Reno Hilton

National Labor Relations Board - Board Decisions

Dec 19, 1995

320 N.L.R.B. 197 (N.L.R.B. 1995)

197
320 NLRB No. 27
RENO HILTON
1 On August 15, 1995, the Board granted the Union’s motion to
sever the representation case, Case 32–RC–3777, from this proceed-
ing and to remand it to the Regional Director.
2 On August 23, 1994, the judge issued an erratum.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The General Counsel has excepted to the judge’s failure to find
that the Respondent violated Sec. 8(a)(1) by Supervisor Gilman’s
questioning employee Stauffer about how he would vote if the elec-
tion were held that day, because it was an off-the-record conversa-
tion between friends and therefore not coercive. We find it unneces-
sary to pass on this complaint allegation because it is cumulative and
would not affect the remedy.
4 The Respondent has excepted to the judge’s imposition of ex-
traordinary remedies, arguing that the violations found by the judge
are neither severe nor egregious. We find merit in the Respondent’s
exception and shall therefore delete those extraordinary remedial
provisions from the judge’s recommended Order.
We also find merit in the General Counsel’s exceptions to the
judge’s failure to conclude that the Respondent committed additional
8(a)(1) violations based on the specific factual findings in his deci-
sion, namely that the Respondent solicited employees to campaign
against the Union, that it solicited employee grievances and
impliedly promised to remedy them, and that Respondent engaged
in unlawful surveillance by Supervisor Gilman following union sup-
porter Charles Fisher around the facility. We shall therefore modify
the judge’s recommended Order and notice accordingly.
5 The judge, in rejecting the Respondent’s contention that its paid
employee campaigners were all volunteers, found that the Respond-
ent recruited only Eric Johnson. We note, however, that he also
credited employee John Allison’s testimony showing that Robert
Balentine, the Respondent ’s security director’s administrative assist-
ant, recruited Allison to campaign against the Union and to keep a
record of time in order to be paid.
6 Security officers were ordinarily required to leave the hotel with-
in 15 minutes after their shift ended.
Reno Hilton Resorts d/b/a Reno Hilton and Inter-
national Union, United Plant Guard Workers
of America. Case 32–CA–136181
December 19, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On August 18, 1994, Administrative Law Judge Jay
R. Pollack issued the attached decision.2 The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the General Counsel filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions, except as modified below, and to adopt the
recommended Order as modified.4
1. The judge found the Respondent responsible for
surveillance by employee Robert McLaughlin.
McLaughlin attended one of the Union’s meetings the
day before the election and recorded the initials of
other unit employees in attendance. The Respondent
excepts and claims that McLaughlin merely attended
the meeting in response to a blanket invitation to all
unit employees; and it points to its witnesses’ testi-
mony that McLaughlin was not instructed to attend
and that it received no feedback from him afterwards.
We find that the record evidence fully warrants the
judge’s findings for the following reasons.
The credited evidence plainly establishes that the
Respondent engaged in an extensive campaign of em-
ployee surveillance, both by supervisory personnel and
employees who opposed the Union, who had either
volunteered their services or were recruited by the Re-
spondent as paid campaigners against the Union.5
Thus, the judge found, from admissions and credited
evidence, that these paid campaigners, either while in
uniform and on duty or afterwards while dressed in
street clothes, approached on-duty coworkers to per-
suade them to vote against the Union. They also com-
pared notes with one another and with supervisors in
an effort to ascertain who among the employees should
be solicited to vote ‘‘no,’’ and who were the ‘‘hard
cases.’’ The record shows that the Respondent in-
creased these efforts substantially in the final weeks
and days before the election, and even included the
names of antiunion campaigners on daily assignment
schedules as being assigned to special details. Con-
sequently, the security staff was made fully aware of
who was engaging in such campaign activity on behalf
of the Respondent, by either the work assignment iden-
tifications or the increasing number of union discus-
sions during their work shifts by out-of-uniform, off-
duty security officers.6
It is clear from the record, and we therefore find,
that those individuals, including McLaughlin, who
were so engaged by the Respondent for pay, were act-
ing as agents of the Respondent. We further find that
McLaughlin, when he attended the union meeting and
recorded the initials of all those in attendance, was act-
ing within the scope of this agency relationship. In ad-
dition, there is unobjected-to testimony by Allison, an
admitted fellow antiunion propagandist on the Re-
spondent’s payroll, that McLaughlin had admitted hav-
ing given his list of attendees to Security Director Ben-
nett after the union meeting. Further, the judge wholly
discredited Bennett’s denials that he ever discussed the
matter with McLaughlin or saw McLaughlin’s list. We
accordingly conclude that the judge correctly charac-
terized McLaughlin’s conduct at the union meeting as
surveillance activity by the Respondent.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The testimony uniformly shows that changes from the listed as-
signment schedules are occasioned only by employee absences.
8 The lost breaktime eliminates one opportunity for lawful solicita-
tion. Missing the preshift meeting, attended by supervisors to discuss
union-related issues, represents the loss of opportunities both for
countering views expressed by supervisors and for coworker con-
tacts.
2. The Respondent excepts to the judge’s finding
that the Respondent violated Section 8(a)(1) by select-
ing union organizing committee members Fisher,
Fowler, McKinney, and Perrigo for frequent assign-
ments to the outside tower guard post during the 2
weeks preceding the election, in an effort to restrict
their union activity. The Respondent’s exception ar-
gues that the judge failed to acknowledge the business
necessity for staffing the outside tower during daylight
hours prior to the election. It further asserts that there
is no showing either that it targeted these particular
guards for those assignments, or even that assignments
to the outside tower inhibit lawful solicitation activity.
We find the Respondent’s exception lacking in merit
for the following reasons. Contrary to the Respond-
ent’s contention, the judge acknowledged and accepted
the Respondent’s evidence of its business necessity for
beefing up security in the final weeks before the elec-
tion by staffing the outside tower during daylight
hours. He found, however, that in making these guard
assignments, the Respondent did not follow its cus-
tomary rotation procedure, but rather, singled out and
selected those four individuals for more frequent as-
signments for the obvious purpose of restricting their
union activities.
Uncontradicted testimony by Fowler shows that
there are about a dozen posts to be filled on the grave-
yard shift, and consequently that he usually was as-
signed to each post about once every 2 weeks via the
rotation procedure, but that he was assigned to the out-
side tower on November 4, 12, and 18, 1993. Simi-
larly, Perrigo, who also works the graveyard shift, tes-
tified that in November he was assigned to the outside
tower at least once a week, and that he was also as-
signed more frequently to outside vehicles, where he
also would be working alone. The Respondent’s day-
shift records in evidence reveal that Fisher worked the
outside tower on November 3, 4, 11, and 17, 1993,
whereas he testified that by straight rotation, he would
pull that assignment only once every 2 or 3 weeks.
McKinney, who works the swing shift, testified that he
usually worked the outside tower once every 3 or 4
weeks, but that he was assigned to it on November 3,
4, and 12, 1993, and that two of those times resulted
from his being switched from a different listed assign-
ment on the biweekly assignment schedule.7
As to the Respondent’s argument that assignment to
the outside tower has not been shown to inhibit solici-
tation activity, the uncontroverted testimony indicates
otherwise. Thus, Security Director Bennett testified
that security officers who attend the 15-minute, unpaid
preshift meetings are compensated by an extra 20-
minute break during their shift. Uncontroverted em-
ployee testimony shows that because of the time re-
quired to reach the outside tower and relieve the out-
going officer on duty, persons so assigned are unable
to attend the preshift meeting, and thereby also miss
out on the extra break.8 In addition, uncontradicted
employee testimony reveals that those who work at the
outside tower are also assigned to lunch break at an
earlier hour than most of their fellow security officers.
Moreover, it is clear that the outside tower, and outside
vehicle posts, are solitary ones and therefore less desir-
able, irrespective of solicitation opportunities.
In sum, in the absence of any credible evidence to
justify the assignments of these four individuals, we
affirm the judge’s conclusion that the Respondent se-
lected McKinney, Fisher, Fowler, and Perrigo for more
frequent assignments to those isolated posts for the
purpose of interfering with their Section 7 rights. We
accordingly adopt the judge’s finding of an 8(a)(1) vio-
lation based on this conduct.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Reno Hilton Resorts d/b/a
Reno Hilton, Reno, Nevada, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(e) of the
Order, relettering the remaining paragraphs accord-
ingly.
‘‘(e) Soliciting employees to campaign against the
Union and soliciting employee grievances and
impliedly promising to remedy them.’’
2. Delete paragraph 2(e) from the Order and sub-
stitute the following for paragraph 2(d).
‘‘(d) Post at its Reno, Nevada facility copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the
notice on forms provided by the Regional Director for
Region 32, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
199RENO HILTON
1 The credibility resolutions have been derived from a review of
the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teach-
ings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As
to those witnesses testifying in contradiction to the findings herein,
their testimony has been discredited, either as having been in conflict
with credited documentary or testimonial evidence or because it was
in and of itself incredible and unworthy of believe.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with the loss of
employment, harsher working conditions, loss of bene-
fits, or other reprisals for engaging in union activities.
WE WILL NOT threaten that employees will lose their
chances for promotion because of their union activities.
WE WILL NOT solicit employees to campaign against
the Union.
WE WILL NOT solicit employee grievances and
impliedly promise to remedy them.
WE WILL NOT promise employees promotions, better
working conditions, or other benefits in order to dis-
courage union activities.
WE WILL NOT pay employees or grant benefits in
order to discourage union activities.
WE WILL NOT discriminatorily enforce our no-solici-
tation rule against prounion employees while imposing
no restrictions against antiunion employees.
WE WILL NOT conduct surveillance or create the im-
pression of surveillance of our employees’ union ac-
tivities.
WE WILL NOT follow employees or change their as-
signments in order to restrict their contact with other
employees.
WE WILL NOT coercively interrogate employees
about their union activities or union sympathies.
WE WILL NOT discharge employees because of their
union activites.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL offer immediate employment to former
employee Paul Pedro to the position he would have
held, but for our discharge of him.
WE WILL make Pedro whole for any and all losses
incurred as a result of our discharge of him, with inter-
est.
WE WILL remove from our files any and all ref-
erences to the discharge of Pedro and notify him in
writing that this has been done and that this personnel
action will not be used against him in any way.
RENO HILTON RESORTS D/B/A RENO
HILTON
Elaine D. Climpson, Esq., for the General Counsel.
Dawn Patrice Ross, Esq. (Morgan, Lewis & Bockius), of Los
Angeles, California, for the Respondent Employer.
Scott A. Brooks, Esq. (Gregory, Moore, Jeakle, Heinen,
Ellison & Brooks), of Detroit, Michigan, for the Union Pe-
titioner.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Reno, Nevada, on 9 days between May 3 and
June 6, 1994. On December 13, 1993, International Union,
United Plant Guard Workers of America (the Union) filed
the charge in Case 32–CA–13618 alleging that Reno Hilton
Resorts d/b/a Reno Hilton (Respondent or the Employer)
committed certain violations of Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act). The charge was
amended on January 17, 1994. On January 19, 1994, the Re-
gional Director for Region 32 of the National Labor Rela-
tions Board issued a complaint and notice of hearing against
Respondent alleging that Respondent violated Section 8(a)(3)
and (1) of the Act. The complaint was amended on March
11, 1994, and twice during the hearing. Respondent filed
timely answers to the complaints, denying all wrongdoing.
On August 13, 1993, the Union filed a petition in Case
32–RC–3777 seeking to represent Respondent’s security offi-
cers at its hotel in Reno, Nevada. An election was held on
November 18, 1993. The results of the election were 34
votes cast for representation by the Union and 51 votes
against representation. On November 24, the Union filed
timely objections to the election. On December 10, 1993, the
Regional Director issued a Supplemental Decision, Report on
Objections and notice of hearing. Thereafter, on January 20,
1994, the hearing on the Union’s objections was consolidated
for hearing with the complaint.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having
considered the posthearing briefs of the parties, I make the
following
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a Nevada corporation with offices and a
principal place of business located in Reno, Nevada, where
it is engaged in the operation of a hotel-restaurant-casino
complex. During the 12 months prior to issuance of the com-
plaint, Respondent derived gross revenues in excess of
$500,000. During the 12 months prior to the complaint, Re-
spondent purchased and received goods and products valued
in excess of $5000 directly from sellers or suppliers located
outside the State of Nevada. Accordingly, Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
In the summer of 1993, Respondent’s security officers
began their organizing campaign at Respondent’s hotel. The
hotel and restaurant employees were in the midst of a cam-
paign involving the Carpenters’ Union. As stated earlier, on
August 13, 1993, the Union filed its representational petition.
The complaint alleges that during the union campaign, Re-
spondent through its agents threatened employees, discrim-
inatorily enforced its no-solicitation rule, interrogated em-
ployees, and promised benefits in order to dissuade employ-
ees from supporting the Union. Further, the complaint alleges
that Respondent discharged employee Paul Pedro because of
his union activities.
Respondent admits that it paid employees while they were
campaigning against the Union, and that it suggested the em-
ployees form a professional organization, but denies that it
violated the Act. Further, Respondent contends that it dis-
charged Pedro, a probationary employee, for cause without
regard to any union activities.
B. Facts
The Respondent took over operation of the hotel from the
Bally Corporation in August 1992. The security department
employees and supervisors employed by Bally were retained
when Respondent took over the hotel. Dave Bennett was
brought in from another Hilton hotel as the director of secu-
rity.
The employees began their organizing campaign at Re-
spondent’s hotel in June 1993. Security officer Lee Perrigo
testified that he passed out union authorization cards in July
1993. Loni McKinney also testified that he passed out union
cards in July. After three meetings, the employees chose
Loni McKinney, Charles Fisher, Lee Perrigo, and Eric John-
son to be their organizing committee. In August, Johnson
was replaced by Terry Fowler. Johnson was applying for a
management position at a different Hilton hotel and felt that
it was a conflict of interest to be helping the Union while
an applicant for a managerial position.
1. Statements by John Gilman
Security officer Charles Fisher testified that as early as
July he discussed the Union with John Gilman, assistant se-
curity director. While on a personal visit to Fisher’s house,
Gilman mentioned the union cards that employees were pass-
ing out and reminded Fisher that cards could only be distrib-
uted on breaks. They discussed the employee organizing
committee and Fisher stated that organizing would only be
conducted on nonworkingtime, in the cafeteria on breaks and
in the locker room on breaks. Gilman added that the employ-
ees were putting their jobs in jeopardy and that they should
be careful. Gilman admitted that he had general discussions
with Fisher about whom to trust or whom to turn to. How-
ever, Gilman denied stating that any jobs were in jeopardy
or that employees should be careful.
Employee Richard Stauffer testified that during November,
Gilman asked him how he would vote if the election was
that day. Stauffer answered that he would vote yes. Stauffer
requested that the conversation be ‘‘off the record.’’ Gilman
said that he didn’t want the union issue to interfere with their
friendship. Stauffer answered that it wouldn’t.
Officer Jay VanderPool testified that during November he
had several conversations with Gilman about the Union. Gil-
man reminded VanderPool that the employees had a lot to
lose and mentioned a gun program, benefits, and wages.
VanderPool had similar conversations with Bob Balentine,
administrative assistant to the chief of security, in which
Balentine also said the employees had much to lose.
Balentine cautioned VanderPool not to ‘‘let them lead you
blindly down the path.’’
Stauffer testified that Gilman questioned him about his
complaints. Stauffer mentioned that when a notice went out
for certain training it stated that the training would be on an
employee’s own time. Based on this notice, Stauffer had not
applied for the training. Thereafter, he learned that employ-
ees were paid for the time spent in training. Gilman sug-
gested that Stauffer discuss the matter with Lynn Wright, di-
rector of human resources. One evening when Stauffer was
on duty, Gilman brought Wright to speak with Stauffer.
Stauffer discussed this complaint and another complaint he
had with Wright. Wright thanked Stauffer for bringing these
subjects to her attention. Wright in no way implied that Re-
spondent would remedy these complaints.
Fisher testified that as the November 18 election drew
near, Gilman joined him for hours on his post and took
breaks in the cafeteria with him. The result of this unprece-
dented action was that employees did not speak to Fisher
about the Union on breaks, the agreed-on time for discussing
such matters. Gilman even followed Fisher into the locker
room, in spite of the fact that Gilman had no locker. Simi-
larly Gilman joined McKinney on McKinney’s breaks during
this time period with a similar result. Employees would not
speak to McKinney about the Union in Gilman’s presence.
I credit the testimony of Fisher and McKinney over Gilman’s
denials. Both McKinney and Fisher impressed me as credible
witnesses. Further their testimony was corroborated by other
credible employee witnesses.
Fowler further testified that on one occasion, Russ Pagni,
supervisor, followed him around for almost an entire 8-hour
shift, including breaks. This testimony was corroborated by
employees John Hickey and JoJo Brecheen. Respondent ad-
mits that Gilman and the managers were present more often
so that they could be accessible to the employees. During the
last week before the election, the managers and supervisors
resided at the hotel.
201RENO HILTON
2 Ruple had been retained to advise Respondent with respect to the
Carpenters’ Union’s petition regarding the hotel and restaurant em-
ployees. He was also retained with respect to the security officers’
unit. He advised Respondent’s managers and supervisors regarding
labor relations rules and regulations and campaign strategy. He had
no authority regarding Johnson’s application for a management posi-
tion with Respondent.
During the last 2 weeks prior to the election, Fisher and
McKinney received assignments in the outside tower, which
isolated them somewhat more than other assignments. Both
of these union adherents were assigned to the outside tower
four times in the 2 weeks prior to the election instead of
once or at most twice in a normal rotations. Terry Fowler
was assigned to the outside tower three times in the last 2
weeks before the election. This evidence was established by
Respondent’s own records. Respondent’s witnesses estab-
lished that there was a greater need for an officer in the out-
side tower after October 22. However, Respondent could not
explain the disproportionate number of assignments for union
committee members, McKinney, Fisher, Perrigo, and Fowler.
2. The conduct of Russ Pagni
The representation election on the Carpenters’ Union’s pe-
tition was held on November 4, 1994. Paul Pedro, former
employee, testified that on the date of the hotel and res-
taurant employees’ election, Russ Pagni, shift supervisor, told
Pedro and security officer Donald Stewart that there should
be ‘‘no gloating or hard feelings after the election.’’ Stewart
joked, ‘‘Will he still love us in the morning?’’ Pedro said
‘‘What’s the big deal? We (the security department) haven’t
voted yet, so what difference does it make?’’ Pagni became
angry and ordered Pedro to report to the security office. In
the security office, Pagni screamed at Pedro that Pagni took
the union business seriously and that Pedro apparently did
not. Pagni said that Pedro should change his attitude about
the Union because his current attitude could be detrimental
to his future employment. Pedro said that he understood and
left the office. Pagni denied that he screamed at Pedro or that
he discussed the Union. According to Pagni, he merely told
Pedro that he did not appreciate Pedro making a joke when
Pagni was relaying orders from the chief of security. Reed
testified that Pagni did not scream but merely counseled
Pagni and that Reed could not remember the subject matter
of the conversation. I found Pedro to be the most credible
of these three witnesses. Further, his testimony was corrobo-
rated by a memorandum he wrote on the day of this con-
versation. This memorandum was written prior to Pedro’s
discharge and prior to any motive to fabricate his testimony.
On the other hand, I did not find Pagni to be a credible wit-
ness. I believe Pagni was simply intent on denying any cul-
pability without regard to the truth of his testimony. Pagni
did not explain why Pedro’s remark was considered offen-
sive but the remark of Stewart, known to be a union oppo-
nent, was not. I further do not credit Reed’s testimony that
Pagni did not scream at Pedro. I did not find Reed to be a
reliable witness.
Employee Todd Harrell testified that in November, he was
discussing a union flyer with Donald Stewart, an opponent
of the Union, prior to a briefing session. Harrell was arguing
the Union’s position and Stewart was arguing the Employer’s
position. Supervisor Pagni sent Harrell, but not Stewart, out
of the briefing session and told Harrell to go to Bennett’s of-
fice. The credited testimony of Harrell and Stauffer estab-
lishes that Stewart was equally at fault but no action was
taken against Stewart. The credited testimony of Harrell,
Stauffer, and employee Richard Newman further shows that
the meeting had not yet started and that all the security offi-
cers were not yet present. Harrell went to Bennett’s office
and waited. After Bennett spoke with Pagni, he called in
Harrell. Bennett told Harrell that if he had a problem with
the Employer’s position, he should take it up with Bennett
or a supervisor at a more appropriate time. Bennett had no
similar conversation with Stewart. Bennett testified that
Pagni had reported that Harrell was the aggressor. I find that
Harrell and Stewart were equally at fault and that Pagni took
this action because of the substance of Harrell’s position. To
the extent that Pagni testified that Harrell made his comment
just as the meeting was to begin, I do not credit his testi-
mony. In this and in other aspects of his testimony, Pagni
did not appear to be a credible witness.
3. Employee Eric Johnson
In October, security officer Eric Johnson interviewed at
the hotel with Tom Garces, then assigned to be the new di-
rector of security for a hotel about to be acquired by Hilton
in Hawaii, for a position in management at the hotel in Ha-
waii. This interview was set up by Bennett, a friend of
Garces. Johnson and Garces had a good interview but noth-
ing definite was set up. The following day, Pagni asked
Johnson how the interview went and Johnson gave a positive
answer. Pagni then said Johnson should think about his
‘‘union duties.’’ He told Johnson that the Union might be
detrimental to the employee’s chances for the Hawaii job and
that the Employer might not trust him. Johnson asked what
he had to do to change things. Pagni said Johnson should
speak against the Union to other security officers and let
management see what he was doing. Johnson said that he un-
derstood.
Shortly thereafter, Johnson repeated to Bob Balentine, ad-
ministrative assistant, what Pagni had just told him. Johnson
said he would back out of the union activities and notify
McKinney and Fisher. Balentine responded, ‘‘actions speak
louder than words.’’ Johnson contacted Fisher and McKinney
and told them it was a conflict of interest to be supporting
the Union at one hotel and applying for a management posi-
tion at another location. Johnson began campaigning against
the Union.
Neither Bennett nor Garces had promised Johnson the job
in Hawaii. Bennett had merely set up the interview with
Garces. Thereafter, Johnson was on his own. Garces and
Johnson had a good interview but at the end of the interview,
nothing was definite. As it later turned out, Garces did not
receive authority to create the position for which he had
interviewed Johnson. However, while the job in Hawaii was
still an open question, a week prior to the election, Johnson
had a conversation with Ward Ruple, Respondent’s labor re-
lations consultant.2
Ruple first told Johnson that if Johnson told anyone about
their conversation he would deny it. Ruple told Johnson that
Johnson had a lot of influence with his fellow employees and
that Respondent needed Johnson’s help. Ruple said, ‘‘[I]f
you’ll help us, I’ll guarantee that job in Hawaii.’’ Johnson
agreed and they shook hands on the deal.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hickey also discussed complaints about employee Pebenito with
Supervisor Van Nostrand 2 weeks prior to the election. Van
Nostrand told Hickey that the Union was not necessary and rec-
ommended that Hickey vote against the Union. They discussed the
graveyard shift and Hickey stated that Pebenito was putting other se-
curity officers in jeopardy by not doing his job properly. Van
Nostrand said that he was doing the best he could and that manage-
ment was looking into the matter.
Johnson later spoke with Bennett about this conversation.
Bennett apologized and said he ‘‘had no idea’’ about what
Ruple had said. Johnson repeated what Ruple had said to
him and said that Ruple didn’t even work for Respondent
and couldn’t guarantee anything. Bennett said that he didn’t
know what Ruple had said and agreed that Ruple couldn’t
guarantee anything. Johnson said if Bennett wanted his help
all he had to do was ask, he didn’t have to make deals or
propositions. Bennett said he needed Johnson’s help and
Johnson agreed to help. That week Johnson spoke to ap-
proximately 10 employees in an attempt to persuade them to
vote against union representation. Balentine asked Johnson to
come in on his days off and campaign against the Union.
Balentine said the Employer would pay Johnson for his time.
Johnson was paid for approximately 20 hours at the overtime
rate for this work. While campaigning against the Union,
Johnson frequently violated the Employer’s no-solicitation
rule by campaigning while on duty or while the employee
being solicited was on duty.
While campaigning against the Union, Johnson compared
notes with other employees also being paid to campaign
against the Union. Included in this group were John Allison,
Marcus Johnson, and Robert Ruch. The employees discussed
which of their fellow employees were for the Union, against
the Union, or ‘‘on the fence.’’ Johnson engaged in similar
conversations with Supervisors Pagni and Balentine. Johnson
testified that certain employees were considered to be ‘‘hard
cases’’ in favor of the Union and it was decided not to even
attempt to solicit their votes. That group included McKinney,
Perrigo, Fisher, Pedro, and a few others. In his testimony,
Balentine admitted that Johnson told him who was for and
against the Union but asserted that Johnson volunteered this
information.
4. Bob Balentine
Dale Fowler testified that he had a conversation with
Balentine in which Balentine asked what he was trying to
prove with the union drive. Fowler said that Balentine should
not take the union organizing personally. Balentine answered
that he took it very personally and that he felt the drive was
aimed at him. Balentine told Fowler that there could be no
handbilling unless permitted by hotel policy. Fowler asked if
he could answer questions about the Union and Balentine
said, ‘‘[Y]ou know what I mean.’’
The day before the election, Balentine spoke to Stauffer
and explained the election procedure. Balentine showed
Stauffer a copy of a ballot and said that Stauffer knew which
way to vote. They both laughed according to Stauffer,
Balentine had an ‘‘‘x’ mark’’ which he placed over the
‘‘no’’ box on the ballot. Balentine asked that the employees
give Respondent 10 months and if the employees weren’t
satisfied they should form their own organization. According
to Stauffer, Balentine said the Union represented plant guards
and didn’t know anything about casinos. Balentine admitted
showing Stauffer a ballot but denies that he had any ‘‘x’’
marked in the no box. Balentine admitted telling Stauffer to
give the Employer 10 months and also telling Stauffer that
if the employees were unhappy they could form their own
in-house association. Fisher also testified that Balentine
showed him a sample ballot with an ‘‘x’’ in the no box.
Balentine said ‘‘[Y]ou know how we want you to vote.’’
Fowler testified that when Balentine showed him a sample
ballot, the ballot was not marked. Fowler asked if Balentine
still took the union matter personally, and expressed the hope
that he and Balentine could continue their good relationship.
Balentine answered, ‘‘We are going to win.’’ Balentine said,
‘‘give us ten months, there are things I want to get done.’’
Fowler answered that Balentine was an effective manager
and could get things done regardless of union activity.
Balentine said give us 10 months and then if you are not sat-
isfied go ahead with an in-house organization. Fowler said,
‘‘If you mean a company controlled union, that’s not legal
but a quality control group would be different.’’ Balentine
abruptly left.
Employee JoJo Brecheen testified that just prior to the
election Balentine showed her a sample ballot. Balentine had
a piece of clear plastic with an x marked on it which he
placed on top of the ballot showing Brecheen where to place
her x in the no box. Balentine said, ‘‘Place it right here, right
here.’’ Balentine told her to do the right thing and Brecheen
answered that she would do the right thing.
John Hickey testified that just prior to the election,
Balentine discussed the Union with him. Balentine asked
how Hickey felt about the Union and why he thought a
union was necessary. Hickey answered that there were prob-
lems on his shift, the graveyard shift. He mentioned that cer-
tain officers weren’t doing their jobs and that there was a
lack of discipline. Hickey told Balentine that employee
Pebenito was disrupting the shift, that other officers had
complained but that nothing had been done to correct the
problem.3 Balentine said the problems were going to be
taken care of. Balentine showed Hickey a copy of a sample
ballot and said that Hickey should know how to vote.
Balentine testified that he showed a ballot to each employee
but that the ballots were not marked. He told employees not
to put their names on the ballot but to simply put an x in
the proper spot.
Paul Pedro testified that in the middle of November,
Balentine approached him while he was on duty. Balentine
asked why Pedro had accepted a position with the Hotel.
Pedro answered that he needed a job and was impressed with
Balentine who had interviewed him. Balentine asked why
Pedro, a probationary employee, was so heavily involved
with the Union. Pedro admitted that he was a union sup-
porter and mentioned that some of the more senior employ-
ees were in favor of the Union. Balentine answered that
McKinney had a vengeance against Respondent. Balentine
said he hoped Pedro would change his mind and vote against
the Union. Pedro asked Balentine, ‘‘My Union views aside,
how has my work performance been?’’ Balentine replied that
he hadn’t heard any complaints about Pedro, so that the em-
ployee must have been doing a good job. Pedro thanked
Balentine and the conversation ended.
Balentine testified that he told Pedro that he was dis-
appointed in the employee’s performance and that he ex-
203RENO HILTON
pected a lot more. According to Balentine, he mentioned that
Pedro had taken unauthorized breaks and Pedro responded
that he would try to do better. I found Pedro to be a more
credible witness than Balentine. Further, I note neither
Balentine nor any other supervisor noted in Pedro’s person-
nel file or employment history that he took unauthorized
breaks. Where their testimony is in conflict, I credit the testi-
mony of Pedro over that of Balentine.
Pedro had one other conversation with Balentine about the
Union in which Balentine said that the Union would be noth-
ing but problems. Balentine said that he had been working
on many things that would benefit the department but that
if the Union got in, all plans would be on hold. Balentine
testified that in this conversation Pedro volunteered his views
towards the Union. As mentioned above, I credit Pedro’s tes-
timony over that of Balentine.
John Allison testified that Balentine told him that Re-
spondent would appreciate it if Allison would speak to other
employees about voting against the Union. Allison had al-
ready been outspoken in his opposition to the Union.
Balentine told Allison he could campaign at any time and
with anyone he wanted. He was told to keep a separate log
of the off-duty hours he worked and that he would be paid
for his time. Allison submitted a slip for 8 hours but was
paid for 15 hours of overtime for campaigning against the
Union. Respondent’s records showed that Allison worked
only 4 hours of overtime. Respondent could not explain this
discrepancy. The only explanation is that the hours were for
campaigning as testified to by Allison. As will be discussed
in more detail below, Respondent’s payroll records note
‘‘special detail’’ next to the overtime worked by the
antiunion campaigners. Respondent’s supervisors including
Bennett denied knowledge of the special details. Obviously,
the special details were campaigning against the Union.
Allison testified that he had several conversations with
Balentine in which the administrator thanked him for his
support of the Employer. On one occasion, Balentine told Al-
lison that the security officer was free to leave his post to
campaign against the Union. Allison answered that he could
only do so for a short period and then had to return to his
post because other officers were relying on him for backup.
Allison testified that several of the shift supervisors thanked
him for his support. On occasion, Allison and the supervisors
would go over lists of employees to discuss which employ-
ees should be spoken to. Allison testified that Pagni,
Balentine, and Montgomery had and their own lists. To the
extent Respondent’s supervisors deny knowledge of Allison’s
activities, their testimony is discredited.
5. Statements by other supervisors
Fisher testified that in July, Dave Bennett, director of se-
curity, told Fisher that he had heard of the union card sign-
ing and wanted to know if he was at fault. Fisher answered
that it had nothing to do with Bennett. Bennett admitted ask-
ing Fisher whether he had any responsibility for employees
going to a union.
Terry Fowler testified that a week before the election Ben-
nett asked him if they had to go over the rules for campaign-
ing. Fowler explained that he had just made a followup
phone call to an employee after discussing the Union while
both Fowler and the other employee were on break. Fowler
said that, if that was against the rules, he had made a mistake
and was sorry. Fowler asked if he was getting a verbal warn-
ing and Bennett answered ‘‘no.’’ The two then left the office
and had coffee together. Bennett admitted that he went over
the rules about campaigning with Fowler. He testified that
someone had told him that the employee whom Fowler had
called had complained.
Employee John McNamara testified that he was called into
Bennett’s office after distributing union materials in the lock-
er room. Bennett told McNamara that he wanted to make
sure the employee understood the rules about distribution of
materials. Bennett then proceeded to discuss Respondent’s
solicitation/distribution policies.
Lee Perrigo testified that during early November, Super-
visor Don Van Nostrand spoke to him about the Union while
he was on duty. Van Nostrand merely told Perrigo that he
felt the Union was not in the employees’ best interest and
that he felt in the long run the Employer would take better
care of the employees.
Stauffer testified that one evening he was told to meet
with two supervisors, Denise Baker and Rosa Kelly, from
another department. Baker, who supervises audio-visual tech-
nicians, represented by another union, told Stauffer that even
though her employees were represented by a union, she
could terminate employees at anytime.
Jay VanderPool testified that he was approached by Super-
visor Roger Reed and questioned about his union views. On
one occasion, Reed asked how VanderPool felt about the
Union. VanderPool said he didn’t want to talk about it and
that he would make up his mind later. The matter was
dropped. Reed denied having such a conversation. In my
view Reed was not attempting to testify to the fact but was
merely intent on denying any wrongdoing. I credit Vander-
Pool’s testimony over that of Reed. Shortly thereafter, but
before the election, VanderPool told Bennett that he did not
want anyone trying to convince him how to vote and that he
wanted to be left alone. Bennett said that he would try to
help. VanderPool was not bothered again.
Jo Jo Brecheen testified that on or about November 9, Su-
pervisor Debbie Montgomery told her to think carefully
about the Union. Brecheen answered that she would. Mont-
gomery told Brecheen that the Union couldn’t do everything
it promised. When Brecheen tried to leave, Montgomery
asked that Brecheen come and speak with her after the Em-
ployer’s mandatory campaign meeting. Montgomery testified
that Brecheen brought up the subject of the Union and then
refused to talk about it. I found Brecheen to be a credible
witness. Further, I find it highly unlikely that Brecheen
would bring up the subject of the Union with a supervisor
and then refuse to discuss it. I credit Brecheen’s testimony
over Montgomery’s denial.
6. The mandatory meetings
On November 10 and 11, Anthony Santo, vice president
and general manager, held mandatory meetings with employ-
ees. Each meeting was attended by 10–12 employees. Santo
conducted all the meetings and the only other supervisor
present was Bennett. Santo said that management had the
right to lockout employees if negotiations were at an impasse
or if management felt it was necessary because of the possi-
bility of sabotage. Santo said that if the employees went on
strike, management could hire permanent replacements.
Santo asked whether the Union could offer medical insur-
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent had previously announced that the employee con-
tribution for medical insurance would be decreased as of January
1994.
5 Respondent contends they all volunteered to do so. The evidence
shows that only Johnson was recruited to campaign.
6 McLaughlin, now a supervisor, under Bennett, did not testify at
the hearing. Respondent did not make a hearsay objection to the tes-
timony that McLaughlin told Allison that he had listed the initials
ance, a thrift plan, free meals, or any of the other benefits
the Employer provided. He stated that the Union could not
guarantee anything. Santo stated that negotiations could last
a year and that wages and benefits would be frozen during
negotiations. He said all wages and conditions would be fro-
zen, including the new benefits scheduled for January 1994.
He mentioned that negotiations could take a long time. Ev-
erything would be negotiable and the employees would more
or less start from zero. In at least one of the meetings, Santo
said that if the Union won the election there was a likelihood
that there would be a lockout during negotiations. He stated
that during negotiations the employees couldn’t be trusted
and a lockout would be considered by the Employer. Santo
had heard of cases where there was sabotage or property
damage during negotiations. Santo mentioned the decrease in
the employees’ contribution to medical insurance scheduled
for January 1994, and stated that during negotiations the em-
ployees would not be eligible for that decrease because dur-
ing negotiations, wages and all benefits were negotiable.4
Santo said the Union couldn’t guarantee anything. He said
that while the Union had a wish list, the Employer also had
a wish list. One item on the Employer’s wish list was a
physical test or physical requirements for employees. He
said, ‘‘I would like to see you all run 27 floors.’’ The num-
ber of 27 floors refers to the height of the outside tower used
as a watchpost. Santo told employees that good faith was not
a one-way street and that it would not be unreasonable to re-
quire employees to climb 27 flights of stairs, in case of fire
or another emergency. He said wages could be higher, lower,
or remain the same.
Allison testified that prior to the meetings held by Santo
he discussed the upcoming meetings with Bennett. Allison
mentioned certain of his reasons for opposing the Union and
Bennett responded that those were questions that needed to
be raised. Bennett testified that Allison offered to ask ques-
tions at the Santo meeting and that he told Allison to go
ahead and ask the questions. Allison testified that Santo said
while the Union would request a wage raise, the Employer
would counteroffer with a wage decrease. Allison asked
about physical requirements for security officers, knowing
that many of the officers were not in good physical condi-
tion. Santo responded that a physical agility test might be
considered and apparently made his remark about employees
having to climb 27 flights of stairs. Allison asked whether
the employees who had voted against the Union could be
locked out and Santo responded that if there were to be a
lockout, all employees in the bargaining unit would be
locked out. After the meeting, Bennett thanked Allison for
his participation.
7. The no-solicitation rule
The General Counsel alleges that Respondent discrimina-
torily enforced its no-solicitation and distribution policy. The
Employer’s no-solicitation rule, published in the employee
handbook and posted in employee areas, reads:
Persons who are not employees of Reno Hilton are
not permitted to solicit employees or distribute written
material on our property at any time, except as pro-
vided below.
No employee may distribute literature in work areas
at any time or solicit another employee in any area of
the Hotel during his or her working time or during the
other employee’s working time. No employee may so-
licit other employees at any time in gaming, meeting
convention, exhibit, or recreational areas open to guests
and/or the public.
Working time includes all time during which an em-
ployee is assigned or engaged in the performance of job
duties, but does not include breaks, lunch periods dur-
ing which time the employee is not assigned to or ex-
pected to perform any job duties.
Non-employees who are patrons of restaurants or
bars open to the public and off-duty employees may en-
gage in such activities with off-duty employees, pro-
vided they act in a non-disruptive manner consistent
with the customary use of those areas.
The purpose of these rules is to prevent interference
with and disruption of the work of our employees and
is to maintain our operation at peak efficiency at all
times for the convenience and benefit of our employees,
our guests, and the public.
Stauffer testified that he observed employees Bill Nichols,
Tony Guiterrez, Rob McLaughlin, and Eric Johnson cam-
paigning against the Union in the cafeteria while they were
off duty. Prior to the union campaign, employees were ex-
pected to leave within 15 minutes of the end of their shift.
Respondent admits that Nichols, Guiterrez, McLaughlin,
Johnson, Allison, Pasco, Parrish, and Fields were paid for
time spent campaigning against the Union.5 McLaughlin and
Fields were paid while in attendance at union meeting held
at McKinney’s house. Stauffer testified that McLaughlin
spoke, while off duty, to employees who were on duty. Eric
Johnson testified that he solicited on-duty employees to vote
against the Union while off duty and was paid overtime for
doing so. Allison was given free reign to leave his post and
campaign against the Union. Perrigo testified that he ob-
served Nichols and Guiterrez, while off duty, talking to on-
duty security officers. On one occasion when Perrigo was
taking a break, Nichols left his post to talk to Perrigo about
the Union. Nichols attempted to persuade Perrigo to vote
against the Union. On another occasion, Perrigo observed
Nichols speaking against the Union to three on-duty officers
while the officers should have been patrolling the casino
floor. Fowler testified that on one occasion when Nichols
was campaigning against the Union, Nichols told Fowler and
another employee that he was getting $18 per hour (the over-
time rate) to ‘‘show his loyalty to the company.’’
Allison identified Guiterrez, Nichols, McLaughlin, and
Pasco as other employees campaigning against the Union.
Allison testified that McLaughlin told him about attending
the union meeting at McKinney’s house, the day before the
election. McLaughlin told Allison that he had given a list of
the employees at the union meeting to Bennett.6 The payroll
205RENO HILTON
of everyone at the meeting. In the absence of an objection from the
party against whom the evidence is offered, hearsay is admissible
and becomes part of the record. See Alvin J. Bart, 236 NLRB 242,
243 (1978).
More importantly, since McLaughlin was being paid for his time
at the meeting and for campaigning against the Union, his remarks
to Allison appear to be made within the scope of his agency and,
therefore, an admission binding on Respondent under Rule 801
(d)(2)(D) of the Federal Rules of Evidence. See Marlandt v. Wild
Candid Survival & Research Center, 588 F.2d 626 (8th Cir. 1978).
See also Williams Services, 302 NLRB 492, 504 (1991); Dentech
Corp., 294 NLRB 924, 925–926 (1989).
7 After Pedro’s training period he was given a written evaluation
by each of his training officers. These reports were inexplicably
missing from Pedro’s personnel file.
records show that McLaughlin worked two shifts that day
and was on the timeclock while attending the meeting. Em-
ployee Misty Fields was also paid for her time spent at this
meeting. McKinney testified that he observed McLaughlin’s
note pad and that McLaughlin had listed the initials of every
one at the meeting. Bennett denied that McLaughlin was sent
to the union meeting or that McLaughlin gave him a report
concerning the meeting. McLaughlin was paid for attending
the meeting and was allowed to leave the hotel without
clocking out. Bennett denied giving special treatment to
prounion employees but they were paid overtime and per-
mitted to violate the no-solicitation rule.
8. The discharge of Paul Pedro
Pedro was hired as a security officer on August 2, 1993.
As a new employee, he had a probationary period of 4
months. During his first 3 weeks, Pedro was assigned to
three security officers as training officers. For the first week,
Pedro was assigned to George Pierovich. Pierovich showed
Pedro where schedules were posted, where the duty posts
were and what to look out for. Pierovich took a blank copy
of a schedule showing the breaks for the different posts from
the file cabinet and made a photocopy so that Pedro could
keep a copy in his shirt pocket. Four months later, Pedro ob-
tained a blank copy of the schedule from the same cabinet
and made a copy of it. As will be discussed more fully here-
in, Respondent contends that Pedro was discharged, in part,
for entering this file cabinet without permission.
As discussed above, Pedro was considered one of the
‘‘hard cases’’ in favor of the Union. In October, Pedro told
Supervisor Reed that he was going to a union meeting to
learn more about the Union. Reed responded that the union
business had caused trouble between employees and that a
lot of people might get hurt. Shortly, thereafter Pedro began
wearing a union pin on his tie clasp at work. As previously
mentioned he was threatened by Pagni that if he didn’t take
the union business seriously, it would adversely affect his
employment. Before the election, Balentine asked why Pedro
was so heavily involved in the Union and pointed out that
Pedro was still on probation.
On the evening of December 2, Pedro was called into
Bennett’s office and was discharged by Bennett. Bennett
asked if Pedro had been chewing gum on the casino floor.
Pedro answered that he had not done so since he had been
warned by Montgomery 3 months earlier. Bennett then stated
that Acting Supervisor Boekhout had caught Pedro going
through a cabinet file. Pedro answered that he was merely
getting a copy of the relief schedule and that he had been
taught during training to obtain schedules from the file draw-
er. Pedro showed Bennett the schedule but Bennett answered
that he did not need to see it. Bennett said that none of the
supervisors were recommending Pedro for continued employ-
ment and that Pedro was terminated. Pedro asked what he
should do next and Gilman went with him to process the dis-
charge. Gilman told Pedro that he did not know that Pedro
was going to be discharged. Pedro asked whether it was be-
cause of the Union but Gilman did not respond.
On November 27, Pedro had opened a file draw to obtain
a copy of a blank schedule to copy and keep in his shirt
pocket. Lee Boekhout, a security officer acting as supervisor
for that shift, came upon Pedro while Pedro was searching
the draw for the right file. Boekhout became angry and told
Pedro that it was Reed’s file drawer and Pedro shouldn’t be
going through it. Pedro received no warning over this inci-
dent. Boekhout mentioned this event to Pagni and Pagni told
Boekhout that Respondent might want a written report. The
next day, Montgomery asked Boekhout for a report and
Boekhout wrote a report about the incident. Boekhout admit-
ted that employees sometimes go to the file for schedules,
aspirin, or bandaids. He testified, however, that employees
should first seek permission to do so.
Bennett testified that he discharged Pedro because he did
not have the proper respect towards supervision. Bennett tes-
tified that this determination was based on the written rec-
ommendations of Montgomery, Pagni, and Boekhout. Mont-
gomery’s warnings were months old. They concerned two in-
cidents where Montgomery warned Pedro about smacking his
chewing gum while on duty. Pedro did not chew gum at
work after the second warning. The notation of these warn-
ings was not made in Pedro’s personnel file but rather on a
single sheet of paper maintained by Montgomery. Montgom-
ery denied that Bennett spoke to her about Pedro’s termi-
nation.
Pagni’s warning was tainted by union considerations. He
had warned Pedro because Pedro did not have the ‘‘proper
attitude’’ about the Union and he threatened Pedro that if Pe-
dro’s attitude did not change, Pedro’s employment would be
jeopardized.
Missing from Bennett’s decision on Pedro is any rec-
ommendation from Supervisor Reed who was Pedro’s super-
visor for the last 2-1/2 months of Pedro’s employment.7 Ben-
nett could not remember whether he talked to Reed, Pedro’s
then supervisor. Reed testified at the hearing but was not
questioned regarding Pedro’s discharge. As to the Boekhout
incident, credible evidence shows that Pedro’s training offi-
cer and other employees used the file cabinet for bandaids,
aspirin, and schedules. Boekhout had not decided to write
about this incident until it was suggested by Pagni whose
motives are questionable. Moreover, Bennett did not even
bother to look when Pedro attempted to show him what he
had taken from the file cabinet. Balentine admitted to Pedro,
less than 3 weeks before the discharge, that absent union
considerations, there were no complaints about Pedro and
that Pedro was doing a good job.
Lynn Wright, human resources director, testified that she
must approve all discharges, even those involving probation-
ary employees. She admitted that she would not have ap-
proved this discharge had Pedro not been a probationary em-
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee. Had Pedro passed his probationary period, Wright
would have ordered progressive discipline rather than dis-
charge.
On September 4, after a report of an unauthorized entry
into a room, Montgomery spoke to Pedro about the proper
reporting of such an incident. However, Montgomery did not
view this as discipline. Further, it was Pagni, who was later
promoted to supervisor, not Pedro who had not followed the
proper procedure for reporting the incident to Montgomery.
Although Respondent offered this evidence in its defense, it
does not appear that Bennett relied on this incident in termi-
nating Pedro.
9. The alleged unlawful raises
At the hearing, the General Counsel amended the com-
plaint, to allege that certain wage increases were granted dur-
ing the union campaign in order to interfere with the election
process. When Respondent took over the hotel from its pred-
ecessor in August 1992, it froze wages. It undertook wage
surveys in order to have a wage structure in place for all em-
ployees by July 1, 1993. In fact, this occurred by August
1993 and all hotel employees were given wage increases ret-
roactive to July 1. Eight security officers were scheduled to
receive substantial raises, under the predecessor’s pay scale,
on their 1 year anniversary dates which would have been
shortly after the takeover. However, because of the wage
freeze they did not receive these raises. When the wage
freeze was lifted they were given raises but these raises were
substantially less than those promised by the predecessor em-
ployer. Further, Respondent had raised the minimum wage
rate for starting employees. Thus, while these eight employ-
ees received raises, they were now earning the same amount
as a security officer with only 7 months’ seniority, although
they had almost 2 years’ seniority. Gilman was given author-
ity to correct this situation and slot the employees in the
wage scale. These raises were approved by Respondent’s
human resources department and the general manager of the
hotel. Similar adjustments were made for other employees in
other job categories and other departments. The raises were
granted in September, retroactive to July 1. Gilman testified
that he explained the raises to each of the eight employees
involved. Although there is some conflicting testimony, I
credit Gilman on this point.
Employee Richard Newman testified that he asked about
the raise due on his anniversary date and was told by Bennett
that the raise could not be allowed because of the union cam-
paign. Bennett denied ever saying that the raise would be de-
nied. Bennett claimed he told Newman that he would get
back to him. Newman responded that this was an automatic
raise and that the union campaign should not interfere with
such a raise. After a meeting with a personnel manager,
Newman was told that he would receive his wage increase,
after the election but retroactive to his anniversary date. The
personnel manager explained that Respondent was being
careful because it did not want to have an unfair labor prac-
tice charge filed against it. Newman was one of the employ-
ees that previously received an increase so that he would be
slotted above new hires.
C. Analysis and Conclusions
1. The wage increases
It is well settled that, in deciding whether to grant benefits
while a representation election is pending, an employer
should act as if no union were in the picture. Centre Engi-
neering, 253 NLRB 419, 421 (1980). The Board does not
automatically find grants of benefits during an organizational
campaign to be unlawful, but it presumes that such action
will be objectionable ‘‘unless the Employer establishes that
the timing of the action was governed by factors other than
the pendency of the election.’’ American Sunroof Corp., 248
NLRB 748 (1980); Honolulu Sporting Goods, 239 NLRB
1277 (1979).
Applying these principles to the instant case, I find that
Respondent lawfully granted wage increases to the security
officers who were earning the equivalent of Respondent’s
starting rate. It appears that Respondent was studying the
wage structure from the time it took over the hotel in August
1992, with the intent of having a structure in place by July
1993. The consultants had been hired and the process begun
prior to any union activity and, thus, for reasons other than
the pendency of the union campaign. The wage increases to
all employees were granted and made retroactive to July 1,
just as planned in the fall of 1992. After the raises were
granted, some inequities were brought to Respondent’s atten-
tion. The increases at issue here were given so that the em-
ployees who lost out on raises due to the takeover were not
earning the same as recent hires. Similar adjustments were
made regarding nonbargaining unit employees. I find that
Respondent did, in fact, act as if no union were in the pic-
ture. Accordingly, I shall recommend that this allegation of
the amended complaint be dismissed.
2. The alleged surveillance
I have credited the testimony of McKinney, Hickey, and
Allison that McLaughlin engaged in surveillance of employ-
ees attending a union meeting at McKinney’s home the day
before the election. The evidence shows that McLaughlin
took notes and recorded who attended the meeting. I find the
evidence sufficient to hold Respondent responsible for this
conduct. Having employed McLaughlin to campaign against
the Union and attend the meeting at McKinney’s house, Re-
spondent should be held responsible for McLaughlin’s con-
duct during this employment. Respondent had led its security
officers to believe that McLaughlin was acting on its behalf
and with its approval. See Advanced Mining Group, 260
NLRB 486 fn. 3 (1982), enfd. mem. 701 F.2d 221 (D.C. Cir.
1983).
The credible evidence shows that, prior to the election,
Gilman followed McKinney around while the employee was
on duty and on break. The inference is that by doing so, Gil-
man inhibited employees from discussing the union with
McKinney. Similarly, Pagni followed Fowler on one shift.
Again, for that shift employees did not ask Fowler about the
Union, even on breaks.
In a parallel tactic, Fisher, Fowler, McKinney, and Perrigo
were assigned to the outside tower to inhibit conversations
with fellow officers. I find the number of such assignments
to the union organizing committee members to be more than
207RENO HILTON
coincidence. I draw the inference the assignments were
meant to minimize their contacts with fellow employees. Al-
though in the last month prior to the election Respondent did
need more security at that post, the inordinate number of as-
signments to the union organizers was never explained. I find
that Respondent violated Section 8(a)(1) by following the
union activists and assigning them to the outside tower in
order to minimize their contacts with fellow employees prior
to the election. Heartland of Lansing Nursing Home, 307
NLRB 152, 163 (1992). This conduct was clearly designed
to discourage union activities by inhibiting union solicitations
permitted under the no-solicitation rule.
3. Payments to employees to work against the Union
It is undisputed that Respondent paid employees Allison,
Eric Johnson, Guiterrez, Pasco, Parrish, Fields, Marcus John-
son, Nichols, and McLaughlin to campaign against the
Union. These employees were permitted to earn overtime
pay, apparently as much as they wanted, by campaigning
against the Union. Such conduct tends to demonstrate to em-
ployees the Employer’s ability to make it more economically
advantageous to oppose the Union than to favor it. Accord-
ingly, I find Respondent paid the employees to campaign
against the Union to encourage opposition to the Union and
to discourage union activities in violation of Section 8(a)(1).
Such a payment or bribe to work against the Union should
be treated as a serious interference with Section 7 rights.
The credible evidence establishes that Ruple first told
Johnson that if Johnson told anyone about their conversation
he would deny it. Ruple told Johnson that Johnson had a lot
of influence with his fellow employees and that Respondent
needed Johnson’s help. Ruple said, ‘‘‘if you’ll help I’ll guar-
antee that job in Hawaii.’’ Johnson agreed and they shook
hands on the deal. I find that Respondent, through Ruple, its
labor consultant, violated Section 8(a)(1) by this unlawful
promise of a benefit. Respondent placed Ruple in a position
where employees would reasonably believe he spoke on be-
half of management, particularly regarding employment mat-
ters. Further, I do not find Bennett’s apologies for Ruple’s
conduct to be sufficient repudiation of that conduct. Bennett
stated that he did not know what Ruple was going to say and
that Ruple could not guarantee anything. However, Bennett
went on to ask for Johnson’s help. At no time did Bennett
give Johnson assurances that the employee was free to de-
cline to work against the Union.
4. The alleged threats by Pagni, Gilman, and Balentine
I have credited Pedro’s testimony that he was told by Su-
pervisor Pagni that he should take union matters seriously,
that he should change his attitude about the Union and that
his present attitude could be detrimental to his continued em-
ployment. I find that such statements constitute threats of re-
taliation against union activities in violation of Section
8(a)(1). Heartland of Lansing Nursing Home, 307 NLRB 152
(1992).
I have credited Johnson’s testimony that Pagni told John-
son that the Union might be detrimental to the employee’s
chances for the Hawaii job and that the Employer might not
trust him. Johnson asked what he had to do to change things.
Pagni said Johnson should speak against the Union to other
security officers and let management see what he was doing.
Johnson said that he understood. This threat was reinforced
by Balentine’s statement to Johnson that actions speak louder
than words. I find that by such conduct Pagni and Balentine
violated Section 8(a)(1) of the Act. Fort Wayne Foundry
Corp., 296 NLRB 127 (1989); Southwire Co., 282 NLRB
916, 918 (1987).
I have also credited the testimony of Harrell and Stauffer
that Pagni expelled Harrell from a briefing session because
Harrell was arguing the Union’s position. Employee Stewart,
arguing the Employer’s position, was not expelled. The cred-
ited testimony establishes that the meeting had not yet start-
ed, and that if Harrell was at fault, Stewart was equally at
fault. This action was clearly in retaliation for Harrell’s ex-
pression of prounion views. Similarly, Pagni gave Pedro a
verbal warning allegedly for not taking an order seriously
and took no action regarding Stewart who was at least equal-
ly at fault.
Balentine told Stauffer that the employees should give Re-
spondent 10 months and if the employees weren’t satisfied
they should form their own organization. According to
Stauffer, Balentine said the Union represented plant guards
and didn’t know anything about casinos. Balentine admitted
telling Stauffer to give the Employer 10 months and also tell-
ing Stauffer that if the employees were unhappy they could
form their own in-house association. The day before the elec-
tion, Fowler asked if Balentine still took the union matter
personally, and expressed the hope that he and Balentine
could continue their good relationship. Balentine answered,
‘‘We are going to win.’’ Balentine said ‘‘give us ten months,
there are things I want to get done.’’ Fowler answered that
Balentine was an effective manager and could get things
done regardless of union activity. Balentine said give us 10
months and then if you are not satisfied go ahead with an
in-house organization. Fowler said, ‘‘If you mean a company
controlled union, that’s not legal but a quality control group
would be different.’’ Balentine abruptly left. I find an im-
plied promise of benefit if the employees would give Re-
spondent 10 months without union representation Marshall-
town Trowel Co., 293 NLRB 693 (1989).
5. The unlawful interrogations
Balentine asked why Pedro had accepted a position with
the hotel. Pedro answered that he needed a job and was im-
pressed with Balentine who had interviewed him. Balentine
asked why Pedro was so heavily involved with the Union.
Pedro admitted that he was a union supporter and mentioned
that some of the more senior employees were in favor of the
Union. Balentine answered that McKinney had a vengeance
against Respondent. Balentine said he hoped Pedro would
change his mind and vote against the Union. I find no legiti-
mate basis for asking these questions and find that the ques-
tions were intended to impress upon Pedro his vulnerability
as a probationary employee. The fact that Pedro was an open
union supporter does not render permissible coercive ques-
tioning by a managerial employee. Atlantic Forest Products,
282 NLRB 855 (1987). Balentine had the power to affect Pe-
dro’s livelihood and reinforced that fact in an attempt to per-
suade Pedro to change his position regarding the Union. Ac-
cordingly, I find that Respondent violated Section 8(a)(1) of
the Act. Yerger Trucking, 307 NLRB 567 (1992).
Gilman on several occasions questioned Fisher as to why
the employees sought out the Union and what were their de-
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mands. Gilman asked why the employees were unhappy. Gil-
man said the Employer would not forget and that ‘‘the com-
pany would not let it die’’ after the election. Gilman told
Fisher that jobs were in jeopardy and that Fisher should be
careful. Fisher mentioned that employees were worried about
job security, many were at an age where obtaining another
job would be difficult. Bennet also questioned Fisher as to
why the employees sought out the Union. Fisher explained
that employees were concerned about job security and men-
tioned that Nevada was a right-to-work State. Bennett wanted
to know if he was at fault. Fisher answered that it had noth-
ing to do with Bennett.
Balentine asked how Hickey felt about the Union and why
he thought a union was necessary. Hickey answered that
there were problems on his shift, the graveyard shift. He
mentioned that certain officers weren’t doing their jobs and
that there was a lack of discipline. Hickey told Balentine that
employee Pebenito was disrupting the shift, that other offi-
cers had complained, but that nothing had been done to cor-
rect the problem. Balentine said the problems were going to
be taken care of. Balentine showed Hickey a copy of a sam-
ple ballot and said that Hickey should know how to vote.
Stauffer testified that during November, Gilman asked him
how he would vote if the election was that day. Stauffer an-
swered that he would vote yes. Gilman said that he didn’t
want it to interfere with their friendship. Stauffer answered
that it wouldn’t. In the context of their friendship and their
agreement that this conversation was off the record, I find
that the discussion was not coercive and, therefore, did not
violate Section 8(a)(1) of the Act.
Fowler testified that he had one conversation with
Balentine in which Balentine asked what he was trying to
prove with the union drive. Fowler said that Balentine should
not take the union organizing personally. Balentine answered
that he took it very personally and that he felt the drive was
aimed at him. Balentine told Fowler that there could be no
handbilling unless permitted by hotel policy. Fowler asked if
he could answer questions about the Union and Balentine
said, ‘‘you know what I mean.’’ Although Fowler was a
known union committee member this questioning served no
lawful purpose and was made coercive by Balentine’s state-
ments that he took the matter personally and that he felt the
union drive was aimed at him. The questioning was jux-
taposed with conduct designed to undermine the Union and
was not accompanied by assurances against reprisals or any
showing of a valid purpose. Accordingly, I find that Re-
spondent violated Section 8(a)(1) of the Act. Establishment
Industries, 284 NLRB 121 (1987).
6. Enforcement of the no-solicitation rule
A valid no-solicitation rule may be found unlawful if it is
enforced in a discriminatory manner. Lawson Co., 267
NLRB 463 (1983); Hammary Mfg. Corp., 265 NLRB 57
(1982); St. Vincent’s Hospital, 265 NLRB 38 (1982). In the
instant case, Respondent’s valid no-solicitation rule was en-
forced by restricting prounion solicitations to nonworking-
times and areas but placing no such restrictions on the
antiunion campaigning. The evidence shows that prounion
employees were reminded, by posting and personally, of the
no-solicitation rule while Eric Johnson and Allison, were
given free reign to campaign against the Union. Allison was
specifically told to leave his post to campaign against the
Union. The evidence further shows that employees Pasco,
Guiterrez, Nichols, McLaughlin, and Fields openly violated
the no-solicitation rule in campaigning against the Union. To
the extent Respondent’s supervisors denied knowledge of the
violations of the no-solicitation rule, their testimony is re-
jected as unworthy of belief. The actions by the paid solici-
tors were open and notorious. By denying knowledge of
these activities, Respondent’s supervisors severely under-
mined their credibility. Accordingly, I find that by allowing
the antiunion campaigners to violate the no-solicitation rule,
Respondent discriminatorily enforced its valid rule in viola-
tion of Section 8(a)(1) of the Act. Blue Bird Body Co., 251
NLRB 1481, 1485 (1980); Ernst Home Centers, 308 NLRB
848 (1992).
7. The mandatory employee meetings
Respondent contends that Santo’s remarks to the employ-
ees at the mandatory meetings were privileged by Section
8(c) of the Act which provides:
Expressing any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under the provisions of this Act,
if such expression contains no threat of reprisal or force
or promise of benefit.
However, an employer’s rights under Section 8(c) cannot
outweigh the rights of employees granted under Section 7 of
the Act. Thus, the Supreme Court in NLRB v. Gissel Packing
Co., 395 U.S. 575, 617–619, (1969), stated:
[An employer] may even make a prediction as to the
precise effect he believes unionization will have on his
company. In such a case however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably prob-
able consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization. See Textile Workers v.
Darlington Mfg. Co., 380 U.S. 263, 274 fn. 20 (1965).
If there is any implication that an employer may or may
not take actions solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the court below that ‘‘[c]onveyance of the
employer’s belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not
a statement of fact unless, which is most improbable,
eventuality of closing is capable of proof.’’ 397 F.2d
157, 160. As stated elsewhere, an employer is free only
to tell ‘‘what he reasonably believes will be likely eco-
nomic consequences on unionization that are outside his
control,’’ and not ‘‘threats of economic reprisals to be
taken solely on his own volition.’’ NLRB v. River Togs,
382 F.2d 198, 202 (2d Cir. 1967).
Applying these principles, I find that Respondent did not
violate the Act by truthfully informing employees that they
could be permanently replaced in the event of a strike. Eagle
209RENO HILTON
Comtronics, 263 NLRB 515 (1982). Similarly, Santo’s state-
ments about a possible lockout if required by security rea-
sons did not violate the Act. Obviously Santo’s explanation
to employees that in the case of a lockout, employees would
be treated the same, regardless of union sympathies, was
consistent with the law. Santo’s statements concerning bar-
gaining from scratch were clarified that the parties would be
engaged in the give and take of negotiations. He indicated
that as a result of bargaining the employees’ benefit package
could be greater, less, or remain the same as their current
package. Accordingly, I find that Santo’s statements were not
violative of the Act. See Taylor-Dunn Mfg. Co., 252 NLRB
799, 800 (1980), enfd. 810 F.2d 638 (9th Cir. 1982).
However, Santo’s statements that the employees would not
receive the scheduled reduction in the health plan contribu-
tion was not privileged by Section 8(c). The undisputed facts
show that the employee health insurance contribution was
scheduled for implementation in January 1994. The employ-
ees were told that this benefit would be frozen along with
wages and other benefits.
As mentioned earlier, the Board’s general rule is that an
employer’s legal duty during a preelection campaign period
is to proceed with the granting of benefits, just as it would
have done had the Union not been on the scene. See, e.g.,
American Telecommunications Corp., 249 NLRB 1135
(1980). Thus, if an employer withholds wage increases or ac-
crued benefits because of union activities, and so advises em-
ployees, it violates the Act. Liberty House Nursing Home,
236 NLRB 50 (1978). However, where employees are told
expected benefits are to be deferred pending the outcome of
an election in order to avoid the appearance of election inter-
ference, the Board will not find a violation. Truss-Span Co.,
236 NLRB 50 (1978).
Applying these principles to the facts of the instant case,
the evidence indicates that the reduction in the employees’
contribution to the health insurance had been previously an-
nounced to take effect in January 1994. By telling employees
that this benefit would be frozen, Respondent was telling em-
ployees that it was withholding a benefit if the employees
chose the Union as their bargaining representative. If this
benefit was to be frozen, it should be frozen at the level it
would be absent the union activity. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act.
Moreover, Santo’s statements that he wished or would de-
mand that employees be able to climb 27 flights of stairs ap-
pears to be a threat of more stringent working conditions if
the employees chose union representation. Optica Lee
Borinquen, 307 NLRB 705 (1992). Respondent had never
before required a physical abilities test and nothing had pre-
vented Respondent from placing one in effect. Santo’s state-
ment did not indicate that this physical requirement was a
business necessity but rather the Employer’s response to
union demands. The employees would reasonably understand
the physical requirement to be a reprisal for selecting the
Union as their representative.
8. The discharge of Paul Pedro
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Upon such a showing,
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB
v. Transportation Corp., 462 U.S. 393, 399–403 (1983).
The evidence shows that Respondent became aware of Pe-
dro’s preference for the Union in early November. Pedro
wore a union pin to work. Further, Pedro was in the group
of union supporters that were considered hard cases and not
worth attempting to persuade to vote against the Union.
Pagni gave Pedro a screaming verbal warning because he
made a remark implying that the Union might win the elec-
tion. Pagni threatened Pedro that his attitude about the Union
could be detrimental to his continued employment. I have
found that this warning was given to harass Pedro because
of his prounion stance. The antiunion employee who had
made a facetious remark was not counseled.
Shortly before the election, Balentine asked why Pedro, a
probationary employee, was so heavily involved in the
Union. Balentine tried unsuccessfully to persuade Pedro to
vote against the Union. Most important, Balentine admitted
that absent his union views, Pedro was doing a good job and
that Balentine had not received any complaints about Pedro.
This conduct toward Pedro took place in the context of nu-
merous and serious unfair labor practices. In addition to the
threats directed at Pedro, were the threat by Gilman that Re-
spondent would not forget the union matter after the election
and the threats by Pagni and Balentine to Eric Johnson that
his chances for the Hawaii job would be diminished by his
union activities. Although the Union had lost the election,
the Union had already filed timely objections to the election
just 2 weeks prior to the discharge. Threats to eliminate the
employees’ source of livelihood have a devastating and lin-
gering effect on employees. Milgo Industrial, 202 NLRB
1196, 1200 (1973), enfd. mem. 497 F.2d 919 (2d Cir. 1974).
An inference may be drawn from the animus behind such
threats, which the discharge would gratify, that the animus
was the true reason for the discharge. General Thermo, 250
NLRB 1260, 1261 (1980); Best Products Co., 236 NLRB
1024, 1026 (1978). Loss of employment, frequently referred
to as the ‘‘capital punishment’’ of the workplace, has been
long recognized as the type of action which would dem-
onstrate most sharply the power of the employer over its em-
ployees. White Plains Lincoln Mercury, 288 NLRB 1133,
1139 (1988). Further, Bennett admitted that he relied, in part,
on the warning given by Pagni in deciding to discharge
Pedro. Having found that Pagni’s warning was unlawfully
motivated, I find that Respondent’s reliance upon it supports
the General Counsel’s prima facie case.
Respondent argues that it had no knowledge of Pedro’s ac-
tivities. The evidence is clearly the opposite. Pagni, Reed,
and Balentine all had knowledge of Pedro’s prounion posi-
tion. Pedro was among the group of ‘‘hard cases’’ from
whom Respondent did not even bother to solicit votes. Alli-
son and Eric Johnson discussed this with the supervisors and
other employees campaigning against the Union. The activi-
ties, statements, and knowledge of Respondent’s supervisors
are properly attributed to Respondent. Pinkerton’s, Inc., 295
NLRB 538 (1989). Accordingly, I draw the inference that
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 There is substantial evidence that security officer Pebenito had a
far worse employment record than Pedro. Pebenito had put guests
and other officers in jeopardy but was not terminated. Many of the
security officers had complained about Pebenito’s misconduct. How-
ever, the majority of Pebenito’s mistakes occurred shortly after the
employee passed his probationary period. Thus, I do not rely on the
disparate treatment of Pebenito in deciding the issue of Pedro’s dis-
charge.
Bennett and Wright knew that Pedro had spoken out in favor
of the Union.
Based on the company knowledge of Pedro’s union sym-
pathies, the animus expressed against the Union, the timing
of the discharge after the objections, the lack of prior warn-
ings, and the failure to give Pedro an opportunity to deny or
explain the complaints, the failure to discuss the matter with
his supervisor, the admission by Balentine, and the taint con-
cerning Pagni’s warning, I find that the General Counsel has
established a convincing prima facie case of discrimination.8
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of the employ-
ee’s protected conduct. Here, General Counsel’s strong prima
facie case makes Respondent’s burden substantial. See
Eddylean Chocolate Co., 301 NLRB 887 (1991). The evi-
dence shows that absent the union activities, the supervisors
did not complain to Balentine and that Balentine believed
Pedro was doing a good job. Bennett testified that he relied
on information from Supervisor Montgomery. However,
Montgomery had not supervised Pedro for 3 months. Bennett
did not consult Reed who had supervised Pedro during the
employee’s last 3 months of employment. If Bennett was
really concerned with Pedro’s performance he would have
consulted with the employee’s supervisor. Bennett relied on
information from Pagni which has been found to be illegally
motivated. Because Pagni’s report about Pedro’s conduct on
November 4 was discriminatorily motivated, Respondent can-
not premise its discharge of Pedro on this incident. Further,
the failure to give Pedro the opportunity to explain or deny
Boekhout’s complaint buttresses the inference of unlawful
motivation. I also note that Boekhout did not file a report on
this incident until after Pagni suggested that he do so. Again,
Pagni’s animus against Pedro’s union views casts doubt on
his motivation. Finally, it buttresses the General Counsel’s
case that Gilman told Pedro that he did not know of the dis-
charge and that Gilman did not answer when Pedro asked if
it had to do with the Union. Clearly, if the discharge was
based on job performance, Gilman would have so informed
Pedro.
In sum, I find that Respondent’s defense is not sufficient
to overcome the strong prima facie case. Accordingly, I find
that Respondent discharged Pedro because of his union ac-
tivities. I, therefore, find that Respondent violated Section
8(a)(3) and (1) of the Act.
9. The representation proceeding
Having concluded that Respondent, between the date of
the petition and the date of the election, engaged in numer-
ous violations of Section 8(a)(1) including threatening em-
ployees with the loss of employment, I find that Respond-
ent’s conduct affected the results of the election. Further,
while objections to the election were pending, Respondent
discharged employee Paul Pedro in order to discourage its
employees’ union activities. Such conduct constitutes
grounds for setting aside the election. American Safety
Equipment, 234 NLRB 501 (1978); Dayton Tire & Rubber,
234 NLRB 504 (1978). I, therefore, recommend that the
election be set aside.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the purposes and policies of the Act.
I shall recommend that Respondent offer Paul Pedro full
and immediate reinstatement to the position he held prior to
his unlawful discharge. Further Respondent shall be directed
to make Pedro whole for any and all loss of earnings and
other rights, benefits and emoluments of employment he may
have suffered by reason of Respondent’s discrimination
against him, with interest. Backpay shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987); see also Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139
NLRB 716 (1962).
Respondent shall also be required to expunge any and all
references to its discharge of Pedro from its files and notify
Pedro in writing that this has been done and that the dis-
charge will not be the basis for any adverse action against
him in the future. Sterling Sugars, 261 NLRB 472 (1982).
The General Counsel citing Sambo’s Restaurants, 247
NLRB 777 (1980), seeks a special remedy requiring John
Hughes president of Respondent to read the notice to em-
ployees, the mailing of notices to employees and special ac-
cess to Respondent’s hotel so that the Union may have addi-
tional access to employees. I do not believe an order requir-
ing the reading of the notice or access to the hotel is nec-
essary. However, I believe certain portions of the Sambo’s
remedy are applicable here.
I find a broad cease-and-desist order is appropriate in this
case in view of Respondent’s numerous and egregious viola-
tions of the Act which continued after the election with the
discharge of Paul Pedro. Hickmott Foods, 242 NLRB 1359
(1979); Sambo’s Restaurants, 247 NLRB 777 (1980). I shall
further recommend the following additional affirmative rem-
edies to ensure that if the question of union representation
is again placed before the employees they will be able to
voice a free choice: (1) In addition to posting at its Reno,
Nevada facility copies of the notice marked ‘‘Appendix,’’
Respondent shall mail a copy of the notice to each individual
current employee at his or her home address and to all em-
ployees on the payroll at the time the unfair labor practices
were committed, and include a copy in appropriate company
publications; and (2) Respondent shall supply the Union,
upon request made within 1 year of the date of the Board’s
Decision and Order, the names and addresses of its current
employees. See Sambo’s Restaurants, supra at 777–778.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
211RENO HILTON
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening employees with the loss of employment, harsher
working conditions, loss of benefits or other reprisals for en-
gaging in union activities, threatening employees that they
would lose their chances for promotion because of their
union activities, promising promotions and better working
conditions to discourage union activities, granting employees
benefits in order to discourage union activities, discrim-
inatorily enforcing its no-solicitation rules against campaign-
ing for the Union while placing no restrictions on campaign-
ing against the Union, conducting surveillance of its employ-
ees’ union activities, following prounion employees and as-
signing them to outside posts in order to restrict their contact
with other employees, and interrogating employees about
their union activities or union sympathies.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging employee Paul Pedro because of his union ac-
tivities.
5. By the conduct set forth above, Respondent has illegally
interfered with the representation election conducted by the
Board on November 18, 1993.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Reno Hilton Resorts d/b/a Reno Hilton,
Reno, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with the loss of employment,
harsher working conditions, loss of benefits, or other repris-
als for engaging in union activities.
(b) Threatening that employees will lose their chances for
promotion because of their union activities.
(c) Promising employees promotions, better working con-
ditions or other benefits in order to discourage union activi-
ties.
(d) Paying employees or granting benefits in order to dis-
courage union activities.
(e) Discriminatorily enforcing its no-solicitation rule
against prounion employees while imposing no restrictions
against antiunion employees.
(f) Conducting surveillance or creating the impression of
surveillance of its employees’ union activities.
(g) Following employees or changing their assignments in
order to restrict their contact with other employees.
(h) Coercively interrogating employees about their union
activities or union sympathies.
(i) Discharging employees because of their union activi-
ties.
(j) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to former employee Paul
Pedro to the position he would have held, but for Respond-
ent’s wrongful discharge of him.
(b) Make whole Pedro for any and all losses incurred as
a result of Respondent’s unlawful discharge of him, with in-
terest, as provided in the remedy section of this decision.
(c) Remove from its files any and all references to the dis-
charge of Pedro and notify him in writing that this has been
done and that the fact of the discharge will not be used
against him in any future personnel actions.
(d) Mail a copy of the attached notice marked ‘‘Appen-
dix’’10 to each and every security department bargaining unit
employee at his or her home address, post copies at its loca-
tion in Reno, Nevada, and include a copy in appropriate
company publications. Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after being
signed by Respondent’s authorized representative, shall be
mailed by Respondent to each and every employee working
at its Reno, Nevada location on the date on which such no-
tice is mailed, as well as each and every security department
bargaining unit employee who worked at that location during
the period of Respondent’s unfair labor practices, and addi-
tional copies shall be posted by Respondent immediately
upon receipt and maintained by it for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure the notices are not altered,
defaced, or covered by, any other material.
(e) Upon request of the Union made within 1 year of the
issuance of the Order, without delay make available to the
Union a list of names and addresses of all security depart-
ment employees employed at the time of the request.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the Regional Director for Re-
gion 32 set aside the representation election in Case 32–RC–
3777 and conduct a second election.