Carousel

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 341 (N.L.R.B. 1968)

CLANEBACH, INC., D/B/A CAROUSEL 341
Clanebach, Inc., d/b/a Carousel and American
Federation of Casino and Gaming Employees and
Danny Foster. Cases 31-CA-654 and
31-CA-723
March 14, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 14, 1967, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
Company had not engaged in certain unfair labor
practices alleged, and recommended that such al-
legations be dismissed. Thereafter the Respondent
filed exceptions to the Trial Examiner's Decision,
and a brief in support.
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
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as to that part of
the remedy granting a bargaining order and as to
paragraphs 4 and 5 of the Conclusions of Law
which concern majority status.
The complaint herein alleges only violations of
Section 8(a)(1) and (3). As set out in his Decision,
the Trial Examiner ruled that evidence was admissi-
ble in support of Charging Party's request for the
inclusion of a bargaining order in the remedy, over-
ruling the objections of the Respondent and the
General Counsel on this point. The evidence thus
admitted included testimony concerning requests to
bargain in October 1966 as well as January 1967,
testimony that signed authorization cards were of-
fered by the Union as proof of majority, testimony
that the Respondent expressed no interest in seeing
such cards or in having them counted and ve rifled
inasmuch as it did not doubt the Union's majority
status, and testimony that at all meetings, including
some in November and December, there was "n-
ever any question of them admitting that we
represented a vast majority or more than a majori-
ty," but that they could not conclude any bargain-
ing until they got their license for the casino. At the
hearing the cards themselves were not offered in
evidence, although the Charging Party suggested
offering them as "one exhibit," apparently not in-
tending to verify the individual signatures. Thereu-
pon, after an off-the-record discussion, the parties
stipulated that one of the union representatives,
Mrs. Brooks, "will testify -that she had 48 cards with
her" when the October request for bargaining was
made.' Agreement was reached on this stipulation
after the Trial Examiner interpreted it as not going
to the correctness of her testimony. Mrs. Brooks
did not attend the January meeting where the
request for bargaining was renewed. During
testimony of Foster, the chief , union organizer,
about this January meeting, the Union suggested a
stipulation concerning 48 cards being presented on
"the two occasions," but this ended in a stipulation
to the effect that the witness would confirm Mrs.
Brooks' testimony that she had 48 cards "with
her." Thus it has not been established on this
record that at the time in question, the Union in
fact had a majority of 48 valid authorization cards
in the appropriate unit, which unit consisted of 84
employees. Proof of majority representation is an
essential factor in requiring that an employer bar-
gain with an employee representative.' In the
absence of proof on this vital issue a bargaining
order is inappropriate, and we shall exclude the
order to bargain in adopting the balance of the
Trial Examiner's Recommended Order.
ORDER
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, as modified
below, and hereby orders that Respondent,
Clanebach, Inc., d/b/a Carousel, Las Vegas,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified.
1. Delete paragraph 1(b) of the Recommended
Order and renumber paragraph 1(c) as 1(b).
' The Trial Examiner in fn. 9 of his Decision inadvertently referred to
this stipulation as follows : " Brooks presented 48 signed authorization
cards." However, Hanley, general business manager of the Union, testified
that "the cards were always offered to them, and the offer of submitting
them to a third, neutral person was offered to them "
Concerning the Langhorst discharge, the Trial Examiner inadvertently
referred to January 1966 instead of January 1967 as the time when Ayoub
told Langhorst to take it easy about the union.
2 See Heck's Inc., 159 NLRB 1331, 1335.
170 NLRB No. 35
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Delete paragraph 2(a) of the Recommended
Order and renumber the remaining paragraphs 2(b)
through 2(f) accordingly.
3. Delete the fifth indented paragraph of the
notice-
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This con-
solidated proceeding under Section 10(b) of the
National Labor Relations Act, as amended, herein
called the Act, was heard at Las Vegas, Nevada, on
August 8 and 9, 1967 , pursuant to due notice. The
original charge in Case 31-CA-654 was filed by
American Federation of Casino and Gaming Em-
ployees, sometimes herein called Federation ,or
Union, on March 27, 1967, served on Respondent
on March 28, 1967, amended on June 5, 1967, and
served on Respondent on the same day.
The charge in Case 3 1-CA-723 was filed by
Danny Foster, an individual, on May 29, 1967, and
served on Respondent on the same day. The
original complaint in Case 31-CA-654 was issued
by the Regional Director for Region 31 on June 9,
1967. An amended consolidated complaint was is-
sued by the aforesaid Regional Director on July 7,
1967. In substance the consolidated complaint al-
leges that Respondent , through certain named su-
pervisory and managerial employees , engaged in
unlawful interrogation concerning employees'
union membership , activities , and sympathies;
threatened employees with reprisals and discharge
because of their union activities ; promised benefits
to employees if they refrained from union activities;
threatened an employee with physical injury; and
physically assaulted an employee because of his
union and other protected activity. In addition it is
alleged that five, employees on various dates in
1967 were discriminatorily discharged because of
their known union sympathy, adherence, and/or ac-
tivity. Respondent by answer denied the allegations
of the complaint and moved for dismissal.
Upon the entire record in these cases, including
my observation of the witnesses, and after due con-
sideration of the briefs filed by the General Counsel
and by Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Clanebach, Inc., d/b/a Carousel, herein called
Respondent, is a Nevada corporation with its prin-
cipal office and place of business at Las Vegas,
Nevada, where it operates a bar, restaurant, and
gambling casino. During the course and conduct of
the aforesaid operations, Respondent annually
receives gross revenue in excess of $500,000 and
purchases and receives in excess of $50,000 worth
of material and supplies from enterprises located
within the State of Nevada, which enterprises
purchased and received said goods and materials
directly from points located outside the State of
Nevada. The complaint alleges, the answer admits,
and I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges , the answer admits, and I
find that the Federation and Culinary Workers
Local 226 and Las Vegas Casino Employees, Local
7, affiliated with Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
herein called Culinary Workers, are, and at all
times material herein were , labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On September 21, 1966, Federation filed a
representation petition in the Board 's Regional Of-
fice (Region 31) docketed as Case 31-RC-371.1
On October 6, 1966, a similar petition was filed
by Federation. The only change was in the name of
the employer.2
After hearing , the Regional Director, on
December 8, 1966, dismissed- Case 31-RC-385 and
directed an election in Case 31-RC-3713 The unit
found appropriate by the Regional Director was as
follows:
All casino employees, including dealers,
keno writers, keno runners , and shills; exclud-
ing all other employees , change girls, booth
cashiers, office clerical employees; guards, and
supervisors as defined in the' Act.
The election was scheduled for March -21, 1967,4
but was postponed by the Regional Director
because he received information that the December
5, 1966, eligibility date would disenfranchise a sub-
stantial portion of current employees.5
On March 28, 1967, the Regional Director issued
a Supplemental Direction of Election6 establishing
the eligibility period to be the payroll period which
immediately preceded the issuance of the Supple-
mental Direction of Election. As stated therein, the
change was occasioned by the substantial turnover
of personnel in the bargaining unit since the initial
Direction of Election was issued . As will appear in-
I G.C. Exh. 2
' G.C Exh 3
a G C. Exh. 4.
4 G C Exh 5. The scheduling of the election was delayed because of a
pending unfair labor practice charge
5 G.C Exh 6
6 G C. Exh 7
CLANEBACH, INC., D/B/A CAROUSEL 343
fra, the election has not been held because of the
pendency of the proceedings herein. As noted
above the original charge in Case 31-CA-654 was
filed by Federation on March 27, 1964. 1 take offi-
cial notice of the Board's established procedure to
delay elections pending disposition of unfair labor
practice charges unless the union files a request to
proceed. Apparently, Federation has not submitted
a request to proceed in Case 31-RC-371 hence the
indefinite postponement of the election ordered by
the Regional Director.
I also take official notice of Case 31-CA-582
which was dismissed? by the Regional Director on
February 21, 1967.
B. Preliminary Findings
It was stipulated by the parties that in October
1966, Robert, Ayoub and Rocco Paravia became
contract purchasers of the capital stock of
Clanebach, Inc., d/b/a Carousel, Respondent
herein, and that between October 1966 and March
31, 1967, they were the supervisors of the establish-
ment . On March 31, 1967, the Nevada State Gam-
ing Commission issued the appropriate license to
Ayoub and Paravia, approving on the same date the
contract of.sale to them; that thereafter Ayoub and
Paravia became the sole shareholders and owners
of record of the stock of Respondent and that the
former owner, William McLane, ceased to be in
any way connected with Respondent. The Charging
Party added the proviso that Ayoub and Paravia
represented themselves as the sole owners of the
establishment from October 1966. As under the
laws of Nevada, Ayoub and Paravia could not
become the legal owners until approval of the sale
and issuance of the appropriate license, I find that
they were the de facto owners in charge of opera-
tions from October 1966 and that they also became
the legal owners as of March 31, 1966. Ac-
cordingly, Respondent is chargeable with all unfair
labor practices -found herein to have occurred dur-
ing the 10(b), period, whether or not Ayoub and
Paravia were the legal owners as they were in ac-
tual charge of Respondent 's operations.'
Vivian Brooks testified that she was an organizer
in the employ of the Federation in September and
October 1966, and that about October 20, 1966,
she attended a meeting at Respondent's establish-
ment. Present at the meeting were Bill McLane,
Tom Hanley, Dale Hill, Glen Herron, Bob Land,
Danny Foster, Ayoub, and Paravia. Hanley was
identified as the business manager of Federation,
Land was chairman of the Federation's executive
board, and Hill was its president. At this meeting
Brooks presented authorization cards which she
claimed were signed by a majority of Respondent's
employees. She testified that Ayoub_ and Paravia,
during the course of the meeting, agreed that they
knew that Federation had a majority of the em-
ployees at that time and did not wish to examine
the authorization cards.' The Federation's
representatives made several proposals for recogni-
tion and bargaining. Paravia and Ayoub stated that
they wished postponement until their names were
on the license . Finally Paravia and Ayoub asked for
a postponement of any discussion until they could
contact their financial backers. At the next meet-
ing, about 5 days later, all of the same persons were
present except Hanley. At this meeting Federation
had a list of employees furnished by Respondent.
The list10 contained 90 names of employees, 6 of
whom may be presumed to be supervisors by virtue
of their titles. Thus Federation had 48 authorization
cards of the remaining 84, a clear majority. Again
at this meeting, according to the credited and unde-
nied testimony of Brooks, Respondent's representa-
tives, Paravia and Ayoub, conceded the' Union's
majority status but refused to engage in bargaining
because they had not yet received an answer from
their financial backers. Thereafter Federation
notified Respondent of the appointment of 11
union stewards."
The above testimony of Brooks was corroborated
in varying particulars by `the testimony of Danny
Foster and Hanley. At subsequent meetings in
December 1966, according to Hanley's undenied
testimony, and in January 1967, according to
Foster's undenied testimony, there was never any
question raised by Respondent's representatives, in-
cluding Ayoub and Paravia, concerning the Union's
majority status. The uncontradicted testimony
shows that Respondent's representatives conceded
the Union's majority status but stated they could
not conclude any agreement until the new owner-
ship was approved by the State of Nevada and the
new license issued. Hanley and Foster also offered
testimony, which is undenied, that at each of the
meetings the authorization cards were offered for
inspection, including an offer to submit the cards to
a neutral third person. On each occasion the offer
was refused.
C. The Alleged Discriminatory Discharges
1. Daniel J. O'Connor
At the outset of the hearing, the General Counsel
moved to strike the name of Daniel J. O'Connor,
named in the complaint as a dischargee. Counsel
7 Resp. Exh 2. This was a charge filed by Federation alleging, inter.,alia,
that Respondent unlawfully refused to recognize and bargain with Federa-
tion The Regional Director's dismissal of this charge was not appealed to
the General Counsel
" Gillette Motor Transport Inc., 137 NLRB 471, cf. Perma Vinyl Corpora-
tion, Dade Plastics Co and United States Pipe and Foundry Company, 164
NLRB 968, "(The instant case presents a stronger factual situation in that
the new owners , Paravia and Ayoub, were parties to the unfair labor prac-
tices.) Union Texas Petroleum (Allied Chemical), 153 NLRB 849, is easily
distinguishable.
' It was stipulated that Brooks presented 48 signed authorization cards
10 Charging Party's Exh 4.
Charging Party's Exh 5.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Federation objected. The motion was granted as
it appeared that O'Connor could not be located.
During the course of the hearing, no evidence was
offered to show any discrimination with regard to
O'Connor's separation from Respondent's employ-
ment, therefore the allegation concerning O'Con-
nor is dismissed.
2. Frank Langhorst
Langhorst was discharged on January 31, 1967,
ostensibly because he engaged in an altercation
with a patron, Clifford Gingerich. On this particular
date, Gingerich's testimony shows, that he was
gambling at the crap table. Langhorst was one of
the dealers at this table and standing next to Gin-
gerich. Langhorst raised an objection to Gingerich's
method of stacking chips when placing a bet, inter-
lacing 25-cent chips with dollar chips, thus making
it difficult to readily see the amount of the bet as
quarter chips and dollar chips are of the same size
though of different colors., When Langhorst
requested Gingerich to stack his chips otherwise,
Gingerich replied, "Look it is my job to stack the
chips, and you take the money. That is your job."
Langhorst replied, "Don't give me a bad time."
Gingerich repeated his, previous statement and
added, "Don't get rough with me. I am not one of
these out-of-towners, and I live here, and I am con-
cerned with the treatment people get here."
Further angry words were exchanged culminating
with Gingerich picking up his chips. Gingench
walked over to the cashier's cage and while cashing
in complained to the cashier about the incident.
Tony Barella , a pit boss, overheard the conversa-
tion, questioned Gingerich about it and called
Robert Ayoub, one of the managers of the
establishment, over. Ayoub asked Gingerich to
identify the dealer, pointing to Langhorst and ask-
ing if that was the one. Gingerich replied in the af-
firmative. On cross-examination, Gingerich testified
that the boxman, a supervisor who presides Qver a
crap table, was seated on the other side of the crap
table about 4-5. feet away. Gingerich stated that his
exchange with Langhorst was not too loud and he
doubted whether the boxman heard them as the ar-
gument was no more than 2 minutes in duration.
Ayoub, in the presence of Gin^erich, after hearing
his story, asked the girl behind the cage for a
dismissal slip and told Gingerich he was going to
dismiss Langhorst. Ayoub testified that Gingerich
told him he had been insulted by Langhorst, throw-
ing chips back at him because Langhorst didn't like
the way they were stacked. Ayoub waited until the
shift was over and told Langhorst he was ter-
minated. A few days later Langhorst asked Ayoub
to rehire him. Ayoub told him to come back. After
Langhorst checked with Ayoub numerous times,
Ayoub finally told him to forget about it. Ayoub,
and Jerry Malice, a boxman, and other supervisors
testified that Langhorst, in effect, was arrogant to
customers and had been reprimanded many times
because of this attitude.
Langhorst testified that he was employed at
Respondent in June 1965; that he was a dealer in
crap and 21; that he had worked in Las Vegas gam.
bling establishments for 20 years; that he had previ-
ously worked for 10 years as_ a dealer in Kentucky;
that-Ayoub told him to take it easy about the Union
in January 1966; that when he was discharged
Ayoub remarked, "Now, see what the Union can
do for you." Langhorst further testified that box-
man Jerry Malice had reprimanded him about three
or four times but not for the way he was treating
patrons and that Ayoub had reprimanded him once
for breaking up a crap game . Langhorst testified
that Gingerich used a four letter word when his at-
tention was called to the way he was stacking his
chips, interlacing three 1 dollar chips with 5 quartet
chips. Accordingly, when Gingerich won a bet,
Langhorst, whose duty it was to pay the winning
bet, was required to examine the bet closely- to
determine the amount of the payoff. With the crap
table full this would slow down proceedings. He
testified that he told Gingerich "you make it awful
tough on me, why don't you play'like the rest of the
players?" Gingerich replied,-" F- you. That is what
you are getting paid for."
In view of the fact that Ayoub, when he testified,
did not deny Langhorst's testimony concerning his
remarks about the Union and Gingerich did not
deny the use of the four letter - word, I credit
Langhorst's testimony with respect to this evidence.
As there is no essential disagreement in the
testimony with regard to the incident leading to the
discharge, it is necessary to determine whether,
under "all the circumstances, the Gingerich incident
was the true cause for the discharge or only a pre-
text to disguise the fact that Langhorst's known
union adherence and sympathies were the real
cause for his discharge. While the matter is quite
close, under all the circumstances, including the
manifest union antipathy of Ayoub, Rocco Paravia,
the comanager of Respondent' s casino , and other
supervisory personnel, as will appear infra, I find
that Langhorst was in fact discharged because of
his known union sympathy and adherence and that
the alleged discourtesy, abuse, or insult of Gin-
gench was a convenient' pretext seized upon by
Respondent to conceal its true reasons . Langhorst's
undenied testimony concerning an incident involv-
ing a boxman identified as "Bimbo" Pachiano,
sheds considerable light on Respondent's attitude
toward mistreatment of patrons by its employees.
Pachiano, according to Langhorst, after an argu-
ment with a patron, followed him outside, knocked
him down, and kicked him. Pachiano was told by
Ayoub that if it ever happened again he would be
terminated. As this incident occurred about 1 hour
before the Gingerich argument , the contrast in
treatment of the two employees is of significance. It
is clear that Pachiano, a boxman and therefore a
supervisor, was not a union member.
Moreover, Ayoub's testimony as well as Malice's
fails to disclose any previous reprimand to
CLANEBACH, INC., D/B /A CAROUSEL
Langhorst for his attitude to patrons. Both testified
by leading questions to Langhorst's surliness and at-
titude but failed to describe any other specific in-
cident. Apparently, the reprimands to Langhorst
consisted of breaking up a crap game on one occa-
sion and differences in the techniques of dealing at
the table. Malice's complaints consisted of "throw-
ing checks" and "paying bets backward." Malice
asserted that he had been in the business for 15
years and that was not the way to deal. Malice
testified that for the 2 months he supervised
Langhorst, he reprimanded him every day, con-
sidered him a poor employee. He testified that
Barella also reprimanded Langhorst on several oc-
casions. Despite this alleged record of Langhorst's
incompetency, Malice did not at any time recom-
mend Langhorst's termination. As Malice did not
impress me as a truthful witness his testimony that
he reprimanded Langhorst daily is not credited.
The trivial argument with Gingerich, who ad-
mitted he was losing at the time of his dispute with
Langhorst, hardly seems the kind of incident which
would warrant a discharge. I am not prepared to
find, on the basis of this record, that gambling
casinos, particularly Respondent's, are operated on
the principle that the patron is always right and that
a patron's feelings should not be ruffled.
Langhorst's long experience as a dealer and his
demeanor on the witness stand convince me that he
did not threaten to throw Gingerich out12 and that
he made a reasonable request to Gingerich to stack
his bets in a different manner. On the other hand,
Gingerich, somewhat perturbed because he was los-
ing, reacted with undue anger and militancy to
Langhorst's admonition. Thus it appears that
Ayoub, by hastily requesting a dismissal slip in Gin-
gerich's presence, decided to discharge Langhorst
as soon as he was identified without providing
Langhorst an opportunity to state his version of the
incident. The precipitate discharge, therefore, as I
have found above, and 'for all- the reasons stated
above, stems from causes other than the Gingerich
incident. Any remaining doubts as to the true-
reason for the discharge, are resolved by
Langhorst's undenied testimony that Ayoub, when
notifying him of his discharge, said "Now, see what
the Union can do for you."
3. ' John G. Matvay
Matvay, employed in Respondent's establishment
since June 1965, was a 21 dealer of considerable
experience. In their testimony Respondent's super-
visory hierarchy acknowledged that Matvay was a
top professional dealer. Respondent admitted
knowledge of Matvay's union affiliation and sym-
pathies and that they knew Matvay had been
designated as a steward by Federation in October
1966.
345
Matvay credibly testified that in October 1966,
after he had returned to the Casino from a union
meeting , he went to several of the gaming tables to
notify other union members of the date of the next
meeting and then went to the lunch counter. Mike
Sarge Gambino , Respondent 's chief pit boss or shift
boss, came over to Matvay and asked him what he
was doing . Matvay replied that he was notifying the
union members of a future meeting . Gambino said,
"O.K." The following day , Paravia told Matvay he
was being transferred to the swing shift. Matvay
protested saying , " I can 't work swing shift . My wife
is a semi -invalid . I have got two young kids." Mat-
vay complained to the Union and the Union ar-
ranged a conference with Paravia for the next day.
As a result of the conference Matvay was reinstated
to the day shift . Matvay testified credibly that at
this conference Paravia stated that Matvay had told
a pit boss that he wanted the transfer . Matvay said
it was untrue . Whereupon Paravia or Ayoub, who
was present, stated that they made a mistake; it was
another dealer who wanted the transfer in order to
build a house . Matvay asked Guido , the other
dealer, about it and Guido said , "Hell, no, I just
bought a house nine months ago ." Matvay also
testified that he believed that Paravia and Ayoub
knew that Mrs. Matvay was an invalid . A few days
after the conference Paravia remarked to Matvay,
"Who in the hell is running this joint , me or the
Union?"
Shortly after the Board's notice of election was
posted in March 1967 , Gambino spoke to Matvay
saying, "John , you know the election is coming up
next week . How are you going to vote?" Matvay
replied , "Mike, don't be silly. You know I am a
staunch member ." The next day Paravia said to
Matvay, "I talked to Mike Sarge , and I heard the
way you are going to vote . I guess you don't like
your job."
Lou Gianfreda , a pit boss , in charge of 21 tables
since the middle of March 1967 , criticized Mat-
vay's dealing on several occasions, complaining
chiefly that Matvay was "flashing " ( revealing) his
hole card to patrons, thus improving their chance
of winning from the Casino. The criticism con-
tinued to March 23, 1967, the date of his discharge.
On March 23, 1967, Matvay began dealing at a
21 table. Matvay admits that he made a mistake in
not picking up a losing bet of a patron , calling it a
tie when in fact Matvay , as dealer , had the winning
hand . Gianfreda called Matvay on the mistake and
had him relieved at the table. Gambino came over
to Matvay , took him aside, and asked, "What are
you doing to me, John?" Matvay replied, "Mike,
what could I do to you? I have been your friend for
twelve years . What could I do?" Gambino then said
that Matvay made two mistakes , Matvay said, no,
12 Gingerich did not testify to this effect. Ayoub's testimony that Gin-
gerich reported this threat is not credited
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had only made one mistake. Gambino then said,
"You made two mistakes. You are a champion
professional dealer. You are not supposed to make
mistakes." Matvay answered, "Mike, that is why
they have pit bosses." Gianfreda apparently over-
heard this conversation and came over, saying,
"Are you calling me a ..... liar? Matvay said, "No, I
am not calling you nothing. But if you saw me make
the first mistake, why didn't you call me down on,
that?" Gianfreda replied, "I just wanted to let you
bury yourself." According to Matvay's credited
testimony, he then went back to work at his table.13
Shortly thereafter Paravia came into the Casino
and Gianfreda went to Paravia passing behind Mat-
vay. When about to pass Matvay, Gianfreda said,
"Now, we'll see what your ...... Union can do for
you now." 14
Paravia had a short conversation with Gianfreda,
then spoke to Gambino. He called Matvay to the
front of the restaurant and said, "Matvay, I got to
terminate you." Matvay replied, "Why? Are you
going to believe that guy, because he is from your
home town? Aren't you going to listen to me?"
There was some further discussion along this line
but Paravia repeated that no matter what Matvay
said, he was terminated. Matvay asked about future
employment and Paravia stated he would put down,
"overstaffed" as the reason for termination.
Matvay further testified that on the morning of
the hearing he met Paravia and Attorney Richman
coming into the hearing room. Paravia asked Mat-
vay if he was working and Matvay said that he had
worked at the Silver Slipper for 8 days and then
had been asked to resign. Paravia asked what hap-
pened and Matvay said that the person who got him
the job told him to quit because Matvay was sup-
posed to have been a "mechanic" at Respondent's
Casino.15 Matvay protested that Respondent never
hired mechanics and if he were a mechanic he
would not have been discharged. Paravia said he
was going to look into it saying, "Them kind of sto-
ries are no good."
Louis Gianfreda testified he was employed at
Respondent's Casino for 3 months commencing
sometime in February 1967. He referred to Matvay
as a fine dealer and stated that on March 23, 1967,
at the beginning of the shift, about 11 a.m., he was
standing about 5 feet away from Matvay's table. A
patron came in and bet 3 or 4 paper dollars. Mat-
vay dealt and won the hand, but did not pick up the
player's bet. Matvay picked up the cards and
proceeded to deal another hand. On the next hand
the player "busted," went over 21, Matvay picked
up the cards and paid the patron instead of picking
up the player's money. Gianfreda went over, took
the cards from Matvay, showed where the player
had 22 and said, "Take this money." Matvay said,
"I made a mistake " and Gianfreda said , "You made
13 Gianfreda's testimony to the contrary is not credited Gambino's and
Paravia's testimony on this point is confused and uncertain
14 Gianfreda 's denial of this remark is not credited
a mistake on the hand before, too." Matvay then
picked up the cards and started shuffling. The
patron, in the meantime, had left the building. Gi-
anfreda then told Gambino what had happened.
When Paravia came in Gianfreda told him about
the incident and stated to Paravia that he was going
to terminate him. Paravia, according to Gianfreda,
replied, "You are in charge here. Do as you
please." Gianfreda stated that Matvay, as a fine
dealer, might make a miscount possibly between 17
or 18 but if a person is over 21,-very seldom.
On cross-examination, Gianfreda stated that he
became aware of union talk "around the joint"
within a day or two of his employment because
there was "talk all over," that he does not ter-
minate a dealer for a mistake; that he expects inex-
perienced dealers to make mistakes but when two
mistakes in succession are made he puts a stop to it;
that capable dealers like Matvay are not expected
to make two mistakes; that in his judgment Matvay
was stealing in collusion with the patron ; that he
knew nothing about a pending Board election, that
he did not know that Matvay was a member of the
Union or that he had discussed Matvay's union
membership and the election with Paravia or other
supervisory employees of Respondent.
Paravia testified that when he arrived at the
Casino on the morning of March 23, 1967, Gian-
freda told him of the incident with Matvay. Gam-
.bino and Matvay were then walking toward him;
that Paravia, himself, told Matvay he was ter-
minated. On cross-examination he stated that Mat-
vay did tell him that he made only one mistake but
he had to stay with Gianfreda's decision; that he
never had a problem with Matvay before; that Mat-
vay was one of his better dealers; that he noted on
the termination slip that Matvay was terminated
because of overstaffing, but that the auditor in
making the report to the Nevada State Employment
Commission reported Matvay as being discharged
for misconduct and bad judgment.16
Gambino, day shift pit boss, testified that he
knew Matvay for about 15 years, that his work was
very good and that he would consider Matvay a top
professional dealer. On March 23, 1967, at Gian-
freda's request he had Matvay relieved at the table.
Gianfreda told him he wanted Matvay terminated.
Gambino, because he was a close friend of Matvay,
said, "Let me find out what this is all about." He
then called Matvay over and questioned him about
the incident. Matvay insisted that there might have
been only one hand in which he made a mistake, but
not two. After a short conversation, Matvay and
Gambino started to walk back to the gambling area
when Paravia came into the Casino. According to
Gambino, Gianfreda, who was in the pit, told Mat-
vay that he was terminated. Gambino then left but
became aware of a disturbance in the pit a little
1S A mechanic was defined as a dealer that cheats patrons
Charging Party's Exh 8
CLANEBACH, INC., D/B/A CAROUSEL
later between Gianfreda ard Matvay. He was not
certain but Paravia may have also been there. Gam-
bino testified that it was a matter of common
knowledge that Matvzty was a member of the
Union; that before the pending Board election he
said to Matvay, "John, you and I are good friends. I
hope you are with me." Gambino explained he
wanted Matvay to "vote for the Club" and that the
remark was made in a "joking" manner . Matvay
replied, "Sure am for you a hundred percent." On
cross-examination, he testified he was the shift boss
and that Gianfreda looked to him for guidance; that
Paravia was not involved in the decision to ter-
minate Matvay and that Gianfreda made out the
termination slip; that when he asked Matvay to be
with him on the election, Matvay said, "I am with
the Union. I have got to vote with the Union."
Gambino admitted having a similar conversation
with another employee, David Waggoner, terming
it a "silly remark."
I view the discharge of Matvay as one of the most
cruel manifestations of discrimination because of
union membership and activity that can be per-
petrated by an employer upon an employee. A
charge of stealing in collusion with an accomplice,
involving an acknowledged top professional dealer
such as Matvay, can bar him from future employ-
ment in any casino. Such a charge, even if untrue,
clearly has had the effect of preventing Matvay
from securing permanent employment in the
capacity in which he is recognized as a top man.17
The circumstances leading to the discharge hardly
support the devastating charge leveled against Mat-
vay. The evidence discloses that it was at the
beginning of the shift, 11 a.m ., at a time when there
were few patrons in the Casino; that there was but
one player at Matvay's table;" that only 3 or 4 dol-
lars was involved, and Gianfreda was known by
Matvay to be in a position to see what was occur-
ring.19 In this setting, it seems extremely improbable
that Matvay would proceed to engage in a conspira-
cy to fleece the Casino. Gianfreda, himself, testified
that if a dealer is stealing nothing would be said
until enough rope was given him to "hang" himself,
unless a large sum was involved. Clearly, even if Gi-
anfreda thought Matvay was stealing, he would not,
in the exercise of good judgment, intercede when
only 3 or 4 dollars was involved. Certainly much
higher stakes would be reached if in fact there was
collusion and from his vantage point Gianfreda
would have waited for that to happen. I rather view
the entire incident as a thinly disguised pretext to
discharge Matvay for, his known union membership.
I believe that Gianfreda was designated by Paravia
and Gambino to discharge Matvay on the slightest
pretext that presented itself. Gianfreda's selection
" Paravia's painful awareness of these facts is noted by his testimony that
he reported Matvay's discharge due to "overstaffing "
" Gambino testified there were two or three . However, Matvay and Gi-
anfreda agreed there was only one.
w In view of Matvay's credited testimony that he had been closely -
watched by Gianfreda prior to March 23, 1967, and that there were few
347
of this incident reveals his own anxiety to fulfill his
mission. Recognizing Matvay as a top dealer, I be-
lieve that mistakes of the kind charged to him
would be rare and I do not credit Gianfreda's
testimony that Matvay made two consecutive
mistakes . Matvay , whom I credit , testified he may
have made one, but did not make two. However,
even if he made two, as I have stated above, I do
not believe that Matvay would have been called
and accused of stealing because of the trifling sum
involved. Certainly the Casino would not wish to
lose and stigmatize a valuable employee by leveling
such a serious charge without much more convinc-
ing proof. Yet Paravia testified that he accepted Gi-
anfreda's decision without question. However, the
evidence shows that, in fact, Gianfreda was quite
uncertain and that in fact he did not discharge Mat-
vay but Paravia did. It appears, therefore, that Gi-
anfreda felt that he needed Paravia's and Gam-
bino's approval and concurrence in effecting the
discharge because of the flimsy nature of the in-
cident. Gambino's role in Matvay's discharge and in
the Casino is readily ascertained by his demeanor
and testimony. Gambino on the witness stand ex-
uded personality, accompanied each statement with
a chuckle and a smile, conveniently removed him-
self from the area of the actual discharge, and
referred to his interrogation concerning union ac-
tivity of Waggoner as "silly" and to that of Matvay
as "joking ." In my appraisal of Gambino, he is far
from the friendly person he outwardly portrays and
I believe that he wields far more influence and
power in the Casino than he cares to admit or that
was testified to by other Respondent witnesses.
Gambino professes to be Matvay's friend as well as
everyone else's friend but, nevetheless, he is the
day-shift boss, has supervisory authority over all
other pit bosses and boxmen and was in a position
to countermand Gianfreda 's recommendation to
discharge Matvay. Despite his professed friendship
of 15 years with Matvay, despite the fact that he,
alone, had heard both versions of the incident,
Gambino did not intercede in Matvay's behalf be-
fore Paravia. I conclude that Gambino did not in-
tervene because Matvay was a marked man and
that Gambino was a party to the arrangement
whereby Matvay would be discharged on the
slightest pretext. In taking Matvay aside, his first
words to Matvay were, "What are you doing to me,
John?" Thus, Gambino assumed Matvay's guilt and
foreclosed any possible acceptance of Matvay's
contention that he made one innocent mistake. At
the same time the expression conveniently served
as an excuse for not exerting efforts in Matvay's be-
half even though he was at the same time professing
his friendship for Matvay. I believe that it is fair to
patrons in the Casino, it is clear to me that Matvay was aware he was under
Gianfreda 's observation at the time he was dealing. Moreover , Matvay,
with his experience of Las Vegas casinos, was well aware of the ability of
pit bosses to see cards through mirrors and other means at such short
distances.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
infer that when Matvay, a day or two before March
23, 1967, refused Gambino's request to vote
against the Union, Respondent's management de-
cided to discharge Matvay on the slightest pretext.
Gianfreda was the supervisor to whom this chore
was delegated. Gianfreda's testimony in which he
denied any knowledge of Matvay's union member-
ship is incredulous in view of his own testimony as
well as that of Gambino and Paravia concerning the
union talk and activity at Respondent's establish-
ment.
In this connection, I have considered the follow-
ing: (a) The October 1966 incident when Paravia
peremptorily transferred Matvay to the less desira-
ble swing shift after Gambino learned that Matvay
was notifying employees of a union meeting, (b)
Paravia's remark to Matvay, "Who is running the
club me or the union?", (c) Paravia's remark to
Matvay that Gambino informed him how Matvay
was going to vote and that apparently he did not
care about his job, (d) Gianfreda's obscene remark,
"See what the f- Union could do for you now,"
and (e) Paravia's attitude toward Matvay's failure
to secure and hold other employment after his
discharge. If Paravia had a bona fide belief that
Matvay had been in collusion with a patron to
cheat Respondent, he would not be concerned with
Matvay's failure to secure other employment, he
would not have assigned "overstaffing" as a reason
for Matvay's discharge and he would have con-
tested Matvay's drawing of unemployment compen-
sation by supporting before the Nevada Employ-
ment Commission his accountant's report that Mat-
vay had engaged in misconduct.
Consideration of all the circumstances leads me
to conclude that Matvay was discharged because of
his known union sympathy and activity and that the
alleged "cheating" incident was a contrived pre-
text.
4. The discharge of Alton G. Mills, Jr.
Alton G. Mills, Jr., a dice, roulette, and 21
dealer, was employed at Respondent's establish-
ment from April 1, 1965, until terminated on April
14, 1967. There was no direct admission that Mills
was known by any Respondent supervisors to be a
member or adherent of the Federation. Mills
testified that he became a member of the Union in
March 1967, obtaining a card from Foster. Approx-
imately 2 days before March 21, 1967, the date
when the Board election was scheduled to be held,
Mills had a conversation with Gambino. Gambino
told Mills that what he was saying to him was
strictly off the record and then added, "It doesn't
mean anything to me, but I would like to know,
what do you think about the election?" Mills asked,
"What do you mean?" Gambino in turn asked,
20 The record shows that dealers are sometimes subjected to a
"shakedown" when suspected of hiding chips on their person However,
the practice is to make such a search in private rather than in public
"How are you going to vote?" Mills said that he die
not know. Thereupon Gambino asked his opinion
as to how the election was going to go. Mills
replied, "Well, in my opinion', I think 95 percent of
the dealers will vote for the union." Mills further
testified that about March 27 or 28, 1968, he was
dealing a full 21 game, in that all seats at his table
were occupied by players. Gianfreda, the pit boss,
approached him from the rear, and placed his
hands over the front of his body, down the front of
his legs. Mills in describing the incident stated,
"Lou Gianfreda approached me from the rear,
shook me down from my shoulders to my shoes."
Gianfreda, while doing this, remarked, "Look, Jack
thinks this is funny." Jack was a person seated
nearby watching the 21 game.20
Mills further testified that on April 14, 1967, he
commenced to work at 11 a.m., opened his table
and spread the cards. Mills' father then came
through the door, walked over to the table, and ad-
dressed Gianfreda, saying, "Lou, you should know
what you are doing when you shake somebody
down." Gianfreda denied he shook anyone down
and asked whom he had shaken down. Mills then
looked at Gianfreda and said, "Me." Gianfreda de-
nied it and asked whether Mills was referring to the
day he was "kidding." Whereupon Mills said, "Why
should you kid with me? You don't even know me.
You just came to work in the place. I have been
here for 2 years, and you have been here 10 days.
You don't know me." At this point Mills' father left
and Mills and Gianfreda continued to argue the
matter, when Gianfreda said, "If I want to shake
you down in the pit21 a hundred times a day, I will
do it." Mills said, "No, you won't. Don't you try it."
Gianfreda then said, "You are fired." Mills said,
"OK," unbuckled his apron and turned around to
walk out when Gianfreda said, "Union punk."
As Mills was walking out Gambino said to him,
"Look, let me talk to Rockie22 when he comes in.
Maybe this can be straightened out." Mills replied,
"Mike, I am angry. The best thing for me to do is to
take a walk and come back and see Rocky." Mills
came back later and saw Gambino who said, "Al-
ton, I am sorry. Lou got to Rockie first."
Gianfreda in his direct examination testified that
when he was opening the rack at Mills' table for the
21 game about I1 a.m. on April 14, 1967, there
was an elderly man screaming at him. The man
said, "If you ever shake my son down again I am
going to come after you." Gianfreda asked Mills,
"Who is this guy?" Mills replied that it was his
father. Gianfreda then said, "Tell your daddy to get
out of here. You are fired." Gianfreda denied that
there was any other conversation with Mills. When
Paravia came in Gianfreda told him that he had ter-
minated Mills because Mills' father had threatened
21 An area in full view of the public where the pit boss stands to oversee
the tables
12 Paravia
CLANEBACH, INC., D/B/A CAROUSEL
him. Gianfreda denied that he had "frisked" or
"shaken down" Mills and that he would not do
such a thing in the presence of customers. Gian-
freda also disclaimed any knowledge of Mills' union
membership or activity. On cross-examination,
however, Gianfreda admitted that at the time of
discharge he and Mills exchanged angry words con-
cerning the occasion when Mills claimed he was "-
frisked" or "shaken down." Gambino, in response
to a question whether he had a conversation with
Mills after Mills was terminated stated, "Not that I
recall."
As Mills appeared to be a straightforward sincere
witness although an interested party in the
proceedings, I fully credit his testimony. Mills' in-
terrogation by Gambino, as testified to by Mills,
stands undenied in this record and is fully credited.
It is clear that by revealing his opinion that 95 per-
cent of the dealers would vote for the Union, Mills
openly displayed his union sympathy. Moreover,
Gambino's question as to how Mills would vote in-
trudes on Mills' rights under Section 7 of the Act. I
infer that Gambino informed Paravia concerning
this conversation, just as he did after his interroga-
tion of Matvay. Mills, I find, was in fact "shaken
down" a few days after this interrogation-in an
obvious attempt by Gianfreda to create an incident
which would warrant Mills' discharge. Apparently
Gianfreda was unsuccessful on this occasion but
when Mills' father came in on April 14, 1967, to
remonstrate with Gianfreda, the incident was seized
upon and Mills was summarily discharged. As Mills
had been dealing for some 18 years and had
worked at Respondent's establishment without
complaint for over 2 years, it would be rather sur-
prising that the interchange with Mills' father would
be considered a cause for discharge of Mills under
ordinary circumstances. At any rate I have credited
Mills' testimony that Gianfreda's final remark to
him was, "Union punk." This remark, in my
opinion, establishes beyond doubt the true cause
for Mills' discharge. Gambino, striving to maintain
his image as a friend to all, told Mills he would in-
tercede in his behalf. However, Gambino later
merely informed Mills that Gianfreda had spoken
to Paravia before he could get to him, thus attempt-
ing to excuse his failure to intercede. Gambino's
testimony that he did not recall any conversation
with Mills after Mills' discharge is an equivocal
denial which is not credited. Gambino, as shift boss,
in my opinion, could have countermanded Mills'
discharge if he so desired. He did not do so because
Mills, after being interrogated by Gambino as
described above, had been categorized by Gambino
as a union sympathizer, and therefore, like Matvay,
subject to discharge on the slightest pretext.
I find that Mills was discharged because of his
known union sympathy and that the incident con-
cerning his father was seized upon by Respondent
as a convenient pretext to conceal the true reason
for his discharge.
349
5. The discharge of Danny Foster
At the outset of the hearing the complaint was
amended without objection by Respondent counsel
to allege that Foster was discharged on April 9,
1967.
Foster, a dealer, commenced working at the
Carousel in October 1965. He was a member of
Federation at the time he commenced his employ-
1,nent and was on the Federation's executive board.
Prior to being employed by Carousel he had been a
Federation business agent. In October 1966, he was
one of the shop stewards appointed by the Union.
Thereafter Foster was the chief organizer in the
Carousel. Respondent conceded its knowledge of
Foster 's union activity and membership.
Foster testified that on the day of his discharge
Gianfreda, the pit boss, stood alongside him and
watched Pais work for a half hour before the shift
ended. Foster completed the shift and as he was
about to leave, Gianfreda told him that Paravia
wanted to see him. He approached Paravia and
inquired what he wanted and Paravia told him he
was being terminated. Foster inquired as to the
reason and Paravia with a big wide grin, according
to Foster's credited testimony, said, "Unsatisfacto-
ry." Foster credibly testified that he had not
received any written or oral warnings concerning
his work from any supervisor. Foster related that on
April 14, some days after his discharge, when hav-
ing a cup of coffee in the Carousel, Paravia ordered
him off the premises saying, "If you come back in
here, you are going to get hurt bad, and take your
union friends with you." A few days later Foster
returned with Mike Pisaneilo, a business agent for a
culinary union local. Gambino and Paravia at-
tempted to eject him but Foster protested he
wanted his paycheck. At first Gambino said the
check was in the mail but someone at Paravia's or
Gambino's request found Foster's check in the
cashier's cage and it was handed to Foster.
On cross-examination Foster testified that he was
unemployed for 1-1/2 years prior to his employ-
ment at Carousel, had worked prior to that for
about 2 years as a dealer in Las Vegas and has ap-
proximately 15 years' experience as a dealer. Foster
admitted that he had appeared, during the last 2 or
3 years, in behalf of Federation in four previgus un-
fair labor practice proceedings before the Board.
Foster emphatically denied that he talked about the
Union at the gaming tables.
Malice testified that once in a while Foster would
discuss the Union at the table and Malice would tell
him to keep quiet and do his work, and that Paravia
in his presence, told Foster that there was no union
talk allowed at the gaming table. He testified he
saw Foster pass out cards and that they were for the
Union, that it was common knowledge Foster was
pushing for the Union.
Jerry L. Garvin, a boxman since March 1967,
testified that he was a member of Federation when
350 DECISIONS OF NATIONAL LABOR r(ELATIONS BOARD
he was promoted to boxman; that he heard Paravia,
Ayoub, and Malice reprimand Foster for talking
about the Union at the gaming tables and that he
also had reprimanded Foster for the same reason.
He referred to one incident where he told Foster,
"Knock it off, Danny, talk about it on your break.
When you are on the table forget about it." He
then explained that on this occasion discussion con-
tinued in a "ribbing" manner.
It was developed that Federation had filed a
charge against Respondent alleging that Garvin had
been threatened with discharge after he was
promoted to a boxman if he voted in the scheduled
Board election. Garvin pleaded with the union offi-
cials to drop the charge as he had been given a
break by Respondent and did not wish to endanger
his position. Garvin further testified that daring the
period prior to the scheduled Board election it was
common for dealers to discuss the election; that it
was the main topic of conversation on the premises
and that Foster was the only person that was fired
for that reason.
Paravia testified he admonished Foster about five
or six times about discussion of the Union at the
gaming tables while a game was in progress. He
testified that about 5:30 p.m. on the date Foster
was terminated he heard Foster remark to another
dealer while the dice game was in progress, "Don't
forget your union card." Paravia testified, "With
this I had had it. I heard this, and couldn't go for
any more of it." As a result he terminated Foster at
the conclusion of the shift. He further testified that
Foster, over a period of 6 to 8 weeks, had been
talking union at the tables and that he had warned
Foster that continuance of this conduct would
result in discharge; that the discharge warning had
been given 3 weeks before the date of discharge.
On cross-examination Paravia testified that he
heard other dealers discussing various outside mat-
ters at the gaming table and he gave them warnings.
In response to a series of questions by the Trial Ex-
aminer, Paravia stated that he was unduly sensitive
to union discussion about the time of the discharge
because of the pending election and that he re-
garded union discussion as a more serious breach of
the rule against talking of outside matters at the
gaming tables.
I have no difficulty concluding that Paravia,
Ayoub, and Gambino, the top supervisors of
Respondent, were engaged in a not too subtle cam-
paign against the Federation adherents. As part and
parcel of this campaign, veteran employees were
singled out for discharge because of their union ad-
vocacy, adherence, sympathy, and activity. Foster's
prominent position was well known to all con-
cerned^as his organizing endeavors were carried on
quite openly. The several incidents related by
Foster and testified to by Malice, Cambino, and
Paravia, clearly indicate Foster's organizing activity
was confined to breaks and away from the gaming
tables. Garvin's, Malice's, and Paravia's testimony
with regard to warnings, reprimands, and occasions
when Foster talked about the Union was couched
in general terms, contained vague references to oc-
casions when remarks were made and lacked ele-
ments of specificity which would warrant reliance
or confidence in the truth of their assertions. From
a composite of all the testimony, I conclude that
there was on occasion considerable discussion at
the gaming tables concerning the forthcoming
Board election in which dealers as well as super-
visors participated and that there were joking
references made concerning the Union, both by su-
pervisors and dealers. Although I do not credit
Paravia's testimony concerning the disconnected
phrase he allegedly overheard; the phrase, even if
credited, would seem to indicate a jocular
reference. The phrase, "Don't forget your union
card," is by itself meaningless. Under the circum-
stances, Foster's discharge because of the use of
this innocuous phrase is a precipitate action that
requires justification outside the particular incident.
As I do not credit Respondent's witnesses that
Foster was repeatedly cautioned, reprimanded, and
warned about talking union at the gaming table, nor
do I believe that he engaged in this activity to any
extent greater than was tolerated in others. I con-
clude that Foster was discharged because of hi4
known leadership and activity in Federation's at-
tempt to organize Respondent's employees. A
discharge for the latter reason constitutes a viola-
tion of Section 8(a)(3) and (1) of the Act. I so
find.
D. 8(a)(1) Interference, Restraint, and Coercion
The evidence showed that Gambino unlawfully
interrogated Matvay, Waggoner, and Mills concern-
ing their union sympathy, adherence, and desires.
Although, as detailed above, Gambino testified he
was joking when he interrogated Matvay and Wag-
goner, I do not credit this assertion. Mills'
testimony with regard to Gambino's solicitation of
Mills' opinion of the results of the forthcoming
election, has been fully credited and was undenied
by Gambino.
Accordingly, I find all three instances to con-
stitute unlawful interference with and restraint and
coercion of employees in their right to engage in
self-organization as guaranteed by Section 7 of the
Act.
Curtis Frock testified that although he was hired
as a shill, and paid shill wages, he actually was a
dealer at all times. He signed a union authorization
card in April 1967 at Foster's request. Also during
April 1967, he asked Foster for Hill's23 telephone
number. Gianfredo apparently saw Frock talking to
Foster and called Frock over to inquire what Foster
wanted. Frock replied that he asked Foster for a
telephone number. Gambino, who was also in the
23 Hill was then president of Federation
CLANEBACH, INC., D/ B/A CAROUSEL 351
vicinity, then asked Frock to follow him. They
walked to the rear of the restaurant where Gam-
bino asked Frock what Foster wanted. Frock again
replied that he asked Foster for a telephone
number. After they returned to the gambling area,
Gambino said to Frock, "Mr. Foster is causing a lot
of trouble down here: He's a Union man." Gam-
bino added that if Frock joined any union, he
should join the Seafarers Union.
I find the above to constitute a violation of Sec-
tion 8(a)(1) of the Act in that it constituted inter-
ference with and restraint and coercion of an em-
ployee in his right to self-organization guaranteed
by Section 7 of the Act.'
Paravia's remark to Matvay, early in March,
when he told Matvay, "I talked to Mike Sarge, and
I heard the way you are going to vote. I guess you
don't like your job," constitutes an independent
violation of Section 8(a)(1). The statement con-
veys a clear threat of discharge because of Matvay's
known union sympathies.
There was considerable testimony concerning
two visits by Foster to Respondent's establishment.
On one occasion Paravia ordered him out and on
the other he was jostled and prevented from walk-
ing to the cashier's cage to inquire concerning his
paycheck. I do not find a violation of the Act on
either occasion, even though I credit Foster's
testimony that he was pushed and shoved. As
Foster was discharged on April 9, 1967, Respond-
ent had a right to bar him from the premises. The
force used on both occasions was not unreasonable
under the circumstances. I shall therefore dismiss
the allegations of paragraph 5(e) and (f) of the
consolidated complaint.
Foster testified to an incident in March 1967
when an employee known as Robin Hood was
sitting in the restaurant area of the Respondent
with Foster and some other dealers. Foster gave
Hood an authorization card. Foster saw Paravia was
looking in their direction and told Hood to go in
the men's room to sign the card and return it. Hood
did go into the men's room and was about to hand
the card to Foster. Foster observed supervisors
looking in their direction, so he told Hood to take
the table in the rear and to pass the dues money
and card to him. As he was doing this, Malice, a
boxman, reached out his hand and said, "What is
that?" Hood said that he was joining the Union.
Malice said, "You had better not do that now, you
will get into trouble, you had better wait until you
are a full fledged dealer before you join the
Union." Hood withdrew the card and money and
did not join the Union then or later. Hood, at the
time, as a shill and break-in dealer, was in a catego-
ry included in the appropriate unit approved by the
Regional Director.
Malice testified that he had a conversation with
Hood in the restaurant in March 1967. He denied
that Foster was present. In Malice's version, Hood
asked him if it was a good thing to join the Union
and that he replied, first that it was none of his
business and that he did not know if Hood could
join the Union as he wasn't sure whether one who
was not a qualified dealer could join.
I do not credit Malice's version. Inasmuch as
Malice's own testimony shows that he was aware of
widespread union activity, that there was considera-
ble union talk in Respondent's establishment at this
time, and that he saw Foster passing out authoriza-
tion cards on at least three different occasions, it
appears to me his version of the conversation with
Hood is quite preposterous. As I have found Foster
to be a credible witness in other respects, while I
have found Malice prone to place Respondent in a
more favorable light, I credit Foster's account of
the Hood incident.' I conclude that Respondent,
by virtue of Malice's conduct at a time when he was
employed by Respondent as a supervisor, violated
Section 8(a)(1) in that the conduct interfered with
and restrained and coerced an employee from en-
gaging in protected activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section II, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found above that Respondent did engage
in and continues to engage in certain unfair labor
practices, I will recommend that it cease and desist
therefrom, and take certain affirmative action, in-
cluding the posting of appropriate notices, designed
to effectuate the policies of the Act.
Counsel for Federation, the Charging Party
herein, urges as an appropriate remedy under, the
circumstances of this case, the inclusion of a bar-
gaining order. The General Counsel did not join in
this recommendation and in effect opposed Federa-
tion's request. Respondent opposed the issuance of
a bargaining order.
During the course of the hearing, I ruled, over
the objection of Respondent and the General Coun
sel, that evidence was admissible in support of
Federation's request for the inclusion of a bargain-
ing order in the remedy. I stated that, in my
opinion, the General Counsel is in control of the
complaint at all times prior to the commencement
of the trial. However, once evidence is introduced
establishing a prima facie case, the General Counsel
u This incident , while not specifically alleged as a violation was fully
litigated it also casts light on Foster 's discharge.
2 Hood did not testify.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no longer in absolute control26 and certainly he
cannot control the remedy.
In making the above ruling and permitting the
Charging Party to adduce evidence in support of its
request for a bargaining order, I rely on the follow-
ing:
(1) General Maintenance Engineers, Inc., 142
NLRB 295. This concerned allegations of 8(a)(3)
and (5). The General Counsel, after presenting a
prima facie case of these violations, sought to
withdraw the allegations with respect to two
specific incidents. The Charging Party objected, but
the Trial Examiner allowed the withdrawal. The
Board reversed the Trial Examiner 's order and re-
manded the matter for a further hearing on these
allegations , on the ground that the withdrawal of
these allegations might have prejudiced Charging
Party's case, as it was not allowed to present rele-
vant evidence and fully litigate its contentions with
respect to these issues.
(2) Frito Company, Western Division v.
N.L.R.B., 330 F.2d 458, 465 (C.A. 9), where the
court considered whether the Board has the
authority to amend the General Counsel's com-
plaint and make a finding on issues not pleaded by
the General Counsel.
The court stated:
Once having elected to prosecute a com-
plaint'before the Board, the General Counsel is
cast in the role of prosecutor in a judicial
proceeding. His authority as a prosecutor is not
reviewable by the Board, but this authority
does not extend to control of the proceeding it-
self. He cannot limit the scope of the decision
which may be rendered upon the evidence ad-
duced.
The court then ruled that the Board may amend
the charges over objection of the General Counsel
if "necessary to enable the Board to 'effectively
discharge its duty to declare policy," reversing the
Board's holding to the contrary.27
The Frito case has been cited in many recent
cases for authority that the Trial Examiner may
make findings on matters not specifically pleaded,
but raised by the issues. Montgomery Ward and Co.,
160 NLRB 1729; Looney Sheet Metal Constr. Co.,
Inc., 160 NLRB 1635; Reinforced Steelworkers,
Local 426, 164 NLRB 903; International Union of
United Brewery, Flour, Cereal, Soft Drink and Distil-
lery Workers of America, 166 NLRB No. 97.
In view of the flagrant violations of Section
8(a)(1) of the Act described above and the dis-
criminatory discharges of Langhorst, Matvay, Mills,
and Foster, each of which constitutes independent
violations of Section 8(a)(1) as well as violations of
Section 8(a)(3) of the Act, I find that nothing less
than a bargaining order can adequately restore the
situation which would have existed but for Respond-
ent's unfair labor practices 28
I have taken account of the Regional Director's
dismissal of Case 31-CA-582 which was a charge
filed by Federation alleging, inter alia, that Respond-
ent unlawfully refused to bargain with Federation
in violation of Section 8(a)(5) and (1). I have
noted, above, that this charge was dismissed on
February 21, 1967, and no appeal was taken to the
General Counsel from the Regional Director's
dismissal . However, the record discloses that none
of the events, described above in this Decision, and
which I have found to constitute violations of the
Act, were considered by the Regional Director. In-
deed, the General Counsel, at the hearing, agreed
that all such events with the exception of
Langhorst's discharge, occurred after February 21,
1967, the date the 8(a)(5) charge was dismissed.
Accordingly, I have given but little weight ' to the
fact that the Regional Director refused to issue a
complaint on the refusal-to-bargain charge con-
tained in Case 21-CA-582. On this record, the
propriety of a bargaining order is not eliminated by
the General Counsel's failure to join Federation in
its request for the bargaining order. In the final
analysis it is for the Board to determine in each
case what remedies may be required to effectuate
the policies of the Act.29
There is little doubt that this record establishes
that Respondent's unfair labor practices, as found
above, were designed and aimed at destruction of
the Union's majority status and discloses a disposi-
tion to reject the collective-bargaining principle.30
It is immaterial that the complaint does not allege
that Respondent refused to bargain with the Union
in violation of Section 8(a)(5).31 Despite the
absence of such an allegation, I believe that it is
necessary to order Respondent to bargain with the
Union because Respondent's unfair labor practices
have dissipated the Union's admitted majority and
made a fair election impossible of attainment.32 In
this posture of the case, it would be grossly unfair
to compel the Union to submit to an election and
thus, place Respondent in a position to reap the
benefit of its own unlawful conduct. Accordingly, I
will recommend that Respondent be directed to
bargain collectively with Federation upon request.
Respondent having unlawfully discharged and
thereafter having refused to reinstate employees
Danny Foster, John G. Matvay, Alton G. Mills, Jr.,
and Frank Langhorst, I shall recommend that
zs P 151 , 1. 3 of the record is hereby corrected so that the sentence will
read "Once evidence is introduced , the General Counsel no longer is in
absolute control of the Complaint with respect to those matters that he has
alleged violations "
27 In the instant case no amendment to the charges is necessary as only
the remedy is affected.
Y' Wausau Steel Corporation , 160 NLRB 635, enfd . 377 F.2d 369 (C A.
7 ).
" Fibreboard Paper Products Corp. v N.L.R.B., 379 U.S. 203, 216.
30 Western Aluminum of Oregon Incorporated, et al., 144 NLRB 1191,'
1192.
a' This is not to say that a refusal to bargain within the meaning of Sec
tion 8(a)(5) has or has not been established.
'Z Northwest Engineering Company, 158 NLRB 624, 629-630; Flomatic
Corporation , 147 NLRB 1304, 1307.
CLANEBACH, INC., D/B/A CAROUSEL 353
Respondent offer them immediate and full rein-
statement to their former positions, or, if any of the
positions are unavailable - through change in
Respondent's operations, then to substantially
equivalent positions, without prejudice to their
seniority rights and privileges, and make them
whole for any loss of pay that they may have suf-
fered by reason of Respondent's discrimination
against them, by payment to the aforesaid Foster,
Matvay, Mills, Jr., and Langhorst of a sum of
money equal to that which they normally would
have received as wages from the date of their dis-
criminatory discharge until the day that Respond-
ent reinstates them, less any net earnings in the in-
terim period. Backpay is to be computed on a quar-
terly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, with
interest at the rate of 6 percent per annum to be
computed in the manner set_forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
As the unfair labor practices committed by
Respondent are of a character striking at the roots
of employees' rights safeguarded by the Act, I will
recommend that Respondent cease and desist from
infringing in any manner upon the rights guaran-
teed in Section 7 of the Act.
Upon the above findings of fact, and the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaging in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. American Federation of Casino and Gaming
Employees and Culinary Workers Local 226 are
labor organizations within the meaning of Section
2(5) of the Act.
3. All casino employees, including dealers, keno
writers, keno runners, and shills employed by the
Employer at its Las Vegas, Nevada, location, ex-
cluding all other employees, change girls, booth
cashiers, office clerical employees, guards and su-
pervisors as defined in the Act,1 constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act,
as amended.
4. On or about October 21, 1966, Federation
was designated by a majority of Respondent's em-
ployees within the unit, described above, as their
representative for collective-bargaining purposes,
and Respondent, on or about October 21, 1966,
recognized Federation as the exclusive bargaining
representative of its employees in said unit.
5. By virtue of Section 9(a) of the Act, Federa-
tion has been, since on or about October 21, 1966,
and continues to be the exclusive representative for
collective-bargaining purposes of Respondent's em-
ployees in the unit found appropriate above and is
entitled to recognition as such exclusive collective-
bargaining representative with respect to the rates
of pay, wages, hours of work, and other terms and
conditions of employment.
6. By the discharge of Langhorst, Mills, Matvay,
and Foster, Respondent violated Section 8(a)(3)
and (1) of the Act.
7. Through certain conduct, chargeable to
Respondent, as detailed above, Respondent has en-
gaged in interference with and restraint and coer-
cion of employees in derogation of their rights
under Section 7 of the Act and has thereby violated
Section 8(a)(1) of the Act.
8. Allegations found herein not to constitute
violations of the Act are hereby dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case, I recommend that Clanebach, Inc., d/b/a
Carousel, its officers, agents , successors , and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in American
Federation of Casino and Gaming Employees, or in
any other labor organization , by discharging or in
any other manner unlawfully discriminating , against
any of its employees in regard to hire or tenure of
employment or any term or condition of employ-
ment.
(b) Refusing upon request , to bargain collective-
ly with Federation as the exclusive collective-bar-
gaining representative of all the employees in the
unit set forth and described in paragraph 3 of the
"Conclusions of Law" above.
(c) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations , to join or assist Federation or any
other labor organization , to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Upon request , bargain collectively with,
Federation as the exclusive representative of all its
employees in the above-described unit.
(b) Offer to reinstate Danny Foster , John G.
Matvay, Alton G. Mills, Jr., and Frank Langhorst to
their former or substantially equivalent positions
without prejudice to their seniority or other rights
and privileges , and to make them whole in the
manner described in "The Remedy" section of this
Decision for any loss of earnings suffered by them
by reason of the discrimination against them.
"This is the unit found appropriate by the Regional Director in his
Direction of Election dated December 8, 1966 . (G C. Exh. 4.)
350-999 0 - 71 - 24
354 DECISIONS OF NATIONAL
(c) Notify any of the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination an'
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at its plant in Las Vegas, Nevada, co-
pies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 31, after being duly
signed by the Company's representative, shall be
posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of receipt
of this Recommended Order,35 what steps have
been taken to comply herewith.
3' 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 notice 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."
rs In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 3 1, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discharge you or refuse to
reinstate you because you join or help Amer-
ican Federation of Casino and Gaming Em-
ployees, or any other union.
WE WILL NOT ask you whether you are for or
against the Union.
LABOR RELATIONS BOARD
WE WILL NOT discriminate against you or
threaten you with discharge or with any other
kind of harm because you join or help a labor
union.
WE WILL NOT in any other way interfere with
your rights:
To organize yourselves
To form, join, or help unions
To bargain for your wages, hours, and
working conditions as a group through
representatives chosen by you
To act as a group for aid or protection
concerning matters dealing with your job
To refuse to do any or all of these
things.
WE WILL, upon request, bargain with Amer-
ican Federation of Casino and Gaming Em-
ployees, concerning wages, hours, and working
conditions in the appropriate unit and, if agree-
ment is reached, we will sign a contract. The
appropriate unit is:
All casino employees, including dealers,
keno writers, keno runners, and shills; ex-
cluding all other employees, change girls,
booth cashiers, office clerical employees,
guards and supervisors as defined in the
Act.
WE WILL offer to Danny Foster, John G.
Matvay, Alton G. Mills, Jr., and Frank
Langhorst immediate and full reinstatement to
their former jobs, or equivalent jobs, with all of
their rights and all backpay due them.
CLANEBACH, INC., D/B/A
CAROUSEL
(Employer)
Dated By
(Representative) (Title)
Note: We will notify any of the above-named
employees if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor Bartlett Building, 215 West
Seventh Street, Los Angeles, California 90014,
Telephone 688-5840.