Alexander's Restaurant and Lounge

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 165 (N.L.R.B. 1977)

ALEXANDER'S RESTAURANT AND LOUNGE
Alexander Dawson, Inc. d/b/a Alexander's Restaurant
and Lounge and Local Joint Executive Board of
Las Vegas Culinary Workers Union Local 226 &
Bartenders Union Local 165, Hotel & Restaurant
Employees and Bartenders International Union,
AFL-CIO. Case 31-CA-5501
February 10, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 23, 1976, Administrative Law Judge
William J. Pannier III, issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief. Counsel for the
General Counsel and the Charging Party filed briefs
in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.3
Louis Clery and his brother worked as busboys at
Respondent's restaurant. Louis Clery testified that he
and his brother were active in the Union's drive and
had solicited cards on the Union's behalf. Clery
claimed that these activities came to the attention of
Mejlaender, one of Respondent's supervisors, who
began to watch the Clery brothers and made deroga-
tory remarks about them.
Clery's testimony about the surveillance over him-
self and his brother was corroborated by Mejlaender.
According to Mejlaender, he and Respondent's
general manager, Norman Martin, drew up a list of
employees thought to be antiunion. The Clery
brothers were left off the list and thereafter Martin
I Respondent filed a motion to correct the transcript The General
Counsel and the Charging Party opposed the motion . The disputed section of
the transcript indicates that Respondent introduced as its exhibit certain
employment applications In its exceptions to the Administrative Law
Judge's Decision, Respondent asserted that these employment applications
were allowed into evidence improperly because they were not authenticated.
In its motion to correct , Respondent maintains that at the hearing it moved
for the introduction only of certain writings which appeared on the face of
the application forms but that it opposed the General Counsel 's motion to
introduce the application forms themselves into evidence.
We find it unnecessary to dispose of the Respondent 's motion because its
determination would in no way affect the result reached in this case . In this
regard , we note our agreement with the Administrative Law Judge's
conclusion, contained in fn. 6 of his Decision, that the applications were
sufficiently authenticated and admissible under Rule 901 (a) of the Federal
Rules of Evidence.
2 The Respondent has excepted to certain credibility findings made by
228 NLRB No. 24
165
directed him to keep a close watch on the brothers
because of their suspected union activities.
Martin did not deny Mejlaender's testimony about
the employee list. Nor did he deny telling Mejlaender
to watch the Clery brothers. However, he claimed
that his decision to watch the brothers was prompted
by concern about acts of "sabotage" at the restaurant
such as the filling of sugar containers with salt.
The Administrative Law Judge credited Clery and
Mejlaender. In discrediting Martin, the Administra-
tive Law Judge noted that Martin was not a convinc-
ing witness and that his proffered explanation for
directing Mejlaender to watch the Clery brothers was
unsupported by any evidence that the brothers were
in any way connected with the so-called sabotage.
Accordingly, the Administrative Law Judge specifi-
cally found that Respondent directed Mejlaender to
engage in surveillance of the Clery brothers because
of their union activity.
Despite this finding, the Administrative Law Judge
considered Respondent's surveillance only as back-
ground in determining Respondent's overall motiva-
tion. In so doing, the Administrative Law Judge
noted the absence of a specific allegation in the
complaint that the surveillance violated Section
8(a)(1) of the Act. He also noted the failure of the
General Counsel to amend the complaint to allege
such a violation.
We agree with the Administrative Law Judge that
the record clearly establishes that Martin directed the
surveillance of these employees because of their
union activities. Moreover, in our opinion, this
incident is sufficiently related to the subject matter of
the complaint to justify a specific finding of a
violation of Section 8(a)(1) of the Act. In this regard,
we note that Respondent's surveillance over its
employees' union activities is part and parcel of its
persistent antiunion campaign which included the
unlawful interrogation of prospective employees, the
grant of wage benefits to undercut union support, and
the outright refusal to hire individuals whose back-
ground indicated potential union adherence. We also
note that Respondent's conduct in surveilling these
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 Chairman Murphy would adopt the Administrative Law Judge's
Decision and recommended Order without modification. She would not find
an additional violation predicated on Respondent 's surveillance of employee
union activities since no exceptions were filed to the failure of the
Administrative Law Judge to find such a violation , the complaint contains
no allegation with respect to this activity, and, in her view, it is unrelated to
other allegations of the complaint , and General Counsel did not urge that
such a violation be found, but merely presented the activity as background
for the other violations alleged. See Administrative Law Judge' s Decision,
sec. IV,G.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees was fully litigated at the hearing and that
Respondent had ample opportunity to offer, and in
fact did offer, evidence on this point. Accordingly, we
shall find this violation of the Act and provide an
appropriate remedy. See Crown Zellerbach Corpora-
tion, 225 NLRB 911 (1976), and cases cited therein at
footnote 6.
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, as
modified below, and hereby orders that Respondent
Alexander Dawson, Inc. d/b/a Alexander' s Restau-
rant and Lounge, Las Vegas, Nevada, its officers,
agents , successors , and assigns, shall take the action
set forth in said recommended Order, as so modified:
1. Insert the following paragraph as paragraph
1(d) and reletter the subsequent paragraph accord-
ingly:
"(d) Engaging in surveillance of employees because
of the employees' union and protected activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities
except to the extent that the employees'
bargaining representative and the employer
have a collective-bargaining agreement
which imposes a lawful requirement that
employees become union members.
WE WILL NOT interrogate you concerning your
union membership and sympathies.
WE WILL NOT grant tip subsidies or other
benefits to you to dissuade you from supporting
any labor organization and WE WILL NOT other-
wise discriminate against you in regard to hire or
tenure of employment or any term or condition of
employment because of your support for a labor
organization.
WE WILL NOT refuse to hire employees who
indicate that they are members or supporters of
the Union or because they have been employed at
establishments in which the Union has served as
the bargaining representative of employees.
WE WILL NOT engage in surveillance of employ-
ees because of their union or other protected
activities.
WE WILL NOT in any other manner interfere
with your rights set forth above which are guaran-
teed by the National Labor Relations Act.
WE WILL pay Dorothea R. Murdock, Don H.
Jacobs, Chris G. Dunkle, Charlotta M. Jackson,
H. Lee Marshak, William D. Harkson, Jimmy
Walters, John C. Chandler, Sue L. Pantano
Mastrogioeanni, Charles L. Stewart, Gary A.
Mighell, Terry M. Lewman, Marcel M. Fardoux,
Manfred R. McKinnis, Laurel L. Green, Elmer
Lee Wood, Larry B. Frisk, and Joseph A. Russo
any money they lost as a result of our failure to
consider them for employment on a nondiscrimi-
natory basis, following filing of their employment
applications, with interest at 6 percent, and WE
WILL offer them any job which they would have
received had their applications been properly
considered.
ALEXANDER DAWSON,
INC. D/B/A ALEXANDER'S
RESTAURANT AND
LOUNGE
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III , Administrative Law Judge: This
matter was heard by me in Las Vegas, Nevada, on
February 3 through 6, 1976. On October 31, 1975,1 the
Acting Regional Director for Region 31 issued a complaint
and notice of hearing, based on an unfair labor practice
charge filed on July 28, alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq., herein called the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence , to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following:
' Unless otherwise stated, all dates occurred in 1975.
ALEXANDER'S RESTAURANT AND LOUNGE 167
FINDINGS OF FACT
1. JURISDICTION
At all times material, Alexander Dawson, Inc. d/b/a
Alexander's Restaurant and Lounge, herein called Respon-
dent, has been a corporation duly organized under and
existing by virtue of the laws of the State of Nevada, with an
office and principal place of business located in Las Vegas,
Nevada, where it has been engaged in the operation of a
restaurant and bar. In the course and conduct of its
business operations, Respondent annually derives gross
revenues in excess of $500,000 and annually purchases and
receives goods or services valued in excess of $50,000
directly from suppliers located outside the State of Nevada.
Therefore, I find, as admitted in the answer to complaint,
that Respondent, at all times material herein, has been an
employer engaged 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
At all times material, Local Joint Executive Board of Las
Vegas Culinary Workers Union Local 226 & Bartenders
Union Local 165, Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called
the Union, has been a labor organization within the
meaning of Section 2(5) of the Act.
III. ISSUES
As framed by the complaint and amendment thereto the
following issues are presented in this matter: 2
1. Whether, beginning in February and continuing
thereafter, Respondent interrogated applicants for employ-
ment concerning their union activities and sympathies, in
violation of Section 8(a)(1) of the Act.
2. Whether, in July and August, Respondent granted tip
subsidies to employees in an effort to dissuade them from
supporting the Union, in violation of Section 8(a)(3) and (1)
of the Act.
3. Whether, in February, Respondent commenced a
practice of refusing to hire applicants for employment
because of its suspicions that those applicants were favor-
ably disposed toward the Union, thereby violating Section
8(a)(3) and (1) of the Act, and whether in the course of such
a practice Respondent denied employment, inter alia, to
Dorothea R. Murdock, Dorothy Jean Gosnell, Don H.
Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee
Marshak, William D. Harkson, Jimmy Walters, John C.
Chandler, Sue L. Pantano Mastrogioeanni, Charles L.
Stewart, Gary A. Mighell, Joseph A. Russo, Terry M.
Lewman, Marcel M. Fardoux, Manfred R. McKinnis,
Laurel L. Green, Elmer Lee Wood, Gordon Scott and
Helen Schmuck; and whether Respondent discharged
Richard Ogden.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent is a separate division of Alexander Dawson,
Inc., which also operates a number of other enterprises. In
1974, Chairman of the Board and Chief Executive Officer
G. B. Henderson conceived the idea of constructing a
restaurant to serve tenants of two buildings in Las Vegas
owned by Alexander Dawson, Inc. Construction of this
restaurant commenced in 1974. According to General
Manager Norman D. Martin, the cocktail lounge portion of
the facility opened on March 24 and, in the middle of the
following month, the restaurant portion was opened.
The principal issue in this proceeding revolves around the
procedures followed to staff the cocktail lounge and
restaurant. The General Counsel presented five former
supervisors - Fariborz (Fred) Sadri, George Petrunjo,
Hugh Buck, Jean-Pierre Mejlaender, and Michael Whit-
comb 3 - each of whom testified that Respondent's
management officials had instructed them not to hire
applicants who would be favorably disposed to the Union
or who had backgrounds disclosing prior affiliation with
the Union. Respondent presented four management offi-
cials - Henderson, President Farrow J. Smith, General
Manager Norman D. Martin, and former Corporate
Secretary Gary Abraham - each of whom denied having
issued such instructions and each of whom denied that
there had ever been any policy of precluding applicants
from consideration for employment because of their
sympathies toward the Union. Additionally, Respondent
asserts that a conspiracy exists to subject it, wrongfully, to
liability for the commission of unfair labor practices. In
connection with this assertion Respondent charges that
each of the five former supervisors had motives for joining
such a conspiracy and, further, that the substance of their
testimonies discloses that they were, in fact, acting pursuant
to such a conspiracy.
B. The Supervisors
There is merit to Respondent's assertion that a basis
exists for the five supervisors to harbor animosity toward
Respondent. Four of them had been terminated and one,
Sadri, had quit in August after having been demoted, in
June, from food-and-beverage manager to maitre d'. It was
clear when they testified that each of them felt that
Respondent had been unfair in its treatment of them. For
example, Buck testified that he had never been warned that
Respondent had a policy which prohibited its personnel
from engaging in "outside interests" and, further, that he
did not regard his partnership in a fast foods enterprise as
being a "sufficient reason" for terminating his employment
at Respondent's gourmet restaurant. Similarly, Whitcomb
testified that he believed that his termination had, in reality,
resulted from the fact that on the day before his discharge
his union book had been left on a desk in plain view of
Martin. In fact, Whitcomb filed an unfair labor practice
2 In his brief, counsel for the General Counsel also alleges that Respon-
dent engaged in surveillance of activities of employees whom Respondent
believed to be union supporters. However , the General Counsel has not
moved to amend the complaint to allege such conduct as a violation of Sec.
8(ax 1) of the Act.
3 Whitcomb's name also appears in the record under the spelling
Witcome.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge concerning his termination , but his status as a
supervisor precluded further processing of that charge.4
Mejlaender denied that he had solicited tips , the reason
advanced for his termination. Yet, when they testified,
these three former supervisors did not appear to be
attempting to tailor their testimony to cast Respondent in
an unfavorable light. Nor did they appear so hostile toward
Respondent that they would make the effort to do so.
A wholly different situation was presented by Sadri and
Petrunjo. Both appeared to harbor considerable hostility
toward Respondent and, in Sadri's case, this hostility
manifested itself in total contempt. Thus, he testified:
Sometimes you just feel like the company is just wasting
your time, because I couldn't increase my knowledge
working under Mr. Martin and Mr. Smith, because I
consider those people unqualified people. They didn't
have any knowledge of management , they didn't have
any college education. So I was just kind of wasting my
time, causing matters with my wife and too many
people.
In a like vein, in an effort to obtain reemployment with
Respondent, Petrunjo authored a letter on November 12 in
which he wanted , inter alia:
Now, gentlemen it is not blackmail , what I am going to
tell you. I just wish I had my job back, which I carried
out very well. If I do not receive an answer to my letter
from you in a few days, I am going to make the first step
to dishonour the reputation of your company.5
That Petrunjo was prone to tailor his testimony adversely
to Respondent was illustrated most graphically by his
generalized claim that applicants had been discriminated
against by his superiors, but by his inability to list any
specific examples to support that generalization , other than
Susan Hamon. Examination of Hamori 's application,
submitted by the General Counsel, discloses on the second
page that her age was listed as 54 years old and on the last
page, printed in Sadri's handwriting, is the phrase: "Mr.
4 Although the Charging Party contends that neither Whitcomb nor
Petrunjo was a supervisor, both the General Counsel and Respondent
contend that they were supervisors . Whitcomb admittedly supervised waiters
and busboys in the dining room , scheduling their hours , scheduling overtime
when necessary, and assigning waiters to stations at which they were to work.
As executive or head chef, Petrunjo scheduled the working hours for kitchen
personnel and, while he did not schedule overtime for employees, he
apparently had the authority to authorize overtime work whenever neces-
sary. Moreover, Petrunjo was the only person to interview applicants for
kitchen positions and, in view of the inexperience of Respondent 's manage-
ment officials in restaurant work , Petrunjo's recommendations regarding the
qualifications of applicants appear to have been followed . On two of the
three occasions that Whitcomb recommended applicants be hired for
employment, his recommendations were followed . Similarly, on one occa-
sion when Whitcomb recommended that an employee be reprimanded for
reporting late for work , Martin followed that recommendation . As demon-
strated by Ogden's termination , discussed infra, Petrunjo's recommendations
respecting termination appear to have been followed Therefore, I find that
both Whitcomb and Petrunjo were supervisors within the meaning of Sec.
2(11) of the Act.
5 In an effort to rehabilitate Petrunjo's testimony, the General Counsel
introduced a prehearing affidavit, predating the November letter and
corresponding with Petrunjo 's testimony . However, this affidavit , bearing
the date August 27, was prepared after Petrunjo's termination and at a time
when he had admittedly commenced active support for the contention that
Martin said the man [sic] is too old." Quite clearly, the fact
that Hamori did not obtain employment with Respondent
was not related to any possible union sympathy on her part,
but rather, as acknowledged by Sadri's notation, was based
solely upon the fact that Respondent believed Hamori to
have been too old to handle employment with Respondent.
Furthermore, on cross-examination Petrunjo continually
evaded answering questions put to him. I am convinced
that this evasion was not the product of language difficul-
ties , but was undertaken in an effort to obtain time to
formulate answers consistent with the portrait that he was
trying to portray of Respondent and, further, to avoid
diminishing his own position. With respect to the latter
point, it is worth noting that while Petrunjo denied that
anything had been said to him at the time of his termination
regarding the substitution of pork for veal, in his letter of
November 12 he admits having been told, when terminated,
that he was being terminated because he had substituted
pork for veal. In these circumstances, I credit Petrunjo only
insofar as his testimony is corroborated either by other
credible testimony or by objective considerations.
The central figure in Respondent's argument concerning
an asserted conspiracy is Sadri. As noted above, Sadri
appeared to harbor considerable hostility toward Respon-
dent. Moreover, it was manifest that he had been in contact
with the Union well before the time that he had ceased
working for Respondent. Thus, he acknowledged having
been a member of the Union prior to commencing work for
Respondent and, shortly before Petrunjo's termination,
Sadri had suggested that Petrunjo contact the Union to
ascertain if it would protect his job.
The central item of concern regarding Sadri's testimony
involved a series of completed four-page application for
employment forms, introduced by the General Counsel to
support the allegation concerning Respondent's hiring
practices .6 Red X's appeared on the front pages on these
forms and, on the third page, where the applicants listed
prior employment, red circles had been drawn around items
which ostensibly disclosed a prior relationship to the
Union, i.e., employment in establishments where the Union
was the bargaining representative. On the final page of a
Respondent had engaged in unfair labor practices . Moreover, the sentiments
expressed in the letter concerning his discharge , which Petrunjo attributed to
inadvertent interference in a personal relationship between supervision and a
cocktail waitress , undoubtedly existed from the time that he had been
terminated . That his feelings did not ripen into articulation until November
hardly negates their existence prior to the taking of the affidavit. Thus, I do
not believe that the affidavit serves to effectively rehabilitate Petrunjo's
testimony merely because it predated his November letter.
6 In its brief Respondent challenges the authenticity of several of these
applications (particularly those of Kirk, Kublin, Russo, and Lewman) where
the applicant did not appear as a witness and where no other witness had
specific recall of the application or of the circumstances under which it had
been filed. However, these applications were similar in nature to those filed
by a number of other applicants who did appear and who did testify
concerning the authenticity of their own applications . Though, as discussed
above, there was controversy regarding the authorship of certain markings
appearing on the applications , Respondent presented no evidence showing
that the applications themselves had been the product of forgery or had been
completed by any interested party other than the applicant . Under Rule
901(a) of the Federal Rules of Evidence , documents are admissible so long as
there is evidence sufficient to support a finding that the matter in question is
what its proponent claims . In view of the similarity of these applications to
those which were authenticated by the applicants, and absent evidence
showing that they were prepared by any witness in this proceeding, I find the
applications have been sufficiently authenticated to be admissible.
ALEXANDER'S RESTAURANT AND LOUNGE
few of the applications Sadri had written comments which,
in substance, stated that the refusal to employ the individu-
al was the result of prior union affiliation. Though the
General Counsel contends that these markings demonstrate
the existence of a discriminatory hiring policy, Respondent
contends that the markings were inserted by Sadri in an
effort to perfect a case against Respondent and should not
be given any weight. From the record and from my
observation of Sadri, it would appear that Respondent has
the better of this argument.
In the first place there is the issue of the circumstances
under which these documents were removed from Respon-
dent's premises. Sadri testified on direct examination that
they had been included among his personal papers and,
thus, had been inadvertently removed from the office when
he had collected those personal papers on his final day of
employment with Respondent: "The day I left, when I
cleaned my office, it was around 20 or 25 applications."
Yet, Sadri did not leave Respondent's employment until
mid to late August and Dennis M. Sabbath, one of the
Union's attorneys, filed the charge on July 28, using the
applications submitted by Sadri as the principal evidence to
support the charge. It is , consequently, apparent that the
application forms could not have been removed from
Respondent 's premises in the innocent fashion which Sadri
initially attempted to portray. Indeed, apparently alerted to
the possibility of a problem by the tenor of cross-examina-
tion , Sadri ultimately reversed his field and testified that he
had removed the forms prior to his last day of employment
with Respondent. Yet, at no point was he able to recall the
date on which he had assertedly done so. In view of the fact
that Sabbath came into possession of the forms almost I
month prior to Sadri's departure from Respondent, I find it
most unlikely that the forms could have been removed at
that time for any reason other than to use them as a basis
for assisting the Union's cause against Respondent and in
retaliation for Sadri's demotion to maitre d'. This conclu-
sion is , of course, consistent with the attitude which Sadri
displayed during the course of the hearing toward Respon-
dent. Moreover, Sadri's conduct in removing these applica-
tions parallels what took place when Petrunjo left, for he
also acknowledged removing rejected applications from
Respondent's premises , although, like Sadri, he testified
that the removal had been inadvertent. Nonetheless, these
applications were turned over to the Union, apparently as a
result of conversations between Petrunjo and Sadri.
Second, when Sadn testified about the red X's and circles
he admitted only that some of them had been written by
him. It was clear that he was attempting to convey the
impression that Respondent's management officials had
made the others - a conclusion confirmed by Sabbath's
testimony that Sadri had told him (Sabbath) that he (Sadri)
had not made the red markings on the forms and that it had
been Martin who had made the markings .? Notwithstand-
ing the fact that Sadri should have known that all of the
circles had been drawn by him and that all of the X's had
been written on the forms by him, he claimed at the hearing
r I sustained a post -answer objection to this testimony on the grounds
that it was hearsay However, no motion to strike the testimony was made,
nor was one granted Accordingly, while I am not considering Sabbath's
testimony concerning what Sadn had said to him for the truth of the matter
169
that he was not aware if some of such markings had been
made by him and he asserted further that other individuals
in Respondent's management had also made these mark-
ings . Yet, Examiner of Questioned Documents Bowman
testified, based upon his study of the exhibits, that all of the
red X's and circles at issue in this matter had been the
product of Sadri's authorship - a fact which the General
Counsel appears to concede to be true in his brief and a
conclusion which appears quite reasonable in light of the
unique manner in which the circles were drawn and the
similarity of the manner of drawing the circles and of
making the X's.
In these circumstances , I find that these red markings on
the applications for employment introduced by the General
Counsel were made by Sadri. Moreover, in view of
inconsistencies in Sadri's testimony, viewed in light of the
other evidence in this matter, concerning the manner in
which the applications were removed from Respondent's
premises and his obviously false statements concerning the
authorship of the ostensibly incriminating markings on
those forms, I find that these red markings, as well as
Sadri's comments on the fourth page of a few of the forms,
are not entitled to any weight. It simply has not been shown
by a preponderance of the evidence that they were
generated by Sadri for reasons other than venting his
hostility toward Respondent by attempting to construct a
stronger case for finding the Respondent committed unfair
labor practices. Accordingly, like Petrunjo, I credit Sadri
only to the extent that his testimony is corroborated by
objective considerations or by other credible testimony.
Respondent further argues that a credibility resolution
adverse to Sadri and Petrunjo demonstrates that a conspir-
acy was in progress and that this conspiracy was designed
to ensure that Respondent would be unjustifiably held
responsible for engaging in an unlawfully motivated
practice of selecting employees for employment with
Respondent. Yet, even were it assumed that all five former
supervisors called as witnesses by the General Counsel had
testified untruthfully, the record in this matter, consisting of
Respondent's own admissions and of other testimony and
evidence, amply justifies the conclusion that Respondent
had, in fact, been engaging in a discriminatory hiring
practice.
C. Respondent's Nonunion Policy
Respondent admits that it was intent upon operating on a
nonunion basis. Henderson conceded that this had been his
policy. Moreover, it was a policy that was clearly communi-
cated to lower management as is shown by the fact that
Smith, Martin, and Abraham had been cognizant of
Henderson's objective. It is also clear that Henderson's
nonunion policy was communicated to the supervisors.
Thus, Henderson acknowledged having explained to Sadri,
when the latter had been hired, that "management intended
Alexander's Restaurant to be nonunion." Smith, also,
conceded that he may have mentioned this policy to Sadri,
and Martin admitted that, at various times, he had
asserted, consistent with the ruling that I made, I am considering that
testimony for all other purposes, including the fact that it shows that Satin at
one time denied having made any of the red markings on the applications.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commented to Sadn that Respondent hoped to maintain a
nonunion house. Finally, asked if it had been common
knowledge among the supervisors that Alexander's Restau-
rant was a nonunion house, Abraham responded, "Yes. I
would say yes." These circumstances provide ample corro-
boration for those portions of the supervisors' testimonies
attributing to Respondent's officials statements concerning
Respondent's policy of operating on a nonunion basis.
D. Action to Implement Respondent's Policy
It is also clear that Respondent did more than merely
hope passively that it could remain nonunion. In addition
to advising its supervisors of the nonunion policy, Smith
admitted that in the fall of 1974 Martin and Buck had
accompanied him to a Las Vegas law firm's office because
"we wanted to try to maintain a nonunion house, a
restaurant, and we were getting information at that time." 8
In March, Abraham was dispatched to Los Angeles to
attend a program on preserving nonunion status. Upon
returning, he distributed a confidential memorandum to the
supervisors incorporating the material which he had re-
ceived at the Los Angeles program, thereby reinforcing
Respondent's oft-stated policy of maintaining a nonunion
operation. Though Henderson testified that the purpose for
Abraham's attendance at the program had been "to get as
sophisticated in what the law required on how to conduct
ourselves properly in a business that we had never been in
before," examination of the memorandum distributed by
Abraham does not disclose any matters unique to restau-
rant operations. It does, however, contain a thorough
discussion of steps to follow should a union demand
recognition as the bargaining representative of an employ-
er's employees.
E. The Tip Subsidies
It is also clear that Respondent, in an effort to preserve its
nonunion status , pursued an additional course of action
which led it to transgress the line dividing unlawful from
lawful conduct. On April 30 (through inadvertence one
employee did not receive a bonus until early May), on May
28, in mid-July following receipt of the Union's letter
demanding recognition, and in August, tip subsidies were
granted to Respondent's waiters , cocktail waitresses, bar-
tenders, and busboys.9 Smith and Martin testified that the
purpose for the subsidies was to retain personnel, a
substantial portion of whose income was derived from
customer gratuities, during a period when, as a new
8 In its brief Respondent assails Buck 's credibility, in part, on the ground
that the restaurant had been under construction during his tenure as food-
and-beverage manager Thus, argues Respondent, there would have been no
purpose for Respondent to have advised Buck of any antiumon hiring policy
since employees were not then being hired Yet, Respondent did not dispute
Buck's assertion that during his 8 - or 9-month tenure , ending on January 8,
Respondent had set several target dates for opening in 1974 but that
postponements had been encountered due, apparently , to construction
delays The above-described trip to the Las Vegas attorney's office would
appear to corroborate Buck that hiring had been considered in 1974 and that
Respondent had begun taking steps to implement its nonunion hiring policy.
Consequently , it is not inconceivable that Respondent would have advised
Buck of its nonunion policy during 1974.
9 While busboy Louis Clery claimed that kitchen personnel had also
received tip subsidies , this was not supported by Respondent 's records and
enterprise, Respondent did not anticipate the volume of
patronage that ultimately would be achieved once its
reputation became established. Thus, to prevent loss of
personnel through dissatisfaction with a low volume of tips,
Respondent formulated the policy of providing subsidies as
a supplement to the tips which these employees would
receive.
Although the complaint alleged only that the July tip
subsidies were unlawful, in his brief counsel for the General
Counsel argues "it is likely that all the bonuses were given
to dissuade the employees from forming a union." Contrary
to this argument, the evidence does not support the General
Counsel's contention that the April and May subsidies had
been conferred for unlawful motives. Respondent's expla-
nation for instituting the program is reasonable. That
business may ultimately have exceeded expectations or that
patronage may have increased more quickly than antici-
pated does not serve to render the subsidy program
unlawful, for it was based upon a forecast that patronage
during Respondent's initial phase of operation would be
significantly less than would be the case once Respondent
became established. Moreover, there is no evidence that the
Union or any other labor organization had been campaign-
ing among Respondent's employees when the tip subsidy
concept was conceived. Nor is there any evidence that a
campaign was in progress during April and May when the
first two subsidies were granted. In these circumstances, the
formulation of the tip subsidy program and its implementa-
tion in April and May appear to have been motivated solely
by business considerations. Accordingly, I find that the
formulation of the program and the April and May tip
subsidies did not violate Section 8(a)(1) of the Act.
A quite different situation is presented by the subsidies
granted in July and August. The sequence of granting tip
subsidies had been broken in June, when no subsidies were
conferred. No evidence was presented to show that business
had so declined in July, when compared with that in June,
that resumption of subsidies was warranted. Indeed, Smith
conceded that it may well have been in July that the
luncheon business had so increased in volume that it
became necessary to utilize the cocktail lounge to serve
luncheon meals. Moreover, there was a significant and
unexplained increase in the dollar amount of the subsidies
conferred in July and August when compared with those
paid in the spring. Thus, in April and May, the amounts of
the subsidies had ranged between $10 and $20, except for
one waiter who had received a $30 subsidy in April and two
cocktail waitresses who had received $25 subsidies in May.
By contrast, no subsidy conferred in July was less than $25,
no witnesses were called to corroborate Clery's assertion that cook Dennis
Berry, dishwasher Jerry, and preparer Tom had each reported to him (Clery)
that they had received bonuses . No explanation was advanced for the failure
to call such witnesses and no employees in other classifications testified that
they had received bonuses. Moreover, Clery asserted that he had received
only two bonuses during his employment with Respondent, one in July and
one in April. In fact , Respondent's records disclose that Clery also had
received a bonus in May. It appeared to me that , by this testimony, Clery was
attempting to create a sufficient gulf between the bonuses which he had
received to warrant the conclusion that, as alleged in the complaint, his July
bonus had been the product of Respondent' s desire to undermine employee
support for the Union. Accordingly, I do not credit Clery's testimony that
employees other than waiters, waitresses , bartenders, and busboys received
tip subsidies , since it, likewise , appears motivated by a desire to perfect a
violation by Respondent.
ALEXANDER'S RESTAURANT AND LOUNGE
an amount paid to three busboys . Two bartenders and three
waiters received subsidies of $40 and two cocktail waitress-
es received $50 subsidies . One month later , in August,
cocktail waitresses again received $50 and bartenders again
received $40 subsidies.
The timing of the summer subsidies is also significant, for
by the time that the July subsidies had been conferred,
Respondent admittedly had received the Union's letter
demanding recognition . Indeed, accompanying the pay-
checks , which included the July bonus , was a form letter in
which Respondent asserted its opposition to unionization
of its employees , thereby drawing a direct equation between
the benefits conferred in the paychecks and the union's
ongoing campaign . Significantly , Martin admitted that
while Respondent's wage scales had initially been equiva-
lent to those paid under the union 's contracts in the area, a
July increase provided by the union's agreement had
resulted in a disparity which had left Respondent 's rates
less than those paid at union establishments.
In Newport Division of Wintex Knitting Mills, Inc., 216
NLRB 1058 (1975), the Board stated:
An employer's granting a wage increase during a union
campaign "raises a strong presumption" of illegality. In
the absence of evidence demonstrating that the timing
of the announcement of changes in benefits was
governed by factors other than the pendency of the
election , the Board will regard interference with em-
ployee freedom of choice as the motivating factor.
In the instant case there can be no other conclusion than
that the July and August subsidies were granted for the
objective of dissuading employees from continuing to
support the Union . No subsidies had been granted in June
and there was no showing that business in July had
declined to the point where resumption of the subsidy
program was warranted. The summer subsidies were not
granted until after Respondent had learned of the Union's
organizing campaign and, as shown by the letter which
accompanied the July paychecks , Respondent was attempt-
ing to equate its conferral of benefits with its appeal to
abandon further campaigning and organizational efforts on
behalf of the Union , in circumstances where its own wage
rates were now less than those being paid under union
contracts in the area . Moreover , no explanation was
advanced for the vastly increased amounts of subsidies
conferred during the summer , compared with those granted
in April and May. In these circumstances , the only
conclusion that can be reached is that Respondent was
using the tip subsidies program to dissuade its employees
from supporting the Union , thereby effectuating its basic
policy of operating on a nonunion basis. Accordingly, I find
that by conferring tip subsidies in the months of July and
August for the purpose of discouraging support for the
Union, Respondent violated Section 8(a)(3) and ( 1) of the
Act.
F. The Discharge of Richard Ogden
The General Counsel alleges that Respondent terminated
cook Richard Ogden because of its belief that Ogden, who
had worked for approximately a month and a half following
171
the restaurant's opening, was a supporter of the Union. The
sole evidence in support of this allegation was the testimony
of Petrunjo, who asserted that cook Dennis Berry had
reported that Ogden was a member of the Union. Petrunjo
testified that he had related Berry's comments to Sadri,
who, in turn , had directed Petrunjo to terminate Ogden.
As found above, Petrunjo was not a credible witness, and
his testimony in connection with Ogden 's termination
appears to be another manifestation of his effort to
"dishonour the reputation of' Respondent . Thus, Sadri,
who certainly carried no brief for Respondent , did not
corroborate Petrunjo 's testimony respecting the asserted
report of Ogden's possible membership in the Union. Cook
Berry was never called as a witness to corroborate Petrunjo,
and no explanation was proffered for failing to call him as a
witness . Ogden had never been employed in the Las Vegas
area, a factor which Respondent considered indicative of
union support as discussed , infra. Moreover , Ogden ac-
knowledged that he had not generally expressed favorable
views toward the Union while employed by Respondent. In
fact, Ogden was unable to recall even having discussed the
Union with any employee during the time that he had
worked for Respondent, although he speculated that he
may have discussed the Union's organizational campaign
in the Lake Tahoe area . Finally, it is undisputed that Ogden
had been told that his termination was occasioned by the
fact that there simply was not enough work for the number
of cooks that Petrunjo had in the kitchen . Asked about his
own report that Ogden's work was not as satisfactory as
that of the other cooks , Petrunjo vacillated . He first denied
ever having said that Ogden was not a qualified cook and
was incompetent . He then conceded that Ogden possibly
was "a little bit worse or something ." Finally he pleaded
that he simply did not remember and did not think that he
had ever told this to Sadri or Martin, although he did
concede that he had never said that Ogden was a good
cook.
In light of Petrunjo 's unreliability, the absence of
corroboration for his testimony regarding the asserted
sequence of events which led to Ogden 's termination, his
vacillation concerning his own reports to his superiors
about Ogden's work, and the absence of any evidence
which would support a conclusion that Ogden had, in fact,
been a member or supporter of the Union or had, in fact,
been discussing the Union favorably (thereby casting
further doubt on Petrunjo 's assertion that Berry would
make such a report), I find that it has not been shown by a
preponderance of the evidence that Respondent was
motivated by unlawful considerations at the time that it
made the decision to terminate Richard Ogden.
G. The Surveillance of the Clery Brothers
There is no allegation in the complaint that Respondent
engaged in surveillance in violation of Section 8(a)(1) of the
Act. Nor has any motion been made to amend the
complaint to allege such a violation by Respondent.
However, in his brief, counsel for the General Counsel
argues , in essence, that the evidence of Respondent's
surveillance should be considered as background in ap-
praising Respondent's overall motivation with respect to
the hiring of employees.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louis Clery testified that following Petrunjo 's termina-
tion , he and his brother, both busboys, had commenced
soliciting authorization cards on behalf of the Union. This
activity, testified Clery, had led Mejlaender to begin
watching them closely and, also, to begin making derogato-
ry comments about them because of their protected
activity . As a result , according to Clery, both he and his
brother quit to avoid further harassment.
I did not credit Louis Clery's testimony regarding the tip
subsidies . However , his testimony concerning the surveil-
lance is corroborated by Mejlaender , who testified that the
Clery brothers had been excluded from a list , apparently
prepared in connection with the representation petition
which Respondent filed in response to the union's demand
letter, of employees who could be counted on to vote
against the Union. This list, testified Mejlaender, had been
prepared by himself and Martin and, following its prepara-
tion , Martin had directed Mejlaender to watch the Clery
brothers , both because of Mejlaender's prior complaints
concerning their failure to properly perform their duties
and because they were sympathetic to the Union.
Martin denied ever having told Mejlaender to watch the
Clery brothers because they were involved in the union's
campaign and further denied ever being aware that the
Clery brothers had been engaged in activity on behalf of the
Union. However , Martin did not deny Mejlaender's testi-
mony concerning the preparation of the list of potential
nonunion employees . Further, Martin admitted that he had
directed Mejlaender to "watch out" for the Clery brothers
because
... we felt at one point during their employment, we
were having some problems in the restaurant , salt in the
sugar, this type of thing , and we had reason to believe
that they probably might be involved , although, we had
no evidence.
The problem with this assertion is apparent from the last
phrase - the absence of evidence of responsibility by the
Clery brothers . At no point did Martin explain why he had
chosen to single them out as employees whom Mejlaender
should observe for asserted misconduct. Mejlaender did
acknowledge that acts of "sabotage" had been occurring,
that he had been instructed to watch for such misconduct
and that the Clery brothers were among those who had the
ability to engage in such misconduct . However , at no point
did Mejlaender testify that he had reported that the Clery
brothers had possibly engaged in such misconduct and he
testified only that he had previously made reports of their
"horsing around" instead of performing their duties. There
is, consequently , no link between the acts of misconduct
which had been occurring and the Clery brothers.
Martin himself was not a convincing witness. His
testimony regarding the misconduct appeared to have been
advanced more as an excuse for his direction to Mejlaender
than as a substantive reason for that direction. The
vagueness of Respondent's evidence concerning the inci-
dents indicates the lack of significance with which it veiwed
them . The only specific illustration advanced was that of
salt being placed in sugar containers - conduct which
could have been engaged in by a number of classifications
of employees as well as by prank -prone customers . In these
circumstances , I fmd Respondent 's defense to Martin's
admitted surveillance instruction to Mejlaender is singular-
ly unconvincing and, in view of this fact and inasmuch as
Martin did not deny Mejlaender's testimony concerning the
issuance of the direction to watch the Clery brothers
following the preparation of the list of employees who were
not sympathetic to the Union , a list from which the Clerys
were excluded, I fmd that Respondent did direct Mejlaen-
der to engage in surveillance of the Clery brothers because
of their activity on behalf of the Union.
H. Interrogation of Applicants
In an area somewhat more directly related to Respon-
dent's hiring practice , a series of applicants testified that
questions were asked of them regarding their feelings
toward and prior affiliation with the Union. Thus, food-
waitress or busgirl applicant Dorothea Murdock testified
that she had been asked if she was a union member, and
why she had listed the pay scale in the manner which she
had on her application . To the latter question , she respond-
ed that it represented union pay and that she expected
something close to union pay, were she to be hired . Marcel
M. Fardoux , applying for the position of executive chef,
testified that he had been asked if he was a union member.
Cook applicant Larry B. Frisk testified that when he had
volunteered that he expected union wages the interviewer
had asked if he was currently a member of the Union, and
whether his membership was still in good standing . Barbara
Evans , an applicant for the position of cocktail waitress,
testified that she had been asked if she was currently in the
Union. Chef applicant Elmer Lee Wood testified that he
had been asked if it would bother him to work in a
nonunion house , and hostess-cashier applicant Laurel L.
Green testified that she had been asked if she was currently
a union member.
Respondent appears to argue that the testimony of these
applicants should be viewed with suspicion in view of its
overall defense that a conspiracy existed to establish
wrongfully that Respondent had engaged in unfair labor
practices and, further, that it had the right to inquire of the
union sympathies of applicants for supervisory positions
such as that of executive chef. Quite clearly, however, the
latter defense would not be applicable to most of the
employees who testified concerning the interrogations. All
but Fardoux were applying for positions which were not
supervisory . Moreover, a number of factors support the
supervisors ' assertion that interrogations of applicants were
undertaken pursuant to instructions from Respondent's
management officials , and, concomitantly , to refute the
management officials' denials that they had tendered such
instructions.
First, Respondent acknowledges that its policy regarding
nonunion operation was repetitively mentioned by its
management officials to the supervisors . For example, at
the time that he initially hired Sadri , Henderson admitted
that he had specifically expressed his desire that Respon-
dent remain a nonunion operation. Smith , who seemingly
would have no purpose for doing so in light of his lack of
relationship to the staffing process, conceded that he "may
have told" Sadri that it was desired that Respondent would
remain nonunion . Pressed on cross-examination for a
ALEXANDER'S RESTAURANT AND LOUNGE
further description of the incident in which he made this
statement, Smith was unable to recall when it occurred, if
anyone else had been present, and specifically what he had
said to Sadri during the conversation. The only thing that
he was able to recall is that he had advised Sadri that
Respondent wanted to remain nonunion. He proffered no
explanation as to why he had taken the time to make such a
statement to Sadri . Martin also acknowledged having
discussed Respondent 's nonunion policy with Sadri "at
various points throughout our relationship while he was in
charge of the restaurant."
At no point did Respondent explain why it had been
necessary for such an array of management officials to
state , restate , and dwell upon the policy of nonunion
operation. The only fair inference is that the policy was
continually emphasized as a means of directing the supervi-
sors to act consistently with that policy in selecting
applicants for employment. Consequently, it is most likely
that the supervisors would inquire of applicants regarding
their sympathy toward the Union. Furthermore, these
admissions tend to support the supervisors' testimony
regarding the constant repetition of Respondent's desire to
operate without the Union and the instructions to weed out
applicants who appeared sympathetic toward the Union.
These conclusions are further reinforced by Abraham's
admission that he had instructed Sadri to tell applicants
who appeared to be sympathetic to the Union that
Respondent was not a union restaurant:
If [Sadri ] received, and I don't note [sic] the specificate
[sic] language I told him, but some people are very
union conscious if they, you know, wanted to work only
for a Union shop and you get this feeling, make sure
you advise them that we are not Union and if it bothers
them you should tell them about it.
In giving this testimony , Abraham appeared most uncom-
fortable, and, while he attempted to make it appear that his
direction to Sadri was intended as a favor to applicants who
were sympathetic to the Union, it was clear that his
comment was intended as a deterrent to dissuade appli-
cants from further pursuing employment with Respondent,
thereby eliminating potential threats to Respondent's
nonunion policy.
Second, the supervisors were not the only interviewers to
raise the issue of the Union with applicants, for Martin
admitted that he personally had spoken to applicants about
Respondent's nonunion policy "because occasionally it
would come to my attention , during the interview with the
employee , through some statement of his own, that he was a
union member."
Finally, it was clear that Respondent's policy of seeking
out and deterring union sympathizers and members from
applying for employment was sufficiently reiterated and
publicized that persons other than management officials
and supervisors were cognizant of its existence . Thus, H.
Lee Marshak, an applicant for a position in the kitchen,
testified that the secretary to whom he had given his
completed application had asked him if he was registered
with the Union. Though Marshak was unable to identify
the secretary by name, he did provide a general description
of her and of the location at which she had worked. Yet
173
Respondent neither presented evidence that such an
individual, as described by Marshak, had never been
employed by Respondent, nor did it produce either a
secretary to deny Marshak's statements or evidence that it
was unable to produce that individual.
These factors - the reiteration of Respondent's nonun-
ion policy, Abraham's instructions to advise Union-orient-
ed applicants of that policy, Martin's admission of personal
discussions of that policy with applicants, and Marshak's
unrefuted account of the secretary's interrogation -
support the supervisors' testimony that they had been
instructed to interrogate applicants to facilitate eliminating
the Union's supporters as employees. For, these factors
show that Respondent was concerned that its nonunion
policy be kept in focus during the interviewing process and
that the interviewing be conducted in a manner consistent
with deterring applications by the Union's members and
supporters. In these circumstances , it would be highly
unlikely that Respondent's interviewers would question
applicants concerning their sympathies toward and affilia-
tion with the Union. Therefore, I find that applicants were
interrogated regarding their membership in and sympathies
toward the Union, and, further, that these interrogations
were undertaken pursuant to the instructions of Respon-
dent's management officials.
1. Respondent's Policy Respecting Prior Employment
in Las Vegas
The Union is the bargaining representative of employees
in a great number of Las Vegas establishments. In fact, so
extensive is the Union's representation in the Las Vegas
area that Respondent was able to name but one specific Las
Vegas establishment - Alpine Village - as having
successfully been able to operate in Las Vegas on a
nonunion basis . This of course would mean that , in Smith's
words, "it would be a difficult thing" to operate a nonunion
establishment in the city of Las Vegas. It would also mean
that, had Respondent staffed its facility solely with employ-
ees from the Las Vegas area, it would be virtually certain
that a substantial , if not a preponderant, number of those
employees would be union members by virtue of their prior
employment. As Abraham acknowledged: "How can you
staff a restaurant with only non-union people , with as many
people as there are in Las Vegas? It would be impossible
not to have a lot of union people working in a restaurant."
It is this equation between union membership and prior Las
Vegas employment that leads the General Counsel to argue
that Respondent treated the latter as a synonym for the
former, with the result that applicants whose employment
history disclosed previous employment in Las Vegas
establishments were deliberately precluded by Respondent
from employment so that Respondent 's nonunion status
could be preserved.
To support this contention the General Counsel intro-
duced a series of applications filed by employees who had
sought employment with Respondent and whose work
history disclosed prior employment in Las Vegas establish-
ments : H. Lee Marshak (Bonanza); Elmer Lee Wood
(Howard Johnson and Starboard Tack); Marcel M. Far-
doux (Hacienda Hotel , Sands Hotel , New Frontier Hotel);
Larry B. Frisk (Gambler's Hall of Fame, Holiday Casino,
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden Gate Casino); Dorothea R. Murdock (MGM
Grand Hotel); Laurel L. Green (Silver Slipper, Castaways
Hotel, Frontier Hotel); Charles L. Stewart (Dunes Hotel,
Hilton Inn International); Charlotta M. Jackson (Hilton
Strip); William D. Harkson (MGM Grand Hotel, Pepper
Mill Inn); John C. Chandler (Sands Hotel); Gary A.
Mighell (Starboard Tack); Jimmy Walters (Aladdin Res-
taurant Goldroom); Chris G. Dunkle (Steake Corral,
Ceasar's Palace); Manfred R. McKinnis (Holiday Inns of
America); and Sue L. Pantano Mastrogioeanni (Sahara
Hotel). Moreover, in listing his previous employment at the
Hilton Inn in Oakland, California, Lewman described his
rate of pay as "union." In the cases of the enterprises listed
above in parentheses, Martin acknowledged that he had
believed that the Union was the representative of their
employees.
By contrast the employment histories of the 45 employees
who actually were employed by Respondent and whose
applications were presented at the hearing disclose that
very few of them had prior employment presenting a
challenge to Respondent 's nonunion policy. Three of these
applications (Georgia L. Diller, David E. Gerrick, and
Thomas S. Combs) were not filed with Respondent until
after the charge , alleging an unlawful refusal to hire
employees, had been served. Accordingly, by the time that
they were filed, Respondent had been put on notice of the
allegations against it. Accordingly, I am excluding these
three applications from consideration , as well as the
application of Ric M. Crawford, which discloses that he
was not interviewed for employment until August 20,
though his application had been filed over 2 months earlier.
Of the remaining 41 applications, 17 disclose that the
applicants had never been employed previously or, alterna-
tively, had never been employed previously in the Las
Vegas area: Robert David Clery, Dennis W. Berry, Patricia
Lucille Cantwell, Pete A. Cipriano Jr., Robert J. Cirincion,
David J. Dawley, Bill Liska, Cesar A. Jaramillo, A. F. John
Jandali, Richard P. McCole, Gary W. Peckham, Audrey M.
Olivero, Steve Penzes, Cynthia A. Smith, Jane M. Strait,
Thomas E. Yonker, and Richard Ogden.lo
An additional six of the applicants showed no prior
employment history in the restaurant or hotel industry prior
to filing their applications with Respondent. Thus, Louis
M. Clery had run a packing machine for R. Brokama Co.
prior to applying for employment with Respondent. Karen
M. Cross had experience only as a cashier and stock person
with Sears, Roebuck and Company and as a beautician's
aide with Joseph Magnin prior to filing her application.
Daniel H. DeMint had been a truckdriver-aircraft loader
and a supervisor in Gold Crown Billiards in Indiana prior
to applying for employment with Respondent. Jerrold J.
James' only prior employment had been as a receiving clerk
and general maintenance man at a dress shop . Michael F.
Jones had worked as a cleanup person, stockboy, mechanic,
and had cut and stored meats prior to applying for
employment with Respondent. Prior to filing his applica-
tion , Christian E. Parry had worked packing groceries and
10 To the extent that Martin testified that he believed that establishments
outside of the State of Nevada and in areas other than Las Vegas within
Nevada were probably organized by some labor organization , I do not credit
his testimony . He provided no basis, in reality , for these assertions and he
appeared to be simply attempting to support Respondent's defense that it
gathering carts at Lucky Supermarket, the Food Factory,
and Skaggs Family Store. Consequently, the employment
of these six employees posed no threat to Respondent's
nonunion policy.
Five other applicants, employed by Respondent, filed
applications disclosing very short-term employment in Las
Vegas establishments or short-term employment with
establishments in nearby communities in Nevada, where
there is some doubt as to whether the Union actually was
the bargaining representative of the employees. For exam-
ple, John R. Griffin had worked for about 6 months (from
July to November 1974) at Eppie's. Prior to that time, his
employment experience had all been in the State of
Michigan. There was no showing that Eppie's employees
were represented by the Union, although Martin testified
that he believed that they were organized. However, no
evidence was presented to support this belief and, as found
above, I do not credit Martin's assertions in this regard.
With the exception of the 3-month period preceding his
application, Lee Haas had worked exclusively in establish-
ments in States other than Nevada. During that 3-month
period prior to his application , Haas had worked at Pop's
Oasis in Jean, Nevada, a small community near the
California state line. While Martin asserted that he believed
this to be a union establishment, Respondent presented no
evidence to support that assertion. Though Sharol L.
Howell had worked at the Pepper Mill Inn for 6 months,
this employment fell between 2 years of employment at
Specialty Restaurant, located in Newport Beach, Califor-
nia, and the Bureau of Reclamation in Twin Lakes,
Colorado. It is, thus, unlikely that she would have contin-
ued any union membership which she gained while working
at the Pepper Mill Inn. In the case of Gary P. Rosa, it is
difficult to ascertain whether he ever had any employment
in Nevada prior to applying with Respondent since for two
of the facilities, at which he lists prior employment, no
address is given. For his two other prior places of employ-
ment the addresses are listed as being in Visalia, California.
It is thus likely that he was never employed in Nevada prior
to commencing work for Respondent. In any event, there is
no showing that any of the establishments which he listed
were ones where the Union serves as the bargaining
representative. Finally, the application of Robert Higgins
discloses that he was employed at Ceasar's Palace, but that
that employment had been temporary and was of, at most,
2 months' duration.
Thus, of 41 employees hired by Respondent, only 13 had
any substantial degree of prior employment in the Las
Vegas area prior to filing their applications with Respon-
dent. Even, however, with respect to these 13 employees,
there were certain factors indicating a lack of prior
relationship with the Union. For example, while the
application of Kenneth Lee Corzine discloses prior employ-
ment at King Arthur, Martin admitted that during his
interview with Corzine the subject of union membership
had arisen and Corzine had promised to get a withdrawal
card from the Union. It can, therefore, hardly be said that
had not discriminated in its hiring policies . In any event, the primary
consideration in the instant case involves the extent of the Union's
organization and its jurisdiction appears to be confined to the Las Vegas
area
ALEXANDER'S RESTAURANT AND LOUNGE
his employment posed a challenge to Respondent 's nonun-
ion policy . Similarly , while Bruce A. Gorski had worked for
almost 7 months at the King 8 Inn, his most recent
employment had been at a glass company and he was hired
for the position of bar manager , apparently a supervisory
position.
Brian Harris had worked most recently in a 7 - 11 Store.
There is no showing that such stores were organized in the
Las Vegas area . Moreover , from May to December 1973,
Harris had worked at the Alpine Village , which , as noted
above , had successfully operated in Las Vegas as a
nonunion establishment-the only nonunion establishment
in Las Vegas which Respondent was able to name specifi-
cally . Bettie Scarcelli had worked at the Dunes Hotel.
However, her employment at that facility had been during
the period 1963 to 1967-68, years prior to filing her
application with Respondent . Moreover, while employed at
the Dunes , she had been a cigarette concessionaire . There is
no showing that this is the type of classification for which
the Union serves as bargaining representative. Harvey Lane
had worked at a supper club and bar, apparently in the Las
Vegas area , for 15 years . However, he lists his employment
during that time as "self employed ." It is thus unlikely that
he would have been a member of the Union . Cathy M.
Steele did list prior employment with the Westward Ho
Motel and Casino ; however, that employment lasted but 2
days . Subsequently, she worked as a salesperson for Off the
Wall Fashions and prior to her employment with Westward
Ho she had worked as a supervisor and salesperson in the
Lollipop Shop. It is consequently unlikely that she would
have been a member of the Union.
Thomas W. Nelson had worked at the Motel 6 from
January 1974 until the date of his application on March 21.
However , he listed the work he performed at Motel 6 as
"supervised front desk on swing shift ." Thus , as was true
with the above-named employees, it is unlikely that he
would have been a member of the Union and prior to his
employment with the Motel 6, he had worked for the U.S.
Treasury Department in Denver , Colorado . Two cocktail
waitresses , Vickie Cudahy and Alice M. Horn , both listed
prior employment in Strip establishments , the former at the
Sands and the latter at the Hilton , as well as the Westward
Ho. However, their employment at these establishments
was, in the case of Cudahy , as a Keno runner and, in the
case of Horn, as a Keno runner at the Hilton and as a
change girl at the Westward Ho. These are not classifica-
tions of employees the Union represents and, accordingly,
their applications would not indicate that they were either
members of or sympathetic to the Union.
This , then, leaves 4 applications , of the 41 filed by
employees hired by Respondent , disclosing any substantial
prior employment history in Las Vegas restaurants , casinos,
or hotels where the Union was likely to serve as the
bargaining representative of employees: Scot McCartin,
Michael Whitcomb (hired as a waiter), Vincent D. Parry,
and Betsy J. Insabella. Yet, Whitcomb denied that he was a
member of the Union when interrogated during his
employment interview . With respect to Insabella , it is clear
that Respondent did initially deny her employment because
she had disclosed that she had paid an initiation fee to the
Union prior to applying for employment with Respondent.
175
Only when Sadri made an issue of the matter , by going to
Henderson and protesting loudly concerning the refusal to
give him approval to hire Insabella , was approval granted
to hire her.
Respondent , however, contends that a special but valid
criterion applied to applicants from Strip establishments
and that this criterion may well have precluded applicants
with prior employment at such establishments from em-
ployment with Respondent . Thus, Respondent asserts that
its concern with preserving the gourmet atmosphere of its
establishment had led it to formulate a policy whereby
employees from Strip establishments would be scrutinized
carefully in view of the numerous complaints concerning
the type of service afforded patrons in such establishments,
i.e., a "rush-rush" type of service designed to minimize the
time spent serving customers ' meals . There was no dispute
concerning the type of service afforded in Strip establish-
ments . However, notwithstanding Respondent's generaliza-
tion, at no point did it detail the manner in which it
intended to closely scrutinize such applicants for employ-
ment and at no point did it introduce evidence of special
scrutiny being given to particular applicants from Strip
establishments . Indeed , in contrast to instructions concern-
ing the nonunion policy which its supervisors were to
follow, at no point , so far as the record discloses , is there
any evidence of specific standards by which Strip appli-
cants were to be judged being communicated to interview-
ers. It is , therefore, difficult to credit Respondent 's general-
ized description of an asserted policy of closely scrutinizing
applicants with prior employment at Strip establishments.
This difficulty is merely compounded when the applica-
tions of many of the persons who were hired by Respondent
are examined closely . For example , Cathy Steele applied
for the position of cocktail waitress, presumably a sensitive
position since she would be dealing with the public. But, her
only prior experience in such a position involved 2 days'
work at the Westward Ho Motel and Casino . All of her
other experience appears to have involved either retail sales
work or freelance modeling . In a like vein, Bettie Scarcelli
was hired as a hostess , notwithstanding prior experience
only as a cigarette concessionaire and, at that , during the
period 1963 through 1967. Both Alice Horn and Vickie
Cudahy were hired as cocktail waitresses without regard to
the facts that the former had only once served as a waitress,
from January 1966 to June 1967, and that the latter had
never served as a waitress , so far as her application
discloses.
Other examples of applicants who were employed not-
withstanding prior experience which did not particularly
qualify them for the positions for which they were hired
were : Louis M. Clery who was hired as a busboy,
notwithstanding prior experience only in operating a
packing machine ; Karen M. Cross who was hired as a
pantry girl or busgirl , notwithstanding prior employment
only as a cashier and stock clerk for Sears and as a
beautician's aide at Joseph Magnin ; Daniel H. DeMint
who was hired as a barboy, notwithstanding prior employ-
ment only as a truckdriver -aircraft loader and as a
supervisor in Gold Crown Billiards ; Jerrold J. James who
was hired as a dishwasher and busboy, notwithstanding
prior employment only as a receiving clerk and general
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance person at a dress shop; and Michael E. Jones,
who was hired as a busboy and dishwasher, notwithstand-
ing prior employment only as a cleanup person, stockboy,
and mechanic. Of course, these individuals were only
buspersons and not waiters or waitresses . Yet, buspersons'
contacts with customers were of sufficient magnitude and
regularity to warrant including them in the tip subsidy
program. Seemingly, therefore, Respondent would be
concerned with their image , work experience, and, particu-
larly, the manner in which they performed duties bringing
them in contact with customers.
It is, of course, perfectly conceivable that these persons
demonstrated greater potential than applicants such as, for
example, Insabella, who applied on March 24-a few days
after Cudahy had applied-and who had worked as a
waitress , serving both food and drinks, for almost a year
prior to filing her application with Respondent-unlike
Cudahy whose prior employment included no work as a
waitress . However, Respondent made no contention that it
had taken potential into account in selecting employees for
hire. In fact, it presented no explanation for its selection of
the specific applicants which it had hired, beyond the
generalized assertion that it was closely scrutinizing appli-
cants with prior Strip employment to avoid hiring person-
nel whose work habits were contrary to the atmosphere
which Respondent was attempting to create in its establish-
ment . This is hardly a satisfactory explanation for rejecting
experienced applicants in favor of relative novices. Conse-
quently, in view of Respondent's failure to explain specifi-
cally how this asserted policy had been implemented and in
light of the numerous applicants without significant restau-
rant experience who were hired, I find that this defense has
been advanced solely to cloak Respondent's true motive for
refusing to hire applicants whose backgrounds or com-
ments during their employment interview disclosed that
they were supporters or members of the Union.
Lest there be any doubt of this conclusion, it is laid to rest
by Henderson 's admission that at the time of the Insabella
incident he had gotten "indication" that Sadri had been
refusing to hire applicants solely because of their union
sympathies.
J. The Information Disclosed During the Interviews
As found above, several applicants had been interrogated
during their employment interviews with Respondent. The
replies of Murdock, Fardoux, Frisk, and Green clearly
i i Respondent contends that Jacobs, as well as certain other applicants,
had been applying for the position of executive chef and as that position was
supervisory Respondent had the right to inquire into their union sympathies
and to exclude them from consideration for employment as supervisors
because of the sympathy which they displayed toward the Union. Yet,
notwithstanding this contention , Respondent presented no evidence which
would support the conclusion that its purpose in interrogating applicants had
been to preclude them from obtaining employment with Respondent as
supervisors . Indeed , the fact that Respondent did hire supervisors who had
been members of the Union and the further fact that applicants for
nonsupervisory positions had also been interrogated regarding their union
sympathies , negates Respondent's contention Moreover , Jacobs testified
that he would have been willing to accept a nonsupervisory position as
working chef. Yet, following his interview , no such position was offered to
him. Rather, so far as the record discloses, all consideration of employing
Jacobs ceased once he, unlike Corzine, displayed reluctance to disavow the
Union.
12 Respondent points to the fact that, following the Insabella incident,
demonstrated their sympathy toward the Union. While
Wood did not unequivocally demonstrate that he support-
ed the Union, he testified that he had "left myself open,
waiting to see what the offer was, you know." Thus he did
not disavow support for the Union, as did Whitcomb, who
had denied that he was a member of the Union when asked
by Sadri, and as did Corzine, who had promised to obtain a
withdrawal card when the subject of the Union arose
during his interview with Martin. Charlotta Jackson had
accompanied Murdock to the interview and, while there is
no direct evidence regarding what had been said to her
during her own interview, it is reasonable to infer that her
obvious friendship with Murdock led Respondent to
assume that she, also, would be sympathetic to the Union.
Don Jacobs, responding to an advertisement in an
Arizona newspaper, had been interviewed by Sadri. When
asked if he was a union member, he replied that he had
been in past years, but had withdrawn his membership after
moving to Arizona because "Arizona was a right-to-work
State, and a very weak Culinary Union, and I could derive
no benefits from being a union member, so I took a
withdrawal." By contrast, the Union, of course, is quite
strong in the Las Vegas area and when Sadri next asked
how Jacobs felt about the Union, the latter vacillated,
replying, "Well, I have no real feeling. I can go either way.
If it is a union house, I can reinstate. If it is not, why I will
keep my withdrawal." However, though the interview
ended cordially, Jacobs was never recalled for a further
interview by higher management nor was he hired.11
In contrast with Jacobs, Corzine was employed, as stated
above, after he had asserted his intention to withdraw from
the Union if he obtained employment with Respondent.
Similarly, Whitcomb denied that he had been a member of
the Union when asked about the matter during his
interview. He, like Corzine, was then offered employment
with Respondent. Indeed, any doubt that answers disclos-
ing union sympathies or membership influenced Respon-
dent's hiring decisions is laid to rest by the situation
involving Insabella who, upon disclosing during an inter-
view with Martin that she had paid an initiation fee to
become a member, was promptly denied employment with
Respondent and who, ultimately, obtained employment
only when Sadri made an issue of the matter with
Henderson.12
The testimony of Gordon Scott, however, requires more
critical examination, for Scott had been the manager of a
Henderson had instructed the supervisors and management officials not to
discriminate against applicants because of their membership in the Union
Indeed , the testimony shows that Henderson had then repeated that
direction on a number of occasions thereafter Thus, argues Respondent, it is
clear that its intention was to prevent any further discrimination against
applicants on the basis of union membership. Yet, this is not a wholly
convincing argument . Sadn's testimony that the discrimination had contin-
ued thereafter, at the behest of Martin and Abraham, was not effectively
refuted. Further, the evidence regarding applicants who were employed and
who were rejected following the Insabella incident discloses that the pattern
of discrimination against employees who indicated support for the Union
during their interviews and who had been previously employed in Las Vegas,
particularly Strip establishments , continued after the Insabella incident. Two
possibilities exist to explain this situation . First, Henderson , who did not
become involved in the day-to-day operations of Respondent, may well have
intended that his instructions be carried out but his management officials
may well have disregarded those instructions in an effort to effectuate the
overall policy of remaining nonunion. Second , it may well be that Hender-
ALEXANDER'S RESTAURANT AND LOUNGE 177
restaurant where Sadri had once worked and had applied
for a position with Respondent at Sadri's behest. Scott
testified that Sadri had invited him to apply for the position
of maitre d' and, in February, had told Scott that he and
two other employees, Helen Schmuck and Larry DeCorski
(since deceased), had been hired. Then in mid-March,
testified Scott, Sadri had called and said that, because
Respondent was not to be a union house and because Scott
and Schmuck had been affiliated with the Union, they
would not be hired.
Sadri did testify that Scott and Schmuck had not been
hired because of their past affiliation with the Union.
However, he denied having told Scott that this had been the
reason for the refusal to employ him. Further, Schmuck
testified that Scott had reported to her that the reason that
she had not been hired as a waitress was that Respondent
intended to hire only men. Indeed, an examination of the
applications of employees whom Respondent did hire
discloses that no females were hired for the position of
dining room waitress and that females were hired only as
cocktail waitresses and cashiers. Moreover, although both
Scott and Schmuck claimed to have filed applications
showing their prior employment at union establishments in
Las Vegas and while Sadn claimed to have placed Scott's
application "in my desk," where the other applications
produced by the General Counsel had been placed by
Sadri, no applications by Scott or Schmuck were produced
to corroborate their testimony regarding the fact that their
applications had disclosed prior employment at union-
represented establishments.
As found above, Sadri was not a credible witness.
Neither, in my opinion, was Scott. In view of the fact that
the allegations regarding the refusal to hire Scott and
Schmuck rested solely upon the testimony of these two
untrustworthy witnesses and in light of Schmuck's testimo-
ny concerning what she had been told by Scott, Sadri's
denial that he had told Scott the assertedly real reason for
the refusal to hire him, and the absence of the application
forms which purportedly showed prior employment at
union establishments in Las Vegas, I do not credit the
testimony concerning the allegedly unlawful refusal to hire
Scott and Schmuck.
K. The Newspaper Advertisements
There is no evidence that Respondent placed any
newspaper advertisements seeking employees in any Las
Vegas newspaper. However, the record does disclose, and
Henderson admitted as much, that Respondent did place
advertisements in the Los Angeles, California, "Times" and
in the Phoenix, Arizona, newspapers. Henderson asserted
that these advertisements were necessitated by the fact that
Respondent was seeking cooks. Yet, accepting as true
Henderson's testimony that the advertisements were con-
fined to soliciting cook applicants , it is difficult to under-
stand why Respondent would need to resort to out-of-state
advertising in order to find qualified individuals. For, by
the time that Respondent was prepared to open its
son, alerted to Sadn's dissatisfaction with the policy of rejecting applicants
who displayed union sympathies , may well have been attempting to build a
record establishing the purity of Respondent 's intent should Sadn ever
pursue the matter further and make an issue of Respondent's discriminatory
restaurant, it had before it the applications of a number of
employees seeking positions as chefs: Wood (filed February
4), Mighell (filed February 12), Chandler (filed February
10), Fardoux (filed February 17), Stewart (filed February
20), Jacobs (filed February 22), McKinnis (filed February
25), Stark (filed February 26), Kirk (filed March 13),
Harkson (filed March 10), Frisk (filed March 31), and
Walters (filed April 2). At no point did Respondent see fit
to explain why none of these applicants had been chosen
for employment. True, as Respondent points out in its brief,
some of them had applied for the position of executive chef.
Yet there is no evidence that they would have declined
positions as working chefs. In any event, so far as the record
discloses, Respondent did not see fit to even inquire if they
would accept positions as working chefs. What was evident
is that each of them either had admitted possible union
affiliation during employment interviews and/or had filed
applications disclosing prior employment in establishments
likely to have bargaining relationships with the Union.
V. ANALYSIS
As found above, Respondent violated Section 8(a)(l) of
the Act by interrogating applicants for employment to
ascertain their attitude toward the Union. Moreover, as
also found above, Respondent violated Section 8(a)(3) and
(1) of the Act by conferring tip subsidies upon employees in
July and August. The General Counsel, in addition,
contends that Respondent violated the Act by conducting a
hiring practice designed to eliminate members and support-
ers of the Union. The testimony of the former supervisors
support that contention. However, Respondent urges that
the circumstances of the former supervisors' severances of
employment with Respondent provide a basis for inferring
that they would not be favorably disposed toward Respon-
dent. Indeed, as found above, Sadri and Petrunjo did
display hostility toward Respondent to the extent that they
provided contrived evidence in an effort to penalize
Respondent. However, the other three supervisors - Buck,
Whitcomb, and Mejlaender - appeared to be testifying
honestly and I credit their testimony that Respondent did
formulate and implement a plan whereby applicants
displaying a sympathetic attitude toward the Union were to
be precluded from consideration for employment. Their
testimony seemed honest and it corresponded with a
number of objective considerations, as well as with several
admissions.
It is clear that Respondent had a motive for refusing to
hire applicants who appeared favorably disposed toward
the Union. Respondent's officials admitted that there had
been a policy that Respondent was to be a nonunion
establishment. It was also clear that this policy was not one
of passive hopefulness - Respondent engaged in a series of
acts designed to implement that policy. Thus, the substance
of the policy was communicated to, and known by, all
management officials and supervisors. Before opening,
Respondent had sought the aid of local counsel to ascertain
how that policy could be implemented. During the inter-
hiring practice . In either case , Henderson's statements would not serve to
exculpate Respondent
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewing process, Respondent's personnel went out of their
way to state that policy to applicants who disclosed a
disposition in favor of the Union. Abraham was dispatched
to a Los Angeles conference to obtain information on
further implementation of that policy. Following receipt of
the Union's letter demanding recognition, Respondent
prepared a list of employees upon whom it could rely to
support its policy.
Moreover, it is clear that Respondent's conduct, designed
to implement its nonunion policy, was not confined to
lawful action. Rather, Respondent unlawfully interrogated
applicants in an effort to ascertain their attitude toward the
Union. It granted tip subsidies in July and August for the
purpose of dissuading employees from supporting the
Union. It directed that surveillance be conducted of the
Clery brothers to ascertain what activity they were engag-
ing in on behalf of the Union.
Against this background, Respondent's hiring practices
must be evaluated. The management officials were admit-
tedly aware that were Respondent to hire applicants from
the Las Vegas area it would be impossible to achieve an
employee complement not composed of a substantial
number of the Union's members and supporters, a situation
posing a threat to Respondent's nonunion policy. Examina-
tion of the applications filed by the employees whom
Respondent chose to employ discloses that very few had
any significant degree of prior employment in the Las
Vegas area, in establishments and in classifications for
which the Union served as the bargaining representative.
Thus, of 41 applicants hired prior to receipt by Respondent
of the charge in this matter, 17 had never held employment
in the Las Vegas area; 8 had worked in the Las Vegas area,
but for firms not involved in the food service industry
where the Union served as the bargaining representative of
employees;13 7 had brief, if any, recent employment in Las
Vegas establishments and, in view of the nature of these
establishments, the Union was probably not serving as the
bargaining representative for their employees; 2 flatly
disavowed the Union during their interviews; 1 had worked
at the only nonunion establishment that Respondent was
able to specify as operating in Las Vegas; 1 was hired in an
apparently supervisory capacity; 14 1 had previously been
self-employed; and I had formerly been employed in a
supervisory capacity. Moreover, of the remaining appli-
cants who were hired, one - Insabella - admittedly had
been denied employment because she had joined the
Union. She was hired, ultimately, only because Sadri chose
to make an issue of the matter by heatedly protesting
Respondent's refusal to employ her.
The General Counsel presented applications of a series of
persons who had applied for employment with Respondent.
13 Respondent appears to argue that were it truly discriminating against
Union-oriented employees it is unlikely that it would have hired any
applicant who might have been a member of any labor organization. This,
however, does not follow of necessity In order to operate , Respondent was
compelled to staff its restaurant To do so, it would have to obtain employees
from somewhere Its concern was with employees who would be favorably
disposed toward the Union. Thus, the fact that an employee might formerly
have been employed as a truckdriver , thus possibly being a member of a
labor organization representing truckdnvers, does not mean that Respon-
dent would be subjected to possible demands for representation by the
Union based upon that individual's poor membership in, or sympathies
toward, a labor organization which represented other types of employees
Many of these applicants display significant experience in
the food service industry. Yet Respondent did not see fit to
advance any specific reasons for rejecting these specific
applicants in favor of those which it accepted for hire, many
of whose experience was virtually negligible . Of course the
management officials were relying upon the supervisors'
judgment with respect to the qualifications of applicants.
Nonetheless, it was clear that Respondent's management
officials did participate in the process of selecting appli-
cants for hire, and, thus, had to be cognizant of the reasons
for their selection. In fact, as the Insabella incident
demonstrates, management officials did overrule superviso-
ry recommendations. In these circumstances, significant
weight must be accorded to Respondent's failure to even
attempt to advance an explanation for the selection of
specific applicants who were hired and for the rejection of
others whose applications were proffered by the General
Counsel.
True, Respondent did assert that it had been according
special treatment to applicants with experience in Strip
establishments because of the differences in styles of
service. Yet, at no time did Respondent show specifically
the manner in which it had implemented such an asserted
policy - no evidence of standards for judging such
applicants was produced, no evidence of dissemination of
such standards to interviewers was introduced, and no
evidence of consideration of specific applicants under such
an asserted policy was adduced. Accordingly, I find that
this policy was advanced only to disguise the real motive for
rejecting employees with Las Vegas, particularly Strip,
backgrounds-that they were likely to have been members
and supporters of the Union.
This conclusion is reinforced by the evidence that
advertisements were placed in out-of-state newspapers, but
not in Las Vegas newspapers, when applicants from the Las
Vegas area were available to fill the classification listed in
the advertising; that applicants were interrogated regarding
their union sympathies; that applicants who disavowed the
Union during such interrogation were hired, but that those
who failed to do so were not hired; that efforts were made
to dissuade applicants who disclosed membership in the
Union from pursuing employment with Respondent; and
that Respondent's management officials constantly reiter-
ated Respondent's nonunion policy to its supervisors,
thereby inviting the latter to take action during the
interviewing process consistent with that policy. Finally,
there is Henderson's admission that Sadri had been
discriminating against union members and sympathizers.
Therefore, in the circumstances presented in the instant
case, I find that the General Counsel has established by a
preponderance of the evidence that Respondent was
14 Though Respondent argues that it would not have hired supervisors
with a background of membership in the Union, such as Sadn , had it been
intent upon discriminating against the Union's supporters , this conclusion
does not follow of necessity. So far as the record shows, none of the
supervisors made any protest when advised of Respondent 's nonunion
policy. Indeed , Sadn willingly consented to obtaining a withdrawal from the
Union. Moreover, as shown by Respondent's argument in connection with
executive chefs, the existence of supervisors with union backgrounds posed
no threat to Respondent's policy so long as they were willing to adhere to
that policy, since such individuals would be ineligible to participate in any
campaign on behalf of the Union and could be discharged in the event that
their favoritism toward the Union became active.
ALEXANDER'S RESTAURANT AND LOUNGE 179
pursuing "a pattern or practice of refusing to hire appli-
cants for employment because the applicants were Union
members or had previously worked in Union establish-
ments ." Further, I find that it did this by interrogating
applicants and by carefully scrutinizing the applications
which they filed, in an effort to identify those who were
sympathetic to the Union and whose prior employment
demonstrated a likelihood of union membership, by virtue
of prior employment in Las Vegas establishments, where
the Union represented employees, in food service classifica-
tions . Using this dual standard as a guide, I find that the
evidence does establish, based upon the testimony of
disclosures during interviews and examination of the
information on their application forms, that the following
applicants were the victims of this discriminatory hiring
policy: Dorothea R. Murdock, Don H. Jacobs, Chris G.
Dunkle, Charlotta M. Jackson, H. Lee Marshak, William
D. Harkson, Jimmy Walters, John C. Chandler, Sue L.
Pantano Mastrogioeanni, Charles L. Stewart Gary A.
Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred
R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B.
Frisk, and Joseph A. Russo.15
Respondent makes three additional contentions requiring
further discussion. First, it argues that some applicants
named by the General Counsel failed to pursue their
applications by returning to further pursue employment
with Respondent. Yet, it is clear that in filing their
applications and in participating in the interviews they had
done everything necessary to perfect an application for
employment with Respondent. That Respondent construed
the filing of an application as a continuing request for
employment is best illustrated by the hiring of Ric
Crawford who initially applied for employment in June, but
who was not actually interviewed and employed until
August. Accordingly, these were continuing applications
for employment at later dates, and there was no need for
these applicants to further pursue the matter to perfect their
request for employment. As found above, such further
pursuit would have been futile. The Lummus Company, 101
NLRB 1628, 1632 (1952), enfd. as modified 210 F.2d 377
(C.A. 5, 1954); Consolidated Western Steel Corporation, et
al., 108 NLRB 1041, 1044 (1954); cf. Southern Cotton Oil
Crude Mill, Division of Hunt Foods and Industries, Inc., 144
NLRB 959, 960, fn. 3 (1963).
Second, Respondent asserts that it has not been shown
that vacancies existed for all of the discriminatees. How-
ever, the Board stated in Shawnee Industries, Inc., subsidiary
of Thiokol Chemical Corporation, 140 NLRB 1451, 1452-53
(1963), enforcement denied on other grounds 333 F.2d 221
(C.A. 10, 1964):
Under the Act an employer must consider a request for
employment in a lawful, nondiscriminatory manner,
and the question whether an application has been given
15 Russo's application discloses that he was not previously employed in
the Las Vegas area ; however, it also discloses his rate of pay, both in
Sacramento and Lake Tahoe , being listed as "scale " Martin was unwilling to
concede that the word "scale" would indicate that an employee had been
employed in a union establishment . Yet, it seems obvious that the use of such
a term in describing a rate of pay could mean only that the employment was
covered by a collective -bargaining agreement . Significantly , none of the
applications filed by employees whom Respondent did hire contain that
such consideration does not depend on the availability
of a job at the time an application for employment is
made. Consequently, the Act is violated when an
employer fails to consider an application for employ-
ment for reasons proscribed by the Act, and the
question of job availability is relevant only with respect
to the employer's backpay obligation.
Therefore, "final determination of job availability and
possible backpay liability will be properly left to compli-
ance." Apex Ventiliating Co., Inc., 186 NLRB 534, fn. 1
(1970).
Finally, Respondent contends that none of the applicants
who listed executive chef as the position for which they
were applying can be considered a discriminatee since such
a position is supervisory. While applicants for supervisory
positions are not normally entitled to the protection of the
Act, there is no evidence that Respondent had a superviso-
ry classification of executive chef. Nor is there any evidence
that Respondent evaluated applicants for employment on
the basis of the positions which they listed on their
applications. Indeed, Petrunjo was hired as head chef,
notwithstanding the fact that he had listed on his applica-
tion that he was applying for the position of "chef."
Moreover, Jacobs indicated that, notwithstanding his
insertion of the classification executive chef on his applica-
tion, he would have been willing to accept a position as
working chef had it been offered him. It was not. Nor was
such a position offered to the other applicants who listed
"executive chef' on their applications. However, there has
been no showing that Respondent failed to offer them
employment because they had listed that classification on
their applications. What has been shown, as found above, is
that Respondent refused to consider for employment
applicants who divulged union sympathies and affiliations
during their interviews and/or whose employment applica-
tions disclosed prior employment in establishments where
the Union was the bargaining representative of the employ-
ees. In these circumstances, I find that the evidence is not
sufficient to support the conclusion that the applicants who
listed executive chef on their employment applications were
seeking solely supervisory positions.
The evidence with respect to the allegations that Dorothy
Jean Gosnell, Gordon Scott, and Helen Schmuck were
denied employment unlawfully must be dismissed. With
respect to Scott and Schmuck, as found above the evidence
does not support the conclusion that they were denied
employment because of their union sympathies or their
prior employment in establishments where the Union was
the bargaining representative. With respect to Gosnell, the
only evidence concerning her is the application which she
filed. Examination of that application discloses that it does
not contain any indicia of prior union affiliation, save for
Sadri's markings and writings which, as found above, are
nomenclature . In this regard , I do not credit Martin 's testimony that the use
of words such as "day" and "shift," when used in reference to a rate of pay,
indicated to him that a collective-bargaining agreement was in force There is
nothing so unique about these words to justify such an assertion and in so
testifying Martin appeared to be attempting to buttress Respondent's
defense, since these two terms were used to describe previous wage rates on
several applications of employees hired by Respondent.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not reliable evidence for establishing a violation. Therefore,
I recommend that the allegation regarding Gosnell , Scott,
and Schmuck be dismissed. Similarly, as found above, a
preponderance of the evidence does not establish that
Richard Ogden had been terminated because of Respon-
dent's suspicion that he was a union member or sympathiz-
er. Accordingly, I recommend that this allegation likewise
be dismissed.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring in
connection with Respondent's operations described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic , and commerce among the several
States, and tend to lead, and have led, to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Alexander Dawson , Inc. d/b/a Alexander's Restau-
rant and Lounge is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local Joint Executive Board of Las Vegas Culinary
Workers Union Local 226 & Bartenders Union Local 165,
Hotel & Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating applicants for employment regard-
ing their union membership and sympathies, I fmd,
Respondent violated Section 8(ax1) of the Act.
4. By granting tip subsidies in July and August 1975 for
the purpose of dissuading its employees from supporting
the Union , I find, Respondent violated Section 8(aX3) and
(1) of the Act.
5. By engaging in a pattern or practice of refusing to
hire applicants for employment because those applicants
were union members or had previously worked for union
establishments , I find, Respondent discriminated in regard
to the hire of Dorothea R. Murdock, Don H . Jacobs, Chris
G. Dunkle, Charlotta M. Jackson, H. Lee Marshak,
William D. Harkson , Jimmy Walters, John C. Chandler,
Sue L . Pantano Mastrogioeanni , Charles L. Stewart, Gary
A. Mighell , Terry M. Lewman , Marcel M . Fardoux,
Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood,
Larry B. Frisk , and Joseph A. Russo, thereby discouraging
membership in the Union and , accordingly, I find that
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
6. The evidence is not sufficient to establish that
Respondent unlawfully refused to hire Dorothy Jean
Gosnell , Gordon Scott , and Helen Schmuck, nor is the
evidence sufficient to establish that Respondent was
unlawfully motivated in making the decision to discharge
Richard Ogden.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action set forth below to effectuate the policies of the
Act.
It having been found that Respondent unlawfully dis-
criminated against Dorothea R. Murdock, Don H. Jacobs,
Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak,
William D. Harkson, Jimmy Walters, John C. Chandler,
Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary
A. Mighell, Terry M. Lewman, Marcel M. Fardoux,
Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood,
Larry B. Frisk, and Joseph A. Russo with respect to their
applications for employment, it will be recommended that
Respondent be required to offer them employment in the
same position in which they would have been hired absent
the discrimination against them, if such positions became
available subsequent to the filing of their applications, and,
if no such position becomes available, in a substantially
equivalent position. In the event that such positions did not
become available following the date upon which they filed
their applications, it will be further recommended that, in
such case, Respondent be required to place their names on
a preferential hiring list and offer them the first such
positions that become available, in which it would have
employed them absent any discriminatory considerations.
It will further be recommended that Respondent be
required to make them whole for any loss of earnings they
may have suffered by reason of the failure to give them
nondiscriminatory consideration for employment in the
manner outlined above, less net earnings during the period
of such backpay accrual. Backpay is to be computed on a
quarterly basis making deductions for interim earnings, and
with interest to be paid at the rate of 6 percent per annum.
F. W. Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), enforce-
ment denied on different grounds 322 F.2d 913 (C.A. 9,
1963).
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:
ORDER 16
The Respondent, Alexander Dawson, Inc. d/b/a Alexan-
der's Restaurant and Lounge, Las Vegas, Nevada, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating applicants for employment concerning
their union membership and sympathies.
(b) Granting tip subsidies or other benefits to employees
for the purpose of dissuading them from supporting the
Union or otherwise discriminating against employees in
regard to hire or tenure of employment or any term or
condition of employment for engaging in activity on behalf
of a labor organization.
is In the event no exceptions are filed as provided by Sec . 10246 of the of the Rules and Regulations, be adopted by the Board and become its
Rules and Regulations of the National Labor Relations Board , the findings, findings, conclusions, and Order, and all objections thereto shall be deemed
conclusions, and recommended Order herein shall, as provided in Sec . 102.48 waived for all purposes.
ALEXANDER'S RESTAURANT AND LOUNGE 181
(c) Refusing to hire job applicants because they are
members or sympathizers of the Union or because they
worked in establishments where the Union had served as
the bargaining representative of employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Dorothea R. Murdock, Don H. Jacobs, Chris
G. Dunkle, Charlotta M. Jackson, H. Lee Marshak,
William D. Harkson, Jimmy Walters, John C. Chandler,
Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary
A. Mighell, Terry M. Lewman, Marcel M. Fardoux,
Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood,
Larry B. Frisk, and Joseph A. Russo whole for any loss of
pay they may have suffered by reason of the discrimination
against them in the manner and to the extent set forth in the
section of this Decision entitled "The Remedy."
(b) Offer the above-named employees immediate employ-
ment, subject to the conditions and limitations set forth in
the section of this Decision entitled "The Remedy."
(c) Preserve and upon request make available to the
Board or its agents all payroll and other records necessary
to compute the backpay and reinstatement rights as set
forth in "The Remedy" section of this Decision.
(d) Post at its Las Vegas, Nevada, facility copies of the
attached notice marked "Appendix." 17 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by the Respondent's
authorized representative, shall be posted by Respondent
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 custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges an unlawful refusal
to hire Dorothy Jean Gosnell, Gordon Scott, and Helen
Schmuck, and insofar as it alleges that Richard Ogden was
unlawfully discharged.
17 In the event that the Board's Order is enforced by a Judgment of the to a Judgment of the United States Court of Appeals Enforcing an Order of
"United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board " shall read "Posted Pursuant