Jim Kelley's Tahoe Nugget

National Labor Relations Board - Board Decisions

Dec 16, 1976

227 N.L.R.B. 357 (N.L.R.B. 1976)

JIM KELLEY'S TAHOE NUGGET 357
Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe Nugget
and Hotel-Motel-Restaurant Employees & Barten-
ders Union, Local 86, Hotel & Restaurant Employ-
ees & Bartenders International Union , AFL-CIO.
Case 20-CA-9738
December 16, 1976
DECISION AND ORDER
On January 28, 1976, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. General Counsel and the
Charging Party filed briefs in opposition to the
exceptions.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 1 and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, but for the
reasons set forth below rather than for the reasons set
forth in his Decision.
On August 3, 1959, the Reno Employers Council, a
voluntary association of employers engaged in the
casino , restaurant, and other industries, recognized
and entered into a contract with Local 86 on behalf of
its member-employers in the Lake Tahoe area.
Respondent, Tahoe Nugget, thereafter in 1962 joined
the Council and became a party to the 3-year
multiemployer contract then existing between the
Council and Local 86. Respondent continued to be a
party to successive contracts between the Council
and Local 86, including one that was due to expire on
November- 30, 1974.
On September 18, 1974, Respondent timely with-
drew from the multiemployer arrangement and
subsequently refused to bargain with Local 86,
claiming that it had a reasonably grounded doubt as
to Local 86's majority status among its own employ-
ees.
We agree with the Administrative Law Judge that
the presumption of majority arising from Respon-
dent's voluntary recognition of a labor organization
1 Respondent's request for oral argument is hereby denied , as the record
and the briefs adequately present the issues and the positions of the parties.
2 Mohawk Business Machines Corporation, 1 16 NLRB 248 (1956); Dank-
er & Sellew, Inc, 140 NLRB 824 (1963), enfd. 330 F.2d 46 (C.A. 2, 1964).
3 Local Lodge No 1424, International Association of Machinists, AFL-CIO
[Bryan Manufacturing Co.] v. N .L RB 362 U.S. 411 (1960).
4 North Bros. Ford, Inc., 220 NLRB 1021 ( 1975), and cases cited therein.
5 Shamrock Dairy, Inc , Shamrock Dairy of Phoenix, Inc., and Shamrock
Milk Transport Co, 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd.
280 F.2d 665 (C A.D.C., 1960), cert. denied 364 U.S. 892 (1960); Bartenders,
Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello,
Idaho and its Employer-Members, 213 NLRB 651 (1974) (Member Kennedy
dissenting).
6 We think our dissenting colleague reads too much into Sheridan
Creations, Inc., 148 NLRB 1503 (1964), and Mor Paskesz, 171 NLRB 116
(1968), which involved the lawfulness of the employers' withdrawal from
227 NLRB No. 72
as the exclusive collective-bargaining representative
of its employees continued after its withdrawal from a
multiemployer unit and reversion to its original
status. We nevertheless take this gpportunity to
clarify and precisely define our rationale for so
joining in the Administrative Law Judge's conclu-
sion.
Unless a majority of an employer's employees
desire representation by a union , an employer cannot
lawfully force representation on them by joining a
multiemployer bargaining unit .2 Respondent would
thus have violated the Act when it became a party to
its multiemployer contract if a majority of its employ-
ees had not desired representation by Local 86.
The Board has held, in light of the Supreme Court's
decision in Bryan Manufacturing Co., 3 that a respon-
dent may not defend against a refusal-to-bargain
allegation on the ground that original recognition,
occurring more than 6 months before charges had
been filed in the proceeding raising the issue, was
unlawful.4 Any such defense is barred by Section
10(b) of the Act, which, as the Court explained in
Bryan, was specifically intended by Congress to apply
to agreements with minority unions in order to
stabilize bargaining relationships. That means that
Respondent cannot now attack the Union's majority
status among its employees in the single-employer
unit when recognition was originally extended and
that we must accept as a fact that the Union
represented a majority in that unit at that time.
The Board has consistently presumed that a volun-
tarily recognized union continues to be the majority
representative of the unit employees.5 This presump-
tion is carried throughout the life of the collective-
bargaining contract and thereafter. We do not think
that a different result should obtain in this case.6
To rebut the presumption of continued majority
status properly, the employer must show either that
the union in fact no longer enjoys majority status or
that its refusal to bargain was predicated on a
reasonably grounded doubt as to the union's contin-
ued majority status.? If the employer desires to
challenge the union's majority status, it may file a
multiemployer bargaining units . There the Board held that, until the
employers timely withdrew from the multiemployer unit, their bargaining
obligations were based on the majority status of the union representing all
the employees in the unit. This holding was grounded on the principle that
the multiemployer unit, once established , remains the appropriate unit for all
the employees and employers until lawfully disestablished or modified
These cases , therefore, say nothing about the presumption of majority status
existing originally among the employees of each employer . Once an
employer lawfully withdraws from the unit , of course, it is free to justify a
withdrawal of recognition by successfully rebutting the presumption.
7 See Celanese Corporation of America, 95 NLRB 664 (1951), Laystrom
Manufacturing Co., 151 NLRB 1482 (1965), enforcement denied on other
grounds 359 F.2d 799 (C.A. 7, 1966); Terrell Machine Company, 173 NLRB
1480 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929
(1970); Barrington Plaza and Tragmew, Inc, 185 NLRB 962 (1970);
Automated Business Systems a Division of Litton Business Systems, Inc., a
(Continued)
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition with the Board seeking an election. To hold
otherwise, as does our dissenting colleague, would
mean that formation or dissolution of, or any entry
into or departure from, a multiemployer unit would,
standing along, establish objective and substantial
reason to doubt the previously existing majority. But
the dissent sets forth neither facts nor reasons why
this should be the result. Such result would permit the
questioning of majority on every change in the
composition of the multiemployer unit, would deter
the formation of such units, and would inhibit
stability in bargaining. Before we depart from prece-
dent to venture in this direction, far more cogent
reasons are required than we perceive here .8
Since we are in agreement with the Administrative
Law Judge that Respondent has failed to prove that
Local 86 no longer in fact enjoys majority status or
that Respondent's refusal to bargain was predicated
on a reasonably grounded doubt as to Local 86's
majority status, we find that Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as'its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Tahoe Nugget,
Inc. d/b/a Jim Kelley's Tahoe Nugget, Crystal Bay,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
MEMBER WALTHER, dissenting:
I take issue with my colleagues' conclusion that the
presumption of majority status flowing from the
contract in the multiemployer unit survives Respon-
dent's timely withdrawal from that unit. By a process
resembling alchemy, my colleagues have concocted
the existence of majority status with only the thinnest
support in legal reason and have, in complementary
fashion, ignored valid distinctions between the pre-
sumptions applicable to single-employer and mul-
tiemployer units.
It was some 14 years ago that Respondent in 1962
voluntarily joined _ a multiemployer bargaining unit
and recognized Local 86 as the representative of its
employees. No election has ever been held either in
Subsidiary of Litton Industries, Inc, 205 NLRB 532 (1973), enforcement
denied 497 F.2d 262 (C.A. 6, 1974); Walter E Heyman d/b/a Stanwood
Thriftmart, 216 NLRB 852 (1975); James W. Whitfield d/b/a Cutten
Supermarket, 220 NLRB 507 (1975).
8 The presumption that a bargaining relationship , lawfully established,
lawfully continues is embedded in the statute and precedent. Unrepresented
and represented ' employees are both presumed to desire continuation of the
existing status in the absence of proof to the contrary. Were there objective
the multiemployer unit or in a unit of Respondent's
own employees, nor has Respondent ever recognized
or bargained with Local 86 on a single-employer
basis. Thus, at no time during the course of Respon-
dent's 14-year bargaining relationship has there been
any attempt to ascertain the majority sentiments of
Respondent's employees. I cannot accept my col-
leagues' assertion that in these circumstances Local
86 should be presumed to be the majority representa-
tive of Respondent's employees once Respondent
secedes from the multiemployer unit.
My colleagues argue that unless a majority of
Respondent's employees in 1962 desired representa-
tion by Local 86 Respondent could not lawfully have
forced representation on them by joining the mul-
tiemployer unit. They further - note that Respondent
cannot now attack Local 86's majority status among
its own employees at the time of original recognition
because of Section 10(b). From this my colleagues,
citing cases which deal with the presumption of
majority status in single-employer units, construct
two entirely distinct and severable presumptions
which in turn give birth to yet a third presumption.
Starting with (1) a valid presumption of majority
status in the multiemployer relationship, they turn
back, and (2) interweave a second presumption of
former majority status in the single-employer unit
based upon the 10(b) prohibition against finding
conduct which occurred years ago to be unlawful.
From the interweaving of these two presumptions the
majority manages to conceive yet a third presumption
of current majority status in the single-employer unit
which otherwise has no basis in fact or in logic. While
I do believe that the Board can and should base
violations of Section 8(a)(5) upon legitimate legal
presumptions, a violation predicated upon a pre-
sumption arising not out of fact but out of the
intermarriage of two other presumptions is, in my
view, not a proper basis upon which to establish a
violation. It must never be forgotten that an 8(a)(5)
finding effectively prevents employees from exercis-
ing their right to a free choice in the selection of a
collective-bargaining representative-a right 'these
employees have never had an opportunity to exercise.
My colleagues' argument conveniently ignores the
critical fact that, contrary to the situation in a single-
employer unit, the relevant majority in a multiem-
evidence here sufficient to raise a reasonable doubt of the Union's
continuing majority, there would be no need to consider the propriety of any
presumption . Although, as our colleage argues , had the Union lost its
majority among the employees of any single employer it could nonetheless
have compelled bargaining in the multiemployer unit, he suggests no reason
to believe that it had lost that majority At best, his argument begs the
question and replaces the common expectation of continuity with one of
change.
JIM KELLEY'S TAHOE NUGGET 359
ployer unit is the majority of employees within the
entire multiemployer unit.9 Thus, notwithstanding
the constraints' imposed on the. employer at the point
of initial recognition (constraints which may perhaps
support a presumption that the- union was majority
representative of the employer's employees at the
time of original recognition), once the employer joins
the multiemployer unit, it does not in theory violate
the law by continuing 'to bargain3 with a union which
does not have majority status among its own employ-
ees. Indeed, unless the employer .has timely with-
drawn from the multiemployer unit, it is required to
bargain with any union representing a majority of
employees within that multiemployer unit, regardless
of the union's standing among the employer's' own
employees.10 Consequently, the presumption of con-
tinued majority in the, multiemployer, • situation pro-
vides no basis in-fact or in law for a:presumption of
majority in the single-employer unit, since the former
presumption exists regardless of, or even contrary to,
actual majority status on a single-employer basis.
It should be recognized that the presumption of
continued majoritystatus-is in fact nothing more than
a convenient legal fiction employed by the Board to
insure the stability off the collective-bargaining rela-
tionship - by preventing frivolous And unnecessary
interruptions of that relationship. As stated by the
Board in Terrell Machine Company, ``[t]his presump-
tion is- designed to promote stability in collective-
bargaining relationships, without -impairing the free
choice -of employees. " 11
Since they are essentially legal fictions, however,
presumptions should not be employed where they fail
utterly to mirror reality (as when the probability of
the fact presumed to, be in existence diminishes to
nothingness) or when their use comes up , against
some. important, countervailing policy, consideration
(such as employee free choice). In my opinion,- the
majority has here extended an acceptable and useful
fiction (the presumption of continued majority status)
to the point where `it no' longer 'reflects `probable
reality and, instead of promoting-bargaining stability,
works to the detriment-of employee free choice. '
While Respondent did not engage in any potential-
ly improper interrogation of its employees, it -did
place- in the record the evidence available to, it
supporting its position that there is a doubt as to the
Union's -majority status. This included: (1) evidence
of Local 86's poor financial picture, (2) association-
wide, figures concerning Local 86 membership, (3)
newspaper reports that Local ,86 was reorganizing, (4)
evidence of a high employee turnover rate, (5) reports
of employee dissatisfaction with Local 86, and (6)
reports of Local 86's inactivity. Clearly the record
does not support any finding of bad faith on the part
of Respondent in doubting Local 86's majority status.
I would accordingly refuse to presume that Local
86 continues to be majority representative of Respon-
dent's employees and would require Local 86 to come
forward with its own evidence of majority. As Local
86 has not done so, I would dismiss the complaint,
thereby leaving the parties and, most importantly, the
employees to the Board's representation procedures if
there- exists a question _concerning-representation in
the single-employer unit.
9 Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245
(C.A. , 2, 1966), cert. denied 385 U S. 1005 (1967); Mor Paskesz, 171 NLRB
116 (1968).
10 See Sheridan Creations, supra
11 173 NLRB 1490,1481 (1969).
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard in South _ Lake Tahoe, California, on
September 23, 24, and 25, 1975. The charge was filed on
November 19,1974, by Hotel-Motel-Restaurant Employees
& Bartenders Union, Local 86, Hotel & Restaurant
Employees '& Bartenders International Union, AFL-CIO,
herein called the Union. The complaint issued on August
13, 1975 ,- and alleges that Tahoe Nuggett, Inc. d/b/a Jim
Kelley's Tahoe Nugget, herein called Respondent, violated
Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended.
Issues
The ultimate issue -is whether Respondent, violated
Section 8(a)(5) and (1) of the Act by withdrawing recogni-
tion from and refusing to bargain with the Union as the
collective-bargaining representative-of its bar and culinary
employees. The subsidiary issues are: - - -
-1. Whether the rebuttable presumption of the Union's
continued majority status which flowed from a contract in a
multiemployer bargaining unit survived Respondent's time-
ly withdrawal from that unit and was applicable to a single-
employer bargaining unit.
2. If .the presumption did apply, whether Respondent
has rebutted that presumption by affirmatively establishing,
that the Union had, in fact, lost its,majority or by showing
that Respondent had sufficient objective basis for reason-
ably doubting the Union's continued majority.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross -examine
witnesses , to argue orally, and toafile briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, Respondent; and the Charging Party.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the operation of
a gaming casino at Crystal Bay, Nevada. During the year
immediately preceding issuance of complaint , Respon-
dent's gross revenue was in excess of $500 ,000, and during
that same year , Respondent purchased and received goods
and materials valued in excess of $10,000, which directly
originated outside of Nevada. In addition to employing
gaming control personnel , Respondent in its busy season
employs about 52 employees in its bar and culinary
operation . In its low season, Respondent employs about 35
or 40 employees in that group. The culinary classifications
include cooks , waitresses , busboys, bartenders , and porters.
Thus, it appears that Respondent, in addition to operating a
gaming casino , has bar and restaurant facilities. i
Respondent is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and it will effectuate the
policies of the Act for the Board to assert jurisdiction. See
The Anthony Company d/b/a El Dorado Club, 220 NLRB
886 (1975), and cases cited therein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The Reno Employers Council , herein called the Associa-
tion, is a Nevada corporation with an office in Reno,
Nevada . It is a voluntary association of employers engaged
in the casino , restaurant , and other industries . The Associa-
tion exists , in part, for the purpose of representing its
member-employers in collective bargaining and administer-
ing collective-bargaining agreements, with various, labor
organizations including the Union . The Union . and the
Association entered into a multiemployer collective-bar-
gaining contract on August 3, 1959. The Association agreed
to the contract on behalf of employers it represented in the
Lake Tahoe area. Succeeding contracts followed,2 with the
last effective from December 1, 1971, through November
30, 1974.3 That contract was between the Union and the
Association on behalf of the individual members thereof
signatory thereto . Five employers were signatory to the
contract, including Respondent .4 Employees covered by
that contract were those in the employers ' bar and culinary
operations at Lake Tahoe.
Respondent opened for business on July 2, 1962: Respon-
dent joined the Association , and became a party to the
i In a petition for an election filed by Respondent , it describes its type of
establishment as "food service and gaming casino "
2 In some of these contracts new employer -members of the Association
were added and other employers were deleted
3 Nevada is a right-to-work State and none of the contracts contain a
umon-security clause.
4 The signatory employers were Barney's Club , Harvey's Resort Hotel,
Nevada Lodge , Sahara-Tahoe, and Respondent.
s The General Counsel concedes in its complaint that the withdrawal was
timely
multiemployer bargaining agreement between the Associa-
tion and the Union that was effective from November 30,
1962, through November 30, 1965 ..Respondent continued
to be a party to the successive contracts through the one
that expired on November 30, 1974.
On September 18, 1974, Respondent timely withdrew its
membership from the Association.5 On October 23, 1974,
Respondent refused to bargain with the Union, and
Respondent has withdrawn recognition from the Union.
On July 25 , 1975, Respondent filed a petition for an
election with the Board . That petition , seeks an election
among Respondent's culinary and bartender employees in
a single-employer unit . The complaint alleges a refusal to
bargain in that single -employer unit . The complaint alleges,
the answer admits, and I find that the appropriate bargain-,
ing unit is:
All employees employed by the Respondent in its bar
and culinary operations at its Crystal Bay, Nevada
operations, excluding all other employees , guards and
supervisors as defined in the Act. -
B. The Testimony-
1. The testimony . of Staff and -the LM-2 forms
Alfred E . Staff is the bar manager for the Overland Hotel
in Reno . From early July 1973 to June 7, 1974, when a
trusteeship was imposed on the Union , Staff was president
of the Union.6 During that time , Staff, in addition to being
union president, was a full-time bartender . The only full-
time paid union officer was Secretary-Treasurer and
Business Manager E . W. Tucker. Staff testified that a
number of events occurred during the summer of 1974.
However, it is apparent that these events took place before
the trusteeship was imposed, and the sequence of events set
forth below is keyed to the June 7 imposition of the
trusteeship . Otherwise, the following fmdings are based on
Staffs credited testimony . In June 1974, the Union had
about $11 ,000 in its treasury, and that amount was
decreasing . However, the Union's liabilities did not exceed
its assets . About that time , the Union had approximately
1,000 members , of whom between 700 and 800 were paid up
in their dues .? Sometime before the trusteeship was im-
posed, the Union sent Business Manager Tucker to the
headquarters of the International in Cincinnati to see if he
could obtain some money to help the Union organize. The
executive committee had discussed the need to obtain more
members and to build the membership up to a point where
the Union could have some strength when it met with the
employers to negotiate the next contract . Tucker went to
Cincinnati and discussed the matter with representatives of
the International . He then returned and reported to the
executive committee that the International would give the
6 Staff was unsure on his dates . He averred that he believed the
trusteeship was imposed in August , but that it might have been in June.
Howard Lawrence; a business representative who is the chief executive
officer of the Union in the Lake Tahoe area, testified that the trusteeship was
imposed on June 7, 1974. I credit Lawrence.
T The highest number of members during StafFs term of office was about
1,200.
JIM KELLEY'S TAHOE NUGGET 361
Union money to organize if the officers resigned, the Union
went into a trusteeship, and the International administered
the Union. The executive committee decided to let the
International take over. The matter was brought up at the
next regular meeting of the Union, and a majority of the
membership voted to accept the trusteeship. The officers
resigned, and on June 7, 1974, the trusteeship was imposed.
Al Barmlet was appointed international trustee and former
Business Manager Tucker became his assistant.
During the time that he was president, Staff spoke to
some union bartenders he worked with at the Overland
Hotel, and he received comments from them to the effect
that they were discouraged with the Union, that the Union
didn't do anything for them, and that they did not like the
way the Union was being run. Some bartenders said, "when
is the Union going to be able to do anything for us," "they
never do nothing for us," "what's the sense of joining a
union." He never received any compliments on the perfor-
mance of the Union. In addition to talking to bartenders at
the Overland Hotel, he spoke to some culinary workers at
various clubs in the Reno area in an attempt to organize
them. However, there is no evidence in the record that any
employees of Respondent expressed dissatisfaction with the
Union to Staff.
At the end of the hearing, Respondent offered in
evidence certain LM-2 forms for the years 1972 through
1974 which the Union had filed with the Department of
Labor. Those exhibits were received in evidence. No
testimony was offered to explain or interpret the exhibits.
The report for 1974 states that the Union was placed under
an international trusteeship on June 7, 1974, and that
Bramlet was appointed international trustee. The reports
show that the Union received $84,891 in dues in 1974;
$74,142 in 1973; and-$77,117 in 1972.
There is no evidence in the record that Respondent knew
of the existence of the LM-2 forms at a time when it decided
to withdraw recognition from the Union. In a similar vein,
there is no indication in the record that Respondent knew
of the substance of the matters testified to by Staff at that
time. Respondent did not rely on those matters in deciding
to withdraw recognition from the Union, and apparently
Respondent is relying on them solely for the purpose of
attempting to prove that the Union, in fact, did not have
majority status.8 With regard to the matters set forth below,
Respondent contends that it did have a reasonably based
doubt as to the Union's majority, upon which it acted in
withdrawing recognition.
2. The remarks by employees of Respondent and
the Newspaper articles
Dale McHatton is Respondent's manager .9 In early
September 1974, McHatton overheard Dave Wilmurth,
who at the time was employed by Respondent as a cook,
speaking to Union Representative Hart. Wilmurth told
8 As the Board held in Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho, and its Employer-Members 213
NLRB 651 (1974), an employer's reasonably based doubt of a union's
ma o status must be predicated on information it had at the time of its
refusal to bargain. See also Orion; 210 NLRB 633 (1974), enfd. 515 F 2d 81
(C.A. 7, 1975)
9 The complaint alleges, the answer admits, and I find that McHatton is a
supervisor within the meaning of the Act.
Hart that he was making over scale without paying dues
and he asked Hart what the Union could do for him.
Wilmurth then said to McHatton, "if I don't have to pay
any dues and I'm making over scale now, what good are
they going to do, isn't that right, Dale." McHatton replied
that it was Wilmurth's problem.1° The same day, McHatton
reported the incident to Respondent Secretary-Treasury
and Comptroller Francis R. Cannon.
About the same date, McHatton overheard waitress Pat
Tucker, talking to another waitress. He heard Tucker say,
"I'm not going to join until I find out if they can do more
than what the employer is doing for me now." McHatton
also reported that incident to Cannon, who replied that
Tucker had made similar remarks to him. In July or August
1974, Tucker had told Cannon-that she had never belonged
to the Union and that she couldn't see where the Union
could do anything.
During the period between July and October 1974,
McHatton overheard bits and pieces of other conversations
between employees about the status of the Union and how
many people the Union had. He testified that-he could
recall conversations but not the people involved. He
averred that they talked about the Union going broke, the
Union not having enough organized people, and their
feeling that the Union could not do anything for them. He
reported those bits and pieces of conversations to manage-
ment officials.
Howard Schlegel was swing-shift manager for Respon-
dent from May through December 1974.11 In mid-Septem-
ber 1974, he overheard a conversation between two women
in a restaurant booth at the club. One of them was Evelyn
Drew, one of Respondent's casino cashiers.,He heard Drew
say that she didn't care for union activities and she couldn't
understand what they would do for her. As a casino cashier,
Drew was not within the bar and culinary employees
bargaining unit. Schlegel reported the incident to Cannon.
Schlegel testified that-he overheard other conversations by
employees in September, but that he didn't recall any
specific statements or any particular persons.
All of the incidents that were reported to Cannon were, in
turn, reported by Cannon to Respondent General Manager
Miltonberger and Respondent President Kelley.
Cannon credibly testified that sometime after July 22,
1974, he read articles in the Reno Journal and in the
Gazette which reported that the Union was reorganizing
and had brought in organizers.
3. The conversations between Respondent's
supervisors and the decision to withdraw
recognition
Cannon, in his testimony, was very vague on dates. He
averred that he had had a number of conversations with
McHatton and Schlegel between the end of July and the
early part of October 1974, but that he didn't remember
io This finding has been based on the credited and uncontradreted
testimony of McHatton. The Union's records show that Wilmurth applied
for membership in the Union and paid initiation fees and dues on September
20, 1975. However, that fact does not refute McHatton's assertion that
Wilmurth made the remarks set forth above.
ii Schlegel was a supervisor within the meaning of the Act.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dates . On one occasion he asked McHatton if there had
been any union activity -around, and McHattori said that
there had been people in there.12 Cannon asked McHatton
if McHatton heard any information from the' employees
about the Union. McHatton replied that there had been
some discussion with people and remarks were made to the
'effect that they couldn't see whit the Union could do for
them. Cannon had a similar discussion withSchlegel.
After expressing considerable ambiguity on the dates,
Cannon averred that he had a discussion with Respondent
President Kelley and General Manager Miltonberger
during the first part of August 1974. Kelley asked Cannon
whether there ever had been any grievances filed, and
Cannon replied that to his knowledge there had been
none.13 They also discussed the amount of turnover among
Respondent's employees. The turnover ratio was about 4 to
1 a year, with four employees being hired for every one that
remained per year.14 Kelley asked Cannon whether Can-
non thought the Union hid sufficient membership in the
operation at the lake. Cannon replied that he didn't think
the Union had controlling membership because of the
amount of personnel turnover. He also told Kelley that he
had been informed by McHatton and Schlegel that they
had been told that the Union couldn't do anything for the
employees. In addition, he said that the rumor was that the
Union had about 800 to 1,000 members in the entire area.
Cannon also told Kelley that they had never had any
correspondence as far as an election was concerned.
On September 10 or 12, 1974, Cannon, Kelley, and
Miltonberger had another meeting . At that meeting Kelley
asked Cannon whether they should withdraw from the
Association. Cannon replied that management felt that the
Union didn't have enough employees to win an election,
and he recommended to Kelley that they withdraw recogni-
tion from the Union. He also said that the Association
should be notified that they were withdrawing. He told
Kelley that the rumor was that the Union-was in trouble
financially and that the Union was trying to organize and
obtain funds from out of State in order to continue their
organizing. Miltonberger said that he felt the same as
Cannon, and that the Union did not represent the majority
of the employees at that time.
Cannon, Miltonberger, and Kelley met again on Septem-
ber 16, 1974. Cannon said that he didn't think that the
Union represented the employees and that based on the
information he had received, both directly and indirectly,
they should challenge the Union as far as an election was
concerned. He said that the turnover was so great that he
could not see how the employees would bring in a vote for
the Union. At that meeting, the three of them made the
decision that the Union's majority status should be chal-
lenged.-
12 McHatton testified that he couldn't "recollect" whether he had seen
union business agents on the premises for business purposes during the 13
years he was day-shift manager before September 1974. Schlegel testified
that during the time he worked on the premises between May and December
1974, he saw one union representative in September, and that was Bob Hart.
Business Representative Lawrence testified that he had several conversations
with Schlegel on the premises between June and September 1974, as well as
two or three such conversations after September. I credit Lawrence.
13 Cannon testified that he didn't recall anything being filed showing
violations, that he was not aware of any contract violations, and that it was
Respondent's policy to abide by the contract.
4. The Union's demand for negotiations and
Respondent's refusal
The last contract expired by its terms on November 30,
1974. By letter datedJuly 22, 1974, Union International
Trustee Al Bramlet notified Respondent of his desire to
change and modify the contract and sought to arrange for
collective-bargaining negotiations. By letter dated Septem-
ber 18, 1974, to the Association, Respondent resigned its
membership in the Association and withdrew its authoriza-
tion for the Association to represent it in connection with
collective bargaining or labor relations. A copy of that
letter was sent to the Union with a covering letter dated
September 18, 1974, notifying the Union that the outstand-
ing contract was terminated effective as of the term thereof.
By letter dated September 27, 1974, Phillip Bowe, the
Union's attorney, acknowledged Respondent's September
18, 1974, letter withdrawing from the Association and
requested Respondent to contact Bramlet to discuss a
convenient time for negotiations. By letter dated October
11, 1974, Respondent informed the Union that it had never
dealt with either Bowe or Bramlet, that it understood that
Bramlet represented a local in Las Vegas, and that it did not
understand the Union's request. Bowe responded by letter
dated October 15, 1974, in which he told Respondent that
Bramlet had been appointed international trustee and that
Tucker was Bramlet's assistant. On October 18, 1974, Bowe
once again wrote to Respondent demanding that negotia-
tions begin. By letter dated October 23, 1974, Respondent's
attorney, Berke, reminded the Union that Respondent had
previously withdrawn from the multiemployer unit and
notified the Union that it its demand for bargaining was a
request to bargain in a single-employer unit: "then at the
instructions of our client, we inform you that our client has
a genuine doubt that your local represents on uncoerced
majority of its employees in an appropriate unit." The letter
went on to state that Respondent would fulfill whatever
legal obligations it had if the Union won a Board-conduct-
ed election.
The Union filed the unfair labor practice charge on
November 19, 1974, in which it alleged that Respondent
unlawfully refused to recognize and bargain with it.
Respondent admits that commencing on or about Octo-
ber 23, 1974, it has refused and continues to refuse to
bargain collectively with the Union and has withdrawn
recognition from the Union.
On July 25, 1975, which was about 9 months after the
refusal to bargain and about 8 months after the filing of the
14 Though the turnover ratio varied considerably with different groups of
employees, it was approximately 4 to 1 among the culinary employees as well
as the average for the employees as a whole The turnover for cashiers was
small, but for dishwashers it ran about 10 to 1, for bus personnel, 6 or 8 to 1,
for porters, 8 to 1, and for cooks, 4 to 1. A compilation from Respondent's
records, which was prepared shortly before the hearing, showed that of
approximately 102 culinary employees who were on Respondent's payroll
sometime in 1974, 21 had been employed at some point in 1973, and 10 had
been employed at some point in 1972. Respondent's average employee
complement in its peak season was about 87, and in its low season about 55,
with the high in the culinary unit about 52 and the low about 35 or 40.
JIM KELLEY'S TAHOE NUGGET 363
charge, Respondent filed a petition for an election with the
-Board.15
C. Analysis and Conclusion's
1;--The presumption of majority
As the Board held in Walter E. Heyman d/b/a Stanwood
Thriftmart, 216 NLRB 852, 853 (1975):
A contract, lawful on its face, raises a presumption that
the contracting union was the majority representative at
the time the contract was executed, during the life of the
contract, and thereafter.2
2 Shamrock Diary, Inc., 119 NLRB 998,1002 (1957), and 124 NLRB
494, 495-496 (1959), enfd. 280 F.2d 665 (C.A.D.C.), cert. denied 364
U S. 892 (1960).
The legality of the Union's initial recognition by Respon-
dent is not subject to attack in this case. In Stanwood
Thriftmart, the Board said:
The Board has held that events time-barred by the
limitations provision of Section 10(b) of the Act may
not be used to overcome the presumption of majority
status raised by a contract valid, on its face. The
contract contains a clause which recognized the Union
as majority representative and a lawful union-security
clause. The legality of the Union's initial recognition by
Respondent was precluded by Section 10(b) of the Act
from being attacked at the time of Respondent's
termination of the contract and withdrawal of recogni-
tion from the Union. Therefore, we find that Respon-
dent may not defend its refusal to continue to recognize
and bargain with the Union by an attack on its initial
recognition of the Union. [Footnote omitted.]
In the instant case, the presumption of continued
majority status is 'based on a contract in a multiemployer
bargaining unit. The complaint alleges a refusal to bargain
in a single-employer bargaining unit-. A serious question is
presented as to whether the presumption of continued
majority which flowed from the existence of the multiem-
ployer contract survived the withdrawal of Respondent
from the multiemployer unit and can be applied to the
newly created single-employer unit. There has never been
any contract between Respondent and the Union in the
single-employer unit and, therefore, any presumption of
majority mush flow from Respondent's inclusion in the
multiemployer contract that expired on November 30,
1974.
In Downtown Bakery Corp., 139 NLRB 1352 (1962)
enforcement denied in pertinent part 330 F.2d 921 (CA. 6,
1964), a successor employer refused to bargain with a union
where that union was the Board-certified representative of
the employees in a multiemployer bargaining unit which
included -a predecessor employer. In that case the predeces-
sor employer had signed a separate collective-bargaining
15
That petition mistakenly .shows the contract expiration date as
February 15, 1975. In fact, the contract expired on November 30, 1974.
16 Much ofthe legal analysis set forth below is the same as that which is
contained in my Decision in Sahara-Tahoe Corporation, d/b/a Sahara Tahoe
Hotel, 229 NLRB No. 151 (1976), a case that involved many ofthe same legal
principles
agreement with the -union. Relying on a presumption of
continued majority, the Board found that the successor
employer violated Section 8(a)(5) of the Act by refusing to
bargain with the union in the single-employer unit.-The
Sixth -Circuit refused to enforce the Board's bargaining
order, holding in part that there was not sufficient evidence
in the record- to support a finding of majority status of the
union.
In The Richard W.- Kaase Company, 141 NLRB 245
(1963)i enforcement denied in pertinent part 346 F.2d 24
(C.A. 6, 1965),'a similar factual pattern was presented,' and
the Board followed its Downtown Bakery precedent. In
Richard W. Kaase Co. case, a union was certified as the
collective-bargaining agent of the employees of employers
in a multiemployer bargaining unit which included a
predecessor employer. That employer executed a separate
collective-bargaining agreement. Thereafter, a successor
employer continued to recognize the predecessor's contract
but later withdrew' recognition. The Board found that the
successor violated Section 8(a)(5) of the Act. The Sixth
Circuit once again refused to enforce the Board's order,
holding: "the ambiguity -inherent in the multi-employer
election here relied on vitiates its efficacy to prove a
majority as to any single employer."
The Board law established by the Downtown Bakery and
Richard W. Kaase Co. cases is not directly applicable to the
instant situation. In each of those, cases, the individual
employer had signed separate collective-bargaining con-
tracts with the union and the presumption of continued
majority could flow from those contracts rather than from
the multiemployer certification. In - the instant case, the
initial collective-bargaining relationship was in a multiem-
ployer bargaining unit and the contracts to which Respon-
dent was a party were multiemployer bargaining contract.'?
However, I believe that the presumption of continued
majority flowing from the multiemployer contracts requires
a derivative presumption of the Union's majority status
,which is applicable to each of the employer-members of the
multiemployer bargaining unit separately. Unless a majori-
ty of an employer's employees desire representation by a
,union, that employer may not lawfully force representation
on them by joining a multiemployer bargaining arrange-
ment. Mohawk Business Machines Corporation, 116 NLRB
248 (1956); Dancker & Sellew, Inc. 140 NLRB 824 (1963),
lenfd. 330 F.2d 46 (CA. 2, 1964). Thus, Respondent would
have violated the Act in 1962 when it became party to the
multiemployer collective-bargaining agreement if a majori-
ty of its employees did not desire representation. Any unfair
labor practice charge relating to such a violation would
have had to have been filed within 6 months from that time.
Respondent may not now either attack the initial bargain-
ing relation or use it to establish a defense to a refusal-to-
bargain complaint. As the Board held in North Bros. Fora
Inc., 220 NLRB 1021(1975):18
Section 10(b) of the Act confines the issuance of
unfair labor practice complaints to events occurring
17 It is also noted that, unlike the instant situation, both those cases
involved conflicting representational claims by oval unions.
18 See also Stanwood Thrift mart, supra.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the 6 months immediately preceding the filing of
a charge and has been interpreted by the Supreme
Court to bar finding any unfair labor practice, even
though committed within that period, which turns on
whether or not events outside that period violated the
Act. Bryan Manufacturing, Co. 3 The Court,, holding that
maintenance and enforcement of a contract more than
6 months after recognition of a minority union did not
violate the Act, relied in part on the legislative history
indicating that Congress specifically intended Section
10(b) to apply to agreements with minority unions in
order to stabilize bargaining relations. Noting that labor
legislation traditionally entails compromise, the Court
observed.
that the interest in employee freedom of choice is
one of those given large recognition by the Act as
amended. But neither can one disregard the
interest in "industrial peace which it is the overall
purpose of the Act to secure." 4
The Board, in light of Bryan, has since held that Section
10(b) is applicable to a refusal-to-bargain defense that
the bargaining relation was unlawfully established 5
3 Local Lodge No. 1424, JA M, AFL-CIO [Bryan Manufacturing Co.]
v NLRB, 362 U.S. 411 (1960).
4 Id at 428, citations omitted.
5 Barrington Plaza and Tragniew, Inc, 185 NLRB 962 (1970),
enforcement denied on other grounds sub nom Tragmew, Inc., and
Consolidated Hotels of California v N.LR B., 470 F 2d 669 (C.A. 9,
1972); Roman Stone Construction Company, and Kindred Concrete
Products, Inc., 153 NLRB 659, fn. 3 (1965).
Respondent may not; at this late date, attack either the
initial recognition of the Union by Respondent or the initial
contract. It cannot defend against the refusal-to-bargain
complaint on the ground that the original contract was
entered into at a time when the Union did not represent a
majority of the employees of Respondent. Nor can it
defend on the ground that the Union did not represent a
majority of the employees in the overall multiemployer
bargaining unit. That contract must be considered valid on
both those grounds. The presumption of majority status
which continued over the years based on successive
contracts applies both as to the employees of Respondent
and to the employees in the multiemployer unit. I therefore
find that the General Counsel has properly relied on that
presumption to establish the Union's majority in the unit in
question . It remains to be considered whether Respondent
has successfully rebutted that presumption.
2. The attempt to rebut the presumption
a. The background law
In James W. Whitfield, d/b/a Cutten Supermarket, 220
NLRB 507 (1975), the Board summarized the existing law,
holding at 508:
It is well settled that Section 8(a)(5) and Section 8(d)
of the Act require an employer to recognize and bargain
in good faith with the bargaining representative selected
by a majority of its employees. That recognition
establishes a presumption of majority status which, in
circumstances such as this, may be rebutted.6 The
employer may lawfully refuse to bargain with the union
if it rebuts the presumption by affirmatively establishing
that the union has in fact lost its majority status, or
shows that it has sufficient objective bases for reason-
ably doubting the union's continued majority status.?
To establish sufficient objective bases, however, re-
quires more than the mere assertion thereof based upon
the employer's subjective frame of mind.8 Furthermore,
the employer must not have engaged in any conduct
tending to encourage employee disaffection from the
union-9
6 Cf N L.R B v. Frick Company, 423 F.2d 1327 (C A. 3, 1970),
Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).
7Celanese Corporation ofAmerica, 95 NLRB 664, 672 (1951), Peoples
Gas System, Inc, 214 NLRB 944 (1974).
8 Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement
denied 359 F.2d 799 (C A. 7, 1966), Automated Business Systems, Inc, a
Division of Litton Business Systems, Inc, 205 NLRB 532 (1973),
enforcement denied 497 F.2d 262 (C.A. 6, 1974).
9 Peoples Gas Systems Inc., supra.
In Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho and its Employer-
Members, 213 NLRB 651, the Board held that these
principles are equally applicable whether the union was
certified by the Board or was recognized without Board
certification. In that case, the Board held that the existence
of a prior contract, lawful on its face, raised a presumption
that the union was the majority representative at the time
the contract was executed and also raised the presumption
that the union's majority continued at least through the life
of the contract. The Board held that "Following the
expiration of the contract . . . the presumption continues
and, though rebuttable, the burden of rebutting it rests on
the party who would do so. . . ..
The complaint does not allege that Respondent engaged
in any unfair labor practice other than the refusal to
bargain. There is no contention that Respondent engaged
in any other conduct tending to encourage employee
disaffection from the Union.
b. The alleged actual loss of majority
For the reasons set forth above, the presumption of
continued majority which flowed from the contract, sur-
vived the change in the bargaining unit and applied to the
single-employer unit. It follows that the change in the unit
is not in itself proof that the Union no longer represented a
majority of Respondent' s employees.
In June 1974 the Union had about $11,000 in its treasury
and that amount was decreasing . However, the Union's
liabilities did not exceed its assets , and even if they did the
Union's financial condition would not indicate how many
employees the Union actually represented.
About that time the Union had approximately 1,000
members, of whom between 700 and 800 were paid up in
their dues. Those are industrywide figures and there is no
way to tell from them how many of Respondent's employ-
ees were union members. Even if Respondent had estab-
lished that a majority of its employees were not members of
the Union, such a showing would not be the equivalent of
establishing a lack of desire of those employees for union
JIM KELLEY'S TAHOE NUGGET 365
representation. Employees may desire representation with-
out wanting to join a union or pay dues. Orion Corporation,
210 NLRB 633 (1974), enfd. 515 F.2d 81 (C.A. 7, 1975). As
the Board stated in Wald Transfer & Storage Co., 218
NLRB 592 (1975): _
It has been clearly established that a distinction exists
between union membership and union support, fore-
closing relying upon one as evidence of the other. Here,
union membership being voluntary in this right-to-work
State emphasizes that distinction. Many employees
while approving of the Union may not choose to give it
their financial support or participate as members .3
3 See Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427
F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 ; N.L RB. v
Gulfmont Hotel Company, 362 F.2d 588 , 592 (C.A. 5, 1966).
The Union sought ' funds from the International to
organize - employees in the industry and to build up its
membership so that it would have strength in negotiating
the next contract. The Union also accepted International
trusteeship. Those facts, however, do not indicate whether
or not - Respondent -represented a majority-of Respondent's
employees . The Union wanted to obtain more members in
the industry and it engaged in some internal revisions, but it
would be sheer speculation to make an evaluation based on
those facts as to the number of Respondent 's employees the
Union actually represented.
Some of the bartenders at the Overland Hotel in Reno
told Staff, in substance , that they were dissatisfied with the
Union . There is no evidence in the record that any of the
employees of Respondent ever expressed dissatisfaction
with the Union to Staff.
There is nothing in the LM-2 forms filed by the Union
that can be read to indicate that a majority of Respondent's
employees did not want representation by the Union.
The above matters 'in themselves and when considered in
connection with the matters set forth below relating to
Respondent 's claimed reasonable doubt as to the Union's
majority, fall short of establishing that the Union in fact did
not represent a majority of Respondent's employees.
c. The alleged reasonably based doubt of the
Union 's majority status
Respondent made its decision to question the Union's
majority status on September 16, 1974 . That decision was
made while Respondent was still part of the multiemployer
bargaining unit and still bound by the multiemployer
contract . At the same time that it decided to question the
Union's majority, Respondent also decided to withdraw
from the Association . The withdrawal from the Association
took place 2 days later on September 18, 1974, and both
Respondent and the Union were notified . However, Re-
spondent did not notify the Union that it' questioned the
Union's majority status until October 23 , 1974 . Respondent
did not file a petition for an election until July 25, 1975.
The Board has long held that questions relating to an
employer's reasonably based doubt as to a union 's contin-
ued majority cannot be resolved by the application of any
mechanical formulas and can only be answered "in the light
of the totality of all circumstances involved in a particular
case." Celanese Corporation of America, 95 NLRB 664
(1951). In the instant case Respondent has raised a number
of matters on which it claims to have based a reasonable
doubt as to the Union's majority. These matters must be
considered in the context of the major disruption in the
bargaining unit which occurred when- Respondent with-
drew from the Association and the filing by Respondent of
a petition for an election. Also to be considered, however, is
the fact that Respondent made the decision to question the
Union's majority before it withdrew from the multiemploy-
er bargaining unit and the fact that Respondent did not see
fit to file a petition for an election until some 10 months
after it decided to question the Union's majority.
At a meeting during the first part of August 1974,
Respondent Secretary-Treasurer and Comptroller Cannon
told General Manager Miltonberger and President Kelley
that the rumor was that the Union had about 800 to 1,000
members in the entire area. Membership in the Union is
one factor to be considered. People's Gas System, Inc., 214
NLRB 930 (1974); Convair Division of General Dynamics
Corporation, 169 NLRB 131 (1968). -However, Cannon's
remarks were not only based on rumor but were keyed to
union membership in the industry as a whole rather than to
membership among Respondent's employees.-In addition,
as, is set forth in more detail above, a lack of employee
membership cannot be equated to a lack of desire of
employees for union representation. Orion Corp., supra;
Wald Transfer & Storage Co., supra.
Sometime after July 22, 1974, 'Cannon read articles in
local newspapers which reported that ' the ' Union was
reorganizing and had brought in organizers. Cannon's
testimony with regard to those newspaper articles gives little
support for his contention that he reasonably doubted the
Union's majority status. -
At a meeting on September 10 or 12, 1974, Cannon
reported to the other company officials that the rumor was
that- the Union was financially in trouble, and that the
Union was trying to organize and obtain funds from out of
state. Rumors are not objective criteria. In any event a
union may have financial difficulties'-whether or not it
represents a- majority, and -organizational activity, only
indicates that a union desires more members than it has.
At the meeting in the first part of August 1974, Cannon
told-the other officials of Respondent that, to his knowl-
edge, no grievances had ever been filed by the Umon.19 A
union's lack of activity is one factor that must be evaluated
in-determining whether a company has a reasonably based
doubt of a union's majority. Taft Broadcasting, 201 NLRB
801 (1973). However, in the instant case there is no showing
that the filing of grievances was warranted, and-there is no
showing, that the Union failed to actively represent the
employees in the past. Cannon testified that sometime
between the end of July and early October 1974, he asked
Supervisors McHatton and Schlegel if there had been any
union activity around and McHatton told him there had
been people in there. Apart from that testimony and
Cannon's assertion that no grievances had been filed, there
19
Cannon also said that there never had been any correspondence as far
as an election was concerned. As is set forth above, the presumption of
majority can be based on either certification or voluntary recognition.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence that Cannon believed that the Union had
been inactive in the past or that the Union's activity during
the summer of 1974 was substantially different than it had
been before.20
In the first part of August 1974, Cannon spoke to Kelley
and Miltonberger about the turnover rate of its employees.
The rate was about 4 to I a year, with four employees being
hired for every one that remained per year. Cannon said
that he didn't think the Union had a controlling member-
ship because of the amount of personnel turnover. At the
meeting of September 16, 1974, at which the decision to
question the Union's majority was made, Cannon told the
other officials of Respondent that-the turnover was so great
that he could not see how the, employees would bring in a
vote for the Union. High--turnover is one circumstance
among others that must be considered. People's Gas System,
supra; Convair Division of General Dynamics, supra, Ken-
tucky News, Incorporated, 165 NLRB 777 (1967). However,
high employee turnover in itself is insufficient to establish a.
reasonable doubt as to-a-union's majority, and the Board
has repeatedly.held that new employees will be presumed to
support the Union in the same ratio as those they may
replace- Strange and Lindsey, Inc., etc., d/b/a, Pepsi-Cola-
Dr. Pepper Bottling Co., 219 NLRB 1200 (1-975); King Radio
Corporation,:-208 NLRB 57& (1974), enfd. 510 F.2d 1154
(C.A. 10,,1975):, -
Cannon knew that some of the employees were dissatis-,
feed with, the Union. Waitress Tucker told Cannon that-she
had never belonged to- the Union- and that she couldn't see
where the Union could do anything. Tucker made a.similar
remark to McHatton which was passed on to Cannon.
McHatton also passed on to Cannon the remark by
employee Wilmurth that Wilmurth didn't see what good the
Union was -going to do.21 In addition, McHatton told
management officials about bits and pieces of conversa-
tions he heard from other employees, the names of whom
he ,could not recall , concerning the Union going broke, the
Union not having enough organized people and their
feeling that the Union could not do anything for -them.
Schlegel-told Cannon that he overheard, casino cashier
Drew say that she didn't care for union-activities and she
couldn't unders-tand whatthe-Union could do for her. Drew
was not within the bar and culinary employees bargaining
unit. Respondent's evidence thus establishes that Cannon
had reason to believe that three named employees, one of
whom was not a member of the;bargaining unit in question,
had expressed disapproval of the Union. In addition, he
was informed that bits and pieces of overheard conversa-
tions by, an undisclosed number of other employees, also
indicated-dissatisfaction. There were between 35 and 52
employees in the bar and culinary employees unit. The
evidence adduced by Respondent falls far short of estab-
lishing that a majority of the, employees in the bargaining
unit expressed displeasure with the Union. The number of
employees who expressed displeasure -with the Union was
insubstantial with relation to the overall employee comple-
20 McHatton testified that he couldn't "recollect" whether he` had seen
Union business agents on the premises for business purposes before
September 1974: Schlegel testified that when he worked at Respondent's
premises between May and December 1974, he saw one union representative
in September. That testimony does not establish a lack of union activity. In
addition, there is no evidence that those supervisors communicated such
information to Cannon.
ment in the unit and Respondent -could -not base a
reasonable doubt of majority on such a limited number of
remarks. Cf. Strange and Lindsey Beverages, supra
In United Supermarkets, Inc., 214 NLRB 958 (1974), the
Board held that an employer did not have a reasonable
doubt based on objective facts as to the Union's continuing
majority status. The Board held:
-A showing of such doubt requires more than an
employer's mere assertion of it, and more than proof of
the employer's subjective frame of mind. The assertion
must be supported by objective considerations, that is,
some substantial and reasonable grounds for believing
the Union has lost its majority status. [Footnotes
omitted.]
After considering all of the factors set forth above, I
conclude that Respondent did not have substantial. and
reasonable, grounds for believing- the Union had lost its
majority, status. Respondent's assertion in.that regard was
based on subjective rather than objective considerations.22
In sum, I find that the- presumption of continued majority
has not been rebutted either by-a showing that the Union in
fact lost its majority status or by a showing that-Respon-
dent had a sufficient objective basis for reasonably doubt-
ing the Union's continued majority. I find that Respondent
violated Section 8(a)(5) and (1) of the Act as alleged in the
complaint. '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection' with the operations of
Respondent described in section I 'above, have a close,
intimate, and substantial relationship to trade, traffic, and
comnierce among the several States and tend to lead'to
labor disputes burdening and obstructing commerce and
the free flow of commerce. - -
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist -therefrom and to take certain affirmative
action designed to effectuate the policies'of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1)-of the Act by unlawfully withdrawing recognition
from the Union and by refusing to bargain with the Union
as the exclusive;, representative of its employees in the
aforesaid appropriate unit, ,I shall recommend that Respon-
dent be ordered.to recognize and, upon request, to bargain
in good faithwith the Union as the exclusive representative
of its employees in that unit.
21 It is noted that Wilmurth applied for membership in the Union and
paid his initiation fees and dues.
22 Cannon's remark that turnover was so great that he could not see how
the employees would bring in a vote for the Union was merely one example
of Respondent 's subjective approach.
JIM KELLEY'S TAHOE NUGGET 367
CONCLUSIONS OF` LAW
1. Respondent is an employer engaged in commerce
within' the meaning of Section 2(6) and (7) of the Act, and it
will effectuate-the policies of the Act for the Board to assert
jurisdiction.
2. The Union is a labor organization within the mean-
ing of Section 2(5),of the Act,
3. All employees employed by Respondent in its bar
and culinary operations at its Crystal Bay, Nevada,
operations, excluding all.-other employees, guards and
supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a)-of the Act.
5. By withdrawing recognition from the Union and by
refusing- to bargain with the Union, Respondent has
engaged in unfair labor,practices withm with meaning of
Section 8(a)(5) of the Act:
6. " By the foregoing-conduct, Respondent has interfered
with, restrained, and coerced employees in, the exercise of
rights-guaranteed in Section 7 of the Act, thereby engaging,
in unfair labor practices Within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER23,
The- Respondent, Tahoe Nugget, Inc. d/b/a Jim Kelley's
Tahoe Nugget Crystal Bay, Nevada, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain in good faith with
Hotel-Motel-Restaurant Employees & Bartenders Union,
Local 86, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, as the exclusive represen-
tative of its employees in the following bargaining -unit:
All employees employed by it in its bar and culinary
operations at its Crystal Bay, Nevada, operations,
excluding all other employees, guards and supervisors
as defined in the Act.
(b) In any like -or related manner, interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the ' following affirmative action which' is
necessary to effectuate the policies ofthe Act
(a) Recognize and, upon request, bargain in good faith
with Hotel-Motel-Restaurant Employees & Bartenders
Union, Local- 86, Hotel - & Restaurant Employees &
Bartenders ,International Union, AFL-CIO, as the exclu-
sive representative of its employees, in the unit described
above.
(6) Post at its Crystal.Bay, Nevada, facility copies of the
attached notice marked "Appendix." 24 Copies of the notice
on forms provided by the Regional Director for Region 20,
after being duly signed by its authorized representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply here with.
23 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided, in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
24 In the event the Board's Order is enforced by"a Judgment of a United
States Court of Appeals, the words in the notice reading"Posted by Order, of
the National Labor Relations Board," shall -read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government-
We hereby notify you that:
WE WILL NOT refuse to recognize and bargain in good
faith with Hotel-Motel-Restaurant Employees & Bar-
tenders Union, Local 86, Hotel & Restaurant Employ-
ees &-Bartenders International Union, AFL-CIO, as
bargaining unit:
All employees employed by us in our bar and
culinary operations, at our Crystal Bay, Nevada,
operations, excluding all other employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE wu.L recognize, and, upon request, bargain in
good faith with said Union as the exclusive, representa-
tive of our employees in that unit.
TAHOE NUGGET, INC.
D/B/A JIM KELLEY'S TAHOE
NUGGET