Barney's Club, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1976

227 N.L.R.B. 414 (N.L.R.B. 1976)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barney's Club, Incorporated and Hotel -Motel-Restau-
rant Employees & Bartenders Union , Local 86,
Hotel and Restaurant Employees & Bartenders
International Union, AFL-CIO. Case 20-CA-9737
December 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On February 20, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel and the Charging Party filed briefs in
support of the Decision.
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 Judge4 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, Barney's Club,
Incorporated, Stateline, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent 's request for oral argument is hereby denied, as the
record and the briefs adequately present the issues and positions of the
parties We also find no merit in the Respondent's motion to strike the
Charging Party's brief on various grounds and that motion is hereby denied
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 credibili-
ty 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 362 (C A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 For the reasons set forth in Tahoe Nugget, Inc, 227 NLRB 357 (1976),
we agree with the Administrative Law Judge's conclusion that the Union's
presumption of majority status based on its recognition as the bargaining
representative for the Respondent's employees as part of a multiemployer
unit survived the Respondent 's timely withdrawal from that unit and the
shift to bargaining on a single-employer basis
Also for the reasons set forth in Nevada Lodge, 227 NLRB 368 (1976), we
disagree with the Respondent's contention that the Board should not assert
its clearly established legal jurisdiction in this case
4 Chairman Murphy in agreeing that the Respondent violated Sec 8(a)(I)
of the Act in maintaining the disputed no-solicitation rule does so on the
ground that in her view the rule was overly, and thus unlawfully, broad See
her concumng opinion in M Restaurants, Incorporated d/b/a The Mandann,
221 NLRB264(1975)
227 NLRB No. 74
Member Penello adheres to the position he took in GTE Lenkurt,
Incorporated, 204 NLRB 921 (1973), but agrees with Chairman Murphy, for
the reasons given by her in her concumng opinion in Mandarin, supra, that
the instant no-solicitation rule which is identical to the one considered by the
Board in Mandarin is not a "no-access" rule under the principles set forth in
Lenkurt, supra, but is an unlawfully broad no-solicitation rule.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard in South Lake Tahoe, California, on
October 1 and 2, 1975. The charge was filed on November
19,1974, by Hotel-Motel-Restaurant Employees & Bartend-
ers Union Local No. 86, Hotel and Restaurant Employees
& Bartenders International Union, AFL-CIO, herein
called the Union. The complaint and amended complaint
issued on April 11 and July 31, 1975, respectively, alleging
that Barney's Club, Incorporated, herein called Respon-
dent, violated Section 8(a)(1) 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 maintaining a written rule prohibiting solicitation
on company premises by employees after the employees'
shifts, while permitting employees to remain on the
premises for other purposes.
2. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by withdrawing recognition from and refusing to
bargain with the Union as the collective-bargaining repre-
sentative of its bar and culinary employees. Subsidiary
issues with regard to that allegation are:
(a) Whether the rebuttable presumption of the Union's
continued majority status which flowed from a contract in a
multiemployer bargaining unit survived Respondent's time-
ly withdrawal from that unit and was applicable to a single-
employer bargaining unit.
(b) If the presumption did apply, whether Respondent
has rebutted that presumption by affirmatively establishing
that the Union had, in fact, lost its majority or by showing
that Respondent had sufficient objective bases for reason-
ably doubting the Union's continued majority.
A further issue is whether the Employer has engaged in
any conduct tending to encourage employee disaffection
from the Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs.' Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, Respondent, and Charging Party.
Upon the entire record of the case, and my observation of
the witnesses and their demeanor, I make the following:
i In its brief Respondent requests reconsideration of its motion to reopen
its case -in-chief For the reasons set forth in the record relating to the original
motion, the request is denied
BARNEY'S CLUB 415
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Nevada corporation engaged in the
operation of a gaming casino, bar, and restaurant at
Stateline, Nevada. During the year immediately preceding
issuance of complaint, Respondent's gross revenues were in
excess of $500,000, and' during the same year Respondent
purchased goods and materials valued in excess of $10,000
which originated outsideof Nevada.
Respondent is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and it will effectuate the
policies of the Act for the-Board to assert jurisdiction. See
The Anthony Company d/b/a El Dorado Club, 220 NLRB
886 (1975); and cases cited therein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section,2(5) of the Act. -
III.. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The Reno Employers Council,-herein called the Associa-
tion, is a Nevada, corporation with an office located in
Reno, Nevada. It is a voluntary association of employers
engaged in the casino, restaurant, and other industries. The
Association-exists in part for the purpose of representing its
member-employers in collective bargaining and in adminis-
tering collective-bargaining agreements with various labor
organizations, including the Union. The Union and the
Association entered into _ a multiemployer collective-bar-
gaining contract on August 3, 1959. The Association agreed
to the contract on behalf of employers it represented in the
Lake Tahoe area. Succeeding contracts followed,2 with the
last effective from December 1, 1971, through November
30, 1974.3 That contract was between the Union,and the
Association on behalf of the individual members thereof
signatory thereto. Five employers were signatory to the
contract, including Respondent .4 Employees covered by
that contract were those in the employers' bar and culinary
operations at Lake Tahoe.
On May 16, 1963, Respondent and the Union entered
into a single-employer collective-bargaining agreement
effective by its terms from November 30, 1962, through
November 30, 1965. In the contract, Respondent recog-
nized the Union as the sole bargaining agency for all
2 In some of those contracts new member-employers of the Association
were added and other employers were deleted.
3 Nevada is a right-to-work State and none of the contracts contain a
union-security clause.
4 The signatory employers were Barney's Club, Harvey's Resort Hotel,
Nevada Lodge, Sahara-Tahoe, and Tahoe Nugget.
5 The General Counsel concedes in its complaint that the withdrawal was
timely.
6 Berry is also vice president of Respondent and a member of its board of
directors
7 These findings are based on a stipulation of the parties. There is no
evidence in the record that the employees were aware of the rule before the
posting. Respondent offered no evidence that would indicate that the rule
was necessary to maintain discipline or production.
employees employed by it in its bar and culinary operations
at Lake Tahoe. At some unspecified date, Respondent
joined,the Association. Respondent became a party to the
multiemployer bargaining agreement between the Associa-
tion and the Union, which was effective from November 30,
1965, through November 30, 1968. Respondent continued
to be a. party to the successive multiemployer collective-
bargaining contracts through the one that expired on
November 30,1974.
On August 30, 1974, Respondent timely withdrew its
membership from the Association.5
On October 24, 1974, Respondent refused to bargain with
the Union, and Respondent has withdrawn recognition
from the _ Union. On _ July 25, 1975, Respondent filed a
petition for .an election with -the Board. That.petition sought
an election among Respondent's culinary and bartender
employees in a single-employer unit. The complaint alleges
a refusal to bargain, in. that - single-employer unit.. The
complaint alleges, the- answer as amended ad_mits, and I
find that the appropriate bargaining unit is:_
All employees employed by the Respondent in its bar
and culinary operations at its Stateline, Nevada, opera-
tions, excluding all other employees, guards, -and
supervisors as defined in the Act-"-
B. The No-Solicitation Rule
1. The facts - -
On about July 22, 1974, Respondent posted a n6-solicita-
tion rule on its front door. The posting was authorized by
Robert'G. Berry, Respondent's chief executive officers The
posted rule enunciated a policy that had been in existence
for at least 4 years prior to July 22, 1974.7 The part of the
rule that is alleged to be violative of the Act states: 8
Based upon long established rules, your attention' is
called to the following:
Solicitation on company premises by employees
after employees shift has been completed is
prohibited.
Violation of any of the above rules will result in
immediate disciplinary action, including dis-
charge
Solicitation of any type by employees during working time is prohibited.
Distribution of literature of any type or description by employees during
working time is prohibited.
Distribution of literature of any type or description in working areas is
prohibited.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent permitted employees to come on to its
premises after their shifts. Indeed, such a practice was
encouraged in that Respondent customarily allowed em-
ployees to have a free drink at its bar after they had
completed' a shift. Employees often sat-at the bar for
extended periods when they were off shift and spoke among
themselves and with supervisors. Sometimes the employees
were in uniform and sometimes they were not. In general,
Respondent considered off-shift employees to be members
of the public who were welcome to use its facilities.
Respondent did not maintain an employees' lounge or
rest area. The only area in Respondent's facility that was
reserved for, off-shift or off-duty employees was, a single
table, that seated about eight people, in its public restau-
rant. That table was about 4 feet away from the next table
at which customers sat ,and customers could overhear what
was being said at the 'table reserved for employees., That
table was generally used by employees =during their break
periods and was seldom used by off shift employees.
Respondent maintained the no-solicitation rule by post-
ing it and thereby notifying the_ employees that it was
currently in force. The rule provided on its face that a
violation would result in immediate disciplinary action,
including discharge. There is' no contention that anyone
was disciplined for violation of the rule. 'Off--shift employees
did engage in a number of different types of solicitation on
Respondent's premises, and Respondent took no action
against those solicitations.
As to some types of solicitations, there is no evidence in
the record that Respondent knew they were taking place. In
that category are sales of Avon products and shoes by
employees to other employees and invitations by employees
to other employees to attend parties .9 With regard to two
types of solicitation, Respondent did have knowledge.
Those related to the sale of Elks Club raffle tickets and the
participation by employees in football and baseball gam-
bling pools. ' -
Al Labendz, who was employed by Respondent as a
bartender from about 1967 through part of 1969 and then
again from 1970 through July 1973, credibly testified that,
two or three times a year during the time he was employed,
he sold Elks Club raffle tickets to employees, supervisors,
-and customers on the premises. At times he sold as many as
80 or 100 tickets. Each time a raffle was held, he solicited
then General Manager Lewis and then Assistant General
Manager Source. Some of the employees he sold the tickets
to were on duty and others were off duty. He also sold the
tickets to Barney O'Malia, who at one time was owner of
the club, and to Eugene Terry, who at one time was bar
manager.
Labendz credibly testified that a football pool was held
every week during the fall up to his termination in 1973.
Records of the pool were maintained on a card which was
kept in the cashier's cage, and supervisors participated in
the pool, including Lewis, Source, Keno Boss Bill Coombs,
9 A] Labendz, who was a bartender for Respondent from about 1967
through part of 1969 and again from 1970 through July 1973, credibly
testified that he saw off-duty employees selling Avon products on the
premises during both his periods of employment and that at sometime in
1971 or 1972 he' bought a pair of shoes from another employee on the
premises . He also averred that he didn't know whether the people showing
the Avon products and selling the shoes made any attempt to conceal their
and Pit Bosses Lorin Phoenix and Vern Pratt. Gary Powers,
who was a bartender from July 1973 to November 1974,
credibly testified that most of the employees participated in
baseball and football pools after their shifts ended and that
supervisors participated. He personally asked employees to
participate. He participated in a world series pool in the fall
of 1974 and sold chances to off-duty employees. As late as a
few weeks before the hearing, one of the bartenders offered
Union Business Representative Howard Lawrence a
chance to get in the football pool while Lawrence was
visiting the premises.
2. Analysis and conclusions with regard to the
no-solicitation rule
The right of employees to self-organization has often
come into conflict with the right of employers to maintain
discipline in their establishments and to control the use of
their property. Over the years, the Board and the courts
have attempted to reconcile these conflicts through the
formulation of rules of law which attempt to maximize the
scope of the rights of each to the extent that they do not
unduly diminish the rights of the other:' Republic Aviation
Corporation v. N.LR.B., 324 U.S. 793 (1945); N.LRB. v.
Babcock & Wilcox Company, 351 U.S. 105 (1956). In
drawing guidelines in this area the United, States Supreme
Court has held: "No restriction may be placed on the
employees' right to discuss self-organization among them-
selves, unless the-employer can demonstrate that a restric-
tion is necessary to maintain production or discipline."
N.LRB. v. Babcock & Wilcox Co., supra at 113. In
N.LRB. v. United Steelworkers ofAmerica, CIO [Nutone],
357 U.S. 357 (1958), the Supreme Court noted that
"mechanical answers" do not solve "this non-mechanical,
complex problem in labor management relations!' How-
ever` certain guidelines have been' well established. In
attempting to reconcile the legitimate interests of both
employers and unions, the Board has looked at the nature
of the business. Thus, the rules which have evolved relating
to industrial establishments 10 have not been applied to
retail stores. Because active solicitation in a sales area may
disrupt the retail store's business, an employer may legally
prohibit distribution and solicitation by employees and
nonemployees on the selling floor even during the' non-
working time of the employees. May Department Stores Co.,
59 NLRB 976 (1944), enfd. 154 F.2d 533 (C.A. 8, 1946);
Marshall Field & Co., 98 NLRB 88 (1952), enforcement
denied in part 200 F.2d 375 (C.A. 7, 1952). In Marshall
Field, the Board was faced with the question whether a
public restaurant within a department store should or
should not be considered a sales area within which
employees could be prohibited from soliciting. The Board
answered the question in the negative, holding: "The,Board
does not agree with the Respondent's general contention
action from management, and he didn't know if management knew about
the sales. Labendz and Gary Powers, who was a bartender for Respondent
from July 1973 to November 1974, credibly testified that on a number of
occasions employees on the premises invited them to parties. Even if such
invitations could be considered solicitations within the compass of the no-
solicitation rule, there is no evidence that Respondent knew of them.
10 See Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
BARNEY'S CLUB
that prohibition of all solicitation in public restaurants is
lawful." 11
In the instant case Respondent operates a gambling
casino, bars, and a public restaurant. The gambling
establishment is analogous to a retail store for the purposes
of the no-solicitation rule. Thus, Respondent could lawfully
ban all solicitation in the gambling area, but it could not
lawfully maintain a general ban on solicitation in the public
bars or restaurant. In that the no-solicitation rule in
question applies equally to the gaming area, the bars, and
the public restaurant, the legal principles applicable to the
lawful limitation of soliciting on the sales floor of a
department store do not apply.
In GTE Lenkurt, incorporated, 204 NLRB 921 (1973), the
Board found to be lawful a no-solicitation rule that read:
"An employee is not to enter the ,plant or remain on the
premises unless he is on duty or scheduled for work." The
Board stated:
Under well-settled principles applicable to employee
activities ... an employer may not, absent special
circumstances, prohibit employees lawfully on the
premises from engaging in union solicitation on their
own time. However, it is also well settled that nonem-
ployees are not entitled to enter an employer's premises
to engage in union activity there. Accordingly, to
dispose of the issue here, we must determine which of
these principles applies to an off-duty employee, i.e.,
whether, nonwithstanding an employer rule to the
contrary, he has a right to enter or remain on an
employer's premises if he wishes to do so for this
purpose.
In our view he does not, for his status is more nearly
analogous to that of a nonemployee, and he is subject to
the principles applicable to nonemployees. [Footnotes
omitted.]
In Lenkurt, the Board was dealing with a total exclusion of
off-duty employees from respondents nonretail premises.
In M Restaurants, Incorporated d/b/a The Mandarin, 221
NLRB 264 (1975), the Board considered a situation where
off-shift employees were allowed to enter a restaurant's
premises for limited purposes. In,that case, the no-solicita-
tion rule read: "Solicitation on - company premises by
employees after employees' shift, has been completed is
prohibited." The Board distinguished the Lenkurt situation
and ruled that the no-solicitation clause was invalid,
holding:
The rule in the instant case was directed solely at
employee solicitation. In fact Respondent permitted
off duty employees to wait for fellow employees to
finish work, to pick up their paychecks on their days -off,
and to return to the premises to eat with their cowork-
ers: Under these circumstances and particularly in view
of the majority's holding in Lenkurt, it is evident that
even under the standard enunciated in that case
11 In N.LKB. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974),
the Supreme Court held:
The place of work is a place uniquely appropriate for dissemination of
views concerning the bargaining representative and the various options
417
Respondent's no-access rule is presumptively invalid
and unlawful.
In the instant case the no-solicitation rule is identical to the
one considered by the Board in the Mandarin case. As in
the Mandarin case, Respondent's employees were permitted
to come on to Respondent's premises when they were off
shift. They were encouraged to do so by Respondent in that
Respondent gave them free drinks after shift. They were
allowed to remain at the bar and to use Respondent's
facilities. In addition, Respondent knew that off-shift
employees were participating in sports pools and employees
had been solicited to purchase Elk's Club raffle tickets.
Respondent made no effort to limit those activities. There is
no evidence that the rule was known to employees before
the posting. The rule was posted after the Union's renewed
organizational activity. Respondent offered no evidence to
establish that it's rule was necessary to maintain production
or discipline.12 -
Respondent cannot justify its no-solicitation rule on the
ground that no one was disciplined under it. It was
enforced in that employees were warned by the very
wording of the rule that they would be disciplined for its
violation. As the Board stated in The Great Atlantic &
Pacific Tea Company, Inc., 162 NLRB 1182, 1884 (1967):
... we reject the Respondent's argument that the rule
could have had no coercive effect since it was not
enforced. It is well established that the mere existence of
an unlawful no-solicitation rule makes it susceptible to
application to employees and this factor alone tends to
coerce, restrain, and interfere with their right to engage
in self-organizational activities. [Footnote omitted.]
I find that the principles enunciated ir.the Mandarin case
are controlling and that Respondent violated Section
8(a)(1) of the Act by maintaining the no-solicitation rule.
C. The Refusal To Bargain
1. The facts
a. The testimony of Staff
Alfred E. Staff is the bar manager for the Overland Hotel
in Reno. From early July 1973 until the summer of 1974,
when a trusteeship was imposed on the Union, Staff was
president of the Union. During that time, Staff, in addition
to being union president, was a full-time bartender. The
only full-time paid union officer was Secretary-Treasurer
and Business Manager E. W. Tucker. The following
findings are based on the credited testimony of Staff.
During the summer of 1974, the Union had about $11,000
in its treasury and that amount was decreasing. However,
the Union's liabilities did not exceed its assets. The Union
had approximately 1,000 members, of whom between 700
and 800 were paid up in their dues.13 In the spring of 1974,
the Union sent Business Manager Tucker to the headquar-
open to the employees. So long as the distribution is by employees to
employees and so long as the in-plant solicitation is on nonworking
time, banning of that solicitation might seriously dilute § 7 rights.
12 Cf. Florida Steel Corporation, 215 NLRB 97 (1974).
13 At another point in his testimony, Staff averred that there were about
(Continued)
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters of the International in Cincinnati to see if he could
obtain money to help the Union organize. The executive
committee of the Union had discussed the need to obtain
more members and to build up the membership to a point
where the Union could have some strength when it met with
the Employers to negotiate the next contract. Tucker went
to Cincinnati and discussed the matter with representatives
of the International. He then returned and reported to the
executive committee that the International would give the
Union money to organize if the officers resigned, the Union
went into trusteeship, and the International administered
the Union. The executive committee decided to let the
International take over. The matter was brought up at the
next regular meeting of the Union, and a majority of the
membership voted to accept the trusteeship. The officers
resigned and the trusteeship was imposed sometime during
the summer of 1974.14
During the summer of 1974, Tucker told Staff that there
were about 30,000 employees in the Lake Tahoe and Reno
areas who were employed in categories over which the
Union had jurisdiction.
Conversations with Tucker and Staffs review of member-
ship records led Staff to believe that of the approximately
900 or 1,000 union members in May 1974, about 20 percent
were in the Lake Tahoe area and the balance were in Reno.
Staff appeared confused in his testimony with regard to the
distinction between union members and employees repre-
sented by the Union. His testimony, read as a whole, clearly
indicates that when he was referring to the approximately
900 or 1,000 employees and to the 20-percent figure, he was
referring to members and - not to all employees who were
represented through coverage by outstanding contracts.
In the spring of 1974, the Union placed announcements
in local newspapers stating that the Union would hold a
meeting to discuss with employees what it would ask in
contract negotiations and to see if it could get more people
interested in an expansion of the Union. The employees
invited were those in the Lake Tahoe area . No employees
showed up for the scheduled meeting and it was not held.
During the time that be was president, Staff spoke to
some union bartenders whom he worked with at the
Overland Hotel in Reno and he received comments from
them to the -effect that they were discouraged with the
Union, that the Union didn't do anything for them, and
that they did not like the way the Union was being run.
Some bartenders said: "When is the Union going to be able
to do anything for us," "They never do nothing for us," and
"What's the sense of joining a Union." He never received
any compliments on the performance of the Union. In
addition to talking-to bartenders -at-the Overland Hotel, he
spoke to some culinary workers at various clubs in the Reno
area in an attempt to organize them. However, there is no
700 to 750 paid-up members and in addition there were about 150 other
people who were on the membership rolls who were not paid up , but who
were not suspended . The highest number of members during Staffs term of
office was about 1,200.
14 Staff testified that the officers resigned in July or August 1974, but later
in his testimony he averred that the trusteeship might have been imposed in
June.
15 As the Board held in Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho, and its Employer-Members, 213
NLRB 651 (1974), an employer's reasonably based doubt of the union's
evidence in the record that any employees of Respondent
expressed dissatisfaction with the Union to Staff.
Staff did not communicate any of the matters related
above to Respondent and there is no indication in the
record that Respondent knew of the substance of those
matters at the time that it refused to bargain with the
Union.
Apparently Respondent is relying on Staff's testimony
solely for the purpose of attempting to prove that the
Union, in fact, did not have majority status.15 With regard
to the matters set forth below, Respondent contends that it
did have -a reasonably based doubt as to the Union's
majority, upon which it acted in withdrawing recognition.
b. Remarks by employees of Respondent,
conversations between supervisors, and the newspaper
articles
In October 1974, Respondent had in its employ about 40
employees in bar and culinary classifications.16 In mid-
August 1974 Respondent made a determination that the
Union did not represent a majority of its bar and culinary
employees. However, Respondent continued its investiga-
tion concerning the Union's majority from July 1974 until it
authorized its attorney to send a letter dated October 24,
1974, in which the Union was notified that Respondent
doubted the Union's majority status.17
The decision to question the Union's majority status was
made by Respondent's chief executive officer, Robert G.
Berry. Berry received some direct and indirect reports
concerning the attitude of some of his employees toward
the Union.
Sometime between July 15 and the latter part of August
1974, Berry spoke to a waitress named Pam, whose last
name he -could not remember. She told him that she had
never seen a union person at the Club and didn't want any
part of the Union. Sometime between July 15 and late
August 1974, Berry spoke to a bartender named Barry,
whose last name he could not recall. He had no specific
recollection of what that employee told him about the
Union. Sometime- before August 30, Berry spoke to a
waitress named Connie, whose last name he could not
remember. She told him-that she was not interested in being
represented by the Union.
Sometime in August or September 1974, Respondent's
assistant general manager, N. Dart Voss, had a conversa-
tion with employee Elmer Willsey. Willsey told Voss that
there had been someone from the Union contacting them,
trying to get them to join the Union. Willsey also said that
he had dealings with those people before and that he did
not want anything to do with them. Voss reported the
incident to Respondent's general manager, Harry Bay. In
September or October 1974, Bay himself had overheard
majority status must be predicated on information it had at the time of its
refusal to bargain. See also Orion Corporation, 210 NLRB 633 (1974), enfd.
515 F.2d 81(C.A. 7, 1975). -
16 This finding is based on the credited testimony of Respondent's
assistant general manager, N. Darl Voss . Robert G Berry, who is Respon-
dent's chief executive officer, board member, and vice president , has less
daily contact with the employees than Voss. Berry testified that the number
of bar and culinary employees in the summer is about 40 to 50, in the fall, 30
to 35, and in the winter about half that of the summer
17 These findings are based on the testimony of Berry.
BARNEY'S CLUB
Willsey tell someone else : "Damn those unions - I wish
they's stay out of here, so I can get my work done." Both
these incidents were reported to Respondent's chief execu-
tive officer, Berry.
Sometime between September through October 1974,
Voss spoke to employee Mitch Roskin. Roskin said that a
union representative had offered to pay his initiation fees
and dues if he would recruit other employees to join the
Union. Roskin also told Voss that he had dealings with the
Union in the east and he was not too happy with them. Voss
reported the conversation to Bay who in turn reported it to
Berry.
Berry testified that he was told about a Mitch and an
Elmer, neither of whose last names he could recall, by Bay.
He also averred that he spoke to Voss and Bar Manager
Robert Badertscher about employees. He testified that
between July 15 and October 1974 Voss told him that,-
based on his (Voss) investigation, he was of the opinion
that the Union did not represent a majority of the bar and
culinary employees.
Between July and October 24, 1974, Bar Manager
Badertscher told Voss that he (Badertscher) felt the people
in the bar were not interested in being represented by the
Union and that they were all happy with the conditions as
they were. Voss reported that comment to Berry.18
In August 1974, -Badertscher told Bay that in his
(Badertscher's) opinion; people who worked under him did
not want the Union to represent them. Bay credibly
testified that Badertscher did not tell him the basis for that
opinion. Bay reported the conversation to Berry. Also in
August 1974 Voss told Bay that he (Voss) didn't think the
Union had a majority at the Club. Bay reported that to
Berry.
About late June or early July 1974, Berry read certain
articles in the Reno Evening Gazette and the Tahoe
Tribune which stated- that there was a trusteeship. He saw
in the papers advertisements by International Trustee
Bramlet concerning organizational meetings which were to
be held. Berry was also informed about the trusteeship by
his attorney.19
c. The decision to withdraw recognition
Respondent acknowledges that on or about October 24,
1974, it refused to bargain with the Union and that it has
withdrawn recognition from the Union. Respondent con-
tends that at the time it refused to bargain it had sufficient
objective bases for reasonably doubting the Union's contin=
ued majority.
The remarks of certain employees concerning their
attitude toward the Union and various conversations
between supervisors relating to the employees' attitudes are
discussed above. Also, as indicated above, Berry obtained
information concerning the Union's trusteeship and the
financial difficulties of the Union. In addition, Berry knew
that Nevada is a right-to-work State and the contracts did
not contain a union-security clause. He credibly testified
18 These findings are based on the credited testimony of Voss.
19 Berry testified that he understood from several sources that a
trusteeship was imposed because of the Union's inadequate funds, lack of
membership, and lack of cash flow to conduct operations. When asked the
419
that he had no knowledge ofany election ever having been
held among the employees.
Sometime prior to October 24 , 1974, Berry had a
conversation with his law partner, George Allison . Allison
had represented another employer , Harvey's Casino, in a
state court proceeding, Allison told Berry that during that
proceeding a union representative said that he did not know
how many people the Union represented at the Lake and
that the union representative refused to. disclose the actual
membership of the Union among people at the Lake.
Respondent also adduced considerable evidence con-
cerning the turnover of its employees and the Union's
activity or lack thereof. Between July and October 1974,
Berry, Bay, and Voss often discussed the amount of
turnover among Respondent's employees . During that
period the highest number of culinary and bar employees
was about 50. Voss testified that from his observation of the
employees who were physically present , he concluded that
there was about a 50-percent turnover between June, and
October 24, 1974. Bay testified that from July to the end of
October 1974 the turnover rate among bar and culinary
employees was 4 or 5 to 1. Berry testified that during the
summer there was a complete turnover of culinary employ-
ees about every 2 months and a turnover of bar employees
somewhat less frequently . He averred that his data on
turnover was based on transaction sheets that he examined
every day, on reports from the supervisors, and from his
observation of employees on the premises . Respondent did
not offer any records in this regard and there was no
testimony concerning the classifications of the employees
who most frequently left Respondent's employ . However, I
credit the testimony of Respondent 's witnesses to the extent
that they averred that there was a very substantial amount
of turnover among Respondent's bar and culinary employ-
ees.
In late June or early July 1974, Berry attended a meeting
of the Association. Berry had been paying dues to the
Association and he knew that Respondent was a member.
At the meeting, Association Official Knoll told the employ-
er-members that the union contract was going to be
renegotiated that fall . Berry testified that until that meeting
he did not know that Respondent had a contract with the
Union. On May 10, 1973 , Berry and others purchased a
majority of the shares of Respondent . From August 3, 1973,
to the present Berry has been a member of the board of
directors, vice president, and chief executive officer of
Respondent. For about 5 years before 1973, Berry repre-
sented Respondent as its attorney . Shortly after Berry took
over management of Respondent, he received bills from the
Association which he paid. Respondent was a party to
successive collective-bargaining agreements with the Union
from May 16, 1973 , through November 30, 1974 . I do not
credit Berry's assertion that he acquired a substantial
ownership interest as well as managerial control of Respon-
dent without looking into and knowing of Respondent's
contractual obligations. This is particularly true as Berry
had previously represented Respondent as its attorney.
sources of his belief, he testified that his opinion was based on such matters
as his observation of the poor business practices of the Umon and lack of
interest by employees in the Union. He also referred to certain newspaper
articles and advertisements he had read.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Berry did credibly testify that he had no contact
of any kind with the Union from the time that he physically
took over Respondent on May 10, 1973, until the Associa-
tion meeting in late June or early July 1974.20 He also
credibly testified that he knew that from July 15 through
August 30, 1974, several organizers came into Respondent's
premises and that thereafter organizers continued to come
on the premises . Until the middle of the summer of 1974 he
never saw or discussed any union business with a union
agent.
Bay was employed by Respondent as its slot machine
manager on June 1, 1973, and was made general manager
on August 23, 1973. Bay credibly testified that until
sometime in the summer of 1974, he never saw a union
representative on the premises.
Voss was employed by Respondent as assistant general
manager in August 1973. He credibly testified that prior to
July 1974 he had not heard employees speak about the
Union on the premises and he had not seen a union agent
there. In July 1974 he spoke to Bay about union activities
inside the Club. He told Bay that there were people from
the Union trying to contact some of the employees tojom
the Union.
Voss testified that as of May 1974 he was not aware that
there was a union representing the bar and culinary
employees and that he had no knowledge of any collective-
bargaining agreement . Bay testified that he became aware
that Respondent was unionized sometime during the
summer of 1974. As indicated above, Berry testified that he
was not aware of that fact until late June or early July 1974.
I am unable to credit Berry, Bay, or Voss in that regard. All
three were intimately familiar with the bar area of the
premises . Posted conspicuously . over the bar was a sign 21
that read: "Hotel and Restaurant Employees and Bartend-
ers International Union affiliated with AFL-CIO recog-
nizes this house as a union house and worthy of the support
of organized labor." Berry's explanation of the sign is
completely unconvincing. He averred that the sign related
to specialized customer treatment for union members and
that anyone who showed a union card could get a free
drink. Harry Eve, who has been Respondent's bar manager
since May 1975, testified that the sign was about 8 or 10 feet
from, where customers would be seated, that the sign was
discolored from grease and. smoke, and that customers,
from where they were seated, would only be able to see the
large printing which read "union house." However, Berry,
Bay, and Voss were not restricted to customers' tables and
their business would carry them to all parts of Respondent's
premises.
When, Berry was at the Association meeting in late June
or early July, he asked for a copy of the union contract and
one was sent to him. He testified that when he read the
contract he saw a number of very serious violations of the
contract by Respondent which had never been called to his
20 It thus appears that during that period of time the Union filed no
grievances.
21 Union Business Representative Lawrence credibly testified that union
records show that the sign was first posted about 1968.
22 Union Business Representative Lawrence testified that in mid-August
1974 he spoke to Respondent's beverage manager, Badertscher, about a
complaint made by employee Hampton. It was stipulated that if Badertscher
attention or to the attention of his managers. He did not
indicate the nature of the violations.
Robert Vickney was a union business agent from 1970
through part of 1972. During that time he visited Respon-
dent's premises at least twice a week and spoke to
employees about their working conditions. In 1972 one of
Respondent's bartenders told him that certain employees
did not receive holiday pay for two holidays. Vickney spoke
about the matter to one of Respondent's owners but no
written grievance was filed. He never filed any written
grievances.
Al Labendz was a bartender for Respondent from 1970 to
mid-1973. Labendz belonged to the Union and kept his
union book in a jar by the cash register. That jar was used
by barboys and bartenders for the union books. Periodical-
ly, a business representative came on to the premises, took
money that was left in the union books, and stamped
receipts in the books. Labendz credibly testified that about
90 percent of the bartenders and barboys had union books
which they kept in the jar and that he personally observed
12 to 15 books in the jar. He credibly testified that some of
the supervisors including Tom Pavich, who was bar
manager in 1971, knew about the books. He also credibly
averred that during the time he was working there, he saw a
union business agent on the premises about twice. a week.
There is no evidence that the Union engaged in any
particular activities at the Respondent's premises from mid-
1973 until early summer 1974. Between -July and the first
part of October 1974, Union Business Representative
Howard Lawrence visited the premises about twice a week
to enforce the contract and receive complaints from
employees. After October he visited the premises about
twice a month. Berry credibly testified that in the period
between July 15 and August 30, 1974, several union
organizers came onto the premises. Voss credibly testified
that in July 1974 people from the Union were trying to
contact some of the employees to join the Union.22
d. The Union's demand for negotiations and
Respondent's refusal
The last contract expired by its terms on November 30,
1974. By letter dated July 22, 1974, Union International
Trustee Al Bramlet notified Respondent of his desire to
modify and change the contract and sought to arrange for
collective-bargaining negotiations. By a letter to the Associ-
ation dated August 30, 1974, Respondent withdrew its
authorization for the Association to represent it in connec-
tion with collective-bargaining or labor relations. A copy of
that letter was sent to the Union, with a covering letter
dated August 30, 1974, notifying the Union that Respon-
dent terminated the collective-bargaining agreement effec-
tive as of the end of the term thereof. By letter dated
September 3, 1974, Phillip Bowe, the Union's attorney,
acknowledged receipt of Respondent's August 30, 1974,
was called to testify he would have denied any conversation with Lawrence
concerning an alleged grievance of Hampton. Lawrence acknowledged that
no written grievance was filed. The incident took place in mid-August 1974,
which was well after the Union had become active on Respondent's
premises . The incident adds little to the record and need not be considered
further.
BARNEY'S CLUB
letter and requested that Respondent contact Bramlet- to
discuss a convenient time- and place for negotiations. By
letter- dated October 18, 1974, Bowe, demanded that
Respondent begin negotiations . By letter dated October 24,
1974, Respondent 's attorney, Nathan Berke, reminded the
Union that Respondent had timely withdrawn from the
multiemployer group and was handling its own collective
bargaining . Berke wrote that, he would treat the Union's
correspondence as a request for Respondent to engage in
bargaining on an individual employer unit basis . The letter
went on , to state : "At the direction of our client , this is to
inform you that our client has a genuine doubt that your
Local continues to represent an uncoerced majority of its
employees in an appropriate -unit. If, following a validly
conducted election' under the aegis of the National Labor
-Relations Board , your Local is selected as the bargaining
agent, our client will at such time fulfill, whatever legal
obligation it may then have." -
The Union filed the unfair labor practice charge on
November 19, 1974, in which it alleged that Respondent
unlawfully refused to recognize and bargain with it.
Respondent admits - that commencing on or about October
24, 1974, it has refused to bargain collectively with the
Union and has withdrawn recognition from the Union. On
July 25, 1975, which was about 9 months after the refusal to
bargain- and about 8 months after the filing of the charge,
Respondent filed a petition for an election with the Board.
2. Analysis and conclusions with regard to the
refusal to bargain23
a. The presumption of majority
As the Board held in Walter E. Heyman d/b/a Stanwood
Thriftmart, 216 NLRB 852 (1975): -
A contract, lawful on its face, raises a - presumption
that the contracting union was the majonty representa-
tive at the time the contract was executed , dung 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).
In the instant case, the asserted presumption of continued
majority status is based on an initial contract in a' single
employer unit, which contract was effective from Novem-
ber 30, 1962, through November 30, 1965, and on succes-
sive contracts in a multiemployer bargaining unit from
November 30, 1965, through November 30, 1974. The
complaint alleges a refusal to bargain in a single-employer
bargaining unit. No presumption of continued majority can
flow directly from the original contract that expired in 1965.
If any such presumption is warranted it must flow from the
recently expired contract which was in a multiemployer
unit. A serious question is presented as to whether the
presumption of continued majonty which flowed from the
existence of that multiemployer contract survived the
23 Much of the legal analysis set forth below is the same as that which is
contained in my decision in Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe
Hotel [229 NLRB No 151 (1977)], and Tahoe Nuggets, Inc., d/b/a Jim
Kelley's Tahoe Nuggett [227 NLRB 357 (1976) ], cases that involved many of
the same legal principles
421
withdrawal of Respondent from the multiemployer unit
and can be applied to the recreated single -employer unit.
In Downtown Bakery Corp., 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 predecessor employer. In that case , the predeces-
sor employer had- signed a separate collective-bargaining
agreement with the -union . Relying, on a presumption of
continued majority, the Board- found that the successor
employer violated Section 8 (aX5) of the Act by refusing to
bargain with the union in the single -employer unit. The
court 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 Company, 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 Richard W. Kaase Co., a union was 'certified'-as the
collective-bargaining agent of the` employees of employers
in a rultiemployer bargaining unit which included a
predecessor employer . That employer executed a separate
collective-bargaining agreement . Thereafter , a successor
employer continued to recognize thee predecessor's contract
but later withdrew recognition . The Board found that the
successor violated Section 8(a)(5) of the Act . The court
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 Co. cases is not directly applicable to the
instant situation . In each of those cases, the individual
employer had - signed separate collective-bargaining con-
tracts 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
collective-bargaining relationship since 1965 was in a
multiemployer bargaining unit and the contracts to which
Respondent was a party since then were multiemployer
bargaining contracts .24 However, I believe that the pre-
sumption of continued majority flowing from the multiem-
ployer contracts 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 multiem-
ployer bargaining arrangement . Mohawk Business Machines
Corporation, 116 NLRB 248 (1956); Dancker & Sellew, Inc.,
140 NLRB 824 (1963), enfd. 330 F.2d 46 (C.A. 2, 1964).
Respondent would have violated the Act in 1962 when it
became party to the single-employer collective -bargaining
agreement if a majority of its employees did not desire
representation. Respondent would have again violated the
24 It is also noted that, -unlike the instant situation , both those cases
involved conflicting representational claims by rival unions
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act in 1965 when it became a party to the multiemployer
bargaining agreement if a majority of its employees did not
desire representation at that time. Any unfair labor practice
charge relating to such violations would have had to have
been filed within 6 months from the violation. Respondent
may not now either attack the initial bargaining relation in
the single-employer unit or the subsequent bargaining
relation in the multiemployer unit. Nor may Respondent
use such matters to establish a defense to the refusal to
bargain complaint. As the Board held in North Bros. Ford,
Inc., 220 NLRB 1021(1975):25
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
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 th6^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, JAM, AFL-CIO [Bryan Manufacturing Co l
v.NLRB,362US 411(1960).
4 Id at 428, citations omitted.
5 Barrington Plaza and Tragmew, Inc, 185 NLRB 962 (1970),
enforcement denied on other grounds sub nom Tragmew, 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 in either the single- or multi-employer units. It
cannot defend against the refusal-to-bargain complaint on
the ground that those contracts were 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.
Those contracts must be considered valid on both those
grounds. The presumption of majority status which contin-
ued 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 presump-
tion to establish the Union's majority in the unit in
question. It remains to be considered whether-Respondent
has successfully rebutted that presumption.
b. The attempt to rebut the presumption
(1) The background law
In James W. Whitfield, d/b/a Cutten Supermarket, 220
NLRB 507, 508 (1975), the Board summarizedthe^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 recognition
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 establishing
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.?
To establish sufficient objective bases, however, re-
quires more than the mere assertion thereof based, upon
the employer's subjective frame of mind S Furthermore,
the employer must not have engaged in any conduct
tending to encourage employee disaffection from the
union .9
6 Cf. NL.R.B. v. Frick Company, 423 F.2d 1327 (C.A. 3, 1970);
Keller Plastics Easter), Inc., 157 NLRB 583 (1966).
4 Celanese Corporation ofAmenca 95 NLRB 664,672 (1951); Peoples
Gas System, Inc„214 NLRB 944,(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 Assn. of Pocatello, supra, 213 NLRB at 652, 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
woulddoso...."
(2) The alleged actual loss of majority
For the reasons set forth above, the presumption of
continued majority which flowed from the contract sur-
vived the change in the bargaining unit and applied to the
single-employer unit. It follows that the change in the unit
25 See also Stanwood Thnftmart, supra.
BARNEY'S CLUB
is not-in itself proof that the Union no longer represented a
majority of Respondent's employees.
During the summer of 1974 the Union had about $11,000
in its treasury and that amount was decreasing. However,
the Union's liabilities did not exceed . its-assets, and even if
they did the Union's financial condition would not indicate
how many employees the Union actually represented. Even
if Staff were correct in his estimate that there were about
30,000 employees in the Lake Tahoe area who were
employed in categories over which the Union had jurisdic-
tion, that figure would not give any insight into how many
employees the Union in fact did represent.
About that time the Union had approximately 900 or
1,000, members, of whom perhaps 20 percent were from the
Lake Tahoe area. Between 700 and 800 were paid up in
their dues. Those are industrywide figures and there is no
way to tell from them how many of Respondent's employ-
ees were union members. Even if Respondent had estab-
lished that a majority of its employees were not members of
the Union, such a showing would not be 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). As
the Board stated in Wald Transfer & Storage Co, 218
NLRB 592 (1975):
It has been clearly established that a distinction exists
between union membership and union support, fore-
closing relying upon one as evidence of the other. Here,
union membership being voluntary in this right-to-work
State emphasizes that distinction. Many employees
while approving of the Union may not choose to give it
their financial support or participate as members.3
3 See Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427
F.2d 1088 (CA. 4, 1970), cert. demed 398 U.S. 929; N.LR.B v. Gulf-
mont Hotel Company, 362 F.2d 588,592 (C.A. 5, 1966).
The fact that employees in the industry at the Lake did
not attend a union meeting after announcements were
placed in newspapers may indicate some apathy on the part
of employees who happened to see the announcements. It
does not indicate that a majority of Respondent's employ-
ees no longer desired to be represented by the Union.
The Union sought funds from the International to
organize employees in the industry and to build up its
membership so that it would have strength in negotiating
the next contract. The Union also accepted International
trusteeship. Those facts, however, do not indicate whether
or not the Union represented a majority of Respondent's
employees. The Union wanted to obtain more members in
the industry and it engaged in some internal revisions, but it
would be sheer speculation to make an evaluation based on
those facts as to the number of Respondent's employees the
Union actually represented.
Some of the bartenders at the Overland Hotel in Reno
told Staff, in substalice, that they were dissatisfied with the
Union. There is no evidence in the record that any of the
employees of Respondent ever expressed dissatisfaction
with the Union to Staff. The above matters in themselves,
and when considered in connection with the matters set
forth below relating to Respondent's claimed reasonable
423
doubt as to the Union's majority, fall short of establishing
that the. Union in, fact did not represent a majority of
Respondent's employees.
(3) The alleged reasonably based doubt of the
Union's majority status
Respondent, through its chief executive officer, Berry,
made a determination in mid-August 1974 that the Union
did not represent a majority of its bar and culinary
employees. Until October 24, 1974, when the Union was
notified that Respondent doubted its majority status,
Respondent continued to investigate the matter. However,
Respondent's initial determination in that regard was made
while it was still 'part of the multiemployer bargaining unit
and still bound by the multiemployer contract. Respondent
did not-withdraw from the Association until , August 30,
1974, 2 weeks later. Respondent did not notify the Union
that it questioned the Union's majority status until October
24, 19744 almost 2 months after it withdrew from the
Association. Respondent did not file a petition for an
election until July 25, 1975, some 9 months after it refused
to bargain with the Union.
The Board has long held that questions relating to an
employer's reasonably based doubt as to a union's contin-
ued majority cannot be resolved by the application of any
mechanical formulas and can only be answered "in the light
of the totality of all circumstances involved in.a particular
case." Celanese Corporation of America, 95 NLRB 664
(195 1). In the instant case Respondent has raised a number
of matters on which it claims to have based a reasonable
doubt as to the Union's majority. These -matters must be
considered in the context of the major disruption in the
bargaining unit which occurred when Respondent with-
drew from the Association, and in the context of the filing
by Respondent of a petition for an election. Also to be
considered, however, are the facts that Respondent made
its determination that the Union did not represent the
majority of its bar and culinary workers before it withdrew
from the multiemployer bargaining unit and the fact -that
Respondent did not see fit to file a petition for an election
until some 9 months after it refused to bargain and some 11
months after it made the determination that the Union did
not represent a majority.
Some of the matters raised by Respondent to establish a
reasonably based doubt as; to the Union's majority do, not
warrant prolonged discussion. Respondent's chief executive
officer, Berry, knew that Nevada was a right-to-work State
and that the contracts did not contain a union-security
clause. Such matters do not indicate whether or not a union
represents a majority of an employer's employees. Cf. Wald
Transfer & Storage Co., supra. Berry's law partner told him
that in a state court proceeding involving another employer
the union representative had refused to disclose the actual
membership in the union of the employees at the Lake. No
implication can be derived from that fact that the Union
did not represent a majority of Respondent's employees.
Other matters require more extended attention. Those
include the trusteeship, the employee turnover, indications
of employee dissatisfaction, and matters relating to union
inactivity.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berry had no knowledge of any election ever having been
held among the -employees. However, the presumption of
majority can be based on either certification or, voluntary
recognition, and where an employer voluntarily recognizes
a union it cannot use that fact-as a basis for doubting the
union's majority. Cf. Bartenders, Hotel, Motel and Restau-
rant Employers Bargaining Assn. of Pocatello, supra.
Berry read in the newspapers that the Union was in
trusteeship and he heard of financial difficulties of the
Union. He also knew that in the summer of 1974 union
representatives were on the premises and that organization-
al activity was taking place. The fact that the Union was
undergoing internal revisions does not indicate whether or
not it continued to represent a majority of the Respondent's
employees. A union may have financial difficulties whether
or not it represents a majority, and organizational activity
only indicates that a union desires more members than it
has.
Berry knew that there was a very substantial turnover
among the bar and culinary employees. High turnover is
one circumstance, among others, that must be considered in
determining whether an employer has a reasonably based
doubt as to a union's majority status. Peoples Gas System,
Inc., 214 NLRB 930 (1974); Convair Division of General
Dynamics Corporation, 169 NLRB 131 (1968); Kentucky
News, Incorporated 165 NLRB 777 (1967). However, high
employee turnover in itself 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 Beverages, Inc., et aL d/b/a Pepsi-Cola-
Dr. Pepper Bottling Co. 219 NLRB 1200 (1975); King Radio
Corporation, 208 NLRB 578 (1974), enfd. 510 F.2d 1154
(C.A. 10, 1975).
Berry knew that some of the employees were dissatisfied
with the Union. Employee Pam,, whose last name he could
not remember, told him that she didn't want any part of the
Union. Employee Connie, whose last name he could not
remember, told him that she was not interested in being
represented by the Union. Berry learned from Assistant
General Manager Voss or General Manager Bay that
employee Willsey had said that he did not want anything to
do with the union people. Berry also learned from Bay or
Voss that employee Roskin had said that he had dealings
with the Union in the east and that he was not too happy
with them. Thus Berry had information that four named
employees (two of whose last names could not be recalled)
had expressed some , form of disapproval of the Union.
There were about 40 employees in the bar and culinary
employees' unit in October 1974. The evidence adduced by
Respondent falls far short of establishing that a majority of
the employees in the bargaining unit expressed displeasure
with the Union. The number that had expressed displeasure
was ,insubstantial in relation to the overall employee
complement in the unit and Respondent could not base a
reasonable doubt of majority on such a limited number of
remarks. Cf. Strange and Lindsey Beverages, supra.
Respondent's supervisors often talked among. themselves
about the status of the Union , Bar Manager Badertscher
told Voss that he (Badertscher) felt that the people in the
bar were not interested in being represented by the Union
and that they were all happy with the conditions as they
were. Voss reported that to Berry. Badertscher also told Bay
that he (Badertscher) was of the opinion that the people
that worked for him did not want the Union to represent
them. Badertscher did not tell Bay the basis for that
opinion. Bay reported the conversation to Berry:Voss told
Bay that he (Voss) didn't think the Union had a majority at
the club and Bay reported that to Berry. However, the
subjective evaluations of supervisors cannot be used as a
basis for reasonablydoubting a union's majority. As the
Board held in Terrell Machine Company, 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398
U.S. 929 (1970):26
To be of any significance, the evidence of dissatisfaction
with a validly recognized incumbent Union must come
from the employees themselves, not from the employer
on their behalf.
The testimony of Union Business Agent Vickney and
employee Labendz established that a union business agent
visited the premises about twice a week at least until mid-
1973. There is no evidence that the Union took an active
role at Respondent' s premises from mid-1973 until the early
summer of 1974. During that period, Berry, Bay, and Voss
saw no union representatives on the premises and no
grievances were filed. Beginning in July 1974, Union
Business Representative Lawrence visited the premises
about twice a week to enforce the contract and to receive
complaints from' employees. After October he visited the
premises about twice a month. Berry. knew that in the
summer of 1974 several union organizers came onto the
premises, and Voss knew that starting in July 1974 the
Union was trying to contact some of the employees to join
the Union. Though there is no evidence that union
representatives were on the premises from mid-1973 until
early 1974, the contract was in effect during that period. In
addition, a sign was prominently displayed over the bar
showing that Respondent was a union house.
Lack of activity by a union is one factor to be considered
in evaluating whether a company has a reasonable doubt of
the union's majority. Taft Broadcasting, 201 NLRB 801
(1973). In the instant case, a contract ,was in effect at all
times until November 30, 1974, and there is no evidence
that the Union abandoned its status as collective-bargain-
ing agent of the employees. Berry testified that his reading
of the contract in late June or early July 1974 led him to
believe that Respondent had engaged in serious violations
of the contract without any protest from the Union.
However, there is no evidence that the Union had knowl-
edge of, any contract violations or had any cause to believe
that grievances should be filed. The relative inactivity of the
Union between mid-1973 and early summer 1974 is not, in
itself, sufficient to raise a reasonable doubt as to the
Union's continued majority.
In United Supermarkers, Inc., 214 NLRB 958 (1974), the
Board found that -an employer did not have a reasonable
doubt based on objective facts as to the union's continued
majority status. The Board held:
zs In finding a violation in the Terrell case, the Board noted. "that the
Respondent could have filed a petition for an election, or asked that the
Union do so, in order to resolve its alleged doubt, but it took no such steps."
BARNEY'S CLUB
A showing_ of such doubt requires more than an
employer's mere assertion of it, and more than proof of
an employer's subjective frame of mind. The assertion
must be supported by objective considerations, that is,
some substantial and reasonable grounds for believing
the union has lost its majority status. [Footnotes
omitted.]
After considering all of the factors set forth above, I
conclude that Respondent did not have substantial and
reasonable grounds for believing that the Union had lost its
majority status. Respondent's assertion in that regard was
based on subjective rather than objective considerations. In
sum, I find that the presumption of continued majority has
not been rebutted either by a showing that the Union, in
fact, lost its majority status or by a showing that Respon-
dent had a sufficient objective basis for reasonably doubt-
ing the Union's continued majority.27 In addition, Respon-
dent's refusal to bargain took place at a time when
Respondent was maintaining an unlawful no-solicitation
rule. Thus Respondent was engaging in conduct tending to
encourage employee disaffection from the Union. Cf. James
W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507
(1975). I find that Respondent violated Section 8(a)(5) and
(1) of the Act as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unlawfully withdrawing recognition
from the Union and by refusing bargain with the Union as
the exclusive representative of its employees in the afore-
said appropriate unit, I shall recommend that Respondent
be ordered to recognize and, upon request, to bargain in
good faith with the Union as the exclusive representative of
its employees in that unit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and it
will effectuate the policies of the Act for the Board to assert
jurisdiction.
27 Cf N.LR.B v. Thompson, Inc., 525 F.2d 870 (C.A 5, 1976)
2$ In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
425
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By maintaining a no-access rule which prohibits
solicitation on Respondent's premises by employees after
their shifts have been completed, Respondent has engaged
in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
4. All employees employed by the Respondent in its bar
and culinary operations at its Stateline, Nevada, opera-
tions, excluding all other employees, guards, and supervi-
sors 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.
5. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
6. By withdrawing recognition from the Union and by
refusing to bargain with the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. By the foregoing conduct, Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER28
The Respondent, Barney's Club, Incorporated, Stateline,
Nevada, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining any rule or regulation prohibiting its
employees from soliciting on its premises after their shifts
have been completed unless such prohibition is demonstra-
bly necessary to maintain production, discipline, or
security.
(b) Refusing to recognize and bargain in good faith with
Hotel-Motel-Restaurant Employees & Bartenders Union,
Local 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, as the exclusive represent -
ative of its employees in the following bargaining unit:
All employees employed by it in its bar and culinary
operations at its Stateline, Nevada, operations, exclud-
ing all other employees, guards, and supervisors as
defined in the Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Recognize and, upon request , bargain in good faith
with Hotel-Motel-Restaurant Employees & Bartenders
Union, Local 86 , Hotel & Restaurant Employees &
Bartenders International Union , AFL-CIO, as the exclu-
sive representative, of its employees in the unit described
above.
(b) Post at its Stateline, Nevada, facility copies of the
attached notice marked "Appendix." 29 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by its authorized
representative , shall be posted by it 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. Rea-
sonable steps shall be taken by it to insure 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 it has taken to comply herewith.
29 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 "
WE WILL NOT prohibit our employees from soliciting
on our premises after their shifts have been completed
unless such a prohibition is demonstrably necessary to
maintain production, discipline, or security.
WE WILL NOT refuse to recognize and bargain in good
faith with Hotel-Motel-Restaurant Employees & Bar-
tenders Union, Local 86, Hotel & Restaurant Employ-
ees & Bartenders International Union, AFL-CIO, as
the exclusive representative of our employees in the
following bargaining unit:
All employees employed by us in our bar and
culinary operations at our Stateline, Nevada,
operations, excluding all other employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL recognize and, upon request, bargain in
good faith with said Union as the exclusive representa-
tive of our employees in that unit.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
BARNEY'S CLUB,
INCORPORATED