Sahara-Tahoe Hotel

National Labor Relations Board - Board Decisions

Mar 13, 1975

216 N.L.R.B. 1039 (N.L.R.B. 1975)

SAHARA-TAHOE HOTEL
Sahara-Tahoe Corporation d/b/a Sahara -Tahoe Hotel
and Hotel, Motel, Restaurant Employees and
Bartenders Union Local No. 86, Hotel & Restau-
rant Employees & Bartenders International Union,
AFL-CIO. Case 20-CA-9429
March 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 19, 1974, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed cross-exceptions and an answering
brief, and the Charging Party filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Sahara-Tahoe Corpo-
ration d/b/a Sahara-Tahoe Hotel, Stateline, Nevada,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
I We find , in agreement with the Administrative Law Judge, that
Hewitt's statement to Swan was not soliciting Miller . The Respondent, as it
concedes in its brief, has no rule against talking unless it is solicitation.
Hewitt's discharge , therefore, cannot be justi fied on the basis of the
Respondent 's no-solicitation rule and we need not, and do not, consider
whether or not Hewitt's conduct was comparable to other conduct not
related to union activity which the Respondent had tolerated in the past.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLrrz, Administrative Law Judge: This
case was heard at South Lake Tahoe, California, on
October 3 and 4, 1974. The charge, first amended charge,
and second amended charge were filed, respectively, on
August 1 , 7, and 22, 1974, by the Hotel, Motel, Restaurant
1 Respondent employs approximately 2,000 people of whom approxl-
216 NLRB No. 184
1039
Employees and Bartenders Union Local No. 86, Hotel &
Restaurant Employees & Bartenders International Union,
AFL-CIO, herein called the Union. The complaint, which
issued on August 30, 1974, and was amended at the
opening of the hearing, alleges that Sahara-Tahoe Corpora-
tion, d/b/a Sahara-Tahoe Hotel, herein called Respon-
dent, violated Section 8(aXl) and (3) of the National Labor
Relations Act, as amended.
Issues
The primary issues are:
(1) Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Audrey J. Hewitt because of
Hewitt's protected activities on behalf of the Union.
(2) Whether Respondent, through Supervisor Silvia
Fields, violated Section 8(aXl) of the Act by threatening
employees with discharge if they engaged in union activity;
interrogating an employee about union activity; and
warning employees that their workloads would be in-
creased if the Union came in.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
On the entire record of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Nevada Corporation engaged in the
operation of a combination hotel, bar, restaurant, and
gambling casino located at Stateline, Nevada. During 1973,
Respondent received gross revenues in excess of $500,000.
Also during 1973 Respondent purchased and received
goods valued in excess of $50,000 directly from outside of
Nevada. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. Background and the conduct that is alleged to
be in violation of section 8(aXl)
Respondent l is a member of the Reno Employers
Council and as such has had collective- bargaining agree-
ments with the Union since 1966 . The current contract
which was executed both by the Council and by Respon-
dent individually is, by its terms, effective from November
mately 600 are involved in food preparation and service.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30, 1971, through November 30, 1974. The contract does
not contain a union-security clause . Though the Union is
an incumbent with regard to Respondent , their relation-
ship appears somewhat unusual . Many of the employees in
the bargaining unit , which consists of culinary and bar
employees, are not members of the Union and some may
not even know that the contract exists . As is set forth in
more detail below, a number of witnesses referred to
conversations between supervisors and employees in which
both spoke of what would happen "if the Union came in."
Thus, some of the aspects of this case have more the
appearance of an initial organizational drive than an
established bargaining relation.
Audrey J. Hewitt was employed as a waitress in
Respondent's Four Seasons Coffee Shop from May 1970
until July 27, 1974. Respondent contends that she was
discharged because on July 24, 1974, after a prior warning,
she violated Respondent's no-solicitation rule.
Hewitt joined the Union in June 1974. From then until
July 22, 1974,2 she openly solicited both employees and
supervisors to join the Union. During that time, she spoke
to employees about the Union while she was working, as
well as on her break time. In early July 1974, Hewitt asked
Head Hostess Ouida Dickson 3 to talk to the girls about
joining the Union. Dickson replied that she had been in the
Union in Las Vegas and the Union hadn't done anything
for her . Hewitt told Dickson of the advantages of
belonging to a union and Dickson replied by pointing out
disadvantages . When this conversation took place, Dick-
son was on duty but Hewitt was not. Subsequently,
Dickson reported the conversation to Joe Tuoto, the
beverage manager .4 On July 17, 1974, Hewitt told Head
Hostess Ardis Millers that they were trying to organize the
girls to join the Union and asked her what she thought
about it . Miller replied that she hadn't thought either way.
Hewitt then told her that there would be a union meeting
at 4 o'clock the following day and that Miller was welcome
to come.6
On July 18, 1974, Hewitt was appointed union shop
steward . However, Hewitt did not tell anyone from
management about the appointment and there is no
evidence in the record to indicate that Respondent knew of
it prior to her discharge.
In early July 1974, Head Hostess Silvia L. Fields 7 spoke
to Union Business Representative Bobby Swan concerning
union hiring halls . A few days later Fields approached
Hewitt and asked Hewitt about that subject. Fields
acknowledged that she approached Hewitt because she
knew Hewitt was actively supporting the Union . Fields
told Hewitt that if the Union came in Respondent would
2 As is set forth below, there is a conflict of testimony concerning
solicitation after July 22, 1974.
3 The complaint alleges , the answer admits , and I find that Dickson is a
supervisor within the meaning of the Act.
4 It is admitted and I find that Tuoto is a supervisor within the meaning
of the Act.
I It is admitted and I find that Miller is a supervisor within the meaning
of the Act.
e This finding is based upon the credited testimony of Miller . Hewitt
averred that she told Miller that the Union was trying to come in and asked
Miller if she was interested in joining but she placed the conversation in late
June or early July 1974. As is set forth below , I do not believe that Hewitt
was accurate with regard to dates and I credit Miller.
have to hire from the top of the list, no matter how badly a
person needed a job .8 Fields also told Hewitt that if they
did go union, the bus help would not be allowed to pour
coffee or water. Fields credibly testified that it was her
understanding that under the Las Vegas contract, busboys
could not perform those tasks. The practice at Respon-
dent's coffeeshop was to allow busboys and busgirls to
pour coffee and water, and this practice saved time for the
waitresses.
In early July 1974, waitress Bernice Eggerman , while she
was on her working time, was speaking to some of the
busgirls about the Union. Fields approached the group and
asked Eggerman if she was going to join the Union.
Eggerman replied that she did not know and would have to
look into it .9
In mid,July of 1974, Fields spoke to several of the
busgirls concerning the consequences of joining or not
joining the Union. There is a sharp conflict in testimony as
to what occurred.
Jeanette Osborne, one of the waitresses in the coffee-
shop, testified to the following: Osborne was standing 6 or
8 feet away from a group of busgirls who were discussing
the Union. One of the busgirls was named Diane. (Osborne
could not recall the last names of any of the girls.)
Supervisor Fields approached the busgirls and told them
that if she (Fields) heard that any of them joined the Union
or went to the Union that busgirl would be "pinked out." It
was understood by everyone that "pinked out" meant
discharged. One of the busgirls replied that Fields should
not worry about it because she (the busgirl) wouldn't join
the Union.
Fields, in her testimony, acknowledged that she had
spoken to the busgirls about the Union in mid-July, but she
placed that conversation in a completely different perspec-
tive. Fields testified to the following: In mid-July some of
the busgirls approached her and asked whether they would
be fired if the Union came in and they did not join it.
Fields told them not to be afraid for their jobs if the Union
came in, that there was a right-to-work law in Nevada, and
that they would not get a pink slip if they did not join the
Union.
Busgirl Diane Thomas corroborated Fields testimony in
substantial part. She testified that she asked Fields if it was
true that if 55 percent of the people joined, she would have
to quit or join the Union, and that Fields replied that it was
not true. She also averred that she overheard Fields talking
to other busgirls to the effect that Nevada had a right-to-
work law and that if the Union came in the people that
were not union could go ahead and work anyway. to
7 It is admitted and I find that Fields is a supervisor within the meaning
of the Act . Fields supervises 35 to 38 employees on the day shift at the
coffeeshop.
8 The complaint does not allege that remark to be a violation of the Act.
9 These findings are based on the testimony of Eggerman. Fields testified
that she did not recall any such conversation . Although in general I was
favorably impressed with the credibility of Fields' testimony , I believe that
with regard to the Eggerman conversation , Fields either had a faulty
memory or was less than candid. Eggerman was a forthright and convincing
witness.
10 Thomas also testified that before her conversation with Fields, Hewitt
had told her that if she did not join the Union and if 55 percent of the
people did join , she would have to quit . Fields , in her testimony, denied
SAHARA-TAHOE HOTEL
I believe that all three witnesses who testified concerning
the "busgirl" incident were doing their best to recall the
events. I also believe, however, that Fields was the most
accurate of the witnesses . Her testimony was corroborated
in subst4ptial part by Thomas. Osborne was not a party to
the conversation and simply observed it from 6 or 8 feet
away. Fields' remarks to the effect that the busgirls would
not be fired if they did not join the Union could easily have
been misunderstood by Osborne. In addition, the 4i{ect,
overt threat of discharge attributed to Fields appears tp be
out of character when compared with her conversations
regarding the Union with Hewitt and others. I credit
Fields' version of the "busgirl" incident.
2. The discharge of Hewitt
As indicated above , Hewitt was an active, militant
solicitor on behalf of the Union , She openly asked
employees and supervisors to join the Union . Some of this
solicitation admittedly took place on Respondent's premis-
es during her working time.
Respondent has maintained no-solicitation rules at its
premises since it opened . Since at least 1970, no-solicitation
rules have been posted at a number of locations around the
hotel which read as follows:
NO SOLICITATION POLICY
Solicitation for any purpose during working time in
any area of the Sahara-Tahoe is prohibited.
Distribution of any kind in any of the working areas
of the Sahara-Tahoe is prohibited at all times.
There are a dozen or more such signs posted throughout
the hotel . They are posted, among other places, on the
second floor, in the basement, and behind the kitchen
area.'1
The no-solicitation rule has not been fully enforced.
Solicitation for "sunshine fund" matters did take place on
company time among the employees on the day shift under
Fields' supervision . A container was sometimes left in the
kitchen for collections to pay for birthday presents,
funerals, and the like . Employees placed their contribu-
tions in the container anytime they saw fit including
working time . Supervisor Fields acknowledged that she
was aware of such collections , though she denied that she
discussed them with anyone higher in management. One
employee, Eggerman , a waitress on the day shift, recalled
three or four such collections during her shift. Fields
making such a statement. Thomas also averred that Fields tolq the busgirls
that there was a "big hassel" about the Union and that it was fine if they
joined or didn't join, but that they should not talk about it if they wanted to
avoid trouble. Further in her testimony she added that Fields told them not
to talk about it on the floor . Though I bglieve Thomas to be an honest
witness, I was not impressed by her ability to recall events with accuracy or
to avoid confusion. I believe she may have misinterpreted Hewitt's remarks
when Hewitt was soliciting her to join the Union, and I therefore credit
Hewitt's denial that she threatened Thomas with discharge if the Union
came in and Thomas did not join . Thomas' testimony concerning Fields'
statement about not talking about the Union was rambling and confused,
but, taken as a whole , I behove it indicated that Fields was telling them that
talk about the Union might cause trouble from the Union rather than from
Respondent.
It This finding is based on the testimony of Engineer Ferguson,
Supervisors Bienz , Dickson, and Miller, as well as waitress Eggerman.
1041
recalled a few in 1974 and about three in 1973.12
Hewitt's solicitation for the Union on company time was
reported to Joseph Bienz, Respondent's food and beverage
director.13 On the afternoon of July 22, 1974, Hewitt was
called into Bienz' office. Bienz told her that she could not
solicit on the job and that she would be terminated if she
did it again. Hewitt replied that she was sorry and that she
would not do it again. Bienz asked Hewitt whether she
knew about the no-solicitation rule and she replied that she
did not. Bienz was not very certain as to his exact
language . At one time he averred that he told Hewitt that
she could not solicit on the job; further in his testimony he
averred that he told her she could not solicit during
working hours; and at yet a third part of his testimony he
averred that he probably told her that she couldn't solicit
at all in the hotel. Whatever language Bienz did use,
however, it appears that Hewitt understood him to be
talking about her worktime, as she admitted in her
testimony that she replied to him by making a promise that
she would not solicit or talk about the Union during her
working time again. I credit her in that regard.
Hewitt also testified that, in this conversation, Bienz
asked her how the union promotional program was getting
along and if she thought the Union was going to get in.
Bienz' testimony with regard to this conversation does not
include that statement. I do not credit Hewitt with regard
to that assertion.
After Bienz interviewed Hewitt on July 22, he dictated a
written warning to be given to Hewitt. The memo was
signed and dated July 24, 1974, on which date it left Bienz'
office. Hewitt did not receive the written warning until she
reported to work on July 27, 1974. The written warning
cautioned Hewitt for the following: "Soliciting during
working hours. This is a violation of corporate policy." The
warning stated that a repetition of the offense might result
in discharge.
About 10 p.m. on July 22, 1974, Peter Maurer,
Respondent's assistant executive chef14 who was working
in the kitchen of the coffeeshop, went into Respondent's
parking lot to see a trailer-camper owned by a Mr.
VanHoy. VanHoy had offered to loan him the camper for
a vacation and Maurer went to look at it. Hewitt was in the
camper and they had a conversation. Hewitt asked whether
he was going to join the Union and he laughingly replied
that he didn't want to get fired. Hewitt said that she was
the instigator for the Union and she wanted everyone to
join. When Maurer went back to the kitchen, he told Bienz
about the incident and Bienz told him to write a memo
Hewitt's testimony to the effect that she never observed any no-solicitation
signs during the time she worked at the hotel is simply incredible. The
attempt to explain her testimony on the grounds that painters may have
taken nq-solicitation signs off for limited periods is totally unconvincing.
12 Hewitt also testified to two other types of solicitation . She averred that
there were charitable solicitations near the gambling tables and that
employees could contribute on their own time . There was no indication,
however, that contributions were allowed during worktime . Hewitt also
averred that an employee gave her an Avon catalog while they were on
duty . However, there is no evidence that the supervisors knew of that type
of solicitation.
13 It is admitted and I find that Bienz is a supervisor within the meaning
of the Act.
14 Maurer had authority to hire and fire and is a supervisor within the
meaning of the Act.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning it. He made up a report and signed it the
following day.15 Respondent does not contend that
Hewitt's solicitation of Maurer was in violation of the no-
solicitation rule. Respondent's counsel admitted that there
was a question as to whether Maurer's visit to the camper
could be considered working time and also admitted that
Respondent would not have taken any action based on
that conversation. It is noteworthy that, in spite of these
admissions, Bienz saw fit to document the incident by
asking Maurer to make a written report concerning it.
Respondent contends that the incident that triggered the
discharge of Hewitt occurred about 9 or 10 a.m. on July 24,
1974. Supervisor Miller testified as follows: At that time
and date, Miller was near the counter in the coffeeshop
when Hewitt asked her to meet a lady who was sitting at
the counter having coffee. The counter was part of Hewitt's
work station. Hewitt introduced Miller to Bobbie Swan
and said that Swan was a union representative. Hewitt then
turned to Swan and in Miller's presence said: "I think she
will be willing to go along with us." Miller then said that it
had been nice to meet Swan and she left.
Miller testified that she believed she had been introduced
to other people by Hewitt during her working hours, and
that there is no rule against employees introducing their
supervisors to friends. The coffeeshop is, of course, open to
the public.
Miller averred that she interpreted Hewitt's remark
about "going along with them" as a question to her.
However, when she was asked upon the stand to repeat as
closely as she could recall exactly what Hewitt had said,
the intonation of her reply as well as her demeanor gave no
indication that Hewitt had been questioning or soliciting
her. Rather, it appeared that Hewitt had been making a
declaratory statement of her opinion to Swan.
Hewitt, in her testimony, acknowledged that she had
introduced Miller to Swan, but she dated that incident at
the end of June or first part of July, which was well before
the July 22, 1974, warning. She denied that she said
anything about Miller going along with the Union. I credit
Miller and do not credit Hewitt. Hewitt's credibility was
put in substantial question by her unbelievable assertions
concerning her lack of knowledge of the posted no-
solicitation rule. On the other hand, Miller impressed me as
being a direct, candid, and fully credible witness. In a
report about the incident to Bienz on July 29, 1974, Miller
referred to the conversation as having taken place on June
25, 1974, but she corrected herself by testifying that it in
fact happened July 24. In either case, the written report as
well as the actions of Bienz in investigating and acting on
the situation are consistent with the position of Respon-
dent that the incident did occur after the July 22, 1974,
warning.
On the afternoon of July 24, Miller reported the incident
to Joe Tuoto, the beverage manager . Tuoto in turn
reported to Bienz that Hewitt was again involved in
solicitation and that she had solicited Miller. Bienz
consulted on the phone with Assistant General Manager
Tony Ashley and was told that if Hewitt was soliciting
there would be no choice but to terminate her. Bienz
15 Hewitt testified that she did not recall whether she asked Maurer to
join the Union and does not recall saying that she was the union instigator. I
followed up the matter and spoke to Miller, who described
the incident to him in substantially the same terms she
used in her testimony which is set forth above. Bienz then
ordered that Hewitt be terminated. Hewitt completed her
work shift on July 27, 1974, and then was given a pink
termination slip by Supervisor Fields. Hewitt asked Fields
the reason for her discharge and Fields said that Hewitt
had not complied with the company rules and regulations.
Hewitt then called Assistant General Manager Ashley and
asked him the reason for the discharge. Ashley replied that
she had been soliciting on July 24, 1974. Hewitt told
Ashley that it was a lie.
The "remarks" section of Respondent's discharge re-
cords relating to Hewitt states : "Was approaching employ-
ees regarding union matters while they were on duty. She
had previously been warned by Mr. Bienz and advised of
our company policy on solicitation."
B. Analysis and Conclusions
1. The discharge of Hewitt
As found above, Hewitt was discharged on July 27, 1974,
because on her worktime she introduced Supervisor Miller
to Union Business Agent Swan and told Swan that she
(Hewitt) thought that Miller would be willing to go along
with them. When this incident took place, Swan was
having coffee at a counter being serviced by Hewitt.
Previously, Hewitt had been warned about violating
Respondent's no-solicitation rule.
Insofar as the rule prohibits solicitation for all purposes
during working time, it is presumed to be valid. Essex
International, Inc., 211 NLRB 749 (1974). However,
Respondent's reliance on the posted no-solicitation rule as
a defense is not justified by the facts. Hewitt did not solicit
Miller concerning the Union in the incident that precipitat-
ed her discharge. Neither Hewitt's introduction of Miller to
Swan nor Hewitt's remark to Swan could fairly be called a
solicitation of Miller. As found above, Hewitt was making
a declaratory statement of her opinion to Swan and was
not soliciting any action from Miller. Hewitt was, however,
talking about union matters on her worktime and even
though such talk did not come within the compass of the
posted no-solicitation rule, it did involve nonbusiness talk
on worktime. Ordinarily an employer can require that all
discussions during working time be about business matters.
Western Sample Book and Printing Co., Inc., 209 NLRB 384
(1974). However, such interference with the employee's
talk must be keyed to the legitimate business needs of the
employer rather than to an attempt on the part of the,
employer to interfere with the rights of employees to
engage in union activity. One factor to be considered in
evaluating this question is whether or not the Company
limits conversations regarding matters and solicitations
that are not related to the Union. Even where a
presumptively valid no-solicitation rule is being enforced,
the presumption can be rebutted by a showing that the rule
is not keyed to legitimate business needs or is disparately
or discriminatorily applied. Montgomery Ward & Co., Inc.,
198 NLRB 52 (1972), and cases cited therein; Daylin Inc.,
credit Maurer 's testimony as set forth above.
SAHARA-TAHOE HOTEL
Discount Division d/b/a Miller's Discount Dept. Stores, 198
NLRB 281 (1972), enfd. 496 F.2d 484 (C.A. 6, 1974). In the
instant case , Respondent through Supervisor Fields did on
occasions allow solicitation for "sunshine fund" type
contributions on the employees' working time. Respondent
was tolerant of such discussions and solicitation but not of
those that related to the Union. Such disparate treatment is
one factor to be considered in determining whether a
company's conduct is attributable to business needs as
opposed to an interference with employee rights. Cf. Ling
Products Company, Inc., 212 NLRB 152 (1974); Alberts,
Inc., 213 NLRB 686 (1974); Litho Press of San Antonio, 211
NLRB 1014 (1974); Montgomery Ward & Co., supra, State
Chemical Company, 166 NLRB 455 (1967), enfd. 404 F.2d
1382 (C.A. 6, 1968).
I have taken into consideration the fact that the
"sunshine fund" solicitations took place only occasionally,
that they involved only a limited number of employees,
and that there is no indication that higher management
was aware that they were being permitted by a first line
supervisor. An employer need not be completely rigid in
enforcing a no-solicitation rule. An employer may permit
minor "humanitarian" lapses in the enforcement of its rule
that do not have any meaningful impact on its operation,
while strictly policing the rule to prevent violations that
would interfere with production and discipline. Cf. The
May Department Stores Company d/b/a Famous-Barr Co.,
174 NLRB 770 (1969); Astronautics Corp. of America 164
NLRB 623, 627 (1967); Aerovox Corp. of Myrtle Beach,
S.C., 172 NLRB 1011 (1968), enfd. 435 F.2d 1208 (C.A. 4,
1970).
It does not appear that Respondent 's tolerance of the
"sunshine fund" contributions on worktime interfered with
Respondent 's production 16 or discipline . However, it is
also true that the facts set forth in the record do not
warrant the conclusion that Hewitt 's conduct on July 27,
1974, interfered in any way with production or discipline.
Hewitt introduced a supervisor to the union business agent
who was at a public counter having coffee and then Hewitt
made an observation to that business agent concerning the
supervisor's union sympathy. There was no evidence of a
company rule against introductions or against talking. The
conclusion is warranted that Respondent's concern regard-
ing the incident was with Hewitt 's choice of subject matter
and not with the fact that Hewitt was talking about
nonbusiness matters on worktime . The inference is also
warranted that Respondent would not have been con-
cerned with what Hewitt was speaking about in such a
passing conversation if the subject had not been about the
Union . In Ling Products Company, Inc., supra, the Board
found a violation of the Act where " talking was not an
offense which disturbed (the employer) but talking about
union matters was." The same situation exists in the instant
case . This conclusion is reinforced by Respondent's
conduct in the incident with Supervisor Peter Maurer.
Maurer was solicited to join the Union by Hewitt while
they were in a trailer-camper in the parking lot. Respon-
dent does not contend that Hewitt was violating any no-
solicitation rule at the time . However, Supervisor Bienz
told Maurer to file a written report on the incident. It thus
1043
appears that even where the no-solicitation rule and
worktime were not involved, Bienz was concerned with
keeping track of Hewitt's union talk.
In conclusion, I find that Hewitt was discharged because
she was talking about union activity on her worktime; that
the discharge was not pursuant to a nondisparate,
nondiscriminatory application of a lawful rule prohibiting
such talk; that the discharge was not justified by a need to
maintain production or discipline on worktime; and that
by such conduct Respondent violated Section 8(a)(3) and
(1) of the Act.
2. The alleged 8(a)(l) violations
The complaint alleges that Respondent, through Supervi-
sor Fields, violated Section 8(a)(1) of the Act by threaten-
ing employees with discharge if they joined the Union, by
threatening employees with an increased workload if the
Union came in, and by interrogating an employee about
her union sympathies.
The allegation that Fields threatened employees with
discharge apparently relates to the "busgirl" incident
which is described in detail above. As the credited facts
establish that Fields did not threaten the busgirls with
discharge, but instead explained the Nevada right-to-work
law to them and told them that they would not be fired if
they did not join the Union, I shall recommend that that
allegation of the complaint be dismissed.
The credited evidence establishes that Fields did tell
employee Hewitt that if the Union came in the bus help
would not be allowed to pour coffee or water. It was
Fields' understanding that, under the Las Vegas contract,
busboys could not perform those tasks. It is clear that if
bussing employees were not allowed to pour coffee or
water there would be more work for the waitresses to do,
but it is not clear whether the waitresses would consider
that a protection of their job duties or an additional burden
on them. In any event, it is also clear that Fields was giving
her opinion as to what the Union would insist on. I do not
believe that Fields' remarks can be fairly interpreted to
mean that Respondent was threatening the employees with
reprisals if they supported the Union. Under Section 8(c)
of the Act, an employer is free to convey his opinions
concerning unionization. As the United States Supreme
Court held in N.LRB. v. Gissel Packing Company, Inc.,
395 U.S. 575 (1969):
[An Employer's prediction about the consequences of
unionization ] must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol . . . in the case of unionization.... If there is any
implication that an employer may . . . take action
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 ... .
In Appleton Discount, Inc., 205 NLRB 394 (1973), the
Board refused to find a violation of Section 8(a)(1) of the
16 As used herein the term "production" includes the providing of services.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act where "the evidence indicates that the company
representatives did no more than present to employees
their understanding that a labor organization would prefer
full-time employment for a smaller number of employees
over a large part-time complement." In the instant case,
the credited evidence does not support the allegation that
Fields threatened the employees with reprisal for joining
the Union and I shall therefore recommend that that
allegation of the complaint be dismissed . Cf. Lorraine
Urbauer d/b/a Kimmel's Shop Rite, 213 NLRB 440 (1974);
Missouri Heel Company, A Division of Ripley Industries,
Inc., 209 NLRB 481 (1974).
The credited evidence established that Fields asked
employee Eggerman if she was going to join the Union. In
Struksnes Construction Ca, Inc., 165 NLRB 1062 (1967),
the Board held:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on the Section 7 rights. As
we have pointed out, "An employer cannot discrimi-
nate against union adherents without first determining
who they are." Cannon Electric Company, 151 NLRB
1465, 1468 (1965). That such employee fear is not
without foundation is demonstrated by the innumera-
ble cases in which the prelude to discrimination was the
employer's inquiries as to the sympathies of his
employees.
In Struksnes, the Board held that in a polling situation a
violation would be found unless the purpose of the poll was
to determine the truth of the Union's claim of majority;
this purpose was communicated to employees ; assurances
against reprisal were given ; the employees were polled by
secret ballot ; and the employer had not engaged in unfair
labor practices or otherwise created a coercive atmosphere.
The Board has applied the Struksnes criteria to interroga-
tion cases even where no poll was taken . Lorraine Urbauer
d/b/a Kimmel 's Shop Rite, supra; Big Three Industries, Inc.,
192 NLRB 370 (1971). In the instant case , Fields
interrogated an employee concerning her union sympa-
thies, without meeting the standards set forth in Struksnes.
The interrogation took place in early July 1974. As found
above, Hewitt was unlawfully discharged because of her
union activities on July 27, 1974. The interrogation
therefore cannot be considered a minor isolated incident.
Cf. Trojan Steel Corp., 180 NLRB 704 (1970). I find that
Respondent , through Fields , violated Section 8(a)(l) of the
Act by coercively interrogating Eggerman concerning
whether she was going to join the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in III , above,
occurring in connection with the operations of Respondent
described in I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged Audrey J.
Hewitt in violation of Section 8(a)(3) and (1) of the Act, I
shall recommend that Respondent be ordered to offer her
reinstatement and make her whole for any loss of earnings
resulting from her discharge, by payment to her of a sum of
money equal to the amount she normally would have
earned through her employment with Respondent from the
date of her discharge to the date on which reinstatement is
offered, less net interim earnings during that period. Such
backpay shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and shall include interest at 6 percent as
provided in Isis Plumbing and Heating Co., 138 NLRB 716
(1962).
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the Board
and to its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Audrey J. Hewitt for talking about
union activity on her worktime , where the discharge was
not pursuant to a nondisparate , nondiscriminatory applica-
tion of a lawful rule prohibiting such talk, and was not
justified by a need to maintain production or discipline on
worktime , Respondent violated Section 8(a)(3) of the Act.
4. By the foregoing conduct and by coercively interro-
gating an employee concerning her union sympathies,
Respondent has interfered with , restrained, and coerced
employees in the exercise of their rights guaranteed to them
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Except as set forth above, the General Counsel has
not established by a preponderance of the credible
evidence that Respondent has violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and.upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
SAHARA-TAHOE HOTEL 1045
ORDER 17
Respondent, Sahara-Tahoe Corporation d/b/a Sahara-
Tahoe Hotel , its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging any employee for talking about union
activity on worktime unless the discharge is pursuant to a
nondisparate, nondiscriminatory application of a lawful
rule prohibiting such talk , and the discharge is justified by
a need to maintain production or discipline on worktime.
(b) Coercively interrogating employees concerning their
union sympathies.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Audrey J. Hewitt immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position , without prejudice to her
seniority or other rights and privileges , and make her whole
for her loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(c) Post at its Stateline, Nevada, facility copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 20 , after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
18 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights. More specifically,
WE WILL NOT discharge any employee for talking
about union activity on work time unless the discharge
is pursuant to a nondisparate, nondiscriminatory
application of a lawful rule prohibiting such talk, and
the discharge is justified by a need to maintain
production or discipline on worktime
WE WILL NOT coercively interrogate employees
concerning their union sympathies.
WE WILL offer full reinstatement to Audrey J. Hewitt
with backpay plus 6-percent interest.
SAHARA-TAHOE
CORPORATION D/B/A
SAHARA-TAHOE HOTEL