Riverside Hotel

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 426 (N.L.R.B. 1967)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reno's Riverside Hotel , Inc. d/b/a Riverside Hotel
and American Federation of Casino and Gaming
Employees . Cases 20-CA-4080 and 4083
June 30, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 17, 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 desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the Respondent filed exceptions and the
General Counsel filed cross-exceptions to the Deci-
sion and supporting briefs. The Respondent filed a
brief in answer to the General Counsel's cross-ex-
ceptions.
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
briefs, and the entire record in the case, and hereby
adopts the findings.' conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications:
The Trial Examiner found that Respondent Pres-
ident Richter did not promulgate a rule prohibiting
employees from engaging in union activity on com-
pany property on nonworking time We do not
agree.
According to Richter's credited testimony,
shortly before both the first and second elections,
he instructed his supervisors to inform the em-
ployees that they were not to discuss, or campaign
for, the Union in the hotel 24 hours before the elec-
tion . There is no doubt that the employees were so
informed. We find that the Respondent thereby
promulgated a broad and unlawful no-solicitation
rule in violation of Section 8(a)(1) of the Act, in-
asmuch as the prohibition extended to nonworking
as well as to working time. This violation is not ex-
cused by any misunderstanding the Respondent
may have had of the Board 's Peerless Plywood
rule,2 particularly in view of the fact that implemen-
tation thereof occurred as late as May 1, 1966, 1
month after the second election , by the unlawful in-
structions given to Artz and McGarry by both
DeSimone and Lagano.
CONCLUSIONS OF LAW
Amend the Trial Examiner's Conclusions of Law
by inserting the following as paragraph number 6,
renumbering the present paragraphs numbered 6
and 7 to 7 and 8. respectively , and deleting from the
latter reference to allegation V(e) of the complaint.
"6. By promulgating, maintaining , enforcing, and
applying a rule that prohibits employees from en-
gaging in union activities on the Company's
premises during the employees' nonworking time,
the Respondent violated Section 8(a)(1) of the
Act."
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 the Respondent,
Reno's Riverside Hotel, Inc. d/b/a Riverside Hotel,
Reno, Nevada. its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following paragraph as paragraph (c)
to the Trial Examiner's Recommended Order, the
present paragraphs (c) and (d) being relettered as
(d) and (e).
"(c) Promulgating, maintaining, enforcing, or ap-
plying any rule or regulation prohibiting employees
from engaging in union activities on Company's
premises during the employees' nonworking time."
2. Amend the second indented paragraph of the
Trial Examiner's recommended notice to read as
follows:
WE WILL NOT threaten our employees with
economic reprisal because they have joined the
above-named labor organization or any other
union.
3. Insert the following paragraph as the third in-
dented paragraph in the Trial Examiner's recom-
mended notice:
WE WILL NOT promulgate, maintain, en-
force, or apply any rule or regulation that
prohibits employees from engaging in union ac-
tivities on company premises during the em-
ployees' nonworking time.
' The Trial Examiner granted Respondent's motion to strike portions of
the General Counsel's brief unng an 8(a)(1) violation based on Respond-
ent's attempt to deprive McGarry of his vote in the March 31 election by
assigning him as a pit boss for one shift and subsequently challenging his
ballot as supervisor based on that assignment The General Counsel has
excepted to this ruling We do not adopt the Trial Examiner' s discussion
of the motion or his disposition thereof However, in view of the Respond-
ent's numerous violations of Section 8(a)(1), we find it unnecessary to
decide whether or not this conduct further violated the Act
2 107 NLRB 427
166 N LRB No. 47
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RIVERSIDE HOTEL
DAVID F. DOYLE, Trial Examiner: This proceeding,
brought under Section 10(b) of the Act, was heard at
Reno, Nevada, on December 7 and 8, 1966, pursuant to
due notice to all parties.'
The complaint dated August 12, 1966, was based on a
charge filed by the Union on May 18 and amended on
August 10, 1966, and a second charge filed on May 20
and amended on August 10, The complaint in sub-
stance alleged that the Company had violated Section
8(a)(3) and (1) of the Act by unlawfully discharging em-
ployees Kenneth Artz and Edison F. (Chow) McGarry
because of their membership in or activities on behalf of
the Union and had violated Section 8(a)(1) of the Act by
certain conduct which the General Counsel claimed was
interference, restraint, and coercion in violation of Sec-
tion 8(a)(1) of the Act.
The Company duly filed an answer denying all charges
of unfair labor practice.
At the hearing all parties were represented and 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
and counsel for the Company filed scholarly briefs which
have been duly considered.
Upon the entire record of the case and upon my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE COMPANY
In its answer the Respondent admitted that it is, and
has been at all times material to this proceeding, a cor-
poration duly organized and existing under the laws of the
State of Nevada and is engaged in the operation of River-
side Hotel, a gaming casino, restaurant, and bars located
within the hotel at the city of Reno, Nevada. At the hear-
ing, it was established by stipulation that Respondent has
annual gross revenue of more than $500,000 and annual
indirect inflow exceeding $50,000.
In addition to the above facts, at the hearing the
General Counsel requested that the Trial Examiner take
official notice of the Board's decision in Harrah's Club,
150 NLRB 1072, enfd. 362 F.2d 425 (C.A. 9); El
Dorado Inc., et al. 151 NLRB 579; Harrah's Club, 143
NLRB 1356, enforcement denied on other grounds 337
F.2d 177 (C.A. 9); Carson City Nugget Casino, Inc., 161
NLRB 532; Sparks Nugget, Inc., 161 NLRB 1195; and
the certification of the Union herein as representative of
the Company's gaming employees in Case 20-RC-6642
(General Counsel Exh. 2) issued June 23, 1966, pursuant
to instructions of the Board. The Trial Examiner has
taken official notice of the named cases in which the
Board asserted jurisdiction over various employers, in-
cluding Respondent herein, who are engaged in gambling
casino operations in the State of Nevada.
On his own motion the Trial Examiner has also taken
official notice of the Board's Decision and Order involv-
' In this Decision, Reno's Riverside Hotel is referred to as the Com-
pany, the Casino, or the Respondent American Federation of Casino and
Gaming Employees as the Union, the General Counsel of the Board and
his representative at the hearing , as the General Counsel ; the National
427
ing the same parties, reported ati163 NLRB 280, inwhich
the Board also found that this Respondent was an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the facts as set forth above and the legal authori-
ties it is found that the Respondent is an employer en-
gaged in commerce within the meaning of the Act and is
one of those Respondents who are engaged in gambling
casino operators in the State of Nevada over whom the
Board has asserted jurisdiction.
Motion to Reopen Record
On March 22, 1967, counsel for the Respondent filed
a motion with the Trial Examiner to reopen the record for
the purpose of receiving additional evidence on the ju-
risdictional issue raised at the hearing. The basis for the
motion was that the United States Court of Appeals for
the Ninth Circuit in N.L.R.B. v. Harrah's Club, 362 F.2d
425, rendered a decision which made it clear that addi-
tional evidence on the jurisdictional issue would have to
be produced in Nevada gaming casino cases. Counsel has
stated that it was the purpose of the Respondent to take
the deposition of the secretary of the National Associa-
tion of State Racing Commissioners and of officers of
Churchill Downs, Belmont Park, and one or two other
racetracks in New York, Maryland, Florida, and Califor-
nia, as well as the depositions of racetrack and State offi-
cials of the State of Nevada. It is his contention that these
dispositions will bear upon the issue of jurisdiction and
will be directed toward showing that the Board' s asser-
tion of jurisdiction over the gaming industry, while the
Board declines to assert jurisdiction over racetracks, is
prejudicial to and in violation of the constitutional rights
of the owners of the gaming industry.
On March 29, 1967, the General Counsel filed a brief
in opposition to the reopening of the record. The General
Counsel placed his opposition to the motion on the fol-
lowing grounds: (1) That the decision of the court in
N.L.R.B. v. Harrah's Club, supra, was issued on June
14, 1966, long before the hearing herein; (2) that the U.S.
Supreme Court has in effect approved the Harrah's Club
decision , by its denial of certiorari on February 13, 1967,
362 U.S. 425; and (3) that the questions basic to the in-
stant motion were raised before the Board in the second
Harrah's Club case, reported at 158 NLRB 860, by a mo-
tion to remand to the Trial Examiner and reopen record
dated June 20, 1966, which motion the Board denied as
lacking in merit on July 18, 1966.
Upon a consideration of the motion papers, and the fil-
ing thereof as exhibits in this case, marked "Exhibits on
Motion," the motion is hereby denied on the ground that
the Board has considered the Respondent's contentions
in prior proceedings and ruled adversely to Respondent.
No new contention is raised herein by the instant motion.
II. THE LABOR ORGANIZATION INVOLVED
In paragraph III of the complaint the Respondent de-
nied that the Union herein is a labor organization within
the meaning of Section 2(5) of the Act. However, the
record contains uncontradicted testimony that the Union
is an organization in which employees participate, which
Labor Relations Board as the Board; and the Labor Management Rela-
tions Act , as amended , as the Act.
8 All dates in this Decision are in the year 1966 unless specified other-
wise.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deals with employers concerning wages, hours, and work-
ing conditions of employees and which has labor agree-
ments with various employers in the State of Nevada, and
which has been certified by the Board as the representa-
tive of employees of this Respondent and of other em-
ployers in the State of Nevada. The Trial Examiner has
taken official notice that the Union has been found by the
Board to be a labor organization within the meaning of
Section 2(5) of the Act in many cases, including El
Dorado Inc., et al., 151 NLRB 579, 584; Carson City
Nugget Casino, Inc., 161 NLRB 532; Sparks Nugget,
Inc., 161 NLRB 1195. It is found therefore anew that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Undisputed Background
It is undisputed that the Company operates the River-
side Hotel and the gaming casino, restaurant, and bars
located within the hotel at Reno, Nevada.
At the hearing it was stipulated that the following
named persons were supervisors acting for the Company
at the time covered by the complaint. Bernard Richter oc-
cupied the position of secretary-treasurer and general
manager and was a principal owner of the Company. An-
drew DeSimone was vice president of the Company and
a part owner. He was the casino manager and had charge
of all operations in the casino. These two officials of the
Company testified. Elmer T. Beverly and Felix Lagano
both occupied the position of pit boss, a supervisory posi-
tion. Both of these men are the immediate superiors of the
dealers and others employed in the casino. Although
Beverly and Lagano are mentioned by witnesses in the
course of this proceeding, they did not testify. Casino
Manager DeSimone and McGarry, one of the employees
named in the complaint, had been personal friends for
some 16 years. It is undisputed that McGarry was hired
by DeSimone in early September 1965 to work as a crap
dealer in the Riverside Casino. Prior to this hiring, Mc-
Garry had worked for DeSimone during the summer for
5 years at the Bal Tabarin Casino at Lake Tahoe. Artz
was hired by DeSimone on the recommendation of a
friend in August 1965. Throughout the period with which
we are concerned, Artz and McGarry both worked as
dealers at the same crap table on the swing shift, under
the supervision of DeSimone and Pit Bosses Beverly and
Lagano. Their pay, as dealers, was $22.50 per day plus
the "tokes" or tips which were given to them by players.
These "tokes" are collected in a toke box and divided
equally among the dealers at the end of each shift. The
tokes are a substantial part of a dealer's income amount-
ing to approximately $10 per day during the summer on
good days, and varying amounts lesser at other times.
It is undisputed that the Union launched an organizing
campaign among the casino employees at the Riverside
Hotel during September and October 1965. Artz had
previously joined the Union and had become a member
of its executive board in 1965 before he was employed at
the Riverside Hotel. Artz passed out authorization cards
among the employees on the premises and recruited some
members of the Union off the premises. Among the mem-
bers he recruited was McGarry. On January 18, 1966,
the Board's Regional Office (San Francisco) conducted
an election among the casino employees of the Company.
At this election, Artz was the observer for the Union and
actively participated as a representative of the Union in
the preelection conferences which preceded the election.
Artz testified without contradiction that he was appointed
business agent of the Union in January 1966 after the first
election and that the appointment was confirmed in writ-
ing on February 21, 1966. The election of January 18,
1966, was set aside by the Board because of certain illegal
conduct on the part of the Union in the 24-hour period
prior to the election.
McGarry testified and it is uncontradicted that he
became a member of the Union in late September or early
October 1965, and he immediately became active in the
organizing campaign soliciting employees and obtaining
signatures on authorization cards. He was an observer for
the Union at the second election in the unit which was or-
dered to take place on March 31, 1966. During February
1966, McGarry had been nominated as the sole nominee
for president of the Union and was officially elected pres-
ident on May 11, 1966. This date is 4 days prior to the
discharge of McGarry and Artz.
The Disputed Testimony
Incidents Before the Alleged Discharges
The only witnesses for the General Counsel were the
two dischargees, McGarry and Artz. The principal wit-
ness for the Respondent was Andrew DeSimone, the
casino manager, who is alleged to have discharged both
McGarry and Artz. In addition to DeSimone, Bernard
Richter, the general manager of the Company, Bard
DeSimone, Andrew's wife, and another employee,
Michael (Mandy) Rizzo, testified on behalf of the Com-
pany. There is a general conflict between these two sets
of witnesses.
Kenneth Artz testified that 2 or 3 days after he became
business agent of the Union, he told DeSimone, Beverly,
and Lagano of his appointment to that position. When
Artz gave Lagano a business card, Lagano said that he
had already received one of those from Tom Hanley, an
official of the Union. In his testimony, DeSimone ad-
mitted that he knew Artz was the business agent of the
Union before the termination of Artz, but he denied that
Artz ever told him that he was the business agent of the
Union. DeSimone also said that he knew that Artz was a
member of the Union at the time of the preelection con-
ferences and that Artz was a union observer at the first
election. DeSimone in the course of his testimony ad-
mitted that he learned around May 8 that Artz had gone
to Las Vegas with McGarry to attend a union meeting.
In his testimony, Richter said that he did not learn that
Artz was an official of the Union until he learned it at the
hearing. However, he admitted that he had reason to be-
lieve that Artz was a member of the Union because Artz
had attended two preelection conferences as a represent-
ative of the Union at which Richter represented the
Company. Richter also testified that he had seen Artz
with Union Leader Tom Hanley on many occasions in
the hotel and at both the preelection conferences.
McGarry testified that on May 8, he and Artz went to
Las Vegas, Nevada, to attend a meeting of the Union.
When McGarry next went to the casino, DeSimone ad-
dressed him as, "Mr. President," and inquired if they had
accomplished anything at the meeting. McGarry replied
that they had, and went to work. DeSimone testified that
it was about this date that he first learned that McGarry
was a member and president of the Union.
RIVERSIDE HOTEL
McGarry testified that on or about January 16, approx-
imately 2 days before the first election, he was in the gam-
bling casino with DeSimone when the latter told McGar-
ry that if the Union won, he would close up some of the
casino gaming tables, let the dealers go, and put the super-
visors to work dealing. According to McGarry,
DeSimone appeared to be serious when he made the
threat. In the course of his testimony, DeSimone said that
he had made the statement about shutting down some of
the tables, but he explained that he was "just kidding"
and laughed about it when he said it. DeSimone then ex-
plained that he could not run three shifts of gambling with
five supervisors and he could not close down the tables
and put supervisors to work without the approval of his
partners.
McGarry testified that about January 17, DeSimone
told him that Richter had told DeSimone that inasmuch
as McGarry was a longtime friend of DeSimone that Mc-
Garry should be loyal to "the joint" and that the super-
visors had seen McGarry talking to Union Agent Hanley
in the coffee shop of the hotel and that McGarry should
not talk to union officials on the Company's premises.
This conversation and the admonition given McGarry
was denied by DeSimone but he admitted that, in a con-
versation between Richter and DeSimone, Richter had
said that since McGarry was a friend of DeSimone, he
should befor the Company.
Michael (Mandy) Rizzo, one of the dealers, was called
as a witness for the Company. He testified that he was
present on the occasion when DeSimone said that he
would close down some of the tables, let the dealers go,
and put the supervisors to work. He testified that
DeSimone was laughing about it.
On one shift on the night of March 8, 1966, Pit Boss
Beverly was to be absent. DeSimone testified that he
chose McGarry rather than Rizzo to take Beverly's place
because McGarry was more experienced and because
DeSimone had plans to make McGarry a pit boss later
on. On the following day, when Beverly returned to work,
McGarry and Beverly -net in the pit of the casino. Ac-
cording to McGarry, Beverly said that the Union "just
lost another vote, that they had set McGarry up, and put
him on as a supervisor, so that his vote would be canceled
out in the election." Artz testified that on the same night,
Beverly spoke to him saying that the Union had lost
another vote since they had made McGarry a supervisor
on his night off, so the Union could not count on his vote.
It is undisputed that in the March 31 election, McGarry's
vote was challenged by the Company's observer on the
basis of his having worked one shift as a supervisor. The
challenge was subsequently overruled by the Regional
Director.
McGarry testified that when he finished his work as
observer in the March 31 election, he returned to his
table in the pit. At that time, DeSimone asked him who
had won the election, the Union or the Company. Mc-
Garry replied, "We did." According to both McGarry
and DeSimone, DeSimone then said, "I thought you was
my friend, that is a fine thing to do. I treated you pretty
nice, didn't I?" According to McGarry, DeSimone con-
tinued, saying that he couldn't understand how McGarry
could do this to him after all he had done for McGarry
over the years, adding, "How could you screw me this
way?"
Artz testified without contradiction that on May 13 he
spent one of his coffeebreaks with Hanley in the cof-
feeshop and on the next break talked to Hanley in the
429
hotel lobby and then went with Hanley by elevator to
Hanley's room. Upon his return to the casino, Pit Boss
Lagano told him that Richter was pretty hot at him for
being with Hanley. Artz said that it was too bad; that the
time he spent was his own time. Lagano then said that he
was only telling Artz what DeSimone had told him. A few
minutes later DeSimone came into the pit and told Artz
that he should know better than to be seen with Hanley,
and told Artz to walk up to the second floor to take an
elevator to Hanley's room and return the same way. Artz
replied that he was not ashamed of being seen with Han-
ley and would rather have management see him getting on
the elevator with Hanley than sneaking around the back
way.
The Complaint About Tokes; the Discharge of McGarry
and Artz
On this topic, Artz, McGarry, and Rizzo are the only
witnesses to one important conversation. Their versions
of what occurred leading up to the termination of Artz
and McGarry are not at variance except on minor details.
It is undisputed that on May 15 about 2 a.m., Artz, Mc-
Garry, and Rizzo finished working their shift and met in
the hotel's Corner Bar, a cocktail lounge. The tokes had
been counted and divided among the dealers on the shift.
After some discussion about other things, Artz said that
the token "weren't so hot." Both McGarry and Rizzo
agreed with him. Then, according to Artz, he said that he
"wasn't satisfied with this money that he was getting, and
McGarry said neither am I." According to Artz, Rizzo
also stated that he was not satisfied either. Artz said that
when he referred to money, he was referring to the tokes.
In his testimony, Rizzo said that on this occasion Artz
said that the tokes weren't so hot and that Rizzo agreed
with him. Then Artz said, "I'm not satisfied here and Mc-
Garry said, me too." Rizzo remained silent and then Mc-
Garry and Artz said they were going home. Rizzo
testified further that as he left the bar and was walking
through the lobby, he met DeSimone, manager of the
casino, coming out of the office. DeSimone asked Rizzo
how the tokes were and Rizzo said, "Not so hot." At that,
DeSimone "kind of smiled" and Rizzo told him Artz
wasn't satisfied and neither was McGarry, but DeSimone
didn't say anything to that. Both men said goodnight and
went their separate ways.
The Discharges of May 15
Artz testified that about 11:30 a.m. on May 15
DeSimone, the casino manager, telephoned him at his
home. DeSimone said, "I understand you are not
satisfied. You told someone you were not satisfied." Artz
said, "Yes." DeSimone said, "You told someone you
were going to quit. I can't use you anymore. Don't come
in." Artz asked, "Who told you that?" DeSimone said, "I
can't tell you." Artz replied, "If I was going to quit, I'd
tell you." DeSimone said, "I can't use you. I'm the boss."
Artz said, "You are the boss, Andrew." DeSimone said,
"That's right. That is the way it's going to be." Artz
replied, "That's good enough for me."
McGarry testified that around 11:30 on the morning
after he had discussed the question of tokes with Artz and
Rizzo, DeSimone phoned him at his home. DeSimone
told McGarry that he should quit, that DeSimone could
no longer use him at the Riverside. McGarry replied that
he wouldn't quit and then DeSimone said, "That is the
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way it is going to be. I am the boss. That was it." McGar-
ry said, "Well, if that is it, that's it." McGarry testified
that he neither asked DeSimone for any reason why he
wanted McGarry to quit, or for any reason why he was
firing McGarry. A few minutes after McGarry's conver-
sation with DeSimone on the telephone, Artz called Mc-
Garry on the telephone. Artz told McGarry what
DeSimone had said to him and McGarry explained to
Artz what DeSimone had said to him. The two employees
then agree to go to the Riverside Hotel that night to get
their checks.
That evening, Artz and McGarry went to the cashier's
office, but at that place they were told by the young lady
in charge that she did not have their checks. The two em-
ployees then proceeded to the pit and asked DeSimone
where their checks were. McGarry said that inasmuch as
they were being fired, that State law required that their
checks should be paid them "right now." DeSimone
countered this by asking, "Are you trying to start trouble,
Chow? You know the bookkeepers don't work Sundays."
DeSimone said that their checks would be ready the next
day. On the following day, they went to the casino and
received the checks which were waiting for them.
McGarry testified further that on May 17 he applied
for State unemployment benefits. He went to the office of
the department and filled out an application. McGarry
testified that he gave as the reason for his termination by
the Company that DeSimone had called him on the
telephone and fired him for union activities. Later, Mc-
Garry went back to the unemployment office and in-
spected the form signed by DeSimone. The General
Counsel introduced into evidence the application of Mc-
Garry for unemployment benefits and Notice to Last Em-
ployer of Claim Filed, which contained a statement by
DeSimone on behalf of the Respondent. The exhibit
established that McGarry, in the space of explaining why
he left his job with his last employer, stated the following,
"Mr DeSimone called me on the telephone and said I was
let go, it was for union activities." The Notice to Last
Employer, signed by Andrew DeSimone, stated the fol-
lowing in the space entitled "Reason for the Employee's
Separation from employment" - "Claimant was paid in
full. Claimant was dissatisfied with job. He was
replaced."
Artz also testified that he applied for unemployment
benefits on May 17, 2 days after his discharge. Artz gave
as the reason for his leaving his last employer as, "Ter-
minated for union activities. No -reason given." Artz
testified that he first put on the form, terminated for union
activities, but the interviewer told him that if the Em-
ployer had given him no reason he should state,-no reason
given. Upon that advice, Artz struck out the words "for
union activities" and inserted the words "no reason
given ." In connection with the claim of Artz, DeSimone
filled out the State form in the same way as he had filled
out the form for McGarry, stating, "Claimant was paid in
full. Claimant stated that he was dissatisfied with the job.
He was replaced."
The form to be filled out by the employer is noteworthy
because of another factor. On each form to be filled out
by the employer, there is a box which should be marked
to indicate the reason for termination of the employee.
These boxes are marked as follows, "He was fired; He
quit voluntarily; Other (reason)" On these forms filled in
by DeSimone, none of these boxes are checked. The
Nevada Employment Security Department found that the
employees were "discharged for reason other than
misconduct connected with the work within the meaning
of Section 612.385 of the Nevada Revised Statutes," and
the employees were paid their benefits.
DeSimone 's testimony as to the events leading up to
the termination of Artz and McGarry and the events
which constitute the termination is not greatly at variance
with the testimony of Artz and McGarry, but it will be
noted that DeSimone 's testimony is marked by a vague-
ness and a cryptic explanation which I deem to be entire-
ly inadequate . Upon direct examination, DeSimone
testified that Artz and McGarry worked the shift
beginning at 6 p.m . on May 14 and ending 2 a.m. on May
15, and that he also worked that shift. At the end of the
shift, he was busy with his partner Richter in the counting
room or office of the casino. Around 3 a.m. he left the of-
fice and ran into Mandy Rizzo. Rizzo told him that Artz
and McGarry "were dissatisfied with working there,
about the tokes or something like that" so he did not say
anything, but he proceeded on his way home. He ex-
plained that because McGarry was a friend of his and
because he had put McGarry to work, he didn't like the
fact that McGarry was dissatisfied. On the following
morning, a little after 11, he called Artz and said, "You
said to Mandy you were dissatisfied. If you're
dissatisfied, we will leave it that way." According to
DeSimone, at that point Artz tried to say something to
the effect that he had not said he was dissatisfied but
DeSimone said , "I know you did , that I have proof." Artz
tried to tell him something else, but DeSimone couldn't
understand him, so he hung up. When he was asked
directly if he told Artz who had told him that Artz was
dissatisfied , DeSimone testified that he had said it was
Mandy Rizzo.
After talking with Artz, DeSimone phoned McGarry
to whom he said , "I hear you are dissatisfied with the job-
and the tokes. If you are, we will leave it that way." Ac-
cording to DeSimone, McGarry started to mumble, but
DeSimone could not understand what he was talking
about , so DeSimone said again , "As long as you are
dissatisfied, we will leave it that way." At that point,
DeSimone testified , "So that was all . We just hung up,
and they did not show up for work." DeSimone testified
that in his conversation with McGarry , he did not tell Mc-
Garry that he should quit or that DeSimone couldn't use
him any longer. Nor did McGarry say in that conversa-
tion that he would not quit. DeSimone also denied that he
said to McGarry, "That is the way it will be. I'm the
boss." DeSimone also denied that he told Artz that he
could not use Artz anymore.
DeSimone testified that later in the day, around 8 or 9
p.m., he had a conversation with both men in the casino.
Both men came to DeSimone in the pit and McGarry
said , "Have you got my check ?" DeSimone said he didn't
have the check and said, "You know today is Sunday,
and the bookkeepers don't work on Sundays." Then Mc-
Garry asked if he would get it on Monday and DeSimone
said he would; there was no further discussion.
DeSimone testified that on one occasion , Richter told
him that since McGarry was a friend of DeSimone's that
McGarry should be "for the joint." DeSimone denied
that he had ever told McGarry or Artz not to be seen in
the hotel with Hanley or any other union official. Also, he
never told any employee to walk up to the second floor to
get on the elevator with Hanley or any other union offi-
cial. DeSimone stated that on one occasion he said if the
Union was going to picket the outside of the club he
would put floormen to work as dealers , but at the time he
RIVERSIDE HOTEL 431
said it he was laughing and kidding . DeSimone also said
that a few days before the first election (January 18) he
said that if the Union won, he would close up some of the
tables, let the dealers go, and put the supervisors to work,
but when he said that, he was just "kidding around."
DeSimone explained that you could not put five foremen
to run three shifts at gambling tables so everybody had to
know that he was kidding. DeSimone said that before he
telephoned either Artz or McGarry on May 15, he did
not confer with Richter or his other partners in the hotel.
On cross-examination, DeSimone was asked why he
chose McGarry to fill in as pit boss on occasion when
Beverly was absent. He testified that Richter wanted to
place Mandy Rizzo in the job but he overruled it and told
Richter to put McGarry as pit boss because he had more
experience than Rizzo. DeSimone said that after the
second election, when McGarry came to the pit, he asked
him who had won the election. McGarry replied, "We
won." Then, DeSimone said, "I don't think that was a
nice thing . You have been my friend for a long time, and
I treated you pretty nice, didn 't I?" According to
DeSimone , McGarry put his head down on his chest and
walked away. A few moments later, DeSimone said that
he had told McGarry on this occasion that he had treated
McGarry pretty nice for years and he didn't think Mc-
Garry should have done that to him because he was such
a good friend of his. DeSimone said he was angry when
he said this to McGarry. DeSimone said that he learned
that McGarry belonged to the Union on Mother's Day,
May 8. McGarry went to Las Vegas with Artz. While
they were away, Artz' wife told a third party that the two
men had gone to Las Vegas to a union meeting and that
McGarry was president of the Union. This is when he
learned that McGarry was the president . DeSimone ad-
mitted that when McGarry returned from Las Vegas he
greeted him with the salutation, "Mr. President."
DeSimone said that when he said this , he was smiling and
so was McGarry, who made no reply; that they were
kidding. DeSimone admitted that he knew that Artz was
the business agent of the Union some time before May
15.
Later, in the course of his cross -examination,
DeSimone stated that Rizzo told him of the dissatisfac-
tion of McGarry and Artz in the early morning hours of
May 15. Then he testified as follows: "The more I
thought of it, I got kinda mad to myself, and I went home
after three o'clock. Of course it takes about 15 minutes to
get home so I didn 't want to ring them up then , disturb
them at that time. So I rang them up the next morning.
so I told them in that conversation that if they were
dissatisfied just to let it stay that way." In the course of
his cross-examination , DeSimone was asked the follow-
ing:
Q. Why did you call them?
A. If anybody is working for me and is
dissatisfied, I should let them know about it.
So I told them if they were dissatisfied, we would
leave it that way.
So the next day they didn't show up for work.
Q. Neither of them showed up for work?
A. No, sir.
Q. Were they both scheduled for work?
A. Yes, sir-no, only one, because Chow was off
on Sunday and Monday.
Q. So Chow McGarry was not due to show up for
work until Sunday evening in any event; is that right?
A. That's right.
Q. So your purpose in telephoning him if I un-
derstand your testimony is to let them know that you
heard they were dissatisfied?
A. That's right.
Q. Was there any other purpose in making this
call?
A. No.
As to McGarry , DeSimone testified , "I rang him up
and told him that I had heard that - "You and Artz are
dissatisfied with the tokes and the job," and I says, "If
you are, we will leave it that way." When he was asked if
he had not called McGarry and Artz for the purpose of
terminating them, he answered , "I did not terminate
them. I said, we will leave it that way ." When asked if he
expected the men to report for work after this conversa-
tion , the witness replied, "I don't know." DeSimone also
said that he was not surprised that McGarry and Artz
asked for their checks that night. Toward the end of his
cross-examination , the General Counsel asked
DeSimone directly if it was his position that McGarry
and Artz quit their employment at the casino. DeSimone
answered, "I think they quit on their own, yeah." The
Trial Examiner then interrupted the cross -examination of
the witness to try to clear up the ambiguity in his
testimony. At that point, the following colloquy occurred:
TRIAL EXAMINER: Now, let me ask a question
here. You said, according to your testimony to these
men, "I hear you are dissatisfied with the tokes."
And another place you said you heard they were
dissatisfied with the tokes and the job, "Let's leave
it that way."
Did you intend to convey to them that they were
fired?
THE WITNESS: I did not say they were fired.
TRIAL EXAMINER: Did you intend they should
understand that they were fired?
THE WITNESS: I says, "We will leave it that
way."
TRIAL EXAMINER: All right.
Let me ask you this:
What did you mean by that? When you said, "We
will leave it that way," what did you mean?
THE WITNESS: When a man is dissatisfied with a
job, why, he-why does he want to come back to
work for-
Would you want a man that is dissatisfied in
your-
TRIAL EXAMINER: Well, this is what I am getting
at. Is that what you had intended, that if they were
dissatisfied, that they wouldn't come back?
THE WITNESS: I hoped they wouldn't come back.
TRIAL EXAMINER: But you did not intend to fire
them by that?
THE WITNESS: No, I think if they would have
come back, I think I would have taken them back,
maybe. I don't know how I would have felt about it.
Mrs. DeSimone in part corroborated the testimony of
her husband as to what he said over the telephone on the
morning when he phoned both Artz and McGarry.
Bernard Richter, the principal owner, secretary-treas-
urer, and general manager of the Company, also was
called as a witness by the Respondent. Richter testified
that James Lloyd held the position of president and An-
drew DeSimone was vice president of the Company.
Richter said his primary function was direct charge of the
hotel , bars, entertainment, the casino , the slots, the cash-
ier's cage , and engineering. He also handles, as resident
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager, public relations, labor relations, and general
operation of the hotel, advertising promotions, and other
functions. He lives at the hotel and is about the premises
daily. Since he lives at the hotel, Richter said that he eats
at the coffee shop, usually three meals a day, and he
frequently goes into the coffee shop to see that the service
of patrons and the food served is good. Richter testified
as to how the gaming operations of the casino are under
the regulation of the State Gaming Control Board of the
State of Nevada and how that supervision is exercised.
Richter testified that he first received notification that
the Union claimed to represent some of his employees
when he received a letter from the National Labor Rela-
tions Board stating that the Union had filed a petition for
an election. After that, he consulted his counsel who in-
structed him as to what he could and could not do in re-
gard to the organizational drive of the Union. Richter
stated that he never issued any instructions to supervisors
to instruct employees that they were not to discuss the
Union or talk to union officials during their nonworking
time. Richter stated that on the night before the first elec-
tion, he met with representatives of the Reno Local Joint
Executive Board of Culinary Workers and Motel, Hotel
Service Workers and a representative of the Union and
he represented the Company and was accompanied by his
counsel, Robert V. Magor. Employee Artz represented
the Union as did Tom Hanley, one of its officers, who did
most of the talking. Richter testified that after the preelec-
tion conference on this evening, he found certain election
pamphlets in the hands of employees in the pit and com-
plained to Hanley about this. Later, the Regional
Director, on the basis of the Company's objections, on
February 17, set aside the election and ordered a new
election to take place on Thursday, March 31. Prior to
that date, there was a preelection conference on the night
before the election. At this meeting, employees Artz and
Hanley represented the employees. At the election of the
next afternoon, McGarry was one of the observers for the
Union at the election.
Richter testified that on March 8, McGarry was placed
temporarily as pit boss in the place of Beverly who was to
be absent. Richter made the decision, based upon a
recommendation of DeSimone. Richter said that he in-
structed all the employees, all supervisors, that they were
not allowed to discuss any labor matters with employees
24 hours before any election and that the Company
would not allow anybody to discuss any labor matters
with any of the Company's employees who were working
in the establishment on their working time. Richter de-
nied that he gave any instructions saying that employees
could not discuss the Union while they were not working
or in the coffeeshop or any other place while on their own
time. Richter said that he had seen McGarry in the
presence of Hanley on many occasions. Hanley was a
frequent guest in the hotel and he saw the men together
frequently. He said that he may have seen McGarry with
Hanley in the coffeeshop, but could not remember any in-
cident in particular, and he denied that in any way he was
keeping any of the union officials or the employees of the
Company under surveillance. Richter denied he ever told
Lagano or any other supervisor to tell any employee, in-
cluding Artz and McGarry, that if they were going to see
Hanley, they should go up to the second floor to catch the
elevator to Hanley's room, and when they left, they were
to come down in the elevator and get off on the second
floor. Richter also denied that he told Lagano to tell Artz
that he was "hot" at Artz for being seen with Hanley.
Richter testified that on one occasion he told Artz that
the management was not mad at anyone because of their
interest in the Union. Richter told Artz that Artz believed
in unionism and the casino management did not, but there
would be no hard feelings about their positions. Richter
also testified to the frequency of Hanley and other union
officials' visits at the Hotel. Between November 18,
1965, and November 20, 1966, Hanley and/or other offi-
cials were guests of the Hotel on approximately 13 occa-
sions, during which Hanley or other officials stayed for
periods of from 1-7 days. Apparently all bills were paid
except a small bill for the last rental of a room. Some-
times, Hanley was accompanied by A. M. Dreyer, coun-
sel for the Union, and sometimes by some other officer of
the Union.
Michael Rizzo, also referred to in the transcript of
testimony as Mandy Rizzo, was also called as a witness
by counsel for the Respondent. Rizzo stated that he was
a wheel dealer at the casino, on the same shift with Mc-
Garry and Artz. He was also under the supervision of
DeSimone. On or about January 18, 1966, the casino had
six tables in operation. The pit boss on the swingshift was
Elmer Beverly . DeSimone , as the manager , was also on
duty and they generally stayed in the pit. Rizzo said that
in the period before the election, there was a good deal of
conversation among the dealers when they were in the
coffeeshop on their breaks, etc., but no one in manage-
ment had ever told them that they could not discuss the
Union on their own time.
Rizzo also testified that on another occasion, he was in
the pit and heard DeSimone say that if the Union would
come in, he was going to close up some of the tables and
put some of the supervisors to work; "But I believe he
said it in jest, because he was laughing, and I started
laughing about it."
Rizzo's testimony as to his conversation with Artz and
McGarry in the early morning hours of May 15 has been
reviewed previously.
Motion To Strike Paragraphs of General Counsel's Brief
The General Counsel in his brief contends that the
Trial Examiner should find that the Company committed
an unfair labor practice by its "threat and attempt to
deprive McGarry of his vote in the March 31, election by
assigning him as a pit boss for one shift and subsequently
challenging his ballot," although this conduct is not al-
leged in the complaint. He claims that the Respondent did
not avail himself of its opportunity to refute or rebut the
testimony presented at this point, so "the matter should
be considered as fully litigated."
Counsel for the Respondent, on February 14, 1967,
moved to strike the paragraphs of the brief dealing with
this question on the grounds of surprise, since no motion
to amend the complaint to include an appropriate allega-
tion was made at the hearing and at this stage of the
proceeding, Respondent had no opportunity to answer or
defend against the contention.
The order to strike these paragraphs is hereby granted.
It is clear that the evidence proffered by the General
Counsel was admitted as a part of the sequence of events
comprising the controversy. Since there was no ap-
propriate allegation in the complaint, the Trial Examiner
took it for granted and without objection by the Respond-
ent that such conduct shed light on the motivation of the
Company as to other conduct alleged `in the complaint.
Common fairness requires that at this late date, the
RIVERSIDE HOTEL
evidence cannot be held to establish an unfair labor prac-
tice not alleged in the complaint . The Trial Examiner
must state that upon reviewing the transcript of testimony
in the light of the General Counsel's contention , he too is
"surprised" and deems that contention untenable.
Recently, in Russell-Newman Mfg. Co., Inc. v.
N.L.R.B. 370 F.2d 980 (C.A. 5), the court had occasion
to review the Board's decision in that case . What the
court said there, is applicable here.
We cannot approve of this action of the Board. It
necessitates denial of enforcement of its Order as of
this time . The governing principles are to be found in
Morgan v. United States ( 1938), 304 U.S. 1, 58 S.Ct.
773, 999, 82 L.Ed 1129. This was a case involving an
order of the Secretary of Agriculture fixing the max-
imum rates to be charged by commission men at
stockyards . The order was held void for failure to
allow the full hearing required by the applicable
statute.
The Court held that in administrative proceedings
of a quasijudicial character the liberty and property
of citizens must be protected by fair and open hear-
ing, that such a hearing embraces not only the right
to present evidence , but also a reasonable opportuni-
ty to know the claims of the opposing party, and to
meet those claims.
Due process in an administrative hearing includes
a fair trial , conducted in accordance with fundamen-
tal principles of fair play and applicable procedural
standards established by law. Administrative con-
venience or necessity cannot override this require-
ment, Swift and Co. v. United States , 7 Cir., 1962,
308 F.2d 849, Hornsby v. Allen, 5 Cir., 1964, 326
F.2d 605.
The second part of Respondent 's motion to strike is
directed to certain arguments of the General Counsel
which Respondent claims are in support of matters on
which the General Counsel introduced no evidence. The
motion is denied as to these matters, since they are en-
compassed in the scope of "argument" in the brief.
Concluding Findings
The central issue in this case, whether employees Artz
and McGarry were discharged or not , must turn on the
credibility finding between the principals involved. All
three of these men are engaged in the business of profes-
sional gambling . These men are "sharp" and keenly
aware of how their personal interest may be affected by
their testimony and the testimony of others. However,
McGarry and Artz testified in an apparently straightfor-
ward manner and each of these corroborated the
testimony of the other. There was a tendency on the part
of McGarry to exaggerate and to add emphasis to parts of
his testimony , but I am satisfied that the version of
DeSimone 's telephone call to these two men on Sunday
morning, May 15, has been correctly furnished by these
two employees.
On the other hand, DeSimone was evasive , equivocal,
and ambiguous . Throughout his entire testimony it was
unclear just what DeSimone claimed in regard to the ter-
minations of Artz and McGarry. He was far from candid
or forthright. Through direct examination and cross-ex-
3 It should also be noted that paragraph V(c) was dismissed at the hear-
ing at the close of the evidence , on motion of the Respondent on the
ground that there was absolutely no testimony that Richter told em-
433
amination , his testimony was not clear as to whether he
claimed they were terminated as a result of a misun-
derstanding, quit of their own volition, or were
discharged . His cryptic statement that he told the men
that "You are dissatisfied and we 'll leave it that way," af-
forded absolutely no rational explanation of the termina-
tion . However, in my judgment , DeSimone 's testimony
clearly shows that his intention was to fire McGarry and
Artz who were the two leading union adherents. On the
witness stand , he could not admit that he told the men, "I
cannot use you anymore , don't come in," so he had to
resort to the cryptic vagueness of, "You're dissatisfied,
let's leave it that way." Finally, under cross-examination
and upon an examination by the Trial Examiner, the wit-
ness said that after he told the men "they were
dissatisfied, they would leave it that way," that he "hoped
they wouldn 't come back ." Then, he further stated, "No,
I think if they would have come back, I think I would
have taken them back, maybe. I don 't know how I would
have felt about it." In the light of all the evidence, it ap-
pears crystal clear to me that , during the election cam-
paign, DeSimone held his feelings pretty well in check,
but when the Union was successful, his anger toward Mc-
Garry, his longtime friend and new president of the
Union , could not be restrained . He felt that McGarry had
betrayed him and was an ingrate for previous employ-
ment . At that point, DeSimone 's temper took over and he
called the two men and told them, as they have related,
"You are dissatisfied , I can't use you any longer. Don't
come in." This is buttressed by DeSimone's statement on
the unemployment forms, "Claimant states he was
dissatisfied with the job . He was replaced."
Upon all the evidence , I find that the Company
discharged employees Artz and McGarry on May 15,
1966 , because of their activity on behalf of the Union.
This conduct is a violation of Section 8(a)(1) and (3) of
the Act.
Upon the credited testimony of McGarry, it is found
that DeSimone , on the night before the second election,
March 31, told McGarry that if the Union won the elec-
tion, he would close down some of the tables, let the
dealers go , and put the supervisors to work at the tables.
Although DeSimone and Rizzo both testified that this
statement was made in an atmosphere of "kidding," I am
not persuaded that it was innocent . What may be a
laughing matter or a joke to one person , may not be the
same to another. Here, the employees were about to cast
their ballots, and statements like this, even when made
with a smile, can, and do, have an inhibiting effect upon
employees . I find that the making of this statement was a
violation of Section 8(a)(1) of the Act as alleged in the
paragraph marked V(f) of the complaint.
The General Counsel alleges in the complaint that the
same threat as found above was made on another occa-
sion before the first election . As I read the testimony, all
the witnesses appear to agree that it was made before the
second election and, to some extent , there exists confu-
sion among them as to whether the threat was made or
not before the first election . In the light of this confusion,
I find that the threat was made as found above, and not
otherwise . Therefore, paragraph of the complaint marked
V(d) is dismissed. In dismissing this paragraph of the
complaint , what is written herein as to the credibility of
Bernard Richter should be noted.3
ployees that pay raises would be withheld from employees because of the
Union's organizing campaign.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In paragraph V(a) the General Counsel alleges that on
January 4, 1966, Andrew DeSimone told employees that
the Respondent was engaging in surveillance of their
union activities. The testimony to support this allegation
was given by McGarry, who said that a couple of days be-
fore the first election on January 18, DeSimone told him
that Richter had said that since he , McGarry, was a friend
of his, DeSimone , he "should be loyal to the joint." Also,
that DeSimone said that the management had seen Mc-
Garry in the Corner Bar talking to Hanley, and that Mc-
Garry shouldn't talk to them on the premises at all. I do
not credit this testimony of McGarry. DeSimone denied
that he made any statement to McGarry to the effect'that
he should not be seen in the company of Hanley or talking
to Hanley on the premises. And Richter, who was a most
credible witness, testified that he saw McGarry and Han-
ley on many occasions in the hotel. It is undisputed that
during the period with which we are concerned, Hanley
was a guest of the hotel on no less than 13 occasions and
stayed for lengths of time from 2-7 days. He talked
frequently to McGarry and other persons interested in
the Union and since they talked in the coffee shop, bar,
casino, or rooms of the hotel, company officials from
Richter and DeSimone on down could not help but ob-
serve them talking. Apparently there was no attempt by
anyone to stop this meeting and association on the
premises of the hotel when the dealers were off duty, so
I conclude that in this instance McGarry is stretching the
truth. I believe that Richter may have said to DeSimone
that since McGarry was a friend of DeSimone's, he ex-
pected McGarry to be loyal to the Company. But such a
statement made by Richter to DeSimone, even if re-
peated to McGarry, does not constitute a violation of
Section 8(a)(1).4
Therefore, the paragraph marked V(a) of the complaint
is dismissed for lack of credible evidence.
On the basis of the credited testimony of Richter, I find
that there is no credible evidence supporting para-
graph V(b) of the complaint, which alleges that Richter
directed employees not to associate with union agents on
Respondent's premises on their nonworking time. Also
on the basis of Richter's credited testimony, it is found
that the evidence is insufficient to support paragraph V(e)
that Richter, on January 15, 1966, inaugurated a rule
prohibiting employees from engaging in union activity on
Respondent's premises on employees' nonworking time.
Paragraph V(i) which alleges that on or about May 12,
1966, DeSimone interrogated employees concerning
their union activities is hereby dismissed. The testimony
alleged to support this allegation is that of McGarry, par-
ticularly, and Artz, that on the day the two employees
returned from a union meeting at Las Vegas, Nevada,
DeSimone greeted McGarry as, "Mr. President," and
asked "if they had accomplished anything?" The em-
ployees replied that they had accomplished something
and went to work. I find that this question addressed to
the employees did not imply any threat of reprisal or force
or imply any promise of benefits, so it does not amount to
interference, restraint, or coercion within the meaning of
Section' 8(a)(1) of the Act. According to all witnesses to
this incident, the question addressed to the employees
was made in a bantering fashion, and there is no evidence
of other interrogation.5
Upon the undisputed and credited testimony of Mc-
Garry and Artz, it is found that on March 30, 1966, Pit
Boss Felix Lagano directed employees not to engage in
union activity on the Company's premises during their
nonworking time. It is also found upon the same
testimony that on or about May 1, 1966, DeSimone and
Lagano gave the same direction to employees as set forth
above. This conduct constitutes two violations of Section
8(a)(1) of the Act as alleged in paragraphs of the com-
plaint marked V(g) and (h).
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 operations set
forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Since it has been found that the Respondent has en-
gaged in certain unfair labor practices , it will be recom-
mended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Since it has been found that the Respondent unlawfully
discharged employees Edison F. McGarry and Kenneth
Artz on May 15, 1966 , it will be recommended that the
Respondent offer to the two named employees immediate
and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority
and other rights and privileges , discharging , if necessary,
any other employees hired since May 15, 1966 , to fill the
positions of the two named employees.
It will be recommended also that the Respondent make
whole Edison F. McGarry and Kenneth Artz for any loss
of pay they may have suffered by reason of the dis-
crimination against them, by payment to each of a sum of
money equivalent to that which each would have nor-
mally earned as wages from May 15, 1966, the date of
their discharge , to the date of their reinstatement , less any
net earnings during said period . Said backpay is to be
computed in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, with interest
thereon , as computed in Isis Plumbing and Heating Co.,
138 NLRB 716.
Because of the nature and extent of the unfair labor
practices engaged in by Respondent , which evinces an at-
titude of opposition to the purposes of the Act in general,
I deem it necessary to recommend that the Respondent
cease and desist from in any other manner infringing upon
the rights of employees guaranteed under Section 7 of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in the case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Reno 's Riverside Hotel, Inc. d/b/a Riverside Hotel
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
4 Blue Flash Express, Inc., 109 NLRB 591. 1 See footnote 4,supra.
RIVERSIDE HOTEL 435
2. American Federation of Casino and Gaming Em-
ployees is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Edison F. McGarry and Kenneth
Artz because of their activities on behalf of the above-
named Union and for the purpose of discouraging mem-
bership in and activity on behalf of the above-named
Union , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By threatening the employees with the loss of their
jobs in the event they chose the Union to act as their col-
lective-bargaining representative , Respondent has inter-
fered with , coerced , and restrained its employees in viola-
tion of Section 8(a)(1) of the Act.
5. By forbidding employees to engage in union activity
on the Company ' s premises during their nonworking
time , the Respondent has interfered with , coerced, and
restrained its employees in violation of Section 8(a)(1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Respondent did not commit the unfair labor
practices alleged in paragraphs V(a), (b), (c), (d), (e), or (i)
of the complaint.
RECOMMENDED ORDER
Upon the above findings of fact and conclusions of law
and upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondent, Reno's River-
side Hotel, Inc. d/b/a Riverside Hotel, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities on behalf
of American Federation of Casino and Gaming Em-
ployees, or any other labor organization of its employees,
by discharging employees, or in any other manner dis-
criminating in regard to the hire or tenure of employment,
or any term or condition of employment.
(b) Threatening employees with loss of employment
because of their activity on behalf of the above-named
Union, or if they support the said Union in an election.
(c) Forbidding employees to engage in union activities
on the Company's premises during the employees' non-
working time.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist the above-named labor organization, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
8 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."
as authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which I find
is necessary to effectuate the policies of the Act:
(a) Offer Edison F. McGarry and Kenneth Artz im-
mediate and full reinstatement to their former or substan-
tially equivalent employment, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of wages they may have suffered as a
result of the Respondent's discrimination against them, in
the manner set forth in the section entitled "The
Remedy," above.
NNotify Edison F. McGarry and Kenneth Artz 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.]
(b) Post at its hotel and casino at Reno, Nevada, co-
pies of the attached notice marked "Appendix."6 Copies
of said notice, to be furnished by the Regional Director
for Region 20, after being duly signed by representatives
of the Respondent, shall be posted by the Respondent im-
mediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees 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.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of this
Trial Examiner's Decision, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that, unless the
Respondent 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 Recommended Order, the National Labor
Relations Board issue an order requiring Respondent
to take the action aforesaid.7
' 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 the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 our em-
ployees that:
WE WILL NOT discourage membership of any of
our employees in American Federation of Casino
and Gaming Employees, or any other union, by
discharging, transferring, or laying off employees or
in any other manner discriminating against them in
regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT threaten our employees with
economic reprisal because they have joined the
above-named or any other union, nor will we promise
436 DECISIONS OF NATIONAL
our employees economic benefits to induce them to
renounce the above-named Union or any other
union.
WE WILL NOT forbid our employees to engage in
union activity on our premises during their nonwork-
ing time.
WE WILL offer Edison F. McGarry and Kenneth
Artz full and immediate reinstatement to their former
positions or one substantially equivalent thereto
without prejudice to their seniority or other rights
and privileges previously enjoyed.
WE WILL make whole Edison F. McGarry and
Kenneth Artz for any loss of pay they may have suf-
fered as a result of our discrimination against them.
All our employees are free to become and remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization, except to
the extent that such right may be affected by an agree-
ment requiring membership in the labor organization as
authorized in Section 8(a)(3) of the Act.
LABOR RELATIONS BOARD
RENO 'S RIVERSIDE HOTEL,
INC. D/B/A RIVERSIDE
HOTEL
(Employer)
Dated By
(Representative) (Title)
NOTE: We will notify 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.
This notice must remain posted for 60 consecutive
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, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California, Telephone 556-3197.