Golden Nugget, Inc.

National Labor Relations Board - Board Decisions

May 16, 1973

203 N.L.R.B. 642 (N.L.R.B. 1973)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden Nugget, Inc. and Office and Gaming Employ-
ees Union . Case 31-CA-3336
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
May 16, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On March 13, 1973, Administrative Law Judge
Martin S. Bennett issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Golden Nugget, Inc., Las
Vegas, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in said recom-
mended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wa ll Products, Inc., 91 NLRB 544,
enfd . 188 F 2d 362 (C A 3) We have carefully examined the record and find
no basis for reversing his findings
DECISON
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This mat-
ter was heard at Las Vegas, Nevada, on February 1, 1973.
The complaint, issued December 5, and based upon charges
filed September 18, October 16, and November 20, 1972, by
Office and Gaming Employees Union, herein the Union,
alleges that Respondent, Golden Nugget, Inc., has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.'
i The complaint originally alleged that the Union was a labor organization
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent, Golden Nugget, Inc., is a Nevada corpora-
tion which operates a gaming casino, bar, and restaurant at
Las Vegas, Nevada. It enjoys annual gross revenues in ex-
cess of $50,000 and purchases and receives merchandise
valued in excess of that sum directly from points outside
that State. I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
11 THE UNFAIR LABOR PRACTICES
A. The Issue
The sole issue herein is an alleged threat by Casino Man-
ager Allan Johnson of Respondent on or about April 30,
1972, to discharge any employee involved with the labor
movement . The case reduces itself to a credibility resolution
between three witnesses for the General Counsel and one
for Respondent.
B. The Incident
Robert Murphy is and has been a craps dealer with Re-
spondent for almost 3 years. He is also acting financial
secretary of the Union and is manifestly an ardent union
advocate. As background, in mid-March 1972, according to
Murphy, he overheard a shift boss, Jermyn, in effect threat-
en to discharge a new employee, Upchurch, for union activi-
ties . On the following day, he and Business Manager Glen
Herron of the Union visited Casino Manager Johnson, re-
lated the threat, and Murphy asked Johnson's position on
the matter; the latter's reply is not disclosed and Upchurch
was subsequently discharged.'
On April 30, Murphy decided to visit Johnson in an effort
to have Upchurch reinstated. He was accompanied by Her-
ron and one Robert Trimble, a retired Army sergeant and
a friend of Murphy; the latter desired that a disinterested
witness hear this conversation. Upon arriving at the casino,
Murphy and Herron approached Johnson on the gaming
floor, while Trimble stationed himself at a slot machine
some 3 or 4 feet distant and made several plays during the
conversation.
According to Murphy, he introduced Herron to Johnson.
As they shook hands, Johnson first appreciated the identity
of Herron, although, as noted, Murphy testified about a
prior meeting. Johnson promptly termed Herron the "dirty
son of a bitch" who had sent Respondent's telegrams and
under Sec 2(5) and (6) of the Act and this was denied by Respondent The
allegation was stricken upon motion by the General Counsel, over the objec-
tion of the Union This finding is deemed not necessary to a resolution of
the only issue herein
2 The original charge also attacked the discharge of Upchurch on or about
April 15, 1972 This was not pursued in the complaint and perhaps accounts
for the relative minuteness of the instant case
203 NLRB No. 107
GOLDEN NUGGET, INC.
was associated with the Union.3 Johnson added that Re-
spondent would not put up with anyone organizing for the
Union and would discharge Murphy or anyone else. Mur-
phy next asked if Respondent would reinstate Upchurch.
Johnson declined and replied that he would discharge
anyone he pleased. He also stated that "they" would not
organize a union in the casino; the talk lasted but 2 to 3
minutes. On a searching cross-examination, Murphy re-
called that, during the talk, he said that the Union repre-
sented some (gaming) employees. Johnson did not display
a lack of recognition as to the identity of Upchurch. As the
talk ended, Herron unsuccessfully attempted to shake
hands with Johnson
Herron, who works in another industry and has never
been connected with Respondent, substantially corroborat-
ed Murphy. Upon introduction, Johnson referred to him as
the union person who had sent him the telegram. Herron
replied that they were seeking the rehire of Upchurch and
Johnson replied that no union bastard would tell him how
to run the club. Johnson added that ". . . he would fire any
member of the Union or anyone [if] he felt like it." Johnson
was agitated, both Murphy and Herron agree, and added
that Respondent had no contract with the Union, that it
never would, and that Upchurch would stay fired.
Robert Trimble also corroborated Murphy in substantial
measure. He has never been and is in no way connected with
Respondent. He placed the incident at approximately 2 p.
in., in the center of the casino. By prearrangement, he was
playing a slot machine some 3 feet from the trio. He also
recalled that Johnson became angered upon learning
Herron's identity and connection with the Union and stated
that "he would fire anybody who was involved or connected
with the labor movement." Murphy asked about the rehire
of Upchurch and Johnson replied that he could hire or fire
as he pleased. Johnson abruptly terminated the conversa-
tion.
Trimble also withstood a searching cross-examination.
He recalled that he played but two coins, rather than play-
ing the slot machine steadily, and, further, that he hit a
jackpot on the second coin. He said that he went to the
casino by prearrangement shortly 2 p.m. and again repeated
that Johnson announced he would fire anyone involved in
or connected with the "labor movement." He also put it that
Johnson's threat was to fire anyone "involved or organizing
or anybody with labor." He conceded that he heard but part
of what Murphy said, due to the latter's soft speech, whereas
Johnson spoke much louder and was better heard. I find
that the testimony of the three witnesses for the General
Counsel is in very substantial, although not precise, agree-
ment.
The case of Respondent is predicated solely upon the
testimony of Johnson who, in large measure, disputed the
testimony of the other witnesses. Johnson placed the inci-
dent on a Sunday afternoon, was unaware of Trimble's
presence at the slot machine, and did not recognize him on
the witness stand. Murphy, who did 99 percent of the talk-
ing, introduced Herron to Johnson and announced that "we
represent organized labor" concerning the dealers. Murphy
3 The Union has sent a telegram to Respondent , late in March, seeking
representation
643
added that they wished to give Respondent an opportunity
to reinstate Upchurch, or "we're going to cause you some
trouble." Johnson did not know who Upchurch was, said
that this was the Union's prerogative, and stated that al-
though he was not in sympathy with what the Union stood
for it should contact counsel for Respondent. He conceded
that he was annoyed and that his voice might have been
raised, but denied the use of any profanity and threatening
to fire anyone connected with the "labor movement." The
record discloses that Respondent does have a contractual
relationship with the Culinary Workers.
Johnson denied that Murphy had spoken to him previ-
ously about Upchurch. He conceded that someone might
have been standing nearby and that he might have used the
word "Union" in the conversation, but not the words "fire"
or "discharge." He also denied stating that he would fire
anyone who had anything to do with the labor movement.
C. Conclusions
As noted, the testimony of the three witnesses for the
General Counsel is mutually and substantially corrobora-
tive. Further supporting their version is the fact that Trim-
ble was not involved in the dispute and that Murphy, cur-
rently an employee, testified adversely to his employer.
Johnson, on the witness stand, was calm, but this is
viewed as distinctively different from a sudden confronta-
tion in a noisy and busy casino on a Sunday afternoon with
representatives from a labor organization of which he disap-
proved. And assuming, as he testified, that they threatened
to cause him "trouble," this does not detract from the re-
marks attributed to him. I find, on this record, that his
recollection was perforce inferior to those of the other wit-
nesses and I credit their testimony. I further find, as alleged
by the complaint, that Respondent, by Johnson on April 30,
1972, threatened to discharge any employee who had any-
thing to do with the labor movement or with a labor organi-
zation, and thereby engaged in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Golden Nugget , Inc., is an employer within the mean-
ing of Section 2(2) of the Act.
2. By threatening employees with reprisals for engaging
in union activities , Respondent has engaged in an unfair
labor practice within the meaning of Section 8 (a)(1) of the
Act.
3. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall reommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, Golden Nugget, Inc., Las Vegas, Nevada, its
officers , agents, successors , and assigns , shall:
I. Cease and desist from:
(a) Threatening employees with reprisals for engaging in
union activities.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed under Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its place of business at Las Vegas, Nevada,
copies of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional Director
for Region 31, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof and main-
tained for a period of 60 consecutive days thereafter in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4In 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.
5 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with reprisals for
engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed under Section 7 of the National La-
bor Relations Act.
GOLDEN NUGGET, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, Room 12100,
11000 Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7357.