Aladdin Hotel

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 773 (N.L.R.B. 1984)

_ ALADDIN HOTEL 773
N & T Associates, Inc. d/b/a Aladdin Hotel and
General Sales Drivers,, Delivery Drivers &
Helpers, Local Union #14 affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 31-CA-13095 and 31-CA-13396
14 December 1984
DECISION AND ORDER
BY CHAIRMAN bOTSON AND MEMBERS
ZIMMERMAT AND HUNTER
On 5 March 1984 Administrative Law Judge
Gerald A. 'Wacknov issued the attached decision.
The Charging Party filed an exception and the Re-
spondent filed exceptions, a supporting brief, and
an answering brief to the Charging Party's excep-
tion.
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 ruling's; findings,' and
conclusions, as modified herein, and to adopt the
recommended Order.
The judge found that the Respondent, through
Supervisor Giantonio, violated Section 8(a)(1) by
asking employee Costanza "why he was so vocal
on behalf of the union." Relying on PPG Indus-
tries,' and two other cases 'applying PPG,' the
judge concluded that Giantonio's. question consti-
tuted an unlawful interrogation. We disagree.4
In Rossmore House, 269 NLRB 1176 (1984), the
Board overruled PPG Industries and announced
that it would henceforth evaluate interrogations ac-
cording to "whether under all of the circumstances
the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the
Act." Applying this test here, we do not find Gian-
tonio's questioning unlawful.
Giantonio's credited testimony shows that the
conversation took place on the floor of the casino
while Costanza was on duty at the Big Six Wheel.
Giantonto, the lowest ranking supervisor for one of
the 21-games, was passing by the Big Six Wheel en
1 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
2 251 NLRB 1146 (1980)
3 Host Services, 263 NLRB 672 (1982), Zero Corp ,, 262 NLRB 495
(1982), enfd 705 F 2d 439 (1st Cir 1983)
4 Member Zimmerman dissents from the reversal of this finding of the
Judge He adheres to PPG See his dissent in Rossmore House, cited infra
route to the coffee shop when Costanza said hello
to Giantonio. Giantonio stopped and asked Cos-
tanza why he was so vocal on behalf of the Union.
Costanza gave three reasons in reply: security, the
change in the toke or tip policy, and an alleged in-
cident in which Director of Casino Operations
Vickrey, rather than allowing a dealer to accept a
$1250 toke, returned it to the customer. Giantonio
responded by saying that ,new management would
probably correct any security problem; that the
originator of the change in toke policy had retired
and the old toke policy would probably be'reinstat-
ed; and that he did not,believe that Vickrey had re-
turned the toke because he was on duty that night
monitoring the tables played by the customer and
did not observe the alleged incident. That was the
end of the conversation, during which no one else
was present.
In our view, these facts reveal only casual, pri-
vate exchange between Costanza and Giantonio.
Giantonio conveyed neither threat of reprisal nor
promise of benefit during this conversation. More-
over, unlike the judge, we attach no significance to
the fact that Costanza had not previously informed
Giantonio of his union activities. Costanza, on oc-
casion, had engaged in these activities on the close-
ly monitored casino floor where 'such activities
were blatant breaches of the Respondent's rules. It
was, thus, inescapable that these activities would
and did come to management's attention, not only
through routine observation of activities on the
floor, but also because of the widespread discussion
among employees that Costanza's boldness pro-
voked. Accordingly, we shall dismiSs this allega-
tion of the complaint.
We affirm the judge's finding that the Respond-
ent, through its • supervisor Billy Mills, violated
'Section 8(a)(1) when Mills asked employee La
Fountain how he intended to vote in the election
and suggested that he might obtain a supervisory
position at another of the Respondent's casinos if
he voted no. 5
Although we agree with' the judge's ultimate
finding that the Respondent, through Supervisor
Giantonio, violated Section 8(a)(1) by asking em-
ployee Flamm on 7 August why he was so enthusi-
astic about the Union, we find that the judge's reli-
ance on PPG, overruled as noted above, was mis-
Chairman Dotson agrees with his colleagues that Supervisor Mills'
suggestion that employee La Fountain would be rewarded with a super-
visory position if he voted against the Union was an unlawful Promise of
benefits and therefore violated Sec 8(a)(1) of the Act However, the
Chairman does not consider a simple inquiry into how an employee in-
tends to vote to be a 'violation of the Act under the holding in Rossmore
House, supra, and if the inquiry here was considered separate and apart
from the promise of benefit, he would not find the former to be a viola-
tion
273 NLRB No. 105
774

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed because the evidence does not upport a
finding that Flamm Was an open union supporter.6
While Giantonio testified without corroboration
that he was aware of "rumors"—neither the source
nor nature of which were identified—that Flamm
was a vocal union supporter, the record discloses
only one specific union activity engaged in by
Flamm: He signed a union authorization card early
in the Union's petition - drive. 7 On the other hand,
Flamm testified that, in a conversation with Super-
visor Mills on 29 July, he denied that he was even
aware that an election was scheduled because "I
was little bit nervous that [Mills] might think I was
active within the Union." , Flamm was not part of
the group of employees who had contacted the
Union to initiate the union organizing among the
Respondent's employees. Flamm was not named in
the Union's letter to the Respondent in which em-
ployee organizers were identified. Viewed accord-
ingly, and under all the circumstances surrounding
the questioning of Flamm as set = forth in the judge's
decision, we find that Giantonio's interrogation of
Flamm about his union,activities reasonably tended
to restrain, coerce, and interfere with Flamm's ex-
ercise of his Section 7 rights under the Act. We
conclude - that the Respondent violated Section
8(a)(1) of the Act.8
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, N & T As-
sociates, Inc. d/b/a Aladdin Hotel, Las Vegas,
Nevada, its officers, agents, successors, and assigns,'
shall take the action set forth in the Order.
6 Member Zimmerman would find the violation even if Flamm were
an open union adherent Accordingly, he finds no fault vinth the judge's
reliance on PPG
Cf, , e g, Rossmore House, supra, 1176 (activities manifesting status as
known union adherent)
8 Chairman Dotson believes that his colleagues read the Rossmore
House holding too narrowly Even assuming Flamm was not an open
union supporter, the Board still must assess "all of the circumstances" to
determine whether "the Interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act" He finds no hint
of restraint, coercion, or interference in Giantomo's addressing this single'
question to Flamm on the casino floor and would, accordingly, dismiss
this allegation of the complaint
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Las Vegas, Nevada, on September
27, 28, 29, and OCtober 5,' 6, and 7, 1983. The charge in
Case 31=CA-13095 was filed on May 9, 1983,' by Gen-
eral Sales Drivers, Delivery Drivers & "Helpers, Local
Union #14 affiliated with the International Brotherhood
of Teamsters, Chauffeurs; Warehousemen and Helpers of
America (the_ Union), and a complaint and notice of
hearing was issued by the Regional Director for Region
31 of the National Labor Relations Board (the Board),
on June 29, 1983.
The charge in Case 31-CA-13396 was filed by the
Union on August 8, 1983. Thereafter, on August 25 the
Acting Regional Director for Region 31 of the Board
issued an order consolidating cases, consolidated amend-
ed complaint and notice of hearing alleging a violation
by N & T Associates, Inc. d/b/a Aladdin' Hotel (Re-
spondent) of Section 8(a)(1), and (3) of the National
Labor Relations Act (the Act). Respondent's answers to
the complaints, timely filed, deny the commission of any
unfair labor practices.2
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce reIevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and Respondent.
On the entire record, and based on my observation of
the 'witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a 'Nevada corporation with an office
and 'principal place of business located in Lai Vegas,
Nevada, where it is engaged in- the operation of a hotel
and casino. In the coUrse and conduct of its business op-
erations Respondent annually purchases and receives
goods or services Valued in excess of $50,000 directly
from suppliers located outside the State of Nevada, -and
annually derives gross revenues in excess of $500,000.
It is admitted, and I find, that Respondent is now, and
has been at all 'times material herein, an employer en-
gäged 'in commerce and in a business affecting commerce
within the meaning of ,Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act
III. THE 'ALLEGED UNFAIR-LABOR PRACTICES
A. The Issues
The principal issues raised by the-pleadings are wheth-
er Respondent coercively interrogated employees, -threat-
ened them with discharge, changed their work shifts, and
discharged certain employees all because of their union
All dates or time penods herein are within 1983 ,unless otherwise
specified
Certain complaint allegations pertaining to an overly broad no-
solicitation/distnbution rule, and disparate enforcement of Respondent's
bulletin board rules were settled Informally dunng the course of the pro-
ceeding, and have been deleted from the complaint
ALADDIN HOTEL 775
activity, in violation of Section 8(a)(1) and (3) of the
Act.
B. The Facts
1. Background
About the first part of May Respondent changed, its
"toke" or tip policy Prior to that time, the tokes re-
ceived by the 21-games dealers were pooled among all of
the 21-games dealers and divided equally at the end of a
24-hour period. The tokes received by the craps dealers,
however, were divided up at the end of each 8-hour shift
by the crew operating each craps table, consisting of
four individuals. Apparently to alleviate or diminish the
incentive for "hustling" or the direct solicitation by
craps dealers of either tokes or bets for dealers from cus-
tomers at the craps tables, Respondent instituted a new
toke policy, namely, that thereafter the tokes of all the
21-games dealers and craps dealers would be combined
and divided equally at the end of a 24-hour period This
was particularly disturbing to the craps dealers, as it re-
sulted in over a 50-percent reduction in their income
Primarily as a result of the new toke policy, and ap-
parently for other reasons not specified in the record,
several employees went to the union, hall on May 4 and
requested that the Union commence an organizing cam-
paign among Respondent's gaming employee. On May
4, Union President Robert Dambro sent a letter to Re-
spondent's principal owner, Edward' Torres, advising
that "This letter is to officially notify you of our intent
to organize your gaming employees at the Aladdin Hotel
effective immediately." The letter named as "in House
organizers" the following employees: Mark Erter, Bryan
Mackey, Gerald Erkenswick, Paul Citelli, Jim Harshman,
Danny Burrell, and Sonny Gee. The letter was received
by Respondent on May 5.
2. The discharges of Tocco and Citelli; threats,.
promises, and interrogation
Edward Tocco had worked for Respondent since Jan-
uary 1978 as a craps dealer. He worked the swing shift-
4 p.m. to midnight. On May 4, Paul Citelli and Bryan
Mackey, who had been to the union hall earlier that day,
as noted above, gave Tocco a union card in the dealers'
room about 3 .45 p.m., prior to the start of his shift. They
also gave him six or eight additional cards. Tocco signed
the card he was given, and during his various breaks at
work that evening he spoke to approximately 25 employ-
ees in the dealers' breakroom and elsewhere, and solicit-
ed their support for the Union.
There are four craps dealers assigned to each table
during the shift. On the four-man crew that night at table
one were Tocco, Citelli, John Wickliffe, and Joe Marti-
nez. Three dealers are always dealing or operating the
game, while the fourth is on break. Breaks are taken -ac-
cording to a rotation system, each dealer , working the
game for 60 minutes and then taking a 20-minute break.
Tocco testified that at 5:40 p.m, as he was returning
from his break, Mario Romano, swing shift pit boss, said
he wanted to talk to Tocco. Romano told him not to
"pioneer" on any labor union efforts and to "keep your
nose clean, you can't afford to lose-this job." 'Tocco said
he had nothing to do with the Union About 7 p.m., as
he was returning from another break, Romano said,
"Stay clean, now, don't say anything." Again Tocco re-
plied that he had not said or done anything.
The shift was to end at midnight. About 11:45. p.m.
Tocco was pulled off the game and was handed a termi-
nation slip by Romano, who said, "I have to let you go"
The termination slip stated that Tocco was being dis-
charged for hustling Tocco became very upset and pro-
tested the reason for the termination. Romano said,
"Well, I told you not to say anything." Tocco persisted,
stating that Romano knew that he had not been dis-
charged for hustling. According to Tocco, Romano just
looked down and shrugged his shoulders. At no time
was Tocco asked to provide management with an ac-
count of the alleged hustling incident
Paul Citelli worked for Respondent 'since October
1979 as a craps 'dealer. As noted previously, he had gone
to the union hall to seek union representation, at which
time he signed a union card and became part of the orga-
nizing committee. On the evening of May 4, he spoke to
10 or 15 employees about the Union, and distributed sev-
eral authorization cards in the dealers' room, the help's
hall, and the coffee shop, the various locations where
employees were permitted to take their breaks.
Citelli testified that during the shift - Romano asked if
he was involved in any union activities, and said if he
was involved or was seen at any meetings he would be
blackballed and would not be able to 'work and would
lose his job. Romano also said that the dealers made
enough money, that he could not understand why they
were attempting to get a union, and that -if Citelli had
nothing to do with the union activity he would always
have a job at the Aladdin. Citelli replied that what he
did on his own time was his own business, and he would
do what he believed best for himself. Despite Romano's
warning, he continued to solicit for the Union during his
breaks that evening.
After he and Romano had spoken, Citelli observed a
conversation between the owner of Respondent, Ed
Torres, Pat Kaner, a former manager, and Maurice
"Moe" Miller, then casino manager, and overheard state-
ments to the effect that "the situation had to be
quashed," and that "whatever it took they had to nip it
in the bud right then and there." Citelli did not testify
that he heard the term "union" mentioned, however.
Citelli got off work at , 11:40 'that day. Romano ap-
proached him and said he had to fire' him and that he
was sorry, but there was nothing he could do. He ex-
plained that Miller told him that he had to fire Citelli be-
cause he was hustling Romano said he knew that Citelli
had not hustled, but there was nothing he could do about
it.
Citelli testified that prior to the shift the dealers had
decided not to engage in hustling thereafter - because of
the new toke policy, which became effective that
evening. In fact, during the evening Citelli told a player
who had placed a bet for the dealers that it was not nec-
essary.
Fonley "Swede" Sorenson worked for Respondent for
5 years. His employment was terminated on June 2. He
776 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
was a floorman -in the craps pit, a supervisory position.
The floormaii is in charge of the four dealers, the
boxman; and the game in general. He is to make sure the
game is run properly and to extend credit to customers
at the table. Additionally, he is to ensure that there is no
hustling and, if he observes that customers are being hus-
tled, he is to report it or take care of the situation. Sor-
enson testified that there have been at least, one or two
occasions in the 6-month period prior to June 2 when
customers would complain to him_ about -being hustled.
Routinely, on a complaint by a customer, he would ask
what the problem was, and would then confer with the
dealer in question, the boxman who also is a supervisor
assigned to watch the game, and possibly Sorenson's su-
pervisor, the pit boss. Sorenson has given dealers -verbal
warnings for hustling. .
On, May 4, he was a floorman over ,table one, the table
on which Tocco and Citelli were alleged to have hus-
tled. Sorenson testified he did not observe hustling by
any dealers that evening, particularly. Tocco or Citelli,
and had never observed them hustling prior to this date.
Sorenson said that during the shift on May 4 there were
no customer complaints, nor did anyone from manage-
ment say that a customer had complained. Further, con-
trary to customary procedures, Sorenson was not asked
by any representative of management whether he had
observed any hustling. Sorenson recalled that earlier that
evening a player with a foreign accent was placing line
bets for the dealers on table 1. He observed a $100 bet
for the dealers and was told that the player had placed
similar bets. However, Sorenson was certain that no
player dressed in Western clothing had placed bets of any
amount for the dealers between 11 p.m. and midnight, as
contended, infra, by Miller and Romano. Further, he ob-
served that during the evening Citelli had refused a -bet
that a customer Wanted to make for the dealers, telling
the customer that it Was not necessary. This was the first
time that he had ever observed a dealer refuse a bet.
Sorenson testified that he became aware Of the union
activity early that evening when Bryan Mackey men-
tioned it to him. Near the end of the shift, Romano
showed Sorenson the termination slips for Tocco and Ci-
telli. Sorenson,asked why they were fired, and Romano
said, "For hustling." Sorenson said there had been no
hustling and Romano replied, "I know." Sorenson sug-
gested that Romano not sign the slips, and have the
person responsible for the discharges sign them. Romano
said that that was his job and 'he was required to do it.
Sorenson remarked that they were getting rid of ToCco
and Citelli because of the union activities. Romano said,
"Yes, I know." Later, Sorenson said to Romano, "Don't
use me as a witness for these terminations," and said they
would have to fire him before he would be a witness to
it. As noted above, Sorenson was discharged on June 2.
The record contains no evidence regarding the reason
for his discharge.
Bryan Mackey is a craps dealer and began working for
Respondent in 1976. He was acting as a boxman on the
evening shift on May 4, and apparently rotated between
several tables. He was working as a boxman on table 1
30 percent- of' the time between the hours of 11 p.m. to
midnight that night, and' recalls that the table was 'slow
at that time The duties of a boxinan are to supervise the
game and make sure the losing bets are picked up, the
winning bets are paid off properly, and the money is
placed in the box, and - to cosign any credit markers.
When Mackey was boxman at table 1 he did not observe
either Tocco or Citelli hustling any customers. While he
did riot observe any $100 line bets for the dealers that
evening, he'did observe Citelli refuse a bet.
Mackey testified that generally when a customer com-
plains about hustling the bustomer would first go to a pit
boss who, in turn, generally goes .to the immediate super-
visor or 'floorman on the game to inquire about the cir-
cumstances. Sometimes the- boxman is also -questioned
about the matter. This procedure is for the purpose of as-
certaining whether the allegation is true, as the player
could have been disgruntled and perhaps misinterpreted
the dealer's conduct. Mackey was never asked about any
alleged hustling during the shift.
'Joe Martinez began working for Respondent in 1980
and is still employed as a craps dealer. He worked on the
shift Witli Citelli and Tocco the night they were termi-
nated.. He 'did not observe any hustling, and does not
recall any $100 line bets for the dealers at any time
during the shift.
John Wickliffe has worked for Respondent since 1980
as a craps dealer. He also worked on the shift in question
with Tocco and Citelli. He did not observe any hustling
that evening._ He recalls that about midway through the
shift a customer was making $50 and $100 line bets for
the dealers. However, there were no such bets placed
during the last ,hour of the shift. Wickliffe acknowledged
that while some dealers hustle or ask for' bets, the dealers
were 'in general agreement Prior to the shift that they
Would refrain from this practice so there would be no
opportunity for Respondent to discharge them.
Miller testified that about 11:45 p.m. on May 4, he
overheard a conversation between Romano and a cus-
tomer dressed in western attire and with a Texas or
southern accent. Miller's testimony is as follows:
To the best of my recollection I was on the tele-
phone and Mr. Romano just came into 'the pit, and
a gentleman came over from the crap table and
started complaining about being hustled and being
- begged for a bet. He had bet a hundred-dollar chip
• for the dealers, and they lost. Then they asked him
to put uf) another 'hundred-dollar bet. And that is
, when he got insulted and walked over To Mr.
' ROinano and 'started complaining.
Mr. Romano tried to cool him off,' and invited
him to dinner the next night. The gentleman went
to the cage, wouldn't give us his name, cashed in
his chips, and walked out.
Romano testified that the incident occurred about 11
p.m., rather than 11:45 p.m. as Miller stated, and that he
was distinctly able to place the time because he was
called off his break and summoned to the dice pits. He
'stepped into the pit and, according to Romano, "a very
irate customer met [him] head on." Miller was about 6 or
8 feet away on the telephone, and observed the conver-
sation between Romano and a man with a southwestern
ALADDIN-HOTEL 777
accent dressed in western clothes. The customer told
Romano that he was playing at the casino and was "sick
of being hustled , and having dealers begging ,me for
bets." Romano asked who hustled him, and the customer
pointed toward craps table 1, and stated that it was
"[t]he fellow with the stick [Tocco]. Romano then asked
"who else hustled you," and the customer said "the
fellow on the left [Citelli]." Romano said he was sorry,
and offered to treat the customer to dinner or a show.
The man refused to tell Romano his name and . said he
did not intend to return to the casino. He then , walked
toward the cage to cash in his chips, and Romano saw
that he had about 15 $100 chips in his hand. Romano
then returned to the dice pit and told Miller that, "We
just lost , a customer. He said that he was hustled at
."Crap Number One." Miller said, "By , who?" Romano
stated, "He claimed Citelli and Tocco." Miller , told
Romano that he was going to phone G.C. Vic Vickrey,
executive vice president and director of casino , oper-
ations, who was at home. After speaking to Vickrey,
Miller told Romano to "terminate them both."
About 11:40 a.m. Romano gave Citelli his termination
notice, telling him that he was sorry but that a customer
had complained that he was hustling. According to
Romano, Citelli said "okay" and walked away. Nothing
else was said. Romano denied that he had any conversa-
tion with Citelli that night regarding any subject, and
specifically denied that there was any conversation about
union activity. He testified that he was unaware of such
activity.
When Romano gave Tocco his termination slip, Tocco
protested and said he did not do anything. Romano did
not reply. Tocco, signed the slip and, according to
Romano, said, "You did what you had to do. Now, I
have got to do what I have to do." He had had no prior
conversation with Tocco that evening.
2. Shift changes
Gerald Erkenswick has been working for Respondent
as a craps dealer for about 7 years. He was involved in
initiating the union campaign, and his name was among
the seven employees listed as union organizers on the
aforementioned letter which was sent to Respondent by
the Union. He had worked the preceding 2 years on the
graveyard shift. His shift was changed on about May 7
or 8 when he was placed on swing shift. His schedule
was again changed about September 13 back to grave-
yard. When on the graveyard shift he 'worked' about 4-
1/2 days per week or about 9 days per pay period; on
swing shift he worked only 6 days per pay period. Thus,
the change in shift considerably lessened his,income.
He spoke to Romano about this when he began his
first day on swing shift. Also Robert Stevens, assistant
pit boss, was present. Romano said, "Didn't think you
would be back on swing shift, did you?" Erkenswick re-
plied that he preferred the graveyard shift and asked
why he had been placed on swing. Romano said, "You
know why . . . you know, you shouldn't have jumped
the gun." Erkenswick testified that Respondent would
break up the crews periodically, every 2 or 3 months,
but would not change their shifts.
• Robert Stevens began working for Respondent in 1976
as a floorman, a supervisory position. His employment
with Respondent terminated on June 5. He was responsi-
ble for making up the swing shift.schedule each week for
the craps dealers and the boxmen and floormen. Stevens
testified that on May 5 or 6 he had a conversation with
Romano, his immediate supervisor. Romano took out a
_list of six names, and he said those employees were
having their shifts changed because they were listed as
union organizers in the letter Respondent.. had recently
received. 3 Stevens suggested that was a bad move on the
part of Respondent, and Romano, according to Stevens,
said -he was told to do it by "the man." Thereafter, the
schedules were changed as Romano directed.
Andrew Smith is a relief shift boss, and makes out
work schedules. Smith testified that it is a policy of • Re-
spondent to break up crews every 60-90 days. This pre-
vents them from agreeing on signals for possible hustling
or collusion. According to Smith, about 20 percent of
the approximately 40-50 craps dealers would stay on,the
same shift for a year, and the shifts of the remaining
dealers would be changed. As an example, Smith testi-
fied that in October 1982 six dealers, from graveyard
were assigned to the day shift and vice versa.
3. The discharge of Costanza; threats
Anthony Costanza began working for Respondent 'on
May 26, 1976, and was discharged in the early -morning
of August 6, while he was on the graveyard shift (7 p.m.
to 3 a.m.). He primarily dealt the "Big Six" or wheel of
fortune. George Maxson, casino- executive, was his im-
mediate supervisor. Costanza's testimony clearly reflect-
ed that he considered himself to be "the man" in charge
of organizing the "21" dealers, and he appeared to be ex-
tremely proud of the fact that he was placed in such a
prestigious position by the Union. Costanza testified that
he organized a network of about eight "pretty strong"
helpers and' directed their activities, and that he handed
them some 60 to 65 authorization Oards for distribution,
talked about the Union with approximately 65 of the 90
dealers, and directly solicited cards from about 27 deal-
ers. The record reflects that no other employee was as
active in the union campaign.
Costanza testified that on July 22, while he was on a
break, he was approached by Romano who told him that
there was an election coming up 4 and that if the Union
won the election the craps and 21-games dealers would
again have to pool their tokes. Romano asked him to
spread the word and Costanza said all right. Romano
denied that he ever had a conversation of this nature
with Costanza.
Further, according to Costanza, around August 2 Joe
Giantonio, a floorman and admitted supervisor, asked
3 As noted above' the May 4 letter from the Union contained seven
names, however, Citelli had been previously discharged Apparently, ac-
cording to the complaint, the shifts of the following employees were
changed Mark Erter, Bryan Mackey, Gerald Erkenswick, Jim Harsh-
man, Danny Burrell, and Sonny Gee
4 On June' 2 a representation petition was filed in Case 31-RC-5526,
and a Decision and Direction of Election issued on 'July 14 The repre-
sentation election was scheduled for August 12 but has been postponed
indefinitely pending Board review
778 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
him how he was gOing to vote. Costanza readily admit-
ted that he was the organizer for the 21-games dealers.
Giantonio said it was not good to get involved with
union: organizing, and Costanza replied that it was unfair
that the 21-games dealers only made $35 per day, and
: that he was upset about the way people Were being fired.
Several hours later Giantonio said that Vickrey would be
leaving Respondent's employ and would be going to the
El-Rancho casino, • arid therefore the Union would not be
necessary. -Further,' he said that if the Union did win the
election, Torres, Respondent's owner, would cancel the
hospitalization 'benefits.
Giantomo' testified that several dealers had told him
that Costanza had been standing up on the tables in the
dining room chanting "Union, Union, Union." In early
August, he asked Costanza 'why he was so vocal about
the Union, and told him that management thought highly
of him and that he was_ doing a good job Costanza ex-
plained his reasons for supporting the Union, and men-
tioned three points: the tokes of the 21-games dealers
being combined with those of the 'craps dealers; an inci-
dent concerning Vickrey and employee Robert La Foun-
tain wherein Vickrey is 'alleged to have precluded La
Fountain from receiving a $1250 tip from a customer;
and the lack of job security in the casino industry in gen-
eral. Giantonio told 'Costanza that the instigator of the
toke policy, Miller, had retired and the original toke
policy had been reinstated; that the, $1250 toke incident
was said to have happened on a game he was observing
and as -he did not see the incident it was very unlikely
that it had occurred; and regarding job security, Gian-
tonio anticipated that new management would probably
be appointed at the casino, and that everything would be
all right. Giantonio testified that he did not ask Costanza
how he intended to -vote, ,or tell- him that he should not
be involved with union organizing activities. Nor did lie
state that Vickrey was going to the El Rancho, and that
therefore the Union was not necessary. Moreover, ac-
cording to Giantonio, there was no discussion, of hospi-
talization benefits.
On August 2 or 3 Costanza's schedule on the grave-
yard shift was changed from Tuesday through Saturday
to Tuesday through Friday. It is alleged that this shift
change, discussed infra, was discriminatorily motivated.
On the August 5 graveyard shift Costanza observed
Maxson, his supervisor, who was seated at the bar, star-
ing at him for a prolonged period of time. Later that
night Maxson came over to the. Big Six Wheel . and asked
what Costanza was going to do when he came back to-
morrow and the Big Six was gone. Costanza said he
could also deal 21-games. Maxson then told him that he
was not going to be able to get another job because he
was involved in union activity. Shortly thereafter, while
Costanza was on a break, Maxson continued the conver-
sation at the unoccupied 21-games tables Maxsoh told
Costanza that he was finished_ in this , town, and that
Torres, Respondent's owner, would see to it that Cos-
tanza would not be able to get another job because he
was involved in union organizing activity. Costanza reit-
erated his reasons for favoring the Union. Maxson stated
that the Teamsters were crooks, and Costanza replied
that paying dealers $35 per shift was like stealing from
them. Maxson said, "I could fire you right now and you
wouldn't even get to vote." He further stated that Cos-
tanza would not be able tb get another job and would
lose his 'home, and that "You, your wife and your baby
would have to leave town" He ended the conversation
by threatening that, "Mr. Torres . knOws how to deal
with people like you, 'if you knOw what P mean." Cos-
tanza could smell liquor on Maxson's breath, and testified
that 'immediately prior to this confrontation . he had ob-
served Maxson drinking-at the bar.
Later, at 2:30 a.m on August 6, Costanza was given a
termination slip by Frank _Garcia, backup shift boss, who
merely stated that he had been told to deliver the slip
Costanza testified that at no point that night did he
refuse to follow instructions from any member of man-
agement, or use any expletives during a conversation
with Maxson. Nor had he been told by Maxson to stop
talking to employees while he was operating the Big Six.
Costanza further testified that while dealing the Big Six
he was allowed to talk to anybody he wanted to, so long
as there were no customers present; that he was never
given any written or verbal reprimands for excessive
talking or failing to properly perform his dune's; and that
he never distributed authorization cards to employees
While at the Big Six. - -
EltOn Ebarb is a 21-games dealer. Ebarb testified that
during his first night on the graveyard shift, about the
first week in May, Costanza called him over to the Big
Six wheel, reached into his sock, and removed an author-
ization card which he handed to Ebarb Costanza said,
according to Ebarb, "I know you're on our side," and
asked him to fill out the card and send it in or return it
to him. Costanza added, "I got to' do this fast 'because
George Maxson has warned me before about talking on
the .wheel." Ebarb testified that he was very surprised
and disturbed about being confronted in such a manner,
because in the gaming business it is unacceptable and
against policy to go to your sock or pocket, and he did
not want to be under suspicion. Two days later Costanza
asked whether Ebarb had sent the card in, and Ebarb
said no. Ebarb testified that he mentioned the incident to
Bill Peccole, his 21-games boss on days
Costanza, on rebuttal, denied that this conversation oc-
curred. Rather, according to Costanza, after the petition
'for an election was filed, he gave Ebarb an authorization
card, which he obtained from his sock, in the coffee
shop. Further, Costanza recalled that at this time Ebarb
said he had a relative or somebody who was involved
with the Teamsters-and would probably become-a shop
steward.
Jeffrey 'Kaufman is a 21-games dealer. About 2 weeks
prior to the union election, Costanza motioned for him
to approach'the Big Six Wheel. Costanza told him that if
the Union was voted in, tile people who were part of the
Union would be secure and would not be in jeopardy of
losing their jobs should there be new management. Ac-
cording to Kaufman, there were three or four customers
on the game at the time, and the conversation lasted 30
seconds. Kaufman testified that he was surprised that
Costanza was engaging him in such a conversation
during a live game.
ALADDIN HOTEL 779
Costanza, on rebuttal, testified that he never talked to
Kaufman about the Union at the Big Six Wheel, but did
have a conversation with him in the coffee shop.
Gene Dessel is a 21-games dealer on the-day shift. He
has been in Respondent's employ 4 months. In mid-July,
on his way to the dealers' breakroom, Costanza, who
was operating the Big Six;' stopped him and said "We
have this election won, the majority -of dealers are with
us and people respect you and they like you on this
shift." He told Dessel to keep talking to the people and
"We'll win the election." The conversation lasted 15-20
seconds. Prior to this occasion Dessel was not acqUdint-
ed with Costanza, and had never had . any conversation
with him about the Union, or about anything else. Ac-
cording to Dessel, there were about six customers at the
wheel during the conversation, and Costanza had
stepped from behind the table into the aisle, and had his
back to the wheel. Dessel felt that Costanza's conduct
was unusual and that Costanza was not properly per-
forming his job. Costanza engaged him in about two
other conversations of a similar nature, although Dessel
does not recall if there were any customers at the wheel
during these subsequent conversations.
Costanza, on rebuttal, testified that although' he had re-
lieved Dessel at the Big Six on several occasions,-he was
not acquainted with him in July, and had no conversa-
tion with him at any time or place about the.Union.
Al Gundlack is a graveyard 21-games shift manager.
His immediate supervisor is Maxson: About mid-July, he
observed a conversation at the Big Six Wheel . between
Costanza and, he believes, La Fountain, another 21-
games dealer. No customers were at the 'wheel. As
Gundlack approached, La Fountain walked away. Gund-
lack asked Costanza what was going on, and COs'tanza
said they were discussing tokes. Gundlack told him to
stop engaging in such conversations, and that he could
talk about tokes elsewhere.
About a week later, Gundlack again observed him
talking to another 21-games dealer whom he believes
was Natale. They were talking for 2 or 3 minutes, and
although there were no customers at the wheel, the
wheel is to be kept spinning at all times in order, to at-
tract customers On this occasion the wheel was not
spinning. As Gundlack approached, Natale walked away.
Gundlack told Costanza to stop the conversation and to
keep the wheel spinning Colistanza said okay. A few
days later, about the 'end of July or the first of August,
Gundlack observed Costanza talking to another dealer.
As he began to approach the wheel, the employees
looked up and the other dealer walked away Gundlack
motioned for Costanza to keep the wheel spinning.
Prior to the above occasions, according to Gundlack,
Costanza's conversations with employees would be of 2
or 3 seconds duration and were "walking conversations."
However, the aforementioned incidents were of 2 to 4
minutes duration, and therefore were excessive. More-
over, at times during the foregoing conversations, Cos-
tanza would have his back to the "rack" or stacks of
chips, an unacceptable practice. Gundlack never told
Costanza his job was in jeopardy if he continued that
conduct.
Frank Garcia has a supervisory position on the grave-
yard shift. He reports to Gundlack. In early July, Miller
directed his attention to the Big Six. He saw Costanza
and La Fountain talking to each other. La Fountain was
seated by the slot machines, near the Big Six. Garcia .told
Miller he would talk to them. While he was approach-
ing, Costanza looked at him and Garcia motioned for
him to discontinue the conversation. He also apparently
told the two employees to stop the talking. Several
weeks later, he saw Costanza- talking to Natale. When
Costanza looked up, Garcia motioned for him to stop.
Each of the conversations he observed lasted a minute or
two. About a week prior to the election, Gundlack told
Garcia that he was sick and tired of asking Costanza not
to talk to other .dealers, and directed Garcia to again ask
Costanza to discontinue such conduct. Garcia did this,
and advised Costanza that it was against the rules to talk
to other dealers while he was dealing the Big Six. Prior
to July, aarcia had observed similar conversations be-
tween Costanza and the dealers.
George Maxson is casino executive for Respondent
and is in charge of all casino operations when Vickrey is
, not present. He is also specifically in charge of the "21-
games tables on all three shifts. He testified that he did
not know Costanza was specifically involved in union
• activity.
_Maxson testified that he was aware that about 2 weeks
prior to the night of August 5, the graveyard shift boss,
Al Gundlack, and his assistant, Frank Garcia, had told
Costanza that he was involved in too much conversation
while there were players on the game. Gundlack told
Maxson that he had talked to Costanza about this on sev-
eral occasions, and had also -directed Garcia to talk to
him. Maxson had several conversations concerning Cos-
tanza with, Gundlack, and one with Garcia in the pres-
ence of Gundlack. Garcia said that he had informed
Constanza to continue dealing the, game, and not to talk
to employees while he was on the game. Maxson told
them to monitor the situation, and to advise him if Cos-
tanza continued to engage in such conduct.
At 1:15 a.m. on August 6, Maxson observed Costanza,
who was operating the Big Six, talking to a dealer while
there were two customers present at the wheel. The cus-
tomers had money down on the , table, and Costanza had
his back to them. Maxson approached Costanza and told
him not to talk and to continue dealing the game.
Maxson began_ to walk away and when he had walked
only a short distance he again observed Costanza talking
with another dealer. The same customers were , present,
and Costanza had not yet spun the wheel. He walked
back to Costanza and said he wanted to see him on his
break. At this time, by coincidence, a dealer came to re-
lieve Costanza who was due for his break, ,and Costanza
and Maxson walked to the , 21-games pit. Both were
standing. Maxson told him he had to stop the talking,
and that stopping the action , on the game and talking to
the dealers in this way jeopardized his family, his home,
and everything. He further said that Costanza could be
terminated if this conduct continued. Costanza began
talking about the $,1250 toke that management had
"stolen" from La Fountain. Maxson said he did not want
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to talk about that, but wanted to discuss Costanza's lack
of attention to his job Maxson repeated, - "[Thu just
jeopardize your family, your home and everything by
continuing to do this, and to stop it" Costanza replied,
according to Maxson, that he did not have to worry
about a job as -he had a family that would always get
him a job, and to "fuck off and leave me alone." Cos-
tanza was gesticulating vigorously during the conversa-
tion and stuck his finger very close to Maxson's face.
Then Costanza turned around and walked am* with his
hands covering his earS.
Maxson testified that he was Momentarily stunned as
Costanza's behavior was unantiCipated and clearly out of
character. Several minutes later Gundlack came" Over,
and Maxson told him to terminate Costanza for insubor-
dination, telling him briefly what Costanza had said
Maxson testified that during the -aforementioned con-
versation with Costanza he did not mention the Union or
say Costanza would be finished in the tOwn or ask him
what would happen when he came to work tomorrow
and there is no Big Six wheel.-- Nor did he say anything
to the effect that Torres- would see to it Costanza never
worked again if he continued to be involved in the union
situation; that the Teamsters are crooks; or that Torres
knows how to deal with people like Costanza. Further,
Maxson testified that he did not go to the bar that
evening and have several drinks'. Rather, he had one beer
about 2 am. after work, and had no other alcohol that
evening. He very Seldom sits af the bar, and very seldom
drinks hard liquor. Makon said he never talked to Cos-
tanza or any other dealer about the upcoming -election.
Gundlack corroborated Maxson's testimony. On
August 6, Gundlack saw Constanza talking to Maxson at
the Big Six about 1:15 a.m. About 5 minutes later; he
asked Maxson what was wrong with Costanza. Maxson
said Costanza was" talking to a dealer while there were
customers , at the table, and' that he 'intended to talk to
Costanza on his break. About 15 minutes later he ob-
served Maxson and Costanza talking in the 21-games pit.
At first they appeared' to be engaged in a polite conver-
sation. However, a few • minutes later, Gundlack saw
Costanza's hands gesticulating in an animated fashion and
then saw him point a finger waving it towards Maxson's
face while they were only a- few feet apart Then he saw
Costanza leave. Maxson looked surprised, and Gundlack
walked over to him and: asked what was wrong. Maxson
gaid he wanted Gundlack to terminate Costanza, because
he just told MaxsOn to "fuck myself" Gundlack wrote
up a termination "slip "and told Frank Garcia to give it to
Costanza when the Big Six was closed down for the
night. =
Costanza, on rebuttal, testified that Garcia never told
him to discontinue any conversation with La Fountain or
Natale; and neither Garcia nor Maxson ever gestured to
him to stop talking at the wheel, or told him to stop talk-
ing to dealers Costanza_ testified that he never had his
back to the game, never told Maxson his faimly would
insure that he Would always have a job, never told
Maxson to "Fuck off and leave me alone"; and has never
been told by Gundlack to stop talking to dealers, or any-
thing similar to that.'
4. The change in Costanza's schedule
As stated above, Costanza's schedule on the graveyard
shift had been changed on August 2 or 3 from Tuesday
through Saturday to Tuesday through Friday, thus re-
ducing- his workweek. Moreover, the record shows that
Saturday night is the busiest night of the week- at the
casino, and that Costanza, because of his ability to . attract
customers to the Big Six as a result of his demonstrative
personality, was considered to be the premier Big .Six
. dealer in Respondent's employ.
- Maxson testified that during the first week in August
he was informed by Vickrey that thereafter the second
21-games pit; denominated "B pit," would not be operat-
ing on swing shift during weekends because business did
not warrant the additional personnel. Also, for the same
reason, baccarat was reduced to one shift during the
weekend and a Oraps game was discontinued on swing
shift. As a result, Maxson changed the schedule of the
dealers whiCh had previously been posted. The new
schedule reflected that, not only was Costanza given Sat-
urday off, but also that eight other employees who had
originally been scheduled to work on Friday or Saturday
were given those. respective days off. ,Maxson _testified
that he attempted to reschedule them so that they would
have 3, rather than 2, successive days off every other
weekend. Although on Friday and Saturday, August 5
and 6, it became necessary AO expand a few games over
into B pit, that pit has been closed on the weekends since
that time. • ,
5. Additional threats and interrogation
Ronald Plamn-0 current employee, testified that Billy
Mills,, a supervisor, approached him in late July, and
' wanted to know if Flamm was aware of the scheduled
eleCtion. Mills, according to Flamm, asked him which
way he was going to vote, and said that management
WOuld appreciate it if he would vote no. As a result of
this testimony, the General Counsel moved to amend the
complaint, and the motion was granted. On cross-exami-
nation Flamm initially was very sure about the conversa-
tion and reiterated that he was "absolutely" and "exact-
ly" sure that Mills "directly" asked him how he was
going to vote. However, on being provided with a copy
of his affidavit, Flamm agreed that Mills merely said he
would appreciate it if he would vote with management,
and did not ask him how he was :going to vote. As a
result of Flamm's testimony on Cross-examination, this
amendment to the complaint was-withdrawn. • •
Flamm further testified that in early August, Supervi-
sor Giantonio wanted to knOw what Flamm was going
to do after he lost his job. Flamm asked what he meant,
and GiantOnio replied that the fl employees were hurting
themselves by voting for a union, and that Flamm would
probably be losing his' job Giantonio also told him that
the hotel was about to' be sold and the new owners
would_ probably get rid of all the dealers because of their
Union activities. About a week later, sometime prior to
the election, Giantonio repeated essentially the same
things to Flamm, and told him that "we'd be going out
the door anyway—Union or not."
ALADDIN HOTEL 781
Giantonio testified that he heard from other dealers
that Flamm was vocal on behalf of the Union. He asked
Flamm why he was so enthusiastic about the Union
when he knew that new management was coming in and
that things would probably change for the better. Flamm
then proceeded to engage in a tirade about his disregard
for management in general and stated that casino' man-
agement all over town "were all pieces of shit." He then
began discussing his inability to get a job at a different
casino. Giantonio specifically denied making the other
statements attributed to him by Flamm.
Robert La Fountain is currently employed as a 21-
games dealer. La Fountain testified that about a week
before the election, Billy Mills, a floorman and admitted
supervisor, asked him how he was going to vote. Fur-
ther, Mills said that if he would vote no he would be
' taken care of by Mills and Maxson, explaining that, ac-
cording to La Fountain, "being the best dealer on the
shift, I would have no problem getting a floor job over
at the El Rancho."
Billy Mills testified that Maxson asked him if he would
mind talking to the dealers about the Union. He spoke to
approximately 13 dealers, and told them all the same
thing, namely, that the employees should consider the
pros and cons and should cast their vote, but that he did
not want to know how they intended to vote Although
he sometimes supervises La Fountain, Mills never had a
conversation with him . about the Union, never asked
how he was going to vote in the election, and never told
La Fountain that if he voted no, he could expect to be
given a floorman's position at the El Rancho. Prior to
February 1983 Mills was a floorman at the Riviera
Casino, and had previously worked there under the su-
pervision of Maxson who assisted him in obtaining em-
. ployment with Respondent
C. Analysis and Conclusions
1. The discharge of Tocco and °tell; threats,
promises, and interrogation
The record is clear that hustling by employees is con-
sidered to be a serious infraction of Respondent's rules
and, that various forms of discipline have been imposed
for hustling, from verbal warnings to dismissal. The
nature of the discipline, as reflected by the record evi-
dence, apparently depends on the seriousness of the inci-
dent, as determined on a case-by-case basis Nevertheless,
it appears that hustling is sometimes difficult to detect at
the craps table where the noise, action, and number of
excited customers create a rather hectic atmosphere, and
that hustling does occur, on a not infrequent basis, de-
spite the fact that the dealers are reminded from time to
time that hustling is strictly prohibited.
Had Tocco and Citelli been hustling in the manner al-
leged by Miller and Romano, it is clear that their dis-
charge would have been in conformity with Respond-
ent's established business practice. However, the abun-
dant and credible record evidence, discussed below,
clearly satisfies me that the scenario described by
Romano and Miller simply did not occur
Tocco and Citelli are alleged to have "begged" bets
for the dealers on table 1, from a customer dressed in
western attire, sometime between 11 and 11:45 p.m. on
May 4. There were four dealers at that particular table,
who were observed by a supervisor and a boxman. All
of these individuals favorably impressed me as being
credible witnesses, and appeared to have an accurate
recollection of- the evening in question. Each testified
that there was no hustling by Tocco and Citelli or
anyone else, nor was there a "high roller" at the table
that evening fitting the description given by Romano and
Miller.
Moreover, it is admitted by Romano and Miller that
they reacted to the stranger's alleged contention that he
had been begged for bets by, after phoning Vickrey, , im-
mediately
,
discharging Tocco and Citelli without even in-
quiring into the matter Such a reaction is totally implau-
sible, given the fact that Tocco and Citelli were consid-
ered to be good employees, that they had been in Re-
spondent's employ for approximately 5 years, that they
had not been previously reprimanded for hustling, and
above all that Respondent had a supervisor, Sorenson,
stationed at the table the entire evening for the very pur-
pose of, among other duties, insuring that no hustling
was occurring. While Respondent contends that hustling
is sometimes difficult to detect because of the frenzied
nature of the game, this does not provide a legitimate
and believable excuse for Miller or Romano to simply
assume, without inquiry, that Sorenson would know
nothing about the alleged incident. The fact that no in-
. vestigation was instigated by management, either prior or
subsequent to the discharges, is conclusive evidence that
.management was quite aware that, in fact, there were no
hustlers and there was no irate western-attired high
roller who cashed in his chips and walked out into the
night, never to darken Respondent's casino again. Final-
ly, it would be difficult to have more probative evidence
than the testimony of Supervisor Sorenson. As noted
previously, he was a highly credible witness, and Re-
spondent has not proffered any evidence tending to show
that Sorenson would have a reason for fabricating his
testimony Thus, I find that Romano admitted to Soren-
son that the discharges of Tocco and Citelh were a
direct consequence of their union activities. By such con-
duct Respondent violated Section, 8(a)(1) and (3) of the
Act.
I credit Tocco and find that after he had engaged in
extensive union activity on the evening of May 4,
Romano told him not to "pioneer" in any union efforts
and to keep his nose clean and not to say anything about
the union because he could not afford to lose his job.
Later that night, when Romano discharged Tocco, he re-
iterated that he had previously warned Tocco not to say
anything By such conduct, Respondent unlawfully cre-
ated the impression of surveillance of Tocco's union ac-
tivity, attempted to unlawfully dissuade him from engag-
ing in such activity, and threatened- him with discharge,
in violation of Section 8(a)(1) of the-Act.
Similarly, I find that Romano, in violation of Section
8(a)(1) of the Act, interrogated Citelli about his union ac-
tivity, threatened him with discharge and with being
blackballed by Respondent from other jobs, and prom-
ised him a permanent job with Respondent in the event
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he refrained from such union activity. I also find that, as
Citelli credibly testified, Romano admitted to Citelli that
his discharge for hustling was a mere pretext.
2. Shift changes
Supervisor Stevens appeared to be , a credible witness.
He forthrightly testified that about May 5 or 6 Romano
told him to change the shift of six employees because
they had been named in the Union's letter as "in house
organizers" for the Union. The record evidence shows
that the change in shift had a detrimental effect on the
income of employee Erkenswicic who testified that as a
result of the shift change he worked approximately 3
days less per pay period. If would appear that the re-
maining five employees suffered similar reductions in
income. Further, I credit Erkenswick and find that when
he asked Romano- why he had been placed on the swing
shift, Romano told him that he "shouldn't have jumped
the gun.", Obviously, this was a reference to his union
activity.
While Respondent maintains that it was not unusual
for employees' shifts to be changed from time to time,
the record is crystal clear that on the instant occasion
shifts were changed not for permissible and customary
business reasons, but as a direct and immediate result of
the employees' ninon activity. Moreover, the record does
not show that the shifts of the named employees would
have been changed at that time even absent any union
activity.
By the foregoing conduct, I find that Respondent dis-
criminatorily changed the work shifts of employees Mark
Erter, Bryan Mackey, Gerald Erkenswick, Jim Harsh-
man, Danny. Burrell, and Sonny Gee, to their detriment,
and thereby has violated Section 8(a)(1) and (3) of the
Act, as alleged. 5 Further, Romano's statement t6 Erkens-
wick implying in no uncertain terms that the shift change
was due to his union activity is clearly coercive and is
violative of Section 8(a)(1) of the Act.
3. The discharge of Costanza, threats
Although Costania appeared to be a very convincing
witness, his testimony was inherently suspect. Thus,
while he categorically denied that he had any conversa-
tions with dealers at the Big Six involving union solicita-
tion, his involvement with the Union, according to a rea-
sonable interpretation of his testimony, appeared to be
obsessive. Given his vocal and demonstrative character
traits, utilized to the fullest extent by Respondent as a
vehicle for attracting customers to the Big Six, I find it
implausible that Costanza possessed sufficient self-con-
trol, under the circumstances, to limit his -union-related
conversations to his breaks or off-duty hours, as he testi-
fied.
Moreover, extensive and seemingly credible testimoni-
al evidence proffered by Respondent further tends to un-
dermine Costanza's apparent credibility. It is unnecessary
to reiterate the foregoing testimony of various employ-
ees, all of whom appeared to be candid and forthright,
5 It has not been alleged of contended that the change in shifts of
other individuals who replaced the aforementioned employees was like-
wise discnminatory '
regarding their conversations with Costanza at the Big
Six. A reasonable summary of their testimony demon-
strates that Costanza engaged employees in union-related
conversations at the Big Six on numerous occasions,
, sometimes when customers were present, and that the
employees considered Costanza's conduct to be quite ir-
regular and contrary to Respondent's established policy.
Further, Costanza admitted to employee Elton Ebarb
that he had been warned about such conduct by George
Maxson.
I was likewise favorably impressed with the testimony
of Supervisors Gundlack, Garcia, and Maxson all of
whom testified that on numerous occasions they had
warned Costanza about excessive talking and inattention
to his duties, and that Costanza's failure to heed their
warnings and discontinue the unacceptable conduct had
become a matter of some concern. In fact, it appears
that, under the circumstances, Costanza's supervisors
were being extremely tolerant of his conduct
Also noteworthy is the fact that La Fountain, -who ap-
peared as a witness on behalf of the General Counsel for
other purposes, was not called as a witness to corrobo-
rate Costanza's testimony that certain incidents involving
La Fountain did not. occur. Thus,- the- record testimony
shows that on several occasions Costanza was observed
by Supervisors Gundlack and Garcia speaking to La
Fountain at the Big Six. Indeed, on one such occasion,
Garcia instructed the two employees to stop the talking.
As a result of the foregoing, and despite Costanza's
Convincing testimonial 'demeanor, I am constrained to
conclude that the evidence is insufficient to show that he
did not, in fact, engage in the conversations attributed to
him, and that he was not, in fact, frequently warned for
such conduct.
Although I find it highly unlikely that Maxson was not
aware of Costanza's extensive union activities, neverthe-
less, it is significant that, insofar as the record shows, nei-
ther Maxson, Garcia, or Gundlack, who were subjected
to extensive cross-examination and appeared to be credi-
ble, had engaged in any contemporaneous unlawful ac-
tivity, and that neither Romano nor Miller -were in-
volved in Costanza's discharge Further, while Costanza
testified that during the sequence of events preceding his
discharge Maxson had been drinking and, although not
intoxicated, was obviously affected by the amount of al-
cohol he had consumed, the record does not substantiate
this contention. Thus, Maxson denied that he had con-
sumed any alcohol that evening prior to Costanza's dis-
charge, and there 'is no corroborative testimony regard-
ing Maxson's sobriety on the night in question, or his
general drinking habits while on the job, that would tend
'to support Costanza's assertions.
In summary, despite the fact that Respondent engaged
in blatant violations of the Act by discharging Tocco
and Citelli, and that the discharge of Costanza;'' the
Union's most vocal and active , adherent, was precipitated
by an alleged isolated, out-of-character expletive, uttered
during a one-on-one conversation, only a week prior to
the scheduled election, I conclude from the foregoing
that the record is insufficient to establish that Costanza's
discharge was motivated by his union activity rather
ALADDIN HOTEL 783
than by his insubordinate behavior. Therefore, I shall dis-
miss this allegation of the complaint. For the same rea-
sons, I conClude that the statements attributed to Maxson
by Costanza, alleged-as violative of Section 8(a)(1) of the
'Act, Must be dismissed.'
Moreover, I am unable to credit Costanza regarding
his alleged July 22 conversation with - Romano, who
denied that he had told Costanza anything to the effect
that tokes would-again be pooled if the Union was voted
in. Under the circumstances, herein, the record evidence
does not sufficiently demonstrate to my satisfaction that
'a statement of this nature was made by Romano, who is
riot alleged to have engaged in any further unlawful con-
duct subsequent to May 4. Therefore, I shall also dismiss
this allegation of the complaint.
I credit Supervisor Giantonio's account of the August
2 conversation with Costanza, and find that he did not
ask Costanza how he intended to vote or advise him to
discontinue his union activity or make the other state-
ments attributed to him by Costanza. However, as admit-
ted by Giantonio, he did ask Costanza why he was so
vocal on behalf of the Union. Consistent with established
Board precedent, I find that such conduct on the part of
'tharitonio constitutes coercive interrogation which is
violative of Section 8(a)(1) of the act, particularly absent
any evidence that Costanza initiated the conversation or
otherwise notified Giantonio of his union sympathies.
PPG Industries, 251 NLRB 1146 (1980); Host Services, 263
NLRB 672, 681 (1982); Zero Corp., 262 NLRB 495, 496
,(1982), enfd. 705 F.2d 439 (5th Cir. I983).
4. The change in Costanza's schedule
The record reflects that about August 2 Costanza's
schedule was changed. As a result, he was no longer
scheduled to work the following Saturday, as previously
scheduled The General Counsel contends that the
change was discriminatorily motivated. -
It is clear that at the same time, eight employees, in
addition to Costanza, were given either Friday or Satur-
day off by Maxson, in order to comply with Vickrey's
-instructions to reduce the personnel on certain games
due to a decline in business. While such evidence would
tend to show that Costanza was treated no differently
than other employees, the General Counsel argues that
because Costanza was considered to be the premier Big
Six dealer, he would have been permitted to - remain on
the job on . the following and each subsequent Saturday,
the busiest night of the week, but for his union activity.
However, it appears, according to Maxson's testimony,
that he was attempting to treat the employees under his
supervision equally during a unique situation, and intend-
ed that they be scheduled to work alternate weekends.
Thus, had Costanza remained in Respondent's employ,
he would have worked on alternate Saturdays. In this
manner he would have been accorded the same treat-
ment as the other employees. I therefore conclude that
the record fails to establish that but for Costanza's union
'activity, he would have been given more favorable treat-
ment than the other 'employees, by being permitted to
work every weekend, rather than every other weekend,
and I shall dismiss this allegation of the complaint
5 Additional threats and interrogation
Giantonio impressed me as a forthright witness and I
credit his account of the early August conversation with
Flamm. Flamm did not appear to have a sufficient regard
for the accuracy of his various conversations with man-
agement, as exemplified by the abrupt change in his testi-
mony regarding his conversation with Mills, which re-
sulted in the withdrawal of that particular allegation
Rather, it appears that Flamm's testimony was influenced
by his subjective interpretation of the conversations.
However, as thantonio admitted, .he did commence the
conversation by asking why Flamm was so enthusiastic
about the Union. Interrogation of this nature is violative
of the Act, particularly as Flamm had not previously an-
nounced or identified himself to management as a union
supporter. PPG Industries, supra.
La Fountain, a current employee, appeared to be a
credible witness, and I credit his account of the early
August conversation with Supervisor Mills. Thus, I find
that Mills did ask him how he was going to vote, and
did promise that if he would vote no he would be given
a supervisor's job at the El Rancho, a hotel apparently
owned by Respondent's principal owner. Such state-
ments constitute a coercive interrogation and a promise
of benefit in exchange for voting against union represen-
tation and are violative of Section 8(a)(1) of the Act, as
alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of
the Act by discharging employees Edward Tocco and
Paul Citelli on May 4, 1983.
4. Respondent has violated Section 8(a)(1) and (3) of
the Act by changing the shifts of employees Mark Erter,
Bryan Mackey, Gerald Erkenswick, Jim Harshman,
Danny Burrell, and Sonny Gee.
5. Respondent has violated Section 8(a)(1) of the Act
by engaging in coercive interrogation of employees, by
threatening them with discharge because of their union
activity, and by promising benefits in order to induce
them to refrain from such activity.
6. The record evidence is insufficient to establish that
Respondent has violated the Act by discharging employ-
ee Anthony Costanza.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(a)(1) and (3) of the Act, I recommend that
it be required to cease and desist therefrom and from in
any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act, and take certain affirmative
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action described herein, including the posting of an ap-
propriate notice attached an appendix.
Having found that Respondent unlawfully discharged
and thereafter failed and refused to reinstate employees
Edward Tocco and Paul Cite111, it is redommended that
Respondent offer them immediate and full 'reinstatement
to their former jobs, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them. Backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950);
Florida Steel Corp., 231 NLRB 651 (1977): See generally
Isis Plumbing Co., 139 NLRB 716 (1962).
Further, Respondent shall be ordered to remove from
its files any reference to the unlawful discharges and
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way. See Sterling Sugars, 261 NLRB 472 (1982).
Having found that Respondent unlawfully changed the
shifts of employees Mark Erter, Bryan Mackey, Gerald
Erkenswick, - Jim Harshman, Danny Burrell, and Sonny
Gee, to their financial detriment, I recommend they be
made whole, in the manner prescribed above, from any
losses they have suffered.
On these findings of fact and conClusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER •
The Respondent, N & T Associates, Inc. d/b/a Alad-
din Hotel, Las Vegas, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their union ac-
tivities.
(b) Changing the work shifts of employees because of
their union activities.
(c) Coercively interrogating employees, threatening
them with discharge because of their union activities,
and promising them benefits in order to induce them to
refrain from such activities.
2. Take the following affirmative action Which is nec-
essary to effectuate the policies of the Act.
(a) Offer Edward Tooco and Paul Citelli immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them ,whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusion's, 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
(c) Make whole the following employees, •in the
manner set forth in the remedy section of this decision,
for any loss of earnings and other benefits they may have
suffered as a result of the , discrimination against , them.
Mark Erter, Bryan Mackey, Gerald Erkenswick, Jim
Harshman, Danny Burrell, and Sonny Gee.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of, backpay due under the
terms of this Order.
(e) Post at its Las Vegas, Nevada facility copies of the
attached .notice marked "Appendix." 7 -Copies' of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are Customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. -
(f) Notify' the Regional Director in writing within 20
days from the date of this Order what steps the ke-
spOndent has taken to comply.
7 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the nottee reading "Posted by Order of the Na-
tional Labor Relations Board"'shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals-Enforcing an Order of the Nation-
al Labor Relations Board
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 or-
dered 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 representatives
of their own choice ,
.To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten io discharge you because of
your union activity,
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT promise you benefits in order to induce
you to refrain from engaging in union activity
WE WILL NOT change your work shifts because of
your union activity.
ALADDIN HOTEL 785
WE WILL NOT discharge you for engaging in union ac-
tivity.
WE WILL offer Edward Tocco and Paul Cite111 imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net interim
earnings, plus interest
WE WILL make whole, with interest, those employees
whose work shifts have been changed, for any loss of
earnings they may have suffered as a result of the dis-
crimination against them.
WE WILL NOT in any other manner interfere with, re-
stiam, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
N & T ASSOCIATES, INC. D/B/A ALADDIN
HOTEL