Harrah'S Marina Hotel And Casino

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1116 (N.L.R.B. 1989)

1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marina Associates , d/b/a Harrah's Marina Hotel
and Casino and International Brotherhood of
Electrical Workers, Local 827, AFL-CIO.
Cases 4-CA-16360-1, 4-CA-16403, 4-CA-
16462-4, and 4-CA-17063-2
October 5, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 3, 1989, Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a response
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Marina Associates, d/b/a Harrah's
Marina Hotel and Casino, Atlantic City, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(d).
"(d) On request, reinstate the four 10-hour day
work schedule for unit employees that was unlaw-
fully and unilaterally changed as of February 9,
1987, and continue that schedule in effect until
either the Union agrees to a change or the parties
reach a lawful impasse in negotiations."
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We disagree with the judge 's statement that bad -faith bargaining may
be determined solely by an employer's "reservation to itself of unilateral
control over merit increases " See Colorado-Me Electric Assn , 295 NLRB
607 (1989) Our difference with the judge in this respect does not affect
our decision to adopt his finding that the Respondent bargained in bad
faith in violation of Sec 8(a)(5). As the judge himself recognized, "The
instant case involves unilateral control over all wages, not just merit in-
creases," and insistence on that total control is only one part of the pat-
tern of conduct on which we rely to find a failure to bargain in good
faith.
2 We shall modify the portion of the recommended Order restoring the
status quo ante to conform to standard Board language We shall also
conform the notice more closely with the judge 's recommended Order
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate you regard-
ing your union activities.
WE WILL NOT threaten you that work rules or
any other rules will be enforced more strictly be-
cause of your support for a union.
WE WILL NOT discriminatorily enforce a no-talk-
ing or any other rule to discourage union activities.
WE WILL NOT discriminatorily discharge, disci-
pline, or otherwise retaliate against you because of
your union activities.
WE WILL NOT make unilateral changes in wages,
hours, or other terms and conditions of employ-
ment during bargaining unless such changes are
embodied in a bargaining proposal and either we
have reached a lawful impasse or the Union has
consented to such changes.
WE WILL NOT fail or refuse to bargain in good
faith over wages, hours, and terms and conditions
of employment with International Brotherhood of
Electrical Workers, Local 827, AFL-CIO as the
exclusive bargaining representative in the following
appropriate unit:
All full time and regular part time electronic
technicians and slot mechanics employed by us
at our Atlantic City, New Jersey facility, ex-
cluding all other employees including lead me-
chanics, assistant lead mechanics, guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
296 NLRB No. 147
HARRAH'S MARINA HOTEL & CASINO 1117
WE WILL offer Joe Genzano immediate and full
reinstatement to his former job or , if that job no
longer exists , to a substantially equivalent job, and
make him whole for any loss of pay or benefits he
may have suffered because of our discriminatory
treatment of him , with interest.
WE WILL remove from our files any reference to
the discharge of Joe Genzano and notify him that
this has been done and that evidence of his unlaw-
ful discharge will not be used as a basis for future
personnel actions against him.
WE WILL, on request , reinstate the four 10-hour
workday schedule for unit employees that we un-
lawfully and unilaterally changed as of February 9,
1987, and WE WILL continue that schedule in effect
until either the Union agrees to a change or we
reach a lawful impasse in negotiations with the
Union.
WE WILL , on request , bargain collectively and in
good faith with the Union as the exclusive repre-
sentative of the employees in the above -described
unit with respect to wages , hours, and other terms
and conditions of employment and, on request,
embody in a signed agreement any final under-
standing reached with the Union.
WE WILL bargain collectively and in good faith
with the Union before implementing any changes
in wages , hours, and other terms and conditions of
employment.
MARINA ASSOCIATES , D/B/A HAR-
RAH'S MARINA HOTEL AND CASINO
William Slack, Esq. and Dona Nutini, Esq., for the Gen-
eral Counsel.
Doreen S. Davis, Esq. (Sprecher, Felix, Visco, Hutchison &
Young), of Philadelphia , Pennsylvania, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI , Administrative Law Judge.
This case was tried for 7 days in June and July 1988 in
Atlantic City, New Jersey . The complaint , as amended,
alleges that Respondent violated Section 8(a)(3) and (1)
of the Act by acts of coercion, interrogation, and dis-
crimination , including the discharge of employee Joseph
Genzano because of his union activities . The complaint
also alleges that Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain in good
faith with the Charging Party Union (the Union), which
had been certified as the bargaining representative of cer-
tain of its employees . Respondent filed an answer deny-
ing the essential allegations of the complaint . The parties
submitted extensive briefs and reply briefs which I have
read and considered.'
Based on the entire record, including the testimony of
the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
1. JURISDICTIONAL MATTERS
Respondent , a New Jersey corporation , is engaged in
the operation of a hotel and casino in Atlantic City, New
Jersey . During a representative 1-year period, the Re-
spondent , in the course and conduct of its business oper-
ations, derived gross revenues in excess of $50,000 direct-
ly from points outside the State of New Jersey. Accord-
ingly, I find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
On August 20, 1986, the Union filed an election peti-
tion seeking to represent Respondent 's approximately 34
slot mechanics . The slot mechanics basically repair,
maintain , and convert or modify slot machines. They
work during one of three shifts. At this time the slot me-
chanics worked four 10-hour shifts per week.
The election was held on October 20, 1986. The Union
won the election and, on October 29, 1986, was certified
as the exclusive bargaining representative in the follow-
ing appropriate unit:
All full-time and regular part time electronic techni-
cians and slot mechanics employed by [Respondent]
at its . . . Atlantic City, New Jersey facility .. .
[excluding] all other employees including lead me-
chanics, assistant lead mechanics , guards and super-
visors as defined in the Act. z
The parties began negotiations for a collective bargain-
ing agreement on December 5, 1986. Additional bargain-
ing sessions were held on December 18, 1986, January 13
and 28, March 12 and 23, May 22, June 15 and 26, July
24, August 20, September 4, October 5 and 9, November
2 and 24, and December 9, 1987, and February 18, 1988.
B. Acts of Coercion, Interrogation, and discrimination
1. Threats and interrogation directed to Iannacone
The General Counsel bases two allegations in the com-
plaint on the testimony of Mark lannacone , who was a
slot mechanic , an employee position , at the time of the
' The General Counsel has filed an unopposed motion to correct tran-
script The motion is granted.
2 This was apparently the first and only unit of employees in the Re-
spondent 's casino or gaming area to be organized . The Respondent cur-
rently has dealings with 5 unions covering about 1400 out of a total of
4100 employees The represented units include bartenders and housekeep-
ers, carpenters, painters, electricians , and dockmen
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union campaign , but had been promoted to assistant lead
mechanic , a supervisory position , at the time he testified.
The allegations are that then Lead Mechanic Charlie
Sanderson made a threat to lannacone and that Slot Shift
Manager Pete Oliva interrogated him about union mat-
ters . Both Sanderson and Oliva deny the charges.
lannacone initially testified that he could not remem-
ber anything about the alleged conversation with Sander-
son. He was then shown his pretrial affidavit given to a
Board agent in which he stated that Sanderson had told
him that when "we first heard rumors of the union .. .
we should have fired somebody on the spot." At the
hearing lannacone disavowed this specific statement in
his affidavit. Although he remembered the conversation
with Sanderson he could not recall whether the above-
quoted language was used . He testified: " I did not recall
[the statement] at the time when I gave my affidavit and
I stated that at the time." He admitted signing his affida-
vit on March 11, 1987, but, even though the affidavit
states that he read it, Iannacone testified that he could
not now recall reading the affidavit.
Sanderson testified that he did indeed have a conversa-
tion with lannacone about the Union, but that Iannacone
came to him with concerns about possible retaliation
against union supporters and Sanderson assured Ianna-
cone that this would not occur.
The General Counsel asks me to accept the statement
in lannacone 's affidavit as affirmative evidence, relying
on Alvin J. Bart, 236 NLRB 242 (1978). Bart not only
permitted the receipt into evidence of such an affidavit,
but also permitted its use in the face of contrary testimo-
ny by the affiant at the Board hearing . However, al-
though Bart permits a trier of fact to use statements in an
affidavit as affirmative evidence, it does not require such
use if the circumstances cast doubt upon their reliability.
In the instant case, I do not have confidence in the reli-
ability of the statement in the affidavit.
Not only was lannacone unable to recall the statement
made by Sanderson after being shown his affidavit, but
he testified that he did not recall the statement when his
affidavit was taken and he told the Board agent who
took the affidavit of his doubts at the time . Although
lannacone signed the affidavit and has an incentive to
soften the impact of the statement in the affidavit be-
cause it is against his employer's interests and he is now
a supervisor , I cannot give more credence to his affidavit
than to his testimony . If he was indeed influenced in his
testimony by having been promoted to a supervisory po-
sition , it is also likely that he was similarly influenced
when giving his affidavit by the fact that at the time he
was a union supporter. Moreover , although suspect for
obvious reasons and unreliable in many respects because
of its ambiguity , his testimony was not wholly unreliable.
In one instance, for example, he testified against his em-
ployer's interests and in effect adopted another statement
in his affidavit. He testified that Oliva had interrogated
him about union activities . Thus, Iannacone was capable
of testifying contrary to his employer' s interests and
adopting statements in his affidavit. That lannacone did
not do so in this instance gives me pause . It is thus more
likely that lannacone's doubts about the Sanderson state-
ment were genuine . In all the circumstances , I do not
have sufficient confidence in the reliability of Ianna'--'
cone 's repudiated statement to accord it the status of • a
finding of fact. I shall therefore dismiss the allegation
contained at paragraph 10(a) of the complaint. 3
As I have indicated , Iannacone adopted the statement
in his affidavit that, on one occasion during October
1986, Supervisor Oliva approached him and stated that
he was aware that lannacone was "going to vote for the
union" and asked why he "was going to do so." Ianna-
cone could not recall his response . Oliva acknowledged
having a conversation with lannacone about the Union
but denied questioning him.
I credit Iannacone 's testimony in this respect. He was
a supervisor when he testified and his testimony went
against his employer's interests . Unlike in the earlier in-
stance discussed above, his testimony about the Oliva in-
terrogation was consistent with his affidavit. Thus, in this
instance , his testimony that he was interrogated carries
some force and outweighs Oliva's denial . Indeed, Oliva
conceded that he approached lannacone on this occa-
sion ; I find it unlikely that Oliva simply volunteered his
views about the Union, as he testified, without some in-
quiry into lannacone 's views.
I find that, in all the circumstances , the questioning of
lannacone by Oliva was coercive . First of all, it is clear
that Oliva approached lannacone and initiated a conver-
sation about the Union during the height of the union
campaign . Moreover, lannacone was not a known and
open union supporter at the time . Indeed , Oliva testified
that he "did not know how [ lannacone] felt about the
union issue ." Nevertheless, Oliva stated that he was
aware that lannacone was going to vote for the Union,
thus suggesting that management knew of lannacone's
position from some source other than lannacone himself.
This in itself can have a chilling effect on the subject of
an interrogation . But when followed by an inquiry which
clearly seeks to plumb the depths of the subject's union
support the coercive effect is clear . There was no reason
for the inquiry and no assurances given against reprisal.
Accordingly, I find that Oliva's interrogation of Ianna-
cone was violative of the Act.
2. Threats that existing benefits would be lost
The General Counsel alleges further that, shortly
before the election , Respondent 's officials Dave Hanlon
and Lawrence Fowler held meetings with employees in
which they threatened a loss of existing benefits if the
employees selected the Union. Hanlon is president of
Harrah 's East and Fowler is vice president . The General
Counsel relies on the testimony of four witnesses on this
point and the Respondent on three, one of whom is
Fowler. It appears that the Respondent only had two
such meetings , both of which Fowler attended ; although
0 In Alvin Bart , unlike in the instant case , there was no objection to the
receipt of the affidavit in evidence , the affidavit related to the nature of
the affiant 's duties , and the trier of fact concluded that the affiant's oral
testimony was not credible on the particular point at issue The Board
has recognized that a trier of fact may decline to rely on a Board affida-
vit where the affiant who does not draft the document fails to give it
close scrutiny before signing it See Trailways. Inc, 237 NLRB 654, 655
(1978).
HARRAH'S MARINA HOTEL & CASINO 1119
the other witnesses attended only one meeting , it is un-
clear from the record which meeting each attended and
which witnesses attended which meeting . Aside from
Kelly, whom I found generally to have been an evasive
and unreliable witness, and Iannacone , whom I found
partially unreliable, the other witnesses all seemed honest
and straightforward and genuinely trying to tell the truth
as they saw it. The evidence is as follows.
Chris Parratto , a former slot technician , testified that
he attended one of the meetings at which Fowler an-
swered a question from an employee about whether the
Respondent would retain its 401(k) plan if the Union was
elected . The answer , according to Parratto , was that
"everything is negotiable , but the 401(k) plan is a non-
union employee benefit."
Mike Castrataro , another former slot technician, testi-
fied that , at the meeting he attended , an employee asked
what the employees had "to lose by going union."
Hanlon responded by saying that the employees "could
lose benefits and money and that it would be pretty hard
to get a contract." Castrataro, however, testified that he
could not remember Hanlon 's exact words.
Gary Minguez, who is currently employed by Re-
spondent , testified that, at the meeting he attended,
Hanlon stated , in response to a question , that the em-
ployees "would probably wind up losing benefits" if they
voted for the Union.
Genzano testified that , at his meeting , Hanlon made
reference to the fact that , once the Union came in, the
relationship between the Respondent and the employees
would change and the employees would not be part of
"Harrah 's family type atmosphere anymore." When
asked about whether anything was said about benefits,
Genzano answered , "that was part of the 'wouldn't be
part of the family type thing,' how we could possibly
lose benefits and, just, we wouldn 't be treated the same,
is the impression I got from what he was saying." When
asked to specify further, Genzano stated , "that things
would change, as far as the way we were handled."
lannacone , who was a supervisor when he testified,
and Joe Kelly, a former supervisor , testified essentially
that, at the meetings they attended , management officials
simply said that everything would be negotiable, al-
though they did point out that selection of the Union
would change the relationship between Respondent and
the employees. Iannacone also testified about the ques-
tion and answer relating to the 401(k) plan apparently
mentioned by Parratto . He testified that the response to
the question was that the matter was negotiable.
Fowler testified that Hanlon 's response to questions
about the 401 (k) plan or other benefits was essentially
that these were negotiable items . He denied that he or
Hanlon said anything about the employees losing existing
benefits if the Union won the election , although he did
say that the Respondent would be dealing with the em-
ployees through the Union and not directly.
After analyzing the testimony of all the witnesses, I do
not believe that the General Counsel has proved, by a
preponderance of the evidence , that the Respondent's of-
ficials threatened that employees would lose benefits if
they chose the Union. I do not see a classic conflict in
testimony here . Even accepting the testimony of the
General Counsel 's witnesses , a violation is not estab-
lished.
Parratto 's testimony does not support the allegation
that management officials said that the 401(k) plan was
not negotiable . He testified that they said "everything"
was negotiable even though they said that the 401(k)
plan was a nonunion benefit . He did not testify that they
said that the 401(k) plan was not negotiable . Any doubt
on this score is resolved by reference to the testimony of
Iannacone and Fowler . They testified that the speaker
said that the plan was negotiable . Thus, the General
Counsel has not proved that Respondent threatened to
stop an existing benefit plan if the employees voted for
the Union. Compare Lynn-Edwards Corp., 290 NLRB
202 (1988).
As for the allegation that Hanlon said that other bene-
fits would be lost, Castrataro 's testimony was undercut
by his candid admission that he could not remember the
exact words used by Hanlon . Minguez' testimony is like-
wise inexact . He attributed to Hanlon the statement that
employees would "probably wind up" losing benefits.
There was no elaboration or context given but the words
used are sufficiently ambiguous so that one could not as-
cribe these results to any action on the part of Respond-
ent. Finally , Genzano testified about an "impression" and
vaguely mentioned "how we could possibly lose bene-
fits" without elaboration . Not only was his testimony on
this point imprecise , in contrast with most of his other
testimony , but it came, in part, in response to a leading
question. Moreover, the vague "loss of benefits" state-
ment was made in the context of other statements by the
speakers that Respondent 's relationship with the employ-
ees would change because it would have to deal with
them through the Union . Statements about a changed re-
lationship after a union wins representational rights are
not unlawful. Port Plastics, Inc., 279 NLRB 362 (1986).
None of these three witnesses-Castrataro , Genzano
or Minguez-testified that Respondent would actually
take away benefits unilaterally or would bargain without
an intention to reach agreement. Indeed , it seems likely
that, in view of the ambiguity of the statements they at-
tributed to management officials on this issue , the possi-
ble loss of benefits was viewed as a concommitant of the
statement that all issues were negotiable . Thus, I believe
that Fowler's testimony probably most accurately re-
flected Hanlon 's actual remarks . Accordingly , I find that
the General Counsel has not shown that the words used
amounted to unlawful threats and I shall dismiss the alle-
gation contained in paragraph 11 of the complaint.
3. Threats to more strictly enforce work rules
The complaint also alleges that Respondent threatened
to enforce its work rules more strictly because employ-
ees had selected the Union as their representative. The
evidence in support of this allegation is as follows.
On October 23, 1986, slot technician Joseph Genzano
was issued a so-called Work History Form, which he
was required to sign, documenting that he had reported
late for work on that day. Genzano, who had worked
for Respondent since September 3, 1985, had never
before received any warnings. On this occasion Genzano
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had been 1 hour late because he had a flat tire on his
way to work . The form issued to Genzano reads as fol-
lows: "Joe & I discussed the attendance policy. He is
aware that another day late or absent before December
3, 1986 will result in a written warning ." The form was
signed by Supervisor Craig Henning.
After he read the Respondent 's attendance policy to
Genzano, Henning stated that management knew he was
"pro-union" (which he was) and that it was disappointed
in him . Henning also stated that, because of the Union,
which had , 3 days before, won the Board election, and
Genzano's own support of it, privileges which were pre-
viously extended to employees prior to the election-
such as being able to make up a tardiness by working
late or switching days off-would no longer be ex-
tended.4
Genzano's testimony that employees were permitted to
make up late time without the issuance of warnings and
to switch days off is uncontradicted . Henning's testimony
that he was not "aware" of makeups and that he could
not "recall" employees switching days off is too ambigu-
ous to amount to a contradiction , and, in any event, it
comes from an unreliable witness . Genzano's testimony
in this respect is also in accord with the testimony of
other witnesses that Respondent 's no-talking policy was
more strictly enforced after the election . Henning's state-
ment to Genzano, in the context of giving him what was
in effect the first warning he had ever received , left no
doubt that the Respondent 's liberal policies would
change because of the election results and that Genzano
would feel the effects of this change because of his own
support of the Union . Such statements are clearly unlaw-
ful. See Rood Industries, 278 NLRB 160 , 163 (1986).
4. Discriminatory application of no-talking rule
The complaint also alleges that, on two occasions in
February 1987, the Respondent , through its supervisors,
prohibited slot mechanics from talking to slot attendants
in violation of Section 8(a)(3) of the Act. The General
Counsel seems to allege that the Respondent either did
not have a preelection rule prohibiting slot mechanics
from talking to slot attendants or that it did not enforce
such a rule before the election . The General Counsel
also alleges that either a new rule was promulgated after
the election or the old rule was enforced more stringent-
ly after the election, at a time when the slot mechanics
were attempting to organize the slot attendants who had
not participated in the Board election . The Respondent
alleges that it did have such a rule and that it was un-
changed and enforced in the same manner both before
and after the election.
* The above is based on the credited testimony of Genzano , who im-
pressed me as a reliable and straightforward witness. Henning , who had
left the Respondent 's employ in November 1986 and was working in a
supervisory position at another Atlantic City casino when he testified,
denied making the above statements Henning did not impress me as a
reliable witness I found his testimony both ambiguous and evasive Al-
though he was unable to recall specifics , he insisted that Genzano had
approached him several times and said he was antiunion; as I mention
later in this decision, I find this testimony implausible in view of other
uncontradicted testimony in this record I also found Henning not to be
precise in other aspects of his testimony . In short , I am unable to credit
Henning 's testimony in this case.
The operative general principles on this point are well
settled . An employer may prohibit solicitation-including
union solicitation-on work time and such prohibition is
presumptively lawful . However, such a prohibition may
not be discriminatorily enforced. Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 804-805 (1945); Wm. H. Block
Co., 150 NLRB 341, 343 (1964).
The evidence with respect to slot mechanics talking to
slot attendants on worktime prior to the election is as
follows.
Three mechanics, Genzano, Castrataro , and Parratto,
testified quite clearly that, prior to the election, there
was no enforcement of a no-talking rule. The testimony
of a fourth slot mechanic , now supervisor, Mark lanna-
cone, was unclear on this point . Because it conflicted
somewhat with statements made in his pretrial affidavit,
which he questioned , I do not accept all of his testimony
on this point . However, I do find plausible his apparent
testimony that the no-talking rule was not enforced
unless conversations interfered with work. Minguez, an-
other slot mechanic , was also unclear on this issue. He
seemed to adopt a statement in his pretrial affidavit to
the effect that in one preelection meeting a management
official told the mechanics that they should not talk to
the attendants at all and that this was not limited only to
conversations about unions . Later he said that he was not
positive whether the meeting was held before or after
the election . He did testify that prior to the election he
often spoke with the slot attendants, and supervisors,
who were also present, did not object. Although his in-
ability to pinpoint the date of the meeting makes Min-
guez' testimony on that point questionable , his testimony
about lack of enforcement of a no -talking rule is consist-
ent with that of Genzano, Castrataro, and Parratto.
Respondent offered the testimony of Director of Slot
Operations Mando Rueda who testified basically that
both before and after the election there was a no-talking
rule in effect. However, he did not , and, indeed, he was
not in a position to, dispute that such a rule was not en-
forced. Thus, I do not believe that his testimony bears on
the enforcement of the rule, and, to the extent that it
does, I find it unpersuasive . The Respondent also offered
10 appraisals of 6 different slot attendants wherein they
were criticized for excessive talking, both before and
after the election . The appraisals gave no details as to
whether the conversations were with slot mechanics;
indeed , there was no documentary evidence concerning
the discipline of slot mechanics at any time . Significantly,
the appraisals emphasize a criticism of excessive talking,
not a prohibition against all talking . The appraisals are
thus not really persuasive on the pertinent issue.
Based on my analysis of the evidence set forth above,
including my assessment of the reliability of the wit-
nesses who testified on this issue, I find and conclude
that Respondent did have a rule against slot mechanics
talking to slot attendants both before and after the elec-
tion . Rueda's testimony to this effect is plausible and
consistent with that of the General Counsel' s witnesses.
However, I also find that Respondent did not strictly or
uniformly enforce such a rule, at least against slot me-
chanics, unless there was interference with work.
HARRAH'S MARINA HOTEL & CASINO 1121
It is undisputed that, after the election and until some-
time in April 1987, the slot mechanics attempted to orga-
nize the slot attendants who had not been included in the
election unit.
The evidence of enforcement of the no-talking rule
after the election and after the slot mechanics started or-
ganizing the slot attendants is based on uncontradicted
testimony . Castrataro testified that, in a meeting held in
late December or early January, Lead Mechanic Charlie
Sanderson5 told a group of mechanics that they could
not talk to the attendants any more . Castrataro asked
whether they could talk about work-related matters and
Sanderson said yes but "not about union business." This
must have been a reference to the attempt to organize
the attendants since the meeting took place well after the
election . Parratto confirmed Respondent's newly an-
nounced enforcement of the rule. He testified that, in a
similar meeting, Jim Leonard, whom he identified as a
supervisor , in the presence of admitted Supervisor Frank
O'Brien , told another group of slot mechanics not to dis-
cuss union activities with the slot attendants . Parratto
reaffirmed his testimony a second time by stating that
Leonard "reemphasized" that the mechanics were not to
talk to the attendants "about union activities on the
floor." According to this uncontroverted testimony,
there was no reference to interference with work.
Also uncontradicted is testimony from Genzano and
lannacone that, in February 1987, Supervisors Frank
O'Brien and Brian Meany found them talking to slot at-
tendants . They were told to stop talking to the attend-
ants . Although their conversations did not involve union
activities , there was no interference with work and the
conversations appeared to be work related . In Genzano's
case this was clear . Although it is not so clear that Ian-
nacone's conversations were work related, it is obvious
that the conversations did not interfere with his work or
that of others. In neither case did the supervisor make an
effort to ascertain whether the slot mechanics were not
engaging in work-related conversations or whether the
conversations caused an interference with work. Gen-
zano was working on a machine when an attendant ap-
proached him and asked him about what he was doing.
The attendant wanted to know when the area would be
cleared because customers could not pass. Meany inter-
rupted the conversation and said only that Genzano
should not be talking to the attendants. There is no evi-
dence that Meany reprimanded the attendant . lannacone
was walking to an area to which he had been assigned to
work accompanied by a slot attendant . When he got to
the work area the slot attendant left. At some point
while lannacone was in transit O'Brien approached him
and told him to go to work. Later he was called to help
repair another machine . There were two other attendants
and a slot supervisor present when he arrived. lannacone
needed a key to complete his work and the supervisor
left to get one . At this point O'Brien came by and said
that lannacone should be working. Subsequently , Ianna-
cone had a conference with O'Brien about these matters.
In the course of the conference O'Brien told lannacone
that he should not be talking to the slot attendants.
5 In January 1987 Sanderson was elevated to slot repair manager
In these circumstances , I find that the Respondent did
indeed attempt to strictly enforce the rule prohibiting
slot mechanics from talking to slot attendants which had
not been strictly or uniformly enforced theretofore. The
reason for this more strict and disparate enforcement was
to prevent the slot mechanics from organizing the slot at-
tendants . This is demonstrated not only by separate inci-
dents of enforcement after the organizing campaign
began , but also by the uncontradicted evidence that the
Respondent 's officials made specific reference to union
activities when they announced the stricter enforcement
of the rule. Such enforcement was thus violative of Sec-
tion 8(a)(3) and (1) of the Act. See Angelica Healthcare
Services, 284 NLRB 844 (1987); Churchill's Supermarkets,
285 NLRB 138 (1987)
5. The discharge of Genzano
a. The facts
Joe Genzano was employed as a slot technician on the
so-called grave shift from September 5, 1985, until his
discharge on May 4, 1987.6 Genzano participated in the
effort of the slot mechanics to obtain union representa-
tion . He signed a union authorization card on the casino
floor in August 1986, attended several preelection meet-
ings, and spoke to other mechanics on behalf of the
Union, on a daily basis, on the casino floor, in the break-
room and in the cafeteria. He spoke in support of the
Union not only to employees on his shift, but also to
those on other shifts during the 1-hour period the shifts
overlapped . Several times he expressed his support of the
Union to Joe Kelly who was a slot mechanic prior to the
election but was promoted to a supervisory position after
the election.7
On October 23, 1986, as previously discussed, Gen-
zano was issued a written notice for being late and was
told that , because of the Union 's election victory and his
own support of the Union, certain work rules would be
tightened.
6 The grave-shift hours were from I to 9 am after early February
1987, before then the shifts were 10 hours in duration
r At the hearing former Supervisor Joe Kelly denied having any
prounion conversations with Genzano , indeed he testified that Genzano
told him that he was against the Union . I do not credit Kelly and another
former supervisor , Craig Henning, who also testified to this effect. Gen-
zano , whose testimony forms a consistent pattern of union support, im-
pressed me as a reliable witness. His testimony was clear and often cor-
roborated by other witnesses . Kelly and Henning , on the other hand, did
not impress me as reliable witnesses
In view of the uncontradicted testimony , documented hereafter, that
Genzano openly ordered a union jacket in front of his supervisor and
bantered with him about this fact in early March , I find it implausible
that he would have been sending a different message to two other super-
visors Furthermore , Kelly's testimony that Genzano showed him un-
signed union authorization cards in February-4 months after the union
election-as an example of his being against the union does not ring true
It is more likely that Genzano was passing out the cards to the slot at-
tendants whom he was trying to organize in February Kelly also testi-
fied that he mentioned this incident to Sanderson , his superior , however,
Sanderson did not corroborate Kelly on this point , although another su-
pervisor, Wren, testified that Kelly told him about Genzano's position on
the Union Kelly was evasive in other parts of his testimony and, based
on my assessment of his demeanor as well as the implausibility of his tes-
timony, I do not credit him
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After the election Genzano continued to attend union
meetings devoted to collective -bargaining issues between
the Union and Respondent . He also participated in an
ongoing effort-which began shortly after the election
and lasted at least through Genzano's period of employ-
ment-to organize the slot attendants who had not been
included in the election unit . According to the uncontra-
dicted testimony of Union Steward Mike Castrataro, two
slot mechanics from each shift were enlisted in this
effort.
In postelection meetings slot mechanics were told by
Respondent's supervisors not to talk to slot attendants
about union activities and Respondent discriminatorily
enforced its no-talking rule prohibiting slot mechanics
from talking to slot attendants . Genzano was, on one oc-
casion in February 1987, the subject of such enforce-
ment.
In early March , Genzano was in the slot tech shop at
the end of his shift ordering a union jacket from Union
Steward Mike Castrataro . Castrataro took Genzano's size
and other pertinent information as well as Genzano's de-
posit . Genzano's supervisor , Steve Tank, was also
present looking at pictures of the jackets. Genzano asked
Tank if he would also like to purchase a jacket . Tank re-
plied that he would , but that he would not want the
union insignia on his jacket.8
About 4:45 a .m. on April 7, 1987, Genzano injured his
shoulder at work while lifting a slot machine . Supervisor
Tank escorted Genzano to the Respondent 's medical
office, which is on the premises , and told him to go
home and return when he received a doctor's permission.
Because of the early morning hour only a nurse was
present at the medical office, but she arranged for an ap-
pointment with the casino doctor who was on duty only
during daylight hours . Genzano was given a "work
injury" note which excused him from work and set forth
his appointment.
Genzano saw the casino doctor, Dr. Schuerer, at 10:30
a.m., as scheduled . Dr. Schuerer ordered x-rays. That
evening, before the beginning of his shift , Genzano
called Supervisor Don Holbrook and told him he would
not be in to work because of his injury . Holbrook said he
was aware of Genzano 's situation and would notify Tank
of the call . Genzano later called Tank and mentioned
that the doctor thought the injury was "pretty serious."
He also asked Tank whether he had to call in every
night . Tank said that it was not necessary to do so every
night because Respondent 's medical office would keep
him informed of Genzano 's situation.
On April 9, Genzano again saw the casino doctor who
prescribed some medication and made an appointment
for Genzano to see a specialist , Dr. Lawrence Naame.
That appointment was scheduled for April 14. Genzano
also arranged with the nurse to check on workmen's
compensation or disability payments.9
"The above incident is based on the uncontradicted testimony of Gen-
zano and Castrataro. Tank did not testify in this proceeding
9 My findings with respect to Genzano 's visits to the casino doctor are
based on the Respondent 's medical records as well as the testimony of
Genzano and a former nurse, Beatrice O'Hanlon , who was apparently
present at all but Genzano 's first visit Both impressed me as honest wit-
nesses and I have attempted to resolve any conflicts between them by
On April 14 Genzano saw Dr . Naame who scheduled
a further appointment and tests on April 21. Genzano re-
ceived two notes from Dr . Naame on April 14, one
scheduling him for tests on April 21 and the other indi-
cating that he was unable to work for the next week.
Later that day Genzano went to Respondent 's medical
office. He showed the nurse the two notes from Dr.
Naame . The nurse scheduled a followup appointment
with Dr. Schuerer and gave Genzano another "work
injury" note permitting him to return to work on April
16 but with the notation "tentative" written on it. The
nurse then told Genzano to report to the slot shop. t o
Genzano proceeded to the slot shop where he spoke to
Supervisor Don Wren in the presence of employees
Mike Castrataro and Gary Minguez . Genzano handed
Wren the two notes from Dr . Naame as well as the
nurse's note. He told Wren that he had appointments
with Dr . Naame and the casino doctor . Wren took the
notes, made copies of them and returned the originals to
Genzano . He told Genzano to "keep in touch."11
relying on the medical records , Genzano's superior recall , and the gener-
al plausibilities.
One conflict which deserves mention is whether Genzano was told by
O'Hanlon that she would keep his department informed of his status.
Genzano says she did . She says she did not O'Hanlon 's answer was
based on an alleged policy that employees were to take notes excusing
them from work or sending them home to their supervisors I have diffi-
culty seeing how this bears on whether or not O 'Hanlon told Genzano
she would keep his department informed of his status . The only notes
O'Hanlon could have referred to were the "work injury" notes given to
employees by her office Only two such notes were given to Genzano-
one on April 7 and another on April 14; the first was either taken to his
supervisor or his supervisor was notified of it, the second was taken to
Wren Thus, Genzano fully complied with this alleged policy But
O'Hanlon did not give Genzano notes on April 9, 16, or 23, and she did
not tell Genzano that he was to keep his department informed about his
condition . Thus , O'Hanlon 's reference to an internal policy does not help
me to resolve this conflict in testimony On the other hand , uncontradict-
ed testimony establishes that Tank told Genzano that the medical office
would keep him, Tank , informed of Genzano's condition . So whether or
not O'Hanlon made a similar remark , Genzano certainly had reason to
rely on Tank 's statement , especially since he was never notified to the
contrary , namely , that he had to keep his supervisors notified of his
status.
10 Nurse Beatrice O'Hanlon initially testified that she did not recall
that Genzano, when he came in to see her on April 14, showed her Or
Naame's April 14 note stating that he would be unable to work for an-
other week . But she later testified that he did show her that note on
April 16 , at which time he told her the contents of both notes-that he
was to be off work for a week and that he was to have tests on April 21
Since both notes were dated April 14 and since Supervisor Wren admit-
tedly received one of Dr . Naame's April 14 notes from Genzano later
that day, I find it more likely that Genzano showed both notes to O'Han-
Ion on April 14.
In his testimony Genzano failed to mention that he visited the casino
medical office on April 16 . He also testified that he was scheduled to see.
and actually saw, the casino doctor on April 22 The Respondent's medi-
cal records show that he saw the doctor on April 16 and April 23, al-
though it is possible that the latter appointment was scheduled for April
22 My findings will assume that the dates in the medical records are cor-
rect
' I The above is based on Genzano 's testimony which was essentially
corroborated by Castrataro and Minguez . Wren testified that Genzano
told him that he "may return to work on April 22, pending a test he was
going to have done," and that as a result he scheduled Genzano for work
on April 22 1 do not credit Wren.
Wren admitted receiving the note setting forth the appointment for
tests, but denied receiving the one stating Genzano 's inability to work.
Although the discrepancy between Genzano and Wren on this point is
Continued
HARRAH'S MARINA HOTEL & CASINO 1123
After Genzano saw Dr. Naame and had his tests on
April 21, he was given a note by Dr. Naame stating that
he "continues to be unable to work next 2 weeks."
On April 23 Genzano saw the casino doctor who con-
firmed Dr . Naame's diagnosis and scheduled another ap-
pointment with Genzano for May 5 . When Genzano
made this appointment he talked with the nurse about his
disability pay and showed her Dr. Naame's April 21 note
stating that he was unable to work for another 2
weeks. 12
On the morning of April 24, Genzano called his super-
visor, Steve Tank, to update Tank on his situation. Tank
told him that Charlie Sanderson wanted to talk to Gen-
zano and would be calling him later that day. Sanderson
did call the next day, April 25, and asked Genzano to
come in for a meeting on Monday, April 28 at 11 a.m.
At that meeting Genzano appeared with Union Stew-
ard Castrataro . In attendance for Respondent were
Labor Relations Manager Mike Lutz, Sanderson, and
Wren . Lutz asked Genzano to describe what happened
with his injury from "start to finish" and he requested
the doctors' notes which Genzano provided . In addition
to providing the doctors ' notes, Genzano told Lutz that
he was still under medical care . Lutz then stated that
Genzano was being considered a "no call/no show" and
said that management would review the situation and be
back in touch with him . After another meeting on May
4, Genzano was informed that he was being terminated.
Respondent 's personnel action form memorializing the
discharge lists Genzano's last day of work as May 4,
1987, and the reason for the termination as "no call/no
show on 4/23/87 and 4/24/87."13
not crucial , an analysis of the evidence confirms Genzano 's credibility.
Understandably , neither Castrataro nor Minguez could specify which or
how many notes were given to Wren But Wren , who presumably was
given the notes and made copies of them , never did produce and identify
the copies he received . Although Castrataro identified a document
showed to him by counsel for Respondent at the hearing , he could not
possibly have been in a position to state that this was the document
copied by Wren Indeed , the one note that Wren said was not given to
him-the one stating that Genzano would be out for a week-was the
one note it would have been in Genzano 's interest to produce if he pro-
duced any at all Moreover , this note simply confirmed what Wren al-
ready assumed-that Genzano would be out for another week
Far more importantly, however, Minguez , who was still employed and
thus testifying against his employer 's interests , specifically corroborated
Genzano that Wren simply told him to keep "in touch ." Neither he nor
Castrataro testified to any statement by Genzano that he would return to
work on any date certain Nor would it have been plausible for Genzano
to have made such a statement . Nobody could know the results of his
tests and he had yet to see both Dr Naame and the casino doctor Final-
ly, Wren 's own testimony is implausible . Wren 's testimony portrays Gen-
zano as speaking quite tentatively about his return to work . Yet I am
asked to believe that , on this tentative language , Wren scheduled Gen-
zano to work on April 22 without even telling him, "Well , Joe, I am
going to put you down to work on April 22." 1 cannot credit Wren's
testimony.
12 Nurse O 'Hanlon confirmed that Genzano showed her this note.
13 The above is based primarily on the testimony of Genzano who was
essentially corroborated by Castrataro Only Sanderson testified for Re-
spondent on this point . He testified that Genzano never mentioned at the
April 28 meeting that Dr Naame had ordered Genzano not to return to
work I find Sanderson 's testimony on this point completely implausible.
Genzano , who obviously knew that his job was on the line , had every
reason to defend himself with what was clearly his strongest piece of evi-
dence , Dr Naame 's note, which he had already shown to the casino
medical office Also incongruous was Sanderson 's attempt to identify the
days that Genzano was considered a no call /no show; Sanderson's ver-
b. Analysis
The governing principles in a discriminatory discharge
case are as follows. The General Counsel proves a viola-
tion if she shows that a reason for the discharge is that
employee's union activities, unless the employer can
demonstrate that the employee would have been dis-
charged for a lawful reason even absent the union activi-
ties . NLRB v. Transportation Management Corp., 462 U.S.
393, 400, 403 (1983), approving the Board 's rule in
Wright Line, 251 NLRB 1083, 1089 (1980). However,
where it is shown that the employer's proffered justifica-
tion is not the real reason but a pretext, that showing not
only amounts to affirmative support for the finding of
discrimination , 14 but also establishes that the adverse
action would not have been taken in the absence of
union activities . Wright Line, supra , 251 NLRB at 1084;
Painters Local 277 Y. NLRB, 717 F.2d 805, 812 (3d Cir.
1983); Arthur Young & Co., 291 NLRB 39 (1988 ), citing
Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
Applying these principles to the instant case I find that
the General Counsel has proved that a reason for Gen-
zano's discharge was unlawful-his union activities-and
has also proved that the reason advanced by the Re-
spondent was not a real reason but was, instead, a pre-
text. Thus, the General Counsel has proved a violation.
Genzano was a highly regarded employee . On Febru-
ary 10, 1987, less than 3 months before his discharge, he
was given a commendation for his work. His supervisor
at the time, Joe Kelly, testified that Genzano was doing
..an exceptional job." However , Genzano was also an
active union supporter prior to the election and a leader
in the effort to organize the slot attendants after the elec-
tion . The Respondent's union animus is clear on this
record . It threatened to and did strictly enforce work
rules because of the Union in violation of the Act. These
unfair labor practices touched Genzano as he was the
subject of a threat for his own union activities on one oc-
casion and the subject of discriminatory enforcement of
the no-talking rule which was addressed to halting the
organization of the slot attendants . In addition, Gen-
zano's union activities were well known. Supervisor
Henning specifically threatened him. Supervisor Kelly
had talked to him about the Union when he was still an
employee and Supervisor Tank saw him ordering a union
jacket in early March, just 2 months before he was fired.
The record also makes clear that these lower level super-
visors reported Genzano's union activities to their superi-
ors. Kelly reported the incident, in February, in which
Genzano showed him some union authorization cards to
either Wren or Sanderson . Wren testified that the super-
visors generally talked about union activities , and he was
the one who allegedly scheduled Genzano to work with-
out clearing the matter with him. Sanderson actually
made the decision to discharge Genzano. In these cir-
cumstances, it is a fair inference that a reason for Gen-
sion differed from the dates mentioned in Respondent 's personnel action
form. I do not credit Sanderson.
14 Shattuck Denn Mining Corp. v. NLRB, 362 F 2d 466, 470 (9th Cir.
1966); NLRB Y Eagle Material Handling, 558 F 2d 160, 170 (3d Cir
1977); Asociac,on Hospital del Maestro, 291 NLRB 198 (1988).
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
zano's discharge was his union activities , particularly his
recent efforts to organize the slot attendants.
The Respondent 's explanation for Genzano 's discharge
fails to withstand scrutiny and I find it was a pretext to
mask the real reason for his discharge . The Respondent
argues that Genzano was expected to return to work on
April 22 and that he failed to either call in or show up
for work in violation of its written attendance policy
which provides for discharge for 2 no call /no shows
within a 12-month period. The difficulty with this expla-
nation is that the Respondent 's entire defense is based on
the discredited testimony of Wren . Because Genzano did
not tell Wren that he was returning to work on April 22,
and, indeed , had not been cleared by the casino doctor
to return to work , there was no basis for the Respondent
to schedule him for work or to apply the no-call/no-
show policy to him. Genzano was injured on the job and
was under the care of the casino doctor whose office
was on the premises. Moreover, Genzano was specifical-
ly told by his supervisor, Steve Tank, that he did not
have to call in daily and that the medical office would
keep the slot department informed of his status. He was
also told that he should not return to work without a
doctor's permission . Thus, from April 8 to 14 , Genzano
did not call in; nor did he call in during the week of
April 14. At no time during this period was Genzano
told he was required to call in or that the slot depart-
ment was not keeping in touch with the medical office.
The reason for this is obvious : Respondent knew of his
situation and did not require him to call in. Accordingly,
there is absolutely no basis for applying the no -call/no-
show policy to Genzano.
Other factors show the pretextual nature of the dis-
charge . The Respondent allegedly expected Genzano to
come to work on April 22, 23, and 24 even though it
knew he was undergoing medical tests on April 21. But
it penalized him for missing those days without attempt-
ing to get in touch with him to ask where he was or the
results of his tests . It did not even apparently contact the
casino doctor . That would have been the course fol-
lowed by an employer motivated by business consider-
ations . But the Respondent apparently did not care why
Genzano failed to show up ; it cared only about secretly
applying technical reporting requirements upon a union
activist whom it wanted to discharge . Moreover , neither
on April 24, when Genzano talked to Tank , nor on April
25, when he talked with Sanderson , was Genzano told
that he was expected to come to work or asked why he
had failed to call in. At this point Genzano had visited
the casino doctor and Respondent 's medical office had
been notified of Dr . Naame's specific finding that Gen-
zano was considered disabled through April 28. Yet,
here again , the Respondent did not indicate any concern
for missed work, but rather acted as if it were setting
Genzano up for discharge . Indeed , it was not disposed to
change its course even in the April 28 interview when
Genzano presented the Respondent 's officials with Dr.
Naame's note . Finally, there is no evidence that Gen-
zano's immediate supervisor, Tank, was consulted about
what he had originally told Genzano about calling in,
about scheduling him for work , and determining whether
he was expected to come to work, much less whether he
should be disciplined or discharged . All of these consid-
erations lead to the inference , which I make, that the Re-
spondent was looking for a pretext to fire Genzano for
his union activities.
Further evidence of the pretextual nature of the dis-
charge is found in the Respondent 's application of the
no-call/no-show policy to Genzano . Thus, even assum-
ing that Genzano was expected back on April 22, the
Respondent violated its own policy which requires the
existence of a written warning in an employee's file
before discharge . Genzano had no written warning and
indeed was considered an exceptional employee, an un-
likely candidate for discharge under ordinary circum-
stances . The Respondent 's explanation for discharging
Genzano without a written warning simply reinforces
the finding of pretext . The Respondent argues that no
written warning is required when the no call/no shows
are consecutive . In view of the very detailed nature of
the written attendance and disciplinary policy, one
would have expected to find such an exception in the
written policy itself. However, this alleged exception is
not found in the written policy . Instead Respondent
relies on the testimony of a discredited witness, Sander-
son, and the inference to be drawn from documentary
evidence , that several other discharged employees had
two consecutive no call/no shows . I, of course , cannot
rely on Sanderson 's bald testimony ; nor does the docu-
mentary evidence prove the Respondent 's point . There is
no evidence of the circumstances surrounding the other
no call/no shows, much less whether there were written
warnings in the files of the discharged employees. Nor is
there any evidence that these other employees had suf-
fered on-the-job injuries and were under the care of the
casino doctor, as was Genzano . Clearly, such an excep-
tion as is now advanced by the Respondent to its written
policy either does not exist or, at least, did not exist until
after Genzano was fired . Most telling is the Respondent's
explanation that "the department did not have an oppor-
tunity to issue [Genzano] a final written warning after
the first no call/no show ." (Br. 29 fn . 4.) The Respond-
ent's written policy recognizes that a discharge should
occur only if an employee has been warned and given an
opportunity to correct what he did wrong . In this case
Respondent did not even attempt to reach Genzano but
rather blames him for making it impossible for it to issue
the written warning which its policy requires before dis-
charge . It did not treat Genzano as an employee coming
back from a medical leave of absence , but rather as a
person whom it was seeking to discharge . The fact that
Respondent 's ostensible reason for the discharge is a false
reason offers further support that the real reason was an
unlawful one-Genzano's union activities.
In sum, Genzano was a known union supporter. He
was the focus of Respondent 's union animus and he was
fired in the midst of the effort-of which he was a
part-to organize the slot attendants . He was also fired
during a period of medical absence due to an on-the-job
injury for a reason which turned out, upon analysis, to
be false . Thus, the General Counsel has shown that the
Respondent fired Genzano for an unlawful reason-his
union activities, and Respondent has failed to show it
HARRAH'S MARINA HOTEL & CASINO 1125
would have fired him for a lawful reason even apart
from his union activities . Accordingly, I find that the Re-
spondent 's discharge of Genzano is violative of Section
8(a)(3) and (1) of the Act.
C. The Bargaining Violations
1. Initial bargaining and the unilateral change of
work schedule
a. The facts
The parties began negotiations on December 5, 1986.
They continued to negotiate through February 18, 1988.
The Union's chief spokesman at the start of negotiations
was Vice President John Amadeo . Its bargaining com-
mittee included union officials, John Crenny, Dan
Rolenc, Joe Amison , and employee Richard Hagarty. In
May 1987 Amadeo was replaced by Union President Joe
McLaughlin and shortly thereafter Rolenc was removed
from the committee and Mike Castrataro replaced Ha-
garty. The Respondent's chief spokesman was attorney
H. Thomas Felix II. The remaining members of its bar-
gaining committee were Mike Lutz, Pat Browne, and
Larry Fowler. At some point during the negotiations
Lutz and Browne were replaced by Tom Ballance and
Kevin Smart.
At the initial meeting on December 5, 1986, Amadeo
informed the Respondent 's negotiators that the Union
would seek a provision maintaining the present work
schedule for slot mechanics, that is, four 10-hour days
per week . He also stated that the Union was seeking a
substantial wage increase as its "number one priority."
Amadeo also stated that the Union would seek to retain
for unit employees the existing 401(k) plan which provid-
ed for matching employer contributions to employee re-
tirement savings accounts . In addition , Amadeo said that
the Union would seek to add a new pension program
funded entirely by Respondent. There was no indication
by the Respondent that it had any plans to change or
alter existing benefits or terms for unit employees. How-
ever, the parties did agree to attempt to resolve noneco-
nomic issues before discussing economic issues.
At the second meeting on December 18, 1986, the
Union presented a complete written copy of its initial
proposal. The parties reviewed the document. Amadeo
reiterated the Union 's desire to retain the existing four
10-hour days work schedule which was embodied in a
specific written proposal . He said that this was the
second most important issue, after wages, for the em-
ployees . The Respondent 's negotiators made no specific
response to the Union's work schedule proposal or Ama-
deo's comments about it.' 5
15 The retention of the present work schedule was reflected in sec. 19
of the Union 's proposal which read as follows
(A) Workday
The regular work day shall consist of ten ( 10) consecutive hours
(B) Workweek
The regular workweek shall be for four (4) consecutive days Sec
19 also provided for overtime after 10 hours in a day or 40 hours in
a week
The parties next met on January 13, 1987. At the
outset there was a brief discussion of attempts by the unit
employees to organize the slot attendants . Felix said that
Hagarty was soliciting cards from the slot attendants on
the casino floor during work time . He asked the Union
to stop this activity and the Union apparently agreed to
stop work time solicitation.
Immediately thereafter Respondent presented its first
draft contract proposal . During a review of the proposal,
the Union tentatively agreed to the Respondent's pro-
posed preamble , nondiscrimination , use of genders, and
separability clauses . It was also agreed that any tentative
agreements to parts of a contract would be contingent on
a final and complete agreement.
During a discussion of Respondent's proposed manage-
ment-rights clause-which gave Respondent, among
other things, the exclusive right to determine hours of
work for employees and to which the Union objected-
Felix mentioned , according to his own testimony, that
the Respondent "may be proposing to change the shifts."
There was no extended discussion of this point and no
specifics mentioned by Felix.' 6
The parties ' fourth bargaining session took place on
January 28, 1987. At the outset of the meeting, Felix an-
nounced that Respondent was going to change the hours
and shifts from the existing four 10-hour days to five 8-
hour days and that this change would be effective Febru-
ary 9, 1987. Felix explained the change by stating that
the Respondent had held off the change for some time,
that the supervisor 's hours had been changed and that
this was a "business decision ." Amadeo protested , stating
that the change was a "kick in the balls" and pointing
out that the Union had a specific proposal on this very
issue on the bargaining table . He also asked that the Re-
spondent hold off on the change . Respondent refused.
Felix emphasized that the Respondent was firm on this
matter and that it would not reconsider its decision."
IS The above, and all my findings concerning the bargaining meetings,
are based primarily on uncontradicted testimony or the composite of
what I viewed to be credible testimony . Where there are conflicts I have
attempted to resolve them based on my assessment of the reliability of
the witnesses , including their demeanor , the quality and the extent of cor-
roboration , and the inherent plausibility of the testimony , considering also
the documentary evidence , particularly the written proposals and the
notes of some of the participants . On the specific issue involved here, nei-
ther of the Union 's witnesses could recall any discussion about a possible
change in shifts on January 13
Respondent 's witnesses said that Felix did mention a possible change in
shifts although none was able to describe what transpired in any detail
Thus, I find that the matter was simply mentioned briefly by Felix with
no elaboration or discussion I specifically reject Browne's testimony that
there was an extended discussion of the work schedule issue at this meet-
ing This was inconsistent with the testimony of the other witnesses as
well as with Browne 's own notes.
17 Two union witnesses specifically testified that Felix said that the
matter was "non-negotiable " Respondent 's witnesses denied that those
specific words were used but they grudgingly conceded on cross-exami-
nation, after being shown bargaining notes prepared by Respondent, that
Felix said that Respondent was "firm" on the change , that it would not
"reconsider," and that he, Felix, did not have "any control over how the
casino operated" and had to be guided by Respondent's "business deci-
sions ." Browne also grudgingly conceded that Amadeo said, in response
to Felix's announcement , that the Union had proposed language "regard-
ing continuation of the four ten hour days " Thus, whatever language
was used , it is clear that Respondent was adamant and uncompromising
Continued
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That same day, January 28, 1987, a memo was posted
in the slot repair department addressed to all slot repair
personnel . The memo stated as follows:
As stated during the negotiations . . . please be ad-
vised that effective February 9, 1987, all slot me-
chanics will be changing from four 10 hour shifts to
regular 5 day, 8 hour shifts.
A new schedule will be posted by Monday, Febru-
ary 2 , 1987, so that you can become familiar with it
and prepare for it.
On February 2, the Union filed a charge protesting the
change, but, on February 9, the change was implemented
as previously announced . 18 I find that the Respondent's
conduct with respect to the announcement and imple-
menatation of the change was unlawful.
b. Analysis
The Supreme Court has held that "an employer's uni-
lateral change in conditions of employment under negoti-
ation" is tantamount to a "refusal to negotiate in fact."
NLRB v. Katz, 369 U.S. 736 , 743, 745-746 (1962) (em-
phasis in the original). Thus, "absent a valid, preexisting
impasse , or the consent of the union , an employer,
during the course of negotiations , is not free to imple-
ment proposed changes or [even] those tentatively
agreed to by the parties ." Marriott In-Flite Services, 258
NLRB 755 fn . 2 (1981). See also Winn-Dixie Stores, 243
NLRB 972 (1979 ); Gresham Transfer , 272 NLRB 484,
485-486 ( 1984). The employer 's duty to refrain from
such unilateral changes "extends beyond the mere duty
to give advance notice and an opportunity to bargain; it
encompasses the duty to refrain from implementation
unless and until an overall impasse has been reached on
all bargaining subjects ." Gresham Transfer , supra, 272
NLRB at 486.19
In the instant case , the evidence shows that Respond-
ent did not bargain about the work schedule issue before
announcing and implementing its change in the work
schedule of employees . As I have indicated, the an-
nouncement was made at the very beginning of the only
meeting devoted to the subject even though the Union
had a specific bargaining proposal on the table relating
to this issue . The Respondent 's announcement of the
change included the date of implementation 12 days
thereafter . Despite the Union 's protest both on the merits
at this meeting and was impervious to both Amadeo's objection on the
merits and his suggestion that Respondent hold off on implementing the
change Amadeo's position was that the matter was a subject of negotia-
tions and it is clear that he did not believe that negotiations on this point
had been exhausted Indeed , the fact that the Respondent announced the
change first and expressed its unwillingness to alter its position made any
subsequent discussions mere posturing and not true bargaining
is Crenny testified about a conversation after the January 28 meeting
with an of offical of Respondent concerning the filing of the unfair labor
practice charge I do not accept his testimony on this point. However,
contrary to the Respondent , I do not find that this requires me to dis-
credit all of his testimony about the bargaining meetings Most of it was
uncontradicted or consistent with or corroborated by other credible wit-
nesses
19 Even after impasse , however, "a unilateral change cannot be made
unless it is reasonably encompassed within the employer 's pre-impasse
proposal " Cisco Trucking Co., 289 NLRB 1399 (1988)
and on the date of implementation , the Respondent pre-
sented the implementation in an uncompromising
manner . The Respondent never deviated from its posi-
tion that the change it had decided on would go into
effect and that it would go into effect on the date that it
had decided . There was no practical difference between
the announcement and the implementation . What fol-
lowed therefore was not bargaining at all but the sterile
discussion of a fait accompli . See Schmidt- Tiago Con-
struction Co., 286 NLRB 342 (1987).
The Union did not consent to the implementation of
the change. It objected to the substance and to the
timing of the change and asked that Respondent consider
its own proposal . It is obvious that the Union insisted on
further bargaining . There can thus be no serious conten-
tion that the Union clearly and unmistakably waived its
right to bargain over the work schedule issue . See Cisco
Trucking Co., supra ; Rockwell International Corp., 260
NLRB 1346, 1347 (1982).
Indeed , the Respondent had not even put a work
schedule proposal on the bargaining table ; the only bar-
gaining proposal it had made even remotely related to
the issue was that part of its broad management-rights
clause which gave it the exclusive right, among other
things, to set shift and work hours . Even Respondent
does not contend that the Union had consented to the
management-rights clause before Respondent's an-
nounced work schedule change or that the parties had
fully exhausted discussions on that issue before the Re-
spondent's announcement . Accordingly , it is difficult to
see how Respondent 's announcement could even be con-
sidered a bargaining proposal which would trigger the
necessary conditions for an "impasse" exception to the
rule against unilateral changes . See Schmidt- Tiago, supra
at fn. 10.
In any event, even if I were required to consider the
"impasse" exception in this case , I would find that there
was no impasse here either on all contract issues or on
the work schedule issue alone . As the Board has stated,
"whether a bargaining impasse exists is a matter of judg-
ment." The relevant factors are the "bargaining history,
the good faith of the parties in negotiations, the length of
the negotiations , the importance of the issue or issues as
to which there is disagreement , [and] the contemporane-
ous understanding of the parties as to the state of negoti-
ations." Taft Broadcasting Co., 163 NLRB 475, 478
(1967), affd . sub nom. Television Artists AFTRA v. NLRB,
395 F .2d 622 (D.C. Cir. 1968).
Applying the Taft principles here, I find that the par-
ties were not at impasse when Respondent announced
and implemented the change in work schedule . First of
all, in terms of bargaining history, the parties were bar-
gaining over an initial agreement which obviously takes
more time to achieve than successor agreements. More-
over , the change was implemented early in negotia-
tions-at the fourth bargaining session-when the parties
had barely started to talk . Before Respondent's an-
nouncement the parties had agreed to only 4 minor and
noncontroversial issues . They had not even started dis-
cussing economic issues or fully explored the discussion
of other noneconomic issues which might result in move-
HARRAH'S MARINA HOTEL & CASINO 1127
ment on seemingly stalled issues . As one court of appeals
has stated , "bargaining does not take place in isolation
and a proposal on one point serves as leverage for posi-
tions in other areas ." Korn Industries v. NLRB, 389 F.2d
117, 121 (4th Cir. 1967).
Second , the Respondent did not demonstrate good
faith in negotiations . Even considering only the work
schedule issue, the first serious discussion of the issue
took place on the same day, and immediately after, the
Respondent announced the change . The Respondent
took an uncompromising position on the matter, insisting
that the change would take place 12 days later. The Re-
spondent refused either to alter its position on the merits
or the effective date in the face of vehement objections
on both counts from the Union. The Respondent took no
cognizance of the fact that the Union had a specific bar-
gaining proposal on the table involving work schedules.
Indeed , the Respondent 's announcement was made first
and its alleged bargaining followed-a sort of "sentence
first, trial later" scenario one expects in Wonderland but
not in a negotiating session which is dedicated to good-
faith bargaining . In short, the Respondent 's uncompro-
mising and adamant position was reflective of a "take it
or leave it" approach rather than "a serious attempt to
resolve differences and reach a common ground." NLRB
v. Insurance Agents, 361 U.S. 477, 485, 487, 488 (1960).
As for the length of negotiations , at the time of Re-
spondent 's announcement , the parties had met only three
times and reached agreement on only a few minor and
noncontroversial matters . They were to meet a total of
18 times and for another 11 months before bargaining fi-
nally broke off. Surely the negotiations had not gone on
long enough for the parties to have exhausted all possi-
bilities of reaching agreement either on the work sched-
ule issue or other issues which might have led to com-
promise or agreement on the work schedule issue.
As for the importance of the issue in dispute , there is
no doubt that the Union viewed the work schedule issue
as an important one. Its own proposal to continue the
present work schedule was on the table. This apparently
was also an important issue for Respondent . Its very im-
portance requires a fuller exploration than the parties
gave it on January 28. By the same token , there was no
evidence that either party had taken the position on Jan-
uary 28 that without a work schedule agreement there
would be no contract.
Finally, it is clear , and I find, that there was no con-
temporaneous understanding by both parties that they
had reached impasse . The Respondent 's self-serving view
that impasse had been reached is not determinative.
There is no evidence that the Union agreed that the par-
ties had fully exhausted the work schedule issue or other
contract issues . Its statements and conduct were consist-
ent with a desire to consider the issue further. Indeed,
the Union filed an unfair labor practice charge within a
few days of the Respondent 's announcement . According-
ly, I cannot find that the parties had reached a point at
which there was "no realistic possibility that continu-
ation of discussion at that time would have been fruit-
ful." Television Artists, supra, 395 F.2d at 628. See also
Sacramento Union, 291 NLRB 552 (1988).20
In these circumstances , I find that Respondent unilat-
erally changed the work schedule of unit employees
without bargaining in good faith. This was done early in
negotiations at a time when the Union did not consent to
the change and the parties had not reached a legitimate
impasse . Accordingly, the Respondent 's unilateral
change was violative of Section 8(a)(5) and (1) of the
Act.
2. The bargaining from March 1987 through
February 1988
a. The facts
By March 12, 1987-the date of the fifth bargaining
session-the parties had agreed on only a few minor
issues and were working primarily from the Respond-
ent's contract proposals . In addition to tentative agree-
ment on the Respondent 's proposed preamble, nondis-
crimination , use of genders and separability clauses, the
parties had tentatively agreed to certain portions of the
Respondent 's proposed grievance procedure.
Some of the main open contract issues were as fol-
lows:
.he Union's proposal included a grievance procedure
culminating in final and binding arbitration , seniority for
layoff, recall and severance pay, limitation of discipline
to "just cause," union security , use of a bulletin board
and a joint committee on safety, as well as the retention
of the existing work schedule . The Union's proposal,
unlike that of the Respondent , also included economic
items . The Union sought to retain all existing benefits, in-
cluding the Employee Stock Ownership Plan (ESOP),
tuition aid , the existing 401(k) plan and the practice of
paying employees at 1-1/2 times their hourly rate for
hours worked in excess of either 8 or 10 hours per day.
The Union also sought an increase in a number of bene-
fits including insurance, vacations, holidays, sick days,
and shift differentials and premium pay.
The Respondent 's proposal included a grievance-arbi-
tration clause and seniority provisions different from
those proposed by the Union, broad management -rights,
no-strike, no-lockout, and "entire agreement" or zipper
20 1 have found that there was no impasse whether one considers the
overall negotiations or only the work schedule issue However, contrary
to the Respondent , impasse cannot be determined on a piecemeal basis
Although an overall deadlock can be caused by disagreement over one
issue , that issue must be so "critical " that it "creates a complete break-
down in the entire negotiations Only in this latter context where there
has been a complete breakdown in the entire negotiations is the employer
free to implement its last , best , and final offer " Sacramento Union, supra
For example, in the two cases cited by the Respondent on this point
(Reply Br 12), the parties agreed that certain issues which later resulted
in deadlock were ones that had to be resolved in order to reach an over-
all agreement . In Western Publishing Co, 269 NLRB 355 (1984), the
union "never yielded on its insistence that fringe benefits must be
provided for in any agreement reached ." (Id. at 359 .) Likewise, in
Thomas Sheet Metal Co., 268 NLRB 1189 (1984), the parties ' bargaining
focused only on the issue of zone and travel pay This is not the situation
here Moreover, in both cases cited by the Respondent , the parties had
numerous and lengthy meetings on the issues which later became the sub-
ject of deadlock In these particulars as well the instant case is distin-
guishable
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clauses and a game integrity clause which gave Respond-
ent exclusive discretion to disregard any portion of the
contract which it believed might jeopardize the integrity
of its operations. The Respondent had not yet submitted
or outlined economic proposals.
At the March 12, 1987 bargaining session the Re-
spondent presented its third draft contract proposal. The
parties agreed on a provision covering probationary em-
ployees as well as the remainder of the Respondent's
grievance procedure proposal and most of its proposal
on arbitration. They also tentatively agreed on portions
of the Respondent 's seniority proposal as well as its
overtime proposal.
The sixth bargaining session was held on March 23,
1987. At this meeting the Union tentatively agreed to the
Respondent's proposal on stewards and parts of its pro-
posal on promotions, although the Union objected to the
Respondent's demand that promotions be based on its as-
sessment of skill and ability rather than seniority. The
Union also abandoned its demand for a safety committee
and tentatively agreed to the Respondent's proposal on
safety.
The parties next met on May 22, 1987. At this meeting
Union President Joseph McLaughlin replaced Amadeo
as the Union's chief spokesman. The parties reviewed the
status of negotiations and McLaughlin emphasized a
desire to reach a complete agreement. To that end
McLaughlin offered to withdraw some pending unfair
labor practice charges and to stop further organizing ac-
tivities at the Respondent 's premises.21
McLaughlin also asked Felix to specify areas which
the Respondent regarded as particularly significant. Felix
listed the Respondent's proposed management-rights,
game integrity and zipper clauses . McLaughlin said he
would have the Union's attorney attend a bargaining ses-
sion to help work out game integrity language and he
said the parties should easily be able to resolve their dif-
ferences on the management -rights and zipper clauses.
The eighth bargaining session took place on June 15,
1987. The parties reached tentative agreement on the Re-
spondent 's proposed recognition clause as well as the Re-
spondent's proposals on arbitration and sole employment
a' As to bargaining sessions on and after May 22 , 1 have placed great
reliance on the testimony of McLaughlin because I found him to be the
most candid and trustworthy witness of those who testified about the bar-
gaining sessions His testimony was detailed and generally uncontradicted
or corroborated by others . However , at some crucial points, it conflicts
with that of the Respondent 's negotiators, particularly Felix Where it
does, I credit McLaughlin . I do not accept Felix's testimony which I
found generally unreliable Felix 's testimony on direct was often conclu-
sory and undetailed and he seemed grudgingly to concede points on
cross-examination when shown bargaining notes taken by other members
of the Respondent 's bargaining team Nor did he exhibit the kind of
candor that I observed in McLaughlin or Crenny
The parties have clashed on the question of whether the Respondent
promised at the May 22 session and others to present the Union with a
good economic package and whether the Union , in reliance on that
promise , made numerous concessions at this and subsequent meetings.
Apart from the difficult matter of determining subjectively what might
be perceived as a good offer , I do not resolve this specific question be-
cause I do not believe the testimony on either side is clear on the point. I
do note , however , that the Union did make a number of important con-
cessions after McLaughlin came on the scene which demonstrated, in my
view, the Union 's desire to reach agreement . The Respondent 's conces-
sions were not as numerous or as significant.
and most of its proposal on seniority. The parties also
tentatively agreed on the recall of employees issue after
the Respondent agreed to give the Union notice of re-
calls from layoff.
McLaughlin stated the Union's objections to Respond-
ent's management-rights clause . He said that, contrary to
the Respondent 's proposal , a demotion should be treated
like other disciplinary actions. He also stated that "just
cause" rather than "cause" should be the standard gov-
erning the validity of the discipline. He also objected to
a provision giving the Respondent the right to relieve
employees for any reason; he proposed that the Respond-
ent at least be required to have a business reason for its
action. He also objected to provisions giving Respondent
the unlimited right to force overtime, to assign unit em-
ployees to other departments and to subcontract work.
Felix agreed to consider McLaughlin's complaint about
demotions and his statement about business reasons but
refused to consider limitations in the other areas men-
tioned by McLaughlin.
McLaughlin set forth the Union's objections to Re-
spondent's no-strike clause. He said that the provision
prohibiting certain concerted activities which tended to
interrupt work was overbroad, that the Union should not
be liable for damages until after it received notice of a
prohibited work stoppage, and that employees dis-
charged for violating the clause be permitted to use the
grievance-abitration procedure . Felix was receptive to
McLaughlin's position on notice but rejected the other
objections.
McLaughlin also stated that language in the Respond-
ent's game integrity clause was too broad. He objected in
particular to a provision which allowed the Respondent
to disregard any clause in the contract if it believed the
clause would jeopardize the integrity of its operations.
He also objected to the failure to provide that the Re-
spondent's decisions would be subject to the grievance-
arbitration provisions of the contract. Felix remained
firm on the clause as proposed.
The ninth bargaining session was held on June 26,
1987. The Union's attorney, Paul Levinson, was present
and he suggested several modifications in Respondent's
proposals. He proposed that Respondent be permitted to
subcontract work only for lawful reasons, that it be re-
quired to reinstate employees from layoff for reasons
other that lack of work if the "condition requiring relief
from duty has been satisfied," and language in the integ-
rity clause permitting the abrogation of a contract clause
only if Respondent believed that it violated a state law
or regulation or the Respondent 's "internal control pro-
cedures." Felix indicated that the Respondent would
probably agree to these changes.
Felix then stated that any existing benefits the Union
wanted continued should be listed in the agreement itself.
The Union agreed to prepare a list of existing benefits
for presentation at the next meeting. McLaughlin also in-
dicated that the Union was withdrawing its objection to
that portion of the Respondent's holiday proposal which
required the employees to work the day before and after
the holiday in order to receive holiday pay.
HARRAH'S MARINA HOTEL & CASINO 1129
The parties met for the 10th time on July 24, 1987. At
this meeting the Respondent presented its fifth draft con-
tract proposal. The Union tentatively agreed to the Re-
spondent's proposals regarding seniority , bulletin boards,
and promotions based on skill and ability . The Respond-
ent also altered its management -rights clause to meet
some of the Union's objections . It agreed to treat demo-
tions like other disciplinary actions , limited its right to
relieve employees from duty to situations where it had a
business reason , and agreed to subcontract work only for
lawful reasons . McLaughlin said that the Union would
continue to press for "just cause" protection , but indicat-
ed tentative agreement to the remainder of the manage-
ment-rights clause . The Respondent also modified its no-
strike clause to limit the Union's liability for damages to
those situations of which it was notified and its game in-
tegrity clause to add the sentence proposed by the
Union 's attorney . As a result the Union indicated its ten-
tative agreement to both of these clauses.
The parties also discussed existing benefits . Felix gave
the Union a copy of a pamphlet titled "Good as Gold"
and stated that it described benefits currently being re-
ceived by unit employees . The parties stipulated at the
hearing that the benefits listed in the pamphlet were pro-
vided to all unit employees since August 1986.
The "Good as Gold" pamphlet lists two kinds of bene-
fits. One is for "all employees" and the other is entitled
"additional for non -union ." Among the "non-union" ben-
efits are an ESOP plan, a partnership program under
which the Respondent agrees to match employee contri-
butions to colleges or universities, a 401(k ) savings and
retirement plan which also provides for matching funds,
and a tuition reimbursement plan. The sunshine fund,
which is described as available to all employees , is a pool
of money used to help employees experiencing financial
hardship. The money is provided by the Respondent.
The Union repeated that it wanted to retain all current
benefits for unit employees . The Respondent 's represent-
atives said that some current benefits would be discontin-
ued for unit employees. Vice President Larry Fowler
said that the Respondent could not continue all of the
existing benefits because some of them did not apply to
unionized employees . He stated that the Respondent
needed to have a better package for its unrepresented
employees in order to keep them from "going union."22
Felix said that unit employees would have the advan-
tages of a written contract and a grievance -arbitration
procedure , unlike unrepresented employees . He added
that the Respondent's position in not continuing some ex-
isting benefits for unit employees was based on a need to
preserve a nonunion environment with benefits equal to
or greater than those of represented employees . Felix ad-
mitted , according to his own testimony , that he told the
Union negotiators that certain benefits in the "Good as
Gold" pamphlet were for nonunion employees and it
was doubtful that they would be available to the bargain-
ing unit employees , although he added that this was an
open issue.
22 This is based on the uncontradicted testimony of Mike Castrataro
who was present at this meeting His testimony is supported by other tes-
timony that Felix made similar statements during the negotiations.
The parties then discussed specific existing benefits.
Felix stated that the Respondent did not intend to pro-
vide existing benefits such as the sunshine fund , employ-
ee counselors , and an internal grievance procedure to
unit employees because union representation would pro-
vide these or similar benefits. According to Felix, he told
the union negotiators that the "sunshine fund was for
employees without the resources of a large union to back
them ." Felix also said , again according to his own testi-
mony, that the "union needed to recognize that things
were different" and that "represented employees at Har-
rah's did not have sick days."
The parties also discussed the Respondent 's existing
practice of sending birthday cards to all employees. Al-
though this item was not listed in the "Good as Gold"
pamphlet, Felix admitted that it was an existing practice
and a benefit for employees. Felix said that Respondent
would stop its practice of sending birthday cards to unit
employees because he did not want to have grievances
filed over this matter . At the hearing , Felix admitted that
he was not really concerned about grievances over birth-
day cards but he offered no other reason for stopping
this benefit.
Felix also stated that Respondent's partnership pro-
gram, 401(k) plan , training and development and tuition
aid programs as "presently administered " would not be
continued for unit employees because they were benefits
reserved for nonunion employees . He stated that the
ESOP benefit would also be discontinued for unit em-
ployees and perhaps also for all employees, although he
was not definite on the latter point.23
At the next meeting, on August 20, 1987 , the parties
resumed discussions about existing benefits . Felix repeat-
ed Respondent's refusal to continue the partnership pro-
gram, the 401(k) plan and tuition aid for unit employees.
He repeated Respondent's desire to deny some existing
benefits to unit employees because they would have the
advantage of a written contract and a grievance and ar-
bitration procedure . The Union repeated its desire to
continue existing benefits.
The parties also discussed a number of the Union's
proposals . McLaughlin reiterated some of the Union's
demands with respect to payment of employees 1-1/2
times their hourly rate for hours worked in excess of 40
in 1 week or 10 in 1 day and for Sundays and days off as
well as 2-1/2 times their hourly rate for holidays. At the
time these demands were originally submitted the em-
ployees were working four 10-hour days and were paid
at 1-1/2 times their hourly rates for hours worked in
excess of 8 or 10 in I day and 40 in a week and at 2-1/2
times their hourly rates for hours worked on holidays.
Felix agreed to pay employees at 1-1/2 their hourly rates
for hours worked over 40 in a week and on holidays, but
was unwilling to agree to the remaining Union proposals.
23 Felix denied stating that certain benefits were reserved for nonunion
employees However , on cross-examination , he admitted to making state-
ments of similar import both at this and other meetings . Because of this,
because I did not find him generally to be a reliable witness, and because
of the contrast between his testimony on direct examination and on cross-
examination , I reject his denials. I find that he did indeed make such
statements as related by other more credible witnesses both at this and
other meetings.
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McLaughlin stated that the Union was willing to drop
its original demand that vacation benefits be improved
and asked that existing vacation benefits be retained.
Felix said that unit employees had been receiving the va-
cation benefits of unrepresented employees and the Re-
spondent wanted to to reduce these benefits to corre-
spond with those provided to the Respondent 's other
represented employees.
McLaughlin also scaled down the Union's proposal for
increased sick days to one which preserved the existing 6
sick days per year. Felix said that sick days were benefits
reserved for nonunion employees and that the Respond-
ent would not continue them for unit employees . Instead,
he proposed that unit employees receive one "well" day
for each 90 days of absence-free employment up to a
maximum of 4 days per year. McLaughlin protested that
benefits should not be reduced simply based on union
representation but he agreed to accept the well day con-
cept if Respondent increased the number to 6 days. The
Respondent refused to consider increasing the number of
well days.
The Union also withdrew its demand for increased in-
surance coverage and indicated a willingness to accept
the existing coverage for unit employees . Felix agreed to
continue existing coverage only if the Respondent could
make changes in the coverage without bargaining.
McLaughlin agreed if the changes applied to nonbargain-
ing unit employees as well . Felix agreed to this modifica-
tion and the parties thus tentatively agreed to the Re-
spondent 's insurance proposal as modified.
The parties' 12th bargaining meeting took place on
September 4, 1987. At this meeting the Respondent sub-
mitted its written proposal on wages.
The Respondent's policy on wages is as follows. The
Represented employees are covered by collective-bar-
gaining agreements which specify wage rates and pro-
vide for periodic increases . The unrepresented employees
receive increases based primarily on merit. The Respond-
ent has established a minimum and a maximum rate of
pay for each classification of unrepresented employees.
Each employee within a classification is paid a rate be-
tween these minimum and maximum rates . The employ-
ees are evaluated by their supervisors at least annually.
The supervisor usually meets with the employee and pre-
pares a written evaluation . The Respondent provides its
supervisors with yearly guidelines indicating the range of
wage increases which may be granted to employees with
particular ratings . For example , the 1986 guidelines state
that the employees rated "below standard" were to re-
ceive no increase , those rated "standard" were to receive
increases of 3 to 4 percent, those rated "highly effective"
were to receive increases of 5 to 7 percent and "out-
standing" employees were to receive increases of 7 to 9
percent . The precise amount of each increase is deter-
mined by the supervisor based on the employee 's evalua-
tion and the guidelines . Employees paid at the maximum
rate for their classification receive no increase.24
24 The above is based on the testimony of Vice President Larry
Fowler and documentary evidence I do not accept Fowler's further
Felix described the Respondent 's wage proposal as a
continuation of its present mode of operation . However,
this was not entirely accurate . The proposal did not con-
tain minimum and maximum pay rates and made no men-
tion of guidelines for annual increases within the ranges
for each classification . Indeed , Felix told union negotia-
tors, according to one of the Respondent 's own wit-
nesses, that the Respondent had no maximums and mini-
mums . The Respondent's proposal provided that an em-
ployee would be eligible for a wage increase on his or
her anniversary date , but that the amount of the increase
was left to the sole discretion of the Respondent. Any
disagreement was not subject to the grievance-arbitration
procedure of the contract , but instead subject to an
appeal to the department head and then to the vice presi-
dent of human resources whose decision is final. The
Union had no role in determining wages.
McLaughlin characterized the Respondent 's proposal
as a "non-offer" and said that the Union needed to know
the amounts of any proposed increases or at least the
minimum and maximum increases available to employees.
He also said that the Union needed "a starting wage and
a top rate," but if the parties could agree on a starting
and top rate for each classification , the Respondent
could retain the right to set rates between those figures
based on merit . Felix declined to consider McLaughlin's
suggestions . He said that the Respondent was unwilling
to change its proposal which, in his words, reflected ex-
isting policy, simply because the employees were repre-
sented by a union.
The Respondent also submitted its written proposal on
existing benefits. The proposal required the Union to ac-
knowledge that it had bargained over the existing bene-
fits listed in the 'Good as Gold" pamphlet and agree
that only those benefits listed in the agreement would
continue . The proposal also required the Union to agree
that the Respondent could unilaterally change or discon-
tinue any of the listed benefits during the term of the
contract and that this would not be subject to the griev-
ance-arbitration procedure. The list of contract benefits
did not include the partnership program , tuition aid, the
sunshine fund, the 401(k) plan , the ESOP plan or em-
ployee birthday cards.
McLaughlin objected to the Respondent 's unilateral
right,under its proposal , to change or discontinue bene-
fits. He emphasized the Union's desire to keep existing
benefits, but said he might agree to the Respondent's ap-
proach if the changes applied to nonunit employees as
well. Felix refused this offer. McLaughlin also offered to
abandon the Union's demand for a separate pension fund
if the Respondent agreed to continue the 401(k) plan for
unit employees. Felix also refused this offer, stating that
the 401 (k) plan and the tuition aid plan were for non-
union employees and that the Respondent would not
allow the unit employees to be the only group of union-
ized employees to receive these benefits.
McLaughlin also asked about the Respondent 's posi-
tion on the ESOP program. Felix promised to provide
mostly theoretical testimony that employees could receive a 50-percent her classification Certainly it is beyond the realm of any reasonable pos-
increase even if it put an employee beyond the maximum level in his or sibility that this would happen with respect to unit employees
HARRAH'S MARINA HOTEL & CASINO
information as to whether the program would be contin-
ued as a general matter . However, he made it clear that
even if it were continued for other employees it would
not be continued for unit employees . McLaughlin also
noted that jury duty pay was not listed as an existing
benefit that would be continued . Felix replied that jury
pay would be continued but at a lesser amount than at
present.
After Felix said he was willing to grant the employees
the same number of holidays that they presently re-
ceived, the parties tentatively agreed to this provision of
the contract. McLaughlin also offered to accept 5 well
days, but Felix did not alter the Respondent 's position
that the unit employees could only be entitled to earn 4
well days. McLaughlin also suggested that the Respond-
ent allow some of the more senior unit employees to
retain existing vacation benefits and Felix agreed to con-
sider the suggestion.
The parties next met on October 5, 1987. At this meet-
ing the Union submitted its wage proposal. Under the
Union's proposal the employees would receive a starting
salary of $360 per week with increases in pay every 6
months up to a maximum of $600 per week. The Union
offered to allow the Respondent to defer scheduled in-
creases for up to 3 months based on employee evalua-
tions . Felix stated that he would consider the Union's
proposal but that the Respondent 's wage proposal would
not change and that he was not in a position "to guaran-
tee minimums or guarantee maximums , or automatic pro-
gression raises." McLaughlin repeated that he was will-
ing to accept the Respondent's position on merit in-
creases but that he had to have "some guaranteed mini-
mums and guaranteed maximums, then we could come
up with whatever kind of formula would be appropriate
to reward better employees." Felix refused to consider
McLaughlin's suggestion and said that the Respondent
would continue to handle wages the way it had "always
done it."25
Also at this meeting the Respondent submitted its sixth
draft contract proposal . One of the Respondent's new
proposals was that the regular workweek would consist
of 40 hours in a 7-day period. As a result, the Union
dropped several of its proposals on work schedule and
overtime pay. However , it continued to press for premi-
um pay for hours worked on a holiday and in excess of
eight hours in 1 day. The Respondent also submitted a
new proposal on jury duty pay. It differed from existing
practice by setting forth a 10-day limit on the amount of
jury pay. There was no agreement on this issue . Howev-
er, the Union tentatively agreed to the Respondent's
leave of absence and zipper clauses with some minor
modifications.
The parties also discussed the 401(k) plan. The Union
repeated its desire to continue the existing plan. Felix
25 I specifically reject the Respondent's contention that the Union
never asked for minimum and maximum rates but simply minimum and
maximum amounts of raises The credible testimony of McLaughlin and
Crenny , together with the specific union proposal on wages shows that
the Union did ask both for minimum and maximum levels of wages and
minimum and maximum increases Indeed , Vice President Fowler 's testi-
mony with respect to later meetings confirms that the Union was asking
for a top rate.
1131
said that Respondent was not going to continue the plan
for unit employees , but might be willing to consider
some other kind of pension plan. He said , however, that
the Respondent was unwilling to join a multiemployer
plan or to establish a new plan for unit employees. He
said the plan would have to be union -administered. The
union representatives pointed out the difficulty of estab-
lishing a new plan and repeated their desire to continue
the existing plan. Vice President Fowler said bluntly that
continued participation by the unit employees in the ex-
isting 401 (k) plan was "not in the wood." When Crenny
asked why, Felix replied , according to his own testimo-
ny, that there were "a lot of reasons but basically the
men have elected to be represented by you so things are
going to be different."
The parties met for their 14th bargaining session on
October 9, 1987. The Union withdrew its demand for
severance pay and tentatively agreed to the Respondent's
jury pay proposal . The parties also identified the nine
holidays applicable to unit employees and tentatively
agreed that the employees would be paid 1-1/2 their
hourly rate for hours worked on a holiday.
Turning again to the wage issue , McLaughlin said he
needed "some dollar signs on the wage offer." He asked
Felix to indicate what increases would be received by
employees whose anniversary dates were imminent. Felix
said that this would be appropriate if the parties reached
agreement . McLaughlin repeated that he had to "see
numbers," but Felix said there were "no numbers." He
said that the Respondent would have to meet with each
employee individually in order to conduct an evaluation.
McLaughlin asked that the Union participate in these
evaluations but Felix rejected this offer. As a result there
were no evaluations or pay raises during the bargain-
ing.26
In response to Crenny 's request for the Respondent's
"wage offer," Felix said that some employees-the bad
or mediocre ones-would receive nothing . He said noth-
ing about what the good employees would receive. Felix
said that the Union wanted a "figure for the highest in-
crease," but "that was not the way it had been done
before." Actually, as Vice President Fowler admitted,
the Respondent did have guidelines which gave the Re-
spondent "some idea" of what the most highly rated em-
ployee would receive . This is also supported by a writ-
ten document which spoke of competitive "pay levels"
and set forth guidelines for percentages of pay increases.
This document was provided at trial and admitted into
evidence , but never provided to the Union during bar-
gaining.
Crenny again insisted that the Respondent reveal its
top rates . Felix replied that there were no top rates.
Crenny then said he wanted a dollar figure . Felix said
that this would have to wait until the "next time ." After
further discussion , Felix said that the Union wanted a
minimum and a maximum and that there were no mini-
mums and maximums . He said that the minimum was
zero and the maximnum was "unknown ." Actually, the
26 Actually , it appears that, early in negotiations , the parties agreed
that there would be no merit increases or tuition reimbursements for unit
employees while negotiations were in progress.
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent in fact had a top rate for each classification.
In addition to guidelines on merit increases , the Re-
spondent had a minimum and maximum applicable to the
slot mechanics and all other unrepresented employees.
Moreover , Felix never provided-either at the next
meeting or any other meeting-any information about
top rates or maximum and minimum wage rates.27
Crenny then urged the Respondent to prepare a list of
unit employees indicating after each name the raise that
each would receive . Felix said that the Respondent could
not prepare such a list without face -to-face meetings and
evaluations . Crenny then asked that the Respondent per-
form the evaluations without the meetings . Felix said
that he would consider Crenny's request for a list "next
time ." The Respondent never provided such a list.
Crenny also asked for an average figure but Felix said
that there was no average . Crenny also asked for the
cost of an average increase and Felix said that the Re-
spondent would not be able to tell the Union this . Final-
ly, Felix said that he would come up with a maximum
rate "next time ." This was not provided either next time
or at any time.28
The next meeting was held on November 2, 1987. The
Respondent submitted a new proposal on vacations. It
offered 2 weeks' vacation for employees with between 1
and 8 years of service and 3 weeks for those with over 8
years . This was a reduction in existing benefits which
provided a 1-week vacation after 6 months of employ-
ment , 2 weeks after 1 year, 3 weeks after 5 years, 4
weeks after 15 years, and 5 weeks after 20 years. The
Union protested and the Respondent gave no reason for
the reduction . The parties also discussed the sick-day
well-day issue to no avail . McLaughlin again offered to
accept 5 well days, but Respondent refused to grant any
more than it had originally proposed . Felix again refused
to consider continuing the 401 (k) plan for unit employ-
ees. McLaughlin responded that if the plan were discon-
tinued , then the money which would otherwise be con-
tributed to the plan would be available to be applied to
wages or other benefits . Finally, the parties discussed
union security and Felix stated that the Respondent
might agree to some kind of maintenance -of-membership
provision.
The parties also discussed wages at this meeting.
Crenny again insisted on a wage offer with specific
dollar figures, but Felix said that the Respondent was un-
willing to "put a minimum increase on the table."
McLaughlin then pointed out that the Union had previ-
ously asked the Respondent to indicate , under its propos-
al, how much of an increase each employee would re-
ceive and said that , if it did , the Union might agree to
27 Vice President Fowler acknowleged that notes taken by an official
of the Respondent indicated that Felix said that the Union had asked for
a wage offer and had asked for a top and bottom rate . According to the
notes, Felix also said that if the Union wanted a figure or had to file an
unfair labor practice charge it should "go ahead."
29 The evidence set forth above concerning wage discussions on Octo-
ber 9 is based primarily on the testimony of Vice President Larry Fowler
who was present at this meeting , after he was referred to notes prepared
by another official of the Respondent who was also present This account
is consistent with the testimony of McLaughlin and Crenny Fowler's tes-
timony also indicated that Felix's remarks to the Union were in many
cases contrary to existing practice.
the Respondent's "merit program." Felix said that he did
not recall the Union ever asking for such a list . Felix of-
fered to conduct evaluations of employees but the Union
refused to permit such meetings without its participation
or imput and Felix refused this request . Crenny then said
that the evaluations could be performed without meeting
with the employees , but Felix said that the process "did
not work that way."29
At the next meeting on November 24, 1987, the Re-
spondent proposed a maintenance -of-membership provi-
sion , which the Union accepted . The Respondent also
submitted a revised vacation proposal which permitted
employees already earning 3 weeks' vacation to retain
this benefit; the Union tentatively agreed to the revised
vacation proposal . The Union also withdrew its propos-
als for layoff by seniority and premium pay after 8 hours
in 1 day; it tentatively accepted the Respondent 's propos-
als on seniority and premium pay after 40 hours in 1
week.
The next meeting was held on December 9, 1987. At
this meeting the Respondent submitted its final draft con-
tract proposal . This proposal listed existing benefits
which would be retained for unit employees and stated
that these would be the only ones in the "Good as
Gold" booklet which would be retained . Not included in
the proposal were ESOP, tuition reimbursement , partner-
ship program , the 401(k) plan , or the sunshine fund,
which were listed in the "Good as Gold " booklet. Also
not in the proposed existing benefits clause was the em-
ployee birthday card benefit.
At this meeting the Union withdrew its demand for
"just cause" protection and tentatively accepted Re-
spondent's proposal on "well days ." The well-day pro-
posal required the well days to be earned by virtue of
absence free employment , unlike the existing practice for
sick days and, of course , the number was cut from 6 to
4.
The Respondent reiterated its position that the existing
401(k) plan for unit employees would be eliminated, but
it offered to pay 12 cents per hour per employee into a
union-administered pension fund . Felix explained that the
12-cent figure had been computed by taking the total
amount of the Respondent 's contributions to the 401(k)
plan for unit employees and dividing it by the number of
unit employees . McLaughlin expressed disappointment at
the figure because, as he said , the Respondent had earlier
suggested a larger contribution.
The parties also discussed wages . McLaughlin repeat-
ed that the Respondent 's proposal was not a wage offer
and that he needed "dollars and cents ." The union repre-
sentatives said that the Respondent's wage offer was de-
ficient because it contained "no percentage, dollar fig-
ures, or maximum and minimum rates and no way by
which the Union could determine an "equitable salary
level." Felix said that Respondent would not change its
existing policy simply because the employees had select-
ed a union . When union representatives pointed out that
the Respondent had signed contracts with other unions
29 Here again the evidence concerning the wage discussions during the
November 2 meeting was based primarily on the testimony of Fowler.
HARRAH'S MARINA HOTEL & CASINO
providing specific wages and specific increases, Felix
said that this was the Respondent 's first opportunity to
negotiate an agreement from the "ground floor" and it
wanted the agreement to reflect existing practice. Actu-
ally, the Respondent had an opportunity to negotiate ini-
tial contracts with a number of other unions when it
came to Atlantic City after purchasing an existing oper-
ation , but it chose instead to adopt association agree-
ments which included set wage rates and increases and it
has apparently renewed such agreements.
At one point during a break in the formal negotiations,
Felix called McLaughlin aside for a private conversation.
He told McLaughlin that the contract was an "embarass-
ment" and that McLaughlin should "just walk away
from this group ." McLaughlin insisted that he would
continue to pursue an agreement and refused to abandon
the unit.30
The parties ' final bargaining meeting occurred on Feb-
ruary 18, 1988 . There was no movement by either party
and no tentative agreements . However , McLaughlin
stated that the Union was willing to adopt almost any
approach on wages as long as it received a concrete pro-
posal . Felix said that the Respondent would not alter its
position.
b. Analysis
The amended complaint alleges that , since "on or
about July 24, 1987," the Respondent failed to bargain in
good faith with the Union in violation of Section 8(a)(5)
and (1) of the Act by virtue of its conduct in insisting on
unilateral control of wages and eliminating or reducing
certain existing benefits. I find that this allegation is sup-
ported by a preponderance of the evidence.31
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer "to refuse to bargain collective-
ly with the representative of his employees." Section
8(d) defines the duty to bargain collectively as the "per-
formance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment."
In NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960),
the Supreme Court stated that "[c]ollective bargaining
... is not simply an occasion for START purely formal
meetings between management and labor , while each
maintains an attitude of 'take it or leave it'; it presup-
poses a desire to reach ultimate agreement , to enter into
a collective bargaining contract." The parties must deal
30 This is based on McLaughlin 's credited testimony Felix testified
about this private conversation , but his explanation of what was said-
which actually concedes that he told McLaughlin to "walk away," albeit
for another reason-is implausible and wholly unreliable
31 Although the specific charge alleging this violation was filed on
January 14 , 1988, and thus Sec 10(b) of the Act would preclude the find-
ing of a violation prior to July 14, 1987 , 6 months before the charge was
filed, I find that the violation herein occurred within the limitations
period The Respondent 's initial wage proposal was submitted on Sep-
tember 4, 1987, and the Respondent gave the Union a list of existing ben-
efits and first indicated its opposition to continuing some of these benefits
on July 24 , 1987. Any evidence prior to the commencement of the Sec
10(b) period is used herein as background to give explanation and mean-
ing to conduct within the 10(b) period See Eastern Maine Medical
Center, 253 NLRB 224, 244 fn . 24 (1980), enfd 658 F 2d 1 (1st Cir 1981),
Marriott In-Flue Services , supra , 258 NLRB at 764.
1133
with each other in a serious attempt to adjust differences
and reach an acceptable common ground. Ibid.
Moreover, although there is no requirement that the
parties agree to a specific contract proposal, the Board
will examine the content and reasonableness of a party's
contract proposals to determine whether they were ad-
vanced with an open mind or with an intent to frustrate
agreement . Reichold Chemicals, 288 NLRB 69 ( 1988); see
also NLRB v. Wright Motors, 603 F.2d 604, 609-610 (7th
Cir. 1979). Thus, the question whether a party "conduct-
ed its bargaining negotiations in good faith involves a
finding of motive or state of mind which can only be in-
ferred from circumstantial evidence ." NLRB v. Reed &
Prince Mfg. Co., 205 F.2d 131, 139-140 (1st Cir. 1953),
cert. denied 346 U.S. 887 ( 1954). See also Eastern Maine
Medical Center, 253 NLRB 224, 243-244 (1980), enfd.
658 F.2d 1 (1st Cir. 1981); A-1 King Size Sandwiches, 265
NLRB 850, 857-858 (1984), enfd. 732 F.2d 872 (11th Cir.
1984), cert. denied 469 U.S. 1065; Reichold Chemicals,
supra at fn. 8.
Applying the above principles I find that, in all the
circumstances of this case , the Respondent 's conduct and
bargaining with respect to the wage issue and its propos-
als to reduce and eliminate existing benefits demonstrated
that it was not bargaining in good faith and thus the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
The Respondent's wage proposal was an attempt to
retain unilateral control over all aspects of wages and
thus effectively removed wages as a negotiable issue not
only at the bargaining table but also for the term of any
bargaining agreement . Thus, Respondent did not propose
any wage rates at all and no maximum or minimum rates.
It did propose to provide merit increases , but only on its
own terms with unilateral control over not only the
amounts given but the procedure under which the raises
were to be determined . Here again no maximums or
minimums were provided despite repeated requests for
such guidelines on the part of the Union. Moreover, any
dispute over the amount of any raise was to be deter-
mined by an internal procedure culminating in an ulti-
mate decision by a management official. There was to be
no participation by the Union in such dispute resolution
and no recourse to the grievance-arbitration provision of
the contract . This was, as Felix bluntly stated , a reten-
tion of the method of handling wages in effect before the
employees selected the Union to bargain for them.
Significantly, the Respondent never budged from its
initial and adamant position on wages and it refused to
consider the many alternatives proposed by the Union. It
even declined to evaluate employees for current raises
without meeting with them-as the Union suggested-
because, as Felix said , this would deviate from existing
practice . Knowing, as it did, that the wage issue was the
most important issue advanced by the Union, the Re-
spondent 's conduct not only demonstrated its cast of
mind against reaching agreement , but also its refusal to
accord the Union any de facto legitimacy as bargaining
representative.
The Board, with court approval, has consistently
found unlawful an employer's rigid and uncompromising
attempt in bargaining to retain unilateral control over
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wages . See A-I King Size Sandwiches, supra, 265 NLRB
at 857-861; Tex-Tan Welhausen Co., 172 NLRB 851,
879-880 (1968), enfd. 419 F.2d 1265 (5th Cir. 1969);
Alba-Waldensian, Inc., 167 NLRB 695, 696 (1967), enfd.
404 F.2d 1370 (4th Cir. 1968). See also A. H. Belo Corp.
v. NLRB, 411 F.2d 959, 968 (5th Cir. 1969), cert. denied
396 U.S. 1007 (1970). An employer's conduct in this re-
spect not only precludes bargaining on the most impor-
tant issue in negotiations, but it renders bargaining a pre-
tense. Employees would be better off without a contract
for the statute itself precludes unilateral action in the ab-
sence of a legitimate impasse after good -faith bargaining.
But a clause such as that herein would permit unilateral
action on wages which would be prohibited absent a
contract . See Eastern Maine, supra , 253 NLRB at 246,
and cases there cited ; and Reichold Chemicals , supra, dis-
cussing A-I King Size Sandwiches , supra.
The instant case involves unilateral control over all
wages, not just merit increases . However, even where an
employer agrees to a certain range of wage rates-a situ-
ation not present here-its reservation to itself of unilat-
eral control over merit increases alone may constitute
bad-faith bargaining. See Smyth Mfg. Co., 247 NLRB
1139, 1166 ( 1980). As the Supreme Court has stated,
where such merit increases are "informed by a large
measure of discretion," the union "may properly insist
that the company negotiate as to the procedures and cri-
teria for determining such increases ." NLRB v. Katz, 369
U.S. 736, 746-747 (1962).32
Even assuming that rigid adherence to a unilateral and
all-encompassing wage proposal is not sufficient, in and
of itself, to constitute bad-faith bargaining , here the con-
text in which the Respondent advanced and adhered to
its position clearly shows more and is sufficient to estab-
lish a violation . First , the Respondent had, earlier in ne-
gotiations, foreclosed bargaining on the important work
schedule issue and unilaterally changed the employees'
work schedule. This violation is relevant to the wage
issue because the Respondent likewise sought unilateral
control over wage issues . Moreover , the Respondent's
earlier violation undoubtedly infected the entire bargain-
ing process which followed because unilateral action
"tends to subvert the union 's position as the representa-
tive of the employees." NLRB v. Insurance Agents, supra,
361 U.S. at 485. Finally, other violations found herein
demonstrate that the Respondent harbored union animus
and sought to retaliate against employees for their union
activities. That antagonism towards the Union helps ex-
plain the Respondent 's reluctance to give the Union any
voice in wage matters.
32 Contrary to its suggestion , NLRB Y. American National Insurance
Co., 343 U.S. 395 ( 1952)-which predated Katz-does not support the
Respondent 's position that it did not violate the Act In that case the Su-
preme Court rejected the Board 's position that a management -functions.
clause prohibiting arbitration on certain matters was per se unlawful The
clause did not involve wages and it did not preclude the union from
having any role in setting wages. As the Board stated in Tex-Tan Wel-
hausen , supra , the principle in American National Insurance cannot auto-
matically be applied to "so large and basic an aspect of the employment
relationship" as wages 172 NLRB at 879-880 See also NLRB v. Katz,
supra , 369 U.S. at 746-747 In any event , here , unlike in American Nation-
al Insurance , there is much other evidence-apart from the wage propos-
al itself-which shows that the Respondent did not bargain in good faith.
The Respondent also used misrepresentation and fail-
ure to provide information to forestall real bargaining on
wages . The Respondent 's wage proposal was not limited
to unilateral control over merit increases within a salary
range subject to negotiations . Its proposal lacked any
maximum or minimum wage rates or ranges and the Re-
spondent adamantly refused to consider the Union's re-
quest for such rates or ranges . The Union was thus
forced to discuss only merit pay which the Respondent
also reserved to itself. Even here , however, the Respond-
ent failed to provide the Union-despite its oral re-
quests-with clearly relevant information on maximum
and minimum raises or rates . See International Telephone
& Telegraph Corp., 382 F . 2d 366, 371, 372-373 (3d Cir.
1967), cert . denied 389 U.S. 1039 ( 1968). Its chief negoti-
ator went further and falsely stated that there were no
maximums or minimums despite the fact that Respondent
did have guidelines on these matters.33
Finally, there is direct evidence in this case which tell-
ingly demonstrates lack of any intent to reach agreement.
Late in bargaining , Felix, the Respondent 's chief negotia-
tor, specifically told McLaughlin , the Union 's chief ne-
gotiator , that the contract on the table-basically that
proposed by the Respondent-was embarassing and that
he, McLaughlin , should walk away from the bargaining
unit . This statement demonstrates that the Respondent's
"take-it-or leave it" position was meant not only to frus-
trate agreement but to rid itself of the Union.34
The above findings and conclusions are reinforced by
consideration of the Respondent 's conduct in rigidly in-
sisting-without change of position-that existing bene-
fits be eliminated or reduced . Not only did the Respond-
99 The Respondent objects to any reliance on the written guidelines in-
troduced into evidence in this case because allegedly they applied to the
year before the year in which the bargaining took place. The point has
no merit The import of Vice President Fowler's testimony is that such
guidelines existed at the time of the hearing and there is no evidence that
the Respondent stopped using guidelines in subsequent years. In any
event , the guidelines introduced into evidence were so recent that the
Respondent's statement that none existed would still have been an indicia
of lack of good faith
34 In further support of its position that it bargained in good faith, the
Respondent relies on Struthers Wells Corp v. NLRB, 721 F 2d 465 (3d
Cir. 1983 ), denying enforcement in part to 262 NLRB 1080 That case,
however, is clearly distinguishable from the instant case First of all,
unlike in the instant case , the parties had a longstanding bargaining rela-
tionship embodied in successive agreements . These agreements contained
wage provisions with classifications and pay rates and ranges separate
and apart from the merit increase provision which was at issue The em-
ployer did not disturb the old contract provisions which called for classi-
fications and specified rates and ranges of pay, although it did seek to
change the number of classifications and reduce the wage rates ; indeed
the employer's proposal called for general increases for the second and
third years of the new contract. What was alleged as unlawful was the
employer 's attempt to change the merit pay provision of the old contract
to reflect its own unilateral control over merit increases within the rate
ranges of the respective classifications ." (262 NLRB at 1083-1084.) (Em-
phasis added ) Thus, the employer 's merit increase proposal was only a
small part of the overall wage provisions which recognized the union's
role in determining wages and set forth specific wage rates and ranges
The Respondent 's proposal is not so limited Moreover, unlike in the in-
stant case, the employer's merit increase proposal had recently been ac-
cepted by another union with whom the employer negotiated-a factor
which the court found very significant . (Id. at 469-470.) Here, in con-
trast , the Respondent 's other contracts included wage rates and ranges
Finally , there were not, in Struthers Wells, the many other indicia of bad-
faith bargaining which appear in the instant case
HARRAH 'S MARINA HOTEL & CASINO
ent refuse to change its position that it would eliminate
existing benefits-the 401 (k) plan , tuition aid, the part-
nership program, the ESOP program , the sunshine fund,
and even birthday cards-for represented unit employ-
ees, but its officials offered no nondiscriminatory , legiti-
mate economic or business reasons for such elimination.
In addition , the Respondent proposed reducing existing
benefits such as vacations and jury pay for unit employ-
ees. Especially pernicious was the Respondent 's conver-
sion of the existing sick leave benefit to well days which
had to be earned by absence -free employment and its re-
duction of the number of days from 6 to 4 per year. The
Respondent adamantly refused to change its position on
the reduction of some of these benefits , and refused even
to accept the Union 's tentative agreement on the well
day proposal if it increased the number of well days to 5.
Here again , the Respondent did not offer any nondis-
criminatory , legitimate economic or business reasons for
its rigid positions . Thus, like the employer in Internation-
al Telephone & Telegraph, supra, 382 F.2d at 373, the Re-
spondent "proposed large reductions in fringe benefits,"
failed "to substantiate" that "such reductions were
needed in order to maintain its competitive position,"
and manifested a "take-it-or -leave-it" attitude.
Indeed , the paramount , if not the only, reason offered
for the elimination and reduction of the benefits men-
tioned above was that the employees had selected the
Union to bargain for them . Thus, Vice President Fowler
said that the Respondent did not want to continue some
existing benefits because it needed to have better benefits
for nonunion employees to keep them from "going
union." Felix made the same point . Felix also explained
that the Respondent would not continue the sunshine
fund because the employees should rely on the Union for
this money . He also explained the failure to propose sick
days as a reflection of the Respondent 's policy that rep-
resented employees did not have sick days. He gave an
admittedly false reason for not continuing to send birth-
day cards to unit employees . And he said that the 401(k)
plan, training and tuition aid programs were benefits re-
served for nonunion employees . He specifically said the
the 401(k) plan was not being continued for unit employ-
ees because they had chosen the Union to represent
them . The suggestion that existing benefits are forfeited
because employees have selected a union is , of course,
clearly unlawful . See Lynn-Edwards Corp ., 290 NLRB
202 (1988 ) citing Melville Confections , 142 NLRB 1334
(1963), enfd . 327 F .2d 689 (7th Cir . 1964), cert . denied
377 U.S. 933 ( 1964).
In the context of its other unfair labor practices, in-
cluding a unilateral change during bargaining , its unlaw-
ful position on wages, its chief negotiator's attempt to
have the Union abandon the unit and its discriminatory
explanation for the reduction and elimination of benefits,
the Respondent 's rigid adherence to the elimination and
reduction of certain existing benefits for unit employees
was strong evidence of lack of good faith . See E. I. du
Pont & Co., 203 NLRB 535 , 538 (1973), enfd . 501 F.2d
135 (5th Cir . 1974); Continental Insurance Co., 204
NLRB 1013, 1019 (1973), enfd . 495 F .2d 44 (2th Cir.
1974); Eastern Maine, supra , 253 NLRB at 243 ; Interna-
tional Telephone & Telegraph , supra, 382 F.2d at 373.
1135
The Respondent argues that it took a strong position
on some issues-presumably the wage and existing bene-
fits issues-because it had greater economic strength than
the Union which admittedly was unable to call a strike.
But this is no excuse for bargaining in bad faith and
hoping , as Felix told McLaughlin , that the Union would
walk away from the unit employees because of frustra-
tion caused by the Respondent 's own intransigence. This
was a first contract and the Respondent 's unilateral
action on work schedules and its concerns over the
Union 's organizing other employees on the casino floor,
expressed at one bargaining session and, more dramati-
cally, through discriminatory action , leads to the infer-
ence that the Respondent was interested in stopping the
appeal of unionization by frustrating agreement.
Nor is it any defense that the Union tentatively agreed
to many of the Respondent 's regressive proposals. The
parties had agreed that they would bargain by virtue of
tentative agreements . All agreements were tentatively
based on an overall agreement. The fact that the Union
made so many concessions in this respect shows only
that it was interested in reaching an ultimate agreement,
unlike the Respondent . In any event , it is well settled
that a union does not "waive" a refusal -to-bargain charge
even if it agrees-as this Union did not-to an entire bar-
gaining agreement. A union is entitled to sign up for the
best deal it can obtain while continuing to pursue its
legal remedies for the failure of an employer to bargain
in good faith . See Eastern Maine, supra , 253 NLRB at
246 fn . 28, and cases there cited.
CONCLUSIONS OF LAW
1. By interrogating employees about their union activi-
ties and by threatening employees that work rules would
be enforced more strictly because of their support for a
union, the Respondent violated Section 8(a)(1) of the
Act.
2. By discriminatorily enforcing a no-talking rule to
discourage union activities and by discriminatorily dis-
charging employee Joe Genzano because of his union ac-
tivities , the Respondent violated Section 8(a)(3) and (1)
of the Act.
3. At all times material the Union was and is the exclu-
sive bargaining representative in the following appropri-
ate unit:
All full-time and regular part time electronic techni-
cians and slot mechanics employed by Respondent
at its Atlantic City, New Jersey facility, excluding
all other employees , including lead mechanics, as-
sistant lead mechanics , guards and supervisors as
defined in the Act.
4. By unilaterally changing the work schedule of unit
employees during bargaining , the Respondent violated
Section 8(a)(5) and (1) of the Act.
5. By failing to bargain in good faith with the Union
over wage issues and the elimination and reduction of ex-
isting benefits , the Respondent violated Section 8(a)(5)
and (1) of the Act.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. The violations set forth above are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. The Respondent has not otherwise violated the Act.
THE REMEDY
All full time and regular part time electronic techni-
cians and slot mechanics employed by Respondent
at its Atlantic City, New Jersey facility excluding
all other employees including lead mechanics , assist-
ant lead mechanics , guards and supervisors as de-
fined in the Act.
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be re-
quired to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act.
I shall also recommend that the Respondent be or-
dered to offer reinstatement to employee Joe Genzano,
to remove from his record any notations relating to his
discriminatory discharge and to make him whole for any
loss of wages or benefits he may have suffered due to the
unlawful and discriminatory action taken against him, in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition , because the Respondent's unlawful change
in work schedule seriously undermined the Union's bar-
gaining position at the outset of negotiations , a status quo
ante remedy is appropriate in this case . Subsequent nego-
tiations could not erase the effects of the violation. See
Lehigh Portland Cement Co., 286 NLRB 1366 (1987).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed35
ORDER
The Respondent, Marina Associates , d/b/a Harrah's
Marina Hotel and Casino , Atlantic City, New Jersey, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about union ac-
tivities.
(b) Threatening employees that work rules or any
other rules will be enforced more strictly because of
their support for a union.
(c) Discriminatorily enforcing no-talking or any other
rules in order to discourage union activity.
(d) Discriminatorily discharging , disciplining or other-
wise retaliating against employees because of their union
activities.
(e) Making unilateral changes in wages, hours, or
other terms and conditions of employment during bar-
gaining unless such changes are embodied in a bargaining
proposal and either the parties have reached a lawful im-
passe or the Union has consented to such changes.
(f) Failing to bargain in good faith over wages, hours,
and terms and conditions of employment with the Union
as the exclusive bargaining representative in the follow-
ing appropriate unit:
•15 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(g) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer employee Joe Genzano immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position , without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits he may have suffered as a
result of the discrimination against him , in the manner set
forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Remove from its files any reference to the dis-
charge of Joe Genzano and notify him that this has been
done and that evidence of his unlawful discharge will
not be used as a basis for future personnel actions against
him.
(d) Reinstate the four 10-hour day work schedule for
unit employees which was unlawfully and unilaterally
changed as of February 9, 1987, and continue that sched-
ule in effect until either the Union agrees to a change or
the parties reach a lawful impasse in negotiations.
(e) On request , bargain collectively and in good faith
with the Union as the exclusive representative of the em-
ployees in the above-described unit with respect to
wages, hours, and other terms and conditions of employ-
ment and , on request, embody in a signed agreement any
final understanding reached by the parties.
(f) Bargain collectively and in good faith with the
Union before implementing any changes in wages, hours,
and other terms and conditions of employment.
(g) Post at its facility in Atlantic City, New Jersey,
copies of the attached notice marked "Appendix."36
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
36 If 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 Nation-
al 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 "
HARRAH'S MARINA HOTEL & CASINO 1137
(h) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that allegations of the com-
days from the date of this Order what steps the Re- plaint which have not been sustained are dismissed.
spondent has taken to comply.