Silver Spur Casino

National Labor Relations Board - Board Decisions

Apr 4, 1977

228 N.L.R.B. 1147 (N.L.R.B. 1977)

SILVER SPUR CASINO 1147
Silver Spur Casino and Hotel-Motel-Restaurant
Employees & Bartenders Union, Local 86, Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO. Cases 20-CA-9803-3, 20-CA-
9853-3, 20-CA-9869-3, 20-CA-9897-3, and 20-
CA-9905-3
April 4, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On December 23, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
the Charging Party filed briefs in answer to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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,'
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Silver Spur
Casino, Reno, Nevada , its officers , agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
Produce Co., Inc. v. N.LRB., 515 F.2d 1373, 1376 (CA. 8, 1975), and that
Respondent has shown no substantial reason to disregard it. Indeed, union
business records are wholly irrelevant to the issue raised by Respondent's
defense, Retired Persons, supra and any information the Regional Office
may have given to Respondent concerning an anticipated dismissal of the
instant unfair labor practice charge is irrelevant to any issue in this
proceeding because the General Counsel did, in fact , issue a complaint.
Accordingly, we conclude that the Administrative Law Judge properly
revoked the subpena of Field Examiner Sargent.
2 The Respondent has 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 of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 Respondent's request for oral argument is hereby denied as the record,
the exceptions , and the briefs adequately present the issues and the positions
of the parties.
DECISION
STATEMENT OF THE CASE
RICHARD J . BoYcE, Administrative Law Judge: This
matter was heard before me in Reno, Nevada , on June 8
and 9, 1976.
The five charges herein , filed and amended on various
dates 1 by Hotel-Motel-Restaurant Employees & Bartend-
ers' Union, Local 86, Hotel & Restaurant Employees &
Bartenders International Union , AFL-CIO (herein called
the Union), allege violations of the National Labor
Relations Act by Silver Spur Casino (herein called
Respondent), and other employers not involved in this
hearing. To distinguish this hearing from those under the
same docket numbers involving other employers , a suff'ix'
(-3), has been i ;added to the case numbers as reflected
above in the caption.
The complaint on which this matter was heard issued on
October 3, 1975, was amended during the hearing, and
alleges that Respondent violated Section 8(a)(5) and (1) of
the Act.
The parties were permitted at the hearing to introduce
relevant evidence, examine and cross-examine witnesses,
and argue orally. Briefs were filed for the General Counsel,
for Respondent, and for the Charging Party.
I In support of its alternative defense that the Union did not , in fact,
enjoy majority status on December 20, 1974, when recognition was
withdrawn , Respondent asserts in its brief that it should have been
permitted to adduce testimony from Business Representative Howard
Lawrence regarding the existence of union business records demonstrating
(if such could) that as of that date the Union represented a majority of the
employees employed by Respondent . We find no merit in this contention, as
it is well established that particularly where, as here, union membership was
voluntary, such records are irrelevant to a determination of whether a
majority of employees desired union representation . Retired Persons
Pharmacy v. N.LR.B, 519 F.2d 486,491 (CA. 2, 1975).
In further support of its alternative defense , Respondent asserts in its
brief that it should have been permitted to adduce testimony from Field
Examiner David Sargent of Region 20 of the National Labor Relations
Board concerning his alleged review of the Union's business records.
Respondent contended at the hearing that it also sought to question Field
Examiner Sargent with respect to an alleged preliminary determination by
the Regional Office that Respondent was considered not to have violated
the National Labor Relations Act. At the hearing, the Administrative Law
Judge revoked the subpena directed to Field Examiner Sargent. We are
satisfied that the testimony sought by Respondent fell within the "limited
evidentiary privilege which protects the informal investigatonal and tnal-
preparatory processes of regulatory agencies such as the NLRB," Stephens
228 NLRB No. 149
I. ISSUE
The issue is whether Respondent violated Section 8(a)(5)
and (1) by refusing to recognize and bargain with the
Union on and after December 15, 1974.
It. JURISDICTION
Respondent operates a restaurant , bar, and casino in
Reno, Nevada. It annually receives revenues exceeding
$500,000, and purchases and causes to be delivered across
state lines goods and materials valued in excess of $10,000.
1 The charge in Case 20-CA-9803 was filed on December 16 , 1974, and
amended seven times, most recently on June 2, 1975. That in Case 20-CA-
9853 was filed on January 13, 1975, and amended on June 17 , 1975 . That in
Case 20-CA-9869 was filed on January 16 , 1975, and amended on June 17,
1975. That in Case 20-CA-9897 was filed on January 23, 1975, and
amended pn June 17 , 1975. That in Case 20-CA-9905 was filed on January
27,1975, and amended on May 7 and June 25, 1975.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act .2
HI. LABOR ORGANIZATION
has been received to date from you or from your
Association representative.
Unless you contact Mr. Bramlet immediately, refusal
to bargain charges will be filed with the National Labor
Relations Board without further notice.
The Union is a labor organization within Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent opened for business on or about July 1,
1968. Later that year, it became a member of the Reno
Employers Council (herein called the Council). By joining,
Respondent became subject to the then existing multiem-
ployer-unit labor contract between the Council and the
Union covering the bar and culinary employees of the
Council's several employer-members. Respondent's mem-
bership in the Council made it subject to later contracts
between the Council and the Union, as well, the most
recent running from February 16, 1972, through February
15, 1975. Respondent had 90 to 100 bar and culinary
employees at the times now in question.
By letters dated November 15, 1974, Al Bramlet, an
official of the Union, informed the Council and its
members, including Respondent, of the Union's desire "to
change and modify for the period following February 16,
1975, the terms and conditions of our current Collective
Bargaining Agreement with you." The letters requested
that the employers "communicate with the undersigned for
the purpose of arranging for collective bargaining negotia-
tions."
By letter to the Council dated December 11, 1974, copy
to the Union, Respondent stated:
This is to notify you that the Silver Spur Casino is fully
withdrawing from the Reno Employers Council on all
matters pertaining to collective bargaining or labor
relations matters.
And, by letter to the Union dated December 12, Respon-
dent stated in relevant part:
This is to . . . notify you that in accordance with the
existing Reno/Sparks collective bargaining agreement,
we desire to and hereby do terminate said agreement
effective as of the end of the term thereof.
The Union received a similar letter of the same date from
the Council.
By letter to Respondent dated December 13, the Union's
attorney, Philip Bowe, wrote:
As you know, our office represents Hotel-Motel-
Restaurant Employees and Bartenders Local 86.
Although a contract reopener letter concerning your
bar and restaurant agreement was mailed to you on
November 15, 1974, with a request for you to contact
Mr. Bramlet to arrange for negotiations, no response
Bowe sent similar letters of the same date to other recently
withdrawn members of the Council, and to the Council
itself.
Attorney Nathan Berke, representing Respondent
among others , replied to Bowe's letter with this to the
Union, dated December 20:
This is in reply to the recent letter from your
attorney to the following whom we represent:
Nevada Club
Palace Club
Ponderosa
Reno Nugget
Silver Spur
Sparks Nugget
As you are aware from letters recently sent you from
each of them and from the Reno Employers Council,
each of our clients has timely withdrawn from the
multi-employer group and each is handling its own
collective bargaining. The bargaining unit, therefore, is
entirely different as far as each of our clients is
concerned.
Although it is not clear from your attorney's letters
as to what unit you are claiming or whether you claim
to represent a majority of each of our clients' employees
in an appropriate unit, we will treat his letter as though
he has on your behalf requested bargaining in a unit
consisting of culinary and bartender employees in each
of the named establishments.
Pursuant to instructions from each of our clients, on
behalf of each of them individually, we hereby inform
you that each individually has a genuine doubt that
your Local continues to represent an uncoerced
majority of their respective employees in an appropri-
ate unit. If following a validly conducted election in an
appropriate unit under the aegis of the National Labor
Relations Board, your Local should be selected as the
bargaining agent, our clients individually will at such
time fulfill whatever legal obligation they may individu-
ally then have.
Should your Local file a petition with the Board for
an election, each of our clients, individually, will
cooperate looking toward an election under the Labor
Management Relations Act, 1947, as amended and the
Board's applicable Rules and Regulations.
Respondent at all times since has refused to recognize
the Union.
2 Respondent's argument is rejected that Board jurisdiction over it gaming industry in Nevada. Nevada Lodge, 227 NLRB No. 73 (1976); Grand
should not be asserted because of the extensive state regulation of the Resorts, Inc., 221 NLRB 539 (1975); El Dorado, Inc, 151 NLRB 579 (1965).
SILVER SPUR CASINO
James Parker, Respondent 's general manager , testified
that Respondent 's refusal to recognize the Union was
based upon his belief that the Union did not represent a
majority of Respondent's bar and culinary employees in
late 1974. Parker continued that his belief derived from
several factors:
1. Newspaper articles: Parker cited two articles appear-
ing in Reno papers, one on August 20, 1974, the other on
August 22. The August 20 article quoted from a piece
written by Bramlet for the Union's monthly magazine in
which he deplored working conditions in the bar and
culinary industry in the Reno area . The August 22 article,
after stating that the Union was engaged in "a full-scale
campaign to organize Reno and Lake Tahoe food and
beverage workers," also quoted Bramlet as deploring
working conditions in the area and as saying that "Las
Vegas is 98 per cent unionized while Reno-Tahoe is less
than 20 per cent." The August 22 article closed with this
paragraph:
He [Bramlet ] said , however , union strength is growing
fast in the north and that the real test will come in
November when the northern local contract expires at
Lake Tahoe. He said the Reno contracts expire in
February and that, by then, he hopes to have many
more culinary workers in the area unionized.
Neither article mentioned Respondent, or any other
employer, by name. Both mentioned that Bramlet had been
appointed "international trustee" of the Union.
2. Employee turnover: Parker testified that the newspa-
per articles inspired him to review Respondent's payroll
records to ascertain the extent of employee turnover. He
stated that a comparison of the August payrolls for 1972
and 1974 disclosed a turnover in the 2 years of over 80
percent. He conceded on cross-examination that this rate
was representative of Respondent's experience from its
inception in 1968 through 1974.
3. Union grievances: Parker testified that his belief also
was influenced by the Union's failure to file any grievance
in 1974, and only three or four during the life of the 1972-
75 contract. The record does not disclose the extent to
which Respondent may have engaged in grievable conduct.
4. Reported employee dissatisfaction with the Union:
Parker testified that Bar Manager Robert Wills and
Restaurant Manager Samuel GeeGee informed him of
employee dissatisfaction with the Union. Elaborating,
Parker stated that Wills reported to him in late August
1974 that the bar employees were "very dissatisfied" with
the Union and opined that the Union would lose should
there be an election. Parker added that Wills later
expressed himself to this effect "approximately once a
week." Parker testified that GeeGee likewise' informed him
in late August of employee disaffection with the Union,
predicting that it could not win an election; and that
GeeGee thereafter made similar pronouncements "on the
average of once or twice a week" until December.
Wills testified that he first discussed the Union with
Parker in early December, not August as Parker would
3 According to Webb, a union official , Mane Tidwell , asked her in the
fall of 1974 if she would reconsider her past refusals to join the Union.
Webb replied: "The day that you tell me that I have to join the union in
1149
have it, and that they "probably" had six or eight such
conversations in all, none of which Wills could reconstruct
in any but the sparest of detail. In the first conversation,
according to Wills, Parker asked him how the bar
employees "felt about the Union," and he replied that he
did not "think they were too happy." In a later conversa-
tion, Wills assertedly identified by name six bartenders and
one cocktail waitress who had voiced displeasure with the
Union. And in one or the other of the several conversa-
tions, according to Wills, he told Parker that, "if we had a
vote, ... there would be no union."
There were 22 bar employees at the time-12 bartenders,
4 barboys, and 6 cocktail waitresses. Other than that he
"remember[ed] several of the bartenders, and conversa-
tions with them." Wills' testimony contained nothing of the
substance of comments by bar personnel that allegedly
underlay his observations to Parker.
GeeGee testified that he first discussed the Union with
Parker in November, not August, and that they had a total
of "between six and ten" such conversations, of which he
could remember only one. In that one, according to
GeeGee, he told Parker of an incident involving a union
agent and waitress Lois Webb3 and asked Parker "why the
waitresses and staff were coming to me, instead of going to
the [Union] business agent" with their questions. GeeGee
recalled Parker as replying that he "would get some legal
advice." GeeGee initially testified that there were "quite a
few" occasions in which restaurant employees had ex-
pressed antiunion sentiments to him-"maybe six to
eight"-before his first conversation with Parker. He later
revised this, asserting that "about 60 of my employees
came to me" before he reported to Parker that the
restaurant employees "did not want to be represented by
Local 86."
Pressed on cross-examination to name the employees
who had evinced displeasure with the Union, GeeGee
offered 13 names. Pressed to disclose what the 13 had said
showing antiunion feeling, GeeGee could provide no
content as to two, said that another three asked him if they
had to join the Union, said that another four asked what
was going on or if the Union would do the employees any
good, and attributed to only four outright statements that
opposed the Union. There were about 70 restaurant
employees at the time.
In sum, Wills' and GeeGee's purported corroboration of
Parker, although not wholly at odds with his testimony in
the abstract, was so labored, inept, and lacking in
consistent or meaningful detail as to suggest not only that
their reports and predictions were nowhere near as
frequent or compelling as depicted by Parker, but that the
employee manifestations of antiunion feeling on which
they reputedly were based also were grossly overblown, if
not contrived in toto.
5. Parker further testified that his belief of the Union's
lack of majority was influenced by Nevada's being a right-
to-work state, and by the absence from the 1972-75
contract of a dues-checkoff provision. The 1969-72
contract did not have a checkoff provision, either.
order to keep my job, that is the day I will join the union-and not until
then." " Webb recalled that Tidwell "kind of laughed" and said : "Well, I can
tell you that."
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Another factor, according to Parker, was that the
Union "was in trouble-or they wouldn't have had a
trustee appointed." He admitted on cross-examination that
his only information concerning the trusteeship situation
had come from the newspaper articles mentioned above.
By letter of August 9, 1974, Attorney Bowe for the Union
had informed Clinton Knoll , the general manager of the
Council, to which Respondent still belonged, that, while
the Union had been placed in trusteeship by its Interna-
tional, with Bramlet serving as trustee, the Union's "status
as the employees' representative under its collective
bargaining agreement has not changed in any way."
7. Finally, according to Parker, he was influenced by
there never having been a representation election among
Respondent 's employees.
B. Discussion
This case is a mirror image of Nevada Lodge, 227 NLRB
No. 73 (1976), and Tahoe Nugget, Inc., 227 NLRB No. 72
(1976). Issuance of this decision was delayed , pending
issuance of those decisions by the Board , because of their
obviously controlling impact over the present situation.
The Board held in Nevada Lodge and Tahoe Nugget, Inc.,
that "the presumption of majority status flowing from the
contract in the multiemployer unit survives Respondent's
timely withdrawal from that unit and carries over to the
newly created single-employer unit." Nevada Lodge, fn. 3.
The Board further held in both cases, adopting the
conclusions of Judge Taplitz without comment, that the
assorted grounds advanced by Respondents in those cases,
and this, to overcome the presumption-the newspaper
articles , employee turnover , employee nonmembership in
the Union , alleged reports by supervisors of employee
dissatisfaction with the Union, minimal grievance activity
by the Union, Nevada's being a right-to-work state, the
absence of a representation election, etc.-did not accom-
plish that purpose.
It is concluded , therefore , that Respondent's refusal to
recognize and bargain with the Union after its withdrawal
from multiemployer-unit bargaining violated Section
8(aX5) and (1) of the Act.
CONCLUSIONS OF LAW
I. Silver Spur Casino is an employer engaged in and
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Hotel-Motel-Restaurant Employees and Bartenders
Union, Local 86, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent Silver Spur
Casino in its bar and culinary operations at its Reno,
Nevada, place of business , excluding all other employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein , the above-named labor
organization has been the duly designated and exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about December 20, 1974, and at
all times material thereafter, to bargain collectively and to
recognize the Union as the exclusive bargaining representa-
tive of Respondent's employees, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain collectively and
to recognize the Union, Respondent has interfered with,
restrained, and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(axl) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent, Silver Spur Casino, Reno, Nevada, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to bargain collectively in
good faith concerning rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment with Hotel-Motel-Restaurant Employees and Bartend-
ers Union, Local 86, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All employees employed by Silver Spur Casino in its
bar and culinary operations at its Reno, Nevada, place
of business, excluding all other employees , guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request , bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached , embody
such understanding in a signed agreement.
(b) Post at its Reno , Nevada, facility copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
4 All outstanding motions inconsistent with this recommended Order in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and
hereby are denied . In the event no exceptions are filed as provided by Sec. become its findings, conclusions and Order , and all objections thereto shall
102.46 of the Rules and Regulations of the National Labor Relations Board , be deemed waived for all purposes.
the findings, conclusions and recommended Order herein shall, as provided 5 In the event the Board's Order is enforced by a Judgment of the United
SILVER SPUR CASINO 1151
Region 20, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
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 NOT refuse to bargain collectively concern-
ing rates of pay, wages , hours, and other terms and
conditions of employment with Hotel-Motel-Restau-
rant Employees and Bartenders Union , Local 86, Hotel
and Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described below.
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.
WE wILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached , embody such understanding in a signed
agreement. The bargaining unit is:
All employees employed by Silver Spur Casino in
its bar and culinary operations at its Reno,
Nevada, place of business, excluding all other
employees, guards and supervisors as defined in
the Act.
SILVER SPUR CASINO