
Hagemeyer quit her employment that day, asserting
that, if she couldn't speak to fellow employees, she didn't
want to work there any more. There is no evidence (other
than the McGoldrick employment incident post) that the
Company prevented employees from discussing the Union
during their nonworking time or during their break
periods, and in fact there is testimony from several
employees that they discussed the Union during such
periods. In addition, there is no question that Hagemeyer
had discussed the Union with at least one employee who
was at work, following which, Piazza had spoken to her.
Under these circumstances, there are two questions:
(1) was Piazza's statement (which I find was made as
claimed by Hagemeyer) 31 the equivalent of a threat of
discharge, or merely an implied warning that, in the event
she persisted in such conduct, certain unspecified
consequences might follow; (2) was Piazza's statement
improper as applied to the factual situation which gave
rise to it. I have difficulty in finding that the statement was
anything more than a warning or possible threat of certain
nondesignated consequences in the event of continuation
of solicitation, but not necessarily of discharge. Here
again, the burden is on the General Counsel to establish
more clearly the consequences that could be expected to
flow from such a statement. I do not think he has done so.
In addition, the statement made in relation to the incident
as it occurred, would be proper, that is to restricting or
limiting employees from such discussion during actual
work time. Considering this, the fact that the Respondent
had not (except in the McGoldrick hiring incident)
restricted employees' discussion of the Union during
nonwork time, and the ambiguous nature of the alleged
it is unlikely, unless specifically so instructed, that Piazza, in
response to the solicitation of employees by Hagemeyer, would
distinguish between work and nonwork time, and it would not be
unusual for him or anyone else to be emphatic in seeking to
prevent interference with work While Hagemeyer may have been
somewhat bitter, upon consideration of the foregoing and her
testimony, as a whole, I credit her version
299-352 0-70-9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat (even accepting the statement as set forth by
Hagemeyer), I would find that there was no violation as
alleged in subparagraph (j) of paragraph VI of the
complaint.
4. Conduct of Herbert Grellman
Subparagraph (h) of paragraph VI of the complaint
alleges that on or about May 2, Herbert Grellman
interrogated an employee as to the identity of other
employees who had signed union authorization cards.
Subparagraph (k) of paragraph VI alleges that, on
unknown dates between May 1965 and August 6, 1965,
Grellman threatened employees that the working
conditions of employees who joined the Union would be
adversely affected thereby. The testimony of Lee Eulert,
an alleged discriminatee, was to the effect that in about
the third or fourth week of April, she had a conversation
with Grellman in which he asked her "If I knew if any of
the girls on our shift had signed cards with the Union and I
told him that I did not know if they had or not." Grellman
admitted, "I asked her if she knew anyone who had signed
the union card and she says `no' and that was it." While
this latter is literally not identical with the allegation of the
complaint in that it does not purport to request the identity
specifically of employees, it was a question directed
toward knowledge as to other employees signing
authorization cards and hence, within the ambit of the
allegation of the complaint and obviously litigated as such.
Eulert also testified that she had had a conversation
with Grellman about the second week in April in which
they were talking about the Union. She asked him what he
thought about their joining it, and "he told me that he
would advise us not to fool with it because if we did we
would be in trouble with our jobs." Grellman denied any
such conversation.
Reta Bowen, one of the alleged dischargees herein,
testified that sometime between June 8 and July 4, she had
a conversation with Grellman involving the Union, and told
him: "Well I don't see how it could do any harm. It might
do a lot of good." Subsequently she added that she was
willing to take the chance that it might. Grellman told her
as he was leaving, "Well, you'd better be careful, it just
might not be smart to get mixed up in that sort of thing."
Grellman denied making this latter statement, but
admitted having a conversation with Bowen at the time
indicated in which Bowen said she couldn't see how the
Union "could do any harm."32
Grellman's testimony, at certain times, was somewhat
confusing, particularly with respect to dates of occurrence
of events as to which he made assertions and subsequently
changed his position, yet denied he had given the changes
any thought. On the other hand, with respect to
identification of an individual at the table of Lee Eulert in
connection with an incident pertinent to her discharge,
Grellman was positive as to the identification of a man
whom he had seen for only a relatively brief time on that
particular evening. His exact identification as will be set
forth in more detail subsequently, was contradicted by the
definite but less positive identification of the same
it Respondent contends that since Prim and Roberts issued
instructions about April 30, that its supervisors were not to
discuss the Union with employees, that neither supervisors nor
they would discuss it thereafter This incident, and numerous
others, which I find herein occurred thereafter, indicate that,
although such instructions may have been given (as testified to by
Respondent officials), they were not always followed
individual by Respondent's Shift Supervisor Troye, and by
the identification made by Eulert. In addition, Grellman,
as set forth hereafter in certain instances during his
testimony, appeared to be either unduly hesitant or
evasive, and in others to vary answers, depending on
which counsel was interrogating. On the other hand, I
consider the testimony of Eulert to be forthright and
honest. The testimony of Bowen was also presented in a
direct manner and without hesitation. I' credit the
testimony of Eulert and Bowen as to the conversations
with Grellman, and find by such interrogation and threats,
Respondent violated Section 8(a)(1).''"
5. Additional conduct of Roberts
Subparagraph (o) of paragraph VI of the complaint
alleges that Allen Roberts, about June 1965, interrogated
an employee concerning the union activities of
Respondent's employees, and subparagraph (p) of
paragraph VI alleges that Roberts, about June 1965,
instructed an employee to inform him if the employee was
contacted by the Union. The evidence, in support of these
allegations, consists of the testimony of Florence Dyer that
about June 2, Roberts asked her whether she had been
confronted by any union organizers, and she told him she
hadn't. Roberts said this wasn't the right union, and she
told him she belonged to a union before, and thought the
Union would be good if there wasn't the right-to-work law.
When she left, Roberts asked her to inform him if she were
approached by any union organizers in the future. Roberts
denied having any such conversation with Dyer. With
respect to the allegation of subparagraph (o) of
paragraph VI of the complaint, the foregoing does not
appear to constitute interrogation concerning the union
activities of employees generally, but may be viewed as
interrogation of Dyer within the meaning of that
subparagraph. The latter part of Dyer's testimony would
support the allegations of subparagraph (p), assuming that
it is credited. For reasons more fully set forth hereafter in
connection with other matters relating to Dyer and the
discharges of Bowen and Eulert in which Roberts is
involved, I credit the testimony of Dyer as to the above
conversation, and find by such interrogation and request,
Respondent violated Section 8(a)(1).
6. Additional conduct of Prim
The remaining allegations of violation of Section 8(a)(1)
contained in paragraph VI of the complaint involve alleged
statements or actions by Ernest Prim, president of
Respondent. These will be taken up seriatim. The first
one, subparagraph (g) of paragraph VI of the complaint,
alleges that about April or May 1965, Prim asked the
spouse of an employee whether the employee had been
contacted by the Union, and told the spouse to advise the
employee that the employee would be discharged if the
employee joined the Union. This relates to a conversation
purportedly involving one Darius Dyer, the husband of
Florence Dyer, one of the alleged discriminatees herein.
Dyer testified initially that about the latter part of April
1965, he had a conversation with President Ernest Prim,
iR Although subparagraph (k) alleges unknown dates between
May and August 6, and the testimony of Eulert, set forth above,
relates to the middle of April, the matter was fully litigated at the
hearing, is within the scope of the allegations of subparagraph (k),
and is clearly covered under Section 8(a)(1) of the statute which is
allegedly violated under the complaint, and, hence, will support a
finding in this case
PRIMADONNA CLUB
who had slipped on the ice that same day and injured his
arm, which was in a sling. Subsequently, after evidence
was adduced that Prim had injured his elbow and seen a
doctor on March 24, Dyer changed his testimony to place
the conversation as occurring on March 24.
Dyer testified that he first spoke to Prim and asked him
how he hurt his arm, that Prim asked him if his wife had
been approached by union members or union organizers,
to which he replied, not to his knowledge; that Prim then
told him that his wife was a good employee and a good
worker and asked him to talk to her and tell her not to
become involved with the Union; that he also told him to
tell her not to become affiliated with the Union because, if
she did, that she would be fired. "They would fire anyone
that did become affiliated with the Union."
Prim, not only denied the conversation, but denied that
he had ever met Dyer or seen the man before. On the other
hand, Dyer testified he first met Prim in 1958 and talked to
him many times, and had driven Prim to the airport in a
cab on many occasions during 1958-59." Testimony also
indicated that Dyer had been in the club to pick up his wife
on quite a few different occasions, and that he had been
seen speaking to Prim on some of these. Eulert so
testified, and Dyer's daughter testified that Prim had come
over and spoken to them on a particular occasion in 1964.
Whether or not Prim had a very good recollection of Dyer,
is a matter that may be debatable, particularly where a
good many of the alleged incidents in which he had
purportedly seen or talked to Dyer occurred some years
ago, and in view of the numerous, thousands of people
Prim sees in the course of business operations. However, I
conclude that Prim had seen and spoken to Dyer.
Accordingly, to the extent that he denies having seen or
talked to Dyer, I would not credit Prim's testimony As to
whether Prim had the alleged conversation with Dyer,
there is a more difficult problem raised by the fact that
Dyer first testified to its occurring late in April at a time
when it could reasonably have occurred, but subsequently,
changed his testimony following submission of the medical
records relative to the time when Prim injured his arm.
This resulted in placing the alleged conversation on
March 24. The General Counsel claims that Prim was
well aware of union activity at that time. The only evidence
to indicate this is that Prim knew of the Union's activity in
Las Vegas where an election had been ordered at the
El Dorado by the National Labor Relations Board by a
decision issued on March 11. The only other testimony as
to union activity in Reno was from the union 's secretary-
treasurer that union activities had commenced in Reno
about March 15, but he did not specify that any occurred
at the Primadonna.
The record contains repeated references to organizing
activities at the Primadonna in April, but none prior
thereto. The first cards that were signed, which are in
evidence, are dated April 9 and 10. The first conversations
" Dyer recounted details about conversations with Prim, re
how Dyer's wife and baby were, one about his becoming a dealer,
and one about Pnm's wife "Donna going to some type of
school" (see fn . 36, infra, for rebuttal testimony that Prim had not
had a wife named "Donna"), and a conversation with Prim on one
of the "at least two times" that Prim cashed checks for him Dyer
admitted that, on at least one occasion, Prim declined to cash a
check from out of State
35 She spoke to Grellman, infra, about the end of April, her
conversation with Roberts was about the beginning of June and
she did not join the Union until June
36 Dyer testified that Prim, during a conversation, had referred
119
or alleged conversations or discussions by management
with individuals appear to have occurred about the middle
of April and to have become more extensive from about
April 18 until the end of the month.
Based on the foregoing, it is exceedingly difficult to see
why Prim would have made the alleged statement to
anyone on March 24. In addition , it is not clear why he
would have made it to Dyer about Mrs. Dyer at that time.
There is no evidence of her interest in the Union until
much later.35 Further, while Dyer indicated and may have
thought that he and Prim were very friendly, the testimony
as a whole does not support this, including particularly the
refusal on Prim's part to cash a check for Dyer, the
termination of Mrs. Dyer in 1959 when her baby was sick
and Dyer's referral to Prim's wife's name as Donna.36
Based on the foregoing, I am compelled to find that the
alleged conversation between Prim and Darius Dyer did
not take place, and I accordingly so find.
Subparagraph (1) of paragraph VI alleges that about
June, Prim interrogated an employee as to the identity of
other employees who had signed union authorization
cards, and subparagraph (n) of paragraph VI alleges that
about the same time Prim threatened an employee that
any employee who signed a union authorization card would
be fired. The testimony in support of this is of Lee Eulert.
As set forth, supra, Eulert told Grellman in May she had
signed a card. About a month later in June, according to
Eulert, she had a conversation with Prim in which they
were the only ones present; she was on a break, and Prim
was standing by a cigarette machine and called her over.
Prim asked her if she knew that the girls on the graveyard
shift were signing cards for the Union. She told him she
did not, and that it was not her job to find out. According to
Eulert, Prim grew red in the face, waved his arms around,
and said that he would advise us, "Not to fool with that
because if we did, he would eventually find an excuse to
fire everyone that did sign a card." Prim denies the
incident in its entirety.
It appears logical that Grellman, who had admittedly
asked Eulert about whether she had joined the Union,
would convey such information to Prim, and that Prim
might thereafter inquire of Eulert concerning union
activities. This is particularly true at the time involved,
about the middle of June, at which time a Labor Board
representation hearing involving Primadonna37 was in
process.
In addition, Eulert, throughout her testimony, appears
to be a credible, forthright, and reliable witness. Also, as
previously set forth, I have found, contrary to Prim's
denial, that he told a group of girls on April 26 that he had
heard most of his swing shift had joined, and contra to
Prim's denial, that he was acquainted with Darius Dyer.
Further, Prim, on occasions involving important matters,
changed his testimony after first making positive
assertions.38
to Prim's wife named "Donna." Rebuttal testimony of Company
Treasurer Mooney indicates Prim at no time had a wife or any
children (so far as he knew) named Donna (Perhaps the "Donna"
in Primadonna misled Dyer)
3' The Labor Board hearing was held June 15-18
's Illustrative are the following Prim first said he discussed the
discharges of McGoldrick and Bowman with Roberts in person,
and subsequently altered this to testify that the discussion was by
telephone Also, Prim testified to certain restrictions as to
McGoldrick' s organizing for the Union while employed at
Primadonna, and subsequently varied his testimony as to such
restrictions (See, infra , for a fuller discussion )
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that the asserted threat to Eulert was not in fact
applied to all persons, does not prove it was not
made-threats are often made for effect without intention
of completion, or for that matter, even partial execution. In
evaluating the testimony as a whole, I credit the testimony
of Eulert as to this incident, and find such interrogation
and threats violated Section 8(a)(1).
Subparagraph (m) of paragraph VI of the complaint
alleges that about June, Prim stated, in the presence of an
employee, that everyone having anything to do with the
Union would be fired. The testimony in support of this
allegation is that of Florence Dyer, who said that a week or
two or three after she claimed to have the conversation
with Roberts concerning the Union, about June 2, that
she was sitting at an empty "21" table about 2 feet from
one occupied by Roberts and Prim when she overheard
Prim say something derogatory about the union leaders,
and that he would "fire anyone having anything to do with
the Union." Dyer said all she heard was this statement,
which was in a louder tone of voice. After hearing the
foregoing, she got up and left. Roberts and Prim deny that
any such conversation ever took place. Respondent
contends that Dyer is fabricating this testimony, and that it
could not possibly have occurred when she said it did.
Respondent points out that it could not have occurred 2 or
3 weeks after the conversation on June 2, since Roberts at
such time, was in the hospital. The General Counsel
contends that Dyer's testimony is to the effect that it was
from 1 to 3 weeks after the incident of June and that
Roberts did not go into the hospital until June 13, so that
the conversation could very well have occurred within the
time specified by Dyer, who was not positive as to just
when it took place. Respondent also claims that the casino
was much too noisy for Dyer to have overheard any
conversation, that at 9 o'clock in the morning in June, it
was a bedlam of noise. Actually, Dyer was seated within 2
feet of Roberts and Prim, according to her testimony,39
and it would appear to be possible to hear a conversation,
particularly if voices were raised. Obviously, if this were
not so, the dealers could not hear what the players had to
say, and vice-versa, so that as to this facet of the matter, I
would conclude that it was possible for Dyer to hear. But
as to whether or not the alleged conversation occurred,
there are some other questions. It is evident from the
testimony of Dyer, that it was possible for this
conversation to have taken place before June 13, so that as
to that aspect, I would conclude that it could have
occurred. The difficulty is, why would Prim make such an
assertion to Roberts? It is argued by the General Counsel
that Roberts had spoken to Dyer about June 2, and that the
statement by Prim was intended to influence Dyer, who
had indicated that she would not be averse to the Union
except for the Nevada right-to-work law. It is also true,
that the representation proceeding was impending about
this time, and a hearing therein was held a few days later.
On the other hand, Dyer could recall nothing that
preceded the conversation and nothing that occurred
thereafter. It is argued that she wasn't paying attention,
and noticed this conversation only because it was in a
louder tone of voice. The question is still why such
assertion. One possible explanation is that Prim was
seeking to influence Dyer by such statement, and that his
voice was raised for this purpose. Other than this
contention, there appears to be no particular reason why
Prim would make such a statement to Roberts at the time.
Prim and Roberts did not carry out any such threat as to
employees generally, and there is no direct evidence to
indicate that they meant to influence Dyer at that time in
connection with her assertion of apparent support for the
Union, which as stated by Dyer, was somewhat qualified
because of the Nevada right-to-work law.40 Here again, the
burden is on the General Counsel to prove the case. The
circumstances and situation were such that it would seem
that Dyer would hear something other than this particular
assertion, and there does not appear to be a clearly
manifested purpose in making such a statement in the
manner claimed. While I recognize that a similar
statement was made by Prim to Eulert, which I have
credited as having been made, this is a two-edged sword.
On the one hand, it can support the contention that Prim
made the threat as stated by Dyer. On the other hand, if
Prim made the statement directly to Eulert, as I have
found, why did he not likewise make the same statement
directly to Dyer if he intended to influence her? In
evaluating all the evidence in this incident, I conclude that
the statement was not made as claimed by Dyer.
Subparagraph (r) of paragraph VI of the complaint
alleges that about July, Prim informed job applicants that
employees must agree to refrain from any union activity as
a condition precedent to employment by Respondent, and
subparagraph (s) of paragraph VI alleges that, about the
same time Prim told an employee that the employee was
not to solicit for the Union at any time on the Respondent's
premises.
The evidence, as to these alleged incidents, relates to
the employment of one Mike McGoldrick, of whom more
will be said subsequently in connection with the discharge
of Ronald Bowman. McGoldrick was employed by the
Respondent pursuant to the instance and request of one
Anita Newman, who had at one time worked at the
Primadonna, and was a friend of Prim. Prim subsequently
helped her obtain a job at the El Dorado in Las Vegas. She
thereafter engaged in organizational activities for the
Union at the El Dorado, which had evidently resulted in
certain comments to Prim from the El Dorado
management. McGoldrick was known as a (nonpaid) union
organizer. When Newman suggested to Prim that her
friend McGoldrick be employed, Prim mentioned to her
that she had caused him embarrassment at the El Dorado,
and that McGoldrick was an organizer. A discussion then
ensued at which the question of McGoldrick's organizing
for the Union was considered. According to McGoldrick,
Prim said, "He said he would employ me if I did not
organize or talk on behalf of the Union while I was working
in the Primadonna during the working hours of the shift."
McGoldrick agreed to these terms, and Prim then got him
an application blank. Several days later, Prim met
McGoldrick and Newman in the restaurant of the
Primadonna, and a discussion ensued as to McGoldrick's
employment. According to Newman, Prim said that he
would take McGoldrick over and introduce him to Roberts
and "reminded him at that time that he should not speak
union in the store during working hours or sign up his
people" to which McGoldrick agreed, and they went over
to see Roberts. Thereafter, McGoldrick was employed.
1" The tables are 2 feet, 2 inches apart, so if Dyer were that 40 It undoubtedly did indicate a favorable attitude toward the
close, she would have had to be at the end of the table nearest to Union, which would be important, particularly in the event of an
the end of the table where Roberts and Prim were, with them at election, which was imminent at the time of Dyer's termination on
the closest end of that table August 7, discussed infra.
PRIMADONNA CLUB
According to Newman, about 10 days or 2 weeks later,
she had a conversation on the phone with Prim who said
that one of his bosses had told him that McGoldrick was
talking about the Union, and that he "wanted to remind
Michael not to talk about the Union." According to Prim,
at the time of his first discussion with Newman and
McGoldrick he said, "How can I give him a job? You just
got through organizing one place for the Union. If I put him
in there, he is going to organize my place." Further quoting
Prim, Newman replied, "No, he will not do that. He will
not try to organize it as long as he is working." Prim then
said, "All right, as long as he is working in there and don't
try to organize my place. When he goes outside that place
he can do whatever he wants to do. That's your business
and his business ." Subsequently, at the time that Newman
and McGoldrick had the discussion with Prim in the
restaurant , according to Prim, he had a further discussion
with McGoldrick about the Union as follows: "He said that
he would not discuss the union as long as he was working
in the place and I said `that's all I want, that's the only
thing as long as you are working in the place don't try to
organize my place."'
After McGoldrick had been employed for a time (and
apparently was an acting supervisor), he had a
conversation relating to the Union with McKay, a
supervisor. McKay reported this to Prim who said he told
McGoldrick, "I told him `Mike you gave me your word,
Mike. You told me you wouldn' t organize my place"' and
that McGoldrick replied "I haven't." Following an
overnight recess during which Prim admitted having
spoken with his counsel, he testified as follows: "I told Mr.
McGoldrick that I didn't want him organizing my club
while he was on duty. After his duties were over, and he
was off shift, he could do anything he wanted to. But as
long as he was on shift, and on shift and working on the
table, I did not want him discussing it with the other
dealers. Now after he walked outside, he could do
whatever he wanted to do or walk any place in the place as
long as he was not working at that particular moment."
The foregoing is set forth in detail because of the evident
ambiguity in the original testimony on the part of
McGoldrick as to what was told. It is evident from all of the
testimony and particularly Prim's statement with respect
to McGoldrick's promise or alleged promise not to
organize that Prim in employing McGoldrick had in mind
that McGoldrick would not do any organizing in the club.
While he probably gave no particular thought to the
question of working time or nonworking time, it appears
clear that he did not contemplate any organizing by
McGoldrick during the time that he would be working in
the club or during the club's working hours regardless of
whether it was working or nonworking time. As previously
indicated, the club did not enforce any rule against union
discussion or union solicitation during nonworking time
and I do not consider that it had any such rule. However,
in the case of McGoldrick, I conclude and find that a
condition of his employment was that he would not
organize in the club during the working hours of the club4t
whether he was on work time or nonwork time.
In his subsequent testimony, as set forth, Prim tried to
qualify the restriction of McGoldrick as limited solely to
when he was supposed to be actually working. But it
i1 This would ordinarily be 24 hours a day
41 Piazza admitted to questioning practically all of the shift and
specifically Turnbow, Hagemeyer, Wilson, Curtis, McSkimmings,
and Bennett. Piazza denied telling Wilson that her union
boyfriend had been picked up and he also denied stating to her or
121
appears evident from his earlier testimony and from the
remark previously referred to about McGoldrick's
organizing in spite of his promise not to organize, that Prim
had not expected McGoldrick to do any organizing in the
club. I do not find that the Respondent intended to invoke
any general rule against solicitation, but I find that by
conditioning McGoldrick's employment on his not
organizing or soliciting for the Union at any time on its
premises, Respondent violated the Act as alleged in
subparagraph (s) of paragraph VI of the complaint, and
that such was in violation of Section 8(a)(1). However, I do
not believe that the evidence will support a finding that
McGoldrick or anyone else had to agree to refrain from any
union activity as a condition of employment, and
accordingly do not find any violation as alleged in
subparagraph (r) of paragraph VI of the complaint.
E. Alleged Discriminatory Discharges in Violation of
Section 8(a)(3) and (]) of the Act
1. General discussion
In resolving cases of alleged discriminatory discharge,
certain elements ordinarily should be considered. First,
was there evidence of interference, restraint, and coercion
under Section 8(a)(1) of the Act? As set forth supra, I have
found such by the following; threats by Roberts of
discharge for signing union cards, promises by
Respondent officials of vacations, insurance, and holiday
benefits following union organizational activities, and as
inducement to employees not to participate in or support
such activities, solicitation of participation in a
participating group insurance plan, interrogation of
numerous employees by Supervisor Piazza concerning
union membership, interrogation of employees by
Supervisor Grellman concerning union membership and
union activities, threats by Supervisor Grellman of loss of
job or reprisal for joining the Union, interrogation by owner
Prim of an employee concerning whether she knew certain
employees had joined the Union, a threat by Prim to an
employee of discharge of everyone who signed a union
card, interrogation by General Manager Roberts of an
employee concerning union membership together with a
request by Roberts to inform him if contacted by the Union
or union representatives and, also the aforesaid limitation
of McGoldrick upon his employment to union
organizational activity outside the employer's premises. In
addition, although not specifically alleged in detail, the
record reflects interrogation by Piazza of practically
everyone on his shift and repeated indications of heckling
of employees on his part, including: commenting to the
girls about a Las Vegas union election result; constantly
requiring one of the dealers (Verda Wilson) to listen to
remarks concerning the Union and its officials and,
commenting concerning a purported union friend of hers
who was arrested by the police one evening; referring to
employee Molly Turnbow as "Union Molly"; and
(according to Hagemeyer) to girls who were wearing shop
stewards buttons as having their "union alls" on.42
With respect to the foregoing matter, where there is
conflict between the testimony of Piazza and Hagemeyer,
Wilson and Turnbow, I have credited the latter. Piazza
anyone else anything about having "your union ails on " As to the
conversations with Wilson and Turnbow, Piazza said he had been
friendly with both of them for years and Wilson was also a good
friend of his wife
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was trying too hard when testifying to convey an
impression of objectivity toward the Union , while at the
same time it was obvious that even after purportedly
receiving instructions about April 30 not to discuss the
Union , he continued to do so constantly and to manifest his
opposition thereto. (See also footnote 30.)
The record further reflects the Respondent 's opposition
to the Union in the general remarks of Prim at the
discussion of April26 and the four releases distributed
commencing April 27 and following.43 While I do not find
these to be violative of the Act as such , they bear on the
intent and state of mind of Respondent , particularly as to
its opposition to this Union.44
Respondent contends that other items , acts, and
conduct reflect that it had no discriminatory motivation or
intent . It cites the hiring of Michael McGoldrick, a known
union organizer , to be discussed more fully post; the
employment of Russ Jones, allegedly a union adherent, and
contracts with Reno Local Joint Executive Board of
Bartenders and Hotel and Motel Service Workers,
AFL-CIO, the Musicians Union , and the American Guild
of Variety Artists, the latter covering certain employees
irregularly or temporarily employed by it, as evidence of
its nondiscriminatory motivation . In addition , it points to
numerous persons who signed cards who were not
terminated or threatened , many of whom it knew had so
signed.
Each of these contentions requires consideration. Are
these real evidence of intent or only superficially so? In
the case of McGoldrick, admittedly a (nonpaid) union
organizer , his case and that of alleged discriminatee
Bowman will be discussed in detail post . His employment
by Prim at the instance of Anita Newman, a friend of Prim,
was referred to in some detail supra . Newman and
McGoldrick were close friends and he needed a job. Prim
employed McGoldrick over the asserted opposition of his
pit bosses and he commenced work as a crap dealer on
August 11 . That Newman was the influential factor in his
employment is manifest from the record . Subsequently,
when Roberts sought to terminate Ronald Bowman, who
was a friend of McGoldrick, and also of Newman, she
intervened with Prim to have Bowman reinstated , and she
made the phone call to have him come back to work. I do
not consider the employment of McGoldrick, under the
circumstances, to establish an attitude on the part of
management of any general willingness to hire union
employees-let alone organizers.
Jones was hired after the terminations of Dyer, Eulert,
and Bowen . While he volunteered shortly after
employment at Primadonna that he had been a union
member when employed at Las Vegas and had gone out on
strike with others, he does not appear to have been
particularly active. In my opinion , management was not
concerned that he would be a strong union protagonist in
any event , if at all. Jones' testimony was quite obviously
friendly to Respondent.
The absence of pertinent significance in the fact that the
Respondent had certain union contracts was shown by the
cross-examination of the General Counsel which
established that the Musicians Union contract was
necessary to obtain certain musicians , the Variety Artists
contract was a prerequisite to obtaining performers, and
the Bartenders and Culinary workers contract resulted
41 G C Exhs 4, 5, 6, and 7 ( Distributed to its employees )
44 This is in no way intended as a criticism of nor an evaluation
of Respondent 's position vis-a-vis the Union Both the First
Amendment to the Constitution of the United States and Section
from the Respondent being part of an association of
casinos which negotiated an associationwide contract in
the area. Under these circumstances, I do not consider
these contracts significant in establishing lack of antiunion
motivation.
The fact that the Respondent had knowledge of a
number of union card signers who were retained in its
employ, may require the General Counsel to show some
other reason for discriminatory action than the mere
signing of cards with company knowledge. Further, it
appears from the evidence in the record that the Company
was informed of the signing of union cards by the alleged
discriminatees only by Eulert who said she so informed
Grellman. There is no direct evidence that the Company
was aware that any of the other alleged discriminatees had
signed a card. While it may be possible to infer this from
the questioning on the part of Piazza, who admitted to
questioning all on his shift, to the assertion of Prim who'
stated that practically all of the swing shift had signed, to
the questioning on the part of Grellman, and to the
questioning on the part of Roberts, the General Counsel
has set forth other basis for discriminatory motivation in
the cases of Eulert, Dyer, and Bowen, and also Bowman.
He points to certain statements allegedly made by Eulert,
Dyer, and Bowen to officials or supervisors of the
Respondent, particularly to Herbert Grellman in the cases
of Eulert and Bowen and to Grellman and General
Manager Roberts in the case of Dyer. Assuming that the
statements were made by them as previously and
hereafter set forth, were similar ones made by other
employees who are still employed by the Respondent? The
record does reflect statements by two other employees as
to their signing of authorization cards or their interest in
the Union, which I will consider. However, I do not believe
that these are comparable to those made by Dyer, Eulert,
and Bowen
The General Counsel asserts that the following
statements were such as to form a basis for discriminatory
motivation and action on the part of the Respondent. In
the case of Dyer, the General Counsel refers first to a
conversation involving her and Grellman about the end of
April in which Dyer testified that she said "Well, as far as
I can remember he mentioned that the union was trying to
organize and asked [emphasis supplied] me how I felt
about it, and I told him that I thought the union would be a
good thing if the right-to-work law wasn't in, because I had
belonged to the union in California, and the union gives
you a lot of good and that I would join it if the right-to-work
law wasn't in." Grellman denies questioning Dyer, but
under examination by Respondent Counsel'45 admitted
that Mrs. Dyer stated she had belonged to a union in
California and it did a good thing or it was a good thing and
that Mrs. Dyer stated she would join the union if it wasn't
for the right-to-work law in the State of Nevada. However,
under further cross-examination by the General Counsel,
Grellman denied that Mrs. Dyer made such statements.46
For reasons set forth both supra and post as well as the
obvious effort on the part of Grellman just indicated to
tailor his testimony according to who was examining him, I
do not accept Grellman's denial, but credit Dyer's
testimony in respect to the aforesaid conversation. As
previously set forth in the examination of the testimony
respecting subparagraph (o) and (p) of paragraph VI of the
8(c) of the Act protect Respondent's right to express its views
45 See page 906 of the transcript of testimony
46 See page 1066-67 of the transcript of testimony.
PRIMADONNA CLUB
complaint, Dyer told Roberts substantially the same with
respect to her feeling that the Union would be good if there
wasn't the Nevada right-to-work law, which testimony I
have previously credited. In the case of Reta Bowen, the
statement which she made to Grellman indicating her
position as to the Union, was previously set forth in
connection with subparagraph (h) of paragraph VI of the
complaint. Bowen stated that the Union might do a lot of
good, and Grellman threatened that it might not be smart
to get mixed up in it . I have previously credited Bowen's
version as against Grellman's where conflicting. In the
case of Eulert, in addition to the conversations with
Grellman discussed in connection with subparagraphs (h)
and (k) of paragraph VI of the complaint, Eulert testified
she told Grellman about a week after May 2, that she
believed that the Union could do us some good because it
had the clubs worried, that she thought they would be a
strong union and that she had signed a card. Grellman's
denial is not credited for reasons previously indicated. The
General Counsel relies on the foregoing as motivation for
the Respondent's actions."
In addition to the foregoing, General Counsel as
evidence pertinent to establishing motivation points to a
union handbill issued on August 1, which was sent by mail
to an employee and presented by her to Piazza at the time
stating in part: "All of the legal paper work concerning the
NLRB election hearings recently held here in Reno is
before the Regional Director in San Francisco. You can
expect the Director to order representation elections within
the next two to three weeks in the seven Reno casinos
involved." Subsequently, an election was in fact ordered
by the Acting Regional Director on August 10, but never
conducted. In connection with the retention of Curtis and
Paulk and the termination of Dyer, Eulert, and Bowen, a
question may occur as to why were Curtis and Paulk
retained if antiunion motivation were a consideration?
One possibility is that their statements were not deemed to
be as indicative of prounion attitude as those of Dyer,
Eulert, and Bowen. Certainly, in the case of Curtis, there
is an indicated reluctance to join or sign for the Union. In
the case of Paulk, her position may have indicated union
support, but it was not as strongly positive as the
assertions of Dyer, Eulert, and Bowen. Also, she did not
work on the graveyard shift. Another possibility is that
Paulk and Curtis performed their work satisfactorily and
Bowen, Dyer, and Eulert did not, as claimed by the
Respondent. Still another could be that some union
adherents or supporters were to be eliminated and these
three, Dyer, Eulert, and Bowen who were all on the same
ar The record reflects two other individuals who discussed the
matter of joining the Union with supervisors One is lone Paulk, a
witness for the General Counsel, whose testimony in part is
referred to in the discussion of subparagraphs (e) and (f) of
paragraph VI of the complaint, supra Paulk (now on day shift but
employed on swing shift for a few months after March 5, 1965)
said Shift Supervisor Piazza asked her whether she had signed
and she finally admitted she had Piazza asked her why and she
said she told him, "I don't know " Piazza asked her if she would
sign a deauthorization card and she said, "I don't know " She
then pointed out that, according to a company letter (release) she
was to be free of pressure from the Company in connection with
union activities Paulk is still employed by the Respondent As
previously set forth, Piazza admitted a conversation He could not
recall details, but denied seeking to obtain a deauthorization
Margie Curtis, a witness for Respondent , employed on swing
shift, testified that she told Roberts (at the discussion with him on
April 24 supra) she had signed a card and he asked why and she
said "Well , I don't know " and then said , "all the girls were
signing them and one was handed to me and they asked me if I
123
shift were deemed most available or likely subjects. In
order to fairly appraise what inference or inferences
should be drawn, it is necessary to determine the validity
of the alleged grounds for discharge. No doubt an
employer may discharge for any nondiscriminatory reason
or no reason with the burden of proof on the General
Counsel to show discriminatory reason or motivation.
Merely showing that the stated reason is not the true
reason or that there is no valid reason would not be
sufficient by itself. However, where is present violation of
the Act such as interference, interrogation, threats, or
promises of benefit coupled with other evidence of
antiunion attitude together with knowledge of prounion
conduct or prounion sentiments and later no valid reason
or an untrue one is shown for the discharge, then a finding
of discriminatory discharge may be reached. In such case,
a proper finding may be made if there is no asserted
reason for the discharge, if the alleged reason for the
discharge is not true or if it is not the real reason for the
discharge as shown by the evidence as a whole.48
Accordingly, a full evaluation of the testimony as to the
discharges of Bowen, Dyer, and Eulert is in order.
First, all three were terminated on August 6 and 7 from
the same shift and at the height of the season when
employees, according to Respondent, are difficult to
obtain. The Respondent, when asked by me for an
explanation , answered in its brief that this was due to the
illness of General Manager Roberts, who had been either
in the hospital or home from June 13 until August 5, so
that no action had been taken on certain disciplinary
problems until his return, when it was decided to
terminate these three employees. This explanation could
be a plausible one if supported. However, it should first be
noted that Troye, shift supervisor, testified that at no time
during the period of 2 years in which he had been a
supervisor for the Respondent on the graveyard shift, had
it terminated as many as two people at the same time or on
consecutive days. Further, while the aforesaid explanation
might be plausible under certain circumstances, here, the
incidents that allegedly gave rise to the discharges all
supposedly occurred within a 2-day period, two of them on
the same night after Roberts returned. So that we are
actually dealing with three allegedly serious incidents in 2
nights on the same shift ! This gives a different posture to
the contention that Roberts' illness was a factor in the
three discharges occurring within 2 days. Actually these
appear to be either a most unusual coincidence of events,
or an indication of some other motivation on the part of the
Respondent, than that stated.
would sign it " She also said that she wouldn't be bothered to go to
a nearby studio-bar but insisted on the card being brought so that
she could sign it in the club Roberts' version, which differs
somewhat, but does not appear to be basically inconsistent, is set
forth supra Curtis is still employed by Respondent In the case of
Curtis, her statement indicates a reluctance to sign or at least that
she was not anxious to do so In the case of Paulk, it is somewhat
less clear what her attitude was other than that she had signed
and that she did not want to be pressured into signing a
deauthorization These differ substantially from the statements
made by Bowen, Eulert, and Dyer, all of whom were on the
graveyard shift
"" See Shattuck Dean Mining Corporation v N L.R B , 362 F 2d
466 (C A 9), enfg 151 NLRB 1328, where the court said "If he
[the Trial Examiner] finds that the stated motive for a discharge
is false, he certainly can infer that there is another motive More
than that, he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that inference
(Emphasis supplied )
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Bowen
What reason or explanation, if any, does Respondent
give for the termination of Bowen on August 6, and Dyer
and Eulert on August 7? The decision to terminate was
made by Allen Roberts, general manager, who as stated
had been ill from June 13 to about August 5 when he
returned to work for short periods.
In analyzing the validity of asserted reasons for
discharge, the facts and circumstances involved in the
making of the decision to terminate and its execution are
pertinent as well as the actual incidents or acts upon
which it may have been purportedly based. The former
may throw light on whether the latter were really
significant considerations or not in effecting the discharge.
Accordingly, I shall start with the "decision making
process" here involved in the case of each dischargee.
Reta Bowen was employed by the Respondent in June
1964. She worked on the graveyard shift from 2:50 a.m. to
11 a.m. regularly, except during the university school year,
when she worked weekends only. Also, during the summer
months of 1965, she worked a split shift on 3 days from
10 p.m. to 6 a.m., thereby encompassing part of the swing
shift and part of the graveyard shift. Bowen was working
this latter shift the night of August 5-6 following which she
was terminated.
Roberts testified as follows concerning Bowen's
discharge:
Q. (By Mr. Magor) Who made the decision to
terminate Rita Bowen?
A. I did, after the report that the men brought to
me at my house.
* * * * *
Q. Now, you say you received various reports
about Miss Bowen?
A. Yes.
Q. From whom did you receive the reports?
A. Mr. Grellman and Mr. Troye.
Q. Do you recall when it was now that you received
those reports?
A. Well, they came to my house pretty regularly,
Mr. Grellman did, almost every day, or every other
day after my getting out of the hospital.
He also came to the hospital on several occasions,
and they would make reports and then Mr. Piazza
made the final report which I then started to check
into it thoroughly in regards to her insulting the lady
at the table plus a night or two before, she had
stopped dealing and turned to the dealer on the wheel
and said something, some remarks in regards to
people not tipping her beings they had won some
money and didn't leave anything for the dealers.
Q. Who did you receive that report from?
A. From Mr. Piazza.
Q. And you received a report about her insulting a
lady, I believe you testified?
A. From Mr. Piazza.
Q. When did you receive those reports?
A. I received the other reports from Mr. Troye and
Mr. Grellman.
Q. Let's go back. Which was the first report you
received, the best you can remember today?
A. I believe the first report I got was in regards to
mistakes, but that was not the initial time.
You see, they had made lots of corrections on her
and what we do, we try to correct our help instead of
just saying , "You are fired," because that's not the
way you do in any business.
Q. (By Mr. Magor) Let's take the report that you
got from Grellman and Troye. Do you recall when they
were in relation to the time she was terminated,
Mr. Roberts?
A. Well , the morning at the meeting, we discussed
her and we discussed things in general . That was the
day of her dismissal.
Q. The day of her dismissal?
A. Yes.
Q. Who were you discussing this with?
A. Mr. Grellman and Mr. Troye.
Q. Where did this take place?
A. This was after their shift.
Q. Where were you talking to them?
A. In the back part of the pit.
Q. Tell us what was said.
A. Well, they just made a general report as to how
she was completely out of hand and would not observe
any of the rules or regulations or anything and that
she had made the remark that she did not care
because she was quitting anyway.
Q. Now, did they indicate what rules and
regulations?
A. Well, you have your rules and regulations in
regards to dealing, in regards to being nice to
customers, and she at that time was very rude to
customers there at the last.
Q. Now, you say there was a report with respect to
a remark she made regarding tipping?
A. Yes.
Q. Who did you receive that report from?
A. From Mr . Grellman.
Q. What did he tell you about it?
A. He said that she had stopped while she was
dealing and turned herself completely around to the
wheel behind her and made a remark in regards to the
people winning a certain amount of money and didn't
leave a thing for the dealers, in front of all these
customers.
Q. Do you recall when Mr. Grellman made that
report to you?
A. I am not positive . It was he or Mr. Troye.
Q. Do you recall when?
A. That was in the general reports which they gave
me. I couldn 't say dust exactly when.
Q. Now, you indicated that there was a report with
respect to Miss Bowen insulting a customer. From
whom did you receive that report?
A. Well, I received the other one from Mr. Piazza,
when she insulted a customer . You see, they changed
a shift from 10:00 o'clock p . m. to 6 : 00 a.m. and she
preferred that shift and this lady, who is a very
desirable and a long standing customer , started to sit
at her table-is this what you want me to tell you?
Q. I want to know how many other reports you got.
A. And she called the pit man and said , "Do I have
to deal to this shill," a shill meaning a house player,
and so the lady got up and moved away from her table
and took another table, but complained about it
Q. Now, do you recall when it was in relation to the
time that Miss Bowen was terminated, that
Mr. Piazza told you about this?
A. Well, it was matter of a few days, but just
exactly how many, I cannot tell you.
PRIMADONNA CLUB 125
Q. Who reached the final decision to terminate
Miss Bowen?
A. I did.
Q. Did you discuss this with anybody?
A. I explained it to Mr. Prim, just exactly why that
I thought that she should be terminated.
Q. What did Mr. Prim have to say?
A. He agreed with me and left it up to me.
Q. How was she notified of her termination; did
you do it?
A. No, I had-I believe-Mr. Grellman. I think I
had him call.
*
Q. (By Mr. Magor) Did you give the person who
called Rita Bowen the reason why she was being
terminated?
A. I did not.
Q. Did you tell Mr. Troye and Mr. Grellman that
Miss Bowen was being terminated?
A. No, sir.
Q. Was Rita Bowen terminated at all because of
any union activity?
* * * * *
THE WITNESS: No, sir.
* * * * *
Q. (By Mr. Magor) Before Miss Bowen was
terminated, did you tell Mr. Troye and Mr. Grellman
that she was being terminated?
A. I told Mr. Grellman to call her and tell her she
was being terminated.
It is manifest from the above that Roberts who was in
attendance during most of the hearing, had difficulty in
formulating just why or when he decided to terminate
Bowen or when he received what information from whom,
or even how and by whom he effected her termination.
From his testimony, it appears either he had some
rather vague (undefined) reports from Grellman and Troye
about Bowen during the time he was in the hospital and at
home or he received them the morning of the
discharge-as set forth, Roberts changed his testimony as
to when he got the reports. It should also be noted that
Roberts says at one point he made the decision to
terminate Bowen "after the report the men brought to me
at my home" (referring to Grellman and Troye
presumably) and at another . . and then Mr. Piazza
made the final report which I then started to check into it
thoroughly in regards to her insulting the lady at the table
plus a night or two before, she had said something, some
remarks in regards to people not tipping her....' and at
still another in response to a question about when he got
"the report" from Grellman and Troye, the answer was,
. . that was the day of her dismissal." At still another
point, in response to a question of from whom did he
receive the report about tipping, the answer was
"Mr. Grellman." Roberts recited what Grellman
purportedly reported and then said "I am not positive. It
was he or Mr. Troye."
The preceding as well as the following specifies wherein
Roberts' testimony varied not only as to when he got
reports, but as to from whom, and also as to when he
decided to terminate Bowen. In response to a question of
when did Piazza tell him about the "shill" incident,
Roberts' answer was, "Well, it was a matter of a few days;
but just exactly how many, I cannot tell you." (If this were
so, it would have to be sometime after Bowen was
terminated, since that "incident" occurred the night
before her discharge.) Also, Roberts stated that Grellman
and Troye, when they left, did not know Bowen was going
to be terminated, but then he stated he told Grellman to
call and tell her she was being terminated.'`'
If the above were not conflicting and confusing enough,
Grellman testified that the last time he spoke to Roberts
about Bowen (prior to her termination) was when Pat
Mooney's daughter was married about 30 or 35 days before
Bowen's discharge-contra to Roberts' assertion that he
was receiving continual reports from Grellman and Troye
up to the time of Bowen's termination. Neither Grellman
nor Troye refer to any conversation with Roberts after his
return or the night or day immediately preceding her
discharge. Further, while Roberts said he told Grellman to
call Bowen to terminate her, it is clear50 that he in fact told
Piazza who then called Bowen. (She later called Grellman
and this may have confused Roberts who was present at
the hearing a large part of the time.) Roberts also stated
that he decided to terminate Bowen and discussed it with
Prim who, according to Roberts, agreed with him. Prim,
however, testified he did not know Bowen was going to be
discharged before it occurred. To still further becloud the
matter, Piazza's version was that he told Roberts that
Bowen had insulted a customer (a Mrs. Rohlfing) by
asking him in Rohlfing's presence why he put that
"G-Damn shill on my table for?"51 Piazza further
testified he told Roberts he had removed Bowen from the
table52 and talked to Grellman and Troye about her other
violations and "we had decided to recommend her
dismissal."
According to Piazza, Grellman and Troye agreed with
this recommendation. According to Grellman, he did not
recommend Bowen's discharge nor was he told of it before
it occurred. Troye stated he did not recommend her
discharge to Grellman, and the first he learned of it was
from Piazza afterward, who didn't tell him the reason.
Grellman told Troye (later) the main reason was for
"mistaking a regular customer for a shill."
The foregoing reflects rather emphatically that
Respondent either had no valid reason to terminate
Bowen, or was not in a position to assert one if it existed.
When viewed in the light of its antiunion conduct and
attitude previously found, coupled with Bowen's
expressed prounion position, there appears a pretextual
discharge with discriminatory motivation in violation of
the Act.
Without unduly belaboring the matter, a brief
consideration of the alleged grounds (which evidently are
not the real ones) will be conducted. First, is the so-called
shill incident. According to Piazza's version, Bowen, in his
'y Roberts was not entirely well at the time of the events in
August following his heart attack, but presumably was capable of
making the requisite management decisions I am also aware that,
although Roberts was working regularly, he was not entirely well
at the time of the hearing However, he appeared fully competent
during his testimony, and was afforded every opportunity to rest
as requested or appeared necessary.
50 See testimony of Piazza , Grellman , and Bowen
51 As set forth infra, Bowen admitted she may have referred to
a "damn shill," contending the reference was later , but not being
certain when it was said Note Rohlfng's version contra to Piazza,
Infra
51 Bowen's version is that she was not removed from the table
over this incident Bowen indicated her table was changed
because her luck was bad
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presence had called Mrs Rohlfing, a regular customer, a
shill and Mrs. Rohlfing had heard it and angrily left the
table. Piazza also said that afterwards Mrs. Rohlfing told
him "She said she was highly insulted about being called a
shill [emphasis supplied] and that she said the girl was real
nasty to her while she was playing at the table; like
throwing her cards at her, money at her." Piazza added
that when he saw Rohlfing 15 or 20 minutes after she had
left Bowen's table, he went over and apologized "for what
the girl called her...." Piazza also said he reprimanded
Bowen later that evening for stating what she had about
Mrs. Rohlfing. Bowen claimed she made a remark about a
shill to Piazza later as she left to go on a break53 and
Piazza did not tell her Rohlfing had complained to him
about her, nor did anyone from management speak to her
after she went on her break.54 While there is a great deal
of detail about this incident, the simple answer to Piazza's
version of Mrs. Rohlfing allegedly having heard the
statement, complaining about it and his apologizing to her
that night, is furnished by Mrs. Rohlfing, called as a
witness by Respondent. Mrs. Rohlfing testified that she
had been disturbed by the way Bowen dealt to her, telling
her not to turn her cards up, and throwing out both the
cards and money so they were not in the same place twice.
Rohlfing said she saw Piazza standing nearby where he
could observe and she assumed he would take whatever
action was necessary. However, as to the "shill" reference
relied on by Respondent, Rohlfing testified: "Well, she
said something about a shill. I don't know if she was
talking to me or not, but when I got away from the table I
thought, `Maybe she just thought I was a shill,' but I didn't
know whether she did or not." Significantly, and contrary
to Piazza, Rohlfing was asked if she reported the matter to
management and she answered "No, I didn't." She was
asked on cross-examination if she spoke to Piazza "at all
that night" and replied "Not that night, No." She was
asked "Did he say anything to you when you left the
table?" and replied "Not a word. I didn't even know
whether he noticed it or not until after he told me about it a
day or two later." I credit Rohlfing's version of her
conversations or lack thereof with Piazza. This further
supports the conclusion that the so-called shill incident
was part of a pretextual discharge.
Another alleged incident relating to Bowen involved a
statement Bowen admitted making to another dealer about
a customer who had won $500 without leaving a dime and
asking "how cheap can a customer be." Bowen denied she
made the remark in front of the customer. Two of
Respondent's supervisors, Troye and Chapman, testified
the player was still standing near the table when the
remark was made loud enough for him to hear. Troye said
he told Bowen she could not talk that way and that she told
him she didn't care. Bowen couldn't recall Troye telling
her not to be rude to customers but denied telling him she
didn't care. Bowen was not removed from her table and it
does not appear that she was ever spoken to by
management about this incident other than Troye's
asserted cautioning. Moreover, Troye admitted he had
never heard her gripe about not receiving a tip before.
Chapman, an assistant shift supervisor, testified he had
heard other dealers gripe about tips on perhaps five or six
occasions over a period of 12 or 13 years. In addition to the
above, Respondent claimed that Bowen dealt two-handed
instead of one-handed and had been reprimanded for this
constantly-almost daily. Bowen denied she did so except
to "change her luck." Respondent offered substantial
evidence to the contrary and evidence indicating that this
was a matter of considerable importance to it and dealers
and customers in preventing cheating. Even if it weren't
important, Respondenntt could lawfully enforce almost
any rule it might invoke or apply so long as it was not
discriminatorily applied or motivated. But assuming
arguendo that the rule has a legitimate and important
purpose the question arises why allow its constant
violation for over a year and then seek its enforcement at
the height of the season when help according to
Respondent is hard to obtain? The same applies to
Respondent's testimony about Bowen's allegedly talking
to friends and letting customers wait (which Bowen
denied), to Troye's testimony that at least once a night he
had an argument with Bowen about changing the deck of
cards, and to her practice of taking her shoes off and
dealing in her stocking feet and taking her sweater off and
putting it on again, etc. The latter, the shoe and sweater
items, admittedly occurred with Bowen claiming the club
was superstitious and approved this and even two-handed
dealing (if her luck was running bad), while Respondent
denied approving these and asserted Bowen was
superstitious. Although some of Bowen's acts and conduct
aforesaid might constitute a valid basis for termination
under certain circumstances, the question to resolve is
whether such is the case here. I think it is obvious that it is
not. The whole pattern including Roberts' own conflicting
assertions, the conflicts in testimony between Respondent
witnesses Roberts and Grellman, Roberts and Piazza,
Roberts and Prim; Piazza and Grellman and Troye, and
the conflict between Piazza and Respondent witness
Rohlfing concerning the allegedly vital "shill" incident all
point to the same conclusion. Further the so-called tipping
incident is obviously an added item to which little
significance was attached at the time and as to the
remaining incidents to paraphrase "Respondent doth
protest too much me thinks." If these latter were so
important, why were allegedly almost daily occurrences
allowed to continue for over a year?55
From my analysis of the testimony and the record as set
forth above, I find and conclude that Bowen was
discharged in violation of Section 8(a)(3) of the Act.
3. The discharge of Eulert
Eulert was employed at Primadonna commencing
February or March 1965 as a "21" dealer on the graveyard
shift until her termination August 7, 1965. She had worked
there on previous occasions.
Roberts testified as follows concerning Eulert's
termination:
(Questioning by Mr. Magor continued)
Q. And why was she terminated?
A. Well, the reports which had come in to me
before, as I say, came back to me-when I came back
5' At another point in her testimony she indicated that the
"shill" remark could have occurred when Mrs Rohlfing was at
the table
54 For obvious reasons and particularly in view of Rohlfing's
testimony infra, I credit Bowen 's version
ss Substantial testimony was adduced concerning whether or
not Bowen planned to leave about the beginning of September It
appears that if she could do so, she intended to obtain additional
schooling I do not consider it necessary to resolve this because if
the Respondent were desirous of eliminating her as a union
participant or protagonist at the time involved, it would not appear
to matter whether or not it knew she intended to leave about early
September or later , or not at all
PRIMADONNA CLUB
to work, had been several and which were completely
out of order for a dealer who had been there as long as
she had.
It all added up to where we decided we would
replace her.
Q. What reports had you received and from
whom?
A. Well, the first report I received was-let me
say, we have the $20 chips, the $5 chips and the $1
chips, and a fellow gave her a $100 bill and she took
the green chips and dealt out 20 of those, which was
$400, and someone stopped her from that.
Then, later on in my reports, I had words that she
had given change for another $100 bill and had given
four greens and 20 yellows, which is $180 for a $100
bill.
Now this supposedly happened before I had come
back and the morning in which I came back-I was
there those few minutes-the report was that
someone had bet $100 in one hand and $140 in
another, which she was supposed to call a floorman
and didn't and he had a double down 56 which is a 10
or 11 for this, which would have been $280 and $100
here, and he won the bet; the player did, and she
called no one's attention to the play and it is a strict
rule that they call attention to the floorman of
anything $50 or up and so I knew that she knew better
than that, but that was the final thing in regards to her
that morning.
Roberts said he did not recall whom he had call Eulert (to
notify her she was terminated). On cross-examination,
Roberts testified he learned about the large bet incident
involving Eulert from Troye and Grellman on the day she
was discharged; that Troye reported it and he believed
Troye and Grellman were together (but was not sure). He
was asked:
(Questioning by Mr. Weintraub continued)
Q. Now, when did you learn that,Miss Eulert had
given $180 for a $100 bill?
A. That-I possibly got a report on that-it wasn't
that morning, but I had gotten a report on it but when,
I couldn't tell you.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
you?
Well, approximately how long before?
I would have no way of knowing.
Who was the report from?
It came from, I believe, Mr. Troye on that one.
Was that in the club?
You mean the report?
Yes.
It seems like I got that before I got to the club.
Could that have been Mr. Grellman who told
A. It could have been either of them.
Subsequently in further cross-examination Roberts
testified:
Q. Now, when did you get this report about Miss
[sic] Eulert giving someone $400 for a $100 bill?
A. Well, that would have-I'd have to almost
believe that was all that morning.
Q. Was it at the same time that you learned that at
another time she had given $180 for a $100 bill?
A. I think I learned all of that that morning. They
were compiling all of her mistakes and errors.
sb Where a player has a point total of 10 or 11 on two or more
cards he may turn them over, take the next card down, and double
his bet
127
Q. Who told you that she had given $400 for a $100
bill?
A. Mr. Troye.
Q. Did he tell you when she had done that?
A. About a week or so prior, before.
Q. Did he tell you that she had given $180 for a
$100 bill?
A. That, also, was Mr. Troye, I believe.
Q. Did he tell you when she had done that?
A. Yes, just a night or two before this incident or
dust-it wasn't too long before.
Roberts questioned by me thereafter testified:
Q. It is your testimony now that they gave you
these incidents as they happened?
A. No. The morning that this all happened, they
told me about these other incidents and the
approximate time that they had happened.
And then stated:
Q. What was the mistake that Mrs. Eulert had
made that day?
A. The one they reported to me, which did not
happen that day, first, was a man bought $100 worth
of chips, which is $25 (twenty $5)57 chips, or we have
green chips that are $20 apiece, and she just spread
out 20 greens for $100 which is the greens and the
yellows, and we accepted that as a mistake.
Mr. Troye, I believe it was Mr. Troye, went over
and corrected her.
Then, it was a week or so later that another party
was buying a hundred dollars worth of chips. She gave
him four greens and 20 yellows which is $180.
She should have given four greens and the $20
ones.58 We also accepted that as a mistake because
we did know that she's been dealing a long time and
she had worked for me for four or five times and the
morning that the final thing happened, as I recall
correctly, a man was betting $100 in one hand and
$140 in the other, and whether it was money or chips,
I do not know, but anyway, she was supposed to call
the attention to a floorman and she didn't and this
man had a double down which is $140 for making the
$280 and by the time the floorman got down there,
who was Mr. Troye, she had already picked up the
cards, paid the $280, which made the total of $560.
Now, what happened with this hand here, I don't
know whether he won that or not. I don't recall
whether they said he did or he didn't, but anyway,
that was the final mistake.
Subsequently, when further cross-examined Roberts
testified:
(By Mr. Weintraub)
Q. Will you tell us again when you first learned
that Mrs. Eulert had made the mistake of getting
ready to pay $400 for $100?
A. The morning-this was all reported to me the
morning I was there.
Q. The morning of the discharge?
A. Yes, sir.
Q. And is that the same time that you first learned
that Eulert was going to make the mistake of paying
$180 for $100?
A. Yes, sir. I believe that was the first time I had
talked to those gentlemen down there, because they
51 As corrected
18 Twenty, dollar ones 7
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't come to see me as often after I got out of the
hospital and it was mighty close to the first morning I
was there.
Roberts again is not clear when he first heard reports
about Eulert. He starts by testifying as to reports "which
had come in to me before ... came back to me-when I
came back to work, had been several [emphasis
supplied]...." Then he refers to a first report of someone
stopping her from giving $400 for a $100 bill, then later a
report that she had given $180 for another $100 bill. These
supposedly happening before he came back and then the
morning he came back a report that she took and paid a
large bet that morning without calling a floorman (as
required) which was the final thing. Roberts said that
Troye reported it but he was not clear whether Troye or
Grellman were together. Subsequently Roberts changed
his testimony to conclude that he learned about all of the
mistakesgot the reports the morning that the large payoff
(without calling the floorman) had occurred, that the
incidents were close to when he came back-the $400
mistake in payment a week before and the $180 one a day
or two before. To add to the confusion Roberts places the
large bet incident as being on the morning he returned.
Since this incident was on the last day Eulert worked or
August 7 it would date Roberts' return as August 7. Yet
Roberts had testified he returned on August 5 and
subsequently that he was in the Primadonna discussing
the Bowen "shill" incident the morning after it occurred or
on August 6.
To further complicate the picture is Troye's testimony
that he told Grellman about the $100 bill incident about a
week after it occurred contrasted with Grellman's that
Troye told him about it the day it occurred. It should also
be noted that Roberts first said he learned of the large bet
payoff either from Troye alone or Troye in the presence of
Grellman and later Roberts said he learned of it from
Troye and then called Grellman. Troye said he discussed
this with Prim and Roberts in the company of Grellman
about 10 a.m. but Grellman testified he told Prim and
Roberts at 8:30 a.m. and Troye was not there.
If this weren't enough inconsistency the testimony as to
the alleged mistake or mistakes in payment add thereto.
According to Roberts he had learned of two incidents
where errors in payment by Eulert almost occurred-one a
week before involving a situation where $400 was about to
be paid instead of $100 and the other "just a night or two
before this incident" where $180 was about to be paid
instead of $100. However, supposedly these both were
prevented by Troye but Troye only testified as to one
incident occurring about a week prior to Eulert's
discharge-which Troye described as involving a started
payment of $180 but Eulert described as involving a
started but not completed payment of $400. Betty Stantliff,
another dealer, who testified as a witness for Respondent
described this incident as involving a started payment of
$400 in payment of a $100 bill. It appears evident that in
actuality there was just the one incident (although
Grellman to further complicate the matter referred to an
alleged "almost" payoff a couple of months earlier of $400
for $100-which I find was either the same one testified to
50 Although there was some confusion initially in her testimony
about whether she was paying out $180 or more, it became evident
shortly that Eulert had picked up 20 green chips which amounted
to $400 when she caught the error (The confusion as to amount
apparently arose from her at first not fully comprehending the
question on cross - examination )
by Troye, Eulert, and Stantliff or didn't happen at all).
There is dispute as to just what was said. Eulert originally
testified that she called Troye and said "That isn't right is
it?" and that Troye replied, "No, it isn't." Subsequently
on rebuttal Eulert testified that she said "That is too much
wasn't it?" and that Troye kind of laughed and said "Yes"
and then made a joking remark to the customer and that
was all there was to it. Eulert claimed that she had caught
the mistake immediately and then made the proper
payoff.59 She also said that the player did not leave the
table for some time.
According to Troye he viewed the particular incident,
Eulert did not call him over, he was standing about 9 or 10
feet away, she had placed the money closer to the player
than to herself and was about to pay him $180 instead of
$100. According to Troye, Eulert was about to give him 20
yellow $5 "checks" (chips) and 4 green "checks" (chips) or
$20 "checks" (chips), a total of $180. (Note that Eulert had
previously testified that she had started to give the player
20 green chips of $20 each.) Troye testified that he had
walked over, taken the money from in front of the player,
set it in front of the rack, and asked Eulert to check it
again. Eulert looked at the money, claimed it was correct,
and he again asked her to check it at which time she did so
and agreed that it was incorrect, that she had given the
player $80 too much. Troye said she then agreed there was
an error and that the player left the table. (As set forth,
Eulert stated that the player remained at the table for
some time.) Troye testified that he reported the incident to
Grellman about a week later and repeated that Eulert had
not called him to the table on that occasion.60 Respondent
witness, Stantliff, testified that she saw an incident where
a man came up, put down a $100 bill, and Eulert had
reached in her tray and counted out 4 stacks of $20 chips
and started to hand them to the customer, that as she did
so, Troye who was standing in back of her, walked up and
touched her on the hand and that Eulert said "oh, what am
I doing?"-and brought the chips back and then counted
out $100 in yellow chips. In response to a question of
where were Eulert's hands at the time Troye touched her,
Stantliff said, in front of the customer. Eulert had reached
out to hand the chips, which were $20 green chips, to the
customer. According to Stantliff, there were 4 stacks of 5
green or $20 chips totaling $400. Stantliff also testified that
Troye was standing to the side of Eulert where he could
see the action. Stantliff said she did not notice or hear any
conversation between Troye and Eulert at the time. She
also stated that Eulert's hands were still on the money and
had not left them and the customer remained at the table.
She did not notice Grellman around at all. The incident
was a few days before Eulert was terminated. Based on the
testimony of Eulert and in part that of Stantliff, I credit
Eulert's version of the incident including particularly that
she did "call" Troye. It is also evident that since Troye
(whom I credit as against Grellman in this respect) did not
report it until the date of discharge, that Troye did not
consider the incident of major importance.
This brings the matter to the alleged incident of
August 7 where Eulert supposedly did not call a foreman
to observe the dealing of a substantial and subsequent
60 On cross-examination , Troye said he could not remember
any other time that Eulert had failed to call him when making
change He also said he did not take her off the table for that
incident since "she said it was an honest error and I accepted her
at her word."
PRIMADONNA CLUB
payoff. Eulert's version was that she did "call" Troye
which she later corrected to say that she saw him standing
nearby and that he was observing the action-she
explained that a "call" may be made orally or by nodding
or by checking to see that someone has or is observing the
proceeding. Eulert further testified that Grellman was at a
cage some distance away but that he came over to observe
the action while play was going on. Eulert denied that at
any time did anyone raise any question about this bet or
was she taken off the table. She further testified that the
individual who made the bet was an Oriental.s' Troye's
version of the incident was that somewhere between 5 and
6 a.m. he was standing about 20 feet from Eulert's table, at
which time did not see Grellman but did see a large sum of
money on the table and hurried over. He observed that
Eulert had "gone broke" and was in the process of paying
a player on two different bets totaling $380 so that the
player was to receive and did receive $760. He asked
Eulert "How come you didn't call anybody on this
action?" and that Eulert replied, "Herb is here. He should
have seen it from where he's at." According to Troye, he
noticed that Grellman was 25 to 30 feet away checking at a
table with his back to Eulert. He allowed Eulert to
continue to pay the bet and called Grellman over.
Grellman said he didn' t see the action and told Troye to
get another dealer and replace her which was done. Troye
said that Eulert had not signaled to him to observe the bet
and that she had never paid off a large bet before without
calling him to the table. He said that he reported the
incident to Mr. Roberts and Mr. Prim without
recommendation. Grellman testified that he was closing
out a table at the end of the pit and that he turned and saw
Troye standing by Eulert's table and saw a large sum of
money in front of a player. He proceeded to the table
where Troye told him there had been action without
anyone having been called including himself. According to
Grellman, Troye asked him if he had been called.
Grellman replied he had not. Troye then described the
bets and added that Eulert had been paying them off as he
stepped up to the table after she had gone broke.
According to Grellman, he then told Troye to take her out
of the game and she was replaced by Mae West. (Eulert
denied that she was replaced.) On cross-examination
Grellman stated that he first noticed the money on Eulert's
table as he was proceeding down the pit. He said that
Troye had just stepped up to the table as he was walking
toward it and that as soon as he got there before anything
else had been said that he told Troye to take her off the
table.
81 Respondent makes a point of the fact that Eulert originally
testified that both of the pit bosses saw the action and that she
subsequently testified that Grellman came over during the course
of the play This is an instance of what may appear to be an
inconsistency and yet viewed in its context , I do not consider that
it is because in fact if Eulert 's testimony is credited, then
Grellman did see part of the action As indicated infra, I am
crediting Eulert's testimony as to this incident for reasons set
forth
61 In addition to the reasons outlined before, I also note the
following items in connection with Grellman 's testimony which
raise serious question as to his credibility There is the difference
between Grellman's testimony and Piazza ' s with respect to the
discharge of Dyer as to whether Grellman did or did not speak to
Piazza which is set forth infra, there is the difference between
Grellman's version with respect to the discharge of Dyer as
compared with the testimony of Roberts and also that of Prim
And I also noted in observing Grellman's response to certain
questions the following On one day Grellman testified as to
certain matters occurring in July After an overnight recess he
129
Apart from the conflicts between the testimony of
Eulert, Troye, and Grellman, and the conflicts between
Troye and Grellman as to whether Troye had called
Grellman over which Grellman indicated in his testimony
was not the case and the variance between Grellman's
original version of what he saw and when and his
subsequent version on cross-examination, there occurred
another conflict in testimony between Grellman and Troye
which is rather significant. Eulert had testified that the
man at her table was an Oriental. Grellman and Troye
were called in rebuttal as to this testimony. After Grellman
had described the man as an Italian, Troye was excused
from the courtroom while Greuman testified further as to
his description. According to both Troye and Grellman,
the player was not an Oriental but an Italian. Grellman
described the man as wearing a dark blue-gray jacket with
a shirt and no tie. Grellman said that the man was 58 or 59
years old, shorter than he was, stocky and had wavy, salt
and pepper colored hair. Troye described him as being as
tall as Grellman, thin, about 50 years old and wearing a
suit and tie. At first Troye could not recall what his hair
was like, but then described it as being straight and black.
This conflict indicates rather clearly that Grellman and
Troye were not describing the same individual or, if they
were, certainly one of them was not giving an accurate
description. Eulert's description of the man as an Oriental
obviously conflicts with both Grellman and Troye. In this
instance, I am crediting Eulert's version as to the
description of the individual as an Oriental and finding
that the description as given by either Grellman and Troye
was not a description of the individual at the table, at least
not in one or more material respects. The testimony given
by Grellman in this instance of a man whom he had seen
briefly, was so positive and detailed as to raise serious
doubts as to its credence in the first place. Troye was
detailed and definite but not quite as positive in his
description of the man whom he purportedly saw at the
table. However, he joined with Grellman in describing the
individual as an Italian . As in certain other instances for
reasons previously set forth, I find Grellman is not to be
credited.az
Further in view of the conflicts of testimony between
Grellman and Troye, and the fact that I considered
Eulert's testimony to be credible and reliable, I am
crediting Eulert's version as to the alleged incident on the
date that she was terminated and find that it did not occur
as claimed by Respondent. Accordingly, with respect to
Eulert, I find that there was only one incident involving a
purported or started overpayment to a customer involving
testified that they occurred about in April which put them in a
time sequence where they more logically would appear to fall.
Grellman was asked by the General Counsel whether he had a
chance last evening to "refresh your recollection as to certain
dates9" Grellman frowned in response to this and then in a
somewhat belligerent answer responded " I never gave it any
thought after walking out of this court " Both the answer and the
manner of giving it indicated a lack of candor in response to this
question In a similar vein , Grellman was asked, "Did Mrs Dyer
make any more mistakes than any other dealer" He hesitated
and then responded "I'd say yes." Subsequently he qualified this
by answering : "Yes, sir, small mistakes, they didn ' t mean too
much ." He was shortly thereafter asked "Q . Is the incident that
took place on August 7th the only serious mistake in your
estimation that Mrs Dyer made? A. It was the most serious, yes.
Q Is it the only serious mistake that you observed7 " Grellman
here again hesitated before answering and finally said, "yes "
These questions were propounded by the General Counsel and as
previously set forth , Grellman's responses appear to vary
depending on which counsel was asking the questions
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$400 which had been taken out of the drawer to pay for a
$100 bill. I further find that in this instance the payment
had not been made, but that Eulert still had her hand on
the money, that when Troye called her attention to it, she
had immediately realized the mistake and taken the
money back. I also find that she had called Troye to
observe the payment that was being made, either directly
or by signaling, or noting that he noticed the action that
was taking place. I also find that this incident was not
considered to be of importance by the Respondent since it
was not even reported until the day she was terminated.
As to the bet incident on that final evening, I have
concluded and find that Eulert's version is correct, that
she had signaled to Troye who noted the action and that it
occurred as stated by her. I have, as indicated, discredited
the conflicting versions of Grellman and Troye as to this
alleged incident.
It is also claimed that Eulert supposedly had been guilty
of some other matters which were not even referred to by
Roberts as reasons for her termination. Eulert was said to
have looked at her "hole"63 card the wrong way so as to
bend the card. She had been corrected on it many, many
times, according to Grellman. Troye testified he had to call
her about this at least a couple of times a week, but that
there was never any change after he mentioned it to her.
Eulert testified that she had looked at her "hole" card as
she had been taught at Primadonna and denied that she
had been reprimanded on many occasions for not so doing.
If the matter were as serious as Respondent indicate S64
then, it would seem that something should have been done
about this long before this time to any dealer who was
violating a rule with respect to it to such an extent that it
would be necessary to call the dealer's attention to this
infraction of the rules as much as twice a week for the past
6 months, and, presumably, before that time. Accordingly,
this latter appears to be a purely pretextual matter which
has no substance. Also introduced by the Respondent at
the hearing were certain records as to the hours of work by
Eulert which supposedly indicated that her work record
was not as it should have been. The first answer to this
appears to be in the testimony of both Mooney, the
secretary-treasurer, and Grellman, that actually neither
they nor anyone else in the management hierarchy had
checked to determine how many hours Eulert had actually
worked, and that the records of this were kept in Mooney's
office. Mooney testified that neither Prim nor Roberts had
come to look at the records, and he had not been asked to
go over or determine the records with respect to time
worked by Eulert, or for that matter Bowen or Dyer as to
whom something will be said subsequently. Nor could he
recall any request being made to his office for such
information. The record also reflects that, during the
period from July 14 through 23, when Eulert was not
working, that she had been absent with the measles and
Grellman knew about this. Here again the effort to bring in
the records of time worked, as a basis or additional basis
6 i A down card held by but not shown by the dealer while play
is in progress
64 Respondent contends and offered evidence that a bent
"hole" card can be used by customers to determine what cards to
play
es There are various other discrepancies and differences in the
testimony of Grellman and Troye set forth in the record as to this
incident
66 It should be noted in connection with the operations of the
gambling casinos that testimony was elicited to the effect that
warnings were not given and that at times discharge has been
for termination becomes purely specious. These were not
referred to by Roberts as a basis for her termination, but
rather the alleged incidents of purported improper payoff
and claimed failure to call a floorman to observe the action
in the case of a player involving a large sum.
The foregoing indicates that the Respondent's
purported reasons for discharge of Eulert were not the real
reasons, but were asserted as a pretextual basis of
discharge. This is particularly evident from the contrast
between Roberts' initial testimony of when and from
whom he received reports about the "claimed improper
payoff or payoffs" and other incidents with his later
version; the conflicting testimony of Grellman and Troye
as to when and with whom they reported what to whom;
the conflicting versions of Troye and Grellman as to when
the payoff incident was reported by Troye to Grellman; the
conflict between Grellman and Troye involving the
incident of the large bet as to such matters as to whether
Troye called Grellman or not, as to the identity of the man
at the table and as to various other details contained in the
record;65 the significant discrepancy in the testimony of
Troye and Respondent witness Stantliff as to the $100 bill
incident previously detailed, etc. These and the previously
detailed testimony as to Eulert including conversations
between Grellman and Eulert, and Prim and Eulert
together with the numerous violations of the Act by
Respondent, previously found herein, and the timing of the
discharge at the height of the season during the period
between an NLRB hearing and immediately before a
direction of an election, make it clear that Eulert was
discharged contrary to the Act. Accordingly, for all of the
reasons set forth above, I find and conclude that Eulert
was discharged in violation of Section 8(a)(3) of the Act.
4. The discharge of Dyer
Florence Dyer began work for Primadonna, her last
time, in February 1965 as a "21" dealer on the graveyard
shift. Her supervisor was Herbert Grellman. She had
previously worked at the Primadonna some years before
and had been then laid off for not coming in on a
weekend.66
As previously set forth, I have credited Dyer's testimony
with respect to a conversation with Roberts about June 2
relative to union organizers and organization, in which she
stated or told Roberts that the Union would be a good thing
except for the right-to-work law. In so doing, I consider
this to be in line with the general nature of prior inquiry by
Roberts on April 24, the activities and inquiries of Piazza
and Grellman67 and the general position of Respondent
with respect to union activities, etc.
Roberts testified that he decided to terminate Dyer
based on a report received from Prim and Grellman on
August 7. According to Roberts, Prim and Grellman
reported to him about her dealing, that she started to pay a
blackjack which was to be paid at one and a half to one and
peremptory I find it unnecessary in resolving the issues herein to
evaluate the significance of lack of warnings but, for the purpose
of this matter, will assume, particularly in view of the
uncontradicted testimony, that warnings are not customarily
given in gambling casinos, and in any event, have not been given
at the Primadonna, so that absence of warnings would not form a
basis for finding of improper motivation
6r Also as previously stated , supra, Dyer had made a similar
statement to Grellman in April in response to his asking her how
she felt about the Union
PRIMADONNA CLUB
she got up to $150, which was three to one, that they both
jumped at the same time to stop her and Grellman paid the
bet. She then, according to Roberts, walked off from the
table and they put another girl in her place, and this was
the report that he got. He thereupon decided to replace
her. Roberts then testified that he thought Grellman made
a call to tell her that she was terminated, but it could have
been Piazza. According to Roberts, Grellman did not tell
him that he would like to terminate Dyer Roberts
subsequently testified on cross-examination that
Grellman, in addition to telling him about the blackjack
incident on August 7, had made other complaints. But
whether these were told him that particular day or not,
Roberts did not recall because he said Grellman had
visited him at home a couple of times a week. According to
Roberts, Grellman complained about Dyer's bad counting
mistakes and her inefficiency as a dealer and said he
thought something was troubling her. Subsequently, later
during his testimony Roberts stated that he had checked
and it showed that Piazza made the phone calls to
terminate the girls, including Dyer .6B Roberts repeated his
previous testimony about the report that he had about the
alleged payoff, repeated that Dyer had been taken off the
table, said he had received various reports about her over
a period of time, and that she had made numerous
mistakes. When asked what mistakes, he answered,
"Pushing. When she wouldn't have the bet won, I would
correct her on it Also on paying off Blackjacks she
seemed to have trouble with the three to two, which is the
correct amount on a Blackjack."69 He stated that her
problem with "pushing" was in her counting, so that she
didn't know when she should collect or not collect.
Roberts added that they had numerous other reports and
she had so many troubles that she didn't seem to be able to
get her mind on the game.
Grellman testified that he had a conversation with
Roberts and Prim in which he told Roberts how she had
made the overpayment on the blackjack, and Prim had
corroborated it since he had seen it. Grellman said that he
also told Roberts that many times before Dyer had been in
a faraway state of mind, that her mind wasn't on the game,
and that it looked like she had been taking medicine that
made her drowsy.
Grellman then testified that he said to Roberts and
Prim, "I think we should terminate the girl," and that they
agreed with him. It should be noted that Roberts said that
Grellman did not make such a recommendation. Prim,
when questioned, also testified that Grellman did not
make such a recommendation. Grellman stated that Dyer
called him about her termination the same day, that he
expressed surprise at her termination70 and he told her
that he did not know anything about the matter, that he did
not know that she had been fired or why but would try to
find out.71 Grellman explained he so told Dyer because he
gave no reason as to why people were terminated and
the clubs that he had worked in typically did not give any
reason. Grellman also testified he had complaints with
respect to Dyer which were "that many a time she'd come
6' This testimony was elicited by me
89 I e , to pay $3 for each $2 bet if the player has a blackjack or
" 0 Grellman said, "You're kidding "
11 Note this is the same statement Grellman made to Eulert
when she called
72 The only conversation Grellman mentioned specifically in
that respect occurred (according to him) 2 or 3 months before
Dyer's termination Grellman also said Dyer called him about 3 or
131
in to work tired and had problems on her mind." Grellman
said that due to the fact she was tired and was taking some
sort of medication , he overlooked certain small errors she
had been making. Dyer's big problem, according to
Grellman, concerned her daughter who had left town on a
number of occasions .'' He also stated that Dyer would
phone in and say that she couldn ' t come in due to being
sick , and at other times , asked to get off on short notice to
go to California to see if she could find her daughter.
Grellman testified as to problems that were involved in
replacing persons on short notice , particularly on the
graveyard shift . He said that Dyer told him that she was
taking medication for about 3 months before her
discharge , and she told him periodically to "watch her a
little bit tonight" as she had had to take some medicine.
Grellman admitted that he never sent Dyer home during
the last few months of her employment.
Dyer (who did not testify in rebuttal ) said that so far as
she could remember she only called in two or three times
to be off. She denied that she told Grellman on many
occasions that she was under a doctor 's care and had to
take medication to calm her nerves, although she admitted
that at one time earlier she had told him this. Dyer stated
she did not take medication while at work.
Grellman claimed that Dyer made small mistakes but
conceded that no one was perfect . He was asked, as
indicated before, whether Dyer made any more mistakes
than any other dealer, and he answered , "I'd say, yes." He
estimated that she made maybe a dozen or so during the
course of her employment . As previously set forth , supra,
Grellman was asked:
Q. Is the incident that took place on August 7th the
only serious mistake in your estimation that
Mrs. Dyer made?
A It was the most serious, yes.
Q. Is it the only serious mistake that you
observed?
After considerable hesitation, Grellman responded:
A. Yes.
According to Grellman , on August 7, he recommended
to Roberts that Dyer be terminated . The reason he gave
was that she had made a great error in the blackjack
payoff and that he, in addition, told Roberts that she was
not the best person to have, that she was under
medication 73 mostly and had to be watched carefully, that
they had to devote too much time to watching her.
Grellman said he told Roberts about Dyer's condition
concerning medication prior to August 7. According to
Grellman , Mrs. Dyer had to go to California three or four
times to locate her daughter.
It should be again noted that Roberts denied that
Grellman recommended the discharge and there is no
indication in Roberts ' testimony that he was told about the
need for medication , nor does Roberts' testimony reflect
Dyer's having been off a good deal or having interfered
with the operation of the casino because of her alleged
trips to California.
4 weeks before her discharge to tell him she had to go to
California to try to locate her daughter
" Respondent inquired of Dyer whether she was using
tranquilizers and she said she did not believe she was during the
"last period" of her employment but testified she had for a while
used "water pills" (presumably diuretic in nature ) to remove
water from her system Although Respondent requested and
obtained the name of her doctor and druggist, it did not seek to
adduce additional testimony as to the foregoing
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grellman, in his testimony, also added at one point that
Dyer had engaged in two-handed dealing on numerous
occasions and had to be warned about that. Here again,
there is no reference to two-handed dealing in Roberts'
testimony On the other hand, it should also be noted that
there is no reference to "pushing" in Grellman's
testimony. The question of the relative inconsistency of
testimony on the part of Roberts and Grellman, is again
involved here as it has been in the cases of Bowen and
Eulert. Note again according to Prim, Grellman did not
recommend that they discharge Dyer, but Grellman did
tell them that he had a lot of trouble with her, and that she
was making a lot of mistakes.
This brings us to the one matter which apparently is the
only one of real consequence; that is the alleged incident
on the night of Dyer's termination which purportedly
resulted in her discharge.74 With respect to the alleged
incident on the night of her termination, this appears to
have been a matter which occurred in the sense that it may
have looked like Dyer was about to make a mistake. As to
the details of this particular matter, they appear to be as
follows: Dyer testified that the player had a blackjack; that
he had nearly all of her dollar chips; and that she was low
on dollar chips, so she brought out $5 chips; that she had
to pay off a $25 blackjack, so she cut the dollar chips down
to show there was $25, and then she took out the $5 chips
and cut a stack down but before she could finish putting
the money up, Grellman came in and said she was paying
it wrong. She wasn 't too sure as to whether she had more
money on the table or in her hand than the bettor had won
because she said she hadn't finished cutting all the money
out. According to Dyer, she had "cut the dollar chips down
to $5 stacks which showed he had $25 there, which he
would have had $25 coming to him of his own money plus,
I paid him $25 plus $12.50 which makes $37.50; and I had
put down $50 in five-dollar chips which meant that he had
in front of him more money definitely at that time; but I
hadn't picked up the dollar chips." According to Dyer, she
was giving the player or about to give him $25 for his $1
stack of chips that she was going to pick up after she
finished paying him his money but before she could do so,
Grellman came in and told her she was paying wrong. At
this point she went blank and Grellman made the payoff.
Dyer said she continued on the table, took a break, and
then finished out the shift that night.
According to Grellman, he had been watching Dyer and
one bet was for $50 on which she made an overpayment of
a blackjack. He stepped up and told her that she made an
error and pulled the money back and made the payment
himself. Grellman testified that the amount overpaid was
$50, that the money was in front of the player in the
players' circle, and that Dyer said she was confused and
he told her that he would make the payoff which he did.
Grellman stated that Prim was with him at the time and
observed the action. Grellman also stated that Dyer
continued on the table which is contrary to Roberts'
statement that she was taken off the table. According to
Troye, he too observed the incident and testified as
''' The reference to hours worked as in the case of Eulert and
Bowen is obviously one that was not considered of any importance
and is explained in part by illness at a particular period in April
and otherwise answered insofar as a basis for discharge by the
fact that no check was made as to these hours prior to termination
but apparently only in connection with the trial of the case
75 He points out for instance that Troye claimed that he was in
one position and Grellman stated that he was in another position
and that the evidence indicates an inconsistency in this respect
follows: He said that he observed the player betting $50,
the player turned over blackjack and he observed Dyer
paying him $125 in $5 chips, whereas the proper amount
would have been $75. He stated that the $125 when he saw
it was in the players' circle, and he saw Grellman reach out
and bring back $50 and place it back in the rack. Troye
added he did not hear anything that was said, he saw Prim
slightly behind Grellman and that dealers were not
supposed to make change of money in the players' circle.
This referred to Dyer's statement that she was making
change in part for dollar chips and that this explained the
amount of money that was in the circle at the time. Troye
testified, on cross-examination by the General Counsel,
that he had seen previous overpayments by dealers at the
Primadonna Club and when asked whether it was an
uncommon thing, he answered, "No."
The General Counsel takes the position that Dyer was
actually making a correct payment when Grellman
interfered and took over what was obviously a correct
action on the part of Dyer. The General Counsel also
points to certain alleged inconsistencies in the testimony
between Grellman and Troye as to their versions of what
occurred.75 Here Dyer's statement in response to a
question from me as to whether Grellman had ever come
over before is pertinent. Dyer said that Grellman had not
previously come over when she was making a payoff. Dyer
was making a payoff which evidently looked to Grellman
as being improper-testimony indicates, among other
things, that she was not supposed to be making change at
the same time she was making a payoff. It may well be that
Dyer thought that she was properly handling the matter.
The bet may have involved $25 instead of $50, but
apparently it looked to Grellman as if Dyer was making an
erroneous payoff of a bet. It also appears that Dyer
became confused when Grellman came over and to this
extent may not have been able to accurately recall exactly
what was involved or happened. In any event, Grellman,
Troye, and Prim evidently felt that she was about to make
an improper payoff although she may not have been.
The more important question is whether this incident
was really a matter of great import. I am of the belief that it
was part of the same series of incidents that allegedly
occurred that evening and the preceding evening involving
Bowen, Eulert, and Dyer. I reach this conclusion for
several reasons: (1) Troye's testimony that this type of
incident was not uncommon; (2) Dyer was allowed to
remain on the table and was not removed therefrom;
(3) although Roberts had testified that Dyer was removed
from the table, this was not the case, according to either
Dyer or Grellman; (4) the other incidents supposedly
involving Dyer were not originally listed by Roberts in his
initial testimony as to the reason for her discharge but
were only advanced later; (5) there is no mention or report
by Grellman of Dyer's alleged "pushing" problem related
by Roberts; and (6) Grellman's versions conflicting in
other aspects with those of Roberts (such as Grellman's
testimony that he recommended Dyer's discharge and
Roberts' that Grellman did not). The foregoing strongly
Also that Troye claims that he saw Grellman put back $50
whereas Grellman claims that he had to entirely reconstruct the
bet However, while there may be some inconsistency in these
respects, it also appears that Troye who admitted that he did not
see the incident in its entirety still witnessed enough to see that
Grellman was taking care of it I do not think that the aforesaid
variations affect the conclusion that Grellman believed something
was amiss as indicated in the text above
PRIMADONNA CLUB 133
indicates that Dyer's discharge was pretextual. When to
these reasons are added the relatively minor nature of the
items asserted as grounds (of which some such as the
alleged time off could not be a reason)76 and Grellman's
admission that the payoff incident was "the only serious
item," which as shown above was not uncommon and did
not even result in Dyer's removal from the table, it
becomes even more apparent that the discharge was
pretextual. When to this is added the fact that this item,
the items allegedly involving Eulert, and the alleged item
involving Bowen were not really as claimed by
Respondent, and that they all purportedly occurred within
two evenings on the same shift, it becomes even more
evident that Respondent was seeking an excuse to
eliminate certain persons for a reason other than that
stated. Finally when this discharge (and those of Bowen
and Eulert) occurring shortly before an order directing a
union representation election are viewed, in the light of the
Respondent's antiunion conduct in violation of the Act, its
expressed antiunion statements, and the indicated
prounion attitude of Dyer, the conclusion is that Dyer (as
were Bowen and Eulert) was discharged for expressing a
view in support of and favorable to the Union.
For all of the reasons set forth above, I find and
conclude that Dyer was discharged in violation of Section
8(a)(3) of the Act.
5. The discharge of Bowman
Ronald Bowman was employed early in May 1965 as a
crap dealer and promoted to a boxman77 about the end of
June 1965. He joined the Union on August 15 but there is
no evidence that the Respondent knew he had done so.
The General Counsel predicates his case not on
Bowman' s union activity, but on the fact that he was a
close friend of Mike McGoldrick '711 and contends that
McGoldrick was fired because of his union activities and
Bowman because of his close association with
McGoldrick. The General Counsel asserts that although no
case can be brought on behalf of McGoldrick because he
was a supervisor at the time of his discharge that since,
according to General Counsel, McGoldrick was terminated
because of his union activities and Bowman because of his
close association with McGoldrick, that Bowman was
illegally terminated.
According to General Manager Roberts, Bowman was
terminated because of "his refusal to cooperate with the
management and tell them everything that went on." He
would not answer how a game was going on according to
reports Roberts got "and the day that I asked him in
regards to the toking79 he absolutely refused to answer
me.
The evidence as to the alleged lack of cooperation is
scanty80 and as we shall see there are some conflicts in
Roberts' testimony as to when and how the final decision
to terminate Bowman was reached. This leaves the
"toking" incident and its aftermath, together with the
relationship of Bowman's discharge to McGoldrick's
discharge, and the reasons for McGoldrick's termination
as matters to be considered in deciding Bowman's case.
However, it should be kept in mind that the General
Counsel has the burden of proof. Hence, if Bowman's
discharge can be justified by Respondent the General
Counsel does not establish a case. Likewise, even if
Respondent cannot justify Bowman's discharge, since he
has not demonstrated union activity independent of his
association with McGoldrick, the General Counsel must
establish that his association with McGoldrick was
involved in his discharge. Finally, the General Counsel
must show that McGoldrick was terminated because of his
activities for or interest in the Union and not for some
other reason or reasons-and inferentially that such
motivation as to McGoldrick is presumed to apply to
Bowman's termination.
Carl Brafford, a pit boss, testified that one Tuesday
night in late October 1965 from the "peek" upstairs he saw
Bowman and another boxman, Worrell, take money from
the table to "toke" a cocktail waitress for coffee. Brafford
testified he had never seen this done before and reported it
to Piazza. Brafford said he also reported this to Roberts.
Piazza also reported to Roberts that McGoldrick,"'
Bowman and Worrell were toking cocktail waitresses
when they brought free coffee.82
Roberts said he received these reports on Tuesday night
but did not speak to Worrell or Bowman until Saturday
because he didn't see them until then. He called Worrell
and asked who authorized him to toke. Worrell told
Roberts no one had but he saw others do it. When asked
who the "others" were Worrell replied Bowman and
McGoldrick. When Bowman came in, Roberts asked him
who authorized him to "toke." Bowman refused to answer
Roberts but admitted he had been toking the waitresses.
Bowman testified he refused to answer because he felt
Roberts was out to get McGoldrick and wanted to use him
to do it. Roberts testified he told Bowman to go home and
he would check it later. Bowman's understanding was that
he was terminated. (However, no termination slip was
made out.) In any event, there ensued thereafter that day
phone conversations via long distance between Prim and
Roberts, and between Prim and Newman. Roberts'
version is that he called Prim and asked if Prim had
authorized toking waitresses, and that Prim said he had
not. Roberts told him of the incident and Prim told him to
check further with supervisors on vacation. Prim left it to
76 Since not definitely ascertained until the hearing
" A boxman watches over the crap tables to see that the games
are being properly conducted Boxmen were included in the unit
found appropriate on August 10, 1965, in Case 20-RC-6379
involving the Primadonna
78 See reference to incident of employment of McGoldrick,
supra
rs Tipping
80 From Roberts ' subsequent testimony, it appears that the only
report about Bowman concerning general uncooperative conduct
was one from Piazza Roberts himself had never seen this nor
cautioned Bowman about it nor does there appear to be testimony
from any supervisor including Piazza about Bowman being
uncooperative . Bowman testified he was never told this and he
always followed orders given to him
81 McGoldrick was an acting supervisor during vacation
periods At the time of the toking incident he was acting as
supervisor in place of Ray Webster
sr The record contains a great deal of testimony about alleged
toking of cocktail waitresses and others for various purposes.
Suffice it that for several months before November 1965 coffee
was delivered free to pit personnel Earlier for a period pnor to
July it had been paid for by supervisors from a "kitty " of small
change and apparently on occasion may have been paid for from
the table However, this was not a "toke " but payment for coffee
While there may also have been some instances of paying for
newspapers or on occasion aiding a customer who went "broke"
to get home , I conclude from credited testimony and the record as
a whole that there was no general practice of taking money from
the table and none to "coke " for coffee and certainly none at the
time here involved
299-352 0-70-10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts whether to call Bowman back, which Roberts Aid.
Newman learned of Bowman's "termination" on
October 30 from him. She and McGoldrick then went to a
phone and she called Prim in Palm Springs. According to
Newman, she told Prim what had happened and asked
since when did a boxman get fired for toking cocktail
waitresses. Prim told her that is what he said to Roberts
and not to worry, Bowman would be put back to work.
Later McGoldrick asked Newman if she had Bowman's
phone number and told her Roberts wanted her to call
Bowman to come back to work. She called Bowman and
he returned. According to Prim, Roberts called him in
Palm Springs about the "toking" incident including
Bowman's refusal to answer. He suggested checking
further into the matter before assessing blame, said they
could discuss it further in a couple of days when he would
be in Reno, and otherwise corroborated Roberts'
testimony. Prim said that about the same time or shortly
afterwards he spoke to Newman who had called to tell him
Roberts had fired Bowman for taking chips off the table
which everybody else was doing. He told her he would look
into it and that meanwhile Roberts was calling Bowman
back to work. Print said he could not remember her asking
"when did boxmen get fired for toking cocktail
waitresses" and denied saying that this was exactly what
he had said to Roberts.
Bowman remained at work until November 22. Roberts
checked further and found from McGoldrick's admission83
that McGoldrick had authorized the toking by Bowman.
Roberts found no other authorization or practice of so
doing. According to Roberts, he kept Bowman and
McGoldrick (whom he considered undesirable for reasons
set forth, infra) on the job84 for some additional time
because of a request by the Reno Police Department to
retain McGoldrick while they investigated a matter.85
Roberts said he also waited for Webster, the regular
supervisor, to return from his vacation about November 7
to ascertain if Webster had ever authorized such toking.
Webster had not.
The General Counsel argues that Bowman was not
specifically mentioned by the Reno police who were not
aware of him at the time they asked Roberts to retain
McGoldrick so they could conduct an investigation.
Roberts, however, apparently construed the request to do
nothing that would disturb the status quo in relation to
McGoldrick. Certainly Bowman was an important part
thereof. In fact, the General Counsel's case is predicated
on the claimed close friendship of Bowman and McGold-
rick.S6 He cannot have it both ways.
Then after the check with Webster and a wait because
of the request by the Reno police and also to discuss this
toking incident further with Prim,87 Roberts let them both
go on November 22. As previously set forth, according to
Roberts, Bowman was terminated for generally refusing to
cooperate with management and for specifically refusing
ea McGoldrick when questioned by Roberts readily admitted
that he as acting supervisor had authorized Bowman to toke
cocktail waitresses for bringing coffee.
"This would be even after he and Prim finally decided to let
them go See discussion infra of Roberts' explanation as to
sequence of events, etc
85 The investigation did not reveal anything improper
88 The record is replete with testimony that Bowman and
McGoldrick were close friends and that Respondent knew this
See direct testimony of Roberts, Prim, Hogan and of McGoldrick
and Bowman as to remarks by Piazza In fact, one of Roberts'
complaints about them was that they were taking their "breaks"
together
to answer who authorized him to toke. Roberts testified
that McGoldrick was terminated for "partially the same
thing and another thing he would not stay on his job."
When a boxman left to eat, McGoldrick, according to
Roberts, failed to fill his position and "He would pay no
attention to our rules and regulations." Roberts
subsequently said he figured Bowman knew why he was
being terminated. Roberts referred to Bowman's
association with McGoldrick and then added "that the
main reason for letting him go was because he refused to
answer management about what was going on."
According to Roberts' recollection, he waited until Prim
came back sometime after the 7th and then discussed it
and decided for the betterment of the club to eliminate
Bowman and McGoldrick. This was about 5 to 7 days after
November 9. He reported to Prim what he had been
"getting" from the swing shift, etc., about McGoldrick.
Roberts said they waited about 7 to 9 days after the Reno
police had requested to hold up termination (of
McGoldrick) before doing so. This occurred 1 or 2 days
after he and Prim decided to let them go. Prim at first
testified he met with Roberts in Reno to discuss
McGoldrick's termination but later said it was considered
in a telephone conversation. According to Prim, Roberts
told him McGoldrick would leave the pit whenever he
wanted to do so, threatened to "pistol whip" two different
fellows and had a fight with one of them in the pit and
Brafford stepped in and stopped the fight and that he was
just a troublemaker.88 Roberts told him Bowman refused
to cooperate and after admitting he took the money off the
table refused to say "who else took it off."89
Prim said he and Roberts agreed they should not keep a
man who refused to answer such a question. Prim said
after McGoldrick was terminated he telephoned him in
Palm Springs. Prim told McGoldrick he was sorry, he did
the best he could for him but he caused so much trouble
there and that all his pit bosses were against him, the he
didn't want to "get involved in the case any more" that he
didn't feel good.90
That Bowman's discharge was in part , at least , related
to McGoldrick's is evident not only from the foregoing
including particularly Roberts' reference to Bowman's
relationship to McGoldrick but also Piazza's like
reference. Piazza told Bowman that if anybody wanted to
hire him, he would recommend him and "I told him that I
was sure he was just a victim of circumstances being
associated with this fellow McGoldrick."
There appears to be little doubt from the record
including Prim's testimony that his "pit bosses"
particularly Roberts and Piazza did not want McGoldrick.
They evidently were reluctant to have him in the first
place and ultimately succeeded in eliminating him. But
whether the real reason was that McGoldrick was a
(nonpaid) union organizer or some other reason is another
question. The General Counsel stresses what he argues in
tl7 Prim was supposed to have come to Reno but evidently did
not at this time See Infra
88 The reference to a fight is to an incident involving
McGoldrick and Fontana in the pit in which each claimed the
other challenged him to a fight A heated verbal but nonphysical
exchange occurred The alleged "troublemaker" claim will be
discussed further infra
88 Apparently this refers to Bowman 's refusal to say who told
him he could toke
' Prim said " I can't cope with the situation anymore and I
don't want to get involved "
PRIMADONNA CLUB
detail to be the allegedly specious nature of several of the
incidents relied on by Respondent to terminate
McGoldrick.9'
In further support of his contention is the statement
allegedly made by Prim to McGoldrick that Roberts and
Piazza did not want him because "Well, he told me they
were down on the Union. They didn't want me in there to
begin with. That is all. He told me that when I walked over
to him "92 It is not entirely clear what time McGoldrick is
referring to but this appears to relate to what he claims
Prim told him when he was hired. Prim was not called in
rebuttal but had denied any discharge of McGoldrick
because of his union activities. Even assuming that
Roberts and Piazza "were down on the union " and didn't
want him to begin with, this would not necessarily
establish that McGoldrick was discharged because of his
union relationship. Nor would the conclusion (which I do
not reach) that all of the Respondent's alleged incidents
and contentions about McGoldrick were specious or
spurious, necessarily result in a finding of illegal
discharge. In addition to the matters discussed supra
including fns. 88 and 91 on which a valid discharge might
or might not be predicated, there is still the question: Even
assuming no valid reason appears, was union activity the
cause? A crucial key to this appears in the testimony of
McGoldrick himself who was asked "Is it your testimony
Mr. Roberts instigated his pit bosses to harass you; is that
right?" A. "Yes." Q. "Tell you-" A. "Mr. Roberts
instigated it. If you will check the records you will notice
that everybody Mr. Prim put to work is not there no longer.
Would you like some names?" While the latter is not proof
of the fact, it advances another plausible explanation of
why the pit bosses might not have wanted McGoldrick. It
is not unusual for management not to want or to resent
persons employed through the owner as a result of
personal friendship or otherwise. If that individual has any
problems they tend to become magnified and if he refers to
his connection this may be a further irritant. In
McGoldrick's case, this is reflected in the Fontana
incident (see fns. 88 and 91), where, according to Fontana,
McGoldrick said "`I don't know where you get your juice,
but,' he said, `the big man hired me."' And then, when
Fontana said he was going to report the matter to Roberts,
McGoldrick replied he didn't care who he reported it to
yi According to Respondent , McGoldrick on various occasions
threatened to "pistol whip" persons McGoldrick admitted he
might have referred to "pistol whip" but denied that he ever said
he would "pistol whip" anybody The General Counsel points to
his size (about 124 pounds) and to various discrepancies or alleged
discrepancies in the testimony of Respondent witnesses While I
do not believe there was involved at any time a real threat with
any intention of execution on the part of McGoldrick (nor does it
appear that anyone so understood ), I conclude from the varied
and extensive references thereto that such expression in the form
of a threat had been used by McGoldrick
There is the toking incident previously referred to, and two
alleged incidents involving McGoldrick and crap dealer or
boxman Russell Jones One involved a refusal by Jones to sign a
fill slip and the other the use of a dice stick at the table-in both of
which considerable abusive language was used by McGoldrick
according to Jones but denied by McGoldrick There appears no
point in detailing or resolving this since Jones testified he never
reported anything about McGoldrick to Roberts, Piazza, or Prim.
Another incident involved McGoldrick and floorman Donald
Fontana-where Fontana had relieved McGoldrick and some
money had been lost at the dice table which McGoldrick
apparently thought was greater than it was An argument
subsequently ensued with varying versions as to what was said
and who threatened to fight whom , etc I see no necessity to
resolve fault or the varying versions other than that there was a
135
and repeated "The big man hired me." While McGoldrick
denies this reference, I do not credit his denial. In addition
to my observation of the witnesses in this respect, I think it
pertinent to note McGoldrick's answer to the following:
Q. Do you know what the word "juice" means?
A. That means if you are put to work by someone,
he is your juice.
Q. Didn't you feel you had juice in the club?
A. Well I felt that it would take Mr. Prim to fire
me, if that is what you meant.
This attitude on McGoldrick's part coupled with those
incidents that did in fact occur (regardless of whose
version is credited), together with the toking incident and
an attitude by others in management toward employees
hired through Prim's influence, could explain the
termination apart from union considerations. It should also
be noted that although the representation petition was still
pending, there was no election impending, no evidence of
any substantial union activity at Primadonna on
McGoldrick's part at the time, and little indication of
substantial union activity in general at Primadonna at the
time.93
Based on the foregoing, I do not consider that the
General Counsel has met his burden of establishing a
discriminatory discharge in the case of McGoldrick, let
alone Bowman. Without such a finding as to McGoldrick,
the case of Bowman must fail. I might add that although I
am not impressed by Roberts' version as to Bowman, I am
also compelled to the conclusion that an employer need
not retain an employee who refuses to tell the employer
who authorized him to spend his money (even though he
had in fact been authorized by his supervisor and the
amount involved was small). I conclude that the General
Counsel has failed to make out a case for Bowman, and
shall therefore recommend that the complaint be
dismissed as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
dispute and a rather heated argument between McGoldrick and
Fontana (Same incident referred to supra , fn. 88.)
4d One other matter to be mentioned is that there is reference
throughout the record to "heat" or "steam" on McGoldrick with
McGoldrick claiming his "heat" came from his union affiliation
and Newman testifying that Prim said he was skeptical about
hiring him "because he had a lot of steam over him about the
union " Prim did not mention this in his testimony According to
Piazza, he told McGoldrick and Bowman that McGoldrick had a
lot of heat on him , that by heat he meant "Mike's past has been
real poor " Piazza added he had been terminated at places he had
worked
Supervisor Hogan testified McGoldrick had told him he was
getting "heat " which meant someone was giving him trouble but
he didn't say whom or what kind of trouble The foregoing
indicates that there may have been some " heat" or pressure on
McGoldrick I do not conclude what it resulted from except I
cannot find on the basis of this record that it was caused by his
union affiliation (As indicated "heat" or trouble or pressure could
be for different reasons or for more than one reason.)
91 The only indicated union activity was a reference by Roberts
to McGoldrick, then a supervisor, about his friend Newman's
"harassment" of (according to Roberts), "signing up" of
(according to McGoldrick) girls at a place down the alley from the
Primadonna
136 DECISIOINS OF NATIONAL LABOR RELATIONS BOARD
described in section I, 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
It has been found that Respondent has engaged in
certain unfair labor practices. It will, therefore, be
recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminated against
Reta Bowen, Lee Eulert, and Florence Dyer by
discharging them, it will be recommended that
Respondent offer said employees immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges. It will also be recommended that
Respondent make said employees whole for any loss of
earnings they may have suffered by reason of the
discrimination against them, by payment to each of them
of a sum of money equal to the amount she normally would
have earned as wages from August 6, 1965, in the case of
Bowen, and from August 7, 1965, in the cases of Eulert
and Dyer to the date of Respondent's offer to
reinstatement to each of said employees, less their
respective net earnings during said periods. Loss of
earnings shall be computed in accordance with the
formula prescribed in F. W. Woolworth Company, 90
NLRB 289, and interest, at the rate of 6 percent per
annum, shall be added to the backpay to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
It will also be recommended that Respondent preserve
and make available to the Board, upon request, payroll
and other records to facilitate computation of backpay.
In view of the nature and extent of the unfair labor
practices engaged in by Respondent as found above, it will
further be recommended that Respondent be ordered to
cease and desist from infringing in any other manner upon
the rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Primadonna Hotel, Inc., d/b/a Primadonna Club, is
an employer engaged in commerce, and in a business
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act.
2. American Federation of Casino and Gaming
Employees, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Reta Bowen, Lee Eulert, and Florence
Dyer, to discourage membership in a labor organization,
Respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8(a)(3) and
(1) of the Act.
4. As found above by interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The General Counsel has failed to prove by a
preponderance of the evidence that Respondent
discharged Ronald Bowman in violation of Section 8(a)(3)
and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
hereby recommended that Respondent, Primadonna
Hotel, Inc., d/b/a Primadonna Club, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in American Federation
of Casino and Gaming Employees or in any other labor
organization of its employees, by discriminating in regard
to their hire or tenure of employment or any term or
condition of employment.
(b) Unlawfully interrogating employees with respect to
union membership or activities.
(c) Threatening employees with discharge or reprisal
for signing union cards or participating in union activities.
(d) Conditioning employment on agreement not to
solicit for a labor organization at any time on its premises.
(e) Granting or promising benefits in order to cause
employees to abandon the above-named labor organization
or any other labor organization or to cause employees to
refuse to join or participate in activities of said labor
organization or any other labor organization.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to join, form, or assist labor organizations,
including the above-named labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer Reta Bowen, Lee Eulert, and Florence Dyer
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges.
(b) Make Reta Bowen, Lee Eulert, and Florence Dyer
whole for any loss of earnings they may have sustained as
a result of the discrimination against them in the manner
prescribed in section V of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Notify Reta Bowen, Lee Eulert, and Florence Dyer
if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Post at its place of business located at Reno,
Nevada, copies of the attached notice marked
PRIMADONNA CLUB
"Appendix."94 Copies of said notice, to be furnished by
the Regional Director for Region 20, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent 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 Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."')
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
"' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in American
Federation of Casino and Gaming Employees, or any
other labor organization, by discharging, laying off, or
otherwise discriminating in regard to the hire or
tenure of employment or any term or condition of
employment of our employees.
WE WILL NOT unlawfully interrogate employees
with respect to union membership or activities.
WE WILL NOT threaten employees with discharge or
reprisal for signing union cards or participating in
union activities.
WE WILL NOT condition employment on agreement
not to solicit for a labor organization at any time on
our premises.
137
WE WILL NOT grant or promise benefits in order to
cause employees to abandon the above-named labor
organization or any other labor organization or to
cause employees to refuse to join or participate in
activities of said labor organization or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization, to join, form, or assist
American Federation of Casino and Gaming
Employees, or any other labor organization , to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
WE WILL offer Reta Bowen, Lee Eulert, and
Florence Dyer immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges.
WE WILL make Reta Bowen, Lee Eulert, and
Florence Dyer whole for any loss of wages or other
earnings they may have suffered as a result of the
discrimination against them.
WE WILL notify the above- named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
All our employees are free to become or remain, or to'
refrain from becoming or remaining , members of the
above-named labor organization or any other labor
organization.
PRIMADONNA HOTEL, INC.,
D/B/A PRIMADONNA CLUB
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197.