Silver Nugget

National Labor Relations Board - Board Decisions

Jan 8, 1969

174 N.L.R.B. 42 (N.L.R.B. 1969)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.V. Casino Corporation d/b/a Silver Nugget and
American Federation of Casino and Gaming
Employees. Cases 31-CA-819-1, 31-CA-819-2, and
31-RC-596
January 8, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On September 23, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended that such allegations be
dismissed. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, N.L.V. Casino
Corporation d/b/a Silver Nugget, Las Vegas,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
September 8 and 9, 1967, among the Respondent's
employees, be, and it hereby is, set aside, and that
'Under the established policy not to overrule a Trial Examiner's
credibility findings unless a clear preponderance of all relevant evidence
convinces us that they are incorrect, we find no basis for disturbing the
credibility findings in this case Standard Dry Wall Products, Inc, 91
NLRB 544, enfd , 188 F,2d 362 (C.A 3)
Case 31-RC-596 be remanded to the Regional
Director for Region 31 for the purpose of
conducting a new election at such time as he deems
that circumstances permit the free choice of a
bargaining representative.
[Direction of second election2 omitted from
publication.]
'An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region 31 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director. The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed. Excelsior Underwear Inc., 156 NLRB 1236
TRIAL EXAMINER'S DECISION
MAURiCE ALEXANDRE , Trial Examiner : On June 8,
1967,' United Casino Employees (hereafter called United
Casino)' filed a petition for certification as bargaining
representative of Respondent ' s casino employees .3 At the
hearing on the petition , three other unions were permitted
to intervene . International Association of Machinists and
Aerospace Workers, AFL-CIO (hereafter called
Machinists ), Las Vegas Casino Employees , Local 7'
(hereafter called Local 7), and American Federation of
Casino and Gaming Employees (hereafter called AFCGE).
Also at that hearing, the Hearing Officer granted the
motion of Machinists to amend the petition to show that
union as a joint petitioner with United Casino.
Following the hearing on the petition the Regional,
Director , on August 2, issued. a Decision and Direction of
Election in which, inter alia, he found that Respondent
was engaged in commerce within the meaning of the Act,
affirmed the ruling permitting the Machinists to appear as
joint petitioner , found either explicitly or implicitly that
United Casino , Machinists , Local 7 and AFCGE were
each labor organizations within the meaning of Section
2(5) of the Act , and ordered an election in a unit
consisting of Respondent 's casino employees . On August
11, Respondent filed with the Board a Request for Review
of the Decision and Direction of Election, and on August
14 it filed a supplement to that request . In those
documents , Respondent attacked the assertion of
jurisdiction over it as well as the ruling which gave the
Machinists status as joint petitioner . On September 7,-the
116MiBenied the requests for review on the ground that
"they raise no substantial issues warranting review." On
September 8 and 9, an election was held at which the
em y6y6es voted as follows:
For joint petitioners 14
For AFCGE 4
For Local 7 0
Against all unions 49
On September 13, AFCGE filed its objections to conduct
affecting the results of the election, setting forth five
separate objections.
All dates hereafter mentioned refer to 1967 unless otherwise stated.
'Affiliated with Seafarers International Union of North America,
AFL-CIO (hereafter called Seafarers).
'Case No 31-RC-596. The above caption reflects a change in parties in
that case made during the course of the instant hearing. See fn 29, infra.
'Affiliated with Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO
174 NLRB No. 8
N.L.V. CASINO CORP.
On November 30, the Regional Director issued a
consolidated complaint5 alleging that Respondent had
violated Section 8(a)(1) of the National Labor Relations
Act, as amended, by threatening reprisals if the AFCGE
won the election, and by promising benefits to its
employees if they refrained from becoming or remaining
members of that union or from supporting it. On
December 5, the Regional Director issued a Supplemental
Decision and Order Directing Hearing on Objections, in
which he overruled objections 1, 2, 3 and 56 but ordered a
hearing on objection 4, which read as follows:
4. After the notice of the election had been posted,
the Employer unilaterally placed into -effect an
insurance plan for the benefit of the employees eligible
to vote at the election.
On December 8, Respondent filed an answer in which it
admitted the jurisdictional facts alleged in the
consolidated complaint, failed to plead to the
jurisdictional conclusions alleged therein, failed to plead to
the allegation that the AFCGE is a labor organization
within the meaning of Section 2(5) of the Act, failed to
plead to the allegations regarding the supervisory status of
four named individuals,' and denied the commission of
unfair labor practices. On December 13, the Regional
Director amended his consolidated complaint,' and on the
same day he issued an order consolidating the complaint
proceeding with the proceeding on objection 4 in Case
31-RC-596 "for the purpose of hearing, ruling, and
decision by a Trial Examiner."' On December 20,
Respondent filed an answer to the amendment to the
consolidated complaint in which it denied the allegations
therein.
The consolidated proceedings were heard on February
27 and 28 and on May 21 and 22, 1968. At the close of
the General Counsel's case, Respondent moved to dismiss
the complaint upon several grounds. That motion is
disposed of in accordance with the findings and
conclusions made below.10
Upon the entire record, my observation of the
witnesses, and consideration of the briefs filed by the
General Counsel and the Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
L JURISDICTION
At the hearing, Respondent was permitted to amend its
answer so as to deny the jurisdictional facts1:vand
conclusions alleged in the consolidated cgynplqint.
'im v,--
'Based upon two charges filed on September 8 by AFCGE.
'Those objections alleged that Respondent had placed names, of
nonemployees on the list of eligible voters, had instructed certain
employees how to vote, had made a misleading speech to employees during
the 24 hours immediately preceding the election , and had distributed
misleading campaign literature.
'Meyer Rovinsky, Bob Baker , Douglas H Bent, and Eugene DiCillo.
'So as to , allege a repetition of an unlawful threat by Rovinsky on an
additional date.
'The consolidation order further provided that following such decision by
the Trial Examiner , Case 31-RC-596 should "be transferred to and
continued before the Board in Washington , D.C....
"In its brief, Respondent renews its motion , made at the hearing, to
sever the complaint and representation proceedings on the ground that it is
improper to combine a hearing on objection 4, in which the General
Counsel ' s role is that of a neutral , with an unfair labor practice
proceeding, in which his role is that of an advocate Since the complaint
and objection 4 contain common allegations , I adhere to my denial of the
motion N L.R.B. v. Gerry , Inc., 355 F.2d 727 (C.A. 9).
43
However , Respondent stated that the jurisdictional facts
had not changed , that the record relating thereto was
complete," and that no additional evidence thereon was
necessary . In its brief, Respondent contends that
jurisdiction cannot and should not be asserted over its
operations . This contention is rejected . Although the
existence of statutory jurisdiction may be raised at any
time,' 3 the Board ' s determination of that issue in the
representation case is binding in the instant ' proceeding
since Respondent has failed to, present newly discovered or
previously unavailable facts which require a different
conclusion. Green County Farm Bureau Cooperative
Assn., Inc. v. N.L.R.B., 317 F.2d 335 (C.A.D.C.).
II. THE LABOR ORGANIZATION INVOLVED
In his Decision and Direction of Election, the Regional
Director implicitly determined that AFCGE is a labor
organization within the meaning of Section 2(5) of the
Act. Respondent's request for review of that decision,
which was denied, did not attack that determination.
In its original answer to the complaint herein,
Respondent failed to plead to, and thereby admitted, the
allegation of paragraph 4 of the complaint that the
AFCGE is a labor organization within the meaning of
Section 2(5) of the Act. At the hearing, Respondent
sought to change its plea so as to deny that allegation. It
then conceded that AFCGE is a labor organization within
the meaning of the Act, and represented that it did not
intend to contest the finding on that issue in the
representation proceeding and that it was unnecessary for
the General Counsel to adduce any evidence relating
thereto in the instant proceeding.
I find that in the circumstances, the determination in
the representation proceeding - that AFCGE is a labor
organization within the meaning of the Act - is binding
in the instant proceeding.
III. THE UNFAIR LABOR PRACTICES
A. The Gonzalez Incident
1. The evidence
Sometime in July, i.e., the month following the filing of
the petition for certification, Betty Gonzalez, a dealer at
Respondent's casino, was discharged by her supervisor
and sought help from Hanley, business manager of
AFCGE. A meeting was held at Respondent's premises
during the first week of August, at which time those
present included Gonzalez, Hanley, Hill (AFCGE
president), Rovinsky (Respondent's vice president), and
Bent (Respondent's general manager). Toward the end of
the meeting, after discussion of Gonzalez, it was decided
to put her back to work but on a shift other than that of
her supervisor. Gonzalez was so informed, left
momentarily to obtain her husband's consent, returned
and agreed.
The record contains conflicting evidence as to what was
then said at the meeting. Gonzalez testified that Rovinsky
stated in her presence "that if the union did happen to get
into the - was voted in at the Silver Nugget that he
would pull out the 21 tables, the crap table, and just make
it into a slot place, put slots down the middle of the pit."
"The transcript of testimony and the exhibits received in Case
31-RC-596 were made a part of the record in the instant proceeding.
"See N.L.R.B. v Peyton Fritton Stores , Inc., 336 F.2d 769 (C.A. 10).
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She further testified that Rovinsky did not name any
union, and that, he did not, seem to be angry at the time.
However, in her prehearing affidavit, she had stated that
he did seem angry. Hanley testified that Rovmsky became
provoked during the course of the meeting, that Rovinsky,
in the presence of Gonzalez, made a statement
substantially similar to that testified to by the latter; that
after the meeting,' Hanley told Rovinsky that if he
continued to make such threats, the AFCGE would picket
Respondent and -file unfair lauor practice charges, and
that Hanley later made a similar statement to
Respondent's president and chief stockholder, Major
Riddle. Hill testified that upon her return to the meeting,
Gonzalez asked Rovinsky whether her shift could later be
changed, and that Rovinsky replied that "he wouldn't
worry about the shift too much, because in the event they
lost the election out there they would probably close the
pit because they,wouldn't be able to afford it."
Rovinsky denied the threat attributed to him by
Gonzalez and Hanley. He testified that neither he nor
Hanley became heated or had any argument at the
meeting, that the, Board election was not discussed, that
there was no discussion about Respondent being "in the
red" or, about a wage increase resulting from an election
victory by "the Union", and that the only matter
discussed was Gonzalez. Finally, he testified that he did
not recall Hanley's telling him that the AFCGE would
picket Respondent if it continued to threaten to, close
down to keep "the Union" out. Although Bent testified
that the threat attributed to Rovinsky was not made, he
further testified, in contradiction of Rovinsky, that there
had been an argument during the meeting. In addition, he
gave equivocal, confusing and self-contradictory testimony
as to whether Rovinsky had said anything at the meeting,
and as to whether Rovinsky had stated during the meeting
that Respondent was "in 'the red" or that a wage increase
would result if "a Union got in."
Following the meeting, Gonzalez returned to duty and
was still employed at the time of the hearing.
2. Concluding findings
I reject the testimony of Rovinsky and Bent and find
that the former did say something, in the presence of
Gonzalez, about replacing the pit with slot machines. If
Rovinsky" made the statement attributed to him by
Gonzalez and Hanley, Respondent is guilty of an unlawful
threat; i.e., that it would voluntarily closedown a portion
of its business if its employees should unionize. M. G.
Inman , Sr., etc., dba Modern Chevrolet Co., 169 NLRB
No. 117." If, on the other hand, Hill correctly described
Rovinsky's remarks, no violation resulted since the
remarks merely conveyed the view that unionization might
force a financial shutdown of the pit. They thus
constituted nothing more than a prediction of possible
economic consequences and did not imply that
Respondent would use its economic power to make the
prediction come true. Wagner Industrial Products
Company, Inc., 175 NLRB No. 157, and cases cited
therein. The question thus presented is whether or not the
General Counsel has sustained his burden of establishing
that Rovinsky made the threat attributed to him by
Gonzalez and Hanley. In view of the failure of the
General Counsel-'s witness to agree on what was said at
the meeting, I find that he has not sustained his burden.
"Respondent stipulated that Rovinsky is a supervisor within the meaning
of the Act.
B. The Baker and Bent Incidents
1. The evidence
Former employee Kimberlin testified that in late July
or early August, during a conversation with Pit Boss
Baker, the latter stated that he understood that "the old
man would close the place up if the Union got in there."
When asked whom Baker referred to as the "old man,"
Kimberlin testified, "I suppose Major Riddle because he
is the old man that had authority to close it up."
Kimberlin further testified that in middle or late August,
during a conversation with General Manager Bent," the
latter stated that "the old man said if the Union won the
election, if he lost the election, he was going to take the
pit out or close the joint, take the pit out." According to
Kimberlin, Bent did not identify whom he meant by the
"old man."
Baker testified that although he had discussed the
election with Kimberlin- several times, and although
Riddle's name may have come up, he never made the
statement attributed to him or any similar thereto, did not
recall Riddle's name being mentioned during the
conversation described in Kimberlin's testimony, normally
calls Riddle "the Major", and could not remember using
the term "old man" when referring to him. Bent gave
testimony substantially similar to Baker's.
2. Concluding findings
The General Counsel and Respondent each assert that
their witnesses should be credited. Although Baker and
Bent could not recall the details of their conversations
with Kimberlin, I find that the latter was a less reliable
and credible witness than they were Whereas Kimberlin
testified that Baker attributed the statement of intention
to close the casino to the "old man", his prehearing
affidavit, which was made a part of the record, stated that
Baker attributed the intention to "Major Riddle".
Whereas Kimberlin testified that Bent ascribed to the "old
man" an intention either to take out the pit or close the
casino, his prehearing affidavit referred only to an
intention to close the casino. In addition, as noted more
fully below, Kimberlin was an unreliable and incredible
witness as to other matters.
For these reasons, I reject Kimberlin's testimony and
credit that given by Baker and Bent. Accordingly, I find
that the General Counsel has not sustained his burden of
establishing that unlawful threats were made by either of
the,,jwo supervisors.' 6
'
^ iggy
"The record shows that Gonzalez had been offered and had accepted a
job on the graveyard shift at the time of Rovinsky's alleged remarks
Accordingly , I find that she was an employee of Respondent at that time
But even if she were regarded only as an applicant for employment at the
time, a threat made in her presence would constitute an unfair labor
practice Tucson Ramada Caterers , Inc., 154 NLRB 571, 575; Flora
Construction Co , 132 NLRB 776, 788.
"Respondent stipulated that Baker and Bent were supervisors within the
meaning of the Act.
"There is a dispute as to whether Bent, in a conversation with Hanley,
made a threat to convert the pit into a "slot joint " if "the union" won the
election. However, there is no evidence that any rank and file employee
was present at the time or that any employee learned of the alleged threat.
Moreover, the General Counsel's brief does not assert that the alleged
threat constituted an unfair labor practice Accordingly , it is unnecessary
to make any determination regarding the matter.
N.L.V. CASINO CORP. 45
C. The Truman Scott Incident
1. The evidence
On or about September 1, Hanley and Hill of the
AFCGE entered Respondent's casino where they
encountered Truman Scott, a former agent for the
Seafarers. Scott informed them that he was looking for a
job at the casino and inquired whether they had any
objections. Hanley and Hill replied that they had none
and would accompany him. The three then approached
Rovinsky and Casino Manager Bennett, who admittedly
were standing directly in the center of the pit surrounded
by employees working in the immediate vicinity, and Scott
asked Rovinsky for a job.
Hill testified that the conversation was primarily
between Bennett, Hanley and Scott, that Bennett and
Rovinsky both rejected the request for employment, and
that Rovinsky told Scott "not to worry about a job too
much because if they lost the election they were going to
make a slot joint out of it." Hanley testified that Bennett
refused to hire Scott on the ground that if he did, the
Seafarers and AFCGE would object; that Hanley replied
that his union had no objection; that Rovinsky then stated
that Scott "had been too closely associated with the
unions"; and that Bennett agreed, explaining that Scott
had been associated with the Seafarers and that
Respondent had been having trouble with that and other
unions. Hanley further testified that Bennett also stated
the following:
Q. Anything else mentioned in the conversation by
the management representatives?
A. Only by Mr. Bennett, where he said he didn't
think they would need any dealers. If the union came in
there, the pit would be taken out and slot department
made of it.
In effect, there would be no need for dealers if the
union came in. He never described the action that
they would make a slot joint out of it.
Employee Wittway testified that he and other employees
were on duty close to the group, that he did not recall
Bennett's presence, and that he heard a portion of the
conversation in which Rovinsky said that "if he lost the
election, he would take the slot - take the pit out and
borrow $6,000 from the Dunes Hotel and make a slot
joint out of it."
Rovinsky denied making the threats attributed to him,
and testified that he did not hear Bennett say that: Scott
would not be hired because of his union affiliations.
Rovinsky also testified that it was "silly" to suggest that
he could borrow $6,000 from the Dunes Hotel, with which
he had no relationship whatsoever. On cross-examination,
he testified that Riddle, the president and major
stockholder of Respondent, is president and a minority
stockholder of the Dunes Hotel.
2. Concluding findings
As already indicated, it is an unfair labor practice for a
supervisor, in the presence of one or more employees, to
threaten to close down a portion of the business if the
employees should unionize. I find that such a threat was
made, but the problem presented is the identity of the
maker. If it was Rovinsky, Respondent violated Section
8(a)(1). If, however, Bennett made the threat, no violation
may be predicated thereon in view of the stipulation made
by the parties that no finding of unfair labor practices
should be predicated upon conduct by Bennett." I find
that the General Counsel has not sustained his burden of
establishing that it was Rovinsky who made the threat.
For although Hill and Wittway agreed that it was
Rovinsky, Wittway did not even recall the presence of
Bennett who, according to Hill, did most of the talking to
Hanley and Scott. In addition, Hanley attributed the
threat to Bennett. In view of these contradictions, I find
that the record does not establish that it was Rovinsky
rather than Bennett who made the unlawful threat.
D. The DiCillo Incident
1. The evidence
Employee Wittway testified that on or about September
1, he asked Employee DiCillo why he was measuring the
dealers' pit in the casino, and that DiCillo replied, "To
see how many slot machines we can get down through the
center of the pit, if the Union wins the election." On
direct examination, Wittway testified that Employee
Kimberlin was present when DiCillo made the statement.
On cross-examination, Wittway testified that he was not
sure whether it was Kimberlin or Employee Alexander
who was present. Alexander testified that "about a week
after the election," he saw DiCillo measuring the pit, that
Kimberlin and other employees were present at the time,
that one of them asked DiCillo what he was doing, that
the latter replied "that he was measuring in case the union
won they were going to take out the pit and put slot
machines in", and that Alexander then had a conversation
about the remark with Employee Kimberlin
In a prehearing affidavit executed September 27,
Kimberlin had stated that on August 27 or September 2,
he noticed DiCillo doing some measuring in one of the
casino pits, that Kimberlin asked employee Todd, a
boxman, the purpose of _the measuring, that Todd replied
that he had been told that its purpose was to ascertain
how many slot machines could be installed if the pit was
taken out, but that Todd did not say anything to indicate
that the possible change was related to the forthcoming
election. During his testimony, Kimberlin stated, and later
repeated, that Todd told him that he had been told that
the pit would be taken out if "the union" won the
election. When the inconsistency was brought to his
attention, Kimberlin admitted that his testimony was
erroneous.' °
In his prehearing affidavit, Kimberlin had also stated
that he did not remember Wittway and DiCillo talking to
each other about the latter's measuring activities and,
indeed, was uncertain whether Wittway was present at the
time of the statement attributed to DiCillo. In his
testimony, Kimberlin stated that Wittway was present,
that he overheard only part of a conversation between
Wittway and DiCillo, that he heard the latter "say
something about putting in the slot machines and taking
out the pit if the union won the election," and that
Kimberlin and Alexander commented on the remark.
Although admitting that his memory was better when he
executed the affidavit on September 27, Kimberlin
testified that his memory respecting Wittway had been
"Respondent stated on the last day of the hearing that Bennett, its last
witness, was ill and would not be available to testify until 2 days later. In
order to conclude the hearing without further delay, the General Counsel
and Charging Party entered into the above stipulation.
'.Todd testified that he did not relate the purpose of the measuring to
the election.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refreshed by questions put to him by the General Counsel
during preparation for the hearing shortly before it
opened.
DiCillo admitted that he had measured the pit on or
about September 1, but denied having made the statement
attributed to him. He testified that since the casino had
opened in 1965, he had measured the pit and other public
areas at least 50 times in connection with Respondent's
plans for relocating various facilities, some of which plans
had been carried out and some of which were in
contemplation."
2. Concluding findings
The General Counsel contends that DiCillo's act of
measuring the pit shortly before the election itself
constituted an implied threat of reprisal since, when
considered in the context of Respondent's other unfair
labor practices, it was designed to impress upon
employees that Respondent might close the pit if it lost
the election; but that even if DiCillo was measuring for
legitimate business reasons, his statement to Wittway
constituted an express threat of reprisal; and that since
DiCillo was a supervisor within the meaning of Section
2(11) of the-Act, his threat constituted a violation of
Section 8(a)(l). Respondent contends that the measuring
was for legitimate business reasons, that DiCillo was not a
supervisor, and that he did not make any threats
I find that the General Counsel has not sustained his
burden of establishing that DiCillo made the threat in
question. Kimberlin's testimony relating to statements
made to him by Todd and DiCillo was inconsistent with
his prehearing affidavit. As to DiCillo's statement,
Kimberlin gave an unsatisfactory explanation for the
inconsistency; and as to Todd's statement, he admitted
that his testimony was incorrect. In addition, Kimberlin's
testimony seemed somewhat evasive at times, and his
demeanor while testifying was not such as to instill a
feeling of confidence.'" Wittway gave contradictory
testimony as to whether Kimberlin was present at the time
in question. Alexander placed the event as having occurred
a week after the election; i.e., at a time when such a
threat would have been meaningless Accordingly, I am
unable to rely upon the testimony of Kimberlin, Wittway
or Alexander.
"General Manager Bent and Comptroller Thom gave corroborating
testimony
"In attempting to impeach Kimberlin's testimony that his memory had
recently been refreshed and that he now recalled DiCillo's statement to
Wittway, Respondent offered in evidence a portion of a prehearing
affidavit, executed by Wittway on September 25 and identified as
Respondent 's Exhibit 6, in which he stated that Kimberlin was present and
heard DiCillo's statement . Respondent pointed out that when the same
field investigator questioned and obtained an affidavit from Kimberlin 2
days later , the latter's recollection was not refreshed regarding Wittway's
presence Respondent contended at the hearing , and renews the contention
in its brief, that if the questions of the field investigator, who was armed
with Wittway's affidavit, did not refresh Kimberlin 's recollection at a time
when the events were fresh in his mind , it is unlikely that his memory
would have been refreshed shortly prior to the hearing.
Although the affidavit would establish that the field investigator had
Wittway' s then version of the events at the time Kimberlin gave a contrary
version, that fact is insufficient by itself to justify an inference that
Kimberlin's recollection should have been refreshed at the time he was
interviewed by the field examiner The affidavit thus has insufficient
probative value to warrant its receipt in evidence . In any event, the
affidavit is unnecessary in view of my rejection of Kimberlin's testimony.
Accordingly, Respondent's Exhibit 6 is hereby rejected and it is ordered
that the said exhibit be placed in the rejected exhibit file
In view of the above finding, it is unnecessary to
determine whether or not DiCillo was a supervisor. It is
also unnecessary to determine whether or not DiCillo's
measuring activity was motivated by an unlawful purpose.
For even if it was so motivated, there is nothing to show
that the employees were aware of such a purpose. It is
uncontradicted that DiCillo had frequently measured. the
pit and other public areas in the past in connection with
possible plans for relocating various facilities. So far as
the record shows, there was nothing unusual about the
taking of measurements by DiCillo on or about
September I and no reason why the employees should
regard his conduct as out of the ordinary and as carrying
with it an implied threat. Accordingly, I find that the
General Counsel has not sustained his burden of
establishing that DiCillo's conduct constituted an unlawful
implied threat.
E. The September 1 Letter Relating to Employee
Insurance
1. The evidence
Prior to the filing of the petition for certification on
June 8, Respondent's employees were covered by a group
life, accident and medical insurance policy which
Respondent had purchased from New England Mutual
Life Insurance Company (hereafter called New England),
and which had become effective July 1, 19.66. During the
following May, Respondent' s insurance broker, Oswald,
informed Respondent's Comptroller, Thom, that claims
under the policy had been excessive and that he
anticipated an increase in premium. For that reason, he
requested and received permission from Thom to solicit
bids from other insurance carriers. At the same time,
Thom requested Crosato, an agent for Prudential Life
Insurance Company (hereafter called Prudential), to
obtain a bid from his company. According to Thom, his
instructions were that Respondent wanted a bid "similar"
to the New England plan then in effect.
Thom testified that beginning in June, he began to
receive bids from carriers which had been solicited.21
Sometime during August, Crosato's group manager,
Ortiz, telephoned Thom to inquire about Respondent's
decision, and Thom replied he wished to wait until the
latter part of August to permit other bids to arrive. In all,
Thom received bids from Prudential and two other
carriers. In the latter part of August, Ortiz again
telephoned to ask which carrier had been selected and
Thom told him that it was Prudential. According to
Thoiii;tiidential received the award because its bid was
the lowest Thom further testified that Respondent
changed its insurance carrier for economic reasons and
that the change was in no way related to the forthcoming
Board election.
The Prudential plan became effective on September 1
and on or about that date, Respondent sent to its
employees a letter, dated September 1 and signed by
General Manager Bent, informing them of the new
Prudential insurance plan effective September 1, and
listing what the letter called a "concensus of coverages" of
the plan. Among other benefits listed in the letter was the
following "lst 300 00 at 100% for accident benefit - this
"Crosato testified that Prudential's bid was submitted at the end of May
and that it contained an insurance plan which , for the premium range
which Respondent was willing to pay, was as close as possible to that
provided in New England 's policy.
N.L.V. CASINO CORP.
is an additional benefit." Bent testified that although he
signed the letter, he did not compose it. Thom testified
that it was composed by Prudential, and that he had
nothing to do with inserting the reference to the
"additional benefit" in the letter. Crosato testified that
preparation of such a letter by Prudential was normal
procedure.
On direct examination, Crosato testified that it was
Prudential which selected the September 1 effective date,
that that date was selected rather than a later date
because Respondent's New England contract was on a
fiscal year basis, and delay beyond September 1 would
have resulted in renewal of that contract, thereby
compelling Respondent to wait another year before
changing carriers. On cross-examination, he testified that
he assumed that after the July 1, 1967 anniversary date of
the New England contract, Respondent's coverage under
that contract continued on a month-to-month basis. Thom
testified that although the anniversary date of New
England contract was July 1, 1967, it was a continuing
contract and had no termination date; that after its bid
was accepted, Prudential took over the matter of
implementing the insurance plan; and that it told him that
it wanted the plan to become effective September 1.
According to Thom, Ortiz went to Las Vegas twice to
talk to him sometime between the summer of 1967 and
September 1, and telephoned him in late August, at which
time Thom stated that Prudential's bid had been accepted.
At one point, Thom testified that Ortiz told him about the
September 1 date during that conversation. At another
point, he testified that shortly after the conversation,
Crosato informed him that Prudential wanted to make the
contract effective September 1, and that Thom had never
discussed any effective date with anyone.
By letter dated September 2, Respondent formally
terminated the New England contract as of August 31,
thereby confirming its prior oral termination which,
according to Thom, was given somewhere around August
20.
2. Concluding findings
The General Counsel argues that the employee benefits
in the Prudential plan were superior to those provided in
the New England plan, that it was Respondent rather than
Prudential which selected September 1 as the effective
date of the new plan and the date for sending out the
letter advising the employees that such superior benefits
had been purchased for them, and that Respondent
selected that date as part of its campaign to defeat the
AFCGE at the Board election scheduled for Septermber 8.
By conferring additional benefits upon its employees for
that purpose, the General Counsel contends, Respondent
violated Section 8(a)(1) of the Act. Respondent denies
that the Prudential benefits were superior, that it selected
the September 1 date, and that it entered into its contract
with Prudential for unlawful reasons. Its position is that it
decided to change its insurance carrier prior to the filing
of the petition for certification and, solely for economic
reasons, that Prudential selected the September 1 date and
prepared the contents of the letter sent on that date to the
employees, and that Respondent merely accepted
Prudential's decisions.
I find that it is unnecessary, if indeed possible on the
record here presented, to determine whether or not the
Prudential contract was in fact superior to New
England's."" For whether or not the Prudential plan was
superior, I conclude that Respondent's conduct in the
47
matter of insurance violated Section 8(a)(1).
Although the record establishes that Prudential
prepared the contents of the letter, I reject the testimony
of Crosato and Thom that Prudential selected September
1 as the effective and the announcement date of the new
plan. Crosato's explanation for the selection - that a
later date would have resulted in renewal of the New
England contract for another year - was contradicted by
Thom's testimony that the New England contract had no
automatic renewal clause and would have continued on a
month-to-month basis until terminated by either party
thereto Moreover, Crosato's answers to questions and his
manner of testifying gave the distinct impression that he
was attempting to give testimony which he thought was
desired by Respondent." Thom gave self-contradictory
testimony as to when and by whom he was informed of
the selection of that date. In addition, it appeared from
his testimony and demeanor that he was not making a full
and candid disclosure of all the circumstances surrounding
the selection of the September 1 date. I find that it was
Respondent which selected the September 1 date.
Since Respondent's denial that it made the selection
falls, a legitimate reason for such selection is lacking. On
the other hand, the record discloses circumstances which
suggest that the selection was made for illegitimate
reasons."" First, it was apparently customary to complete
necessary paperwork and to enroll the bulk of the
employees prior to the effective date of a Prudential plan.25
Yet Thom testified that the employees were given
enrollment forms after the September 1 effective date, i.e.
about the middle of September. No explanation appears
for this apparent deviation from custom. Moreover, Thom
and Crosato both agreed that no employee was covered by
the Prudential contract until he executed an enrollment
card. It would thus appear, so far as this record shows,
that during the period from September 2, when
Respondent formally terminated its New England
contract, until about mid-September, when it distributed
the enrollment cards, its employees were not covered by
insurance. No explanation appears for this unusual
circumstance. Since Respondent had no legitimate reason
"=The evidence relating to that question consists of testimony by Crosato
and Thom, the September 1 letter, and the New England and Prudential
contracts . Crosato's testimony is of no value Some of it was
self-contradictory; some answers were given in reply to leading questions;
and he admitted that he had little familiarity with the benefits provided in
the New England plan. Similarly, no help may be obtained from Thom's
testimony. He testified that whereas the Prudential accident benefit merely
reimbursed employees for all of the first $300 in medical expenses, the
New England accident benefit provided for 80 percent coverage to a
maximum of $ 10,000, with "no $300 limitation", and accordingly that even
though the September 1 letter described the Prudential accident benefit as
an "additional benefit", the New England accident benefit had in fact been
superior.
It would appear , however , that the Prudential accident benefit was
superior since it seems to cover not only 100 percent of the first $300 of
medical expenses , but also 80 percent of the excess over and above a
deductible of $50. But even if Thom was correct , his testimony relates to
only one of many items covered in the two plans A proper evaluation of
the two plans would, in my opinion, require the benefit of expert testimony
which analyzes all of their esoteric and complicated provisions
"For example, on cross-examination by the General Counsel, Crosato
testified that the $300 benefit referred to in the letter was in fact an
additional benefit over and above the New England plan On redirect
examination , in response to an inquiry from counsel for Respondent as to
whether he wished to correct his testimony , Crosato testified "It is
comparable , if that is what you want "
"Crosato testified that it was not necessary to make the contract
effective on the first of any month , and that it could begin at any time
"Crosato testified that it was his impression that Prudential ' s bid was
accepted near the end of July or beginning of August , and that an August
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for selecting September 1 as the effective and
announcement date for the Prudential plan, I agree with
the General Counsel that the timing of Respondent's
action was not coincidental.
Based on these considerations, and taking into account
Bent' s admission that Respondent opposed all the unions
on the ballot, I am persuaded and find that Respondent
selected September 1 as the effective and notification date
for the Prudential plan in order to influence its employees
to vote against unionization at the election scheduled for
September 8. Cf. United States Railway Equipment Co.,
172 NLRB No. 51
I further find that after reading the letter, an employee
familiar with the New England plan could reasonably
believe that enrollment in the Prudential plan would result
in an improvement of his benefits.26 It follows, and I find,
that if the Prudential benefits were in fact superior to
those in the New England contract, Respondent violated
Section 8(a)(l) by engaging in "conduct immediately
favorable to employees which [was] undertaken with the
express purpose of impinging upon their freedom of choice
I effective date was not possible because the paperwork and enrollments
"had to be done." Although Crosato was mistaken as to the acceptance
date, which occurred in late August , this does not affect his testimony
regarding what had to be done before the effective date.
"The following is a comparison of the New England benefits and those
set forth in the September I letter:
New England Sept . I Letter
Life insurance coverage $2000 $5,000
Reimbursement for 100 of first $975 of first
hospital charges $500, plus $1000, plus 80
80 of excess of excess
Reimbursement for 80 100 of fees set
surgical expenses forth in fee
schedule (maximum
of $900), plus
80 of excess
Reimbursement for 80 100 of first
medical expenses $300. Letter
resulting from accident stated that "this
is an additional
benefit "
Deductible $100 $50
Total cumulative major $10,000 $40,000
medical reimbursement
Reimbursement for 80 of expenses $80 of expenses
major medical in excess of in excess of $50
$100 deductible deductible
for or against unionization and {was] reasonably
calculated to have that affect." N.L.R.B. v. Exchange
Parts Co., 375 .U.S. 405; N.L.R.B. v. Newman-Green,
Inc., 401 F.2d I (C.A. 7). Although Respondent decided
to solicit bids from Prudential and other insurance carriers
before the petition was filed, it made its final decision
after the filing date and shortly before the election, "while
in a position to refrain from granting the increase" in
insurance benefits until after the election. Crown Tar &
Chemical Works v. N.L.R.B., 365 F.2d 588 (C.A. 10).
Respondent "is charged with knowledge of the Act's
concern about employee freedom in the exercise of
[industrial] rights, and has offered no explanation of the
timing of its announcement which would compel a finding
that [its] action was not designed to affect the election.
When the employer chose to announce the insurance
program at the time and under the circumstances here, it
took the risk that its conduct could justify the inference
that the preparation of the insurance plan and its
promulgation was timed to induce, or did induce, votes
against the Union." N.L.R.B. v. Newman-Green, Inc.,
supra.
If, on the other hand, the Prudential benefits were not
superior to New England's the fact remains that the
September 1 letter gave the impression that they were
superior and was thus misleading - a circumstance which
must have been apparent to Respondent, and one for
which Respondent must accept responsibility That
Prudential drafted the letter does not decrease that
responsibility, since Respondent was not compelled to
adopt the draft as its own. If, as Respondent contends, the
Prudential and New England plans were comparable, it
could have sent its employees a letter which reflected that
fact. Since it chose to send a letter which, if its premise
regarding comparability is adopted, was misleading, I find
that it did so in order to induce the employees to vote
against unionization at the forthcoming election. The Act
prohibits a material misrepresentation of facts for an
unlawful purpose. Haynes Stellite Co., 136 NLRB 95.
For the foregoing reasons, I find that Respondent,
shortly before the election and for an improper purpose,
either increased the benefits of its employees or led them
to believe that their benefits had been increased, and
thereby interfered with, restrained or coerced its
employees in violation of Section 8(a)(1).27 In its brief,
Respondent contends if any unfair labor practices were
committed, they were isolated occurrences which should
not ; ggtreated as Section 8(a)(1) violations. This
conteptii1 is without merit. In N.L R.B v. Exchange
Parts 5Co., supra, in enforcing a cease and desist order
based' on a finding that the employer had unlawfully
sought to induce an antiunion vote by granting birthday
holidays and overtime and vacation benefits to employees,
the Supreme Court rejected the defense that the illegal
conduct was isolated, stating that "an employer is not free
to violate Section 8(a)(1) by conferring benefits simply
because it refrains from other, more obvious violations."
Those words have equal application to Respondent's
unlawful conduct.
"In support of its position that its conduct was lawful , Respondent cites
the decisions in TMT Trailer Ferry, Inc, 152 NLRB 1495, T L Lay
Packing Co., 152 NLRB 342; and Divco-Wayne Industries , 154 NLRB
974. Those cases are distinguishable on their facts.
N.L.V. CASINO CORP. 49
IV. OBJECTIONS TO THE ELECTION
As found above, Respondent ' s September 1 letter could
have led its employees, reasonably to believe that the
Prudential plan provided benefits superior to those in the
New England contract . Accordingly , I find that whether
Respondent in fact increased the benefits of its employees
or merely led them to believe that their benefits had been
increased shortly prior to the election , its conduct had a
tendency to interfere with a free choice in the election,
and that Objection 4 should be sustained . Cf. N.L R.B. v.
Tennessee Packers, Inc., 379 F.2d 172 (C.A. 6), Haynes
Steltite Co , supra. 28 There is no merit to Respondent's
contention that if any misconduct occurred , it was too
isolated to have affected the results of the election. The
September 1 letter was sent to all employees and can
hardly be regarded as having had only isolated impact.
V. THE REMEDIES
I shall recommend that Respondent cease and desist
from its unfair labor practices, and that it post the usual
notices. I shall also recommend that the election of
September 8 and 9 be set aside .21
CONCLUSIONS OF LAW
1. Respondent interfered with, restrained and coerced
its employees, in violation of Section 8(a)(1) of the Act,
by sending to its employees the September 1 letter,
relating to employee insurance, which had the purpose and
tendency to induce the employees to vote against
unionization.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
"The cases relied on by Respondent are inapposite In Trent Tube Co ,
147 NLRB 538, the Board held that the employer 's preelection letters
could clearly be evaluated by the employees as partisan electioneering. In
Shure Brothers Inc, 147 NLRB 43 and in American Greeting Corp, 146
NLRB 1440, the Board held that the unions involved had ample
opportunity to present their case to the employees and hence that the
employers ' alleged preelection misrepresentations produced no substantial
impairment of employee freedom of choice In the instant case,
Respondent's letter cannot be regarded as partisan electioneering which
could have been neutralized by counterpropaganda. Moreover , there was
no reason for the employees to suspect that the letter might be misleading
and, therefore , no reason to attempt to ascertain the facts
"During the recess in the hearing herein between February 28 and May
21, i e by letter dated April 10, 1968, the Regional Director denied the
request of the joint petitioners in Case 31 -RC-596 for withdrawal of the
petition for certification , and over Respondent's objection, he approved the
joint petitioners ' alternative request for permission to withdi Lafrom
participation as a party to the representation proceeding , foillii d `upon
investigation that AFCGE "has submitted a showing of interest sufficient
to maintain the petition in its own right ", and ordered that "it is so
maintained." By letter dated April 19, 1968, Local 7 advised the Regional
Director of its assumption that its status as intervenor continued
In its brief, Respondent renews its contention , made at the hearing, that
contrary to the Charging Party's position , the Trial Examiner lacks
authority to direct a new election because of the Charging Party's failure
to make the ptoper 30 percent showing of interest required by the Board,
and the alleged illegality of permitting the Charging Party to maintain the
petition in its own right . It is unnecessary for me to make a
recommendation respecting the holding of a new election For one thing,
since I "merely acted as the Regional Director ' s hearing officer with
respect to the representation matter in the consolidated case" (Chelsea
Clock Co, 170 NLRB No, 21), I am bound by the Regional Director's
administrative determinations in his letter of April 10, 1968 In addition,
the decision as to whether a new election should be held may be predicated
upon administrative considerations which are wholly unrelated to the
matters litigated in this proceeding , and as to which I have no information.
3. The record fails to establish that Respondent
engaged in any alleged unfair labor practices not found
above.
RECOMMENDED ORDER
1. Respondent, its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Informing or giving the impression to its employees
that their insurance benefits have been increased in order
to induce them to vote against unionization Provided,
however, that nothing herein shall require Respondent to
vary or revoke any insurance benefits which it has
heretofore granted to its employees.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its place of business in Las Vegas, Nevada,
copies of the attached notice marked "Appendix."'"
Copies of said notice, on forms provided by the Regional
Director for Region 31, shall, after being duly signed by
an authorized representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith."
II. It is recommended that the complaint be dismissed
insofar as it alleges any unfair labor practices not found
herein.
III. It is recommended that the election held on
September 8 and 9, 1967, in Case 31-RC-596 be set aside.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 31 , in writing, within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT inform our employees, or give them
the impression, that their insurance benefits have been
increased in order to induce them to vote against
unionization. However, we are not required to vary or
revoke any insurance benefits which we have heretofore
granted.
WE WILL NOT in any like or related manner interfere
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrain or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act.
N. L. V. CASINO
CORPORATION D/B/A
SILVER NUGGET
(Employer)
Dated By
(Representative)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 215 West
Seventh Street , Los Angeles , California , 90014, Telephone
(Title ) Number 688-5850.
11 'l