Consolidated Casinos Corporation, Sahara Division

National Labor Relations Board - Board Decisions

Jun 13, 1983

266 N.L.R.B. 988 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated Casinos Corporation, Sahara Division
and General Sales Drivers, Delivery Drivers
and Helpers Local 14, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Jerry B. Simpson
and Mike Harrison and David C. McAteer, Jr.
and Jesslyn A. Wilson. Cases 31-CA-10514,
31-CA-10538, 31-CA-10610, 31-CA-11934,
31-CA-10539, 31-CA-10721, 31-CA-10744,
31-CA-10748, 31-CA-10891, 31-CA-10957,
and 31-CA-10723
13 June 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 26 October 1982 Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, General Sales Driv-
ers, Delivery Drivers and Helpers Local 14, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein-
after referred to as the Union, filed exceptions and
a supporting brief, and Respondent filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.'
In its limited exceptions, the Union asserts that
three employees, George Ebersole, David C. McA-
teer, and Q. B. Bush, should have been included in
that portion of the Administrative Law Judge's
recommended Order that provides a remedy for 13
named employees who were found to have been
unlawfully denied use of Respondent's internal dis-
charge review proceeding. The Union argues that
the three employees are part of the same class of
employees accorded a remedy and that the omis-
sion of their names from the recommended Order
was the result of inadvertent error by either the
Administrative Law Judge or counsel for the Gen-
eral Counsel. As part of its exceptions, the Union
has attached documents in an attempt to support its
contention that Ebersole, McAteer, and Bush did
lodge appeals with Respondent concerning their
I In the absence of exceptions by Respondent, we adopt the Adminis-
trative Law Judge's Decision and recommended Order pursuant to the
provisions of Sec. 10(c) of the Act. Accordingly, our action should not
be construed as an endorsement by the Board of all of the Administrative
Law Judge's findings and conclusions.
266 NLRB No. 172
discharges. We find no merit in the Union's excep-
tions.
Initially, we note that the complaint does not
allege that Ebersole, McAteer, or Bush was unlaw-
fully denied access to Respondent's internal dis-
charge review proceeding. Nor is the complaint
constructed so as to include unnamed discrimina-
tees.2 At the hearing, neither Ebersole nor McA-
teer3 testified concerning his efforts, if any, to uti-
lize the review proceeding and there is no compe-
tent record evidence, be it testimonial or otherwise,
to justify the inclusion of Ebersole, McAteer, or
Bush in the remedy. 4 Accordingly, consonant with
fundamental concepts of due process, the Union's
exceptions must be denied. Rushton & Mercier
Woodworking Co., 203 NLRB 123, 126 (1973); H. &
F. Binch Co., 188 NLRB 720, 726 (1971), enfd. as
modified 456 F.2d 357 (2d Cir. 1972).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Consolidated
Casinos Corporation, Sahara Division, Las Vegas,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order.
2 See, e.g., Ironworkers Local 480 (Building Contractors of N.J.), 235
NLRB 1511, 1512, fn. 4 (1978).
3 Bush did not testify.
4As for the documents attached to the exceptions, those documents
were not made part of the record and cannot now be relied upon by the
Board. See Sec. 102.54(b), National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as amended.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This litigation was heard during 19 days of hearing in
Las Vegas, Nevada, in the months of March, April, and
May 1982. The matter arose as follows:
General Sales Drivers, Delivery Drivers and Helpers
Local 14, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein the Union), filed the following charges on the
dates indicated against Consolidated Casinos Corpora-
tion, Sahara Division (herein Respondent): Case 31-CA-
10514 on October 10, 1980, Case 31-CA-10538 on Octo-
ber 17, 1980, and Case 31-CA-10610 on November 5,
1980. Jerry B. Simpson, an individual, filed a charge in
Case 31-CA-10539 against Respondent on October 17,
1980. Mike Harrison, an individual, filed the following
charges on the dates indicated against Respondent: Case
31-CA-10721 on December 16, 1980, Case 31-CA-10744
on December 24, 1980, Case 31-CA-10748 on December
988
CONSOLIDATED CASINOS CORP.
29, 1980, and Case 31-CA-10891 on February 23, 1981.
David C. McAteer, Jr., an individual, filed a charge in
Case 31-CA-10957 on March 18, 1981, against Respond-
ent. On May 21, 1981, the Regional Director for Region
31 of the National Labor Relations Board (Regional Di-
rector and the Board, respectively) issued an order con-
solidating cases, consolidated complaint, and notice of
hearing with respect to the above-cited cases.
On December 19, 1980, Jesslyn A. Wilson, an individ-
ual, filed a charge in Case 31-CA-10723 against Re-
spondent. The Union filed a charge in Case 31-CA-
11934 against Respondent on February 26, 1981. On
March 11, 1982, the Regional Director issued an order
consolidating cases, amended consolidated complaint,
and notice of hearing consolidating the above-cited addi-
tional charges with those in the outstanding complaint.
The amended consolidated complaint, as further
amended at the hearing, alleges a wide variety of con-
duct by various individuals acting as agents of Respond-
ent as violative of the provisions of the National Labor
Relations Act (the Act). Included in the complaint are
allegations that Respondent's agents: (I) interrogated,
threatened, and otherwise coerced employees in violation
of Section 8(a)(1) of the Act; (2) discharged employees
in violation of Section 8(a)(3) and (1) of the Act; (3)
denied employees the right to the presence of a repre-
sentative during interviews from which they reasonably
believed disciplinary action might result in violation of
Section 8(a)(1) of the Act; and (4) denied employees cer-
tain appeal rights from adverse actions against them be-
cause of their union activities and because they were
named in or associated with charges filed with the Board
in violation of Section 8(a)(3), (4), and (1) of the Act.
Respondent denies it is responsible for the conduct of
certain alleged agents, denies the conduct and motiva-
tions attributed to the alleged agents, and further denies
that any conduct which did occur in any way violated
the Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses, to argue orally, and
to file post-hearing briefs.
Upon the entire record herein,' including the very
helpful briefs of the General Counsel and Respondent, 2
and from my observation of the witnesses and their de-
meanor, I make the following:3
I Respondent's unopposed motion to correct the transcript is hereby
granted.
2 Respondent also filed a subsequent supplemental brief citing a deci-
sion which had not issued as of the final due date for post-hearing briefs.
While such a submission is appropriate, Respondent's citation was to a
decision of the General Counsel's Division of Advice, a decision which is
based on the General Counsel's prosecutorial discretion and not a deci-
sion of the Board binding on me.
3 Many factual elements of this extensive litigation were resolved by
the pleadings, stipulations, and admissions of fact, or by unchallenged
credible documentary and testamentary evidence. Where not otherwise
noted, the findings contained herein are based thereon.
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all relevant times, a
Nevada state corporation which operates, inter alia, a
hotel and casino in Las Vegas, Nevada, known as the
Sahara. Respondent annually enjoys gross revenues in
excess of $500,000 from its business operations and annu-
ally purchases and receives goods and services valued in
excess of $50,000 from suppliers located outside the State
of Nevada.
II. LABOR ORGANIZATION
The Union is, and has been at all relevant times, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Chronology
The events in question herein occurred almost entirely
at the Sahara Hotel in Las Vegas, Nevada (the Hotel),
during the year 1980. Respondent holds the gaming li-
cense for the Hotel as required by the Nevada Gaming
Control Act. At relevant times the Hotel was a wholly
owned subsidiary of the Sahara Nevada Corporation
which was in turn a wholly owned subsidiary of the Del
E. Webb Corporation. At relevant times the Del E.
Webb Corporation also operated other hotel and gaming
facilities in Las Vegas, Reno, and South Lake Tahoe,
Nevada, and was in the process of obtaining a license to
operate the Claridge Hotel, a hotel and casino in Atlan-
tic City, New Jersey.
The Hotel employs over 2,000 employees. In addition
to providing rooms and food and beverage service, the
Hotel operates a gaming or casino area and provides as-
sociated entertainment. Over half of the Hotel's employ-
ees are represented by various labor organizations and
are covered by various collective-bargaining agreements.
The casino or gaming employees, who number in excess
of 500 and are the only employees involved herein, were
previously unorganized and were involved in an organi-
zational campaign involving the Union in the latter half
of 1980. The Union filed a representation petition dock-
eted as Case 31-RC-4841 on July 25, 1980. 4 An election
was held on October 25 pursuant to a Stipulation for
Certification Upon Consent Election in the following
unit at the Hotel (the unit):
All gaming casino dealers including keno writers,
keno runners, twenty-one dealers, crap dealers, bac-
carat dealers and shills, poker dealers, pan dealers,
poker and pan shills and shill dealers, extra board
dealers and oriental games dealers employed at the
Hotel located at 2335 Las Vegas Boulevard South,
Las Vegas, Nevada; excluding all other employees
including casino shift managers, assistant shift man-
agers, pit bosses, pit floormen, boxmen, slot shift su-
pervisors, floormen, slot mechanics, booth cashiers,
4 All dates hereinafter refer to 1980 unless otherwise indicated.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change girls, casino cage cashiers, slot cage cash-
iers, coin counters and wrappers, pit clerks, credit
clerks, office clerical employees, guards, and super-
visors as defined in the Act, as amended.
The Union won the election and, after resolution of post-
election matters not here relevant, the Board certified
the Union as the exclusive representative of the employ-
ees on March 29, 1982. As of the conclusion of the hear-
ing, the Hotel had at all times refused to recognize and
bargain with the Union as the representative of the em-
ployees in the unit. On September 30, 1982, the Board
issued its Decision and Order requiring Respondent to
bargain with the Union in Consolidated Casinos Corp.,
264 NLRB No. 92 (1982).
B. Agency Allegations
1. Undisputed categories
As a result of the amended pleadings, various stipula-
tions of fact during the hearing, and other admissions at
the hearing and on brief, the bulk of the supervisory and
agency allegations in the complaint were not in issue.
Thus, I find that the Hotel's personnel 'with the follow-
ing job titles are supervisors and agents of Respondent:
general manager, casino manager, personnel director,
shift manager, pit manager, pit shift supervisor, and pit
supervisor or pit boss. 5
2. Disputed categories: boxmen and floormen
a. Evidence
The General Counsel alleged various individuals with
the job titles of "floorman" and "boxman" were supervi-
sors within the meaning of Section 2(11) of the Act. Re-
spondent denied these allegations and the supervisory
status of individuals in these categories was closely liti-
gated. 6 An understanding of the duties and responsibil-
ities of the boxmen and floormen requires a brief discus-
sion of their roles in the Hotel's gaming operations.
Various casino games at the Hotel are played between
members of the public and dealers in an area known as
the pit. Craps is played at a table staffed with several
dealers and a boxman. Floormen oversee the various
games and the personnel involved, including dealers and
boxmen. The Hotel has in force a body of rules and reg-
ulations regarding employee conduct as well as elaborate
procedures controlling the playing of the games them-
selves and the issuance of credit in regard thereto. The
floormen closely monitor the dealers and the games for
compliance with the regulations and procedures, have a
role in credit transactions, and assist in "promulgating
customer relationships." Respondent's written job de-
scriptions in effect in 1980 reveal the hierarchial struc-
b Although Respondent denied the supervisory and agency status of pit
boss Lou Massonie in its answer, there was no real contention at the
hearing or on brief that the pit supervisor or pit boss is not a supervisor
as defined by Sec. 2(11) of the Act. Were there a dispute as to Massonie's
status, I would find without difficulty that as pit boss he exercised the
power to discipline employees and was a supervisor within the meaning
of the Act.
6 The parties treated the various individuals in each category as having
identical duties and responsibilities.
ture of pit employees. Thus, the shift managers have the
explicit authority to "fire and discipline" employees and
are charged with the duty to "supervise and direct" pit
bosses and other personnel. The pit boss in turn is au-
thorized to supervise the 21 pit and direct the 21 and
craps floormen. The job description for the baccarat
floorman recites, as the first of the employee's major re-
sponsibilities, "To execute and implement" the orders of
the manager. In this floorman's job description the space
provided for "Supervisory or direction responsibilities"
contains the entry "direct control of dealers, starters and
clerks." The job description further recites that the floor-
man has "recommendatory" powers with regard to
hiring and firing. The "dice" floorman job description
lists the "enforcement of procedures" as a major job re-
sponsibility and indicates the floorman has "some" influ-
ence over hiring and firing. The dice or craps floorman
supervises two boxmen and four craps dealers. The box-
man's job description indicates the primary function of
the boxman is to observe the game. It also recites that
the boxman supervises dice dealers and has "some" influ-
ence over hiring.
Floormen and boxmen must be experienced and quali-
fied dealers. Floormen are paid at a rate two to three
times higher than dealers, the boxmen somewhat less
than floormen. Neither classification is allowed to accept
gratuities. This means that neither boxmen nor floormen
are necessarily better compensated than particular or
even average dealers who derive substantial income from
tips. Dealers wear a uniform when on duty. Floormen
and boxmen wear jacket and tie. The Hotel supplies
meals to its employees. Dealers use the "help's hall" or
employee cafeteria located in the Hotel. Boxmen and
floormen are allowed use of the Hotel's coffeeshop and
order from the regular menu. Other fringe benefits, such
as the assignment of parking, appear to be uniform
among dealers, boxmen, and floormen.
Jeanette Armstrong, Respondent's director of person-
nel, and Tony Packe, pit manager, testified that floormen
and boxmen have no authority to hire, fire, suspend, dis-
cipline, or issue warnings to dealers. Rather, the proce-
dure as described by Packe was that the floorman or
boxman call the pit supervisor and request that he issue a
warning or otherwise administer discipline to an errant
dealer. Dealer Ray Fritz testified that while warnings to
dealers can be "written up by anyone in the chain of
command," including floormen, the warnings must be
signed by the pit supervisor or a higher level employee.
Various dealers testifying for the General Counsel as-
serted that the floormen were in charge of dealers'
gaming conduct and had "ultimate power" over them.
Few direct examples of that power were described other
than as noted above. Floormen who testified, however,
also took the view that they were separate and apart
from dealers. For example, floorman Jayson Brown testi-
fied that he was "part of management" and therefore did
not vote in the union representation election. In the vari-
ous conversations between dealers and floormen alleged
as violative of the Act, discussed in detail infra, it is clear
that floormen identified themselves as members of man-
agement in their relationships with dealers.
990
CONSOLIDATED CASINOS CORP.
b. Analysis and conclusions
(1) Floormen
Casino gaming by its very nature requires close obser-
vation and supervision both of the gaming public and
Hotel employees as well as the adoption and close en-
forcement of detailed procedures controlling all aspects
of play. The Hotel clearly applies such standards to its
casino operations and utilizes the floormen as a critical
part of that process. It is clear and I find that floormen
regularly exercise broad powers of direction and control
over dealers in this sense. The Board has held, however,
that this type of direction by floormen, standing alone,
does not confer supervisory status. Thus, the Board held
in Silver Spur Casino, 192 NLRB 1124, 1125 (1971):
Although the floormen control the poker depart-
ment in the absence of the manager, they do not
possess the power to hire, discharge, or discipline
the remaining employees in the department. More-
over, any orders by the floormen directed to the
dealers and shills are in accord with established pro-
cedure. In these circumstances, we find that the
poker floormen are not supervisors within the
meaning of the Act.
The Hotel's floormen, however, are not limited to
giving instruction and/or correction to dealers. They
may bring complaints to the pit boss or to other admitted
supervisors from which dealer discipline may result. So,
too, by the very terms of their job description, they have
"recommendatory" authority regarding hiring and firing.
Dealers are aware of their obligation to comply with the
Hotel's regulations and that the regulations are interpret-
ed and applied by their directing floormen. It is clear
dealers are not free to disregard the orders of a floor-
man. Indeed, the job description for the craps dealer in-
dicates that the dealer "reports to assigned Floorman
who is responsible for the fulfillment of the function,
duties and relationship of the position."
These additional duties and responsibilities on balance
bring the floormen to the level of supervisors as defined
by the Act even assigning the burden of proof on the
issue to the General Counsel. The giving of orders and
instruction backed by the authority to bring the noncon-
forming dealers to account, as opposed to the mere en-
forcement of established gaming procedures, goes to the
essence of the supervisor-supervisee relationship. These
supervisory duties and responsibilities are confirmed by
the Hotel's job descriptions. 7
Beyond actual supervisory authority, there is signifi-
cant evidence that the Hotel held out the floormen to
the dealers as having apparent authority over them. The
clear and obviously deliberate separation of dealers and
floormen is reflected in their differing roles during
gaming play and in resolving disputes with regard there-
7 The testimony of Packe and Armstrong diminishing the exercise of
authority by the floormen is met by the argument of the General Counsel
who notes: "[I]t is well settled that the existence of authority, not the ex-
ercise of that authority, determines whether an individual is a supervisor.
The New Jersy Famous Amos Chocolate Chip Cookie Corp., 236 NLRB
1093 (1978)."
to, in the garments they wear, and in their assigned
eating places. The very fact of the floormen's exclusion
from the agreed-upon election unit,8 while not relevant
to the issue of actual supervisory authority, is yet an-
other occurrence which indicated to floorman and dealer
alike that floormen were separate and apart from dealers;
i.e., "members of management." This perception of, at
least, apparent authority on the part of the floorman is
also evident in the credited statements of floormen to
dealers, infra, that floormen regarded themselves as
aligned with and/or speaking on behalf of management
during the union election campaign.
Accordingly, for all the above reasons, I find that the
Hotel's floormen during the relevant period were super-
visors and agents of Respondent with both actual and ap-
parent authority over dealers. Thus, I find the General
Counsel had met his burden of proof with respect to the
floormen allegations in paragraph 5 of the complaint.
(2) Boxmen
Much of the analysis concerning floormen, supra, ap-
plies to boxmen with several differences. First, where at
least one of the floorman job descriptions notes floormen
have "recommendatory" authority over hiring and firing,
the boxman job description's equivalent authority is
listed only as "some." Second, where the craps dealer
job description recites that it is the floorman to whom
the dealers are responsible, it also informs the dealer that
he will receive work "direction" from the boxman.
Third, a finding that the boxmen were supervisors would
produce an unusually high ratio of supervisors to unit
personnel in the craps pit given that the craps floormen
have been found supervisors.
The limited authority exercised by the boxmen as well
as the fact that boxmen are involved as are dealers in the
game itself, rather than removed from it as are the floor-
men, acts to limit any argument that the boxmen have
apparent authority despite the common circumstances,
noted supra, between the boxmen and floormen. Limited
testimony was received regarding boxmen's acts during
relevant periods. The only agency allegation involving
boxmen deals with Pryor Harrel a/k/a Alabama. The
General Counsel's evidence is that Harrel, in effect,
asked a dealer how he was going to vote in the election
and, when the employee said that he would vote for the
Union, Harrel said, "Well, that's good, you ought to."
Such evidence, if credited, does not offer independent
support for the General Counsel's supervisory allegations
regarding boxmen.
Keeping in mind the burden of proof the General
Counsel bears on all allegations in the complaint and fur-
ther noting the relative paucity of evidence of actual or
apparent supervisory authority of boxmen, I find that the
General Counsel has failed to prove that Harrel, or any
other boxman, was an agent of the Hotel at relevant
times. Accordingly, I shall dismiss this portion of para-
8 The Board has held an all-inclusive unit of gaming employees is an
appropriate bargaining unit. See, e.g., El Dorado Club, 151 NLRB 579
(1965). In this and later Board cases floormen and boxmen were included
or excluded from particular gaming bargaining units depending on their
supervisory status in particular casinos.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graph 5 of the complaint. As a direct consequence of the
General Counsel's failure as to Harrel, it follows that I
also dismiss paragraph 15 of the complaint which de-
pends on Harrel's status as an agent of Respondent.
C. Allegations of Statements Violating Section 8(a)(1)
of the Act
The complaint contains numerous allegations of state-
ments of individuals found to be agents of the Hotel,
supra, which are alleged as violations of Section 8(a)(1)
of the Act. It appears appropriate to deal separately with
the various arguments concerning each allegation in the
order they appear in the complaint.
1. Complaint paragraph 6(a)-Michaels interrogates
Nelson
a. Evidence
Former dealer and alleged discriminatee Gloria Nelson
testified that sometime in the period June through Sep-
tember 1980 she spoke alone in the 21 pit with floorman
Larry Michaels. After an initial colloquy about Nelson's
health, Michaels told Nelson, in Nelson's recollection,
that for her own information she should know she was
being discussed in management meetings and that she
should watch herself carefully. Nelson thanked him and
the conversation ended.
Michaels did not testify for he died on March 31,
1981. Respondent adduced evidence, however, that Nel-
son's version of this conversation did not appear in any
of the 17 affidavits she gave in conjunction with this
case. The Hotel further showed that the General Coun-
sel's Las Vegas Resident Officer on or about January 27,
1981, related the allegations of the soon-to-issue com-
plaint to Respondent's counsel who had earlier indicated
he wished to independently investigate the merits of the
Government's allegations. The Michaels' allegation was
not included in the Resident Officer's recital of the alle-
gations of the complaint. Respondent first learned of the
Michaels' allegation only upon receipt of the May 21,
1981, complaint; i.e., after Michaels' death.
b. Analysis and conclusions
Respondent's threshold defense to the allegation is that
the Government's omission to reveal the Michaels' alle-
gation, in the circumstances noted above, until after Mi-
chaels' death requires that the count be dismissed with-
out considering the substantive evidence. Respondent
correctly notes that the Board has held9 that allegations
against agents of respondents deceased at the time of a
hearing will stand although the evidence must be careful-
ly scrutinized. Respondent argues here rather that the
General Counsel's refusal or at least negligent omission
to inform Respondent's counsel that Michaels was an ac-
cused agent in the January telephone call caused Re-
spondent to detrimentally rely on the omission. Thus,
Respondent failed to interview or take an affidavit from
Michaels on the allegations during the remaining weeks
I Citing Sears Roebuck & Co., 224 NLRB 558 (1976); Goodwater Nurs-
ing Home, 222 NLRB 149 (1976); and United Aircraft Corp., 192 NLRB
382 (1971).
of his life. Accordingly, Respondent was unable to rebut
the evidence of the General Counsel at the hearing and
therefore suffered prejudice in the nature of laches.' 0
Were there sufficient evidence to suggest that the
General Counsel, through his Resident Officer, withheld
the Michaels' allegation from Respondent's counsel for
the purpose of foreclosing Respondent's inquiry into the
merits of the allegation, I would not hesitate to strike
this paragraph of the complaint. The record evidence
does not rise to that level, however, and I cannot find
the General Counsel was either negligent or knowing in
his omission. Regarding the Respondent's argument that
the equities require, under the doctrine of laches, that the
allegation be dismissed, the brief answer is that laches do
not lie against the General Counsel for negligent delay.
Employees' rights will not be discounted to the benefit
of a respondent where prosecutorial delay by the Gener-
al Counsel is not calculated to deny respondent a fair
hearing. Cf. NLRB v. J. H. Rutter-Rex Mfg. Co., 396
U.S. 258 (1969). See also Ventura Coastal Corp., 264
NLRB 291 (1982). Therefore, I shall not dismiss the alle-
gation on the procedural grounds advanced by Respond-
ent but rather shall turn to the merits.
I have carefully scrutinized the testimony of Nelson
concerning Michaels' statement, noting: (I) the fact that
at the time she testified she knew Michaels was dead and
(2) the fact that no reference to the Michaels' conversa-
tion was contained in her numerous affidavits. Despite
these cautions, I fully credit Nelson's testimony regard-
ing her conversation with Michaels. The conversation is
not implausible given the activities of Nelson during the
period, as discussed infra. And, because of the conversa-
tion's rather subtle content, it is not improbable that
Nelson would have forgotten the remark during the vari-
ous conversations and interviews involved in the prepa-
ration of her numerous affidavits. Most importantly,
however, I make this finding because to discredit
Nelson-who testified to a specific conversation with a
specific individual in unambiguous terms-would suggest
I doubt her credibility. To the contrary and as noted in
greater detail infra, I found her a persuasive witness with
a very convincing demeanor.
Even given this factual finding, Respondent raises ad-
ditional arguments. First, it notes that Nelson's version of
events is at variance with the specific wording of the al-
legation in the complaint. Thus, Michaels' allusion to
Nelson that she was the subject of management discus-
sion is clearly not an interrogation about her union ac-
tivities as alleged in the complaint. Second, Respondent
argues that Michaels' statement as testified to by Nelson,
if made, did not violate the Act. The Board with court
approval has traditionally held that, given full litigation
of an event or circumstance, a variance between the
complaint and the proof is not fatal and that a judge's
10 No evidence was offered regarding Michaels' health in the last
months of his life or whether in fact it would have been possible for Re-
spondent to interview him on the issue had it learned of the allegation in
January.
" As discussed in greater detail infra, the numerous affidavits of vari-
ous witnesses, including Nelson, and the circumstances of their prepara-
tion and adoption were adverse factors in weighing the credibility of
each witness, including Nelson.
992
CONSOLIDATED CASINOS CORP.
decision may address the conduct litigated or may in-
clude an order amending the complaint to conform to
the proof. Alexander Dawson v. NLRB, 586 F.2d 1300,
1304 (9th Cir. 1978); NLRB v. Iron Workers Local 433,
600 F.2d 770 (9th Cir. 1979); NLRB v. Bighorn Beverage,
614 F.2d 1238 (9th Cir. 1980). Consistent with the former
alternative I shall address the conduct of Michaels liti-
gated at the hearing.
The Board has found various types of conduct viola-
tive of Section 8(a)(1) of the Act and there is a tendency
to seek to fit specific conduct into one of a number of
conventional categories; e.g., threats, interrogations, the
creation of the impression of surveillance, etc. The Mi-
chaels' statement fits no such common category, but in
my view is nevertheless violative of Section 8(a)(1) of
the Act. Michaels told Nelson, even if in an attempt to
offer friendly advice, that she was under discussion by
management. Nelson was at that time a leading union or-
ganizer at the Hotel and the only fair inference she could
draw from Michaels' statement was that management
was discussing her because of her considerable union ac-
tivities. Any employee in such circumstances would per-
ceive this state of affairs as a sign of possible adverse
consequences. Indeed, Michaels specifically warned her
to "watch herself." Thus, the statement, irrespective of
its truth, i.e., whether or not Nelson was in fact being
discussed by management, may reasonably be expected
to have chilled Nelson's activities in support of the
Union. Therefore, the statement violates Section 8(a)(1)
of the Act, and I so find.
2. Complaint paragraph 6(b)-Musick interrogates
Nelson
a. Evidence
Nelson testified that she spoke alone with pit boss Jack
Musick during the June-September 1980 union campaign
in the pit. She recalled that after initial conversation re-
garding her health Musick asked her if the union "thing"
was all right. Nelson said yes and Musick answered, "I
told you to get out of this." Nelson demurred and the
conversation ended. Musick, still at the Hotel, testified
that he and Nelson worked together during the period
and that he may have asked her about her health. He tes-
tified further that he did not make any reference to the
Union in his conversation with her nor did he discuss the
Union with other employees.
b. Analysis and conclusions
As noted, I found Nelson an effective witness with a
convincing demeanor and a sound recollection, despite
the impediment of her affidavits and the fact that she is
an alleged discriminatee with a stake in the outcome of
the case. Musick, to the contrary, impressed me as a wit-
ness who recognized that as a supervisor at the Hotel he
could not properly have talked to Nelson or other deal-
ers about union activities. I find that recognition affected
either his recollection of events or his willingness to be
fully forthcoming on the issue. I therefore reject his de-
nials and credit Nelson.
The Board holds that questioning of even well-known
union supporters about their union activities violates Sec-
tion 8(a)(1) of the Act. PPG Industries, 251 NLRB 1146
(1980).12 Here, the credited testimony shows that
Musick went further and, obviously in an "I told you so"
context, recalled that he had earlier suggested Nelson
abandon her union efforts. Despite the fact that such re-
marks were likely offered out of sympathy for Nelson,
Musick's words clearly associated unhappy consequences
with her union activities. Such conduct also violates Sec-
tion 8(a)(1) of the Act, and I so find.
3. Complaint paragraph 6(c)-Sears interrogates
Nelson
a. Evidence
Nelson testified that she had a conversation alone with
floorman Duke Sears in early July. In her version of the
conversation Sears asked Nelson how "the Union thing"
was going. Nelson answered "fine." Sears then said that
he had told Lynn Simons, the corporate vice president,
that if he, Sears, had more authority he could "stop this
union thing." Sears recalled having had a conversation
with Nelson, a personal friend, in September in which
she mentioned that she was tired. He asked her why and
she responded that it was because of the union matter.
Sears then told her that he had had a conversation with
Simons in which he told Simons that he felt he could
keep the dealers from voting union. Sears told Nelson
that Simons had replied that, if he could stop the Union,
he, Simons, would appreciate it. Sears testified that he
had several conversations with Nelson during the period
at issue but could not bring them to mind.
b. Analysis and conclusions
Again for the reasons noted, I found Nelson highly
persuasive and credible. Sears, while not incredible,
seemed to me to lack the accuracy of recollection that
Nelson demonstrated regarding her conversation. Where
the two versions differ I credit Nelson over Sears. Given
this finding, it follows that Sears' conduct violated Sec-
tion 8(a)(1) of the Act. PPG Industries, above.
4. Complaint paragraph 6(d)-Schiffman
interrogates Nelson
a. Evidence
Nelson testified that she had a conversation with floor-
man Paul Schiffman during the union campaign alone in
the pit. Schiffman asked her how many authorization
cards had been signed. Nelson answered that 150 to 200
cards had been signed. Schiffman, at the time of the
hearing a pit boss for Respondent in New Jersey, testi-
fied that he worked with and conversed with Nelson
a I am aware that PPG and other similar cases have not necessarily
been viewed with approval by Chairman Van de Water and Member
Hunter. See, e.g., Nicsan Motor Corp., 263 NLRB 635, fn. 1 (1982). Ad-
ministrative law judges, however, are bound to follow Board decisions
unless and until they are modified or reversed by the Board or the Su-
preme Court. Reservations and/or overt disapproval by individual mem-
bers of the Board as to specific cases cannot diminish the binding force of
the Board decisions.
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the period but that he never asked how many au-
thorization cards had been signed.
b. Analysis and conclusions
Schiffman's demeanor was markedly inferior to that of
Nelson. I credit Nelson's specific recollection over the
denial of Schiffman. As noted, I have found Nelson to be
a truthful witness with an accurate recollection. Schiff-
man may well not recall the conversation and, in any
event, could easily feel called upon to serve what he
may feel is management's interest by denying the con-
duct attributed to him. Given this factual finding, Schiff-
man has engaged in a classic interrogation of an employ-
ee regarding the union activities of others. Such conduct
chills employees' Section 7 rights and thereby violates
Section 8(a)(l) of the Act, and I so find.
5. Complaint paragraphs 7(a) and (b)-Owens
threatens Griffith
a. Evidence
Former dealer and alleged discriminatee Deanne Ball
Griffith testified that she had a conversation with floor-
man Cyndie Owens in early or mid-July alone in the pit.
Griffith testified that Owens initiated the conversation by
stating that she guessed, "You guys are going to take the
big step?" Griffith did not respond directly whereupon
Owens said that, if the dealers thought they had it "bad"
currently, they should wait until the Union got in.
Owens continued stating, were the Union successful,
"tokes" would be sent to the "cage" and taxed.13
Owens testified that she worked with and conversed
with Griffith during the period, but specifically denied
discussing or alluding to the Union as a "big step" or
any adverse consequence to dealers resulting from a
union victory. She added that a personal matter of grave
importance preoccupied her during this period and that
as a consequence she was not then concerned with the
matters in controversy.
b. Analysis and conclusions
Acknowledging the effectiveness of Respondent's
attack on Griffith's testimony,' 4 I found her demeanor
'3 I take this remark to be gaming cant for the proposition that cus-
tomer tips received by dealers would for the first time be monitored as to
amount and the amount noted and either revealed to the United States
Internal Revenue Service or made subject to normal Federal income tax
withholding regulations. Implicit in the statement is the not unreasonable
assumption that some dealers, aware that the amount of their tips was not
formally recorded by the Hotel, might not be fully disclosing and paying
appropriate taxes on their tips and therefore might pay more taxes under
the monitoring system suggested.
14 Deanne Ball Griffith, like Nelson and, to a lesser extent, other em-
ployees, had prepared and adopted an extraordinary number of affidavits
covering the issues is dispute. The bulk of the affidavits were apparently
prepared by an attorney retained by an employee group and were based
on communications and notes made by Griffith and others concerning
various conversations. These affidavits suffered from a heavy application
of legal jargon to the descriptions given by the employees. The affidavits
also contained various blank spaces for the employees to complete before
they signed them. The affidavits were not prepared by means of close or
extensive communication between the preparer and the affiant, but were
prepared based on notes and then returned to the affiant for completion
The "mail order affidavits," as Respondent emphasizes, are not as likely
to accurately record events as Board-prepared affidavits and, on the
so superior to that of Owens that I have no trouble cred-
iting her version of the events. While Owens' demeanor
was less than that of Griffith, I do not find she was testi-
fying falsely but rather had a failure of memory. I simply
believe Griffith honestly testified. Her recollection of the
specific remarks and the identity of Owens as their
speaker would not likely be misrecalled.
Given this factual finding, it is clear that Owens' re-
marks constitute: (1) an interrogation regarding Griffith's
union activities and the union activities of others and (2)
a direct threat that if the Union were successful dealers,
including Griffith, would be less well off.15 In each case
there was a violation of Section 8(a)(l) of the Act, and I
so find.
6. Complaint paragraphs 8(a) and (b)-Gall
interrogates Orlando and tells him management is
hiring antiunion dealers
a. Evidence
Francis Orlando, Jr., a craps dealer at the Hotel, testi-
fied that he had two conversations with floorman Andy
Gall during the organizational campaign. The first oc-
curred in mid-July at an empty craps table. Orlando tes-
tified that Gall asked him how the Union was going and
the extent of dealer support for the Union. Orlando re-
sponded that the campaign was fine but that he would
not tell Gall the extent of union support among the deal-
ers. Orlando placed the second conversation in August
under similar circumstances. At that time Gall told Or-
lando that management wished to hire three female 21
dealers who opposed the Union. Gall was a pit boss for
the Hotel at the time of his testimony. He acknowledged
his proximity to Orlando during the period and that he
had discussed the Union with hotel employees. He did
not recall a specific conversation with Orlando, howev-
er, nor the remarks attributed to him by Orlando.
b. Analysis and conclusions
I credit the detailed testimony of Orlando, a current
employee, over the vague denials of Gall. Orlando im-
pressed me as an honest and forthcoming witness with
little interest in other than accurately answering the
questions asked him. Gall seemed to me to be attempting
to avoid embarrassing his employer through the device
of failing to recollect the events in issue. I found Gall's
demeanor to be significantly inferior to Orlando's. Given
this factual resolution, it is clear for the reasons noted
supra that Gall's questions about union support violate
record in this case, may be suspected of improperly influencing the testi-
mony of each witness who used the affidavits to refresh his or her recol-
lection prior to testifying. Generally, one or two Board affidavits were
also prepared for and sworn to by each employee. Further, the affidavit
prepared by Griffith which recited her conversation with Owens here at
issue contained neither a reference to the taxation of tips nor to "the big
step" comment attributed by Griffith to Owens.
is Respondent may find no shelter in the proposition that, because em-
ployees are legally obligated to pay Federal income tax on tips, a threat
to force them to do so is not a threat under the Act. Where employees
are threatened with loss of any benefit, legal or illegal, because of their
union activities or because of the outcome of a union election, the Act is
violated.
994
CONSOLIDATED CASINOS CORP.
Section 8(a)(l) of the Act. Gall's statement that manage-
ment Was considering hiring antiunion employees is a
statement to an employee that hiring would now be
based on impermissible considerations of employee union
sentiments and further that the employer would resist
union organization by illegal means. Such statements, ir-
respective of their truth, violate Section 8(a)(l) of the
Act. Cf. Anchorage Times Publishing Co., 237 NLRB 544
(1978), enfd. 637 F.2d 1359 (9th Cir. 1981).
7. Complaint paragraphs 9(a) and (b)-Sedgwick
interrogates Guffre
a. Evidence
Vince Guffre, a craps dealer at the Hotel, testified to a
conversation with then swing shift boss Bob Sedgwick
alone in the pit on the evening of July 18. Guffre testi-
fied that Sedgwick asked Guffre how the union drive
was going. Guffre responded that it was fading. Sedg-
wick said that was what he thought too, then added that
"they're asking upstairs." "'6 The conversation ended.
While Guffre is still employed by the Hotel he has ad-
mitted bias against it and in favor of the Union. Sedg-
wick, who left the Hotel in August 1980, testified that he
did not make the comments exactly as attributed to him
and further that he did not know that a union drive was
underway in July. While he did admit to hearing "union
talk" in July, he testified that he considered it but preor-
ganizational. He also admitted talking to Guffre about
that "union talk" and the fact that union activity had
died down.
b. Analysis and conclusions
Sedgwick had no particular reason to testify in favor
of Respondent while Guffre, even though a current em-
ployee, was admittedly unsympathetic to the Hotel and
wished to help the Union. Nevertheless, I do not believe
that Guffre shaped his testimony or otherwise suc-
cumbed to bias. Rather, I found his demeanor sound and
his recollection clear. I found Sedgwick had a weak
memory of events. I do not credit his denials over the
specific recollections of Guffre. Thus, I credit Guffre's
version of the events over Sedgwick's where the two
differ. Given this factual finding, I also find that Sedg-
wick interrogated Guffre concerning the union activities
of unit employees, a clear violation of Section 8(a)(1) of
the Act, and therefore sustain paragraph 9(a) of the com-
plaint. I do not find, however, that the credited testimo-
ny of Guffre supports a finding that Respondent engaged
in the surveillance of employees' activities. Sedgwick's
remark indicated to Guffre only that management was
interested in union activity and was asking other manage-
ment officials their opinion. No reasonable inference may
be drawn from Sedgwick's statement that management
was actually surveilling employees, and therefore no im-
pression of surveillance may be found. Accordingly, I
shall dismiss paragraph 9(b) of the complaint.
'6 The "upstairs" reference is to management officials whose offices
were located on the higher floors of the Hotel.
8. Complaint paragraph 10-Massonie interrogates
Griffith
a. Evidence
Griffith testified that on July 22 pit boss Lou Massonie
asked her if she had attended the employee meeting at
Gloria Nelson's house.'7 Griffith said she had. Griffith
testified that she did not ask Massonie for his opinion of
the Union in this meeting. Her affidavits given to a
Board agent, however, recite that she did so ask and that
Massonie answered that he was in favor of dealers join-
ing the Union. Massonie, a longtime employee of the
Hotel, admitted his proximity to Griffith during work
hours in July and the likely occurrence of repeated
work-related conversations. He specifically denied asking
the question attributed to him or even knowing about a
meeting at Nelson's house.
b. Analysis and conclusions
As noted supra, I found Griffith's demeanor impressive
and here find it significantly superior to Massonie's
whose denials struck me as both self-serving and uncon-
vincing. He seemed anxious to avoid embarrassing the
Hotel and therefore may have been reluctant to admit his
conduct. I credit Griffith over Massonie. Consistent with
my analysis supra, I find that Massonie's question regard-
ing employees' concerted activity inherently tends to
chill such activity and therefore violates Section 8(a)(1)
of the Act.
9. Complaint paragraph 11--Crane interrogates Fitz
a. Evidence
Dealer Raymond Fitz testified to a conversation alone
with floorman John Crane at a "dead" table in June or
July. Crane asked Fitz what his stand was on the Union.
Fitz said he was "affirmative" for it. Crane asked why.
Fitz then told Crane that seniority meant nothing at the
Hotel and dealers had to vote the Union in to protect
their jobs. Crane, who left the Hotel in February 1981, is
now employed out of State and out of the gaming indus-
try. He recalled a different set of circumstances involv-
ing Fitz. Crane testified that he had occasion to caution a
dealer at a table next to one where Fitz was dealing to
desist from discussing the Union with customers. In
Crane's memory Fitz then interjected and told Crane
that he was for the Union and that Crane could not talk
to other dealers as he had.
b. Analysis and conclusions
The differing versions of the conversation present a
clear credibility conflict which I resolve in favor of
Crane. Crane is no longer in the Hotel's employ and had
no apparent interest in shaping his testimony. His de-
meanor was impressive and his testimony convincing. I
believe it more likely that Fitz has misrecalled events. I
found his certainty at the hearing to be as likely based on
general conclusions regarding the guilt of the Hotel as
17 During this period Nelson had several employee meetings at her
home regarding the Union's organizational campaign.
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on his clear memory of specific events. Given this factu-
al resolution I find no violation of the Act and therefore
dismiss paragraph I 1 of the complaint.
10. Complaint paragraph 12(a)-Cross tells an
employee unionization would be both impossible
and, if successful, futile
a. Evidence
Rex Kidd, a dealer at relevant times at the Hotel, testi-
fied that he had a conversation with floorman Howard
Cross in the pit in August 1980. An organizational meet-
ing of employees which had received extensive press and
television coverage had recently been held. Cross asked
Kidd, in Kidd's memory, how the "turnout" at the meet-
ing had been. Kidd said it had been fairly good. Later in
the conversation Cross said that the Union would never
get in because the Hotel could hire people off the street
who would vote against the Union. Cross, no longer em-
ployed by the Hotel, testified that he knew Kidd and
worked with him but that he never had a conversation
with him regarding the Union or the futility of union
representation.
b. Analysis and conclusions
While Kidd is still an employee of Respondent he ad-
mittedly feels his employer has issued him unwarranted
reprimands. He is also sympathetic to the Union. Cross is
no longer employed by Respondent and has no apparent
reason to shape his testimony. The credibility resolution
necessary here would be difficult, in isolation, but for my
resolution infra of a credibility conflict wherein I found
that Cross did not accurately testify regarding his con-
duct or knowledge involving employee Nelson. Kidd,
despite the bias noted, appeared to me to be an honest
witness with a convincing demeanor. I do not find it rea-
sonable that he would be mistaken regarding a matter so
unlikely to be confused with other conversations. Nor do
I believe he would have misidentified the speaker. Ac-
cordingly, I credit Kidd over Cross. For the reasons
given supra, such conduct violates Section 8(a)(l) of the
Act, and I so find.
11. Complaint paragraphs 12(b) and (c)-Cross
interrogates Nelson
a. Evidence
Nelson testified that Cross spoke to her alone in the pit
sometime in the period June to September. Nelson re-
called that Cross asked her how many pledge cards the
Union had. Nelson said she did not know the exact
number as some were handed in and some mailed. Cross
then said, in Nelson's memory, that management was in-
terested in the number of pledge cards. Cross specifically
denied having such a conversation about cards with
Nelson and further denied any knowledge or understand-
ing of what such cards were or meant.
b. Analysis and conclusions
I have previously noted the persuasiveness and weight
I attach to the testimony of Nelson based on her de-
meanor during lengthy testimony. While Cross was not
an incredible witness, and mindful of the burden of proof
borne by the General Counsel on each allegation, I have
no hesitancy in crediting the specific recollection of
Nelson over Cross' denial. I therefore find the conversa-
tion occurred as described by Nelson. As specifically
found supra, interrogation of an employee concerning the
number of union authorization cards signed violates Sec-
tion 8(a)(l) of the Act. Paragraph 12(b) of the complaint
therefore has merit, and I so find. Paragraph 12(c) of the
complaint which alleges similar conduct occurring in
October was not supported by the evidence and is there-
fore dismissed.
12. Complaint paragraph 13-Schaeffer tells Boag
he was being hired because he was thought
antiunion
a. Evidence
Henry (Hank) Boag, a dealer and alleged discrimina-
tee, testified that in August he approached acting shift
manager and personal friend Phil Schaeffer about return-
ing to the Hotel as a dealer. Schaeffer told Boag he
would approach Art Hadler, the vice president, on the
matter and had Boag fill out an employment application.
The following day Schaeffer told Boag by telephone
that, while Boag's experience seemed to count against
him, when Schaeffer told Hadler that Boag was well re-
spected and totally antiunion, Hadler told Schaeffer to
hire Boag immediately. Boag's testimony was uncontra-
dicted as Schaeffer did not testify.18 Hadler testified that
Schaeffer at the time of the alleged events had complete
charge over dealer hiring and that he had no conversa-
tions with Schaeffer about Boag.
b. Analysis and conclusions
I credit the testimony of Boag. I do not find, however,
that the statements Schaeffer made to Boag about the
substance of his conversations with Hadler were accu-
rate. While admissible for the truth of the matter as an
admission by a party opponent under Federal Rule of
Evidence 801(d)(2)(D), Schaeffer's statements to Boag
regarding Hadler's comments to him were credibly
denied by Hadler.
Irrespective of the truth of what Schaeffer told Boag,
the fact that the statement was made to Boag-i.e., that
he had been hired because management believed he was
antiunion-inevitably influenced Boag's attitude and con-
duct regarding the union campaign. The implication that
antiunion sympathies are a condition of employment
translates without difficulty into an employee belief that
management expects antiunion conduct or sympathy
from Boag and carries with it the equally unsubtle impli-
cation that prounion employees, including Boag should
he become one, may find their employment in jeopardy.
Accordingly, I find Schaeffer's statement to Boag, de-
spite its lack of truth, violates Section 8(a)(1) of the Act.
1a Schaeffer was properly served with a subpoena by Respondent but
did not appear at the hearing at the appointed time. All parties agreed
that no adverse inference should be drawn from Respondent's inability to
obtain his testimony.
996
CONSOLIDATED CASINOS CORP.
13. Complaint paragraph 14-Weber threatens Kidd
with loss of time off if the Union won the election
a. Evidence
Kidd testified that in September he had a conversation
alone with Mel Weber, a floorman and schedule man. 9
Kidd "approached" Weber about an extra day off in No-
vember. Kidd recalled Weber's response as: "Why don't
you wait until after the union election, and we will see."
Kidd agreed suggesting that after the election he might
no longer be employed. Weber responded Kidd had
nothing to worry about. The election was on October
25. Weber did not testify about this conversation.
b. Analysis and conclusions
Kidd's testimony was not directly contradicted.20 Re-
spondent points out, however, the essential improbability
of Kidd or any other dealer requesting a day off over a
month in advance when scheduling changes are normally
accomplished on a shorter term basis. I find, however,
that the circumstance is not so improbable as to out-
weigh the credible testimony of Kidd, especially where
that testimony was not contradicted by Weber. Accord-
ingly, I credit Kidd's version of the events. Withholding
final judgment on a request by an employee on matters
of concern to him until the results of the election are
known is a conditional threat and/or promise which car-
ries the clear message that the results of the election will
influence management's final decision. Such a condition
improperly influences employees in their ballot selection
and therefore violates Section 7 of the Act. "Restaurant
Horikawa," 260 NLRB 197 (1982).
14. Complaint paragraph 1621--Mann threatens
Bennett
a. Evidence
Current dealer Don Bennett testified that he had a
conversation alone with floorman George Mann in mid-
September in the pit. Bennett recalled that Mann told
him that if the dealers chose the Union things would go
bad for them. Bennett responded that he did not wish to
discuss the matter. Mann, now a pit boss at the Hotel,
testified that he had had several conversations with Ben-
nett in the period, including one in which the possibility
of employee loss of benefits was discussed. He denied,
however, the exact statements attributed to him by Ben-
nett.
b. Analysis and conclusions
I credit Bennett's version of the conversation over that
described by Mann. Bennett had a superior recollection
19 A particular floorman is designated as in charge of scheduling and is
involved in arranging and modifying the dealers' work schedule.
20 Respondent did show that Weber was overtly hostile to Respondent
at the time of his testimony and, through evidence of Weber's out-of-
court statements on other matters, convinced me that Weber's testimony
should be entirely disregarded. I do not under these circumstances draw
any adverse inference from the absence of testimony by Weber on the
issue.
2a Par. 15 was dismissed, supra, based on my finding that boxmen were
not supervisors or agents of the Hotel at relevant times.
and a superior demeanor. Bennett's version more closely
matches the phrasing and substance that might have been
exchanged by these two individuals in the pit. Given my
credibility resolution, I find that Mann's statements im-
properly associated adverse consequences to employees
with unionization, thereby violating Section 8(a)(1) of
the Act.
15. Complaint paragraphs 17(a) and (b)-Packe
threatens Asaro
a. Evidence
Pamela Asaro, a longtime dealer at the Hotel, testified
that she had a conversation with then pit manager An-
thony (Tony) Packe alone in the keno lounge on Octo-
ber 4. During the course of a social conversation, Asaro
raised her fear that dealers would lose health insurance
after the election. She recalled that Packe answered that
the dealers would not have "insurance or anything, not
even tokes" after the election. The conversation contin-
ued. One party raised the fact that a group of employees
had retained an attorney. A brief argument occurred re-
garding the merits of selecting an attorney. Packe stated
that the only thing the hiring of an attorney would do
for the dealers would be to put more "heat" on them.
Packe, a shift manager at the time of the hearing, testi-
fied that he had had several conversations with Asaro,
whom he regarded as a good friend, he also recalled
Asaro asked him if dealers would lose insurance cover-
age if the Union were successful in the election and spe-
cifically recalled answering benignly.
b. Analysis and conclusions
Considering the allegations of interest or bias regard-
ing each witness and the demeanor of each, I am satis-
fied both Packe and Asaro honestly testified to their best
recollection of the conversation. I credit Asaro over
Packe to the extent the two differ, even noting the
burden of proof which must be met by the General
Counsel. I do so because Asaro recorded her recollection
of the conversation the following day and refreshed her
recollection by reviewing her notes before testifying.
Given my finding of Asaro's honesty and her virtually
contemporaneous note taking, I have confidence her
memory was the more accurate. Packe, too, testified
honestly but he admitted he had neither recorded the
conversation nor gave it great weight until the later rip-
ening of the instant litigation. Further, as will be de-
scribed infra, Packe had extensive and ongoing conversa-
tions with large numbers of employees during the poly-
graph examinations at the Hotel and it is simply likely
that he could not accurately recall this conversation
among many.
Given this factual resolution, I find that the Hotel vio-
lated Section 8(a)(1) of the Act when Packe suggested
the employees would lose benefits after the election
without providing an objective reason other than the
simple fact of unionization for the loss. Therefore, I sus-
tain paragraph 17(a) of the complaint. The identical anal-
ysis applies as to Packe's remark regarding the attorney
for it is clear that the attorney was obtained by an em-
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee group then engaged in protected concerted activi-
ty and therefore the threat of adverse consequences
based on their choosing a lawyer to assist them would
reasonably chill employee Section 7 activities. Therefore,
I sustain paragraph 17(b) of the complaint.
16. Complaint paragraph 18-Brown threatens Fitz
and others
a. Evidence
Fitz testified that floorman Jayson Brown spoke to
several dealers in the dealers' room in the Hotel about a
week before the election. In the conversation Brown, in
Fitz' memory, told the dealers that if the Union were
successful management would close the Hotel. Colloquy
followed in which Brown asserted his job would not be
lost as a result because he was a member of management.
While he admitted working with the dealers identified by
Fitz, Brown categorically denied the statements attrib-
uted to him and further denied having a conversation
with dealers regarding the Union or his personal fate in
such a circumstance. The other dealers were not called
to testify.
b. Analysis and conclusions
As noted supra, I have found Fitz a persuasive witness.
I found Brown nervous and somewhat rigid, generally
evincing an unsettled demeanor. I credit Fitz over
Brown. Brown's statement about closure is a traditional
violation of Section 8(a)(1) of the Act and I so find.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
17. Complaint paragraph 19-improper increases in
benefits
a. Evidence
On July 21, 1980, by a memo to employees, the Hotel,
through Bob Contois, the general manager, announced
new or improved benefits to employees, including in-
creased access to Hotel areas and discounts for certain
services. James Skaggs, at the time of the hearing corpo-
rate director of personnel, testified that in June 1980 he
was vice president of personnel and employee relations
for the hotel group or division. In that capacity he was
involved in reviewing and approving the changes de-
scribed in the memorandum. He testified that, within the
first week of Bob Contois' becoming general manager of
the Hotel in early June 1980, the two discussed the items
included in the memorandum. Skaggs testified that the
memorandum did not issue until July 21 because it was
circulated and approved in several draft forms before
final issuance. He testified that the changes effected were
approved by him by June 15. Skaggs denied any knowl-
edge of union activity at the Hotel as of the time of the
memorandum's approval. The representation petition was
filed on July 25, 1980. It is clear that management real-
ized in June that it had morale problems with respect to
the dealers. Skaggs testified that the benefit increases dis-
cussed with Contois were in part designed to address
that perceived morale problem.
b. Analysis and conclusions
The General Counsel bases his argument for a viola-
tion on this aspect of the case on two elements: First, the
traditional inference that increases in benefits during an
organizational campaign are designed to entice opposi-
tion to the Union and, second, the fact that Contois did
not testify about the memo or its motivation. While the
petition was not filed until July 25, the General Counsel
notes that Nelson testified that she informed Respondent
through Simons and Skaggs on or about June 24 that she
had signed a union authorization card. Respondent
argues that the benefits were given to all Hotel employ-
ees and were also designed to improve the Hotel's busi-
ness during slow times. Further, it argues that, as of the
time of the initial discussions regarding the memoran-
dum, there was no evidence that Respondent's agents in-
volved in the memorandum's approval knew of employ-
ee union activities.
I agree with Respondent and find no violation here.
The benefit changes were logical to initiate at the time of
Contois' assuming his new position and were put in train
within his first week of office before Skaggs or Contois
knew of union activity. Given this innocent initiation of
the plan to change benefits, Respondent was under no
obligation to abandon its decision to increase benefits
once it learned of the union campaign. With regard to
the timing of the announcement, I am not persuaded that
the delay between early June and July 21 is evidence suf-
ficient to rebut the unchallenged testimony of Skaggs
that the draft review process occupied the entire period.
Respondent on this record did not violate the Act by
failing to withdraw or otherwise change the timing of
the benefit increases for the election petition had not yet
been filed and there was no reason for Respondent to be-
lieve that the announcement on July 21 was of particular
significance or would necessarily fall hard upon the time
of the Union's filing of the petition. Accordingly, I shall
dismiss paragraph 19 of the complaint.
D. The Polygraph Allegations22
The decision to administer polygraph examinations to
employees, the actual administration of them and the
denial of employee requests for the presence of others
during them were all alleged as violative of the Act. The
facts and law underlying the issues were extensively liti-
gated by the parties. The contentions of the General
Counsel may be grossly summarized as follows. First, the
Hotel initiated the polygraph process because of employ-
ees' union activities and because of the upcoming elec-
tion. Second, the Hotel manipulated the polygraph exam-
ination process to cause the discharge of known or sus-
pected union supporters. Third, the Hotel wrongfully
denied employees the right to the presence of a repre-
sentative at interviews which they reasonably believed
might result in disciplinary action against them. At the
risk of some duplication of analysis, it appears appropri-
ate to deal with the various contentions separately.
12 Additional allegations regarding the denial of the use of an employ-
ee appeal system are discussed separately infra.
998
CONSOLIDATED CASINOS CORP.
1. Respondent's decision to administer mass
polygraph examinations
a. Background
Gaming is regulated in Nevada by the Nevada State
Gaming Control Board (the Nevada Board). The Hotel
operates under a gaming license issued by the State of
Nevada and is subject to the oversight of the Nevada
Board. During relevant times, the Del E. Webb Corpora-
tion made a very significant investment in a hotel and
casino in Atlantic City, New Jersey, called the Claridge
Hotel, and hoped to obtain a permanent license to oper-
ate that facility from the New Jersey Casino Control
Commission (the New Jersey Commission). The Claridge
had been operating under a temporary permit as of the
time of the hearing. The New Jersey licensure process
involved a time-consuming and very detailed investiga-
tion by the New Jersey Commission into the applicant's
qualifications as a casino operator. The investigation in-
cluded a review of the Del Webb Corporation's oper-
ation of its gaming facilities in Nevada, including the
Hotel. Thus, at all relevant times the Hotel's gaming op-
erations were under close scrutiny by both the Nevada
and New Jersey authorities and this fact was known to
the Hotel's managers.
Various witnesses for Respondent testified credibly
and without contradiction that, beyond the obvious inter-
est of the Hotel in minimizing dollar losses resulting
from gaming fraud and theft, the image or reputation of
the Hotel and the Del Webb Corporation as rigorously
honest and tightly managed gaming operators was a
matter of primary concern to management. It depended
on its reputation for honesty and efficiency to retain its
licenses to operate in Nevada and to support, or at least
not detract from, the Claridge's gaming license applica-
tion then pending in New Jersey.
The use of polygraph examinations as an investigation
tool to uncover suspected cheating is a not uncommon
technique in the Nevada state gaming industry and has
been utilized both by gaming houses and.state regulatory
bodies. Polygraph examinations had periodically been re-
quired of certain employees at various of the Del E.
Webb Corporation's casinos in Nevada, including the
Hotel. These occasions usually involved the examination
of a small group of employees who were under direct
suspicion or who were directly associated with a suspi-
cious transaction or circumstance. Until the instant
events, the Hotel did not require general examination of
employees nor had large numbers of employees been ex-
amined. Respondent's employee rules and regulations
make no reference to polygraph examinations.
b. Events preceding the decision to administer the
examinations
Respondent's management officials and officials of the
Nevada Board testified without contradiction regarding a
number of suspected fraudulent schemes (scams) in oper-
ation at the Hotel's casino in late 1979 and 1980 which
resulted in the loss of Hotel money and, in some cases,
the contention by the Nevada Board that the Hotel was
in violation of Nevada Board regulations regarding its in-
ternal gaming controls. Certain of the scams involved the
manipulation of the Hotel's gaming credit system so that
moneys advanced to customers for gambling were taken
from the premises. Credit was sometimes improperly ob-
tained, or obtained under a fictitious name, or credit
transactions were irregular with resultant losses to the
Hotel.
Investigation into these matters involved the Hotel's
use of electronic surveillance equipment installed at the
casino and the placement of observers or investigators on
the gaming floor, both employees of the Hotel and out-
siders, to observe gaming play and credit transactions.
One significant scam became known as the "Caputo"
matter. The investigation of this situation commenced in
late 1979 and proceeded well into 1980. By January 1980
both the Hotel and the Nevada Board were involved in
the investigation. A gaming establishment in Nevada is
obligated to inform the Nevada Board when it believes
gaming irregularities have occurred. Investigations by
the Nevada Board are normally conducted in coopera-
tion with the reporting gaming establishment.
In the spring of 1980, Lynn Simons, then the casino
manager at the Sahara Reno and the ad hoc head of the
Hotel's gaming investigation, reported to Doyle Mathia,
then president of Del E. Webb's hotel division and vice
president of the Del E. Webb Corporation, on the results
of the investigation to date. Based on the investigation
and Simons' report, Mathia authorized a series of poly-
graph examinations of employees suspected of wrongdo-
ing, including management officials involved in the
Hotel's credit control and cashier clerks. Resignations
and terminations followed these proceedings and as a
result the Hotel initiated both civil and criminal actions
against certain individuals. As a result of these personnel
changes, Lynn Simons became acting casino manager in
mid-May and Bob Contois was hired as general manager
of the Hotel effective June 1, 1980. The Nevada Board's
investigation of the scam ended in July 1980. The
Nevada Board recommended that a complaint issue
against the Hotel for violation of Nevada regulations re-
garding gaming establishments' internal controls. Such a
complaint later was issued against the Hotel. Other
scams involving suspected criminal activity were de-
scribed in detail by various witnesses but the Hotel's
dealers were apparently not other than peripherally in-
volved in these occurrences.
During the course of the Hotel's gaming investiga-
tions, through various means, Simons came to suspect by
May 1980 that a "marker" or credit scam was being per-
pertrated by pit employees. He reported his suspicions to
Mathia and thereafter initiated an investigation of the
suspected transactions using outside observers. By July
sufficient evidence of irregular gaming procedures, credit
transactions, and employee dealings with "suspected out-
side agents" had been uncovered so that the Hotel felt it
necessary to inform the Nevada Board. The Nevada
Board initiated its own investigation in late July and se-
cretly reported to Hotel management officials regularly
thereafter on the state of its investigation. The investiga-
tion focused on suspect activity in the 21 and craps area
and involved a wide variety of irregular procedures of
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
varying degrees of seriousness. By the latter part of Sep-
tember, a Nevada Board official reported to Hotel man-
agement that the Nevada Board felt it had sufficient evi-
dence to prosecute certain employees and was therefore
seeking arrest warrants for several of the Hotel's staff, in-
cluding a craps dealer and a 21 dealer as well as a floor-
man, a boxman, and a pit boss. The Nevada Board told
the Hotel the arrests were to be expected in a fortnight.
c. The September meeting
A meeting of high management officials of Del E.
Webb Corporation and the Hotel, including Respond-
ent's general and labor counsel, occurred soon after the
Nevada Board official announced the likelihood of ar-
rests. The purpose of the meeting was to consider and
decide upon a course of action for the Hotel and the Del
E. Webb Corporation. The discussion was wide ranging
and included a review of the series or chain of events
discussed supra, including the gaming irregularities and
their investigation at the Hotel. At this meeting Mathia
recited his concern that continued gaming irregularities
at the Hotel and Respondent's apparent inability to con-
trol them could have an adverse impact on the New
Jersey Commission's decision whether to issue a perma-
nent gaming license to Del E. Webb Corporation for op-
eration of the Claridge. Failure to obtain a license for the
Claridge would be a major financial disaster for the cor-
poration. Simons suggested that in previous gaming
scams in the industry mass terminations of employees
had been ordered. Polygraph examinations of gaming
employees were raised as an alternative to mass dis-
charges. Previous usage of such tests in the industry was
discussed.
Labor counsel Emer noted that the Hotel's upcoming
dealer representation election would likely be adversely
affected by mass polygraph examinations. There was
general agreement that mass polygraph examinations
would cause management to lose the election. It was
noted, however, that, once arrests planned by the
Nevada Board were made and the gaming investigations
thus made public, it would be difficult if not impossible
for the Hotel to take further action to uncover miscon-
duct because any ongoing illegal conduct by employees
would likely be suspended at least temporarily. After
substantial discussion Mathia determined to require poly-
graph examinations of all gaming employees irrespective
of the possible adverse impact on the election. The deci-
sion was made that all employees who failed the exami-
nation or refused to take it would be discharged. Ar-
rangements to give the examinations were commenced
soon thereafter. Following the execution of the anticipat-
ed arrests at the Hotel in early October, polygraph tests
were administered by the Hotel to all gaming employees;
i.e., over 500 employees in all positions, from dealers to
high officials.
d. Analysis and conclusions
Consistent with my rulings at the hearing, I do not
deem the accuracy or reliability of polygraph examina-
tions as a means of discovering deception is relevant to
the issue of whether or not the Hotel's requirement that
dealers take polygraph examinations was violative of the
Act. Rather, the issue turns on Respondent's motivation
in ordering the polygraph tests. Did Respondent initiate
the process for proper or improper reasons? The Board
has recently approved a simple statement of a similar
issue in a polygraph case. Thus, in Houston Coca Cola
Bottling Co., 256 NLRB 520, 526 (1981), the Administra-
tive Law Judge noted:
[T]here is nothing per se unlawful in requiring em-
ployees to submit to polygraph tests. See, for exam-
ple, Shoppers Dry Mart Inc., 226 NLRB 901 (1977);
National Food Service, Inc., 196 NLRB 295 (1972).
If, on the other hand, such a test is used as a device
to permit the discharge, or some other form of dis-
ciplinary action of union adherents, thus cloaking a
discriminatory motivation, then administering the
tests would itself be a violation of the Act, and any
consequences resulting therefrom would, in normal
circumstances, also be violations.
Counsel for the General Counsel does not challenge
the proposition that the Hotel's motive is the issue nor
does he suggest the polygraph examinations are per se il-
legal. Rather, he makes two separate arguments. First, he
argues that Respondent's motvation for conducting the
polygraph tests was entirely based on the election and
employees' union and protected concerted activities.
Thus, initially, the General Counsel argues that Respond-
ent's claim of a business necessity for requiring the ex-
aminations is mere pretext advanced to cloak its true ille-
gal motivation. Second, the General Counsel argues that,
even if Respondent's business defense is not found to be
pretext, Respondent had dual motivation for directing
the examinations which included both illegal consider-
ations and not illegal business reasons. This dual motiva-
tion, argues the General Counsel, does not save Re-
spondent from being held to account for the illegal con-
sequences of its tainted examinations.
For reasons discussed in detail infra, I reject the argu-
ment of the General Counsel that Respondent's asserted
reason for conducting the examinations was but pretext.
I therefore reject his first argument here. His second ar-
gument, the mixed motive theory, is properly analyzed
under the Board's Wright Line standard established by
the Board in Wright Line, 251 NLRB 1083 (1980), enfd.
in part, enforcement denied on issue of burden of proof,
662 F.2d 899 (Ist Cir. 1981). Accordingly, consistent
with the Board's analysis, I will consider first the Gener-
al Counsel's prima facie case and then, if necessary, turn
to Respondent's defense.
(1) The General Counsel's prima facie case
The General Counsel's argument in support of his
prima facie case has several elements. First, the General
Counsel advances the animus reflected in the statements
of management alleged in the complaint as violative of
Section 8(a)(1) of the Act. To the extent those allega-
tions have been sustained, supra, this argument has merit.
Second, the General Counsel emphasizes the suspicious
timing of the polygraph examinations; i.e., that they com-
menced in the weeks immediately preceding the election.
1000
CONSOLIDATED CASINOS CORP.
Such timing clearly raises a presumption of impermissible
motive. Third, the General Counsel notes (1) the large
number of employees who were examined and (2) the
fact that the bulk of the individuals of whom examina-
tions were required were not directly or even indirectly
suspected of misconduct. These circumstances were to-
tally without precedent at the Hotel.
I find that the General Counsel has established a prima
facie case of wrongful motive. I reach this conclusion
without placing significant weight on the evidence of
animus contained in the statements found violative of
Section 8(a)(1) of the Act, supra. Rather, I found persua-
sive the fact that the Hotel in determining to require
polygraph examinations of all gaming employees-over
500 in number-embarked on a very significant course of
action involving a substantial commitment of time and
resources and with undoubted effect on employees
during the runup to the election, all without any even
approximately similar past practice. I therefore find that
the General Counsel has met his burden of proving his
prima facie case under Wright Line sufficient to support
the inference that employees' protected conduct was a
motivating factor in the Hotel's decision to administer
the polygraph examinations. It is therefore appropriate to
turn to Respondent's defense that the examinations
would have taken place even in the absence of employee
protected conduct because of the overriding business rea-
sons asserted.
(2) Respondent's defense
(a) The applicable standard of proof
The Board in Wright Line made it clear that once the
General Counsel has established his prima facie case,
noted supra, "the burden will shift to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected conduct." Wright
Line, 251 NLRB at 1089. Whether the burden which
shifts to respondent is (1) the burden of going forward,
thus leaving the burden of persuasion on the issue still on
the General Counsel, or (2) the burden of persuasion re-
quiring respondent to achieve a preponderance of the
evidence on the issue is a sharp academic question which
the parties and the courts have addressed at length. The
Board's view, as expressed in Wright Line and held to
date despite the split of opinion in the United States cir-
cuit courts of appeals, is that respondent in attempting to
meet the General Counsel's prima facie case bears the
burden of persuasion. Thus, after the General Counsel's
prima facie case has been made and where the evidence
on Respondent's defense does not preponderate in favor
of either party, the employer loses. Atlas Minerals, 256
NLRB 91 (1981). I am bound to follow Board law until
it has been reversed by the Board or the Supreme Court.
Accordingly, I shall apply the Board's Wright Line
standard to Respondent's defense herein.
(b) Analysis and conclusions
Respondent's defense may be distilled into two argu-
ments. The first argument is that the Hotel needed to
take strong action in the face of continuing gaming irreg-
ularities, irrespective of the consequences. Thus, Re-
spondent's financial stake in its New Jersey gaming inter-
ests as well as its Nevada gaming interests was so large
as to make any other business interests, such as its admit-
ted interest in prevailing in the representation election,
pale in comparison. Those financial interests required
that Respondent take bold action to convince the regula-
tory bodies in both New Jersey and Nevada that Re-
spondent was fit to operate gaming establishments in
both States. The various and continuing gaming irregu-
larities at the Hotel cost Respondent lost revenues but,
more importantly under this theory, threatened to alien-
ate the state gaming regulatory bodies and consequential-
ly threatened to prevent Respondent from obtaining a
permanent license to operate its Atlantic City Claridge
Hotel and, to some extent, threatened its outstanding
gaming licenses in Nevada.
Respondent has supported this argument with both fi-
nancial evidence and extensive testamentary evidence re-
garding the gaming regulatory processes and the critical
importance to the Del E. Webb Corporation of obtaining
and retaining gaming licenses. Respondent supported this
objective evidence with testimony from Respondent's
highest management officials that, at relevant times, the
corporation's license and derivative "reputation" prob-
lems were foremost in their minds. The General Counsel
did not generally contest the objective evidence of Re-
spondent's financial stake in the regulatory process nor
did he significantly weaken the generally unchallenged
testimony of Respondent's officials regarding their per-
ceived significance of the problem. I find that Respond-
ent has easily sustained its argument here.
Respondent's second argument is that, given the need
for significant action by the Hotel to end gaming irregu-
larities and demonstrate its ability to control its gaming
operations, the decision to administer polygraph exami-
nations to its gaming employees and the timing of that
decision were not unreasonable under all the circum-
stances and were designated solely to meet the gaming
irregularities and the Hotel's need to bolster its reputa-
tion before the regulatory bodies. This argument and Re-
spondent's supporting evidence were closely litigated by
the parties.
Respondent argues with vigor that the matters dis-
cussed at the late September meeting as shown by the
testimony of the participants were both the objective and
subjective basis or motivation for the Hotel's taking the
decision to administer the examinations. Thus, Hotel
management was aware of specific scams involving
credit transactions and was further aware of continuing
irregular gaming procedures by dealers as uncovered
during the investigations of other scams. At the Septem-
ber meeting it was suggested that the Hotel simply cure
the situation through the expedience of mass termina-
tions, but polygraph examinations were suggested as a
more humane alternative and were ultimately regarded
as preferable. Unchallenged testimony, which I credit,
establishes that the Hotel's labor counsel pointed out at
the September meeting that the administration of manda-
tory polygraph examinations to all the dealers immedi-
ately before the election would likely result in a victory
for the Union. This assertion was accepted by the meet-
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing's participants as a foregone conclusion. However, it
was determined that, in the larger scheme of things, the
union election was simply not a significant factor.
Respondent argues from these facts that the Hotel's
decision regarding polygraphs was based purely on busi-
ness reasons and was wholly independent from consider-
ations of the election or employees' union or protected
concerted activities. Rather, argues Respondent, manage-
ment accepted the proposition that a consequence of the
polygraph examinations would be a union election victo-
ry. Respondent argues that, while the Hotel did not want
the Union to prevail in the election, that question was of
small consequence when compared to the unmitigated fi-
nancial disaster which might befall the Del E. Webb
Corporation should the Hotel fail to demonstrate it could
reassert control over its gaming operations.
This is a strong and persuasive defense. The General
Counsel correctly asserts, however, that Respondent's ar-
guments must be viewed in the context of events. Thus,
the suspicious timing and animus evidence noted, supra,
as part of the General Counsel's prima facie case must be
weighed in the analysis. The General Counsel also makes
several specific attacks on Respondent's defense. First,
the General Counsel argues that the "irregularities"
which allegedly formed the basis for Respondent's deci-
sion to initiate the examinations were "rooted in paper-
work transactions" rather than in dealer conduct and
therefore dealers were not prime suspects in the various
credit scams which had occurred up until September.
Second, he argues that the admitted fact that a series of
"scams" had occurred over a considerable period of
months without mass polygraph examinations having
being previously ordered is highly relevant in deciding if
the final decision to administer mass examinations was
based on other than "business reasons." Thus, the Gener-
al Counsel argues, why did Respondent wait until just
before the election? The General Counsel argues further
that the procedures of the examination process, described
in detail infra, are evidence that the true reason for the
examinations was not related to uncovering misconduct
by employees but was rather designed to punish union
supporters.
I have carefully considered the business justification
defense of Respondent and the General Counsel's attack
upon it. Specifically assigning the burden of persuasion
to Respondent, I am satisfied that it has met the General
Counsel's prima facie case on this issue. Thus, I find that
Respondent would have required the polygraph examina-
tions of its gaming employees even had the dealers not
then been involved in a union election campaign or in
union and other protected concerted activity. I so find
because I accept the proposition asserted by Respondent
that it felt the continuing gaming irregularities at the
Hotel threatened its important financial interests in New
Jersey and Nevada and that it believed that a major
public housecleaning effort must be undertaken to rees-
tablish its reputation with the gaming regulatory commis-
sions. I also note that examinations were required of all
gaming employees and exposed supervision to the same
risk of an adverse result as other employees. Apparently,
all who were unable to successfully pass an examination
were, without exception, discharged.
I do not reject the General Counsel's arguments on the
issue so much as I discount their effectiveness against my
finding that Respondent acted because of its perception
of extraordinary financial risk. It is true the dealers were
not necessarily more than spectators to the bulk of sus-
pected gaming irregularities. It is also true that the
number of polygraph examinations administered went far
beyond anything previously undertaken at the Hotel. It
is true that until late September, with the election but
weeks away, the scams had not precipitated the action
ultimately taken by the Hotel. Accepting these proposi-
tions and noting the other suspicious circumstances
raised by the General Counsel's evidence, I nevertheless
find that for Respondent's management the upcoming ar-
rests announced by the Nevada Board, in the context of
the Hotel's apparent continuing inability to avoid gaming
irregularities and attendant adverse publicity, precipitat-
ed a decision to undertake a bold, and, indeed, perhaps
deliberately cathartic, course of action which would
convey to the gaming regulatory bodies, the public, and
employees the message that management was going to
take immediate and aggressive action to reassert control
over its gaming operations. In this context, the General
Counsel's argument that the ordering of widespread
polygraph examinations was out of all proportion to the
problems encountered among dealers loses most of its
force. Respondent clearly wished to demonstrate its
vigor and willingness to use stern measures in addressing
gaming irregularities. For it draconian edicts served an
independent purpose beyond eliminating gaming irregu-
larities. Respondent believed it needed to create the ap-
pearance of vigorous action as well as take the action
itself.
My findings herein include the acceptance of Respond-
ent's argument that in the larger context the union elec-
tion was of little significance when compared to the per-
ceived financial threat inherent in its loss of Nevada
gaming licenses or its failure to obtain a permanent li-
cense at the Claridge in New Jersey. I have specifically
credited management testimony regarding the discussion
of these subjects at the September meeting. Given this
factual resolution, there is substantial, essentially uncon-
tradicted evidence that Respondent's managers did in
fact have the financial issues foremost in their mind and
further specifically believed, but ignored the fact, that
the polygraph examinations would produce an election
victory for the Union.23 Given all the above, I find Re-
spondent has successfully met its burden of proof on its
defense, even given the validity of the General Counsel's
prima facie case as to the polygraph examinations. Ac-
cordingly, I find no violation of the Act and I shall
therefore dismiss this element of the complaint.
23 The General Counsel argues that by late September Respondent
knew it had lost the election and was therefore intent on punishing the
unit employees generally and union supporters in particular by means of
the polygraph examinations. As is discussed in greater detail, infra, there
is insufficient evidence to support this argument and I find it unpersua-
sive in light of the credited testimony regarding the September manage-
ment meeting.
1002
CONSOLIDATED CASINOS CORP.
2. Respondent's administration of the polygraph
examinations
a. Facts
Respondent organized a team of experienced poly-
graph examination administrators and set up virtually an
assembly line process for examining some 565 gaming
employees of whom some 85 to 90 percent were dealers.
As discussed in greater detail infra, employees were first
brought to an office where Hotel management officials
explained the examination procedures and, during the
earlier portion of the examination process, obtained the
examinee's signature on a waiver form. These meetings
were generally standard in format and were openly tape-
recorded. If all necessary steps were accomplished, the
employee and the polygraph examination administrator
met in a smaller adjacent room alone where the examina-
tion was explained and administered. After the examina-
tion was concluded, the examinee was again brought
before the management group. If the test results were
satisfactory, the examinee was congratulated and re-
leased. Those who did not pass their examination had ad-
ditional discussions with management as will be dis-
cussed in greater detail infra. Those who were terminat-
ed were sent to a separate area where an agent from the
personnel department consummated their termination
process. Thereafter, the employees were escorted from
the premises by a guard and were told not to return to
the Hotel without management permission.
Questions of examinee medication were handled either
in the initial management interview or at the actual ex-
amination stage. Apparently, some medications prevent-
ed immediate examination; others were regarded as
benign. No applicant was allowed to take the examina-
tion without first signing the proffered waiver form.
Those who initially refused to sign were in some cases
given time to reconsider their position. In all cases, those
who ultimately refused to sign an unmodified waiver
were terminated as were all those who ultimately failed
to pass a polygraph examination. Among nondealers di-
rected to be examined, nine failed the examination and
three did not take it. Of dealer employees, nine failed the
examination and eight did not take it. All were terminat-
ed. The 17 terminated dealers are at issue here.
b. Analysis and conclusions
I have found that Respondent had no impermissible
motivation in requiring employees to take polygraph ex-
aminations. It follows therefore that those who failed a
properly conducted examinations could be properly dis-
z4 At the hearing I refused to hear any evidence regarding the scientif-
ic efficacy or value of a polygraph examination in determining the truth
or lack of truth of an examinee's statements. By a properly or regularly
conducted polygraph examination, I here refer only to the conformity or
lack thereof of a given examination to standard polygraph procedures.
Thus, the issue here is not whether the examination produces a valid
result but rather whether the examination was in fact a regular polygraph
examination the results of which were interpreted in a regular manner
consistent with normal polygraph procedures and not a predetermined
pretext for a concealed desire to fire a particular employee or employees
because of known or suspected union activities.
charged. Houston Coca Cola Bottling Co., supra. Similar-
ly, the Board has held that those who refuse to take a
properly required polygraph examination may also be
discharged. 7-Eleven Food Store, 242 NLRB 104 (1979).
The General Counsel contends that, even given an inno-
cent decision by Respondent to conduct polygraph ex-
aminations, the actual examination process was manipu-
lated to cause the termination of known or suspected
union adherents. The General Counsel's argument goes
to two stages in the examination process: (I) the waiver
stage and (2) the actual polygraph examination.
Dealing first with the actual examination process,
there was no evidence offered that the polygraph exami-
nation results, which were proclaimed "failures" by the
examiners, were the result of other than standard poly-
graph examination administration and result interpreta-
tion. Thus, there was no argument made or convincing
evidence offered that the examination administration and
result interpretation process was manipulated. There was
some evidence of variance among employees regarding:
(1) the amount of time allowed to consider signing the
preexamination waiver form; (2) the provision of an op-
portunity to consult with a physician regarding medica-
tions used and their effect on the examination process;
and (3) providing employees an opportunity to retake the
examination after receiving an initial inconclusive or ad-
verse result.2 5 There was, however, insufficient evidence
to find that union supporters were discriminated against
in the actual examination process.
The General Counsel's argument on this aspect of his
case fails for several reasons. First, the noted variations
which occurred during the processing of employees
were not unusual given the large number of examinees,
the various agents of management involved, and the
period of time over which the examinations were con-
ducted. The record is not sufficiently complete with
regard to the various medical questions posed by em-
ployees to suggest that identical medical situations were
handled differently by the same management officials in
order to harm union supporters. Second, and more im-
portantly, the variations which occurred as often as not
favored known union supporters such as Nelson, or oc-
curred among examinees as to whom Respondent would
have no basis or motive to discriminate. Some had un-
known union sympathies, others were of equal apparent
union sympathy. Lastly, there is no evidence the poly-
graph examiners shared management's knowledge, if any,
of given employees' union sympathies.
Turning to the waiver issue, Respondent required each
potential examinee to sign a waiver form which stated,
inter alia, that the employee was taking the examination
of his or her own free will. Respondent allowed no addi-
tion, modification, or comment on the waiver form. The
Hotel refused to administer the examination to employees
who refused to sign the waiver and terminated those
who would not take the examination. The General Coun-
sel argues the obvious incongruity in requiring employ-
ees, who have been told they must take a polygraph ex-
amination or be terminated, to sign a form which recites
25 Neither the appeal denial allegations or witness request allegations
of the complaint are addressed here. See separate discussion infra.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they are taking the examination of their own free
will. The General Counsel argues that this incongruity:
(1) is evidence of the unlawful motivation of the Hotel in
conducting the examinations, a factor considered but re-
jected supra, and (2) is evidence that Respondent used
the waiver form as a means within the examination proc-
ess to discriminate against prounion employees.
There was no evidence that the decision to require a
waiver or its use as a contract of adhesion was initiated
by Respondent out of guilty motive. Rather, it was re-
quired by the Hotel because it was required by the poly-
graph examiners in an apparent effort to reduce any po-
tential personal liability which might result from adminis-
tering the examinations to employees. There was uncon-
tradicted testimony on this point which I credit. Thus, I
find that there was no improper motivation by Respond-
ent or its agents in the use of the waiver form or in the
consequential termination of those who would not sign
such an unmodified form. Further, all employees were
given the same rigid choice irrespective of their known
or suspected union sympathies.2 6 Given the lack of im-
proper motivation in requiring the waiver or improper
manipulation of the requirement among the various em-
ployees asked to take the examination, it is unnecessary
to comment further on the inherent unfairness or absurd-
ity of the procedure. Employers have the right to be
both unfair and absurd under the Act if that conduct is
free from other considerations prohibited by the Act.
In summary, and disregarding the witness request and
appeal issues dealt with infra, I have found that the ex-
aminations, including the preexamination interviews and
waiver signing, were not conducted in a manner which
was designed to or in fact did discriminate between em-
ployees because of their known or suspected union activ-
ity or for other impermissible reasons. I shall therefore
dismiss this portion of the General Counsel's complaint.
E. Allegations Regarding Employee Requests for
Representation
The General Counsel alleges that each of the employ-
ees named in paragraphs 22, 23, and 24 of the com-
plaint2 7 requested and was denied the opportunity to
20 Like the medical issues discussed supra, there was evidence of varia-
tion in the amount of time allowed employees to reconsider their initial
refusal to sign the waiver form by Respondent's agents. Like the exami-
nation procedure discussed supra, I find no improper pattern other than
random variation or reaction to different situations by various of Re-
spondent's agents in this regard. Nelson and Griffith, for example, were
given perhaps greater leeway in considering signing the form than other
employees. Each was a notorious union supporter.
27 In par. 25 of the complaint the General Counsel alleged the con-
structive denial of a request for a representative made by employee Jerry
B. Simpson. Employee McAteer was originally included in par. 25, but
was deleted by oral amendment at the hearing. Simpson testified he did
not ask to have a representative present because of his belief that the re-
quest would cause the Hotel to retaliate against him. He also testified that
his fears were based on conversations he had with other dealers about the
polygraph process. I granted the motion of Respondent to dismiss par. 25
of the complaint at the hearing after the General Counsel rested his case.
I reaffirm that ruling here. If the concept of a constructive denial of the
right to the presence of a representative exists in law, it was not perfect-
ed here because Simpson's fears were based on conversations with em-
ployees which were not attributable to Respondent.
have a representative present during an interview with
Respondent's agents which the employee had reasonable
cause to believe would result in disciplinary action. The
facts concerning the general nature of the interview and
examination process are not in significant dispute and
have been briefly described supra. The individual meet-
ings and what was said by the participants regarding rep-
resentation were disputed and were closely litigated. It
seems appropriate to first describe the examination proc-
ess generally, then to address the individual meetings,
and, finally, to turn to the general legal principles re-
garding employee rights as they apply herein.
1. The general format of the examination process
With few apparent exceptions, employees were sum-
moned to the interview and examination areas and, one
by one, brought into an interview room. Present in the
room were two or three management representatives,
usually Packe and Simons or Hadler. One management
representative explained to the employee why he or she
was there and, using prepared notes or in any case a
standard routine, explained to the employee his or her
rights. The employee was asked if he or she had engaged
in illegal gaming activity at the Hotel or knew of others
who had. Employees generally denied any knowledge of
wrongdoing. The employee was then asked if he or she
would take a polygraph examination and, in the earlier
sessions, was asked to sign a waiver form. In later ses-
sions the examiner was given responsibility for obtaining
employee signatures on the waiver forms. If raised, it
was made clear that the waiver form must be signed
before the examination could take place and that the em-
ployee must take and pass the examination to remain em-
ployed. If the employee failed to sign the waiver or re-
fused to take the exam he or she was ultimately terminat-
ed. At the end of the initial interview the employee who
cooperated was then ushered into a separate room and
met with the polygraph examiner alone.
At that stage of the process the examiner explained his
procedures, discussed problems or answered the employ-
ee's questions, reviewed the test questions, and finally
conducted the examination. When the test was conclud-
ed, the examiner reported the results to the management
team. The employee was taken from the examining room
to the interview room and, depending on the examina-
tion results, congratulated on passing the exam or braced
with failure by the management team. Successful em-
ployees were then allowed to leave. Unsuccessful em-
ployees were told they had lied, were told they were
guilty of misconduct or the withholding of information,
and were urged to rehabilitate themselves. With some
variety, unsuccessful examinees were terminated at that
point. Others who confessed to certain minor misdeeds
were allowed to retake the examination with the new ex-
amination's questions fitted to the new admissions made.
All terminated employees were passed on to a personnel
officer who processed the necessary termination papers.
The employees were told not to return to the facility
without permission and were escorted off the premises.
All employee requests for the presence or assistance of
another at the interview or at the examination were
1004
CONSOLIDATED CASINOS CORP.
denied. At no time at any stage in the process did Re-
spondent accede to any request for a witness, representa-
tive, coworker, attorney, or other person to assist or act
as witness for the employee.
2. Individual employee interviews
The key element litigated in each conversation be-
tween employee and management was the circumstances
and specifics of any employee's request for representa-
tion. Therefore, to the extent necessary to supply the
context in each instance, (I) relevant background events,
(2) the interview of the employee by the Hotel's inter-
view team, (3) the polygraph examination, and (4) the
postexamination management interview are discussed
below for each contested employee.
a. George Ebersole
(1) Evidence
Early in October, craps dealer George Ebersole con-
sulted with Mike Harrison, an attorney retained by an
employee group to advise them on the matters then in
controversy at the Hotel. He was summoned to his poly-
graph interview and examination on October 6 or 7. He
met with Lynn Simons, Art Hadler, and Rick Romo.
What occurred was disputed. Ebersole and Simons testi-
fied about the conversation that ensued. Ebersole re-
called an initial colloquy about management's tape re-
corder and his own recording device followed by a re-
quest that he sign two pieces of paper. Ebersole testified
on direct examination that he then asked for the presence
of an attorney and, when that was denied, he asked "to
have a witness present, either a fellow employee or an-
other witness to the questioning and lie detector exami-
nation." On cross-examination, Ebersole admitted that he
could not recall using the words "fellow employee,"
"co-worker," or "employee" in the interview. Whatever
his request, it was denied. Simons testified that Ebersole
asked only for an attorney to be present to advise him on
the waiver form and to be present during the polygraph
examination. Simons recalled Ebersole's request was
denied. Ebersole declined to sign the waiver form under
these circumstances and was terminated without taking
the examination.
(2) Resolution
On the conflict between the versions of Simons and
Ebersole regarding Ebersole's request for a witness other
than an attorney, I credit Simons over Ebersole. I do so
largely on the basis of demeanor for I found Simons a
consistent witness with an apparently forthcoming
manner. Ebersole's version of events differed in impor-
tant ways between his direct and cross-examinations.
Further, while not conclusive, Ebersole's version of the
format of the interview is at variance with the testimony
of other witnesses. Given all the above, I find that Eber-
sole only requested that an attorney be present at his
interview and polygraph examination-a request which
was denied by management. I find he requested no other
individual be present.
b. Jesse Henson
(1) Evidence
Jesse Henson was interviewed by Simons and Packe
on October I 11, just before his polygraph examination. He
failed to pass the examination and was terminated. His
personnel record bears the entry "Failed polygraph re-
garding alleged gaming irregularities."
Jesse Henson died before the hearing commenced.
Counsel for the General Counsel offered portions of two
affidavits of Henson's taken by Board personnel as sub-
stantive evidence of what occurred at Jesse Henson's
prepolygraph interview. The first affidavit, taken soon
after the event, recites the conversation of the interview
in apparent entirety. The second affidavit, taken months
later, adds additional remarks to the earlier recitation of
the interview. It includes a statement by Henson to his
interviewers at the commencement of the interview:
"Aren't we supposed to have legal advice?" Respondent
called and examined the two Board agents who prepared
the affidavits during meetings with Henson regarding the
circumstances of the affidavits' preparation.
Simons testified about the polygraph interview with
Henson and Respondent introduced into evidence a tran-
script of a tape recording of the conversation. The Gen-
eral Counsel was afforded an opportunity to listen to the
original tape recording and compare it against the tran-
script offered into evidence. The General Counsel re-
fused to stipulate to the conformity of the transcript to
the tape but did not otherwise attack the transcript's ad-
missibility. I received it over his and the Charging
Party's objection. Simons testified that no statement was
ever made by Henson in the interview about "legal
advice," nor did Henson make any other request for a
representative. The transcript is consistent with this testi-
mony.
(2) Resolution
(a) The admissibility of the affidavits
The Henson affidavits are hearsay. Henson was of
course unavailable to testify at the hearing. The General
Counsel offered the affidavits under the hearsay excep-
tion contained in Federal Rules of Evidence (FRE)
804(b)(5) which provides:
(b) Hearsay exceptions. The following are not ex-
cluded by the hearsay rule if the declarant is un-
available as a witness:
(5) Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trust-
worthiness, if the court determines that (A) the
statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable ef-
forts; and (C) the general purposes of these rules
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the interests of justice will best be served by
admission of the statement into evidence. However,
a statement may not be admitted under this excep-
tion unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair op-
portunity to prepare to meet it, his intention to offer
the statement and the particulars of it, including the
name and address of the declarant.
Respondent opposed the proffer arguing, inter alia, that
Respondent had not received the required notice under
the proviso of FRE 804(b)(5)(C) and, further, that the af-
fidavits did not have sufficient "circumstantial guarantees
of trustworthiness" to justify their receipt into evidence.
I received the affidavits subject to their being rejected,
on motion of Respondent, if it was denied the opportuni-
ty to call and examine the Board agents who took the
affidavits by means of the General Counsel's failure to
agree to make the witnesses available as required by the
Board's Rules and Regulations, Section 102.118. Since
the Board agents testified, that conditional portion of my
ruling was not challenged. Given that fact, I reaffirm my
receipt of the affidavits into evidence.
The Board has received the affidavits of unavailable
individuals pursuant to FRE 804(b)(5) in previous cases;
e.g., Justak Brothers & Co., 253 NLRB 1054 (1981), enfd.
664 F.2d 1074 (7th Cir. 1981); Central Freight Lines, 250
NLRB 435 (1980), enforcement denied in relevant part
653 F.2d 1023 (5th Cir. 1981). The Seventh Circuit in
Justak found the necessary "equivalent guarantees of
trustworthiness" in the fact that the affidavit in that case
was given under oath and penalty of perjury. The Fifth
Circuit in Central found the affidavit in that case, which
was signed rather than sworn, lacked sufficient guaran-
tees or trustworthiness and rejected it as not qualifying
under FRE 804(b)(5). The Board decisions in Justak and
Central do not draw any distinction between a signed
and a sworn statement. The affidavits at issue herein
were both signed and sworn. Further, the testimony of
the two Board agents regarding the close communication
and interrogation which occurred during the preparation
of the affidavits supports a finding, which I make, that
the affidavits reflect the statements of Henson and are
not likely misstated through less than diligent prepara-
tion.
Turning to Respondent's argument as to notice, it is
true that counsel for the General Counsel did not inform
counsel for Respondent of the existence and specifics of
the affidavits or of the General Counsel's intention to
offer them into evidence until the morning of the third
day of the first week of the hearing, which was the day
following counsel for the General Counsel Ball's confir-
mation of the fact of Henson's death. It is also true that
agents of the General Counsel other than Ball had been
informed earlier in the month that Henson was dead and
that they had not informed counsel for Respondent of
the General Counsel's intention to offer the affidavits.
Nevertheless, counsel for Respondent had ample time to
prepare to meet the evidence in the affidavits during the
remaining 13 days of hearing which occupied 2 calendar
months, and, as noted infra, he did so with great success.
Thus, whether or not the passage of time after the Gen-
eral Counsel's agents learned of Henson's death may be
charged to counsel for the General Counsel Ball in his
management of litigation, Respondent was not injured in
any way by the delay, if any, in being notified of the
Government's intentions regarding the Henson affidavits.
Turning to the requirement of FRE 804(b)(5)(B), inas-
much as Henson was the only individual not an agent of
management at the meeting, it is clear that the General
Counsel could not procure any more probative evidence
on the subject than the affidavits. Accordingly, I find
that all the requirements of FRE 804(b)(5) were met by
the General Counsel in making his tender of the affida-
vits as substantive evidence. Therefore, the affidavits
were properly received as substantive evidence under
FRE 804(b)(5). 2 8
(b) Conclusions
Considering the affidavits, the testimony of Simons,
and the transcript of the tape recording, I am convinced
that Henson made no request for the presence or assist-
ance of any witness, representative, or attorney. I dis-
credit the assertion in Henson's second affidavit that he
asked about legal advice. On this record I assign greater
weight to the credible testimony of Simons corroborated
by the transcript as opposed to the essentially after-
thought addition to the conversation contained in Hen-
son's second affidavit. Accordingly, I find Jesse Henson
made no request for a representative of any kind.
c. Vernon Johnson
Vernon Johnson met with Art Hadler and Lynn
Simons on October 4 for his prepolygraph interview.
Without reading aloud from the paper he had with him,
he presented it to his interviewers and indicated it should
be the basis on which they would proceed. The paper
had numerous numbered paragraphs, the first of which
requested the presence of a "representative (another
dealer)." 29 The second paragraph requested or asked to
have his attorney present. Management told Johnson
they would not accede to his request and after consider-
able colloquy regarding whether he was refusing to take
28 Although not at issue at the hearing, I also reaffirm my conditional
receipt of the evidence. Whenever an affidavit tendered by the General
Counsel under FRE 804(bX5) was taken by a Board agent, respondent
must obtain the permission of the General Counsel to obtain the testimo-
ny of the Board agent who took the affidavit under the Board's Rules
and Regulations, Sec. 102.118. Were the General Counsel to deny a re-
spondent the right to call and examine a Board agent concerning an affi-
davit offered by the General Counsel, respondent would be deprived of
its only opportunity to delve into the circumstances of the affidavit's
preparation. If the General Counsel seeks to obtain the advantages of an
affidavit prepared by his own agents and offered pursuant to FRE
804(bX5), he must not restrict respondent's legitimate inquiry into the cir-
cumstances of the affidavit's preparation. Accordingly, I hold it is proper
and indeed necessary to hold that a Board-prepared affidavit is admissible
under FRE 804(b)(5) only if the General Counsel does not block re-
spondent from obtaining relevant testimony about the affidavit from
Board agents pursuant to the Board's Rules and Regulations, Sec.
102.118.
29 There was some dispute regarding which of two similarly worded
papers were used. One version reguested a "witness (another dealer),"
the second requested a "representative (another dealer)." As to these two
versions, the differences are immaterial.
1006
CONSOLIDATED CASINOS CORP.
the polygraph test sent him home. Later, Armstrong
contacted Johnson and told him the Hotel wanted him to
sign some papers and take the polygraph exam. Johnson
insisted he be able to bring his attorney, which request
was denied. He did not take the exam and was therefore
terminated. His personnel record contains the entry
"Term. Failed to cooperate in investigation."
d. Hank Boag
(1) Evidence
Hank Boag had his prepolygraph interview with
Packe, Hadler, and another individual on October 10.
Boag testified that during the interview, when asked to
take the polygraph examination, he replied, "Yes, but in
lieu of what had happened in the past, I would like a
witness present." Packe recalled that Boag asked for the
presence of an attorney. No other witness testified re-
garding the disputed testimony nor was a tape recording
or a transcript of a tape recording of the meeting of-
fered. Respondent would not comply with Boag's re-
quest and Boag was terminated. His personnel record in-
dicates he was terminated for refusing to cooperate in
the investigation.
(2) Resolution
As noted supra, I have credited other testimony of
Boag. I do so here. First, Hadler testified about other
matters but did not corroborate Packe on the issue in dis-
pute here. An adverse inference as to Hadler's testimony
is appropriate and I draw it.30 Second, Boag evinced a
clear recollection, rather tenaciously defended during
cross-examination, as to his exact request which was un-
shaken throughout his testimony. His demeanor was im-
pressive. Lastly, Packe, a participant in hundreds of
interviews, cannot be as likely to recall exactly each con-
versation as would Boag who had but one such meeting.
Accordingly, I find that Boag asked for a witness to be
present during his polygraph examination.
e. Deanne Ball Griffith
(1) Evidence
Deanne Ball Griffith had a prepolygraph interview
with Packe and Simons on October 15. Griffith testified
that at the commencement of the meeting she asked for
the presence of a "representative." When the request was
deined she asked for her attorney. This request too was
denied. Packe testified that Griffith asked only for an at-
torney, not for a representative. After her request(s) and
the denial(s), a lengthy colloquy ensued regarding the
waiver form and its implications. Griffith would not sign
the form without more time. Ultimately, Griffith was
given until the next day to determine if she would sign
the form and she left. The following day she returned to
the examining area and had a conversation with poly-
graph examiner Russ Jones regarding the waiver. He
0o The General Counsel also requested an adverse inference be drawn
from the failure of Respondent to introduce the tape or transcript of this
conversation. In light of the credibility resolution made I find it is unnec-
essary to do so. Were it material to the result, I would draw the infer-
ence suggested by the General Counsel.
told her the waiver form was his own, not the Hotel's.
Jones testified that Griffith objected to the waiver and
further asked for the presence of an attorney. Jones an-
swered that he never allowed third parties in the exami-
nation room during an examination. Ultimately, Griffith
refused Jones' request to sign the waiver form and, when
this fact was reported to management, she was dis-
charged. Her personnel record notes she was terminated
because she "refused to cooperate in investigation."
(2) Resolution
It is clear that Griffith in her meeting with Jones asked
for the presence of an attorney only. Regarding what
was said in her initial interview, Griffith's testimony con-
cerning her request for a representative is at direct vari-
ance with Packe's testimony. Simons did not testify re-
garding this interview and I draw an inference that, had
he testified regarding the substance of the interview, his
testimony would have been adverse to Respondent. As
between Packe and Griffith on the issue, I credit Grif-
fith. I believe it more likely Griffith would have request-
ed both a representative and an attorney because of the
position the committee and committee counsel Harrison
were taking with regard to the polygraph process. See,
for example, the written instructions supplied to employ-
ee Johnson noted supra. As to this conversation Griffith's
demeanor was superior although her testimony was
weakened by the existence of multiple affidavits, as noted
supra. Further, I am convinced that Griffith would better
recall what she said in the interview than Packe who
was not necessarily able to separate specifics of each
interview or able to recall with specificity what was said
in each. Lastly, not only was Packe not corroborated by
Simons, but Respondent did not offer into evidence
either the tape recording or a transcript of the tape re-
cording of what was said at the meeting. Accordingly,
based on all of the above, but primarily on the relative
demeanor of the witnesses, I find that Griffith did in fact
request a representative at her prepolygraph interview
with Hotel management.
f. Wanda Jeffords
Wanda Jeffords met with Packe, Hadler, and Simons
in her preexamination interview on October 18. There is
no dispute that she requested the presence of neither an
attorney nor a representative in that meeting or in her
meeting with the polygraph examiner. In the polygraph
room she refused to sign the waiver proffered her and
was returned to the interview office. There, she testified,
she told her interviewer that she did not understand the
waiver form and added "didn't I get a lawyer." Packe
testified Jeffords at no time made a request for a lawyer.
A transcript of the tape recording of the meetings cor-
roborates Packe. I credit Packe and find the request as
testified to by Jeffords was not made.
g. Gloria Nelson
(1) Evidence
Nelson testified that on October 10 she had a prepoly-
graph interview with Packe, Hadler, and another indi-
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vidual. Packe followed the standard interview format.
Nelson recalled that, when he presented the waiver form
to her, she asked if she could have a representative
present. Packe said no. Packe testified that he did not
recall a request by Nelson for a representative but re-
called her request for the presence of an attorney, which
request management declined.
Nelson's initial session ended without further discus-
sion because of the existence of certain issues regarding
her use of medication. On November 18 she was sum-
moned again to the examination area by Mel Weber.
Nelson testified she asked Weber if she could "have
somebody go with me, another dealer?" Weber said no.
Weber testified he could not recall if a conversation oc-
curred as testified to by Nelson. Nelson then met with
polygraph examiner Alpin. He testified that Nelson asked
that an attorney be present but did not otherwise request
of him the presence of a representative. All requests
were denied. Ultimately, Nelson refused to sign the
waiver without modification and was discharged. Her
personnel records contain the entry, "Terminated, re-
fused to cooperate in investigation."
(2) Resolution
I have discussed Nelson's superior credibility supra. I
credit her here. Neither Packe nor Weber, who was not
a credible witness, did other than deny recalling the
statements Nelson claimed she made. Such denials while
not oblique are less than absolute. Accordingly, based on
both relative demeanor and the denials which I discount,
I credit Nelson. I also credit Alpin whom Nelson did not
contradict in material part.
3. Analysis and conclusions
a. General principles
In NLRB v. J. Weingarten, 420 U.S. 251 (1974), the Su-
preme Court held that an employer violates Section
8(a)(1) of the Act when it denies an employee's request
that a union representative be present at an investigatory
interview which the employee reasonably believes might
result in disciplinary action. The Board has explicitly de-
termined that such Weingarten rights flow from the Sec-
tion 7 right of employees to engage in concerted activity
for mutual aid or protection. Thus, they are not depend-
ent on the fact that a given employee is represented by a
union where the requested individual is a fellow employ-
ee. Material Research Corp., 262 NLRB 1010 (1982).
Weingarten rights also exist in disciplinary interviews if
the interviews are not conducted for the exclusive pur-
pose of simply notifying an employee of previously de-
termined discipline. Baton Rouge Water Works, 246
NLRB 995, 997 (1979).
The General Counsel asserts that it is "arguable" that
an employee request for the presence of an attorney
raises Weingarten rights. There are two arguments sup-
porting this position, one general and the other specific
relying on the particular facts of this case. The specific
argument that the requested attorney herein may have
been known by management to be a labor organization
representative is discussed infra. The argument addressed
here is the General Counsel's asserted proposition that,
since any individual may perform a supportive function,
e.g., act as a witness for an employee in a Weingarten
interview, under the Board's analysis of Weingarten
rights in Materials Research Corp., supra, then a request
for any individual, including a lawyer, raises Weingarten
entitlements.
I reject the proposition that an employee may request
the presence of any person, including his personal
lawyer, and thus invoke Weingarten rights. The analyti-
cal concept of "mutual aid and assistance" has been held
to apply to the situation where one individual helps an-
other in order to increase the likelihood he will later
obtain assistance when he is in need. Such mutual aid is
useful and necessary in cases where employees act to
achieve "solidarity." The analytical construct matches
reality. Similarly, an employee who requests the pres-
ence of a coworker or a union representative at a disci-
plinary meeting is also clearly acting in this spirit of
mutual aid and protection. All will stand together. An
employee who requests the presence of his personal
lawyer, however, is not invoking the support of the
lawyer as part of a common cause with others. The
lawyer is for his personal assistance. He does not con-
template later assisting the lawyer in his need. The em-
ployee is therefore seeking personal assistance for his
own cause and no other. Such activity is not for mutual
aid or protection within the analysis of Materials Re-
search Corp., supra, or the cases cited therein. Such a re-
quest is therefore not protected under the Act. Accord-
ingly, I do not find a request for the presence of one's
personal lawyer raises Weingarten rights.
To invoke the protections of Weingarten an employee
must make a clear request of management for proper ac-
companiment during the interview. Respondent notes
that in Party Cookies, 237 NLRB 612 (1978), an employee
asked the employer if he should have a union steward
present and the employer answered "not to my knowl-
edge." The Board found in that case that no specific re-
quest for representation occurred sufficient to raise Wein-
garten rights. See also Spartan Stores, 235 NLRB 522
(1978), affd. 628 F.2d 953 (6th Cir. 1980); United Tele-
phone Co. of Florida, 251 NLRB 510 (1980).
One of the necessary circumstances to raise Weingarten
rights is an investigatory or disciplinary interview which
involves a confrontation between management and the
employee. The meeting may not be merely for the issu-
ance or communication of previously determined disci-
pline. Further, the employee must reasonably believe
that discipline for past misconduct may result from the
interview. In Postal Service, 252 NLRB 61 (1980), the
Board determined that an employer-ordered doctor's ex-
amination of an employee who had absentee problems
was outside the purview of Weingarten. The Board found
that no questions of an investigatory nature were asked
of the employee during the doctor's examination and that
there was insufficient evidence to establish that the ex-
amination was intended by management to form the basis
for taking disciplinary or other job-related action against
the employee because of past misconduct.
Given these general principles it is appropriate to turn
to the specific facts of this case and determine how these
1008
CONSOLIDATED CASINOS CORP.
principles should be applied to the interviews held by the
Hotel.
b. Did the polygraph process include meetings of a
kind sufficient to raise Weingarten rights3
Respondent argues that no Weingarten meetings oc-
curred during the polygraph examinations. Its arguments
on the issue must be resolved before addressing the situa-
tions of each individual employee. There were three
stages of the polygraph examination process: the preexa-
mination interview, the polygraph examination adminis-
tration, which itself has several parts, and the postexa-
mination interview. Each must be separately analyzed.
(1) The preexamination interview
At this stage of the process, employees were brought
before a group of management agents and were asked if
they had stolen from the Hotel, engaged in other im-
proper conduct, or knew of others who had engaged in
misconduct. There seems to be no dispute that this stage
of the polygraph examination process meets the Weingar-
ten criteria for a disciplinary interview at which an em-
ployee reasonably expects discipline might result. I so
find.
(2) The polygraph examination
The polygraph examination involved several stages.
Initially, the examiner greeted the examinee, explained
his equipment and its operation, discussed the procedure
and goals of the examination, and, in later cases, obtained
the written consent of the employee on a waiver form.
As part of this familarizing process the employee and the
examiner discussed the examinee's physical condition and
medical history, if relevant, and then reviewed the gener-
al questions that would be asked the examinee so the ex-
aminer could tailor specific questions to the particular
needs and circumstances of each examinee. The examina-
tion was then undertaken. If problems developed particu-
lar stages of the process would be repeated as necessary.
Finally, the results of the examination were reviewed
and reported by the examiner.
Clearly, the employees reasonably feared discipline
based upon the results of the actual polygraph examina-
tion. Respondent, however, raises several arguments
against a determination that a polygraph examination is a
disciplinary interview within the meaning of Weingarten.
First, Respondent characterizes the process as one solely
designed to ascertain the truth of employee responses to
a set of preordained questions. Thus, in Respondent's ar-
gument, the interviewee merely gives a series of yes or
no answers to the questions asked. This, Respondent
argues, is not the type of "confrontation" contemplated
by the Supreme Court in Weingarten or by the Board in
later cases. Respondent advances the Board's holding in
Postal Service, supra, as applicable here. Second, Re-
spondent argues that a polygraph examination is essen-
tially impossible when conducted in the presence of a
3' Respondent argues on brief that no Weingarten violation occurred
when management refused to administer examinations to employees who
did not sign an unmodified waiver form. This issue is discussed under the
portion of the Decision entitled "Remedy."
third party and, therefore, to allow a witness to be
present is, in essence, to prohibit employers from using
polygraph examinations at all. Since the Board allows
properly motivated polygraph examinations, Respondent
argues, Weingarten should not be interpreted in such a
way as to deny employers the right to administer poly-
graph examinations.
I find the facts of Postal Service clearly distinguishable
from those extant in the polygraph examination process
herein. First, the polygraph process was conducted
solely to uncover evidence of previous employee miscon-
duct. Unlike the physical examination in Postal Service
the information gleaned had no benign aspect. If an em-
ployee failed his or her examination, he or she was
fired-uncovering misconduct was the sole purpose of
the examination. I also reject Respondent's analogy of
the polygraph procedures to objective and nonconfronta-
tional processes akin to a simple measurement process
such as the taking of fingerprints or a blood sample.
Howsoever objective the polygraph results and howso-
ever objective the polygrapher's analysis of the results, it
is clear that the test results are critically affected by
what questions are asked the examinee. The questions are
not standard but are custom fitted to each examinee. The
crafting of the specific questions by the examiner results
from dialogue between the examinee and examiner.
These preexamination statements of the examinee are
therefore critical to the proceeding and its ultimate
result. The tailoring of these questions thus involves the
participation of the examinee in a manner much like the
participation required of an employee at a "normal" dis-
ciplinary or investigatory interview. Such an employee
may well benefit from the assistance of another during
the exchange. Accordingly, I find Weingarten rights
apply to the polygraph examination involved herein.
Respondent's argument that requiring a witness to be
present at a polygraph examination would totally destroy
the process is separate from its argument that no Wein-
garten rights are in issue. There is merit in Respondent's
argument that Weingarten and subsequent cases have at-
tempted to balance the conflicting interests of the parties
and have sought to seek a reasonable accommodation be-
tween those interests. Respondent is also correct when it
asserts on brief that "no attempt to make such accommo-
dation was made in the instant case." I put the burden on
Respondent, however, to have suggested accommoda-
tions to employees which would have substituted for the
presence of a third person at the examination. It is clear
Respondent did not do so. Respondent uniformly and
vigorously denied employees the right to accompaniment
by anyone and everyone-rejecting a variety of requests,
as discussed supra, at each and every stage of the proc-
ess, i.e., the preexamination stage, the polygraph stage,
and the postexamination stage. These blanket rejections
by Respondent fatally weaken its argument to me that
because the employees did not seek an accommodation
their Weingarten rights must be completely denied.
One may imagine a variety of accommodations which
would balance employee Weingarten rights against an
employer's right to administer polygraph examinations.
Perhaps a witness could be allowed an employee at the
1009
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preinterview held with Hotel management officials
where questions could be raised about medication, proce-
dures, and the number and wording of questions to be
posed. Perhaps a witness could be included in the poly-
graph examination process up to the point where the
actual examination process was to commence. Certainly
a witness could be afforded at the postexamination stage
when the examination results were discussed and em-
ployees were told they should confess. I find it unneces-
sary to decide the matter or even to consider further the
question of accommodation for I hold that it was incum-
bent on the Hotel to offer a reasonable accommodation
to those employees who made proper and timely re-
quests for accompaniment consistent with Weingarten. It
is unreasonable to argue that an employee must suggest a
means of accommodating the Hotel's right to conduct
examinations rather than to so obligate the employer
who has both technical expertise and the power to
modify the examination process at his disposal. Without
finding what particular accommodation was possible
herein, I find that some accommodation could have been
reached. Respondent's failure to suggest either that ac-
commodation or any other prevents it from now assert-
ing that the examination process would not have been
valid unless it denied the employees all rights to any type
of accompaniment whatsoever at any stage during the
process. Thus, I find, on this record, that the polygraph
examinations themselves were Weingarten interviews and
that the employees had no obligation to initiate or sug-
gest accommodations between their rights to accompani-
ment and the Hotel's right to administer the examina-
tions.
(3) The postpolygraph interview
Successful examinees were ushered back into the inter-
view room and congratulated by the management repre-
sentatives. They then departed. Those who failed their
polygraph examinations were also returned to the inter-
view room and were there urged by management agents
to "come clean" in order to preserve their jobs. In some
case employees confessed to minor transgressions, the
concealing of which had caused them to fail their exami-
nations; i.e., their examination results indicated "decep-
tion." The management interviewers considered the em-
ployees' "confessions" and in some cases caused reexam-
inations to take place in which new questions, excluding
reference to the now admitted minor transgressions,
were administered. If the employee passed this new ex-
amination his or her job was preserved. From these un-
disputed facts it is clear that the postinterview stage of
the process did not simply involve the administering of
predetermined discipline. It is clear that the employee's
actions and statements at that interview were important
factors in determining his or her fate. Certainly disci-
pline, i.e., termination, might result but even a failed ex-
amination might be undone and the employee's job
saved. Accordingly, I find that the postinterviews con-
ducted by management representatives were interviews
at which Weingarten rights existed.
c. The individual interviews
(1) George Ebersole
Ebersole asked for an attorney to be present at his
preexamination interview. His request was denied and
the interview held. I have found that a request for a per-
sonal attorney is not protected activity.3 2 Therefore, I
shall dismiss the allegation as to Ebersole.
(2) Jesse Henson and Wanda Jeffords
I have found Henson and Jeffords made no request for
a representative of any kind. Accordingly, I shall dismiss
this aspect of the complaint. Were my factual resolutions,
supra, in error, Henson would have been found to have
asked: "Aren't we supposed to have legal advice?" Jef-
ford would have asked: "Didn't I get a lawyer?" Even if
the employees made these statements I would find no
violation for two reasons. First, neither statement rises to
the level of a "request" for a representative sufficient to
trigger Weingarten rights. Party Cookies, supra. Second,
as noted supra, I do not find the request for legal advice
or a personal lawyer to be a Weingarten request.
(3) Vernon Johnson and Hank Boag
At his preexamination interview Johnson asked for an-
other dealer to be present. Boag asked for a witness.3 3
Both were denied their requests and were ultimately dis-
charged for not proceeding with the interview and exam-
ination process. This is a classic Weingarten violation
under the principles and cases cited supra and I so find.
In denying Johnson and Boag their right to the presence
of a fellow employee in their investigatory interviews at
which each had a reasonable belief that disciplinary
action might result, Respondent violated Section 8(a)(l)
of the Act.
(4) Deanne Ball Griffith
I have found that Griffith requested the presence of
both a representative and an attorney. The General
Counsel argues that the request for an attorney was
known by Respondent to be a request for Mike Harrison,
the attorney representing an employee committee sup-
porting the Union and acting in concert to protect em-
ployees' interests in the polygraph examination process. I
have found supra that Packe well knew of and had made
threats regarding the committee's retention of an attor-
ney. I also find that Griffith's open procommittee actions
gave Respondent fair notice that her request was for the
committee attorney and not a personal lawyer. The Gen-
eral Counsel's argument seems to be that Harrison was a
one-man labor organization entitled to the same consider-
ations as a representative of a traditional labor organiza-
32 1 do not find that this request could reasonably have been taken as a
request for attorney Harrison's presence as an ad hoc labor organization
representative. See further discussion under Griffith infra.
33 Respondent cannot complain that Boag's request was not clearly for
a fellow employee for it did not inquire further into the matter but denied
his request perfunctorily as it had all requests of any kind. Johnson's re-
quest was a continuing request, the denial of which tainted all of Re-
spondent's later actions with respect to Johnson. See also the discussion
of Griffith infra.
I010
CONSOLIDATED CASINOS CORP.
tion. See discussion in Materials Research Corp., 262
NLRB at 1019, fn. 40 (1982) (dissent of Chairman Van
de Water).
It is unecessary to reach the merits of this interesting
argument for I have also found that Griffith directly re-
quested a representative be present at her interview. As
noted supra, Respondent was earlier aware through
Johnson's letter presented to management that in em-
ployee usage the terms "representative" and "another
dealer" were synonymous. Under all the circumstances I
find Respondent should have taken Griffith's request for
a representative to be a request for a fellow employee.
Respondent's failure to ask any clarifying questions and
its consistent practice of denying all employee requests
for the presence of anyone prevents Respondent from
successfully arguing the request was insufficiently specif-
ic to raise Weingarten rights. Griffith did not ask the
polygraph examiner for the presence of a coworker.
However, I construe the polygraph examination to be
but a continuation of her initial interview. Her rights to a
witness as well as her initial request for a witness there-
fore carried over to that portion of the examination proc-
ess. Materials Research Corp., supra at fn. 6. Therefore,
Respondent denied her right to a witness at each stage of
the polygraph examination process and thereby violated
Section 8(a)(l) of the Act. I so find.
(5) Gloria Nelson
Nelson first asked for a representative at her initial
interview and made a second request when she was sum-
moned to her meeting with the polygraph examiner.
Each request was denied. Like Johnson's and Griffith's I
find her request was a continuing one. Each denial vio-
lated Section 8(a)(1) of the Act for the reasons noted
supra. I so find. Again as with Griffith it is unnecessary
to address the effect of Nelson's request for a lawyer
given her other clearly proper request.
F. The Appeal Issues
Paragraphs 29 and 30 of the complaint allege that 13
employees of the Hotel sought to appeal their discharges
under Hotel procedures and were denied that opportuni-
ty for impermissible reasons in violation of Section
8(a)(l), (3), and (4) of the Act. Following discussion of
the general circumstances involved, the individual em-
ployees will be discussed seriatim.
1. General background
By memorandum dated June 26, 1980, Bob Contois,
the general manager, announced the implementation of a
board of appeal procedure. This memorandum, which
was distributed to employees, described the new proce-
dure. It would apply (I) only to employees not covered
by a collective-bargaining agreement, (2) only to em-
ployees not coerced by "a collective bargaining unit,"34
3a The quoted phrasing "a collective bargaining unit" is taken from the
memorandum in haec verba. The language is quoted by the Hotel in later
communications with employees. See discussion infra.
and (3) only to employees who had completed their 90-
day probationary period. The procedure involved the use
of a three-member panel which was to consider and
review "any job-related situation. This includes dis-
charges, warnings, suspension, etc." Outside representa-
tives were prohibited, but employees could call other
employees as witnesses and all employees would be paid
for time spent in the process. An employee initiated the
process by following a described procedure which in-
cluded making a written request that management con-
vene a board of appeal. Such a request must be filed
within 7 days of the "incident" resulting in the adverse
action at issue.
There was varied testimony regarding the application
of the board of appeal procedure to the polygraph exam-
ination process. Rex Kidd testified that, at a question and
answer period in a meeting between employees and man-
agement, including Packe, Hadler, and Simons, on Octo-
ber 18, Simons was asked the following question and re-
sponded as noted:
The question was asked of Mr. Simons why man-
agement was allowed to take the polygraph the
second time where the dealers who had fought it,
who had refused, were not given that right.
Mr. Simons' response was that if any dealer had
flunked the polygraph test and wanted to take it a
second time, they would be entitled to that test a
second time. He also stated that they had a griev-
ance procedure for dealers that had been fired
through Personnel. And in that procedure they had
a seven-day period to file notice that they wanted
to appeal their firing, and that that procedure would
be waived indefinitely, giving them a chance to
have time to file a procedure for an appeal on their
being fired.
Gary Spinola testified with less specificity regarding the
meeting. He recalled that someone from management an-
swered an employee question by asserting, inter alia, that
the board of appeal procedure was available to terminat-
ed dealers and that the time limit for filing the appeal
might be waived. Simons did not testify regarding the
meeting.
James Skaggs, then the vice president of personnel re-
lations, testified that he made the decision that the ap-
peals process would not apply to the polygraph dis-
charges. He gave the following reasons: (1) the magni-
tude and scope of the underlying investigation made a
grievance unworkable; (2) the participation of state regu-
latory officers and the potential criminal implications of
the investigation would prevent certain testimony from
being available in any appeals process; (3) polygraph ex-
aminers were outsiders and under the appeals system
could not testify; and (4) any individuals represented by
a collective-bargaining group could not convene a board
of appeal.
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Individual employees
a. Henry (Hank) Boag
Henry (Hank) Boag worked for the Hotel from 1967
to 1977. He returned to the Hotel on August 22, 1980.
He was fired on October 10. He filed an "official appeal
of my termination" by letter to Art Hadler dated Octo-
ber 12. On October 21, Personnel Director Armstrong
sent Boag a letter stating:
Your request for a Board of Appeal has been re-
ceived and recorded.
When the current investigation at the Sahara Las
Vegas has been completed, we will contact you
concerning arrangements. 3 5
Boag's name was included in the charge filed by the
Union on October 17 in Case 31-CA-10538, which al-
leged that certain employees were illegally fired by the
Hotel. On Octobeer 30, Armstrong sent Boag a letter
which stated:
Your complaint will be resolved through the auspic-
es of the National Labor Relations Board as a result
of the filing of a charge. The Board of Appeals is
only available to employees not represented by a
collective bargaining unit. (Please see attached pro-
cedure.) 3 6
b. Robert Brooks
Robert Brooks was discharged on October 3 and filed
an appeal on October 25. Brooks' name was included in
the Union's October 8 charge in Case 31-CA-10514.
Armstrong sent Brooks a letter dated November 18
which stated:
Since you are now being represented by a collective
bargaining agency the Board of Appeals is no
longer available as a grievance procedure. (See at-
tached Board of Appeals Procedure.)3 7
c. Deanne Griffith
Deanne Ball Griffith was discharged on October 16.
She filed a board of appeal request on October 19. The
Hotel sent her the Hotel's acknowledgment letter on Oc-
tober 21. The Hotel sent her the now represented denial
letter on October 30. Her name was included in the
Union's November 5 charge in Case 31-CA-10610.
d. Don Henson
Don Henson was terminated on October 4. He sent the
Hotel a written letter captioned "Termination Appeal"
dated October 29. His name was included in the Union's
charge on October 8 in Case 31-CA-10514. The Hotel
36 This letter and other letters by Armstrong to other employees with
identical wording will be hereinafter referred to as the Hotel's acknowl-
edgment letter.
36 This letter and other letters by Armstrong to other employees with
identical wording will hereinafter be referred to as the Hotel's NLRB
charge and represented employee denial letter.
3a This letter and other letters by Armstrong to other employees with
identical wording will hereinafter be referred to as the Hotel's now rep-
resented denial letter.
did not respond, so far as the record reflects, to Don
Henson's appeal.
e. Jesse Henson
Jesse Henson was fired on October 11. The record
does not indicate when Jesse Henson filed his appeal.
The Union's charge in Case 31-CA-10538 filed on Octo-
ber 17 included Jesse Henson. The Hotel sent him the
Hotel's now represented denial letter dated November
18.
f. David Hernandez
David Hernandez was fired on October 11. He ap-
pealed his discharge on October 16 and received the
Hotel's acknowledgment letter dated October 21. Her-
nandez' name was included in the Union's October 17
charge in Case 31-CA-10538. He received the Hotel's
NLRB charge and represented employee denial letter
dated October 30.
g. Wanda Jeffords
Jeffords was discharged on October 18. She appealed
her termination by letter dated November 3. She was
listed in the Union's November 5 charge in Case 31-CA-
10610. On November 18 the Hotel sent Jeffords its now
represented denial letter.
h. Vernon Johnson
Vernon Johnson was terminated on October 8, 1980.
The date of Johnson's appeal is not evident. However,
the Hotel sent Johnson its acknowledgment letter dated
October 24. The Hotel on October 30 sent Johnson its
NLRB charge and represented employee denial letter.
i. Gloria Nelson
Nelson was discharged on November 18, 1980. On No-
vember 19 Nelson wrote to Hadler requesting to meet
again with management so that she could sign the
waiver. Her letter stated in part:
Please consider this to be my request to have the
meeting with management so I can execute the
form that was presented to me last night. Although
I realize that I will not be allowed to alter the form,
I would like management records to request that
the form statement referring to "voluntary" and
"without duress" are qualified to the extent that I
am subjecting myself to the examination under the
threat of termination, or the refusal of reinstatement
for the termination that has previously occurred.
Also, to the extent that my actions do not constitute
a waiver of any rights I may have against manage-
ment with reference to subjecting me to the poly-
graph examination, it is not my intent to waive any
such rights.
On November 23, Nelson invoked her right to appeal in
a letter in which she said she was, consistent with her
letter of November 19, willing to "submit herself to a
polygraph test." Hadler by letter dated December 5 ac-
1012
CONSOLIDATED CASINOS CORP.
knowledged receipt of Nelson's letter of November 19
and informed Nelson, inter alia, that her request to take
the "examination under the terms outlined in your letter"
was declined. It noted: "In addition, no employees or su-
pervisor was allowed to take the examination with the
qualifications outlined in your letter." There is no evi-
dence of a further communication with Nelson by the
Hotel regarding her appeal.
j. Tom Powers
Powers was discharged on October 3. He appealed on
October 22. He was named in the Union's charge in Case
31-CA-10514 on October 10. He received the Hotel's
NLRB charge and represented employee denial letter
dated October 30.
k. Hans (Walter) Scheller
Scheller was discharged on October 3. He appealed
his discharge on October 19. He was included in the
Union's charge in Case 31-CA-10514. Scheller received
the Hotel's acknowledgment letter dated October 24. He
thereafter received the Hotel's NLRB charge and repre-
sented employee denial letter dated October 30.
1. Jerry Simpson
Simpson was fired on October 19, 1980. He appealed
his discharge on October 19. Simpson filed his charge in
Case 31-CA-10530 on October 17. He received the
Hotel's NLRB charge and represented employee denial
letter dated October 30.
m. Vincent Giagni
Vincent Giagni is the only employee involved in the
appeals dispute who was not fired as a result of the poly-
graph examination process. He was fired on January 25,
1982, from his position as a dice dealer. His termination
is not alleged as a violation of the Act. He went to Arm-
strong with the expressed intention of filing a notice of
appeal on February 1, 1982. He testified, credibly and
without contradiction, that Armstrong told him that as a
dice dealer the board of appeal was not available to him
because the dealers "had selected a union to represent us,
and that any grievance would be handled in arbitration
by the union." No written appeal was ever filed; rather,
the Union filed a charge with the Board. At no time has
the Hotel recognized the Union or bargained with it in
any fashion.
3. Analysis and conclusions
a. The communication of reasonsfor the denial of
appeal rights as an independent 8(a)(1) violation
Irrespective of the actual motive of Respondent for
denying the appeals of employees or the propriety of the
denials under the Act, Respondent's communications to
employees as to the reasons for management's denial of
their appeals are in issue as a separate violation of Sec-
tion 8(a)(l) of the Act. Employees were told, by letter,
and in Giagni's case orally, as set forth supra, they could
not utilize the Hotel's appeals process either because
they had selected the Union or because an NLRB charge
had been filed and they had selected the Union. Irrespec-
tive of the truth of the statement, telling employees that
they have lost important employment rights, here the
right to utilize the appeals process, because the employ-
ees selected the Union and/or because a charge was filed
with the Board clearly informs employees their rights
have been diminished because of those protected activi-
ties. Such statements perforce chill employees' exercise
of these Section 7 rights and therefore the statements, in
each case, violate Section 8(a)(1) of the Act and I so
find.3 8
b. The denial of appeal rights as a violation of Section
8(a)(3) and (4)
There is no dispute that the denial of an employee's
right to an internal appeal of adverse action may not
properly be denied because employees selected a union
to represent them or because a charge was filed with the
Board dealing with the same issue. Thus, if the reasons
given the employees for the denial of their appeals, dis-
cussed individually supra, were the true reasons for the
Hotel's denial of appeal rights, then Section 8(aX3) and
(4) of the Act was violated as alleged in the complaint.
It is at least inferrable that the reasons given each em-
ployee for denying his or her right to appeal by the
Hotel was in fact the Hotel's true reason absent evidence
to the contrary. Given that the Hotel's appeals proce-
dure on its face denies represented employees the right
to use the procedure, albeit ambiguously as a result of
the confusing language cited supra, and that manage-
ment's agents testified that one of the reasons the Hotel
denied dealers appeal rights was the election victory of
the Union, it is clear and I find that the Union victory
was at least one reason for the denial. Consistent with
the letters denying the right to appeal to certain of the
employees3 9 because of the filing of NLRB charges, I
find this too was a reason for denying appeal rights.
Respondent asserts, however, that other reasons exist-
ed for denying the particular employees their appeal
rights. Four defenses were raised: (1) that management
never intended to apply the appeals process to the poly-
graph discharges; (2) that certain employees were dis-
qualified under the appeals procedure through late filing
of their requests to appeal; (3) that Giagni never filed an
appeal under the procedure; and (4) that Boag did not
qualify under the appeals procedure because he was a
probationary employee.
Dealing first with Boag, it is clear that, by counting
only his most recent period of employment with the
Hotel, he had not served 90 days before his discharge.
Thus, if he was regarded as a new employee upon reem-
ployment in 1980 he was not qualified to use the proce-
dure. If his previous service is counted, however, Boag
clearly had sufficient service to use the procedure. No
"s Indeed. the June 26, 1980. memo expressly limits the benefits offered
as available only to unrepresented employees and may itself violate the
Act. Since the matter was not alleged in the complaint, I will make no
finding in regard thereto.
a9 Employees Boag, Hernandez, Johnson, Powers, Schiller, and Simp-
son received letters identifying the filing of an NLRB charge as one
reason for the denial of their appeal.
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence was offered on the issue of how broken or dis-
continuous service is counted by the Hotel under either
specific personnel rule or past practice. I need not decide
if Boag was in fact eligible or ineligible under the word-
ing of the procedure and the Hotel's practice, however. I
need not for I am satisfied that there is no evidence
either that Boag was known to be an arguably probation-
ary employee at the time he was denied his appeal rights
or that the Hotel ever denied any employee the right to
use the procedure because of length of service at any
time, especially an employee with extensive previous
service. I come to this conclusion because the Hotel ini-
tially acknowledged Boag's appeal by letter without ref-
erence to his now argued probationary status. When the
Hotel told him he was ineligible, only two reasons were
given: (1) the fact of the filing of the NLRB charge and
(2) the fact that the dealers' unit was now "represented."
While all of the above is not sufficient to prove that
Boag's argued probationary status would not also have
disenfranchised him, I find the evidence sufficient to shift
the burden to Respondent to come forward with evi-
dence to show that, in fact, probationary employees have
by rule or practice been denied use of the Hotel's appeals
procedure. Respondent did not come forward with such
evidence and, accordingly, its defense as to Boag must
fail.
I reach the same result concerning the timeliness of
certain employees' requests for appeals and reject the
Hotel's "timeliness" defense as to those employees who
filed allegedly untimely appeal requests for the following
reasons. First, the analysis of Respondent's specific de-
fense as to Boag may be applied with equal force to
those employees who filed requests for appeals more
than 7 days after their discharges; i.e., beyond the time
limit set on the face of the procedure. Second, and more
importantly, however, irrespective of the Hotel's actual
practice regarding untimely filings, I rely heavily on
credited testimony, noted supra, that management explic-
itly told employees that it would waive the 7-day filing
requirement with respect to individuals discharged as
part of the polygraph procedure, This is a waiver which
appears to have been relied on by certain employees and
which Respondent cannot now retract. Accordingly, I
find Respondent's timeliness defense without merit.
As to Giagni, Respondent correctly argues he did not
file a written request for an appeal with the Hotel. I find
he did not do so because he was told by Armstrong he
was not eligible to appeal his discharge assertedly be-
cause he was now represented by the Union. Respondent
argues on brief, in another context, that the Board does
not require a party to engage in a futile act. That doc-
trine is applicable here. Giagni went to file an appeal and
was dissuaded. Having been told by the personnel direc-
tor he was not eligible to file an appeal, Giagni will not
be denied standing to contest his denial of appeal rights
because he failed to do what management told him
would be futile and ineffective. Respondent's defense as
to Giagni fails here.
Respondent's general defense to the appeals issue relies
on the testimony of Skaggs, noted supra, to show that
the appeals procedure was withheld from the October
discharged employees for several not improper reasons,
including the fact that management had decided it would
not be used to review the polygraph discharges. Thus,
Respondent seeks to show that, since no employee, save
perhaps Giagni, would have had an appeal right in any
event, the denials were not in fact the result of protected
conduct. I reject this argument initially because I dis-
credit the testimony of Skaggs. While no direct evidence
could be offered to rebut the testimony of Skaggs con-
cerning his subjective reasoning and motivations regard-
ing the appellate process, the General Counsel has suc-
cessfully amassed a bulk of contrary secondary evidence
which considered in toro renders Skaggs' version of
events incredible. Thus, there is the total absence of any
statement by any member of management to any employ-
ee at any time that the polygraph examinations and re-
sultant discipline would fall without the appeals proce-
dure. Rather, to the contrary, as found supra, manage-
ment specifically told employees that the appeals proce-
dure would be available to polygraph discharges and,
indeed, that the time limit for filing an appeal would be
waived. Finally, the following factors factually injure
Respondent's claim. The appeals procedure itself denied
eligibility to represented employees. All October dis-
charged employees were told that their eligibility was
lost by Respondent because they were represented by
the Union and not because discharges as a result of the
polygraph process were not subject to appeal. Giagni,
too, was told, well after the polygraph process had been
concluded, that he had lost his eligibility to appeal his
discharge because he was represented by a union. These
multiple factors conclusively demonstrate that the rea-
sons Respondent denied employees their appeal rights
were in fact the reasons given to them and not for any
other reasons. Accordingly, I find that, by denying the
employees, listed supra, their right to appeal their dis-
charges under the Hotel's internal appeals procedure be-
cause they were represented by the Union, Respondent
violated Section 8(a)(3) and (1) of the Act. As to those
employees, listed supra, who were further denied their
appeal rights because a charge had been filed with the
NLRB, Respondent also violated Section 8(a)(4) and (1)
of the Act.
IV. REMEDY
A. General Remedy
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including
the posting of a notice to employees with traditional re-
medial language.
The violations of the Act concerning the denial of the
use of the Hotel's appeals procedure and the denial of
the employees' request for the presence of a representa-
tive present additional issues regarding the appropriate
remedy for these violations. The various issues are treat-
ed separately infra.
1014
CONSOLIDATED CASINOS CORP.
B. Weingarten Violations
The General Counsel seeks reinstatement and a make-
whole order with respect to the four employees whose
Weingarten rights were violated. The circumstances of
the four employees involved differ and they must be
treated in two separate categories.
Boag and Johnson were terminated as a result of their
prepolygraph management interview when each made
his Weingarten request for accompaniment. I find that
each was fired because of the request and not for any
other failure or refusal to participate in the polygraph ex-
amination process. Neither refused to sign the waiver
form management presented other employees. The poly-
graph examination was administered to neither employee.
Their terminations are therefore discharges based solely
on the assertion of protected rights and the terminations
are therefore independent violations of Section 8(a)(1) of
the Act. Terminations for protected activities may be
fully remedied only by a traditional reinstatement and
make-whole order.
Having found that Respondent terminated the employ-
ment of Boag and Johnson in violation of Section 8(a)(l)
of the Act, I shall order Respondent to offer Boag and
Johnson immediate and full reinstatement to their former
positions of employment or, if said positions are no
longer available, to substantially equivalent positions,
without prejudice to any seniority or other rights or
privileges to which they may have been entitled. I shall
also order that Respondent make Boag and Johnson
whole for any loss of earnings and other benefits they
may have suffered by reason of the discrimination
against them to be computed in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1950), together
with interest thereon in accordance with the policy of
the Board set forth in Florida Steel Corp., 231 NLRB 651
(1977); see also Isis Plambing Co., 138 NLRB 716 (1962).
I shall also order Respondent to expunge from its files
any reference to the discharges of Boag and Johnson,
and notify each in writing that this has been done and
that evidence of these unlawful discharges will not be
used as a basis for future personnel actions against them.
Nelson and Griffith present a different set of circum-
stances. As I have found, supra, each was denied her
Weingarten rights. Each, however, was terminated when,
after protracted argument and discussion, each ultimately
refused to sign an unmodified waiver form. Respondent
argues that, irrespective of any technical violation of
Weingarten, employees who were terminated because
they refused to sign the waiver should neither be made
whole nor reinstated. Respondent reasons as follows: (I)
asking an employee to sign a waiver is not a Weingarten
situation, (2) an employer may properly insist an employ-
ee sign such a waiver, (3) employee refusal to sign such a
waiver is insubordination, (4) an employee may be fired
for such insubordination, and (5) accordingly the instant
discharges were for unprotected insubordination and are
not a violation of the Act.
Dealing with Respondent's first premise, it is enough
to say that the waiver was tendered by management
during meetings in which employee Weingarten rights
were being violated. It is unnecessary to decide if asking
an employee to sign a waiver in isolation raises Weingar-
ten rights because such an insolated event did not occur
in the case of any employee.
Respondent's remaining arguments must be examined
in light of the Board's recent decision in L. A. Water
Treatment, 263 NLRB 244 (1982), which applied the
Board's standard remedy analysis in Weingarten situations
to facts analagous to the instant case. The standard test is
set forth in Kraft Foods, 251 NLRB 598 (1980), where
the Board stated at 598:
In determining the appropriate remedy for a re-
spondent's violation of an employee's Weingarten
rights, the Board applies the following analysis. Ini-
tially, we determine whether the General Counsel
has made a prima facie showing that a make-whole
remedy such as reinstatement, backpay, and ex-
pungement of all disciplinary records is warranted.
The General Counsel can make this showing by
proving that respondent conducted an investigatory
interview in violation of Weingarten and that the
employee whose rights were violated was subse-
quently disciplined for the conduct which was the
subject of the unlawful interview.
In the face of such a showing, the burden shifts
to the respondent. Thus, in order to negate the
prima facie showing of the appropriateness of a
make-whole remedy, the respondent must demon-
strate that its decision to discipline the employee in
question was not based on information obtained at
the unlawful interview. Where the respondent meets
its burden, a make-whole remedy will not be or-
dered. Instead, we will provide our traditional
cease-and-desist order in remedy of the 8(a)(1) vio-
lation.
In L. A. Water an employee was summoned to a meet-
ing which the employee reasonably believed might result
in discipline. The employee requested and was denied
representation. The meeting was held by the employer to
obtain assurances from the employee that he would not
be insubordinate in the future. When the employer did
not obtain the assurances it desired, it decided that the
employee was uncooperative and discharged the employ-
ee for his conduct at the meeting. On these facts the
Board found that the denial of the employee request vio-
lated the employee's Weingarten rights. The Board spe-
cifically held that the termination was not an independ-
ent violation of the Act, but rather must be considered
only under a remedy analysis consistent with Kraft
Foods. The Board then applied the Kraft Foods analysis.
It found that the General Counsel's prima facie case was
met by proving that the employee was discharged for
failing to provide assurances that he would no longer be
insubordinate. In a footnote the Board noted that the
subject of the interview was insubordination. It held the
employee's failure to give assurances regarding insubor-
dination was "inextricably intertwined" with the insubor-
dinate conduct. The Board concluded the employee was
discharged for conduct which was the subject of the
interview. It noted further that the employer admitted
that its decision as to what action to take regarding the
employee was contingent upon what occurred at the
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting. Under all these circumstances the Board held
that a make-whole remedy was appropriate.
Applying the above analysis to the instant case, I find
that the Hotel's terminations of Nelson and Griffith,
unlike those of Boag and Johnson, do not constitute in-
dependent violations of the Act under a Weingarten
theory. I further find, however, that the subject of their
interviews and the "insubordination" of their refusing to
sign the waiver form are "inextricably intertwined" and
that therefore Nelson and Griffith were discharged for
the conduct which was the subject of the interview.
Indeed, as in L. A. Water, Respondent admittedly decid-
ed what action to take against Nelson and Griffith based
on what occurred at the meeting with each employee
from which a properly requested witness had been im-
properly excluded. Accordingly, I find reinstatement,
make-whole, and expunction orders appropriate herein
consistent with the case and rationale cited, supra, for
employees Boag and Johnson. I so order.
C. The Wrongful Denial of Appeal Rights
I have found various employees were wrongfully
denied their right to appeal their discharges under the
Hotel's board of appeal procedure. Certain of these em-
ployees have been afforded other remedies as a result of
my remedy of other violations of the Act by Respond-
ent. To the extent that those other remedies affect the
discharges of the instant employees, the remedial provi-
sions herein may be mooted or rendered otherwise re-
dundant. In such cases they may be disregarded. It is
possible, however, that subsequent review of my rulings
and recommended remedy regarding other violations
found may reverse or significantly modify those rulings.
Accordingly, I here address the remedy necessary for
the employees' denied appeal rights assuming my remedy
ordered here as to employees Boag, Johnson, Nelson,
and Griffith is not mooted by other portions of this De-
cision.
Since Respondent has improperly denied employees
their right to utilize the Hotel's internal appeals proce-
dure, I shall order Respondent to rescind its denial let-
ters, described supra, and process the employees' appeal
requests as if they had not been denied. In processing
these appeals, the Hotel shall utilize the practices and
procedures in force at the time the particular employee's
appeal was filed and shall not rely on the appeal provi-
sions and limitations found improper herein. Further, Re-
spondent shall not in any fashion assert directly or indi-
rectly the passage of time caused by Respondent's delay
in processing the appeals so as to diminish employee
rights under the procedure.
In the event the passage of time and the occurrence of
events not attributable to any employee's subsequent un-
reasonable failure to proceed with the appeals process
have caused the appeals procedure to be impossible to
utilize or unlikely to produce a result equivalent to the
result which would have been achieved if timely proc-
essed originally, the employee's appeal will be granted
automatically and Respondent will take the action which
would have been required of it had the employee's
appeal been successful, including reinstatement and back-
pay consistent with my analysis supra. I so order be-
cause, where it becomes impossible to resolve an uncer-
tain situation, such uncertainty will be resolved against
the wrongdoer who has created the uncertainty; i.e., Re-
spondent here. Cf. King Soopers, 222 NLRB 1011 (1976);
Massachusetts Laborers' District Council (Manganaro Ma-
sonry), 230 NLRB 640, 644 (1979).
I find that it is impossible to now restore the right of
appeal of employee Jesse Henson since he is dead. I shall
therefore order Respondent to take all action it would
have taken if his appeal had been successful. Given his
death, reinstatement is not available; however, Respond-
ent shall pay Henson's estate the amount of money he
would have earned, minus interim earnings, until the
time when Henson's health would have prevented him
from continuing employment with Respondent consistent
with the Board's normal make-whole standards and the
cases cited supra as to Boag and Johnson. Respondent
shall also provide Jesse Henson's estate with a sum equal
in value to all other benefits Henson would have re-
ceived during the period he would have remained in its
employ. All sums owing will accrue interest in accord-
ance with the cases cited supra. As to other employees, it
is unnecessary now to determine if a resumed processing
of the appeals procedure is possible or practicable. Such
determinations may be made as to each employee during
the compliance stage of these proceedings. The Board in
similar situations has retained jurisdiction over specific
cases to consider appropriate affirmative remedial provi-
sions where initial affirmative orders are ineffective. E.g.,
Electrical Workers IUE Local 485 (Automotive Plating),
170 NLRB 1234 (1968); Port Drum Co., 170 NLRB 555
(1968).
Based on the foregoing findings of fact and the record
as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Telling employees engaged in union activities that
they were under discussion by high management offi-
cials.
(b) Interrogating employees about their union activi-
ties, their protected concerted activities, and the union
and protected concerted activities of other employees.
(c) Threatening employees with adverse consequences
at the Hotel if they select the Union as their representa-
tive, including threats that:
(1) The facility could close.
(2) Tips or "tokes" would be taxed.
(3) Benefits would be reduced.
(d) Telling employees that antiunion employees were
being hired or that an employee was hired because he
was antiunion.
(e) Telling employees that employees' attempts to
select the Union would be futile.
(f) Denying the following employees their requests for
the presence of a fellow employee at investigative or dis-
1016
CONSOLIDATED CASINOS CORP.
ciplinary meetings at which the employees reasonably
believed disciplinary actions might result:
Henry (Hank) Boag
Vernon Johnson
Gloria Nelson
Deanne Ball Griffith
(g) Discharging employees Boag and Johnson because
they requested the presence of a fellow employee at in-
vestigative meetings at which they reasonably believed
discipline might result.
(h) Telling employees they had been denied use of an
internal discharge review procedure because they select-
ed the Union to represent them and/or because a charge
had been filed with the Board concerning their dis-
charges.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by denying the following employees the use of an
internal discharge review procedure because employees
selected the Union to represent them:
(c) Threatening employees with adverse consequences
at the Hotel if they select the Union as their representa-
tive, including threats that:
(1) The facility could close.
(2) Tips or "tokes" would be taxed.
(3) Benefits would be reduced.
(d) Telling employees that antiunion employees were
being hired or that an employee was hired because he
was antiunion.
(e) Telling employees that employees' attempts to
select the Union would be futile.
(f) Denying the following employees their requests for
the presence of a fellow employee at investigative or dis-
ciplinary meetings at which the employees reasonably
believed disciplinary actions might result:
Henry (Hank) Boag
Vernon Johnson
Gloria Nelson
Deanne Ball Griffith
Henry (Hank) Boag
Robert Brooks
Deanne Ball Griffith
Don Henson
Jesse Henson
David Hernandez
Wanda Jeffords
Vernon Johnson
Gloria Nelson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
Vincent Giagni
5. Respondent violated Section 8(a)(4) and (!) of the
Act by denying the following employees the use of an
internal discharge review procedure because the employ-
ees were named in a charge or charges filed with the
National Labor Relations Board:
(g) Discharging employees Boag and Johnson because
they requested the presence of a fellow employee at in-
vestigative meetings at which they reasonably believed
discipline might result.
(h) Telling employees they have been denied use of an
internal discharge review procedure because they select-
ed the Union to represent them and/or because a charge
had been filed with the Board concerning their dis-
charges.
(i) Denying the following employees the use of an in-
ternal discharge review procedure because employees se-
lected the Union to represent them:
Henry (Hank) Boag
David Hernandez
Vernon Johnson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as noted supra, Respondent has not violated
the Act.
Based 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 recom-
mened:
Henry (Hank) Boag
Robert Brooks
Deanne Ball Griffith
Don Henson
Jesse Henson
David Hernandez
Wanda Jeffords
Vernon Johnson
Gloria Nelson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
Vincent Giagni
(j) Denying the following employees the use of an in-
ternal discharge review procedure because the employ-
ees were named in a charge or charges filed with the
National Labor Relations Board:
ORDER40
The Respondent, Consolidated Casinos Corporation,
Sahara Division, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees engaged in union activities that
they were under discussion by high management offi-
cials.
(b) Interrogating employees about their union activi-
ties, their protected concerted activities, and the union
and protected concerted activities of other employees.
40 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
Henry (Hank) Boag
David Hernandez
Vernon Johnson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer the following employees full reinstatement to
their former jobs or, if a particular job no longer exists,
to a substantially equivalent position, without prejudice
to seniority and other rights and privileges, and make
each employee whole, with interest, in accordance with
the section of this decision entitled "Remedy":
Henry (Hank) Boag
Deanne Ball Griffith
Vernon Johnson
Gloria Nelson
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Expunge from its records and files any and all ref-
erences to the unlawful discharges of employees Boag
and Jeffords and the discharges of Griffith and Nelson
and any reference to the failure of these employees to
cooperate in the polygraph investigation process, and,
further, notify said employees, in writing, that this has
been done and that evidence of the discharges or the fail-
ure to cooperate in the investigation will not be used as a
basis for future personnel action against them.
(c) Pay to the estate of former employee Jesse Henson
an amount of money equal in value to the amount Jesse
Henson would have earned in wages and other benefits
had he continued his employment so long as his health
would allow, minus interim earnings plus appropriate in-
terest, all sums to be computed as described in the sec-
tion of this Decision entitled "Remedy."
(d) Rescind its denial of the requests of the following
employees to appeal their discharges and notify each em-
ployee in writing that he or she may utilize the appeal
procedure as it existed at the time the appeal was re-
quested and, thereafter, process all appeals in good faith
without asserting the passage of time caused by the delay
in the appeal procedure's utilization in any manner to di-
minish the claims of the employees:
Henry (Hank) Boag
Robert Brooks
Deanne Ball Griffith
Don Henson
David Hernandez
Wanda Jeffords
Vernon Johnson
Gloria Nelson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
Vincent Giagni
(e) Notify the Regional Director or his agents of the
processing of the appeals described above so that the
Board may ascertain the effectiveness of the employees'
utilization of the appeals process and determine if addi-
tional affirmative remedies are necessary.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll, personnel, and any and all other records neces-
sary to determine the specific sums due under this Order
and to ensure that the Order has been complied with.
(g) Post at its Sahara Hotel facility in Las Vegas,
Nevada, copies of the attached notice marked "Appen-
dix." 41 Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly signed
by its authorized representative, shall be posted by Con-
solidated Casinos Corporation, Sahara Division, at its
Sahara Hotel in Las Vegas, Nevada, immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Consolidated
Casinos Corporation, Sahara Division, to ensure that said
notices are not altered, defaced, or covered by any other
material.
41 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(h) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice and obey its provisions.
WE WILL NOT tell employees engaged in union
activities that they were under discussion by high
management officials.
WE WILL NOT interrogate employees about their
union activities, their protected concerted activities,
and the union and protected concerted activities of
other employees.
WE WILL NOT threaten employees with adverse
consequences at the Hotel if they select the Union
as their representative, including threats that:
(1) The facility could close.
(2) Tips or "tokes" would be taxed.
(3) Benefits would be reduced.
WE WILL NOT tell employees that antiunion em-
ployees were being hired or that an employee was
hired because he was antiunion.
WE WILL NOT tell employees that employees' at-
tempts to select the Union would be futile.
WE WILL NOT deny the following employees
their requests for the presence of a fellow employee
at investigative or disciplinary meetings at which
the employees reasonably believed disciplinary ac-
tions might result:
Henry (Hank) Boag Gloria Nelson
Vernon Johnson Deanne Ball Griffith
WE WILL NOT discharge employees Henry
(Hank) Boag and Vernon Johnson or any other em-
ployee because they requested the presence of a
fellow employee at investigative meetings at which
they reasonably believed discipline might result.
WE WILL NOT tell employees they have been
denied use of an internal discharge review proce-
dure because they selected the Union to represent
them and/or because a charge had been filed with
the Board concerning their discharges.
WE WILL NOT deny the following employees the
use of an internal discharge review procedure be-
cause employees selected the Union to represent
them:
Henry (Hank) Boag
Robert Brooks
Deanne B. Griffith
Vernon Johnson
Gloria Nelson
Tom Powers
1018
CONSOLIDATED CASINOS CORPORATION
Don Henson Hans (Walter) Scheller
Jesse Henson Jerry Simpson
David Hernandez Vincent Giagni
Wanda Jeffords
WE WILL NOT deny the following employees the
use of an internal discharge review procedure be-
cause the employees were named in a charge or
charges filed with the National Labor Relations
Board:
Henry (Hank) Boag
David Hernandez
Vernon Johnson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL offer the following employees full rein-
statement to their former jobs or, if a particular job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to seniority and other rights
and privileges, and make each employee whole for
losses resulting from our discrimination against him,
with interest:
Henry (Hank) Boag Vernon Johnson
Deanne B. Griffith Gloria Nelson
WE WILL expunge from our records and files any
and all references to the unlawful discharges of em-
ployees Henry (Hank) Boag and Vernon Johnson
and the discharges of Deanne Ball Griffith and
Gloria Nelson and any reference to the alleged fail-
ure of these employees to cooperate in the poly-
graph investigation process, and, further, WE WILL
notify said employees, in writing, that this has been
done and that evidence of the discharges or the al-
leged failure to cooperate in the investigation will
not be used as a basis for future personnel action
against them.
WE WILL pay to the estate of former employee
Jesse Henson an amount of money equal in value to
the amount Jesse Henson would have earned in
wages and other benefits had he continued his em-
ployment so long as his health would allow, minus
interim earnings plus appropriate interest.
WE WILL rescind our denial of the following em-
ployees' requests to appeal their discharges and
notify each employee in writing that he or she may
utilize the appeal procedure which was in effect at
the time the appeal was requested and, thereafter,
will process all appeals in good faith without assert-
ing the passage of time caused by the delay in the
appeal procedure's utilization in any manner to di-
minish the claim of the employees:
Henry (Hank) Boag
Robert Brooks
Deanne B. Griffith
Don Henson
David Hernandez
Wanda Jeffords
Vernon Johnson
Gloria Nelson
Tom Powers
Hans (Walter) Scheller
Jerry Simpson
Vincent Giagni
WE WILL notify the Regional Director or his
agents of the processing of the appeals described
above so that the Board may ascertain the effective-
ness of the employees' utilization of the appeals
process and determine if additional affirmative rem-
edies are necessary.
CONSOLIDATED CASINOS CORPORATION,
SAHARA DIVISION
1019