American Federation of Casino and Gaming Employees

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 544 (N.L.R.B. 1967)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Casino and Gaming Em-
ployees and New Pioneer , Inc., d/b/a New Pioneer
Club. Case 31-CP-27
June 30, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On May 10, 1967, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions
to the Decision and the General Counsel filed
cross-exceptions and a supporting memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the en-
tire record in this case including the Trial Ex-
aminer's Decision, the exceptions of the Respond-
ent,' and the cross-exceptions and supporting
memorandum of the General Counsel, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
brought under Section 10(b) of the Act, was heard at Las
Vegas, Nevada, on January 20, 1967, pursuant to due
notice to all parties.'
The complaint dated January 6, 1967, was based upon
a charge filed by the Company on December 27, 1966.
The complaint alleged in substance that the Union had
violated Section 8(b)(7)(B) of the Act by picketing the
Company for a recognitional or organizational object
within 12 months of a valid election, which the Union had
lost.
The Union duly filed an answer denying all charges of
unfair labor practice and affirmatively alleging that its
picketing after December 27, 1966, was for the object of
protesting unfair labor practices committed by the Com-
pany.
At the hearing all parties were represented, were af-
forded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the
issues, to argue the issues orally upon the record, and to
file briefs and proposed findings. The General Counsel
has filed a brief which has been carefully considered.
Upon the entire record of the case and upon my observa-
tion of the witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE COMPANY
The answer admits that the Company operates a bar,
restaurant, and a gambling casino in Las Vegas, Nevada,
and receives in excess of $500,000 annually from its gam-
bling activities. The Company annually purchases, from
sources in the State of Nevada, in excess of $50,000
worth of goods and services from enterprises which an-
nually purchase directly from sources outside the State of
Nevada in excess of $50,000 worth of goods and ser-
vices.
Therefore it is found that the Company is now, and 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.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, American Federation
of Casino and Gaming Lmployees, Las Vegas,
Nevada, its officers, agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
'Among other things, the Respondent except, to the failure of the Trial
Examiner to find as a fact and to conclude as a matter of law that the elec-
tion referred to in his Decision was not a valid election within the meaning
of Section 8(b)(7)(B) of the Act We find no merit in this exception in view
of the Respondent's failure to request Board review of the Regional
Director's decision in the representation proceeding. as provided by the
Rules and Regulations of the Board
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner This proceeding,
166 NLRB No. 82
11. THE LABOR ORGANIZATION INVOLVED, ITS
NONCERTIFICATION
The pleadings also establish that the Union is now, and
at all times material herein has been a labor organization
within the meaning of Section 2(5) of the Act. In its
answer the Union concedes that it is not currently cer-
tified, nor has it been certified by the Board, pursuant to
the provisions of Section 9 of the Act, as the collective-
bargaining representative of any of the employees of the
Employer.
In the course of the hearing Counsel for the parties
stipulated that Thomas Hanley, Vivian Brooks, Glen
Herron, and Otho Dale Hill were officers of the Union,
and Albert M. Dreyer its counsel.
' In this Decision American Federation of Casino and Gaming Em-
ployees is referred to as the Union, New Pioneer, Inc , d/b/a New Pioneer
Club, is referred to as the Company or the Casino, the General Counsel
of the Board and his representatives at the hearing, as the General Coun-
sel, the National Labor Relations Board as the Board, and the Labor
Management Relations Act, as amended, as the Act
AMERICAN FEDERATION OF CASINO 545
III. THE UNFAIR LABOR PRACTICES
Undisputed Background
It is undisputed that the Company operates the New
Pioneer Club, which is a gaming casino with restaurants
and bars located at the corner of First and Fremont
Streets in the city of Las Vegas, Nevada. It is likewise
undisputed that the Union for many months has been ac-
tively engaged in organizing the employees of casinos in
the State of Nevada. The employees whom the Union
seeks to organize are those engaged in the actual conduct
of gaming operations such as dealers, dicemen, and box-
men, below the management level.
The present proceeding is connected with prior
proceedings of the Union in its attempt to organize these
employees.
The Representation Proceeding
It is undisputed that in the spring and early summer of
1964 the Union attempted to organize a unit of the
casino's gaming employees. On July 17, 1964, it filed an
RC petition with the Regional Office of the Board, then
Region 20, San Francisco, California, seeking certifica-
tion of the Company's employees in a unit described as
follows, "all casino employees employed by the employer
at its Las Vegas, Nevada location" except noncasino em-
ployees, office clerical employees, guards, and super-
visors, etc. as defined in the Act. This proceeding which
is docketed as Case 20-RC-6020 was later consolidated
with other cases affecting similar units of employees in
similar establishments in the gaming industry in Las
Vegas, Nevada. On March 11, 1965, the Board issued a
Decision and Direction of Election in El Dorado Inc.,
d/bla El Dorado Club, 151 NLRB 579 in which it
directed elections of employees in the various establish-
ments including the unit of employees at the New Pioneer
Club.
After one postponement the election was conducted on
November 16, 1966. The tally of ballots indicated the fol-
lowing results:
1. Approximate number of eligible voters..... 78
2. Void ballots ....................................... 0
3. Votes cast for American Federation of
Casino and Gaming Employees (Independ-
ent) ........................................................ 14
4. Votes cast for Culinary Workers Union,
Local 226 ........ ................................... 1
6. Votes cast against participating labor
organizations ........................................... 26
7. Valid votes counted ............................. 41
8. Challenged ballots ............ ................. 19
9. Valid votes counted plus challenged bal-
lots ................................................. .... 60
As will be noted the challenged ballots were suffi-
cient in number to affect the results of the election.
It is undisputed that the Union filed objections to con-
duct affecting the results of election with the Regional Of-
fice of the Board , but it is likewise undisputed in this
transcript of testimony that this document was not
received through the mail by the Regional Office until
November 25, 1966, and therefore was not timely filed.2
It is likewise undisputed that on December 7, 1966, a
Supplemental Decision and Order in the case was issued
by the Regional Director , Region 31, Los Angeles,
California , to which the case had been transferred, which
ordered that the challenged ballots be opened and
counted . This Supplemental Decision and Order also
ruled that the objections to conduct affecting the results
of the election filed by the Union had not been timely
filed.
It is undisputed that no appeal was taken by the Union
from this Supplemental Decision and Order. Thereafter
a revised tally of ballots was issued on December 20,
1966, which stated that a majority of ballots were cast
against the participating labor organizations and a certifi-
cation of results was issued.
The Efforts of the Union to Obtain Recognition and
Bargaining
In addition to filing a petition seeking certification from
the Board, the Union also sought recognition and bargain-
ing through conferences with officers of the Company.
Representatives of the parties met in a series of meetings
which began on or about July 18, and concluded on
November 7, 1966, but the Company consistently
refused to afford recognition to the Union and efforts to
negotiate a contract were unsuccessful.
At various points in its abortive dealings with the Com-
pany, the Union filed charges of unfair labor practice
against the Company. On November 1, 1966, it filed a
charge alleging violations of Section 8(a)(1) of the Act in
that the Company had interrogated employees concern-
ing their union sympathies and had engaged in surveil-
lance of employees' union activities. Upon investigation,
this charge was dismissed by the Regional Director (Re-
gion 31) on the merits by letter dated December 1, 1966.
The Union did not appeal from this decision.
Later on December 9, 1966, the Union filed a second
charge against the Company which alleged that the Com-
pany had violated Section 8(a)(1) of the Act by certain
threats to, and interrogations of, employees and had
refused to bargain with the Union in violation of Section
8(a)(5) of the Act. These charges were also investigated
and, on December 23, 1966, the Regional Director by
letter, dismissed these charges. The Union appealed the
last-mentioned dismissal and refusal to issue complaint,
but the General Counsel, Washington, D.C., affirmed the
Regional Director's decision by a letter dated January 11,
1967.3
The Controversial Picketing
At the hearing, evidence was taken as to picketing
1 Section 102.69(a), Board Rules and Regulations, Serves 8, as
amended, in pertinent part reads as follows: "Upon the conclusion of the
election, the regional director shall cause to be furnished to the parties a
tally of ballots. Within 5 days after the tally of ballots has been furnished,
any party may file with the regional director an original and 3 copies of ob-
jections to the conduct of the election or conduct affecting the results of
the election, which shall contain a short statement of the reasons therefor.
Such filing must be timely whether or not the challenged ballots are suffi-
cient in number to affect the results of the election. Copies of such objec-
tions shall immediately be served on the other parties by the party filing
them, and a statement of service shall be made "
3 The letters setting forth the various reasons for these procedural deci-
sions are G.C Exhs. 2(d); 10, 11 in evidence
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was conducted by the Union at the premises of the
Company. The New Pioneer Club is located-at the inter-
section of First and Fremont Streets in the city of Las
Vegas, Nevada. According to testimony which was un-
contradicted, the pickets patrolled the sidewalk from the
corner to the Company's building line on First and on
Fremont Streets, thus encompassing the entrances to the
casino from each street. A stipulation of the parties states
the following facts as to the picketing
That between late November, 1966 and up to
December 29, 1966 the Union picketed with three
signs the legends of which read, on the first sign.
"THIS HOUSE BLACK LISTS DEALERS
MEMBERS OF AFC&GE UNION "
The second sign. "THIS HOUSE IS NON-
UNION."
The legend of the third sign reads as previously
testified to from General Counsel's Exhibit Number
4 and General Counsel's Exhibit Number 5:
"PIONEER DOES NOT HAVE CONTRACT
AFC-GE UNION "
On or about December 28, 1966, the signs were
changed in part and replaced by three signs, the first
sign reading "THIS HOUSE VIOLATES
FEDERAL WAGE LAWS "
The second sign says "THIS IS A 'SWEAT
SHOP' PAYS DEALERS $12 A DAY "
The third sign says "THIS HOUSE DOES
COMMIT UNFAIR LABOR PRACTICES "
The signs were completely changed over by
December 29, 1966. The first of the original three
signs to cease being used was "THIS HOUSE IS
NON-UNION "
The last of the first three signs to come down read.
"PIONEER DOES NOT HAVE CONTRACT
AFC-GE UNION."
The Oral Testimony
In addition to the documentary evidence which is large-
ly the basis for the findings above in regard to the
representation proceeding and the dismissal of the two
unfair labor practice charges, the General Counsel swore
as witnesses, Dexter Smith, Norbert Jansen, and Milton
Goldstein. Smith testified credibly as to the fact that he
made photographs of the pickets and picket signs at vari-
ous times. This testimony became surplusage when coun-
sel for the parties by stipulation agreed upon the various
dates upon which picketing was conducted and which
signs were displayed by the parties
Norbert W Jansen, president of the New Pioneer Club
testified that on approximately October 27, 1966, he met
with Tom Hanley, Vivian Brooks, Otho Dale Hill, and
Albert M. Dreyer at Jansen's office in the New Pioneer
Club. Jansen testified that on this occasion the represen-
tatives of the Union stated that they wanted to show him
some "signature cards" and to discuss a labor agreement
covering the employees of the club He told the represen-
tatives of the Union that he did not wish to discuss an
agreement with them or to look at their cards He told
them that he would wait for an election to be conducted
in the unit . Jansen also testified that on November 7 he
met with the same representatives of the Union They
again asked him to negotiate a contract with them but he
told them again that he wouldn't negotiate with them and
that he wanted to wait and see what the results of the
election would be. At this meeting Mrs. Brooks showed
him a copy of a contract which the Union had with the
Golden Gate Casino. The union representatives and he
discussed various terms in the contract. The union
representatives said it was a copy of the contract which
they would like him to sign. There was some discussion
that the union representatives would provide him with a
copy of the contract which he could send to his attorney
in Los Angeles. Jansen said to the union representatives
that he was not ready to have any agreement to bargain at
that particular time. Hanley laid a copy of the contract on
his desk but he gave it back to the officials as they were
leaving the meeting.
On cross-examination Jansen said he was not sure
whether it was at the first or second meeting that Mrs
Brooks offered to show him the authorization cards
which he refused to accept. Jansen denied that he ever
met with the representatives of the Union for the purpose
of negotiating a contract. Jansen denied that he ever ad-
mitted that the Union represented a majority of his em-
ployees. Jansen said that the last time he met with
representatives of the Union was on the afternoon of
November 7. Jansen denied that at any time he said he
would sign the same contract as the California Club or the
Four Queens Club.
Milton Goldstein, the Casino manager of the New
Pioneer Club, testified that he attended a meeting on ap-
proximately October 25 at which he and Jansen con-
ferred with representatives of the Union. Goldstein
testified that the union representatives said that they
wanted Jansen to sign a contract. Hanley said that the
Union represented a majority of the Casino employees.
Jansen said that he was willing to wait until they had the
election Goldstein testified that Hanley said that the
Union represented a majority of the employees but that
he did not offer to prove it by authorization cards. Gold-
stein denied that he made any promises or threats to in-
fluence any of the employees in regard to their union af-
filiations or sympathies.
The Defense
In his opening statement counsel for the Respondent
stated that he intended to prove that the picketing con-
ducted after December 28, 1966, was for the sole pur-
pose of protesting unfair labor practices committed by the
Company. This statement provoked considerable argu-
ment from all counsel on the question as to whether such
evidence was admissible in this proceeding on the state of
the record. Counsel for the Union placed his argument on
the Board's decision in Teamsters "General" Local No.
200, etc (Bachman Furniture Company), 134 NLRB
670. In that case the Union had pursued the usual
representation procedures to obtain certification. After it
lost an election, the Union conducted picketing. In that
case, in which the facts were stipulated, a majority of the
Board agreed with the Trial Examiner and found that the
picketing of the Union after the lost election, was not for
a recognitional or organizational object, but was for the
sole purpose of protesting the Company's unfair labor
practices 4
The contention of the General Counsel as to the admis-
sibility of the evidence was (I) that the election con-
ducted by the Board in the representation proceeding had
become final when the objections of the Union were not
' Members Rogers and Leedom dissented
AMERICAN FEDERATION OF CASINO 547
timely filed with the Regional Office, and the Regional
Director had so ruled, and issued a Certification of
Results, and (2) that the Regional Director after in-
vestigation of all the Union's charges of unfair labor prac-
tice against the Company had dismissed those charges,
and that the dismissal of the charges was affirmed by a
ruling of the General Counsel, Washington, D.C. The
General Counsel contended that the finality of those prior
proceedings foreclosed the Union from introducing
testimony to show that the conduct of the Union in
picketing after the lost election was for the sole p irpose
of protesting the Company's unfair labor practices.
The Trial Examiner ruled that he would accept
testimony and other evidence which the Union claimed
would show that the object of the picketing after the lost
election was solely for the purpose of protesting the un-
fair labor practices of the Company. The General Coun-
sel asked that a specific objection be noted to the Trial
Examiner's ruling.
Pursuant to the ruling the Union offered the oral
testimony of union officers, Thomas Hanley, Vivian
Brooks, and Otho Dale Hill and two documents which
will be mentioned hereinafter. Thomas B. Hanley,
general business manager of the Union, testified as fol-
lows as to the object of the picketing:
The object of that picketing that was being con-
ducted at the Pioneer Club was for the purpose of in-
forming the public that we had grievances and
disputes with the Employer which we were unable to
settle with the Employer, namely that the Employer
was committing and had committed unfair labor
practices by offering rewards to the employees if
they voted against the union, for the purpose of
protesting the fact that the Employer had circulated
copies of a proposed agreement that we had offered
to him with certain deletions in it, and making the
statement to certain employees that if the union was
selected as the bargaining agent that they would be
terminated, and also for the purpose of protesting the
Employer making statements to certain employees
that they would receive better benefits in the way of
positions such as boxman and floormen, and for the
purpose of protesting also the fact that the Employer
was using employees from that establishment under
the pretext that he was going to make them boxmen
at the California Club, for the purpose of protesting
the position of the Employer that he was going to do
everything that he could to destroy the unionization
of the employees in that establishment to the extent
that he told myself and other representatives and em-
ployees that he was going to do everything he could
to destroy the union, that he had lied to us for a
period of months, and that he had pretended that he
was going to bargain, but that he was only stealing
time.
Hanley further testified to the events which occurred
at two meetings of union representatives and company
representatives on October 25 and November 7. Hanley
stated that on October 25 that he, Mrs. Brooks, and
Messrs. Herron and Dreyer met with Messrs. Jansen and
Goldstein representing the Company. At this meeting the
Union offered to show to the representatives of the Com-
pany that the Union could establish the fact of its majori-
ty through authorization cards which it had obtained from
the employees; the Union offered to have these cards
checked by a third party. Jansen refused to examine the
cards or to agree to a third party check. On this occasion,
according to Hanley, Jansen said that "he was going to
bargain" on various types of agreements and recognize
the Union, but that he felt that he "would go to an elec-
tion, that he was not going to sign an agreement to bar-
gain, and was not going to accept the proof of representa-
tion," and he asked Hanley, if Hanley thought that he was
crazy. Hanley agreed that he looked neither crazy nor
stupid. Jansen then asked why Hanley thought he would
accept the Union when he was trying to destroy the
Union. Hanley asked Jansen what he meant and Jansen
replied, that he had his men use listening devices into the
employees' room, and he knew who were the union ad-
herents; that he had gained time by lying to the union
representatives, and that he never had any intention of
bargaining with the Union.
Hanley stated that the last date upon which the Union
sought recognition from, or bargaining with, the Com-
pany was on October 27, 1966. Hanley testified further
that he received reports from a man by the name of
Karnes, a union adherent, that the Company had
promised him a position at the California Club as a box-
man, if Karnes would not support the Union. He also
received reports from Karnes that Karnes was trans-
ferred from the New Pioneer Club to the New Pioneer
Hotel, a job out of the unit. Hanley also received reports
from one, White, to the effect that Jansen had told him to
make no committments to the Union and he would
receive a better position and better benefits at the Califor-
nia Club immediately after the election. Hanley stated
that he and the executive board of the Union made the
decision to establish the picket line on the New Pioneer
Club, after the union representatives met with Jansen and
Jansen told them that he had been deliberately lying to the
union representatives during the time that the election
proceeding was pending, and that he never had any inten-
tion at any time of bargaining with the Union. Hanley said
that the Union had a majority of the employees on the
basis of authorization cards and the payroll records of the
employer. Hanley testified that as soon as the Union lost
the election the Union abandoned the first set of signs as
quickly as new picket signs could be made. After that the
signs read "This is a sweat shop pays dealers $12 a day,"
and "This house violates Federal Wage Laws." The wit-
ness could not recollect the legend on the third picket sign
but the stipulation states that it read, "This house does
commit unfair labor practices."
Hanley stated that on several occasions he told officers
of the Company that the picketing was not for the pur-
pose of inducing or persuading the Company to recognize
the Union or to persuade the employees to join the
Union.
Hanley also testified that he mailed objections to the
election in Case 3l-RC-59 at the post office in Las
Vegas, Nevada, on November 22, at 5:30 p.m. in the af-
ternoon. This is the untimely filed objections to conduct
affecting election.
Mrs. Vivian Brooks, an organizer for the Union,
testified that she attended two meetings at which
representatives of the Company and the Union had met.
The first one occurred on October 25. There had been
prior meetings with representatives of the Company, but
at this meeting Jansen said that he had stalled for time
over the previous months and that now he did not want to
go any further toward reaching an agreement or a con-
tract with the Union. Brooks said that, on a prior occa-
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion and on this occasion , she offered to show Jansen
authorization cards to establish that the Union
represented a majority of the casino employees, but he
would not look at them.
She met again with Jansen on October 27 On this date,
she was accompanied by representatives Hill and Her-
ron. In the course of this meeting, Jansen asked her what
the cost to his company would be, if he agreed to a con-
tract like the one the Union had at the Golden Gate
Casino , which they were discussing . She asked Jansen if
she could see his payroll for the purpose of making this
computation . Jansen gave his permission to see the
payroll data so she conferred with the bookkeeper of the
casino, and made a payroll list from the payroll records.5
Mrs. Brooks stated that before the election, she
received numerous reports about unfair labor practices
committed at the casino and they filed an 8(a)(1) charge
with the Board . This charge was subsequently dismissed
by the Regional Director , Region 31 After the election,
the Union also filed an unfair labor practice charge but
this was also dismissed by the same Regional Director. It
was then stipulated by counsel that this charge is the one
referred to in the 8 (a)(1) and 8(a)(5) charge which was
dismissed by the Regional Director and affirmed by the
General Counsel . According to Brooks , the picket line
was initiated around the first of November , after Jansen
had said that he was stalling , and it was initiated for the
purpose of compelling the Company to sign a contract
and to protest the Company's unfair labor practices.
Otho Dale Hill, a member of the executive board and
president of the Local of the Union, stated that at the
meeting of representatives of the Union and the Com-
pany on October 25, there was a discussion as to the Gol-
den Gate Casino contract and the cost of the wages and
health and welfare terms to Jansen . At this meeting, Jan-
sen also stated that he had a listening device in the em-
ployees' room and that he listened to them talking about
the Union . At this meeting, Jansen said that he didn't
need a union and that he had been stalling for time and
"playing among the raindrops" and that he wanted to go
to an election , since he had stalled it this long
It is undisputed that on December 6, 1966, Albert M.
Dreyer , attorney for the Union wrote the following letter
to the New Pioneer Club, Inc..
Attention: Mr Norman Jensen , President
Gentlemen:
In order to dispel any doubt on the subject, we
hereby inform you that the picketing now being con-
ducted in front of your place of business by this
Union is not for the purpose of compelling or induc-
ing you to recognize or bargain with this U nion as the
collective bargaining representative of any of your
employees or to enter into collective bargaining con-
tract. Its sole purpose is to inform the public ( includ-
ing your customers and patrons ) of facts which it is
entitled to know and of which it should be apprised.
Copies of this letter are being sent to all labor or-
ganizations in Las Vegas, Nevada
Yours Very truly,
This payroll list was introduced into evidence as Resp Exh 2
AMERICAN FEDERA-
TION OF CASINO AND
GAMING EMPLOYEES
By Albert M. Dreyer
It is undisputed that all picketing at the Company's
premises ceased on January 13, 1967, pursuant to an in-
junction issued by the appropriate U S. District Court.
The General Counsel offered no testimony in rebuttal,
resting his case on the evidence in his case-in-chief and
cross-examination of the Union' s witnesses.
Concluding Findings
From the brief summary of the testimony and evidence
above, it is clear that there are no factual questions; all
witnesses are in agreement on the sequence of events.
However the Trial Examiner deems it appropriate to
comment upon the testimony of the witnesses and the
manner in which they testified . Jansen , the president of
the Company, was a most uneasy witness. His testimony
was marked by extreme caution and evasiveness. Even
on direct examination he testified like a man who feared
entrapment by the questioner . His memory was not good
except as to two pertinent facts: ( 1) that he did not ex-
amine the union authorization cards offered to him and
(2) that the Union demanded recognition and bargaining.
Goldstein, the manager of the Casino, was equally eva-
sive and his testimony too is marked by limited memory.
On the other hand the trio of union officers, Hanley,
Brooks, and Hall, testified with every evidence of
forthrightness and candor . They testified willingly and
their testimony was marked by a certain spontaneous in-
dignation at the treatment accorded them by the represen-
tatives of the Company in the union-company con-
ferences . I credit the entire testimony of the union
representatives, and I credit the testimony of Jansen and
Goldstein only to the extent that it is consistent with the
testimony of the union representatives.
From all the evidence in the case I find that the union
representatives had ample grounds to accuse the Com-
pany of unfair labor practices and had ample grounds to
believe that the Union should protest the unfair labor
practices This finding is required by undisputed facts in
the transcript of testimony It is undisputed that represen-
tatives of the parties met prior to October 25, and met on
October 25 and November 7. At these meetings the
Union asked for recognition and bargaining and offered
to display the authorization cards which the Union had
obtained . It is undisputed that Jansen refused to look at
these cards . It is also not disputed that they discussed the
contract which the Union had with the Golden Gate
Casino. This discussion had gone so far that Jansen asked
Brooks just how much it would cost the Company to pay
the same health and welfare payments and wages as
stated in the union-Golden Gate Casino Contract. It can-
not be controverted, and it is not, that Jansen gave
Brooks access to his payroll records and his bookkeeper
for the purpose of making such a computation. In her
testimony Brooks stated this and produced the computa-
tions and payroll data taken from the books of the Com-
pany. It appears plain to this Trial Examiner, that when
representatives of a union and an employer reach a point
where they are making computations to see exactly how
much compliance with a certain union-employer contract
AMERICAN FEDERATION OF CASINO 549
will cost the particular employer, that they have passed
far beyond the stage of initial recognition and have really
arrived at the hard core of all labor negotiations - cost to
the employer . According to the union witnesses Jansen
later admitted that he had lied and by his delaying tactics
had gained time in which to undermine the Union and dis-
sipate its majority . That conduct of Jansen 's, I deem to be
the reason for the indignation which is apparent in the
testimony of the union 's representatives . From this it is
clear, and I find that the Union had ample grounds to feel
that it should protest the unfair labor practices of the
Company.
Unfortunately for the Union , it seems equally clear that
the Union did not avail itself fully of the Board's
procedures to correct the Company 's unfair labor prac-
tices. When the election was lost, the Union did not
timely file its objections to the conduct of the election.
Section 102 . 69(a) of the Rules and Regulations of the
Board requires that objections to the conduct of the elec-
tion or conduct affecting results of the election must be
filed within 5 days of the tally of ballots furnished to the
parties. Under the rule the Union 's objections of conduct
affecting the results of election were required to be in the
office of the Regional -Director on November 23. It is un-
disputed that they were not received on that date.
November 24, 1966, was Thanksgiving Day and the date
on which the Regional Office received the objections was
November 25. The Board and the courts have always
construed this rule of time for filing strictly , so the objec-
tions were not timely filed .6 Further, since the Union
failed to file timely objections to the election the election
was valid and the Company therefore could not be
required to bargain with the Union.7
In this connection it should be noted that at the hearing
the Trial Examiner received in evidence as Respondent's
Exhibit 3 a document entitled objections to conduct of
election and conduct affecting results of election, the
document which was not timely filed . At the request of
counsel for the Union the Trial Examiner permitted the
withdrawal of this exhibit for duplication but ordered that
counsel "submit 2 copies to the Reporter within 8 days of
the end of the hearing." On February 2, 1967, 13 days
after the close of the hearing, the counsel for the General
Counsel by letter informed Respondent of his intention to
move to strike all testimony referring to Respondent's
Exhibit 3 because the required copies had not been for-
warded to the official reporter pursuant to the Trial Ex-
aminer's order. In his brief, counsel for the General
Counsel moved that Respondent's Exhibit 3, and all
testimony referring thereto be striken from the record.
Because of counsel for the Union 's failure to submit the
copies in accordance with the Trial Examiner 's order the
motion to strike is hereby granted.
Upon all the evidence I find that the Union did not
cease to ask for recognition and bargaining on December
28 and 29 and thereafter, when it changed its picket signs.
It is true that Dreyer, counsel for the Union by his letter
of December 6, 1966 , tried to disclaim any intention of
compelling or inducing the Company to bargain with the
Union as the representative of the employees in the ap-
propriate unit , but the letter is disclosed to be a mere
gesture by the testimony of the union representatives who
stated that the picket signs were not changed until
December 28 and 29. A close reading of the testimony of
the union representatives indicates that they regarded the
picketing at the premises of the Company as one continu-
ous operation . Although they changed the picket signs on
December 28-29 , the inference from their testimony is
that the picketing after that date was to protest the unfair
labor practices of the Company , in addition to continuing
the Union 's demand for recognition and bargaining. It is
well-settled law that picketing for dual objects is violative
of this section of the Act if one of the objects is
proscribed by the section." Therefore I find that the
Union has conducted picketing at the premises of the
Company in violation of Section 8(b)(7)(B ) of the Act as
alleged in the complaint.
IV. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , it shall be recommended that
it cease and desist therefrom and take certain affirmative
action that I find necessary to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. New Pioneer , Inc., d/b/a New Pioneer Club is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing the above-named Employer from
November 25, 1966 , to January 13, 1967, with an object
of forcing and requiring New Pioneer Club to recognize
and bargain with the Respondent as the collective-bar-
gaining representative of New Pioneer Club's employees
and of forcing and requiring New Pioneer Club's em-
ployees to accept and select the Respondent as their bar-
gaining representative, although Respondent was not cur-
rently certified as such representative and a valid election
having been held within the 12-month period prior thereto
under Section 9(c) of the Act , the Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8 (b)(7)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case , it is recom-
mended that American Federation of Casino and Gaming
Employees, their officers , agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threatening
to picket New Pioneer Inc., d /b/a New Pioneer Club
where an object thereof is to force or require New
Pioneer Club to recognize and bargain with it as the
representative of its employees , or to force or require the
6 N.L.R.B . v. Conlon Bros Mfg. Co., 187 F . 2d 329 (C.A. 7); General
Box Company , 115 NLRB 301 ; Tung-Sol Electric , Inc., and Triangle
Radio Tubes , Inc., 114 NLRB 104; General Electric Company, Niles
Glass Works , Lamp Division , 103 NLRB 108.
' Irving Air Chute Company, Inc, 149 NLRB 627.
' Woodward Motors, Inc. (Local 182 ), 135 NLRB 851
308-926 0-70-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of New Pioneer Club to accept or select it as
their bargaining representative for a period of 1 year from
January 13, 1967.1
(b) Picketing or causing to be picketed, or threatening
to picket New Pioneer Club for either of the aforemen-
tioned objects, where within the preceding 12-month
period a valid election under Section 9(c) of the Act has
been conducted which the Respondent did not win.
2. Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Post in Respondent's business offices and meeting
halls, copies of the attached notice marked "Appendix." 10
Copies of said notice. to be furnished by the Regional
Director for Region 31, after being duly signed by official
representatives of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
its members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Mail to the Regional Director for Region 31 signed
copies of the aforementioned notice for posting by New
Pioneer, Inc., d/b/a New Pioneer Club, if it be willing, in
places where notices to employees are customarily
posted. Copies of said notice, to be furnished by the Re-
gional Director for Region 3 1, after being signed by the
Respondent, as indicated, shall be forthwith returned to
the Regional Director for disposition by him
(c) Notify the Regional Director, Region 3 1, in writ-
ing, within 20 days from the date of the receipt of this
Trial Examiner's Decision, what steps the Union has
taken to comply herewith. I I
IT IS FURTHER RECOMMENDED that, unless the Union
shall, within 20 days from the date of receipt of this Trial
Examiner's Decision, notify said Regional Director in
writing that it will comply with the foregoing recommen-
dations, the National Labor Relations Board issue an
order requiring the Union to take the action aforesaid.
'Retail Store Employees' Union Local No 692, Retail Clerks Interna-
tionalAssociation, AFL-CIO (Irvins, Inc ), 134 NLRB 686
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notme In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respon-
dent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF AMERICAN FEDERATION
OF CASINO AND GAMING EMPLOYEES AND TO ALL
EMPLOYEES OF NEW PIONEER, INC., D/B/A NEW
PIONEER CLUB
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket or cause to be picketed, or
threaten to picket, New Pioneer, Inc., d/b/a New
Pioneer Club, where an object thereof is to force or
require New Pioneer Club to recognize or bargain
collectively with us, or to force or require its em-
ployees to accept or select us as their collective-bar-
gaining representative, for a period of 1 year from
January 13, 1967.
WE WILL NOT picket or cause to be picketed, or
threaten to picket New Pioneer Club, where an ob-
ject thereof is to force or require New Pioneer Club
to recognize or bargain collectively with us, or to
force or require its employees to accept or select us
as their collective-bargaining representative, where
a valid election which we did not win has been con-
ducted by the National Labor Relations Board
among the employees of New Pioneer Club, within
the preceding 12 months.
AMERICAN FEDERATION OF
CASINO AND GAMING
EMPLOYEES
Labor Organization
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting , and must not be altered,
defaced , covered by any other material.
If members or employees have any question concern-
ing this notice or compliance with its provisions, they
may communicate directly with the Board ' s Regional Of-
fice, 10th Floor , Bartlett Bldg., 215 West Seventh Street,
Los Angeles, California 90014, Telephone 688-5850.