Sahara-Tahoe Hotel

National Labor Relations Board - Board Decisions

Jun 7, 1977

229 N.L.R.B. 1094 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Ho-
tel and Hotel, Motel, Restaurant Employees &
Bartenders Union Local No. 86, Hotel & Restau-
rant Employees & Bartenders International Union,
AFL-CIO. Case 20-CA-9623
June 7, 1977
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
MURPHY
On January 21, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Charging Party filed exceptions and briefs, Respon-
dent filed cross-exceptions and a brief, and Charging
Party filed a brief in reply to Respondent's cross-
exceptions.
Pursuant to the provision 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,1 and conclusions 2 of the Administrative Law
Judge, to the extent consistent herewith.
Contrary to the Administrative Law Judge, we find
that Respondent Sahara-Tahoe's withdrawal of
recognition from and its refusal to bargain with the
long-established bargaining representative of its
employees was not legally justifiable and in fact
constituted a violation of Section 8(a)(5) of the Act.
It is well settled that the existence of a prior
contract, lawful on its face, raises a dual presumption
of majority - a presumption that the Union was the
majority representative at the time the contract was
executed, and a presumption that its majority
While we agree with the Administrative Law Judge that Respondent's
meals benefits policy announced in August 1974 constituted a lawful
change, we note as an additional ground the fact, which he inadvertently
overlooked, that there was a meal benefit provision in the collective-
bargaining agreement in effect between 1971 and 1974.
General Counsel, Respondent, and Charging Party have all excepted to
certain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
the relevant evidence convinces us that the resolutions are incorrect.
Standard DrV Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362
(C.A. 3, 1951). We have carefully examined the record and find no basis for
reversing his findings.
2 We find it unnecessary to pass on the Administrative Law Judge's
conclusion that the contractual provision granting Respondent "the right to
increase any privileges, benefits or wages provided for by this Agreement"
without bargaining with the Union about it covered its unilateral institution
of dental, vision, and disability insurance. Since such benefits were granted
to Respondent's employees who were not under the contract, we agree with
the Administrative Law Judge that Respondent was required to include the
employees in the contractual unit in this grant of benefits, pursuant to art.
II, sec. 4A, of the contract.
229 NLRB No. 151
continued at least through the life of the contract. 3
Following the expiration of the contract, the pre-
sumption continues and, though rebuttable, the
burden of rebutting it rests on the party who would
do so.4 To withdraw recognition lawfully, either this
presumption must be overcome by competent evi-
dence that the Union in fact did not represent a
majority at the time of the withdrawal,5 or the
Employer must establish on the basis of objective
facts that it had a reasonable doubt as to the Union's
continuing majority status. This latter test, which
Respondent claims it meets, requires more than mere
evidence of the Employer's subjective state of mind.6
For the test to be met, the assertion must be
supported by objective considerations; that is, some
reasonable ground for believing that the Union has
lost its majority status. 7
Briefly, the record shows that between 1965 and
1974 Respondent belonged to a multiemployer
association which bargained and entered into succes-
sive contracts with the Union. The last contract to
which Respondent was a party expired on November
30, 1974.8 Before this contract expired, Respondent
timely withdrew from the multiemployer association
on August 2 and notified the Union on August 5 that
it would bargain with it individually.9 In mid-
September, some 5 weeks after it agreed to bargain
with the Union for a new contract, Respondent
allegedly began to harbor doubts about the Union's
representative status based on the following circum-
stances: (I) the relative inactivity of the Union prior
to June when the Union was placed in trusteeship;
(2) certain questions from employees about the
Union; and (3) newspaper reports, remarks by an
agent for another union, comments by a Board
agent, and the high turnover of unit employees.
The Administrative Law Judge found, and we
agree, that not one of the factors relied on by
Respondent standing alone supports a good-faith
3 Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc., and Shamrock
Milk Transport Co., 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd.
280 F.2d 665 (C.A.D.C., 1960), cert. denied 364 U.S. 892. See also
Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of
Pocatello, Idaho, 213 NLRB 651 (1974).
4 Barrington Plaza and Tragniew, Inc., 185 NLRB 962 (1970), enforce-
ment denied on other grounds sub nom. N.L.R.B. v. Tragniew, Inc., and
Consolidated Hotels of California, 470 F.2d 669 (C.A. 9, 1972).
5 No such evidence is present in this record.
s Celanese Corporation of America, 95 NLRB 664 (1951).
7 Laystrom Manufacturing Co., 151 NLRB 1482, 1483 (1965), enforce-
ment denied 359 F.2d 799 (C.A. 7, 1966). See also Emerson Manufacturing
Company, Inc., 200 NLRB 148 (1972), and Terrell Machine Company, 173
NLRB 1480 (1969), enfd. 427 F.2d 1084 (C.A. 4, 1970), cert. denied 398 U.S.
929.
8 All dates are 1974 unless otherwise indicated.
I The presumption of majority status arising from Respondent's
voluntary recognition of the Union as the exclusive bargaining representa-
tive of its employees continued after its withdrawal from the multiemployer
association. Tahoe Nugget, Inc., d/b ,a Jim Kelley's Tahoe Nugget, 227
NLRB 357 (1976).
1094
SAHARA-TAHOE HOTEL
doubt that the Union has lost majority status.
However, he held that there was a reasonable basis
for questioning whether a majority of Respondent's
employees supported the Union when the factors
relied on by Respondent are "viewed in their
totality." We disagree entirely because of the
speculative and subjective nature of the information
on which Respondent based its calculations of union
strength and because the circumstances, standing
alone or in their totality, in no way reflect or even
purport to reflect the sentiments of a majority of
Respondent's employees on the question of union
representation.
I. The relative inactivity of the Union prior to June
when the Union was placed in trusteeship: Reliance on
these circumstances is misplaced.' 0 Thus there is no
contention that the Union ever abandoned its
representative status. Nor has Respondent pointed to
a single instance where the Union failed to represent
an employee properly or where an employee ex-
pressed dissatisfaction because the Union failed to
represent him. In such circumstances, the Union's
limited contacts with Respondent may merely
indicate that the Union and Respondent enjoyed a
harmonious relationship and that the Union was
given no reason to file written grievances. Absent any
expression of dissatisfaction with the Union by the
employees themselves, the Union's limited contacts
with Respondent prior to June are no gauge of the
level of employee support for the Union.
Moreover, the timing of Respondent's alleged
doubt about the Union's majority's status is curious.
Thus Respondent claims that it began to harbor
doubts about the Union's majority status during the
month immediately following its withdrawal from
the multiemployer bargaining unit" and its an-
nouncement that it would bargain individually with
the Union about a new contract. Also, this alleged
doubt came in the face of renewed activities by the
Union on behalf of the employees. In addition to the
Union's organizational drive, the record discloses
that the Union also exchanged correspondence with
Respondent, inspected working conditions, received
employee complaints, filed two grievances in July
and two more thereafter, and solicited suggestions
for bargaining demands. Hence, Respondent's assert-
ed reliance on the Union's alleged inactivity prior to
June to support withdrawal of recognition from the
Union in October is contrary to the intervening
events; namely, Respondent's letter to the Union in
August that it would bargain about a new contract
tO As the Administrative Law Judge points out, the trusteeship is an
internal union matter and is not probative of whether or not the Union
represented a majority of Respondent's employees.
nI Respondent's withdrawal from the multiemployer bargaining unit is of
no significance in rebutting the presumption of continued majority support
and the Union's activity in administering its agree-
ment with Respondent during the period July
through October.
2. Certain questions from employees about the
Union: The fact that a number of employees asked
Respondent's supervisors what would happen if the
Union "got in" would, at most, show that some
employees did not know that the Union already
represented the employees and that the Union had a
contract with Respondent. The employees asking this
question did not indicate to Respondent, however,
that they did not want the Union to represent them.
Indeed, such an inference is untenable in light of the
total absence of record evidence indicating dissatis-
faction with the Union by Respondent's employees.
Moreover, such informational inquiries would be
entitled to little weight as indicating the attitude of
employees other than those asking the question. It is
clear that only a small percentage of Respondent's
employees spoke to Respondent about the Union.
3. Newspaper reports, remarks by an agent for
another union, comments by a Board agent, and the
high turnover of unit employees: The law is clear that
new employees are presumed to support a union in
the same ratio as those whom they replaced.' 2 Here,
there is no independent evidence from which it may
be inferred that Respondent's new employees did not
want the Union to represent them. Hence turnover of
Respondent's employees cannot be used, by itself, as
a basis for a belief that the Union lost majority
support.
Two newspaper reports asserted, in effect, that the
Union represented less than a majority of the
employees covered by the multiemployer contract.
The short answer to the newspaper reports is that
they dealt with industry conditions in the Tahoe-
Reno area generally rather than with the situation in
the unit of Respondent's employees. Indeed these
newspaper reports pertain to the "employees covered
by the multiemployer contract" and not to the unit of
Respondent's employees. This difference is signifi-
cant, especially because Respondent had earlier
voluntarily removed itself from the multiemployer
unit and had acknowledged by its letter of August 5
that it would bargain individually with the Union
about a new contract.
But equally important, it is plain that the figures
contained in the newspaper reports referred to "dues
paying members." Thus the articles dealt with union
membership rather than union support. That Respon-
dent understood that the articles referred to union
for the Union. See fn. 9. Indeed, to hold otherwise would be in effect to
allow Respondent to create by its own actions a factor to challenge or rebut
the presumption.
12 Laystrom Manufacturing Co., supra; see also Emerson Manufacturing
Company. Inc., supra, and Terrell Machine Company, supra.
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership is demonstrated by its subsequent effort
to verify the number of dues-paying members; i.e.,
Respondent reviewed the LM-2 forms filed with the
U.S. Department of Labor and concluded that the
Union had between 1,000 and 1,800 dues-paying
members in the Tahoe-Reno area. It is well settled,
however, that: 13
· . . a showing as to employee membership in,
or actual financial support of, an incumbent
union is not the equivalent of establishing the
number of employees who continue to desire
representation by that union. There is no neces-
sary correlation between membership and the
number of union supporters since no one could
know how many employees who favor union
bargaining do not become or remain members
thereof.
Consequently, even if Respondent had a reasonable
basis for believing that a majority of its employees
were not union members or did not financially
support the Union, such knowledge does not estab-
lish a reasonable basis for believing that the Union
had lost majority support. 14
The Respondent also relies on comments made by
a Board agent and a representative of another union.
Like the newspaper reports, these two individuals
described industry conditions in the Tahoe-Reno
area. Neither of these outside parties had any
personal knowledge of the Union's support among
Respondent employees. Thus, these offhand opinions
based on multiple hearsay have little or no probative
value.
Although the Administrative Law Judge found that
not one of the factors relied on by Respondent
supports a good-faith doubt, he nevertheless found
that a web of circumstances justified such doubt.
However, the web contains not a single thread of
evidence that the employees themselves had told
Respondent that they no longer wanted the Union to
represent them. Indeed, the web contains not a single
thread of evidence that reflects or even purports to
reflect the sentiments of the employees themselves -
any unit employee much less a majority of the unit
employees - on the question of union representa-
tion. Absent such threads, the web of circumstances
is like the Cheshire cat's grin - nothing behind it.
Accordingly, we find that the evidence relied on by
the Respondent, standing alone or in its totality, fails
to establish a reasonable doubt based on objective
considerations that a majority of the unit employees
no longer wanted the Union to represent them.
13 Orion Corporation, 210 NLRB 633 (1974); Terrell Machine Company.
supra.
14 Moreover, Respondent's attempt to use low union membership as a
Hence, we find that Respondent has violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union.
In view of this finding, we further find that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to make available to the Union, upon
request, a list of employee names and addresses.
Respondent's refusal to provide this information was
predicated on its doubt that the Union represented a
majority, which led to its withdrawal of recognition.
As we have found the withdrawal unlawful, we also
find the refusal unlawful and shall order the
Respondent to supply the information requested.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe
Hotel, Stateline, Nevada, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Hotel,
Motel, Restaurant Employees and Bartenders Union
Local No. 86, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of the employees
in the appropriate bargaining unit described below,
with regard to wages, hours, working conditions, and
other terms and conditions of employment:
All employees employed by Respondent in its bar
and culinary operations at its Stateline, Nevada,
operations, excluding all other employees, guards
and supervisors as defined in the Act.
(b) Failing or refusing to supply Hotel, Motel,
Restaurant Employees and Bartenders Union Local
No. 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, with a list of unit
employees' names and addresses, which information
is necessary for the Union to fulfill its collective-
bargaining obligations.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collec-
tively with Hotel, Motel, Restaurant Employees and
Bartenders Union Local No. 86, Hotel & Restaurant
Employees & Bartenders International Union, AFL-
CIO, as the exclusive bargaining representative in the
gauge of union support is especially tenuous because Nevada is a "right to
work" State. See Wald Transfer & Storage Co. and Westheimer Transfer &
Storage Co., Inc., 218 NLRB 592 (1975), enfd. 535 F.2d 657 (C.A. 5, 1976).
1096
SAHARA-TAHOE HOTEL
appropriate unit described above, with regard to the
wages, hours, working conditions, and other terms
and conditions of employment of the unit employees,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Upon request provide the above-named Union
with a list of the names and addresses of all unit
employees.
(c) Post at its Stateline, Nevada, place of business,
copies of the attached notice marked "Appendix".' 5
Copies of the 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 the 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 here-
with.
i' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and, upon request, bargain
with Hotel, Motel, Restaurant Employees and
Bartenders Union Local No. 86, Hotel & Restau-
rant Employees & Bartenders International
Union, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropriate
unit described below, with regard to wages, hours,
working conditions, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate unit is:
All employees employed by the Employer in
its bar and culinary operations at its State-
line, Nevada, place of business, excluding all
other employees, guards and supervisors as
defined in the Act.
WE WILL, upon request, provide the above-
named Union with a list of the names and
addresses of all the unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
SAHARA-TAHOE CORP.,
D/B/A SAHARA-TAHOE
HOTEL
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at South Lake Tahoe, California, on
September 9, 10, 11, 12, 16, 17, and 18, 1975. The charge
and five amended charges were filed by Hotel, Motel,
Restaurant Employees & Bartenders Union Local No. 86,
Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO, herein called the Union, on October 8,
1974, November 19, 1974, December 3, 16, and 18, 1974,
and May 30, 1975. The complaint, which issued on May 30,
1975, alleges that Sahara-Tahoe Corporation d/b/a Saha-
ra-Tahoe Hotel, herein called Respondent, violated Section
8(aX)I), (3), and (5) of the National Labor Relations Act, as
amended.
ISSUES
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by:
(a) Granting to its employees increases in vacation,
holiday, and meal benefits in order to induce them to
abandon their support for the Union.
(b) Granting disability insurance benefits to its employ-
ees in order to induce them to abandon their support for
the Union.
2. Whether Respondent violated Section 8(aX5) and (1)
of the Act by:
(a) Unilaterally instituting dental and vision care
insurance benefits, meal benefits, and disability insurance
benefits without bargaining with the Union.
(b) Unilaterally changing conditions of employment by
prohibiting union representatives from entering the base-
ment area of its premises for the purpose of investigating
the standing of employees or job conditions as permitted
by its collective-bargaining contract with the Union.
(c) Refusing upon request to supply the Union with a list
of the names and addresses of employees in the bargaining
unit.
3. Whether Respondent violated Section 8(aX3) and (1)
of the Act by laying off Dolly Smith because of her
activities on behalf of the Union.
4. Whether Respondent violated Section 8(aX5) and (1)
of the Act by refusing to bargain with and by withdrawing
recognition from the Union.
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. Extensive
briefs, which have been carefully considered, were filed on
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of the General Counsel, Respondent, and the
Charging Party.
Upon 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 with a place of
business in Stateline, Nevada. It is engaged at that location
in the operation of a combination hotel, bar, restaurant,
and gambling casino. During the year immediately preced-
ing issuance of complaint, Respondent, in the conduct of
its business operations, received gross revenue in excess of
$500,000 and purchased and received goods valued in
excess of $50,000 directly from outside the State of Nevada.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.2
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent has collective-bargaining contracts with a
number of different labor organizations who represent
various categories of employees at its Stateline facility. 3
For many years Respondent had successive collective-
bargaining agreements with the Union covering its bar and
culinary employees. 4 The contracts covering those employ-
ees were negotiated by the Reno Employers Council,
herein called the Association,5 of which Respondent was a
member. Respondent has never had an individual contract
covering those employees but has been part of a multiem-
ployer bargaining unit. The last contract expired by its
terms on November 30, 1974.6 On August 2, 1974,
Respondent timely withdrew its membership from the
Association. On September 27, 1974, Respondent filed a
petition with the Board seeking an election. On October 29,
1974, Respondent notified the Union that it doubted the
Union's majority status and since then Respondent has
refused to negotiate a new collective-bargaining agreement
with the Union. The complaint alleges that during the
summer and fall of 1974 Respondent engaged in an
unlawful campaign to undermine and to discourage
I Certain errors in the transcript have been noted and are hereby
corrected.
2 See The Anthony Company, d/b/a El Dorado Club, 220 NLRB 886
(1975).
3 Respondent had contracts with the Engineers, the Painters, and the
Carpenters in addition to those it had with the Union.
4 Respondent still has a current separate collective-bargaining agreement
with the Union covering its hotel service employees.
5 The Association is a voluntary association of employers engaged in the
casino and other industries. It represents its employer-members in
negotiating and administering collective-bargaining agreements on behalf of
its employer-members with various labor organizations.
membership in the Union. Based on the issuance of the
complaint, Respondent's petition for an election was
dismissed.7
B. The Changes in Benefits
1. The changes that were made
The last contract between Respondent and the Union
which covered Respondent's bar and culinary employees
was effective by its terms from December 1, 1971, through
November 30, 1974. During the term of that contract,
Respondent made numerous changes, some of which were
substantial in amount, in the wages of covered employees.
The last of those changes was on August 19, effective
August 18, 1974. Respondent did not notify or bargain
with the Union concerning those changes. The Union did
not file a grievance concerning those changes nor are those
changes the subject of any unfair labor practice proceed-
ings. The changes were made pursuant to a clause in the
contract that provided as follows:
Article I. Section 6. Employer May Increase Benefits,
Privileges, and Wages Without Prejudice.
The Employer is granted the right to increase any
privileges, benefits or wages provided for by this
Agreement. In the event the Employer does increase
any such benefits, wages, or privileges he may, without
prejudice, reduce said benefits, wages or privileges at
any time he may choose to do so, provided that, under
no circumstances, will any employee covered hereunder
be paid, or given less than the minimum benefits,
wages, and privileges provided for herein.
During the term of the contract, Respondent had on a
number of occasions increased the pay of employees, but
until August 27, 1974, it had not made changes or added
benefits relating to vacation, holiday, meal, disability
insurance (also called income protection benefits), dental,
or vision benefits.
On August 27, 1974, Respondent distributed to its
employees a notice which said in part:
In keeping with management's policy to improve
benefits whenever possible, I am pleased to announce
the following additions to, or changes in, existing
benefits. This applies to all employees unless otherwise
noted herein. Benefits to be effective September 1,
1974:
I. Vacation Policy
2. Holiday Policy
3. Dental and Vision Care Insurance
I Nevada is a "right-to-work" state and the contract does not contain a
union-security clause.
I The dismissal letter, which was dated June 20, 1975, stated in part:
The undersigned . . .issued complaint on May 30, 1975, alleging, inter
alia, that the Employer has violated Section 8(aX5) and (I) of the Act
by refusing to bargain with the Union. Accordingly, it is concluded that
no question concerning representation exists and the petition is
therefore dismissed.
The petition is subject to reinstatement, if appropriate, upon the
petitioner's application after disposition of the unfair labor practice
proceeding.
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SAHARA-TAHOE HOTEL
4. Employer provided meals
* * *
Some of you, including hotel services, housekeeping,
painters, carpenters and engineers are covered by union
contracts which preclude us from making some of these
changes without first negotiating them through the
Union involved. We learned this the hard way because
the last time we increased wages for housekeeping and
hotel service employees, Culinary Union Local 86 (the
union representing those employees as well as the food
and bar employees) filed an unfair labor practice
charge with the National Labor Relations Board
protesting the unilateral wage increase. [The house-
keeping and hotel service employees are covered by a
different contract than that which is applicable to the
bar and culinary employees.]
Since some of the benefit increases are applicable to
almost all employees, all of you are urged to attend one
of the meetings.
Thereafter, meetings were held to explain the new benefits.
On August 28, 1974, Respondent distributed a memo to
"All Employees EXCEPT Room, Telephone Transportation,
Engineer & Maintenance Departments," describing a new
vacation program which was made effective as of July 1,
1974. Under that policy sick pay was combined with
vacation pay and the existing contract benefits were
increased.
By a memo dated August 29, 1974, to the same
employees with the same exclusions, the employees were
notified that Respondent was granting seven paid holidays
per year effective as of September 1, 1974. Prior to that
time employees in the bargaining unit had received four
holidays.
By a memo dated August 29, 1974, the same employees
with the same exceptions were notified that effective
September 1, 1974, each employee was to receive one free
meal during each 8-hour shift worked and an additional
meal if the employee worked 4 hours or more overtime.
Prior to that time there was no uniform policy with regard
to free meals and employees in different categories were
treated differently.
By a memo dated October 17, 1974, Respondent notified
all its employees that effective November 1, 1974, improve-
ments were being made in the existing medical insurance
plan by a reduction in the waiting period for eligibility and
by the absorption by Respondent of the entire cost of
insuring eligible dependents. The complaint does not allege
that this change was a violation of the Act.
By a memo dated November 18, 1974, all employees who
were covered by Respondent's group medical insurance
were notified that effective November 1, 1974, a disability
insurance plan was put into operation.s Prior to that time
no disability insurance was provided by Respondent.
R This plan was also referred to as an income protection plan.
9 Respondent has about 535 rooms and 6 restaurants. One of the
competitors. Harrah's, opened a 250-room hotel in the summer of 1974.
Another competitor, Harvey's, opened a new facility called Harvey's Inn,
which has 125 rooms.
The vacation, holiday, meal, disability, dental, and vision
plans were all put into effect by Respondent on or about
the dates indicated in the various memos.
2. The reasons for the changes
a. Background
William M. Dougall became general manager of Respon-
dent in February 1974. Respondent's employee comple-
ment varies considerably, with a peak of about 2,000
employees in the summer and a low of about 1,500
employees in the winter. In April or early May 1974,
Dougall, in anticipation of his first peak season, asked
Respondent's personnel director, Vesta Valentine, whether
they would have enough help during the upcoming busy
season. Valentine explained to him that there would be
more difficulty in obtaining employees than there had been
in prior years. She pointed out that the competition for
employees between Respondent and other hotel-casinos
would be more extreme because some of the competing
casinos had opened extensive new hotel facilities.9 She also
informed him that foreign nationals could not be hired as
they had in the past because of governmental restrictions.
In addition, she said that some of the competitors were
providing housing for the lower-paid employees. Dougall
and Valentine discussed the existing practice of taking
wage and benefit surveys for all competing establishments
every 6 months. He was informed by Valentine that such
surveys were made by calling the other companies and
obtaining the information. Respondent has raised wages in
the past because of those surveys.
b. Vacation benefits
Jess Hinkle is president of Del Webb Hotels Internation-
al, Respondent's parent corporation. On May 13, 1974,
Hinkle sent a memo to Dougall and the general managers
of seven other hotels in the Del Webb chain, setting forth a
new policy with regard to vacation and sick pay that was
applicable to "all employees not subject to collective
bargaining." 10
On June 3, 1974, Dougall sent a memo to Valentine
telling her that, pending the forthcoming labor negotiations
with the Carpenters and the Painters, he wanted to
commence the new vacation policy on July 1 and to
publish a notice to all employees on or about June 15.
Valentine did not publish the notice until August 28, 1974,
because of problems in getting accrued vacations pro-
grammed on computers. However, the new benefits were
made retroactive to July 1, 1974. The vacation policy was
to apply only to employees not subject to collective
bargaining, but as the new policy was equal to or better
than most of the vacation provisions of the collective-
bargaining agreements and Respondent believed that
under the bartender and culinary contract, as well as
certain other contracts, it could be adopted more generally,
the new policy was applied to most of Respondent's
'o This policy provided for 10 days' pay for I or more years' service; 15
days for 2 or more years: and 20 days for 6 or more years. Respondent's new
policy which was dated August 28, 1974. and made effective July 1, 1974.
granted the same benefits.
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, including the bartender and culinary employ-
ees. The new policy was applied to 1,866 persons employed
by Respondent (some of them had already received part of
the benefits provided for by the new policy) of whom 775
were bartender and culinary personnel.
c. Holiday benefits
In May 1974, Respondent was negotiating with the
Painters Union. The Painters requested eight paid holidays
instead of seven. Dougall, who was participating in those
negotiations, studied the holiday policies in effect through-
out the hotel and found that the purchasing area and
warehouse were getting four holidays, the administrative
area seven, and the bar and culinary workers four.
In June 1974, Valentine told Dougall that they were
going to have to do something to remain competitive in
obtaining employees. She told him that Harrah's was
already paying eight holidays and that Harvey's was
instituting a plan with eight paid holidays and overtime
after 40 hours a week.
Respondent raised the number of holidays from four to
seven on August 29, 1974, and made it effective September
1, 1974. The change in policy affected 1,788 persons
employed by Respondent, of whom 648 were bar and
culinary personnel.
d. Meal benefits
In late April or early May 1974, Dougall met with
Valentine and Assistant General Manager Atchley and
they discussed Respondent's policy with regard to furnish-
ing the employees meals. Dougall ascertained that there
was a very erratic policy, with some classifications of
employees getting all their meals free while others were
receiving no meals." He also found out that different
categories of employees ate at different locations. At that
time Dougall decided to try to provide meals for all the
employees and to furnish a central location where they
could eat. The existing employees' cafeteria could not
handle all the employees. He decided to refurbish the
employees' cafeteria so that it could accommodate all the
employees and to provide meal benefits when the cafeteria
was completed. He ordered material for the cafeteria in
June and July 1974, but the construction was not
completed until on or about September 1, 1974. Before the
completion of the cafeteria, Valentine once again told
Dougall of the problem of obtaining employees and said
that it might be more competitive to give the employee a
free meal rather than an increase in pay. On August 29,
1974, the new meal policy was announced to employees
and made effective September 1, 1974. That policy affected
1,040 persons employed by Respondent, of whom 154 were
bar and culinary personnel.
11 Cocktail waitresses and bartenders were allowed to buy 60-cent meal
tickets.
12 As the improvement in the group medical insurance plan was not
alleged as a violation of the Act, the background of that change is not fully
set forth. However, in brief, during the summer of 1974, Valentine found
e. Disability insurance
In May 1974, Dougall spoke to Hinkle, the president of
Del Webb Hotels International, about the problem created
by the variation in fringe benefits throughout the hotel
system. He requested permission to investigate the possibil-
ity of such benefits as disability insurance and dental care.
Hinkle told him to go ahead and investigate the cost.
Dougall then requested Valentine to obtain cost estimates
for various programs and in July he relayed the informa-
tion to Hinkle. Valentine had recommended to Dougall
that an income protection plan (disability insurance) be
obtained. Both Harrah's and Harvey's had existing
disability insurance plans. A disability plan was announced
on November 18, 1974, and made effective as of November
1, 1974. It covered 1,634 persons employed by Respondent,
of whom 625 were bar and culinary personnel.
f. Dental and vision insurance
During the negotiations with the Painters in May 1974,
Dougall discussed with Hinkle the possibility of making
changes in fringe benefit plans. In June 1974, they
discussed the possibility of including Respondent's em-
ployees in a dental and vision insurance plan which
covered certain employees in Las Vegas through the
Nevada Resort Association. Hinkle was a trustee of that
plan. Hinkle said that he would see what he could do about
lumping Respondent's employees into that plan. Hinkle
was successful in that effort, and the employees were
notified on August 27, 1974, that the plan was effective as
of September 1, 1974. Prior to that time, Harrah's had also
decided to establish a dental and vision plan. Harrah's plan
went into effect in November 1974. Respondent's dental
and vision insurance covered 1,725 persons employed by
Respondent, of whom 648 were bar and culinary person-
nel.'2
3. The union activity
A detailed analysis of the union activity that took place
at Respondent's premises is set forth in subsequent
sections. The pertinent matters can be briefly stated.
Respondent's bar and culinary employees were covered for
many years under a multiemployer collective-bargaining
contract to which Respondent and the Union were parties.
Until June 1974, the Union was something less than
vigorous in policing the contract or in making its presence
known at Respondent's facility. In early June 1974,
representatives of Respondent attended a meeting of the
Association in Reno in which they were told that the
Union was going to be put under a trusteeship and that a
major effort was going to be made to strengthen union
membership. The trusteeship was imposed on the Union on
June 7, 1974. Shortly thereafter, the Union began to
become extremely active in relation to Respondent. A
number of union business representatives came to Respon-
dent's premises and spoke to employees. The employees
that the competitors' group medical insurance plan had better major
medical benefits than Respondent's and the employees were notified on
October 17, 1974, that effective November 1, 1974, Respondent's plan was
enlarged. That change affected 1,723 persons employed by Respondent, of
whom 648 were bar and culinary personnel.
1100
SAHARA-TAHOE HOTEL
themselves spoke about the Union to each other and to
supervisors. There were discussions concerning what
demands were to be made at the anticipated contract
negotiations. In general, the Union assumed a much more
active role than it had in the past, and Respondent was
aware of that change in direction. The first improvement in
fringe benefits was announced on August 27, 1974, and, as
set forth above, a number of other benefits were granted to
employees during the summer and fall of 1974. Though a
number of wage increases had been granted during the
period of the last contract, pursuant to Respondent's right
to do so as set forth in the contract, there had been no prior
increases in fringe benefits during that period.
On August 30, 1974, Respondent issued a newsletter to
all employees in which it stated, "[W]e are not required to
agree to any of the demands made by the Union during
those negotiations." However, when the newsletter is read
as a whole, it does not appear to be an attempt to contrast
the new fringe benefits with what the Union could do for
the employees. Instead, it appears to be an attempt by
Respondent to counter what it believed to be promises
made by the Union to employees. The newsletter states in
part:
The Union is also promising employees that they will
receive the benefits contained in the Las Vegas
Culinary contract or that the conditions of employment
contained in that contract will be applicable here.
Remember, the Hotel already has two contracts with
Local 86 and only the terms and conditions contained
in those agreements are binding in this hotel. When
those contracts expire, we will sit down and negotiate
with the Union in good faith as required by Law if the
union represents a majority of our employees. Every-
thing is negotiable; however, we are not required to
agree to any of the demands made by the Union during
the negotiations.' 3
4. Analysis and conclusions with regard to the
changes in benefits
a. The alleged 8(a)(l) violations relating to benefits
Paragraph VI(a) and (b) of the complaint allege that
Respondent announced and granted improved or new
benefits relating to vacation, holiday, meals, and disability
insurance in order to induce employees to abandon their
support for the Union. The matters set forth in that
paragraph are alleged in the conclusionary portions of the
complaint as constituting a violation of Section 8(a)() of
the Act. Other sections of the complaint deal with
unilateral changes in benefits that are alleged to be in
'a The newsletter also states:
As I am sure most of you are aware, there has been a substantial
increase in union activity here at the Lake and within many of the
hotels including the Sahara Tahoe. Most of this activity seems to have
been generated by the Hotel-Motel-Restaurant Employees and Barten-
ders Union Local No. 86 and the fact that Mr. Bramlet. an
International trustee for the Local Union, has appeared on the scene.
A number of our employees have asked members of management
what our position is and why we have not taken some action to make
our position known. The plain and simple reason we have not is
because we are precluded by law from doing so. Local Union No. 86 is
violation of Respondent's duty to bargain and therefore of
Section 8(aX5) of the Act. The only issue presented by
paragraph VI of the complaint is whether the benefits were
granted "in order to induce employees to abandon their
support for the Union."
The benefits were granted at a time when the Union was
extremely active with regard to Respondent's employees.
The changes were granted while a collective-bargaining
agreement was in effect, and both before and after
September 27, 1974, when Respondent filed a petition for
an election. The paragraph of the complaint under
consideration does not allege that the existence of the
contract barred a lawful granting of the benefits. However,
even if the benefits were permitted by the contract,
Respondent could not grant them if the benefits were made
in order to induce employees to abandon their support for
the Union.
Dougall became general manager for Respondent in
February 1974. In May or early June 1974, he renewed
contracts with the Carpenters and Painters. In late April or
early May, he became aware of potential difficulties in
staffing for the busy summer season. The background for
all the changes in question is set forth in detail above. All
the changes bear a reasonable relation to Respondent's
legitimate business needs. Though some of the changes did
not become effective until after Respondent's busy season
ended, they had all been in the planning stages at earlier
dates. Throughout the effective period of its collective-
bargaining contract, Respondent had granted wage in-
creases pursuant to the terms of the contract. The last of
these was effective on August 18, 1974. Viewing the record
as a whole, I do not believe that an inference is warranted
that Respondent granted the fringe benefits in question in
order to undermine the Union. Rather, it appears that
managers before Dougall had relied solely on wage
increases to attract and retain employees and that Dougall
preferred an approach that balanced wage increases and
fringe benefits. There is no indication that Respondent
attempted to capitalize on the fringe benefits in an attempt
to discourage union membership. In sum, I find that the
General Counsel has not established by a preponderance
of the credible evidence' 4 that Respondent violated the
Act as alleged in paragraph VI of the complaint and I shall
recommend that that section of the complaint be dis-
missed.
b. The alleged 8(a)(5) and (1) violations relating to
new benefits
Paragraph XV(c) and (d) of the complaint alleges that
Respondent refused to bargain with the Union in violation
already the collective-bargaining representative and has been for some
time for employees in our bar and culinary operations as well as our
hotel service and housekeeping departments. Neither the law or the
contracts signed by Local 86 and the hotel require you to become a
member of that Union. However, as long as a majority of our
employees want to be represented by the Union we must continue to
recognize the Union and the hotel cannot take any affirmative steps to
interfere with or destroy the majority status of the Union. In plain and
simple language, the hotel is precluded by law from taking sides.
i4 In this connection. I have considered the evidence relating to other
alleged unfair labor practices as is set forth in detail below.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(a)(5) and (I) of the Act by unilaterally
instituting dental, vision care, and disability insurance as
well as meal benefits without prior notification or consulta-
tion with the Union.
Article I, section 6, of the contract which was in effect
from December 1, 1971, through November 30, 1974,
provided that: "The Employer is granted the right to
increase any privileges, benefits or wages provided for by
this Agreement." 15 There are no provisions for dental,
vision, or disability insurance or for meal benefits in that
contract. Those benefits were announced and granted to
employees by Respondent without any notification to or
bargaining with the Union. The General Counsel argues
that article I, section 6, of the contract has no application
to the grant of benefits set forth in paragraph XV(c) and
(d) of the complaint because those benefits were newly
created and were not an increase in "benefits ... provided
for by this Agreement."
I believe that the General Counsel's reading of the
contract is unduly restrictive. The contract provides for a
number of benefits. Anything additional granted to
employees is an increase in those benefits. For example, if
two benefits are provided in a contract, a third benefit,
even if it is entirely new, is an increase in the benefits
already provided for by the contract. As the heading of
section 6 states: "Employer May Increase Benefits,
Privileges and Wages without Prejudice." I do not believe
that the contract can be fairly read to mean that the
Employer could freely raise wages in any amount but was
narrowly restricted in the type of benefits it could add.
In addition, the institution of the dental, vision, and
disability insurance was permitted by another section of
the contract. Article II, section 4A, of the contract
provided:
The Employer agrees that all employees covered by this
Agreement shall be entitled to and shall receive the
same insurance benefits provided for the other employ-
ees of the Employer working at the establishments
and/or locations referred herein.
All of the insurance benefits granted to the bar and
culinary workers were also granted to a large number of
other employees working at Respondent's establishment.
The contract not only allowed Respondent to grant the
same insurance benefits to the bar and culinary employees
but required that they be granted.
As all of the benefits mentioned in paragraph XV(c) and
(d) of the complaint were permissible under the contract
then in force between the Respondent and the Union, I
find that the General Counsel has not established by a
preponderance of the credible evidence that Respondent
refused to bargain by instituting those changes. I shall
therefore recommend that paragraph XV(c) and (d) of the
complaint be dismissed.
C. The Allegation That Respondent Violated Section
8(a)(5) and (1) by Unilaterally Changing Conditions
of Employment by Prohibiting Union Representatives
From Entering the Basement Area
1. Background
Article I, section 4, of the contract provided:
Business Representatives of the Union shall be permit-
ted to investigate the standing of employees or job
conditions at any time; provided, however, that no
interviews shall be held during the rush hours. Such
interviews shall not interfere with the employee's
service to the customers.
As indicated above, union business representatives spent
a substantial amount of time at Respondent's premises
during the summer and fall of 1974. That activity resulted
in an exchange of correspondence between Respondent
and the Union. On September 19, 1974, Dougall on behalf
of Respondent wrote a letter to Union Business Represen-
tative Tucker which stated in part:
It has recently come to my attention that union
organizers have come on to the premises of the hotel
and have been seeking information from supervisors
and other employees of the hotel. I realize that under
collective bargaining agreements with your union that
business representatives of the union need not seek
permission before conducting interviews with employ-
ees when "investigating the standing of employees or
job conditions." However, it is my feeling that common
courtesy would dictate that they make their presence
known to management. It is also my feeling that if paid
organizers are on the premises soliciting employees to
join the union such activity is not in purview of the
provision quoted above.
On September 30, 1974, Union International Trustee
Bramlet wrote to Dougall with reference to a grievance
concerning the Union's claim that security officers were
restraining union business representatives from investigat-
ing the standing of employees and job conditions.
On October 1, 1974, Respondent's Assistant General
Manager Atchley wrote to Bramlet pointing out the
existing no-solicitation rule in effect at the hotel and stating
in part:
Obviously, there is a fine line between a business
representative conducting legitimate union business
and a paid organizer soliciting in violation of the hotel
policy. The problem is compounded by the fact that
numerous individuals claiming to be business represen-
tatives have presented "fill-in" business cards when
asked to identify themselves. Since anyone could insert
his or her name on such a card we have no sure way of
determining who is and who is not a duly authorized
business representative. Because of the uncertainty
created by the use of these cards, we must decline to
,' That provision is quoted in full above.
1102
SAHARA-TAHOE HOTEL
recognize them without some prior official communica-
tion from the Union identifying the bearer of the card
as a duly authorized business representative. Another
problem is that we know that some of the alleged
business representatives are in fact soliciting. In order
to determine whether the activities of the business
representatives are legitimate we intend to have your
representatives accompanied by security guard until we
are satisifed as to the purpose of the visit. This is not
intended to harass the Union nor do we view it as a
violation of the contract.
2. The incident in question
Howard Lawrence is a business representative and the
Union's chief executive officer in the Lake Tahoe area. In
early October 1974, Lawrence, together with Union
Representative Bobby Swan, went to the basement area of
Respondent's premises where the employee cafeteria was
located. That area is not open to the public. At that time
the employees' cafeteria was closed for remodeling and
employees were eating at an adjacent employees' lounge.
Lawrence credibly testified that he went to that location to
inspect working conditions, to receive complaints from
employees, and to talk to current and potential members of
the Union. A uniformed security guard approached the
business representatives and asked them if they were
employees of Respondent. They identified themselves as
business representatives of the Union. The guard told them
that the area was limited to employees and that they would
have to leave. Lawrence replied that they had been there
before without any problem and that they had a right
under the contract to be there. The guard replied that they
still had to leave. Swan said that they would leave and get
further clarification on the issue. Lawrence and Swan then
walked to the elevator where they were met by some
security personnel, including John Schott, Respondent's
chief of security. Schott asked them whether they were
employees and what they were doing there. Lawrence
replied that they were business representatives and they
were there to talk to employees and inspect working
conditions. Schott said that the back area was closed to
everyone except employees and that they were "86'd" from
there. Lawrence asked what was meant by that and Schott
replied that they were not allowed in the back areas, that
they could go to the public areas, and that if they did go to
the back areas, action would be taken against them. The
business agents then left.' 6
Lawrence returned to the hotel a week later and went
into the main kitchen area. He went to the chief chef's
office but the chief chef was not there. He then spoke to
some employees in the kitchen where he was approached
by a supervisor who asked him what he was doing there.
Lawrence gave the supervisor a business card and said he
was there to enforce the contract, see conditions, and
receive complaints. The supervisor said that it was all right
and walked away. Lawrence then went into the employees'
I6 These findings are based on the credited testimony of Lawrence.
Schott testified to a somewhat different version of the conversation. He
averred that he asked them what they were doing in a nonpublic area; that
Lawrence answered that they had a contractual nght to be there; that Schott
replied that he did not think so and that they were not supposed to be in that
lounge and spoke to other employees concerning new
contract proposals. From there he went to the bake shop
where he was approached by Joseph Tuoto, Respondent's
assistant food and beverage manager. Tuoto asked him
what he was doing there and again Lawrence said that he
was there to inspect working conditions and receive
complaints from employees. Tuoto said that he did not
believe that Lawrence had any right to be in that area and
that he thought the witness had to have permission from
management to be there. Lawrence answered that he had
tried to contact the chief chef before going into the kitchen
area, but the chief chef was not in his office. Lawrence also
said that in the past he had talked to the chef and had not
had any problems. Lawrence and Tuoto then went into
Tuoto's office where a telephone call was placed to Tony
Atchley, Respondent's assistant general manager. After
completing his telephone call, Tuoto told Lawrence that
Lawrence was free to go anywhere in the hotel that he
chose but that a security guard was going to accompany
him. Lawrence said that the employees would not talk to
him freely with the security guard standing by. Tuoto
merely repeated that he was free to go anywhere he wanted
to, but the security guard was going to accompany him.
Lawrence then left in the company of a security guard and
spoke to some of the employees.
3. Analysis and conclusions
Paragraph XV(a) of the complaint alleges that Respon-
dent unilaterally changed the conditions of employment of
its employees by prohibiting union representatives from
entering the basement area of its premises for the purpose
of investigating the standing of employees or job condi-
tions as permitted by the contract. The complaint does not
allege that Respondent's insistence that a security guard
accompany the business representative constituted a
violation of the Act. The fourth paragraph of the fifth
amended charge alleges that Respondent violated the Act
by engaging in surveillance of the Union's business
representatives and listening to their conversations with
employees. That allegation of the charge was dismissed by
the Regional Director for Region 20 of the Board. On
appeal to the General Counsel that dismissal was affirmed.
In the letter affirming the dismissal, the Acting General
Counsel stated that the outstanding complaint alleged that
the prohibition of business agents from certain areas of the
casino violated Section 8(aXS) of the Act, but "the
Employer was not deemed to have violated Section 8(a)(1)
by initially assigning security guards to follow and observe
Union agents on the premises." Respondent, therefore, has
clearly been put on notice that the complaint was not
intended to allege that a violation was committed when
Respondent assigned security guards to follow business
representatives and Respondent had no obligation to
produce evidence to meet such an allegation.
Business Representatives Lawrence and Swan had the
right under the contract to visit the cafeteria area in the
area; and that Swan then said that they were going up to see Assistant
General Manager Atchley. Schott denied that he said anything about the
business agents being "86'd". Lawrence impressed me as an extremely
credible witness with an excellent memory. I believe that his recollection of
the events was more accurate than that of Schott.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basement of Respondent's premises. Lawrence's credited
testimony establishes that they visited that area in early
October 1974 for purposes that were permitted under the
contract. Respondent has adduced no evidence to indicate
that they abused their contract rights during that visit.
While they were there, a uniformed guard and then
Respondent's chief of security, who was a supervisor, told
him that he had to leave that nonpublic area. However, I
week later, when Lawrence returned to a nonpublic area in
the kitchen, the matter of his right to access was brought to
the attention of higher management officials. After Tuoto
questioned Lawrence's right to be in the kitchen area, the
matter was referred to Assistant General Manager Atchley
and Lawrence was advised that he could go anywhere in
the hotel that he chose. Lawrence was given full access to
both public and nonpublic areas. Though Respondent did
require a security guard to accompany him, the complaint
does not allege that requirement to be a violation of the
Act. Initially, security guards did improperly limit the
contractual access rights of union business agents. How-
ever, a week later a similar incident was brought to the
attention of higher management and a clear policy was
enunciated that allowed full access rights to the business
agents. Under these circumstances, I do not believe that it
can fairly be said that Respondent "unilaterally changed
the conditions of employment" by prohibiting union
representatives from the basement area. It was simply a
mistake in applying company policy by the security force
which was quickly corrected by higher officials. I shall
therefore recommend that paragraph XV(a) of the com-
plaint be dismissed.
D. The Layoff of Dolly Smith
I. The circumstances of Smith's hire, union
activity, and layoff
Dolly Smith worked for Respondent as a cocktail
waitress from 1970 to about April 1973, when she
voluntarily left for personal reasons. During the first few
years of that employment, she was a member of the Union,
but before she left Respondent's employ she dropped out
of the Union by neglecting to pay her dies. Smith was
reemployed for a short time in 1973 and then she once
again voluntarily left. She was reemployed for a third time
as a cocktail waitress on October 11, 1974. On November
17, 1974, she was laid off. That layoff is alleged in the
complaint as a violation of Section 8(a)(3) and (1) of the
Act.
On or about September 28, 1974, some weeks before her
last hire, Smith went to Respondent's premises to visit
friends. At that time she was living in Las Vegas. While she
was at the casino, she spoke to Respondent's general
manager, William Dougall. Though Dougall had only been
I These findings are based on the credited testimony of Dougall. Smith's
testimony concerning that conversation was somewhat different. She
averred that Dougall asked her if she was coming back to the Lake; that she
said that she would like to if she had a job; and that he replied: "ifyou want,
you tell them that I said to give you the first available job. If I can do
anything to help you, I will, and you don't have to be worried, you always
have a job with us." She also averred that he told her to speak to Joe Tuoto,
the bar manager. Dougall impressed me as a forthright and candid witness
with a good memory for detail. My observation of Smith as she testified and
general manager since February 1974, he knew Smith from
her prior employment there. Dougall asked her where she
was living and she replied that she was living in Las Vegas
and that she would like to come back to Lake Tahoe. He
asked her if she had tried getting a job in Las Vegas and
she answered that it was a slow time of year and there were
a lot of people out of work. She also said that she would
like to come back to Lake Tahoe if she could get a job.
Dougall then told her that she could have the next
available job as a cocktail waitress.'?
The same day, Smith spoke to Joseph Tuoto, the
assistant food and beverage manager. She told Tuoto that
Dougall had said that he (Dougall) was in favor of her
coming back to work if they had a job opening. Tuoto said
that there would be no problem and that he would check
on it and put her on the schedule.18
On October 8, 1974, Smith filled out a written applica-
tion for employment and on October 11 she began work.
She was assigned to work in the gambling area (called the
pits) on the day shift with Sundays, Mondays, and
Tuesdays off. That was the work area, shift, and scheduling
she had requested. The pit area was considered particularly
desirable because the largest tips (called tokes) were
received there. Before she was employed, Tuoto checked
with Assistant General Manager Atchley to see if there was
any reason Smith should not be reemployed. Respondent's
standard practice is to make such inquiries concerning
rehires. Atchley told Tuoto that she was eligible for rehire.
Respondent's prime business season is June through
September. However, because a large number of employees
return to college each fall, there are generally not many
layoffs until late October or November and the need for
employees depends on such factors as what entertainment
is being offered and how busy the hotel expects to be at a
particular time. Elvis Presley was scheduled to start a 4-day
engagement on October 11, 1974, and Presley usually drew
extremely large crowds. Respondent expected to be busy
about that time. Beverage Manager James Wilcox was the
supervisor who actually signed Smith's hire papers. He
credibly testified that Smith was a good cocktail waitress
and she was assigned to the pits because she was well
qualified. Respondent's records show that 11 cocktail
waitresses were hired between September 11 and 29, 1974,
and that one was hired as late as November 15, 1974. In
general, the number of cocktail waitresses varied from
about 50 to 85.
Shortly after she was reemployed on October 11, 1974,
Smith rejoined the Union and became active on its behalf.
Those activities took place both on and off Respondent's
premises.
In late October, Smith attended a Halloween party at the
home of one of the cocktail waitresses. She brought Union
Business Agents Howard Lawrence, Bobby Swan, and
her testimony read as a whole, led me to the conclusion that, even when she
was trying to be candid, she had a tendency to exaggerate and had difficulty
in distinguishing between what she wanted to hear and what was in fact
said. As between Dougall and Smith, I credit Dougall.
Is These findings are based on the credited testimony of Smith. Tuoto in
his testimony denied that Smith said anything about a prior conversation
she had with Dougall. Dougall had promised Smith the next available job
and it is most improbable that Smith would have refrained from mentioning
that to Tuoto. I therefore do not credit Tuoto in that regard.
1104
SAHARA-TAHOE HOTEL
Audrey Hewitt with her. About half of the employees in the
bar department attended the party. She introduced Law-
rence and Swan to the employees as union representatives
and said that they could answer questions. She also told the
employees that the Union was giving a party at an
establishment called the Snowshoe and that they were all
invited to discuss the Union and sign if they wanted to.
That party was held and some of the employees came.
After the party, Smith went to Respondent's premises with
Howard Lawrence and they had some drinks at the bar. At
that time she introduced Lawrence to cocktail waitresses
and to some of the pit bosses. The pit bosses are
supervisors who watch over the dealers at the gambling
tables. She also introduced Lawrence to Joe Scalise, the
assistant bar manager. Thereafter, while she was working,
she had numerous conversations with Pit Bosses Bud
Rains, Loyle Borden, and Elio Martini. Even though they
were supervisors, she spoke to them because she thought
they were her friends. She told them that she was trying to
help sign up people for the Union.' 9
Smith also spoke to a number of employees about the
Union while she was working. One day in the early part of
November, Smith spent between 11 a.m. and 7 p.m. in an
employees' lounge on Respondent's premises. During that
time she signed up 10 or 15 employees for the Union. While
she was there, supervisors came in and out of the
employees' lounge. In the lounge she also handed out
about a hundred invitations to a party that the Union was
to hold on November 12, 1974. She told the employees that
a union representative was going to be there to answer their
questions, to sign up those who wanted to join, and to take
contract proposals. She also handed out invitations in the
hotel when she was off shift. A day or 2 before the
November 12, 1974, party, Tom Robinson, a bar stock
supervisor, told her he heard there was going to be a party
and asked why they were not invited. She said that they
were welcome to come if they wanted to and that it was for
everyone. Robinson did not come to the party, but
afterward he asked Smith how the party went. The party
was held on November 12, 1974, and 35 or 40 employees
went to it.
On November 13, 1974, Smith was sitting with another
cocktail waitress in a bar of the hotel. The bar manager,
Jim Wilcox, was sitting at the bar a few feet away when
another cocktail waitress called across the room asking
19 This finding is based on the credited testimony of Smith. Rains,
Borden, and Martini, in their testimony, all denied such conversations.
Though I have some reservations as to whether Smith was always candid, I
was totally unimpressed with the testimony of those three pit bosses. Their
demeanor as well as their testimony convinced me that they were more
concerned with not becoming involved with the situation than they were
with truthfully testifying concerning events they observed.
20 These findings are based on the credited testimony of Atchley. Smith
testified that Atchley told her that he did not want any union representative
sitting at their best ringside seats, that all of the other employees would see
that "bitch" sitting there, and that, if Hewitt did sit there, he would have to
move them to the back of the room. Atchlcy impressed me as a very careful,
tight-lipped person who would be very circumspect in his conversations with
employees.
21 This finding is based on the credited testimony of Atchley as
corroborated by Miller. Smith's version of the conversation was considera-
bly different. She averred that Miller was sitting alone in the bar when she
approached him and that Miller said that Atchley had chewed him out for
giving her complimentary tickets when the union representative was going
whether she could give Smith her initiation fees. Smith
motioned for her to be quiet because Wilcox was sitting
there.
On November 14, 1974, Respondent held a boxing
match in its High Sierra Theater. Before the fight, Smith
had received some complimentary tickets from the fight
promoter, Bill Miller. Smith arranged to attend the fight
with Union Business Representative Audrey Hewitt. When
Smith went into the High Sierra Theater, she told the
maitre d' that Audrey Hewitt and some friends were
supposed to meet her and asked that they be shown to her
table. A security guard was standing nearby and he asked
her whether Hewitt was working for the Union. Smith
answered that Hewitt was. Smith then went to her booth,
which was a ringside table. Those tables are ordinarily
reserved for company executives and important guests.
While Smith was at the table waiting for Hewitt, the maitre
d' or his assistant told Assistant General Manager Atchley
that Smith was a guest of Bill Miller and that Audrey
Hewitt was joining Smith. Atchley went to Smith's table
and asked her if Hewitt was joining her. When Smith
answered in the affirmative, Atchley said that he could not
allow that because Hewitt had been terminated from the
hotel for violating a no-solicitation policy and he did not
want her sitting down in the V.I.P. area as a guest of the
hotel. He also told her that, if Smith insisted on sitting with
Hewitt, he would be happy to move them further back in
the room. Smith replied that she would take care of it.
Hewitt did not join Smith.2 0
Later that evening after the boxing match, fight promoter
Miller was sitting in the Pine Cone Lounge, a bar in
Respondent's hotel, with Atchley. Smith came up to them
and said that she was sorry if there had been any
embarrassment and that she had not intended any. Atchley
said that Smith had shown bad taste in having Hewitt join
her down there but to forget about it. Atchley then left.21
On November 17, 1974, Bar Manager Wilcox called
Smith into his office. He told her that he had a very
unpleasant task to perform and that he was going to have
to lay her off as a seasonal layoff. She asked whether it had
anything to do with the Union and he replied, "Why, are
you in the union?" She replied that she was not. He told
her it was a seasonal layoff and that he had no choice. He
also said that Dougall had gone over the schedule with
him, that they had to make room for some of the people on
with her. She further averred that Atchley then walked over to them and
that she told Atchley that she did not mean to throw anything in his face.
According to Smith, Atchley said that all of the bar employees had signed
up for the Union; she replied that she did not think all of them had: he said
he did; and he asked her to help him and to tell the employees how crooked
the Union was. Atchley denied any such conversation. For the reasons set
forth above, I think it most unlikely that Atchley made the remarks
attributed to him. I credit his denial.
In an attempt to discredit fight promoter Bill Miller, the General Counsel
called Colin McKinley, who is employed by Culinary Workers Local 226.
McKinley had been asked by Union Business Representative Lawrence to
contact Miller concerning the forthcoming hearing in this matter. McKinley
testified that in a telephone conversation Miller said that he heard Atchley
tell Smith that he (Atchley) thought Smith had used poor judgment to invite
the union organizer to sit with her. Miller averred that in that telephone
conversation with McKinley it was McKinley who made a remark about
Smith bringing a union organizer and that he told McKinley that Atchley
talked about Smith bringing a terminated employee as a guest. I credit
Miller's recollection of the conversation.
!105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other shifts, that they had to cut back the number of
employees, and that they had to go by seniority. Wilcox
credibly testified that he was upset when he was talking to
Smith because he had only been bar manager for a month
and he had not become accustomed to laying off people.
22
On November 18, 1974, Smith returned to Respondent's
premises and spoke to Dougall. Smith was crying. She told
Dougall that she had been laid off. He apologized and said
there was nothing he could do about it. She told him that
she had spent about $1,000 to move her household goods
there and she was broke. He replied that he had about $200
in his pocket and that he would give it to her if she needed
money. She refused, saying she had too much pride to take
it.23
Dougall credibly testified that it is not uncommon for
him to loan employees money and that when he offered
Smith the $200 he thought of it as a gift which would
hopefully be repaid. He also averred that such loans
generally were repaid.
24
2. Respondent's explanation of the layoff
As is set forth above, Respondent's prime business
season is from June to September each year. There are not
many layoffs until late October or November because
many employees return to college. The number of employ-
ees needed depends to some degree on the entertainment
that is being offered and the anticipated business for
Christmas and other holidays, but, in general, layoffs
continue through the winter period until business picks up
for the summer. The employee complement varies from a
high of about 2,000 (of whom about 85 are cocktail
waitresses) to a low of about 1,500 (of whom about 50 are
cocktail waitresses).
In mid-October 1974, performances by Elvis Presley
generated a large amount of business for Respondent.
About November 1, 1974, Dougall informed his supervi-
sors that they were going to have to cut payroll in all areas.
About that time, several employees complained to Dougall
that they were not receiving enough work to make ends
meet. Dougall then asked his personnel manager, Valen-
tine, to run a survey to see how much time employees were
actually getting. He also asked Bar Manager Wilcox to find
out how many days the bartenders and cocktail waitresses
wanted to work.
2 5
On November 15 or 16, 1974, Dougall reviewed with Bar
Manager Wilcox the general managers daily report which
22 These findings are based on the credited testimony of Wilcox. Smith
corroborated some of Wilcox's testimony but added some additional
matters. She averred that Wilcox said that he had been awake all night and
he had to do something that was making him sick. She also testified that he
said that he did not want to do it and if there was any way he could get
around it he would. She further testified that she asked him why she was told
to move back to the Lake if she was going to be laid off; and that he said he
could not answer, but they were laying off by seniority, she was the last
hired and he had to let her go. I believe that Wilcox's version of the
conversation was more accurate.
23 These findings are based on the credited testimony of Dougall. Smith
testified to a somewhat different version of the conversation. She averred
that Dougall said that he was very sorry and she was one of the best cocktail
waitresses they had but there was nothing he could do about it; that she
asked why she was brought there and juiced into the pit (the witnesses used
the word "juice" to mean obtaining or retaining a job because of special
influence or patronage) just to be let go; that he replied that it was not
indicated that labor costs were running approximately 2
percent more, with relation to total sales, than they had the
prior year. Dougall pointed out that hardly anyone in the
bar was getting a full 80 hours in a 2-week period, that
fringe benefits cost approximately 50 percent of salary, and
that they had to try to work all the bar employees on a 40-
hour basis where possible in order to avoid fringe benefit
costs for an additional number of employees. After
discussing the matter, they decided that they had to cut at
least three cocktail waitresses and two bar men. There was
no mention of the names of the people who were to be laid
off. Dougall told Wilcox that they would have to go by
seniority. 26
Shortly before the November 17, 1974, layoff, Wilcox
went over the names of employees who might be laid off.
Before then, cocktail waitress I. M. Brown and a bartender
named Sabella had given notice that they were leaving.
Wilcox therefore only needed three other employees for the
layoff. Cocktail waitresses Smith and J. M. Brown as well
as bartender Farmazini were selected and laid off on
November 17, 1974. They were selected on the basis of
seniority.27
Personnel Director Valentine credibly testified that
seniority is the basis for layoffs and that efficiency and
proficiency are considered only in very specialized jobs.
Dougall had outstanding instructions with her that she was
to monitor all layoffs and notify him if seniority was not
followed. In applying seniority, an employee's last date of
employment is considered the hire date whether or not that
employee had previously worked for Respondent.
A substantial portion of the transcript in this proceeding,
as well as a number of exhibits received in evidence, relates
to the question of whether Respondent did, in fact, use
seniority for determining layoffs throughout its premises.
Valentine was examined and cross-examined at great
length on that issue, and voluminous company records
were inspected by all counsel concerning Respondent's
practices. She testified that, in all the reductions in force,
none of the waitresses who were less senior were retained
over senior waitresses. Records relating to layoffs from the
beginning of September 1974 to the date of the hearing
were particularly reviewed, and she testified that seniority
was uniformly applied. The General Counsel and Charging
Party cross-examined Valentine with regard to a large
number of individual cases and, where arguable discrepan-
cies appeared, Valentine gave rational explanations that
were consistent with her claim that the basic principle of
personal but just business; that she said that it had taken all her money to
move and she did not know what she was going to do; that he offered to
help her with money to move back to Las Vegas if she needed it; and that
she said she had more pride than that. I credit Dougall's version of the
conversation.
24 In November 1974, Dougall loaned S100 to an employee named
Sharon Pareda. On January 29, 1975, he received a letter from her and a
repayment of the loan.
25 During that time of the year, some of those employees wanted to work
fewer days so that they could participate in winter sports.
26 These findings are based on the credited testimony of Dougall and
Wilcox.
27 J. M. Brown was hired on November 15, 1974, and it is not clear from
the record whether she was hired the day before or the same day that
Dougall and Wilcox discussed the need for layoff. However, she was laid off
on November 17, 1974, 2 days after her hire.
1106
SAHARA-TAHOE HOTEL
seniority was followed. After carefully evaluating her
testimony and reviewing the records in question, I credit
Valentine and find that Respondent did use seniority as a
basis for determining who was to be laid off.
3. Analysis and conclusions
General Counsel impliedly makes the contention that
Smith was a "juice" hire in that she was hired because of
special influence she had with Dougall; that she was
assigned to the financially desirable pit area because of the
same reason; and that because of that special influence she
would not have been subject to seasonal layoff based on
seniority but for the fact she was active in the Union. Some
of the underpinnings of the argument have not been
established by the evidence. The credited evidence indi-
cates that she was hired because Respondent needed an
experienced cocktail waitress at the time and her past work
with Respondent showed that she was qualified for the job.
The credited evidence further indicates that she was
assigned to the pit area because she was needed there.
Furthermore, the credited evidence establishes that seniori-
ty was uniformly applied during the winter layoffs. Dougall
credibly testified that he detests the "juice hire" practice
and that he prohibits it at the hotel.
Shortly after she was hired for her last period of
employment, Smith joined the Union and became extreme-
ly active on its behalf. She introduced business representa-
tives to employees and supervisors. She solicited union
authorization cards in an employees' lounge on Respon-
dent's premises under circumstances where she could be
easily observed by supervisors. An employee asked her
about paying initiation fees in a situation where a
supervisor could overhear the remark. She told three pit
boss supervisors of her activity, and a matter of days before
her discharge, Assistant General Manager Atchley knew
she was on a friendly enough footing with Business
Representative Hewitt for her to invite Hewitt to sit with
her at a ringside table during a boxing match in the High
Sierra Room. There is direct credited testimony that
Respondent knew of Smith's union activity.2 8
Though the General Counsel has established by credible
evidence that Smith was active on behalf of the Union, and
that Respondent knew of that activity, there is some
question of whether the General Counsel has established
by credible evidence that Respondent harbored the type of
animosity against the Union that would make it reasonable
to believe that Respondent was motivated to lay off Smith
because of her union activity. The credited evidence in this
case does not establish any independent violations of
Section 8(a)(1) of the Act. Respondent did question the
Union's majority status and did file a petition for an
election. However, under the circumstances set forth
below, that action was not sufficient to establish such
animus. Respondent did notify its employees that the
Union was making promises that the Union could not
2R As there is direct evidence of knowledge, there is no need to consider
whether an inference of knowledge would be appropriate based on Smith's
open union activity on the premises under circumstances where supervisors
would have an opportunity to observe it. Cf. Big Three Industry, Inc., 192
NLRB 370 (1971); lWiese Plow Welding Co.. Inc., 123 NLRB 616 (1959).
29 Sahara-Tahoe Corporation dbh /a Sahara-Tahoe Hotel. 216 NLRB 1039
(1975).
fulfill, but in total context, I do not believe that can be a
basis for finding animus. The thrust of Respondent's
communications to its employees was that Respondent
intended to remain neutral. In a prior proceeding2 9 which
involved the same Respondent and Union, the Board
adopted an Administrative Law Judge's finding that in
July 1974 Respondent engaged in certain violations of the
Act. Implicit in that holding was the finding that at that
time Respondent was hostile to the Union. However, even
if animus can be found through the prior proceedings, the
record of this case when considered as a whole does not
support the General Counsel's contention that there was a
causal connection between Smith's union activity and her
layoff.
Respondent has established by credible evidence that
Smith was hired because Respondent needed an experi-
enced cocktail waitress; that Respondent relied on normal
business considerations in deciding that layoffs were
required in November 1974; and that Smith was laid off
pursuant to an established, uniformly applied seniority
principle. I shall, therefore, recommend that that part of
the complaint which alleges that Smith was laid off in
violation of the Act be dismissed.
E. The Withdrawal of Recognition and Refusal To
Bargain
1. The sequence of events
a. The initial recognition
Respondent opened for business in 1965. Prior to that
time, the 1962-65 contract was between the Union, Local
45,30 and the Association on behalf of various employers.
In the spring of 1965, Dan Basta, who was then secretary-
treasurer of the Union, asked Bill Powell, who was then
personnel manager of Respondent, whether Respondent
would sign an agreement with the Union. Powell said that
there would be no problem. In April 1965, Respondent
joined the Association and on May 11, 1965, Clinton G.
Knoll, the general manager of the Association, wrote to the
Union,31 advising it that Respondent had authorized the
Association to represent it in labor relations matters
pertaining to bartenders and culinary workers. The letter
stated in part:
At the time when the Sahara-Tahoe Hotel, Stateline,
Nevada employs bartenders and culinary workers, the
hotel shall become a party to the Agreement commonly
known as the Agreement between the Reno Employers
Council and the Lake Tahoe Area employers (Wagon
Wheel and Nevada Lodge).
That contract ran from November 1962 through November
30, 1965, and covered "all employees employed by the
employer in its bar and culinary operations at Lake Tahoe
in the classifications specifically listed herein." The
30 In 1968, there was a merger between the Union (Local 86). which had
represented bartenders, and Local 45 of the Culinary Workers in which the
Union acquired the assets and responsibilities of Local 45 and assumed
jurisdiction of both bartenders and culinary employees.
31 Identical letters were sent to both Local 45 and Local 86.
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classifications specified in the contract were those ordinari-
ly associated with bar and culinary workers. Near the end
of the 1962-65 contract, when Respondent employed bar
and culinary employees, it became bound by that agree-
ment. Respondent continued to be bound by successive
collective-bargaining agreements through the last contract
which was effective from December 1, 1971, through
November 30, 1974. That contract covered the same
classifications of employees. It was executed by the
Association and by siX32 members of the Association,
including Respondent.
b. The Reno meeting, the conversation with Tucker,
and the assignment of business representatives
In mid-May 1974, Respondent's General Manager
Dougall received a notice of a meeting scheduled by the
Association in Reno. He sent Assistant General Manager
Atchley and Personnel Director Valentine to attend that
meeting which was held in early June 1974. At the meeting,
Clinton Knoll, the manager of the Association, told the
members that the Union was in the process of declaring
financial insolvency, that he understood that Al Bramlet
was being appointed trustee of the Union, that there was a
possibility of a merger of the Las Vegas and Reno locals,
and that he understood that business representatives from
the Las Vegas local were trying to strengthen membership
in the northern Nevada local. Atchley related that
information to Dougall.
On June 7, 1974, a trusteeship was imposed on the
Union.
About June 10 or 15, 1974, Tucker (who was secretary-
treasurer and business manager of the Union before the
trusteeship was imposed), at his request, met with Dougall.
Tucker said that he was having complaints from waiters to
the effect that Respondent was paying busboys more than
waiters. Dougall replied that the waiters received greater
gratuities or "tokes" and therefore made more than the
busboys. Tucker also said that there were complaints from
waitresses that they were not getting their 10-minute breaks
and 40-minute lunches. Dougall replied that a schedule had
been posted, but that it was difficult to see that the breaks
were taken because some of the employees wanted to make
"tokes" during those periods. He said that he would do his
best to get the employees to take the breaks. Dougall then
asked Tucker what Tucker's position would be if a merger
took place and Bramlet was appointed trustee. Tucker
replied that he did not know but that Bramlet had brought
in a considerable number of organizers who were making
more money than he was and that he was not sure what
was going to happen to his position. Tucker also said that
he could not understand because his relationship with the
Employer had been good and there had always been
32 This number counts Harvey's Resort Hotel and Harvey's Inn
separately.
33 In the past Respondent had allowed the Union to have a table on its
premises at which the Union collected dues. That practice had long since
ceased.
34 These findings are based on the credited testimony of Dougall. Tucker
testified that the conversation took place before the trusteeship was imposed
on June 7, 1974, that there was no discussion about a union table, and that
he did not recall discussing the trusteeship or additional business agents. 1
was not impressed with Tucker's ability to accurately recall details and I
credit Dougall's version of the conversation.
cooperation between management and the Union. At that
point Tucker said that Dougall could help him if Dougall
would allow him to set up a union table in front of the
cafeteria.3 3 Tucker said that he wanted the table to try to
solicit new members and to talk to people. Dougall replied
that he could not provide the table because it would violate
Respondent's no-solicitation rule.34
In early June 1974, Union Business Representative
Bobby Swan was assigned to work on behalf of the Union
at Respondent's premises. On June 15, 1975, Business
Representative Howard Lawrence joined Swan.35 In
August 1975, Business Representative Bob Hart was also
assigned to work in the area. On September 1, 1975,
Business Representative Frank Meranto was assigned to
Respondent's premises as well as to other places and Bob
Hart was taken out of Respondent's premises. In mid-
September, Audrey Hewitt was assigned to work at
Respondent's premises as well as other places. In the first
part of October, another business representative worked in
the area for about 2 weeks.
c. The reports to Dougall
Beginning about the third week in June 1974, a number
of union representatives started coming onto Respondent's
premises and speaking to employees. Dougall personally
saw some of the representatives on the premises and a
number of supervisors and employees made comments to
him. Head hostesses Pat Dixon and Silvia Fields spoke to
Dougall almost daily and told him that union representa-
tives were in the coffeeshop talking to the help. They
informed him that union representatives were positioning
themselves in the walkway so that waitresses and bus help
had to pass and that they were interfering with the
employees in those positions. They also told him that
employees kept asking them what management's position
was with regard to the Union and what would happen if
the Union got in. Some employees asked Dougall directly
the same questions. Dougall repeatedly told both the
supervisors and the employees that management had no
position, that there was a contract in effect and that
Respondent had to keep its hands off. Some employees
asked Dougall whether they had to join the Union. Dougall
responded that management was neutral and was not going
to interfere with their decision to join or not join.3 s
About the second week in August, some of the waiters
and waitresses requested a meeting with Dougall. About 10
or 12 employees gathered together and asked Dougall what
management's position was on the Union. He told them
that management was neutral.
Dougall received reports from a number of his supervi-
sors. Bar Manager Tuoto told Assistant General Manager
Atchley that business representatives were questioning
35 In October 1974, Lawrence was appointed chief executive officer for
the Union in the Lake Tahoe area.
36 Dougall testified that many individual employees asked him questions
regarding the Union. However, he could only recall specific conversations
with about a half dozen particular employees. It is noted that there were
from 525 to 750 of Respondent's employees in the bargaining unit. It
appears that only a very small percentage of Respondent's employees in the
unit spoke to Dougall about the Union.
1108
SAHARA-TAHOE HOTEL
employees at their work stations and disrupting their work.
Atchley received similar reports from Executive Chef
Helfenstein and Maitre d' Mormando. Mormando told
Atchley that business representatives were approaching his
employees asking them whether they were members of the
Union while they were working. A number of head
hostesses reported to Atchley that business representatives
had approached their employees while they were working.
Atchley informed Dougall of all these reports. During the
summer of 1974, Atchley collected business cards from a
number of union business representatives who were at
Respondent's premises. He also told Dougall that employ-
ees had approached a number of supervisors asking
whether they had to join the Union.
d. The Union's activity prior to June 1974
The Union became extremely active on Respondent's
premises beginning the latter part of June 1974. When the
Union became active, management officials told Dougall
that before that time they had never received visits from
union representatives or any complaints from the Union of
any kind. In fact, the Union had maintained an extremely
low profile in its dealings with Respondent before June
1974. From 1965, when Respondent entered contractual
relations with the Union, until the union activity began in
June 1974, the Union had never filed a written grievance.
Two grievances were filed on behalf of employees on July
18, 1974. Two others were filed thereafter.
The questions by employees to supervisors concerning
what would happen if the Union came in gave cause for
Respondent to believe that at least some employees did not
even know that the Union was their representative.
Robert Vickney, who was business agent for the Union
from 1970 through 1972, testified that he visited Respon-
dent's premises twice a week. He averred, however, that the
only thing he really did was collect dues and go visit people
he knew. He recalled only two incidents relating to the
administration of the contract. The first was in 1971, when
he complained that the barboys were pouring liquor when
they were not supposed to. He discussed that with the bar
manager who said that it would not happen again. The
second incident was in the spring of 1971 when he spoke to
a management official concerning the termination of an
employee. The official showed him a film concerning that
incident and Vickney agreed that the firing was justified.
He never filed any written grievance.
Tucker, who was manager of the Union before the
trusteeship was imposed, also testified as to his activities in
policing the contracts. He presented an oral grievance
concerning the quality of meals provided to employees to
then General Manager Hundley. He could not recall
whether that occurred before or after the 1971 negotiations.
Hundley said that Respondent would look into it. Tucker
did not hear anything more about it and assumed that it
was taken care of. Tucker also testified that on some
unknown date he discussed an employee's discharge with
the bar manager but that the manager gave a reason for
discharging the employee that satisfied Tucker. A third
incident occurred sometime in 1970 when he spoke to the
bar manager about barboys tending bar without being paid
for it. Tucker averred that the matter was taken care of and
barboys were paid bartender's wages. The last incident that
Tucker testified to occurred sometime in 1971 or 1972
when he spoke to Hundley about the difference between
porter's and janitor's duties. Tucker averred that nothing
was settled concerning that matter.
Perhaps it can be argued that from 1965, when Respon-
dent recognized the Union, until the trusteeship was
imposed on the Union on June 7, 1975, Respondent was
such a model employer that there was no need for the
Union to vigorously take action to enforce its contract or
to file grievances. In any event, there is no contention that
the Union ever abandoned its status as collective-bargain-
ing agent of the employees. The record does, however,
establish that during that time the Union's contacts with
Respondent were extremely limited.
e. The newspaper reports, Dougall's actions, and the
conversations with Attorney Oliver
On August 22, 1974, Dougall read two articles concern-
ing the Union in local newspapers. Both reported on
interviews with Al Bramlet, the Union's International
trustee. The report in the "State Journal" for August 22,
1974, stated in part:
Southern Nevada labor leader, Al Bramlett, said
Wednesday membership in Northern Nevada's Culi-
nary Union has doubled in 2-1/2 months as part of a
full-scale campaign to organize Reno and Lake Tahoe
food and beverage workers.
Bramlett, recently named international trustee for
the Local 86, which serves the Reno-Tahoe area, said
dues paying members have grown -from about 900 to
more than 1,800 since May.
He said he was sent north because the conditions in
the Reno-Tahoe area are "archaic" compared with Las
Vegas.
Bramlett said the big difference is that Las Vegas is
90 percent unionized while Reno-Tahoe is less than 20
percent.
In the article in the "Evening Gazette" dated August 22,
1974, Bramlet was quoted as saying he was brought in "to
organize the unorganized" and that the Culinary Union
currently represented only about 1,800 of some 10,000
eligible workers in northern Nevada.
Dougall was aware of the union activity taking place on
Respondent's premises and after reading the articles he
called his attorney, Anthony Oliver, Jr., and asked if there
was any way they could verify what was said in the
newspapers. As a result of this call, he obtained certain
LM-2 forms which were filed by the Union with the U.S.
Department of Labor. By dividing the Union's income as
reported on those forms by the amount of dues paid per
employee per year, Dougall came to the conclusion that the
Union had between 1,000 and 1,800 dues-paying members.
Dougall also asked Oliver whether Respondent could
poll the employees to see how many of them belonged to
the Union. Oliver answered in the negative.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after reading the newspaper articles, Dougall
asked his personnel director, Valentine, to check the
employee turnover. She reported to him that there was
about a 300-percent turnover per year. Valentine gave
Dougall a list showing the number of employees who were
employed in 1971 who were still employed in late 1974.
There were only 85 or 95 employees who were employed in
September 1971 who were still employed. Valentine told
him that there had never been a vote of the employees
before recognition and that the Union was not certified.
Dougall asked Valentine to check the number of active
contracts the Union had with other employers. She made
inquiries and reported back to him that there were about 22
employers and a total of about 4,700 employees who were
covered by the contracts. 37
On August 22, 1974, Respondent's attorney, Oliver, had
a telephone conversation with former General Manager
Hundley. Hundley told him that, during the 1971 negotia-
tions, Union Official Tucker asked for assistance from the
employers in keeping new members and also discussed the
possibility of a table for collecting dues and signing up
members. Oliver reported the conversation to Dougall.
Oliver also reported to Dougall a conversation that he
(Oliver) had on August 22, 1974, with an agent of the
Regional Office of the Board. The agent was at the time
investigating another charge against Respondent. Oliver
told Dougall that the agent asked when Respondent was
going to file a petition for an election for the food and
beverage employees, and that the agent said that it was
common knowledge that the Union did not represent 20
percent of the employees of any employer at the Lake.38
About mid-August 1974, Dougall spoke to Ron Wood, a
business agent of the Operating Engineers Union. Respon-
dent had a contract with that union. Wood asked Dougall
what Respondent's position was with regard to the
Culinary Workers' Union. Dougall replied that Respon-
dent expected to negotiate with them and that the contract
expired on November 30, 1974. Wood asked what would
happen if there were a strike and whether the no-strike
clause in the Operating Engineers contract would be
enforced. Dougall replied that he expected Wood to honor
the contract and to continue to work. Dougall also said
that Respondent might file a petition for an election and
that he was not certain at that time what his lawyer would
advise. Wood replied that it was common knowledge that
the Union did not represent over 5 percent of the
employees, that the Union would not allow a vote, and that
the Union would continue to put blocking charges in the
way of a vote.39
37 Her inquiries indicated that there were four other employers covered
by the contract with the Union that was binding on Respondent and the
total number of food and beverage employees covered under that contract
was in excess of 1,423.
3, These findings are based on the uncontradicted testimony of Oliver
and Dougall. Oliver initially testified that he told Dougall that the agent had
told him that it was common knowledge the Union did not represent 20
percent of the employees of the employers at the Lake. He later corrected
that testimony and asserted that it was 20 percent of the employees of any
employer at the Lake. I believe that Oliver was a fully credible witness and I
credit his correction.
39 On November 11, 1974, Respondent and the Union held a grievance
meeting. Union Attorney Bowe and Respondent's attorney, Oliver, were
present. During that meeting, Oliver said that Respondent had filed a
petition for an election, that there were some blocking charges, and that he
f. The withdrawal of recognition
The latest collective-bargaining agreement expired by its
terms on November 30, 1974. On July 22, 1974, the Union
wrote to Respondent notifying it of its desire to modify the
contract for the period following November 30, 1974, and
requesting that arrangements be made for collective-bar-
gaining negotiations. On August 2, 1974, Respondent
timely withdrew its membership from the Association. 4°
On August 5, 1974, Dougall wrote to International Trustee
Al Bramlet acknowledging receipt of the Union's July 22,
1974, letter. Dougall's letter stated that Respondent had
withdrawn from the Association and that the Association
no longer represented it for collective-bargaining purposes.
The letter further notified the Union that "Negotiations for
labor contracts will be conducted directly by the corpora-
tion or by some other designated representative." 4 ' On
October 18, 1974, Union Attorney Bowe wrote to Dougall,
demanding that a meeting be set for negotiations.
Dougall testified that in mid-September 1974 he made
the determination that the Union did not represent a
majority of the employees in the bargaining unit. He
averred that he made that decision based on the informa-
tion he had received which is discussed in detail above. At
that time Dougall requested Union Attorney Oliver to file a
petition for an election with the Board. The petition was
filed on September 27, 1974. The election was sought in a
single employer unit consisting of Respondent's employees
in its bar and culinary operations. The complaint alleges,
the answer admits and I find that the appropriate unit is:
All employees employed by the Respondent in its bar
and culinary operations at its Stateline, Nevada
operations, excluding all other employees, guards and
supervisors as defined in the Act.
By letter dated October 29, 1974, Respondent's Attorney
Oliver told Union Attorney Bowe:
With respect to your request to commence negotiations,
we seriously doubt that you represent the majority of
the hotel's culinary and bar employees. In order to
resolve the question we filed an RM petition. Certainly
an election is the most expeditious method of determin-
ing the desires of the employees in this regard and we
assumed that the Union would welcome such an
opportunity to establish its claim to majority status.
Since that time Respondent has continued in its refusal
to bargain concerning a new contract. Respondent did,
thought that an election would be the best way to resolve the problem. Bowe
replied that he would not agree to an election, that they would continue to
file blocking charges, and that they would probably never get an election.
Bowe also said that the Union had picked Respondent as the prime target.
40 The General Counsel admits in the complaint that the withdrawal was
timely. Dougall testified that Respondent withdrew from the Association
because Respondent had just negotiated contracts with the Carpenters and
Painters Unions without the participation of the Association and that he
thought that Respondent's staff could handle the negotiations with the
Union.
41 By letter dated September 19, 1974, Association General Manager
Knoll notified the Union that the Association was not authorized to
represent any of the signatories to the Lake Tahoe area agreement for
collective-bargaining purposes.
1110
SAHARA-TAHOE HOTEL
however, maintain the contract and deal with the Union
concerning grievances during the contract term.
2. Analysis and conclusions relating to the
withdrawal of recognition
a. The presumption of majority
As the Board held in Walter E. Heyman, d/b/a Stanwood
Thriftmart, 216 NLRB 852, 853 (1975):
A contract, lawful on its face, raises a presumption
that the contracting union was the majority representa-
tive at the time the contract was executed, during the
life of the contract, and thereafter. 2
2 Shamrock Dairy, Inc., 119 NLRB 998. 1002 (1957), and 124 NLRB
494, 495-496 (1959), enfd. 280 F.2d 665 C.A.D.C.), cert. denied 364
U.S. 892 (1960),
The legality of the Union's initial recognition by Respon-
dent is not subject to attack in this case. In Stanwood
Thriftmart, the Board said:
The Board has held that events time-barred by the
limitations provision of Section 10(b) of the Act may
not be used to overcome the presumption of majority
status raised by a contract valid on its face. The
contract contains a clause which recognized the Union
as majority representative and a lawful union-security
clause. The legality of the Union's initial recognition by
Respondent was precluded by Section 10(b) of the Act
from being attacked at the time of Respondent's
termination of the contract and withdrawal of recogni-
tion from the Union. Therefore, we find that Respon-
dent may not defend its refusal to continue to recognize
and bargain with the Union by an attack on its initial
recognition of the Union. [Footnote omitted.]
In the instant case, the presumption of continued
majority status is based on a contract in a multiemployer
bargaining unit. The complaint alleges a refusal to bargain
in a single-employer bargaining unit. A serious question is
present whether the presumption of continued majority
which flowed from the existence of the multiemployer
contract survived the withdrawal of Respondent from the
multiemployer unit and can be applied to the newly
created single-employer unit. There has never been any
contract between Respondent and the Union in the single-
employer unit and, therefore, any presumption of majority
must flow from Respondent's inclusion in the multiem-
ployer contract that expired on November 30, 1974.
In Downtown Bakery Corp. successor to Smagda's Home
Bakery, Inc., 139 NLRB 1352 (1962), enforcement denied
in pertinent part 330 F.2d 921 (C.A. 6, 1964), a successor
employer refused to bargain with a union where that union
was the Board-certified representative of the employees in
a multiemployer bargaining unit which included a prede-
cessor employer. In that case the predecessor employer had
signed a separate collective-bargaining agreement with the
union. Relying on a presumption of continued majority,
42 It is also noted that, unlike the instant situation, both those cases
involved conflicting repre'entational claims by rival unions.
the Board found that the successor employer violated
Section 8(a)(5) of the Act by refusing to bargain with the
union in the single-employer unit. The Sixth Circuit Court
of Appeals refused to enforce the Board's bargaining order,
holding in part that there was not sufficient evidence in the
record to support a finding of majority status of the union.
In The Richard W. Kaase Baking Corpany, 141 NLRB
245 (1963), enforcement denied in pertinent part 346 F.2d
24 (C.A. 6, 1965), a similar factual pattern was presented,
and the Board followed its Downtown Bakery Corp.
precedent. In the Richard W. Kaase Company case, a union
was certified as the collective-bargaining agent of the
employees of employers in a multiemployer bargaining unit
which included a predecessor employer. That employer
executed a separate collective-bargaining agreement.
Thereafter, a successor employer continued to recognize
the predecessor's contract but later withdrew recognition.
The Board found that the successor violated Section 8(aX5)
of the Act. The Sixth Circuit Court of Appeals once again
refused to enforce the Board's order, holding: "the
ambiguity inherent in the multi-employer election here
relied on vitiates its efficacy to prove a majority as to any
single employer."
The Board law established by the Downtown Bakery and
Richard W. Kaase Company cases is not directly applicable
to the instant situation. In each of those cases, the
individual employer had signed separate collective-bar-
gaining contracts with the union and the presumption of
continued majority could flow from those contracts rather
than from the multiemployer certification. In the instant
case, the initial collective-bargaining relationship was in a
multiemployer bargaining unit and the contracts to which
Respondent was a party were multiemployer bargaining
contracts. 42 However, I believe that the presumption of
continued majority flowing from the multiemployer con-
tracts requires a derivative presumption of the Union's
majority status which is applicable to each of the employer-
members of the multiemployer bargaining unit separately.
Unless a majority of an employer's employees desire
representation by a union, that employer may not lawfully
force representation on them by joining a multiemployer
bargaining arrangement. Mohawk Business Machines Cor-
poration, 116 NLRB 248 (1956); Dancker & Sellew, Inc.,
140 NLRB 824 (1963), enfd. 330 F.2d 46 (C.A. 2, 1964).
Thus, Respondent would have violated the Act in 1965
when it became party to the multiemployer collective-
bargaining agreement if a majority of its employees did not
desire representation. Any unfair labor practice charge
relating to such a violation would have had to have been
filed within 6 months from that time. Respondent may not
now either attack the initial bargaining relation or use it to
establish a defense to a refusal-to-bargain complaint. As
the Board held in North Bros. Forad Inc., 220 NLRB 1021
(1975): 43
Section 10(b) of the Act confines the issuance of
unfair labor practice complaints to events occurring
during the 6 months immediately preceding the filing of
a charge and has been interpreted by the Supreme
43 See also Walter E. Heyman d/b/a Stanwood Thriftmart, supra.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court to bar finding any unfair labor practice, even
though committed within that period, which turns on
whether or not events outside that period violated the
Act. Bryan Manufacturing Co. 3 The Court, holding that
maintenance and enforcement of a contract more than
6 months after recognition of a minority union did not
violate the Act, relied in part on the legislative history
indicating that Congress specifically intended Section
10(b) to apply to agreements with minority unions in
order to stabilize bargaining relations. Noting that
labor legislation traditionally entails compromise, the
Court observed
that the interest in employee freedom of choice is
one of those given large recognition by the Act as
amended. But neither can one disregard the
interest in "industrial peace which it is the overall
purpose of the Act to secure." 4
The Board, in light of Bryan, has since held that Section
10(b) is applicable to a refusal-to-bargain defense that
the bargaining relation was unlawfully established. 5
3 Local Lodge No. 1424, IAM, A FL CIO [Bryan Manufacturing Co.]
v. N.LR.B., 362 U.S. 411 (1960).
Id. at 428, citations omitted.
Barrington Plaza and Tragniew, Inc., 185 NLRB 962 (1970),
enforcement denied on other grounds sub nom, Tragniew, Inc., and
Consolidated Hotels of California v. N.LR.B., 470 F.2d 669 (C.A. 9,
1972); Roman Stone Construction Company, and Kindred Concrete
Products, Inc., 153 NLRB 659, fn. 3 (1965).
Respondent may not, at this late date, attack either the
initial recognition of the Union by Respondent or the
initial contract. It cannot defend against the refusal-to-
bargain complaint on the ground that the original contract
was entered into at a time when the Union did not
represent a majority of the employees of Respondent. Nor
can it defend on the ground that the Union did not
represent a majority of the employees in the overall
multiemployer bargaining unit. The contract must be
considered valid on both those grounds. The presumption
of majority status which continued over the years based on
successive contracts applies both as to the employees of
Respondent and to the employees in the multiemployer
unit. I therefore find that the General Counsel has properly
relied on that presumption to establish the Union's
majority in the unit in question. It remains to be considered
whether Respondent has successfully rebutted that pre-
sumption.
b. The rebuttal of the presumption
In James W. Whitfield d/b/a Cutten Supermarket, 220
NLRB 507 (1975), the Board summarized the existing law,
holding:
It is well settled that Section 8(a)(5) and Section 8(d)
of the Act require an employer to recognize and
bargain in good faith with the bargaining representative
selected by a majority of its employees. That recogni-
tion establishes a presumption of majority status which,
in circumstances such as this, may be rebutted.6 The
employer may lawfully refuse to bargain with the union
if it rebuts the presumption by affirmatively establish-
ing that the union has in fact lost its majority status, or
shows that it has sufficient objective bases for reason-
ably doubting the union's continued majority status.7
To establish sufficient objective bases, however, re-
quires more than the mere assertion thereof based upon
the employer's subjective frame of mind.8 Furthermore,
the employer must not have engaged in any conduct
tending to encourage employee disaffection from the
union.9
6 Cf. N.LRB. v. Frick Company, 423 F.2d 1327 (C.A. 3. 1970);
Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).
7 Celanese Corporation of America, 95 NLRB 664, 672 (1951):
Peoples Gas System, Inc., 214 NLRB No. 141 (1974).
8 Laystrom Manufacturing Co., 151 NLRB 1482 (1965), enforcement
denied 359 F.2d 799 (C.A. 7, 1966): Automated Business Systems, Inc., a
Division of Litton Business Systems, Inc., 205 NLRB 532 (1973),
enforcement denied 497 F.2d 262 (C.A. 6, 1974).
9 Peoples Gas System, Inc., supra
In Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho and its Employer-
Members, 213 NLRB 651 (1974), the Board held that these
principles are equally applicable whether the union was
certified by the Board or was recognized without Board
certification. In that case, the Board held that the existence
of a prior contract, lawful on its face, raised a presumption
that the union was the majority representative at the time
the contract was executed and also raised the presumption
that the union's majority continued at least through the life
of the contract. The Board held that "Following the
expiration of the contract . . . the presumption continues
and, though rebuttable, the burden of rebutting it rests on
the party who would do so ... ."
The evidence described in detail above falls short of
establishing that the Union had, in fact, lost its majority
status. On the question of whether Respondent had a
sufficient objective basis for reasonably doubting the
Union's continued majority status, a detailed evaluation is
necessary.
The most recent collective-bargaining agreement to
which Respondent was a party was in a multiemployer
bargaining unit consisting of six employers.4 4 More than
1,423 employees were covered by the contract. When
Respondent refused to negotiate a new contract with the
Union, the refusal was keyed to a single-employer
bargaining unit containing substantially less than half that
number of employees. Though I have found that a
presumption of continued majority status existed with
regard to Respondent's employees, the fact that the historic
bargaining unit had been radically altered cannot be
ignored. Respondent's refusal to bargain took place in the
context of that disruption of the bargaining pattern and
Respondent's claim that it had reasonable doubts as to the
Union's majority status must be viewed in light of the
overall circumstances.
The Union represented the Respondent's employees
since 1965. Yet until the trusteeship was imposed on June
44 This includes Harvey's Wagon Wheel as a separate employer.
1112
SAHARA-TAHOE HOTEL
7, 1974, its activities at Respondent's premises were
minimal. Until the trusteeship, no written grievances were
filed and the Union's contact with Respondent was
extremely limited. It is not the Board's function to evaluate
the effectiveness of a union's representation, and inactivity
by a union is not in itself sufficient to generate a reasonable
doubt as to a union's majority. However, a union's lack of
activity is one factor that must be evaluated in determining
whether a company has a reasonably based doubt of
majority status. Cf. Taft Broadcasting, WDAF-TV, AM-FM
201 NLRB 801 (1973).
After the trusteeship was imposed, the Union became
extremely active at Respondent's premises. The Union
began a massive organizational drive among Respondent's
employees. Respondent knew of that activity. Dolly Smith
was openly active in signing up employees on Respondent's
premises and told three supervisor pit bosses of that
activity. General Counsel's own evidence dealing with the
discharge of Smith establishes that Respondent knew of the
Union's organizational drive. In addition, a number of
reports reached General Manager Dougall indicating such
activity and union representatives were often seen on the
premises. Nevada is a right-to-work state and the fact that
the Union was soliciting membership among Respondent's
employees does not establish that the Union lacked
majority status. However, the prior lack of union activity
coupled with the massive organizational drive did give
Respondent some grounds for questioning how many
employees were union members.
The imposition of the trusteeship on the Union was an
internal union matter and could not be relied on by
Respondent to establish whether or not the Union
represented a majority of Respondent's employees. How-
ever, Respondent could reasonably assume that the
trusteeship was in some manner related to the Union's
prior lack of activity, where, as here, it was followed by a
substantial increase in union activity. Ex-Business Manag-
er Tucker's statements to Dougall that the International
trustee had brought in a considerable number of organizers
and his request that he be allowed to set up a union table to
try to solicit new members also could lead Dougall to
believe there was a connection between the trusteeship and
a lack of union membership.
A number of employees asked Dougall and other
supervisors what would happen if the Union got in and
whether they had to join the Union. There is no evidence
that the number of those employees was substantial with
relation to the overall employee complement in the unit,
and even if those remarks could be considered as evidence
of dissatisfaction by employees with the Union, Respon-
dent could not base a reasonable doubt of majority on such
a limited number of questions. Cf. Strange and Lindsey
Beverages, Inc., and Dr. Pepper Bottling Co., Inc., Joint
Employers d/b/a Pepsi-Cola-Dr. Pepper Bottling Co., 219
NLRB 1200 (1975). However, the remarks of the employ-
ees could reasonably lead Respondent to believe that some
of the employees did not even know that there was a
contract with the Union.
On August 22, 1974, Dougall read two articles in local
newspapers in which remarks were attributed to Interna-
tional Trustee Bramlet. In one Bramlet was reported to
have said that less than 20 percent in the Reno-Tahoe area
were unionized, and in the other Bramlet was quoted as
saying that the Union currently represented about 1,800 of
the some 10,000 eligible workers in northern Nevada.
Dougall's inspections of the LM-2 forms led him to believe
that between 1,000 and 1,800 employees were dues-paying
members. He also ascertained that the Union had contracts
with about 22 employers covering about 4,700 employees.
While all this information related to industry conditions in
the area as opposed to the status of Respondent's own
employees, they did give Respondent some reason to
question the Union's strength.
A showing of lack of employee membership in or
financial support of a union is not the equivalent of
establishing a lack of desire of those employees for union
representation. Employees may desire representation with-
out wanting to join a union or pay dues. Orion Corporation,
210 NLRB 633 (1974), enfd. 515 F.2d 81 (C.A. 7, 1975).
However, such matters must be considered as part of the
total picture in determining whether an employer reason-
ably doubts a union's majority status. Peoples Gas Systems,
Inc., 214 NLRB 944 (1974); Convair Division of General
Dynamics Corporation, 169 NLRB 131 (1968).
Respondent ascertained that there was about a 300-
percent turnover in the employee complement per year and
that there were only about 85 to 95 employees employed in
1971 who were still employed in late 1974. There were
about 630 employees in the bargaining unit. High employ-
ee turnover is insufficient to establish a reasonable doubt
as to a union's majority, and the Board has repeatedly held
that new employees will be presumed to support a union in
the same ratio as those they may replace. Strange and
Lindsey, Inc., supra, King Radio Corporation, 208 NLRB
578 (1974), enfd. 510 F.2d 1154 (C.A. 10, 1975). However,
high employee turnover is one circumstance among others
that must be considered. Peoples Gas System, Inc., supra,
Convair Division of General Dynamics, supra; Kentucky
News, Incorporated 165 NLRB 777 (1967).
In mid-August 1974, Dougall was told by Wood, a
business agent of the Operating Engineers, that it was
common knowledge that the Union did not represent over
5 percent of the employees and that the Union would not
allow a vote. Wood was not an agent of the Union, but he
was concerned with the situation because the Operating
Engineers, who represented a different unit of Respon-
dent's employees, could be faced with a picket line of the
Union. Though Wood's remark is not probative evidence
that the Union, in fact, represented less than 5 percent of
the employees, it would be unrealistic for Respondent to
completely ignore such an assertion.
On or about August 22, 1974, Respondent's attorney
reported to Dougall that an agent of the Regional Office of
the Board had told him that it was common knowledge
that the Union did not represent 20 percent of the
employees of any employer at the Lake. Such multiple
hearsay information has little probative value, but, once
again, it is unrealistic to believe that Dougall would ignore
it.
Based on the information that came to Respondent's
attention, it filed a petition for an election with the Board.
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When viewed individually, I do not believe that any of
the matters stated above would form a sufficient basis for
reasonably doubting the Union's majority. However, they
must be viewed in their totality. The relative inactivity of
the Union before the trusteeship, the imposition of the
trusteeship and the subsequent major organizational drive,
the questions from employees, and newspaper articles
indicating a lack of membership, the figures with regard to
union members on the LM-2 forms compared with the
numbers of employees and contracts, the high rate of
turnover, the remarks by an agent of the Regional Office of
the Board and a business agent of another union regarding
the Union's lack of majority status, all must be viewed in
the context of a substantial disruption in the established
bargaining unit and the filing of the petition for an election
with the Board. In Taft Broadcasting, WDAF-TV, AM-FM
201 NLRB 801 (1973), the Board dismissed a refusal-to-
bargain complaint, holding:
While it is clear, as pointed out by the Administra-
tive Law Judge, that each of the factors relied on by the
Respondent standing alone may have weaknesses as a
basis for supporting a good-faith doubt of the Union's
majority status, we note that the Respondent does not
rely on any one reason alone, but rather on all as a
whole.
In light of the above, I find that Respondent has shown
that it had a sufficient objective basis to reasonably doubt
the Union's continued majority status.45 It follows,
therefore, that unless Respondent is shown to have
engaged in conduct tending to encourage employee
disaffection from the Union, the 8(a)(5) allegation of the
complaint must be dismissed.
The complaint alleges a number of violations of the Act
that are separate and distinct from the withdrawal of
recognition. For the reasons set forth in detail herein, I am
recommending that all of those allegations be dismissed.4
With regard to the matters raised by the complaint and
litigated in this proceeding, the General Counsel has not
established that Respondent engaged in conduct tending to
encourage employee disaffection from the Union. There is,
however, a separate Board proceeding which involved the
same parties that must be considered.
On March 13, 1975, the Board issued its Decision and
Order in Sahara-Tahoe Corporation d/b/a Sahara-Tahoe
Hotel, 216 NLRB 1039 (1975), in which it affirmed the
decision of an Administrative Law Judge dated November
19, 1974. In that case two violations of the Act were found.
The first related to the discharge of Audrey Hewitt. 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 that incident
took place, Swan was having coffee at a counter being
serviced by Hewitt. Previously, Hewitt had been warned
about violating Respondnet's no-solicitation rule. The
Administrative Law Judge found at 1043:
a' Cf. Peoples Gas System, Inc., supra, Taft Broadcasting, supra; Convair
Division ofGeneral Dynamics Corp., supra.
46 All of those allegations except for those set forth in par. XV(b) of the
complaint, which relate to the refusal of Respondent to supply the Union
with a list of employees' names and addresses, are discussed in detail above.
that Hewitt was discharged because she was
talking about union activity on her worktime; that the
discharge was not pursuant to a nondisparate, nondis-
criminatory 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(aX3) and (1) of the Act.
The Board held at 1039:
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 justified 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.
The second violation was based on a finding that in early
July 1974 Head Hostess Fields asked employee Eggerman
if Eggerman was going to join the Union. Eggerman
replied that she did not know and would have to look into
it. It was held that that interrogation could not be
considered a minor isolated incident because of the Hewitt
discharge.
There is nothing in the complaint in the instant case
which indicates that the General Counsel is relying on the
matters litigated in the prior case to establish a refusal to
bargain. The General Counsel did not urge such a theory
during the hearing of the instant case. Respondent does not
appear to have been notified of such a theory and made no
effort to defend against it. The two incidents on which the
finding of violation were based occurred some 3 months
before the alleged refusal to bargain.47 As is set forth
above, the General Counsel has not established that
Respondent violated the Act during the intervening period.
In Taft Broadcasting, 201 NLRB 801 (1973), the Board
dismissed a complaint that alleged that an employer
violated Section 8(a)(5) of the Act. The Board held that a
single unremedied unfair labor practice did not preclude
that employer from defending on the ground that it had a
reasonably based doubt as to the union's majority status.
The Board noted that the prior finding of violation
required an order that was extremely narrow in scope and
that the violation "would not be apt to have detrimental or
lasting effects upon employees in the unit." In that case 28
months had elapsed between the employer's unfair labor
practice and the withdrawal of recognition, and many
months of good-faith bargaining took place during that
period.
In Guerdon Industries, Inc., Armor Mobile Homes Divi-
sion, 218 NLRB 658 (1975), the Board found that an
employer violated Section 8(aX)(5) of the Act by withdraw-
The allegation concerning the list of names and addresses is discussed in the
next section.
17 The complaint alleges that Respondent withdrew recognition from the
Union and refused to bargain commencing on or about October 29, 1974.
1114
SAHARA-TAHOE HOTEL
ing recognition from a union when it had previously
engaged in unfair labor practices which "necessarily
tended to undermine the Union's authority among the
employees, whose interest it was obligated to represent in
such matters, with erosion of majority status the probable
result." The Board relied on the fact that the preceding
violations were "flagrant and egregious" in themselves and
directly affected a large segment of the bargaining unit.
In the instant case, the complaint does not indicate that
the matters litigated in the prior case were being relied on,
the General Counsel did not advance such a theory during
the hearing of the case, Respondent did not have notice
that it would be required to respond to such a theory, the
prior violations were not "flagrant and egregious" and did
not directly affect a large segment of the bargaining unit,
and 3 months elapsed between those violations and the
alleged refusal to bargain. 48
Under the circumstances set forth above, I do not believe
that the violations found in the prior proceedings preclude
Respondent from successfully defending against the refus-
al-to-bargain allegation of the instant complaint on the
ground that it had a reasonably based doubt of the Union's
continued majority status. I find that Respondent has
established that defense by a preponderance of the credible
evidence and I therefore recommend that paragraph XIV
of the complaint be dismissed.
F. The List of Employee Names and Address -
Facts and Conclusions
Facts
In mid-October 1974, International Trustee Bramlet and
other union officials met with Union Attorney Bowe. Bowe
suggested that the Union should have a list of the names
and addresses of employees in order to conduct the affairs
of the Union. Bramlet instructed Bowe to send a letter to
all the contractual parties requesting such a list. In the first
part of November 1974, the Union requested such a list
from Respondent and, as Respondent admits in its answer:
"[O]n or about November 11, 1974, Respondent refused to
supply the Union with a list of the names and addresses of
its employees in its bar and culinary operations." On
November 19, 1974, Bowe wrote to Respondent's attorney.
Oliver, stating: "As promised, the purpose of this letter is to
confirm that at our November 11, 1974, meeting at the
Sahara Tahoe you informed me that your client would not
give Hotel-Motel-Restaurant Employees and Bartenders
Union Local No. 86 a list of the names, addresses or phone
numbers of employees in the Local 86 bargaining units."
On December 2, 1974, Oliver wrote to Bowe: "Please also
be advised that based upon the employer's good faith
doubt that Local 86 represents the majority of its food and
beverage employees, the employer declines to furnish Local
86 with a list of the names, addresses or phone numbers of
its food and beverage employees."
4R It is noted that Respondent's petition for election was filed on
September 27, 1974. and was not dismissed until June 20, 1975. even though
the Administrative L.aw Judge's Decision in the prior case issued on
November 19, 1974, and the Board's Decision issued on March 13. 1975.
The dismissal of the petition was not based on the finding of violation in the
prior unfair labor practice case. The dismissal letter read in part:
Union Business Representative Lawrence testified that
the list was needed to properly administer the contract.
However, as of November 11, 1974, when Respondent
refused to furnish the list, the contract had only 19 more
days to run, and there was no evidence offered to establish
that the list was needed by the Union to process any
pending grievances or to help the Union with regard to any
specific matters relating to the contract during those 19
days. There is no indication that prior to November 1974
the Union ever requested a list of employees' names and
addresses from Respondent. At the time Respondent
refused the Union's request, Respondent had already filed
a petition for an election, questioned the Union's majority
status, and refused to bargain about a new contract.
Respondent notified the Union that the failure was based
on Respondent's good-faith doubt that the Union repre-
sented a majority of the employees. As found above,
Respondent did have a reasonably based doubt as to the
Union's majority.
In N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-
436 (1967), the United States Supreme Court stated:
"There can be no question of the general obligation of an
employer to provide information that is needed by the
bargaining representative for the proper performance of its
duties." The Board has repeatedly held that an employer
violates Section 8(aX5) of the Act if it fails to satisfy a
union's request for information when it has established that
the information is relevant to the union's performance of
its role as bargaining representative. See Magma Copper
Company, San Manuel Division, 208 NLRB 329 (1974), and
cases cited therein. In the Magma Copper Company case,
the Board held that the determination as to whether an
employer is required to supply a list of names and
addresses of unit employees is based on considerations
such as the size of the unit, the rate of turnover, the nature
of the union-security clause, if any, the union's ability to
reach member and nonmember employees, and the
availability of the information to the employer. However.
those criteria have little meaning in the particular situation
present here. The information was refused only 19 days
before the expiration of the contract. There was no
showing of the Union's need for such information to
administer the contract during those 19 days. At the time
of the refusal, Respondent had a reasonably based doubt
as to the Union's majority status and had therefore refused
to enter negotiations for a new contract. Therefore, the
Union had no need for the information for the negotiation
of a new agreement. Under these circumstances, the
conclusion is warranted that the General Counsel failed to
establish by a preponderance of the credible evidence that
the list of names and addresses was necessary for the
Union to fulfill its collective-bargaining representative
functions as alleged in paragraph XV(b) of the complaint. I
shall therefore recommend that that section of the
complaint be dismissed.
The undersigned .. .issued complaint on May 30. 1975, alleging. inter
alia, that the Employer has violated section 8(a5) and ( I of the Act bh
refusing to bargain with the Union. Accordingly) it is concluded that no
question concerning representation exists and the petition is therefore
dismissed.
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Arbitrability of the Dispute
Respondent, in its answer, timely raised the assertion
that this case should be deferred to the arbitration
procedure contained in the contract in accordance with the
policy set for'h in Collyer Insulated Wire, A Gulf and
Western Systems Co., 192 NLRB 837 (1971). In its brief
Respondent specifically requested deferral with regard to
the layoff of Smith, the dispute concerning the access
provision of the contract, and all alleged unilateral changes
in conditions of employment or benefits. Respondent
stated on the record that, even though the contract is now
expired, it agrees to arbitrate.
The Collyer doctrine requires that certain types of
disputes be resolved by contractual arbitration procedures
rather than Board litigation. However, underpinning the
entire Collyer approach is the assumption that the parties
have a mature workable collective-bargaining relationship.
In the instant case, the parties have no contract and indeed
no collective-bargaining relationship of any kind. It would
not in any sense encourage collective bargaining to require
deferral to arbitration in such circumstances. In Board
Member Brown's concurring opinion in the Collyer case, he
stated at 845:
One other area in which I would not defer to
arbitration is where there has been a repudiation of the
collective-bargaining process. In such a situation the
desirability of encouraging resort to arbitration must
yield to the Board's duty to protect the bargaining
process.
In AMF Incorporated-Union Machinery Division, 219
NLRB 903, 912 (1975), the Board refused to defer to
arbitration and adopted the Administrative Law Judge's
Decision which described the situation as follows:
. . . the questions presented by the complaint relate
to a complete breakdown in contract renewal negotia-
tions, rather than a routine contract violation arising in
the course of a bargaining relationship stabilized by an
existing collective-bargaining agreement of fixed dura-
tion.
One of the central issues in this case is whether the
complete breakdown in the collective-bargaining relation-
ship between Respondent and the Union was caused by
Respondent's unfair labor practices. Whether that question
is answered in the affirmative or in the negative, the issue is
one that is appropriately resolved by Board process rather
than arbitration. All of the allegations in the complaint
must be considered in making that determination and
therefore none can be severed for resolution by arbitration.
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. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
1116