Alton Belle Casino

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 611 (N.L.R.B. 1994)

611
314 NLRB No. 97
ALTON BELLE CASINO
1 The Respondent Union has excepted to some of the judge’ credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We find it unnecessary to pass on the judge’s findings that the
Respondent Employer violated Sec. 8(a)(2) and (1) by its supervisor,
Food and Beverage Manager Sharon Hawkins, advising employee
Tim Dalpiaz that it had selected the Respondent Union as the em-
ployees’ collective-bargaining representative and that the Respondent
Union violated Sec. 8(b)(1)(A) and (2) by accepting such assistance,
because these additional findings would not materially affect the
remedy. See Chef’s Pantry, Inc., 247 NLRB 77 fn. 1 (1980).
3 The General Counsel has filed cross-exceptions to the Conclu-
sions of Law, recommended Order, and notice. We have amended
them to conform to the judge’s findings.
Alton Riverboat Gambling Partnership d/b/a Alton
Belle Casino and Seafarers International Union
of North America, Atlantic, Gulf, Lake and In-
land Waters District, AFL–CIO and Hotel Em-
ployees and Restaurant Employees, Local 15,
AFL–CIO. Cases 14–CA–21601 and 14–CB–
7793
July 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 26, 1993, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent Employer and the Respondent Union each
filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions, to which the Respond-
ent Employer filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs, and has decided to affirm the judge’s rulings,1
findings,2 and conclusions as modified and to adopt
the judge’s recommended Order as modified and set
forth in full below.3
AMENDED CONCLUSIONS OF LAW
1. Respondent Alton Riverboat Gambling Partner-
ship d/b/a Alton Belle Casino is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Seafarers International Union of
North America, Atlantic, Gulf, Lake and Inland Waters
District, AFL–CIO and Hotel Employees and Res-
taurant Employees International Union, Local 15,
AFL–CIO are both labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent Alton Belle Casino, by aiding and as-
sisting Respondent Seafarers International Union in or-
ganizing its employees, by interfering with the employ-
ees’ free choice of bargaining representatives, and by
providing facilities and assistance by the presence of
supervisors at union organizational meetings, has vio-
lated Section 8(a)(1) and (2) of the Act.
4. By maintaining an overly broad no-solicitation
rule, Respondent Alton Belle Casino has violated Sec-
tion 8(a)(1) of the Act.
5. By recognizing Respondent Seafarers Inter-
national Union on August 23, 1991, entering into a
recognition agreement on August 30, 1991, and a col-
lective-bargaining agreement on September 7, 1991,
containing union-shop and checkoff provisions with
Respondent Seafarers International Union, Respondent
Alton Belle Casino has violated Section 8(a)(1), (2),
and (3) of the Act.
6. By accepting the assistance of Respondent Alton
Belle Casino in organizing the employees of Alton
Belle Casino, Respondent Seafarers International
Union violated Section 8(b)(1)(A) of the Act.
7. By accepting recognition on August 23, 1991, en-
tering into a recognition agreement on August 30,
1991, and a collective-bargaining agreement with Re-
spondent Alton Belle Casino on September 7, 1991,
Respondent Seafarers International Union violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
ORDER
A. Respondent Employer Alton Riverboat Gambling
Partnership d/b/a Alton Belle Casino, Alton, Illinois,
each of its partners, and their officers, agents, succes-
sors, and assigns, and/or their executors, administra-
tors, heirs, and devisees, shall
1. Cease and desist from
(a) Recognizing and bargaining with the Respondent
Union as the exclusive collective-bargaining represent-
ative of the employees at its Alton, Illinois facility, un-
less and until the Respondent Union has been certified
by the National Labor Relations Board as the exclusive
bargaining representative of any such employees in an
appropriate bargaining unit.
(b) Aiding or assisting any labor organization by
interfering with employees’ free choice of bargaining
representatives by providing facilities and assistance by
the presence of supervisors at union organizational
meetings to any union in its organizational campaign.
(c) Recognizing any labor organization which has
been aided and assisted in the manner described above
in this section.
(d) Entering into any collective-bargaining agree-
ment with any labor organization aided and assisted in
the manner described above in this section.
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’ 5 See fn. 4, supra.
(e) Giving effect to any union-shop or checkoff pro-
visions in a collective-bargaining agreement dated Sep-
tember 7, 1991.
(f) Maintaining an overly broad rule that prohibits
unauthorized solicitation and distribution at all times,
including employees’ nonworking time.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its overly broad no-solicitation rule.
(b) Immediately withdraw and withhold recognition
from the Respondent Union, Seafarers International
Union of North America, Atlantic, Gulf, Lake and In-
land Waters District, AFL–CIO for any employees of
the Respondent Employer, Alton Belle Casino, at its
Alton, Illinois facility, unless and until the labor orga-
nization has been certified by the National Labor Rela-
tions Board as the exclusive representative of any such
employees.
(c) Cease giving effect to the Memorandum of Un-
derstanding dated August 30, 1991, and the collective-
bargaining agreement dated September 7, 1991, or any
modification, amendment, extensions, or renewal of the
agreement, provided, however, that the Respondent
Employer, Alton Belle Casino, shall not be required to
vary or abandon any wage increase or other benefit,
terms, and conditions of employment which may have
been established pursuant to the performance of the
agreement.
(d) Jointly and severally with the Respondent Union,
Seafarers International Union, reimburse its employees
for all dues, initiation fees, and assessments which
those employees have caused to be paid pursuant to
the collective-bargaining agreement executed Sep-
tember 7, 1991, plus interest, which is to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(e) Post at its Alton, Illinois locations copies of the
attached noticed marked ‘‘Appendix A.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent
Employer’s authorized representative, shall be posted
by the Respondent Employer immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent Employer to ensure that the notices
are not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Employer has taken to comply.
B. Respondent Union Seafarers International Union
of North America, Atlantic, Gulf, Lake and Inland Wa-
ters District, AFL–CIO, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Accepting recognition or bargaining with the Re-
spondent Employer, Alton Riverboat Gambling Part-
nership d/b/a Alton Belle Casino, or otherwise acting
as the exclusive collective-bargaining representative of
the employees employed by the Respondent Employer
at its Alton, Illinois facility, unless and until the Re-
spondent Union has been certified by the National
Labor Relations Board as the exclusive bargaining rep-
resentative of such employees in an appropriate unit.
(b) Accepting aid and assistance from the Respond-
ent Employer, Alton Belle Casino, in connection with
the organization of the Alton Belle Casino’s employ-
ees.
(c) Entering into any memorandum of agreement or
understanding which recognizes the Respondent Union,
Seafarers International Union, as the exclusive bar-
gaining representative of employees of the Respondent
Employer, Alton Belle Casino, or otherwise accepting
such recognition.
(d) Entering into any collective-bargaining agree-
ment with the Respondent Employer, Alton Belle Ca-
sino, covering that employer’s employees.
(e) Entering into any such agreement with the Re-
spondent Employer, Alton Belle Casino, which con-
tains union-shop and checkoff provisions.
(f) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with the Respondent Em-
ployer, Alton Belle Casino, reimburse all employees of
Respondent Alton Belle Casino for any dues, initiation
fees, and assessments which those employees have
caused to be paid to the Respondent Union, Seafarers
International Union, plus interest, which is to com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(b) Post at its St. Louis, Missouri office, and in
prominent places on the Alton Belle Casino property
where employees will see the copies of the attached
notice marked ‘‘Appendix B.’’5 Copies of the notice,
on forms provided by the Regional Director for Region
14, after being signed by the Respondent Union’s au-
thorized representative, shall be posted by the Re-
spondent Union immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
613ALTON BELLE CASINO
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent Union to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Union has taken to comply.
IT IS FURTHER ORDERED that the amended consoli-
dated complaint is dismissed insofar as it alleges viola-
tions of the Act not specifically found.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT recognize or bargain with Seafarers
International Union of North America, Atlantic, Gulf,
Lake and Inland Waters District, AFL–CIO (the
Union) as the collective-bargaining representative of
our employees at our Alton, Illinois facility until the
Union has been certified by the National Labor Rela-
tions Board as the representative of such employees.
WE WILL NOT aid or assist any labor organization by
interfering with employees’ free choice of bargaining
representatives by providing facilities and assistance by
the presence of supervisors at union organizational
meetings.
WE WILL NOT recognize any labor organization
which we have aided or assisted in its organizational
efforts.
WE WILL NOT enter into any collective-bargaining
agreement with any labor organization which we have
aided or assisted in its organizational efforts.
WE WILL NOT give effect to any union-shop or
checkoff provisions in a collective-bargaining agree-
ment dated September 7, 1991.
WE WILL NOT maintain an overly broad rule that
prohibits unauthorized solicitation and distribution at
all times, including employees’ working time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the overly broad no-solicitation
rule.
WE WILL immediately withdraw and withhold rec-
ognition from the Seafarers International Union as the
representative for any of our employees, unless and
until the Union has been certified by the National
Labor Relations Board as the exclusive representative
of these employees.
WE WILL cease giving effect to the Memorandum of
Understanding dated August 30, 1991, and the collec-
tive-bargaining agreement dated September 7, 1991, or
any modification, amendment, extension, or renewal of
the agreement, provided, however, that we shall not
vary or abandon any wage increase or other benefit,
terms, and conditions of employment which may have
been established pursuant to the performance of the
agreement.
WE WILL jointly and severally with the Union, Sea-
farers International Union, reimburse our employees
for all dues, initiation fees, and assessments which
those employees have caused to be paid pursuant to
the collective-bargaining agreement executed Sep-
tember 7, 1991, plus interest.
ALTON RIVERBOAT GAMBLING PART-
NERSHIP D/B/A ALTON BELLE CASINO
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT accept recognition or bargain with
Alton Riverboat Gambling Partnership d/b/a Alton
Belle Casino (the Employer) or otherwise act as the
collective-bargaining representative of its employees at
its Alton, Illinois facility until the Union has been cer-
tified by the National Labor Relations Board as the
representative of these employees.
WE WILL NOT accept aid or assistance from the
Alton Belle Casino in organizing Alton Belle Casino
employees.
WE WILL NOT enter into any recognition agreement
with Alton Belle Casino covering Alton Belle Casino
employees or otherwise accept such recognition.
WE WILL NOT enter into any collective-bargaining
agreement with Alton Belle Casino covering Alton
Belle employees.
WE WILL NOT enter into any collective-bargaining
agreement with Alton Belle Casino containing union-
shop and checkoff provisions.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
WE WILL jointly and severally with the Employer,
Alton Belle Casino, reimburse its employees for all
dues, initiation fees, and assessments which those em-
ployees have caused to be paid pursuant to the collec-
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein are in 1991 unless otherwise specified.
2 After the hearing, a number of affidavits of witnesses who testi-
fied during this hearing were submitted as Respondent Company
(RC) and Respondent Union (RU) Exhibits RC–RU (a)–(q). By
agreement of all parties, those exhibits are received into evidence.
3 The International Brotherhood of Electric Workers, Local 649,
AFL–CIO, CLC filed a petition on November 4, 1991, in Case 14–
RC–11113 claiming to represent certain general maintenance em-
ployees of Alton Belle, and another petition on February 24, 1992,
in a unit of housekeeping employees. Copies of these petitions have
been received in evidence. I also note that there was some talk on
the record here of an interest by the Teamsters Union of some un-
identified employees here, but no petition has been filed.
4 There are no limited partners. No offering prospectus had been
prepared at the time of this hearing, and no attempts had been made
to sell limited participations in the partnership.
tive-bargaining agreement executed September 7, 1991,
plus interest.
SEAFARERS INTERNATIONAL UNION OF
NORTH AMERICA, ATLANTIC, GULF,
LAKE AND INLAND WATERS DISTRICT,
AFL–CIO
Lucinda L. Flynn, Esq., for the General Counsel.
James Baird, Lisa Lopatka, and Walter J. Loomis, Esqs.
(Seyfarth, Shaw, Fairweather & Geraldson), of Chicago,
Illinois, for the Respondent Employer.
Barry J. Levine, Esq. (Souders & Levine), of St. Louis, Mis-
souri, for the Respondent Union.
Edward T. Linehan, Esq., of St. Louis, Missouri, for the
Charging Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed in Case 14–CA–21601 on September 4,
1991,1 and amended on October 21, by Hotel Employees and
Restaurant Employees, Local 15, AFL–CIO (HERE); the
Acting Regional Director for Region 14 of the National
Labor Relations Board (the Regional Director) and the Board
issued a complaint on October 24, alleging that Alton River-
boat Gambling Partnership d/b/a Alton Belle Casino (Alton
Belle, the Company, or the Respondent) had violated and
was continuing to violate certain provisions of the National
Labor Relations Act (the Act).
The Respondent filed timely answers to this complaint, de-
nying the commission of any unfair labor practices.
On February 10, 1992, HERE filed a new charge, Case
14–CB–7793, against Seafarers International Union of North
America, Atlantic, Gulf, Lake and Inland Waters District
(SIU). As a result of this charge, the Regional Director, on
March 16, 1992, issued an order consolidating Cases 14–
CA–21601 and 14–CB–7793, and issued a consolidated com-
plaint alleging violations of the Act by Alton Belle and the
SIU. Timely answers were filed by Alton Belle and the SIU.
Pursuant to a notice of hearing contained in the consoli-
dated complaint, the matter came on to be heard before me
at St. Louis, Missouri, on April 13, 1992, and on several
other dates in 1992, concluding on July 10, 1992. At the
hearing all parties were represented by counsel and had the
opportunity to present testimony and documentary evidence,
to examine and cross-examine witnesses, to present motions
and to appeal from adverse rulings, and to argue orally. After
the hearing concluded,2 the General Counsel, Alton Belle,
and the SIU filed briefs which have been carefully consid-
ered.
Based on the entire record, including my observations of
the witnesses, and their demeanor while testifying, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Alton Riverboat Gambling Partnership is a partnership
organized and existing under the laws of the State of Illinois.
Under license from the State and from the city of Alton, Illi-
nois, the partnership maintains an office in the city of Alton,
and operates a riverboat and barge complex also in the city
of Alton, where customers may eat and drink on the barge
section which is permanently tied up to a landing, and par-
ticipate in games of chance, located on the boat, named the
Alton Belle, which operates scheduled cruises up and down
the Mississippi River.
It is alleged in the complaint that the partnership will an-
nually derive gross revenues in excess of $500,000 from its
business operations, and that it will annually purchase and
receive at its Alton locations goods and materials valued at
over $5000 directly from points outside the State of Illinois,
and goods and materials valued at over $5000 from suppliers
located within the State of Illinois who themselves are en-
gaged in interstate commerce.
There is no dispute about these facts and I find that the
partnership is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answers admit, and I find that
the Respondent, Seafarers International Union of North
America, Atlantic, Gulf, Lake and Inland Waters District,
AFL–CIO, and the International Union, Hotel Employees and
Restaurant Employees, and its Locals 1 and 15, AFL–CIO,
are labor organizations within the meaning of Section 2(5) of
the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Alton Riverboat Gambling Partnership is made up of
two general partners, Metro Tourism and Entertainment, Inc.,
and J. Connors Group, Inc., both Illinois corporations.4 John
Connors is the president of J. Connors Group, and John
Thomas Long (Tom Long) is president of Metro Tourism
and Entertainment, Inc. Connors was not named in the com-
plaint as an officer of the partnership, and he does not figure
significantly in the event herein, as far as the record illumi-
nates those events. Tom Long, a partner in the law firm of
Farrell and Long, located in the Alton area, acts as general
counsel and chief financial officer for the operation. During
this hearing, it appeared that Long acted as the chief operat-
615ALTON BELLE CASINO
5 Long affirmed, in his own testimony, that he had said this. He
added that the Alton area was union-oriented and it would be advis-
able to operate as a union company.
6 All dates herein are in 1991 unless otherwise specified.
7 The corporate offices of Alton Belle are at 219 Piasa, about a
block up from the river and the casino complex.
8 These last two groups are not involved in any of the events in
this case, except for the security guards in their official capacities
as keepers of the entrances to the facilities. Casino employees such
as croupiers, dealers, and cashiers were not mentioned in any of the
events occurring here.
9 See G.C. Exh. 44.
10 I appreciate the fact that in some cases an employer might pur-
posefully sow confusion and mistakes in records to impede or thwart
employee organization, or effective investigation of those records,
but there is no indication of that sort of finagling here. All the
records were made available to the General Counsel, who helped to
prepare G.C. Exh. 44. Some corrections were made by Dahlen, and
other discrepancies will be discussed as we go along here. G.C. Exh.
44 is, obviously, a poor benchmark, but it is all we have, and we
will work with it as best we can.
11 This was apparent in Alton at least as early as February 1991,
according to the testimony of Mary F. Jarrett, president of the
Charging Party, Local 15, of HERE.
ing officer of Respondent Alton Belle and was finally re-
sponsible for all day-to-day decisions.
The Alton Belle, along with others, applied for a license
from the Illinois Gambling Board (IGB), the agency estab-
lished by the State to administer riverboat gambling oper-
ations within the State. In the course of the licensing proce-
dure, hearings were held by the City Council of the city of
Alton. Tom Long appeared at these hearings, representing
Alton Belle, and made a presentation around May 1990. Rick
Watts, a member of the Alton City Council and also an em-
ployee of Alton Belle, testified that in the course of ques-
tioning Long stated that if his group got the license, he
would run a union operation.5 In his testimony, Watts noted
that a number of local union representatives, business agents,
union presidents, and the vice president of the Alton area
labor council, were present during these hearings, but he did
not recall seeing or hearing from representatives of the SIU
or HERE in connection with the hearings.
After these hearings, Alton Belle was awarded a license to
operate a riverboat gambling casino from Alton, on the Mis-
sissippi River, sometime early in 1991.6
The site chosen by Alton Belle for the location of its gam-
bling complex is at the river end of Piasa Street, a main
street in the city of Alton.7 The street crosses a set of rail-
road tracks at the top of an embankment leading down to the
river and then turns south to a large parking lot and a public
park which commemorates the seventh and final Lincoln-
Douglas debate on October 15, 1858.
The record does not reveal what onshore preparations had
to be made, but at the top of the embankment there were two
entrances, by means of canopied gangways, to two barges
tied up to the shore. The first, or onshore, barge is fairly
small, and holds a ticket booth for embarking customers and
a guard house for the use of security personnel. The second,
offshore, barge is considerably larger, with a superstructure
designed to look like a 19th century river streamer. In this
barge there is a large dining area on the first level, and up-
stairs a buffet-type restaurant and a cocktail lounge. Another
gangway leads from this barge to the Alton Belle herself, a
real boat which houses the gambling facilities and provides
service of drinks and snacks but no lunches or dinners.
All of this construction continued through the spring and
summer. By the middle of August Alton Belle was ready to
begin hiring people to work on the boat and the barges as
crew, maintenance, food and beverage, reservationists, ticket
takers, gift shop help, guards, and casino dealers.8
Looking at the exhibits showing dates of hire and payrolls
for the middle and end of August, it appears that about 187
people were hired in the period between August 14 and 31.
Tom Long, in a graphic but politically incorrect phrase,
described the situation at Alton Belle in late summer as like
a ‘‘Chinese fire drill.’’ Along with the hiring of these 187
people as deckhands, reservationists, food and beverage peo-
ple, buspersons, waitpersons, bartenders, cooks, maintenance
and cleaning staffs, not to mention the hiring and training of
casino personnel, who are not involved here, there were the
completion of construction, remodeling, installation of equip-
ment, plumbing, wiring, air conditioning, painting, pipe-
fitting, moving in of food, beverages, linens, all kinds of sup-
plies, measuring and fitting uniforms. All the multitude of
details in completing this multifaceted, multiphase project
must have created this situation which could only be de-
scribed as (hopefully politically correctly) chaotic.
Barbara Ann Dahlen, a personnel specialist with Alton
Belle, worked together with the General Counsel on the
preparation of an exhibit showing the dates of hire (and of
separation, where applicable) of employees hired between
May 20, 1991, and April 6, 1992. Dahlen, in her testimony,
described this document, which is the only evidence we have
in the record of these sometimes critical dates, as ‘‘our best
guess as to when (an individual) started with the company.’’9
Dahlen added that in the beginning only one person was
keeping these records, and that Dahlen herself had been
working from January 1992 until the date of her testimony
on June 3, 1992, to try to correct many mistakes in the hiring
process. Moreover, Dahlen pointed out, there is no way to
know from company records whether the date shown on
General Counsel’s Exhibit 44 was the date one was actually
accepted and hired, or whether that was the date the em-
ployee actually started work.10
B. Early Organization Efforts by SIU
As I indicated at the hearing, I find, based on testimony
here, and my own reading in the press and watching tele-
vision news, that there was, and is, considerable publicity,
both local and national, about the establishment of riverboat
gambling operations in Iowa, Mississippi, Missouri, Ken-
tucky, and, of course, Illinois. There is widespread national
interest in the growth of casinos not only on the rivers, but
in cities like New Orleans and Chicago, and on Indian res-
ervations. Local interest is also high, and in areas of the
country where economic conditions are depressed and jobs
are scarce, I think it can be logically inferred that local
unions as well as local citizens are interested in what new
jobs will be created by the opening of casinos.11 Therefore,
I find that the licensing process and the ensuing construction
were well known in the Alton–St. Louis area, and beyond the
local area as well.
Certainly the interest of HERE was awakened. On March
22, Tom Long testified that he attended a meeting at the
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I note also that by August 12 there were only 29 employees
shown on G.C. Exh. 44 as being hired, of whom 21 were classified
as reservationists who, the evidence shows, do not work on the land-
ing, but at 219 Piasa Street.
13 There is no indication in the record that he went aboard, or at-
tempted to go aboard, the barge.
14 This is surprising since Tellez testified that up to this time he
had some experience in negotiating contracts, but had no experience
in organizing employees.
15 Tellez testified that these employees not only handled reserva-
tions, but also served as greeters and hostesses on the boat.
16 Based on my experience with maritime terminology, I infer and
find that Tellez used the word ‘‘unlicensed’’ to denote all employees
except for those licensed as masters, mates, pilots, and engineers, all
of whom exercise supervisory functions on board a working vessel,
and have traditionally been represented by other labor organizations.
17 Apparently, the boat arrived at the landing about August 12
since Kori Agne, the mate, is shown on G.C. Exh. 33 as working
on that day.
Hyatt Regency Hotel in Chicago with Thomas W. Hanley,
president of HERE Local 1, in Chicago and vice president
of the International concerning the organization of some of
Alton Belle’s employees. This meeting will be discussed
more in detail later in section III, E of this decision, but I
would just note that Long certified that in the course of the
meeting he told Hanley that other unions had ‘‘contacted’’
Alton Belle about organizing, including Teamsters, Steel-
workers, and the SIU.
Unfortunately, this last comment was not followed up in
the examination of Long by all counsel, and it is not known
who from the SIU contacted Long, when it happened, what
was said during that contact, or whether that contact, or other
unknown contacts, led to the SIU’s organizational campaign
at Alton Belle.
The next contact revealed in the record is a copy of Alton
Belle visitors’ log for August 6, which shows that Tony
Sacco, assistant vice president of the SIU of North America,
Atlantic, Gulf, Lake and Inland Waters District, signed in at
the security check point at 11 a.m. and out again at 11:05
a.m. As with Long’s mention of contact with the SUI before
March 22, there was no followup on this visit to the site.
Apart from these two allusions to contacts between Alton
Belle and the SIU, continuity of contact between these par-
ties began with the visit of Augustine Tellez to the landing
about August 12. Tellez is an International vice president of
the SIU International, and vice president of collective bar-
gaining of the Atlantic, Gulf, Lake and Inland Waters Dis-
trict of the International Union. He testified that he first
heard of Alton Belle through the Union’s legislative depart-
ment, a group charged with tracking down and following any
legislation or other developments which would have an im-
pact on the maritime industry. There was also talk in the in-
dustry, at meetings, trade conferences, exhibitions, and con-
versations about this new development on the rivers. As
Tellez put it ‘‘You show up (at meetings) and pick up and
hear about anything.’’
Pursuing this information, Tellez traveled, alone, from SIU
headquarters in a suburb of Washington, D.C. to Alton
around August 12, and noted that work was progressing, but
the Alton Belle herself had not yet arrived at the landing.12
He was not asked by counsel if he spoke to anyone from the
Alton Belle organization, or what else he may have done
while he was in Alton. Indeed, there is no explanation in the
record of why an International vice president of the SIU
would make a solo trip from Camp Springs, Maryland, to
Alton, Illinois, just to look at a barge under construction on
the bank of the Mississippi River,13 and, then, apparently,
turn around and return to Maryland. There the record shows
a resident office of the SIU in St. Louis, staffed with, at
least, a resident agent named Joe Seigler.
Tellez returned to Alton on August 19, again unaccom-
panied by any other SIU officer or agent.14 He testified that
the boat had arrived, and that he attempted to get onto the
landing, but was refused entry. He went to Long’s office, got
his permission to board, and returned to the landing. He testi-
fied that he asked one of the deckhands, Jeff Zeller, to get
the crew together, and he met with them up on the the top
level of the second barge. Tellez made what he called his
‘‘sales pitch’’ to the employees and got them to sign cards.
After that, Tellez testified he ‘‘found out there were a
number of reservationists employed.’’ He had lunch with one
of that group, Nancy Peyman, who took a number of union
authorization cards and obtained signatures from other
reservationists.15
A total of 31 cards were secured on this 1 day of orga-
nizing activity. All were signed by individual employees, but
all were dated August 19 by Tellez when he received them.
On that same day, Tellez wrote to Long (on stationery bear-
ing the address of the Union’s St. Louis office) stating that
the SIU had been ‘‘designated by a majority of your unli-
censed employees to represent them for the purpose of col-
lective bargaining.’’ He demanded that Long recognize the
SIU as the bargaining representative for Alton Belle’s unli-
censed employees.16
It is difficult, and, indeed, may be impossible given the
state of this record, to determine just how many employees
were actually employed on August 19. Taking the deckhands
first, we have General Counsel’s Exhibit 44 which shows
that, as of August 19, only two employees had been hired
before that date, Kori Agne, who was hired on August 12
as deckhand, but who was identified in the record as a first
mate; and Raymond Wagonblast, who was hired on August
12 as an engineer. However, Barbara Dahlen, Alton Belle’s
personnel specialist, testified that she had added marginal
notes to General Counsel’s Exhibit 44, which were received
with the document in evidence, showing that at least two
more deckhands were hired before August 19. Moreover, a
document entitled ‘‘Alton Belle Casino Deck Crew Payroll’’
(G.C. Exh. 33) for the period August 1217 through 25, shows
that, on August 19, here were nine employees actually work-
ing. If we eliminate the ‘‘licensed’’ employees, Hollinger,
Moselle, and Hawkins, captains; Agne and Wendle, mates;
Crank and Wagonblast, engineers; this leaves only two rank-
and-file crewmembers actually working as of August 19.
Looking at the reservationists, General Counsel’s Exhibit
44 shows 33 hired by August 19. Another payroll document,
General Counsel’s Exhibit 31, shows that 22 people received
wages for the ‘‘pay date’’ of August 19. I note, however,
that all of the employees listed on this latter document are
shown on General Counsel’s Exhibit 44 as having been hired
before August 12. The term ‘‘pay date’’ on General Coun-
sel’s Exhibit 31 must, then, signify it applies to those who
were working prior to August 12. Using the 31-employee
617ALTON BELLE CASINO
18 Ray Bourland and Jeff Zeller.
19 The figures are based on my best understanding of the docu-
ments in evidence. I have not counted the card of Frank Bock Sr.,
who claims he was not hired until August 20 and that he did not
sign a card until ‘‘a couple of weeks’’ after that. I do not question
the cards signed by the reservationists, even though it may appear
that some were not working on August 19 (G.C. Exhs. 41 and 42),
and one, Suzanne Pickerell, testified she signed on August 21.
20 The testimony of Tellez and Long shows that their correspond-
ence was were hand-delivered between the parties, resulting in out-
going and incoming letters bearing the same date.
21 This last is probably true. A staffing chart for deckhands (G.C.
Exh. 39) shows that excluding the captains, mates, and engineers
there are 5 deckhands assigned to each of these shifts, for a total
of 15. As of August 23, there were 11 deckhands hired. I do not
have as close a figure for the reservationists, but the hiring list (G.C.
Exh. 44) shows that, starting with 33 as of August 19, there were
22 new hires down to April 6, 1992, and 8 separations leaving an
increase of 15 over the original number.
figure from General Counsel’s Exhibit 44, there were 19
cards signed by those hired on or before August 19.
Using the cards signed by the two rank-and-file crew
members who were working by August 19,18 and the 19
cards signed by reservationists, we get 21 cards out of a total
of 35 employees in the deckhand and reservationist depart-
ments.
This would constitute a majority of all the employees then
working in these two departments, even allowing for rough-
ness of the figures I have used,19 but the demand for rec-
ognition specified a unit of all unlicensed employees. It does
not include any of the food and beverage employees, host-
esses, service persons, buspersons, bartenders, cooks, dish-
washers; housekeeping employees, gift shop employees, or
maintenance and utility people. My estimate of the number
of people in these categories, as of August 19, is 125 em-
ployees. A payroll submitted by Alton Belle (R.C. Exh. 20)
shows 96 employees in the food and beverage area reporting
for work as early as August 14, although the evidence shows
that these people were in training, and they did not start full
time until either late in August or early September.
Notwithstanding the existence of this large number of cur-
rent employees who seem to come within the Union’s de-
mand, and whose existence must surely have been known to
officials of Alton Belle, Long replied to Tellez’ letter of Au-
gust 19, on August 22, stating that on proof of majority sta-
tus, they would recognize the SIU as bargaining representa-
tive for ‘‘certain employees’’ as requested by the Union,
based on the majority of employees on the payroll as of Au-
gust 19, and specifying that the offer to recognize would ex-
pire on September 4.
At the same time,20 a letter was prepared by a Monsignor
Salvatore Polizzi, of St. Roch’s Church in St. Louis, ad-
dressed jointly to Tellez and Long, and stating that he had
been given 31 ‘‘pledge cards’’ by the SIU; that he had com-
pared the signatures on those cards against ‘‘those submitted
by’’ Alton Belle; and that he verified that the ‘‘signatures are
the same and prove that the Seafarers International Union has
majority status for Union representation purposes.’’
Again, on August 22, Tellez wrote to Long, noting the
Monsignor’s letter, and demanding recognition for ‘‘the non-
supervisory personnel employed by the Company at the
Alton Belle Riverboat Casino.’’ On August 23, Long granted
recognition for ‘‘all nonsupervisory personnel,’’ as requested
by the Union.
When questioned by the General Counsel on the bases he
used to extend recognition to the SIU for this group Tom
Long was vague and cagy. He said that he did not rely on
payrolls to see how many people appeared there, nor did he
recall looking at any documents to make his decision. He
stated later in his testimony that he ‘‘had a pretty good feel
for it’’ (the number of employees), then added even later that
he ‘‘probably’’ had a sheet or something, a running calcula-
tion of how many people they had employed, and that is all
he would have referred to. Long felt that he still had many
people to hire when he recognized the Union on the basis
of the cards, but they were fully staffed at that time for res-
ervation agents and deckhands.21
As part of his sales pitch to prospective members, Tellez,
and other organizers who followed him at the Alton Belle
property, emphasized particularly the opportunities for SIU
members to transfer to other properties organized by the SIU,
from Hawaiian cruise ships to river cruisers like the Delta
Queen and Mississippi Queen. Another prominent induce-
ment used by Tellez and his associates, was the Harry
Lundberg School of Seamanship. This institution, a joint
labor-management financed endeavor, furnishes courses and
training for persons engaged in the maritime industry in a va-
riety of skills necessary to good seamanship and advance-
ment through the ranks. Among other types of training is a
series of drills designed to equip a crew to pass Coast Guard
requirements to obtain certification as a seagoing vessel.
What happened here was that, around August 19, appar-
ently after speaking to the deckhands on the Alton Belle,
Tellez requested of Ken Conklin, the head of the Lundberg
School, that he send a person out to Alton to train the crew
of the Alton Belle in basic firefighting, emergency proce-
dures, first aid, and rescue techniques in preparation for the
Coast Guard certification. The person who was sent, Ben
Cusic, did not testify here, but in a memorandum addressed
to Conklin, Tellez, and several other people, he laid out his
activities aboard the Alton Belle from August 22 to 30. Ap-
parently, when he arrived there was no plan for handling
emergencies, and no training under way to implement such
procedures. Cusic assembled a group including Ralph Fish,
program coordinator for Alton Belle; Joe Hollinger, ship’s
captain; a retired Coast Guard captain; and the ship’s de-
signer, a naval architect.
In cooperation with this group, Cusic designed a ‘‘Ships
Station Bill’’ (a comprehensive plan for handling emer-
gencies and assigning officers and crew to specific duties in
that plan), and Cusic himself began training the crew in fire-
fighting and emergency procedures. These efforts proved
successful and by August 30 the Coast Guard granted its cer-
tification and the Alton Belle was pronounced fit to carry
passengers and crew up and down the Great River. Having
accomplished this, Cusic returned to the Lundberg Institute
and does not appear again in this proceeding.
Now all this may seem simple, expeditious, and efficient.
The latter two adjectives are accurate, but this incident cer-
tainly is not simple. For example, how did Cusic happen to
come to Alton at that time? Tellez testified that he advised
the deckhands that he ‘‘would be flying in instructors to train
them in firefighting, lifesaving and abandon-ship drills.’’ At
one point in his testimony Tellez said that ‘‘I flew the guy
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Again noting that there never has been any concern shown by
either the SIU or HERE, with the dealers, croupiers, cashiers, or oth-
ers actually employed in the Casino operations.
in’’ to prove his point in his sales pitch to the boat crew.
He testified at another point that he could not recall if he got
the Company’s permission to bring Cusic in. He thought it
could have been worked out between the school and the
Company. Tellez also said that he could have notified Long
or Ralph Fish, Alton Belle’s program coordinator, that Cusic
was coming, but he did not know who paid Cusic’s expenses
or fees for coming to Alton and conducting the evaluation
and training.
Tom Long was equally vague. He testified that he believed
it was ‘‘one of our marine people’’ that contacted the
Lundberg Institutes—or it may have been Doherty or Tellez
who ‘‘volunteered to bring him out here.’’ Long also pleaded
ignorance on the question of who paid for this, maybe Cusic
wasn’t paid, but Long finally stated that Alton Belle did not
pay him.
One statement that Long made seemed to me to be
straightforward and unequivocal. He pointed out that we had
to realize his position at this point (late in August) and un-
derstand that they would do ‘‘anything to get up and going.
We needed to get up and going. It was a very tense time in
the business. And anyone who was willing to help, I think
that we gladly accepted their help.’’
This statement is extremely revealing. The situation was
that the Partnership had advanced large sum of money in
preparing the site; moving in and constructing elaborate su-
perstructures on the barges; fitting out the boat; equipping
restaurants, kitchens, gambling rooms; and beginning, around
August 14, hiring hundreds of employees. It must have
seemed critical, even desperate, to begin to start some cash
flowing in. But they could not begin to achieve any signifi-
cant cash flow until the authorities permitted the games to
begin. The Alton Belle could not realize any cash from the
games until the boat left the landing and proceeded up the
River. The boat could not leave the landing until it received
Coast Guard certification. But, as of August 22 there wasn’t
even a plan on how to go about preparing for the Coast
Guard certification, nor, apparently, anyone connected with
the Company who was qualified to formulate a plan and im-
plement its provisions.
Then, on August 19, in the midst of this crisis, Augustine
Tellez walked into Long’s office and asked for permission to
solicit Alton Belle employees on the boat. This may have
been coincidental, or it may not. The record shows that the
SIU had made a strategic policy decision to try to organize
the riverboat gambling business on a wall-to-wall basis, that
is, not only the crewmembers, but also food and beverage,
housekeeping, maintenance, and reservationists, hostesses,
and greeters. The Alton Belle was one of the first, it not the
first boat, to be ready to sail. Long testified that he had had
some contact with the SIU, along with other unions, before
March 23, when he met with a HERE representative in Chi-
cago.
But, unfortunately, the rest is silence. We know that Tellez
and Long met on August 19, when Tellez obtained permis-
sion to go on board the boat. We know that they talked when
letters were delivered back and forth between August 19 and
23, but no one asked what they said in these meetings, nei-
ther on direct nor on cross-examination, and we have only
evasive and dissembling answers, or protestations of igno-
rance as to how it was arranged for Cusic to be dispatched
to Alton and who or how he or his employer was to be paid
for the vital service he rendered the Company.
The confluence of the Company’s need to begin oper-
ations, and the Union’s desire to implement a national policy
of organizing the riverboat gambling industry could lead to
cooperation, and freedom of access to the Employer’s facili-
ties, which I do not believe would be unlawful, or it could
lead to favoritism, assistance, or even domination of the
Union by the Company, which would be unlawful.
The facts so far would support an inference that in their
conversations between August 19 and 23, Long agreed to co-
operate with the SIU in its organizational efforts, and Tellez
agreed to get Cusic out to prepare the boat and its crew for
Coast Guard certification. I infer and find that something like
this did happen, but I do not think that I can reach a further
inference that these two men conspired to keep out or hinder
organizational efforts by other unions, or that they agreed to
use supervisors to assist in organization.
It seems that neither Tellez nor Long knew much about
what they were doing. Tellez had no experience in orga-
nizing, and he went, in these several days from August 19
to 22, to places where he saw, or was told, employees of
Alton Belle were located. Long went along with this, but he
should have known that the numbers of people his staff had
hired, and who were actually working in training sessions
and in clean up operations at that time constituted a far larg-
er number than that estimated by himself or Tellez.
Despite testimony from Tellez and Long that the unit they
were talking about in their exchanges of letter between Au-
gust 19 and 23 was composed only of the deckhands and res-
ervation agents, it is clear from Tellez’ testimony that he
really wanted all of the nonlicensed personnel employed by
Alton Belle.22 Pondering these developments, and the fact
that he himself had to leave town, Tellez called for assist-
ance. Brian J. Doherty is an assistant vice president of the
United Industrial Workers, a part of the SIU, Atlantic, Gulf,
Lakes and Inland Waters District and, according to his
undenied testimony, he has had considerable experience in
organizing hundreds of employees for the Union.
C. Later Organizing by SIU
1. The August 27 meeting
Tellez called Doherty about August 23. Doherty’s travel
vouchers show that he arrived in the St. Louis–Alton area on
Monday, August 26. He met there with Byron Kelly, vice
president of the SIU, Atlantic, Gulf, Lakes and Inland Waters
District, and Tony Sacco, the SIU representative in the St.
Louis area. On the afternoon of August 26, Doherty got
aboard the boat and went on a training cruise which was a
part of Ben Cusic’s training program. After this, Doherty
said, he was no longer allowed on the boat as they were in-
stalling gaming tables and slot machines under tight security
imposed by the Illinois Gaming Commission.
Doherty was, however, allowed on the barge, which was
also referred to as the dinner barge, which, as we have noted,
housed a ‘‘fine dining’’ room called the Piasa House on the
first level, or deck, and lounge bar and buffet areas on the
619ALTON BELLE CASINO
23 Clark was a sous-chef, and his status as a supervisor was ques-
tioned by the Company. However, Clark’s job description, and his
own testimony, show that he had authority to responsibly direct the
work of others, and that, in the absence of the head chef, he per-
Continued
second level. Kitchens and storage areas were also located on
this barge.
Doherty testified that he was on and off the barge all day
on August 27, soliciting cards, and speaking to individuals
and small groups, up to 10 or 12 people. On that day he was
accompanied by Sacco and Kelly. Doherty said that these
meetings took place all over, in the buffet, the lounge, and
the kitchen or on the sidewalk by the railroad tracks on
shore, and in the Lincoln-Douglas park. He described the
employees he met as being of mixed ages, some 17 or 18
years old, some in their thirties or forties.
As a result of his activities on August 27, Doherty ob-
tained 31 cards, which were introduced here by the General
Counsel. He did mention meetings in the lounge and buffet
areas. Julie Ventimiglia, a hostess in the buffet restaurant,
signed a card dated on August 27. She testified that she was
called into a meeting or a training session, on August 27 or
28 by Food and Beverage Manager Robert Feltus. She at-
tended a meeting in the buffet area about 4 o’clock where
the assistant Food and Beverage Director Jay Vaughn, intro-
duced the SIU representatives, including Doherty. The union
representatives passed out cards and employees, including
Ventimiglia, signed them. She remembered that Vaughn was
there during the card signing, and Supervisors Feltus and
Sharon Hawkins, were in and out of the area during that
time. After that, Ventimiglia testified the Company ran a
training session.
Donna Brown, a buffet server and an August 27 card sign-
er, testified that she was called by Jay Vaughn or Robert
Feltus to come in to a training session on August 27. Jay
Vaughn introduced Doherty, Tony Sacco, and Bill Ellis, then
the union people told the employees there that the SIU had
been picked by the Company to represent them. Vaughn and
Feltus were present when Brown signed her card, and
Vaughn was present in the room all during the meeting.
Brown did say that Doherty told the employees that they
were under no obligation to sign cards.
Kellee Laird, also a buffet server, differed from the testi-
mony of Brown end Ventimiglia in that she said she was
scheduled to go in to work on August 27 and was not called
in. Laird said that Vaughn introduced the union representa-
tives, he did not recall their names, and said that she got paid
for all the work she did that day, including the time spent
at the union meeting.
There may be some confusion here in that there is no
other evidence that anyone was called in for a union meeting
on August 27. As we shall see, below, there is a lot of evi-
dence that calls were made on August 27, but for union
meetings to be held on August 28. Brian Doherty did not
mention this meeting on August 27 specifically, although he
did testify that he had met and obtained cards from groups
of as many as 10 or 11 people on August 27. The Alton
Belle payroll records for August 27 show 10 ‘‘AM’’ buffet
servers were at work on that day for periods from one-half
hour to 2-6/10 hours. There were also seven ‘‘PM’’ buffet
servers who worked that day, and four hostesses. Julie
Ventimiglia, a hostess, Kellee Laird, and AM buffet server,
and Donna Brown, a PM buffet server, all worked on August
27. None of these employees worked on August 28.
From these facts, which are undisputed, I conclude that
there were meetings on August 27 at which these employees
who testified, together with 28 others, signed cards. Some of
the circumstances of the meeting, or meetings, are in ques-
tion. Ventimiglia and Brown both testified that Jay Vaughn,
an admitted supervisor, introduced the SIU representatives.
Ventimiglia said that Vaughn, as well as Supervisors Robert
Feltus and Sharon Hawkins, were in and out of the area
where the meeting was taking place. Brown corroborated
this, and added that Brian Doherty told the employees, at the
meeting she attended, that the SIU had been picked by the
Company to represent its employees.
Doherty testified, particularly concerning meetings held on
August 28, that supervisors could have been present during
those meetings, but that he just didn’t know who the super-
visors were at that early stage in this connection with the or-
ganization effort. He did deny that any supervisor introduced
him or other SIU agents to the employees. Doherty spent a
long time on the witness stand and I had ample opportunity
to observe him, and to note his demeanor, while he was testi-
fying. Based on my observations, and on his experience in
the labor movement, I do not believe that he would have
said, to any group of employees, that the SIU had been
‘‘Picked by the Company’’ to represent them. What he ad-
mitted that he did say, to groups of employees, and in the
warmth of organizational zeal, was that the SIU was ‘‘their
Union,’’ a statement which was not true at the time he said
it, but could easily have been understood by Donna Brown,
as well as others who did or did not testify here, that the SIU
and Alton Belle were in agreement on the SIU as the Union
for Alton Belle’s employees. Moreover, I cannot understand
a person of Brian Doherty’s experience in organizing em-
ployees not being able to pick out supervisors and manage-
ment representatives, even on his first day aboard the barge.
Their attitudes, the attitudes of employees toward them, their
identifying name tags, their more formal dress, and their
movements, as described by a number of employees, in and
out of the areas where the meetings were being held, all
should have alerted Doherty to at least request that any man-
agement people leave the area. This he did not do, neither
on August 27, nor on August 28, when he must have noticed
Vaughn, Feltus, and Hawkins as more familiar faces among
new groups of employees.
2. The August 28 meetings
On August 28, Doherty and his associates had at least two
meetings on the barge, one in the morning and one in the
afternoon, and Doherty himself conducted a third meeting at
Alton Belle corporate offices at 219 Piasa Street, a block and
half or so from the boat landing.
Bob Brickley, Alton Belle’s director of food and bev-
erages, was not an impressive witness, but I do credit his tes-
timony that Tom Long had called him and told him to co-
operate with the SIU. Then, late in August, he was asked by
SIU representatives to get hold of employees to come in for
a meeting the next day. Conforming to Long’s instructions,
Brickley in turn instructed Mary Ogelsby, the head chef, Su-
pervisor Robert Feltus, and Mark Clark,23 to call employees
to come in the next day for meetings.
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed some of the duties of that position. I find that Clark was a
supervisor within the meaning of Sec. 2(11) of the Act.
24 At this time, before the restaurants and bar had opened to the
public, employees had been assigned to training sessions either in
advance, or on call. These sessions were anywhere from 1 to 3 or
4 hours in length, for which they were paid. Apparently, a number
of people had not been scheduled to come in on August 28, which
resulted in a number of calls by the supervisors.
25 There was confusion and contradiction among many of the wit-
nesses here as to whether employees were or were not paid for at-
tending the meeting. The payrolls submitted in evidence are not
much help because they are either not complete, or they show em-
ployees paid for hours where it is impossible to distinguish training
session hours from time spent in union meetings. I do not have
enough evidence to find that all, or any, employees were paid for
this time.
These people made a number of calls on the evening of
August 27 and told employees to report in the next day for
a meeting.24 There is general agreement that the employees
called were not told the reason for the meeting, nor were
they told whether or not attendance was mandatory, or
whether they would be paid for attending. From all of the
testimony by the employees, I find that they assumed that at-
tendance was mandatory and that they would be paid.
The meetings on the morning and the afternoon of August
28 were held in the lounge area on the second floor or deck)
of the barge, a large room with a bar on one side and 15
or 20 tables with chairs arranged in rows filling the remain-
der of the room. As employees arrived they came upstairs on
their own, or were sent upstairs by Mary Ogelsby or other
supervisors.
Doherty acted as spokesperson for the SIU, and he was ac-
companied again by Sacco and Kelly. He gave a sales pitch
for the Union, emphasizing the Lundberg School, training
and ‘‘career enhancement’’ available through the SIU and on
vessels where it represented all the employees. He talked
about the advantages of unionizing, passed out SIU pins and
hats, applications for membership, and authorization cards.
In reply to questions, Doherty said he told people that it
was a free country, that they didn’t have to sign the author-
ization cards, but pointed out that a lot of the people were
signing he thought that they should sign up too. He did say
that he told the employees that the SIU intended to become
the river boat gambling union for the whole country. He said
‘‘we’re going to be your Union,’’ and ‘‘we are your Union,’’
an ‘‘aggressive and authoritative’’ technique he said he uses
with large groups and has found to be successful.
A number of employees testified as to their impressions of
these meetings. It is difficult from the record to tell whether
employees attended the morning or afternoon sessions, unlike
some union organizing meetings, no attendance sheet was
complied by the Union. Only one attendance, for the after-
noon meeting, was produced from company records. From
the record, I think it is safe to say that the scenario was, for
all practical purposes, the same at both meetings.
Theresa Ann Columbo, a busser on the morning shift, tes-
tified that she attended the afternoon meeting on August 28.
She received a message at her home on August 27 to come
in to work at Alton Belle the next day. She was not told
what the meeting was for or why she was being asked to at-
tend. Columbo rode in to the landing with her sisters Mary
Huntsman and Joyce McKay, and a friend, Joy Motley.
When they arrived on the barge, they were told by Mary
Oglesby that they were to go to the lounge area upstairs for
a union meeting.
When they went upstairs they found 55 or 60 employees
gathered there, as well as four SIU people. The only one
Columbo remembered was Tony Sacco. Robert Feltus, the
night food and beverage manager at that time, was there
throughout the meeting standing at a corner of the bar. Jay
Vaughn and Sharon Hawkins were walking in and out during
the meeting, but they were not present for the whole meet-
ing.
According to Columbo, Sacco spoke to the employees,
saying, among other things, ‘‘we are your union. We are rep-
resenting you for the Alton Belle Casino.’’ Cards and appli-
cations were handed out, and, thinking that the SIU was al-
ready their union, Columbo signed a card. While she and
other employees were signing cards, Feltus was directly be-
hind him, and Hawkins was at the door of the lounge, look-
ing in to the lounge.
Columbo also signed a sign-in sheet there in the lounge.
She asked Feltus if she had to sign, and he told her that she
had to sign her name and the date if she wanted to get paid
for attending the meeting.25
Mary Huntsman, Theresa Columbo’s sister, who rode with
her to the August 28 meeting, testified about the meeting in
general agreement with Columbo. Huntsman did describe the
meeting as lasting 20 or 30 minutes, whereas Columbo esti-
mated the time as a half hour to 45 minutes. Huntsman also
placed Jay Vaughn as present during the meeting along with
Feltus. She also thought she got paid for attending the meet-
ing.
Patricia Edgell, a utility worker, said she was called by
Mary Oglesby, who told her to report to work for a union
meeting on August 28. At her meeting only 15 to 20 em-
ployees were present, but Mark Clark, Robert Feltus, and an-
other, unidentified, woman were present. According to
Edgell, they were not looking at employees while they were
signing their authorization cards. Edgell also assumed she
was going to be paid.
Linda Woodfin, a food waitperson in the first floor dining
room of the barge, drove in on August 28, a scheduled work-
day, with Jacquelin Poe, a coworker. Woodfin testified that
she and Poe went first to the dining room and found no one
there. They then went upstairs where they saw Jay Vaughn,
Sharon Hawkins, and Robert Feltus. They asked Feltus if
they were supposed to be there and he said they were.
They went in to the lounge, where Brian Doherty told
them that he was conducting a meeting, but would hold an-
other meeting for them when he was finished. Woodfin and
Poe went to the back of the room and sat at the same table.
Someone gave them authorization cards. Woodfin called
Feltus over and asked him what was going on. He answered
that ‘‘this is the Union,’’ and told them that ‘‘You’re here
to sign up for the Union.’’ Woodfin asked what if they
didn’t want to. At first Woodfin testified that Feltus
‘‘shrugged’’ and walked away. Later, under examination by
counsel for HERE, she said that, in reply to her question,
Feltus said, ‘‘You have to sign up for the Union. If you want
to work here. The Company—the owners decided they want
a union. This is the Union that they want. So you have to
sign up for the Union.’’ Still later, on cross-examination, and
after referring to her affidavit, Woodfin returned to her origi-
621ALTON BELLE CASINO
26 The buffet on the second level of the barge is separated by a
hallway from the lounge area.
27 The building is three stories high with a store front on Piasa
Street itself where the reservationists were located in August 1991.
The building is on a corner, and there is a side street which rises
sharply, going up from Piasa. There is a door at a level between the
second and third floors and this was used as an entrance to the ac-
tual corporate offices, a few steps up from the entrance, on the third
floor.
28 Appleton was admitted to be supervisor. However, there is no
evidence as to how long she stayed at the meeting.
29 Other than her statement that she had been verbally and phys-
ically abused, neither the events leading up to Oglesby’s resignation
nor the substantive allegations of the charges laid before the EEOC
were explored at this hearing.
nal statement that, after her question, Feltus just shrugged
and walked away.
Jacquelin Poe agreed with Woodfin that Jay Vaughn, Shar-
on Hawkins, and Robert Feltus were around the area where
the Union was holding the meeting. Her version of the con-
versations with Feltus described him as replying to questions
about signing the cards, that the Company had decided that
this was going to be ‘‘our Union,’’ and that if they wanted
to work they had to sign.
Poe then testified that she and Woodfin asked Doherty
about the cards, to which he replied that it wasn’t’ official
but they needed to sign the cards. The SIU was going to be
their union—there wasn’t going to be a ‘‘vote or anything,’’
but it was just a preliminary type of thing.
Mary Louise Smith was another waitperson in the Piasa
House restaurant on the first floor of the barge. At the meet-
ing Smith was seated near Woodfin and Poe at a table with
another employee named Robert A. Buhlman. Smith testified
that Buhlman called Feltus over while the meeting was going
on. He had been at Woodfin’s and at a couple of other tables
where employees were seated, but Smith did not know what
was said at these tables. When he came to Smith’s table,
Buhlman asked him what the Union was doing there, be-
cause Feltus had been telling the employees that they were
nonunion. Feltus said he didn’t know anything about the
Union until he came in and his boss (Brickley) told him to
have everybody in the lounge because the SIU was having
a meeting.
Like Woodfin and Poe, Smith mentioned seeing Feltus,
Vaughn, and Hawkins either standing at or near the bar or
passing through during the meeting.
Robert Feltus testified that he had been asked if the em-
ployees were going to be union, before the SIU came into
the picture. He had merely said to these employees that there
was no union at that time. On the evening of August 27, he
had called a number of employees about a meeting on Au-
gust 28, but no one asked whether they were going to get
paid. He did attend a meeting between 11 a.m. and 11 p.m.
on August 28. However, he said that after he found out it
was a union meeting he was ‘‘in and out,’’ or just standing,
watching the proceedings. Feltus denied that he told Woodfin
and Poe that they had to sign cards.
Sharon Hawkins also was on the barge on the morning of
August 28. She denied even telling anyone to sign a card,
and she claimed that, throughout the meeting, she sat in the
back of the buffet area with Mary Oglesby, Mark Clark, and
Jay Vaughn.26
Another meeting was held on August 28 at Alton Belle
corporate offices at 219 Piasa, a block or so from the landing
where the barges and the boat are located.
Brian Doherty testified that he went around to a side en-
trance of the building at 219 Piasa.27 He went in that en-
trance and up to the third floor. At first Doherty denied that
he met anyone in the third floor corridor, but then said that
he did meet Director of Maintenance Terry Oster and said
‘‘hello’’ to him. Doherty then went down to a room at the
rear of the building where he met with a number of mainte-
nance and utility employees. He got cards signed and left.
Rickey Wayne Edgell (husband of Patricia Edgell, who
testified about one of the meetings on the barge), a house-
keeper, testified that he was called on August 27 by Terry
Oster who told him to come in on August 28 at 3 p.m.
Edgell asked if he was to work and Oster said no, that he
wanted him to come in and sign up for ‘‘your union.’’
Edgell attended the meeting in the backroom on the third
floor at 219 Piasa with 15 or 20 others. The SIU representa-
tives (Edgell said there were two) gave a sales pitch for the
SIU and Edgell, along with others, signed cards. He stated
that no one told him he had to sign.
Terry Oster testified that Doherty and another, unidenti-
fied, SIU representative came in to see him in the last week
of August. They told him they were SIU representatives and
asked if they could speak to his employees. Oster checked
with Long who told him that if they wanted to speak, that
was fine. Oster then called or talked to people who worked
for him and told them about a meeting at 219 Piasa at 3 p.m.
A number of employees came in and Oster himself looked
in on the meeting. He left, but an assistant, Joyce Appleton,
may have stayed.28 Oster denied ever instructing people to
come to the meeting to sign authorization cards.
D. The Testimony of Mary Ogelsby
Mary E. Oglesby, a former executive chef of Alton Belle,
was first interviewed for that position in March and was
hired on June 14, 1991. She remained as the executive chef
during the period we are considering in this case, and, as will
have been noted, she appeared in her supervisory capacity
calling employees in for meetings on August 28, and if not
a participant, at least as an observer to some of those meet-
ings. Although Ogelsby had known and worked with Food
and Beverage Director Bob Brickley, and was personally
chosen by him as executive chef, fortune did not smile on
their relationship, which first soured, then spoiled, resulting
in her resignation on March 10, 1992, and her subsequent fil-
ing of a charge with the Equal Employment Opportunity
Commission.29
Since the testimony of this individual witness, if credited,
has a significant impact on Alton Belle’s later recognition of
the SIU, and on counsel for Alton Belle, I thought it best
to consider this testimony is a separate subsection.
Oglesby testified on June 4, 1992. The record here shows
that she gave an affidavit to an agent from Region 14 on
April 6, 1992. I note, after hearing her testimony, and read-
ing that testimony carefully after the close of the hearing,
that it is apparent that Oglesby’s testimony formed the basis
for several amendments to the complaint herein which were
made at the opening of the hearing on April 13, 1992. I did
comment on June 4 about the effect of this witness on coun-
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sel, but I will state at this point that my evaluation of
Oglesby’s testimony is in no way influenced by her order of
appearance among the General Counsel’s witnesses, nor am
I influenced in any way by the fact that the General Counsel
declined to produce some transcribed notes which resulted
from Oglesby’s interview by a Board agent, in the presence
of counsel for Alton Belle, while she was still employed
there. I have read Oglesby’s testimony as carefully as I ob-
served her demeanor while she was testifying. I have com-
pared her testimony with other witnesses, those brought in by
Alton Belle and the General Counsel, and I have considered
the fact that one witness, Linda Warner, was not called by
anyone. Warner’s absence was explained only by Alton
Belle’s personnel officer, Barbara Dahlen, who said that
Warner was no longer employed by Alton Belle. There was
no indication that Warner was missing, or otherwise unavail-
able to a subpoena by the General Counsel or the Company.
With these postulates, I turn to the testimony itself.
Oglesby stated that she was interviewed by Bob Brickley on
March 23, 1991. During the course of the interview she
asked him if the Alton Belle operation was going to be a
‘‘union house.’’ Both she and Brickley had worked in places
where there had been unions. Brickley said it was going to
be union, but, in response to another question, said that the
union was not going to be HERE, there ‘‘were other irons
in the fire.’’
They had another meeting before June 14 when Ogelsby
actually began working. Ogelsby and Brickley met for lunch
around June 3. The purpose of the lunch was to have
Ogelsby meet Linda Warner, Brickley’s assistant. At this
meeting Brickley told the two women that the union at Alton
Belle would be the SIU, that Long ‘‘was working on a deal
and everything at that point was really, supposedly, tied up.’’
Toward the end of June, after Ogelsby had reported to
work on June 14, Warner and Ogelsby were in Brickley’s of-
fice at 219 Piasa. The subject of unions came up and
Brickley told them that the SIU ‘‘would be the union for ev-
erybody, that this union had been hand-picked by Mr. Long,
and the reason that it was going to be the Seafarers Union
is because they had put a lot of money into lobbying for riv-
erboat gambling.’’
Another incident occurred around the end of July. Ogelsby
said that she was sitting in for Brickley, who was out of his
office, and she took a call from Tom Long. She told him that
Brickley was out, and he told her that he was in Chicago ne-
gotiating with the SIU; and that the SIU would be the union,
and to have Brickley wait for a call from him later that after-
noon.
Not too long after that, still in July, Oglesby testified that
Tony Sacco and Brian Doherty came in to 219 Piasa. Sacco
and Doherty introduced themselves as union representatives
and gave out ‘‘some pins and hats.’’
During the first week of August, Oglesby was on the
barge where she had some employees doing cleaning work.
Brian Doherty was there and he asked if he could speak to
these employees, Gene Naylor, Bea Jozak, Jack Milster, and
Virgil Alexander. Ogelsby agreed and brought the employees
up to the buffet area. Doherty then told them that the SIU
was their union representative, and had them fill out mem-
bership cards. The employees objected to signing the cards,
and Oglesby, who had remained there while Doherty was
talking to the people, told them that ‘‘the Alton Belle Casino
was a union house, and to work there they had to be a mem-
ber of the union. She had them sign the cards.’’
In another incident, Oglesby testified that she filled out a
union authorization card for her daughter, Ann Marie
Ogelsby, and gave the card to Doherty.
In August, in the period between August 12 and 18,
Ogelsby encountered two HERE representatives, a man and
a woman, in the kitchen on the barge where she was work-
ing. They were looking through refrigeration units, and
Oglesby went up to them and asked who they were. They
said they were from HERE. Ogelsby told them they were not
allowed in the kitchen and they had to leave. After some
words were exchanged, they left. Oglesby called Brickley
and told him about the incident. He called her back and told
her that if she saw HERE people in the landing area, to ask
them to leave, and, if they didn’t, then call security. Oglesby
added that SIU representatives were allowed, at that time, on
the landing and in the kitchen.
Later, Brickley told Ogelsby that there were going to be
problems with HERE and that they were going to be allowed
to have a meeting and to pass out flyers. But on the day be-
fore this meeting Brickley told Oglesby to call everyone
scheduled for the evening shift and tell them not to come to
work that night. People actually working when the meeting
was scheduled were to be sent home. Sharon Hawkins, Jay
Vaughn, and Mark Clark, later joined by Robert Feltus, were
to make the calls to employees to tell them not to come in.
Calls like those were made on more than one occasion.
At the end of August, on the 26th, 27th, or 28th, Brickley
informed Oglesby that there was going to be a meeting (for
the SIU) and the supervisors, Oglesby, Clark, Hawkins,
Vaughn, and Feltus, needed to make employees aware of it.
So, as Oglesby put it ‘‘again,’’ they called employees, but
this time telling them that they were required to come in,
rather than stay home, for meetings.
Hawkins, Vaughn, Clark, and Ogelsby were present while
the morning meeting was going on. The meetings were in the
lounge, and the supervisors were sitting on the side of a
stairwell going down to the first level, just outside the lounge
area. Oglesby said that she could hear what was going on so
that she could report back to Brickley.
After the meeting was over, a number of employees were
concerned about signing up with the SIU. Oglesby told them
that this was a union house, and they had to sign cards to
work there.
Oglesby also stated that the employees who attended this
SIU meeting were paid for the time spent there. She was not
asked how she happened to know this.
Bob Brickley, the food and beverage director, and super-
visor of the various department managers, Vaughn, Hawkins,
Feltus, and Oglesby, within the food and beverage position
of the operation, testified that he had known Mary Oglesby
for 6 or 7 years and that he had hired her as executive chef
at Alton Belle.
Brickley was not an open or forthcoming witness. Many
of his answers were delivered in single syllables to some-
what leading questions propounded by counsel for Alton
Belle. In several respects his testimony corroborated that of
Oglesby. For example, he said that he ‘‘could have dis-
cussed’’ unions during conversations with Oglesby before
she was hired, but he did not recall what was said. He also
agreed with Oglesby’s testimony about calling in employees
623ALTON BELLE CASINO
30 See testimony of Walter J. Elliott, secretary-treasurer of HERE
Local 165, from Las Vegas, who was brought in to aid the HERE
campaign at Alton Belle.
on August 27, but he denied that any of the employees who
attended the union meetings on August 28 were paid for that
time, although they may have been paid for training, or other
work performed for the Company on that day. Brickley de-
nied that he told Oglesby that the operation would be union
(although it must have been generally known that Tom Long
had stated publicly that Alton Belle would be a union house),
and he denied that he had told Oglesby and Linda Warner
that the union was going to be the SIU, ‘‘hand-picked’’ by
Long because of their lobbying efforts before the Illinois leg-
islature to get riverboat gambling legislation passed by the
legislature. Brickley did say that he, Warner, and Oglesby
went to lunch every day for a period between June and Au-
gust 1991, but he did not remember any talk about unions
or lobbying.
Indeed, Brickley said, he was surprised when Tellez
showed up at 219 Piasa Street on August 21 or 22 and that
HERE had not appeared, even though their offices were right
next door to 219 Piasa.
In the August 27 telephoning, Brickley told Oglesby and
the other supervisors to call the employees in because he had
been told by Tom Long to ‘‘cooperate’’ with the SIU, and
he was asked by SIU representatives to get hold of employ-
ees for a meeting on August 28.
The differences, and they are important differences, be-
tween the testimony of Oglesby and Brickley concern the
question of whether Brickley told Oglesby and Linda Warner
that Tom Long had ‘‘hand-picked’’ the SIU as the union for
Alton Belle because of services rendered in getting the Illi-
nois to push through the riverboat gambling bill. Brickley de-
nied these allegations specifically. His testimony was sup-
ported by Tom Long, who testified that he was not aware
of the SIU lobbying at the Illinois legislature during consid-
eration of the riverboat gambling bill, nor, in fact, was he
aware of any other union so occupied.
Steve Jackson, a political field representative employed by
the SIU, testified that he does lobbying and aids in political
campaigns on behalf of the SIU. He covers a midwestern ter-
ritory, including Indiana, Kentucky, Missouri, and Illinois.
Jackson stated that there had been ‘‘absolutely’’ no lobbying
and no money expanded on riverboat gambling, except in
Missouri and possibly in Texas. As far as Illinois was con-
cerned, Jackson said he monitored the course of the legisla-
tion through reading newspapers or clippings sent to him by
‘‘friends.’’ He was equally emphatic that he did not lobby,
and that no one else did, on behalf of the SIU.
Beyond Oglesby’s references to Brickley’s conversations,
there is no further testimony on the subject of lobbying by
the SIU. Tom Hanley, the president of HERE Local 1 in
Chicago and vice president of the HERE International, would
certainly have been in a position to know if there was any
lobbying going on. Hanley’s interest in politics is dem-
onstrated, as we shall see, by his friendship with former Illi-
nois Governor Jim Thompson, and the passage of the river-
boat gambling bill must have involved most serious political
considerations, would have made him aware of what was
going on in the corridors and cloakrooms of the State Capital
in Springfield while the legislation was being studied and de-
bated. Yet Hanley mentioned nothing about any lobbying by
the SIU, or by HERE.
On the question of lobbying, which goes to the origin of
Brickley’s statements to Oglesby, I would be naive if I did
not realize that a proposal such as the authorization of gam-
bling on riverboats would bring on efforts by many people
who could gain by the enactment of the proposal, and, on
the negative side, by those who feared, or were offended by
it. Both the SIU, a union hurt by the decline of the American
shipping industry, and HERE, always interested in more jobs
for its members, and having experience with casino gambling
in Las Vegas and Atlantic City,30 could well have seen jobs
in this bill and could have, overtly or covertly, attempted to
assist in the passage of the legislation. But there is no evi-
dence of that here, and I am constrained to find that there
has been no showing that the SIU engaged in any lobbying
before the Illinois legislature in support of the riverboat gam-
bling legislation.
This finding still leaves the question of whether, even in
the absence of any lobbying efforts by the SIU, Brickley said
that the Union would be the representative of Alton Belle
employees, a prediction which did, lobbying or no lobbying,
come to pass, proved to be accurate.
To settle this question, I think it is necessary to look at
the rest of Oglesby’s testimony, other findings, and undis-
puted facts in order to measure credibility.
The first factor is Oglesby’s memory on dates. She had a
firm and outgoing demeanor, her voice was clear and posi-
tive, and she showed no hesitation in her recital of the facts.
But her description of a meeting with Sacco and Doherty at
219 Piasa in July is clearly at variance with the facts as testi-
fied to by Doherty, by Terry Oster, by Brickley, and by Tom
Long that Doherty was never even in Alton until August 26.
Oglesby’s next misstatement on dates was with reference
to a meeting between SIU representatives and employees
Gene Naylor, Bea Jozak, Jack Milster, and Virgil Alexander
in the first week of August at which time these employees
signed authorization cards. The record here (G.C. Exh. 44)
shows that all of these employees were hired on August 14
and could not have met with the Union on the barge in the
first week of August. Moreover, the record (G.C. Exh. 11)
shows that Milster and Naylor signed cards on August 27,
and Alexander and Jozak on August 28.
Oglesby also testified that these employees were reluctant
to sign the authorization cards until Oglesby herself told
them that they had to sign if they wanted to work. Naylor
and Jozak testified that no management people told them to
sign cards. Milster had left his job at Alton Belle on Sep-
tember 22, and Alexander was not called to testify.
Another assertion which Oglesby made was that sometime
before August 28 (the date was not given but it must have
been between August 12 and 27, in the order of Oglesby’s
testimony). Brickley told her that HERE was going to hold
a meeting on the Alton Belle property, but that she and other
supervisors were to call ‘‘everyone scheduled for the evening
shift’’ and tell them not to come in that night. People actu-
ally working were to be sent home before the meeting.
Oglesby, Sharon Hawkins, Jay Vaughn, Robert Feltus, and
Mark Clark all made calls. This, according to Oglesby, was
done on more than one occasion. Aside from the chronology
of this testimony, there were no HERE representatives
present on the barge or on the boat until August 29, nor were
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 I have, in coming to this conclusion, considered the testimony
of counsel for Alton Belle. But I have not considered the absence,
without explanation, of Linda Warner, an alleged witness to
Brickley’s statements, as giving rise to any inferences against the
Respondents, or against the General Counsel. Nor have I considered
the late appearance of Mary Oglesby as a witness as a factor in my
decision as to credibility.
32 The meeting was set up by one Greg Baines, a former candidate
for state treasurer in Illinois, and a ‘‘long time political friend’’ of
Long’s. According to Long, Baines accompanied him to the meeting.
Hanley, in his testimony, described this meeting as taking place in
June. Later it was stipulated that the meeting was, as testified to by
Long, on March 22.
33 This agreement expresses the intent by the Company to remain
neutral in any union organizing campaigns, to recognize HERE on
the basis of a card check, and to allow HERE access to its employ-
ees.
34 His guess was wrong, but, as noted above, Long admitted that
he was not knowledgeable about labor laws.
35 The facts are, as stipulated by the parties, that there were no
telephone records of any calls from Hanley to Long in the period
from March to August 1991. This fact, as well as Hanley’s poor
memory, and scattergun recollection of events leads me to doubt his
credibility with respect matters material to the issues here.
there ever, so far as I can find in this record, any requests
for meetings by HERE.
I also note that Oglesby made herself available to the Gen-
eral Counsel, and gave an affidavit on April 6, 1992, con-
cerning the events in which she participated. From April 12
to June 4, 1992, the General Counsel presented 14 employee
witnesses, almost all of whom testified about being called in
to attend a meeting, which turned out to be an SIU meeting.
None of these employees were asked any questions about
whether they had ever been called and told not to attend any
meetings, or not to come to work on any specific day.
With regard to the confrontation between Oglesby and
HERE representatives in the kitchen, described by Oglesby
as occurring between August 12 and 18, before the telephone
calls to tell people not to come in for HERE meetings, Mary
F. Jarrett, president of HERE Local 15, testified that she was
on the barge on August 29, with another HERE representa-
tive. There was no one around so they went into the kitchen,
at which point Mary Oglesby kicked them out.
Some of the incidents related by Mary Oglesby did hap-
pen, and at the times she described. However, her testimony
is so ridden with errors in time, and in chronological order,
and is so contradicted by testimony of others, for example,
Gene Naylor and Bea Jozak, and by Mary Jarrett, all of
whom I find to be credible witnesses, that I cannot credit
Oglesby’s statements allegedly made concerning Brickley.
These statements attributed to Brickley are, in the light of
this record, just not credible.31
Since I have found her testimony not to be credible in cer-
tain instances, I find that her claim that she filled out and
signed an authorization card with the name of her daughter,
Ann Marie Oglesby, and gave the card to Brian Doherty
about the first week of August is not credible. As I have
noted Doherty was not in Alton until August 26. Ann Marie
was not hired until August 14, and there is no card for Ann
Marie among those cards submitted in evidence here by the
General Counsel.
E. The HERE Organizing Campaign
In amendments to the complaint herein made at the open-
ing of the hearing on April 13, 1992, the General Counsel
alleged that at various times in August 1991, including Au-
gust 19–21 and 27–30, Alton Belle rendered unlawful aid as-
sistance to the SIU. In furtherance of this allegation, the
General Counsel alleges a course of disparate treatment be-
tween the SIU and the HERE unions, with the former al-
lowed access and favorable treatment, and the latter denied
access and given unfavorable treatment.
To evaluate this position it is necessary to review the orga-
nizing campaign mounted by HERE, and its reception by
Alton Belle. Almost all of the facts on this issue are undis-
puted and may be simply stated.
Mary F. Jarrett, who was called as a witness by Respond-
ent Alton Belle was, at all times material here, the full-time
president of HERE Local 15. The Local has two employees
beside Jarrett, her husband, Ben Jarrett, vice president and
organizer, and Lea Adaire, secretary. Up until August 31,
1991, the Local had its offices at 217 Piasa Street in Alton,
next door to Alton Belle’s corporate headquarters at 219
Piasa.
Jarrett was aware of the Alton Belle situation which was
apparently on again and off again for some time.
Finally, in February 1991, Jarrett called Lakin, who was
one of Alton Belle partners. She met with Lakin, on Feb-
ruary 22, expressing the interest of the Local in representing
Alton Belle employees. Lakin referred her to Tom Long.
In March, Jarrett talked to Dale Stormer, of Toledo, Ohio,
an International vice president of HERE who was in charge
of a district including Alton. She told Stormer that they were
getting ready to ‘‘start up the boat’’; that she had contacted
Lakin and a public relations man for the boat whose name
was Vanader. Vanader had asked Jarrett to send him copies
of contracts that the Local had in the area.
Later, in April, Stormer called her and said that Alton
Belle was going to be an International organizing campaign,
and that they were handling this campaign and campaigns for
all the riverboat gambling casinos.
Meanwhile, Thomas W. Hanley, president of Local 1 in
Chicago and an International vice president of HERE, had
begun his own campaign. He set up a meeting with Tom
Long at the Hyatt Regency Hotel in Chicago on March 22.32
Hanley was accompanied by a man named Sonny Grees, de-
scribed as a ‘‘consultant.’’ They discussed the Union’s inter-
est in organizing riverboats, and Hanley presented Long with
a document entitled ‘‘Neutrality Agreement’’ and asked him
to sign it.33 Long guessed that this paper meant that he was
recognizing the HERE union, and he refused to sign it.34
When the meeting ended, Hanley said that Long told him he
would call, but he never did. After this, Hanley testified that
he called Long ‘‘constantly’’ at his home, at the boat, and
the casino offices. Never once was a call returned.35
After the first meeting, on March 22, Long got back to
Alton and read a ‘‘massive’’ article in the St. Louis Post-
Dispatch on connections between HERE and ‘‘the mob.’’
Long was very concerned and began inquiring about this
matter. According to Long, his business ‘‘had to be abso-
lutely, pristine, clean,’’ and they could not ‘‘have any asso-
ciation with anybody who has any type of tainted character
or reputation. We just can’t tolerate it.’’
625ALTON BELLE CASINO
36 Long is reported by Hanley as saying this sometime after 3 p.m.
on August 28. Hanley must have been mistaken about that first date.
37 The payrolls submitted in evidence here show very few people
working on August 29.
38 There was no organizing activity, so far as I can tell, on August
30, and over the Labor Day holiday, August 31 and September 1
and 2.
39 The original charge in this case, 14–CA–21601, was filed on
September 4.
Back at Local 15, Jarrett testified that Hanley called her
in July and asked her to send him any information she had
on what was going on with Alton Belle. She complied, send-
ing him clippings from newspapers, including advertisements
for employment. After that she talked to Hanley about every
other week, giving him all the information she had. He told
her that the International was handling the matter and that
she was not to worry about it. Jarrett and her husband felt
strongly that they should go down to the boat and hand out
leaflets, talk, or do something, but she was told that the
International was handling the campaign and she was to do
nothing. Thus, when people called her, including Patricia and
Rick Edgell, Sheril Carpenter, and a woman named Robin,
she told them that she would like to get cards from them
when the International started organizing.
What Hanley did to handle the campaign was to set up an-
other meeting, this time at the law offices of former Illinois
Governor Thompson, on August 23, between Hanley, Long,
and Thompson. At this meeting, Hanley again expressed an
interest in organizing Alton Belle. Long told him to come on
down to Alton and that he would give HERE the same co-
operation as the SIU. Long also said that he had recognized
the SIU for the deckhands. Hanley replied that HERE had
a ‘‘deal’’ with SIU (or were going to work out a deal) and
the recognition of the deckhands did not concern HERE.
The HERE organization drive finally commenced with the
arrival of Hanley, Terry Maloney, Curt Calabrese, and James
Davern in Alton on the evening of August 27. On the next
day Hanley sent his crew down to the landing to start the
campaign. Terry Maloney, secretary, business representative,
and organizer for Local 1, testified that, on August 28, he
went to Local 15’s office, which was still at 217 Piasa. There
he found out that the SIU was holding a meeting at Alton
Belle’s headquarters next door at 3 p.m. When people were
leaving that meeting, the HERE people tried to talk to people
leaving the meeting. Maloney testified that his group
(Maloney, Calabrese, and Davern) then heard of a meeting
on the barge at 4 p.m. They went down to the landing, but
were refused admittance to the barge because they did not
have passes.
In the meantime, Hanley met with Tom Long around 3 or
4 p.m. Long and Hanley went down and Long showed him
around the boat. Long said that the SIU had been around for
3 or 4 days, but that Hanley would have the boat to ‘‘him-
self’’ on August 28,36 29, 30, and September 3 and 4.
The next day, August 29, the HERE representatives met
with and in Local 15’s headquarters at 217 Piasa. Long gave
them three passes, Long then brought three of the HERE rep-
resentatives onto the barge and up to the lounge area on the
second level. They set up tables with literature and talked to
three or four people. They stayed until noon, but there were
no people there.37 In the afternoon they went back and wait-
ed around again. During this afternoon there was at least one
confrontation with Brian Doherty. Doherty wanted to use the
same area where the HERE people had their tables set up in
order to talk to 10 or 12 security guards. They told him to
leave and he moved to the other end of the room. About 4
p.m., Long came by and told the HERE representatives to
leave.
James Davern, a vice president and organizer for Local 1,
testified that there was a meeting scheduled for August 29
at 4:30 p.m. He did not say who scheduled the meeting, but
the HERE representatives were told to leave before it started.
Brian Doherty testified about another confrontation on Au-
gust 29, where voices were raised and it looked as if there
was going to be trouble on board the barge. He testified that
later that day or evening he and Augie Tellez went to Local
15’s offices and spoke to Hanley. They worked out an agree-
ment to refrain from confrontations and arguments, and to
leave each other alone during the organizing efforts.
However, the row on August 29 came to the attention of
management, and Long ordered that all union representatives
would be barred from the landing on September 3 and 4 after
the Labor Day weekend.38
The HERE people from Chicago returned home for the
weekend, and came back on September 3. They were joined
by Walter Elliott, a HERE official from Local 165 in Las
Vegas, Vincent Sirabella, HERE’s director of organizing, and
an organizer named Papageorge. The HERE representatives
were told by Maury Sterner, manager of the Alton Belle Ca-
sino, and John Connors, president of one of Alton Belle gen-
eral partners, that no union people could get on the property
for the next 2 days, September 3 and 4. They were required
to move to the other side of the street from the entrance to
the landing, and they attempted to organize from that point,
and at meetings conducted in a local restaurant. They contin-
ued to have meetings at the restaurant up until September
7,39 at which time a collective-bargaining agreement was
signed by the SIU and Alton Belle.
It is clear from these undisputed facts that HERE was
aware of the Alton Belle operation early on; that HERE,
through Tom Hanley, and a political friend of Tom Long’s,
made contact with Long and, at the Hyatt Regency meeting
on March 22, expressed their interest in organizing Alton
Belle. At this meeting Hanley asked Long to sign an agree-
ment to recognize the HERE Union on presentation of
verified authorization cards. As noted above, Long refused to
sign. Then, having made that original gesture, HERE did
nothing, Hanley did not call Long. Hanley and District Di-
rector Dale Stormer warned off efforts by Local 15, ex-
pressly telling President Jarrett to stay away from any orga-
nizing efforts. After this, the inaction continued through the
summer, until, at another meeting between Long and Hanley
on August 23, by which time 180 employees had been hired
by Alton Belle, Long told Hanley that the SIU was in the
picture and that Alton Belle had recognized that Union for
the deckhands.
Even after that, HERE delayed, not arriving in Alton until
August 27 of August, and not even approaching manage-
ment, or going down to the landing area, until after 3 o’clock
in the afternoon of August 28, by which time, as described
in the next section of this decision, the SIU had secured a
majority of cards in an overall unit of deckhands,
reservationists, food and beverage, maintenance, and utility
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 G.C. Exh. 44 shows that as of August 28, 8 of these employees
had been separated from the Company, leaving the total actually
working as of that date to be 187.
employees. By the time HERE had obtained passes to go on
to the landing on August 29, the SIU had demanded recogni-
tion based on a majority of signed cards, which demand was
agreed to, after a card check, on August 30.
Thus, it would seem that the SIU majority, if otherwise
lawfully obtained, was not obtained on the basis of disparate
treatment between a union which was on the scene and orga-
nizing, and another union which had no presence at the scene
until after the majority had been obtained.
F. The Alton Belle-SIU Contract
The General Counsel maintains that the contract entered
into between Alton Belle and the SIU was sketchy, hastily
drafted, and cozily negotiated at breakneck speed, with no
real benefits not already available in the Alton Belle em-
ployee handbook, thereby leading to a conclusion that the
contract was part of a charade, of a piece with the fast-shuf-
fle ecclesiastical verification of signatures, the premature rec-
ognition of August 23, and the precipitate organizational tac-
tics rushed through by Brian Doherty with the help of Alton
Belle’s supervisors and managers.
Looking in this section at the contract and the cir-
cumstances of its negotiation, I do not believe that there is
any evidence in this record to show that the contract was not
negotiated and agreed on in any wise differently from other
contracts entered into between two parties who are sincerely
interested in coming to an agreement. To be sure, the nego-
tiations were hasty. This could mean that the parties were at-
tempting to forestall the organizational efforts of HERE, or
it could mean that the parties were trying to finalize their
agreement before the casino operations were to begin on
September 9.
The contract proposals and documents give every appear-
ance, on their surfaces, of legitimacy. The SIU opened the
negotiations with a ‘‘shell’’ contract proposal, calling for rec-
ognition of the Union, definition of the unit, union shop, hir-
ing hall, checkoff grievance and arbitration, safety, and a few
other provisions, leaving the economic issues for later nego-
tiation. These shell contracts are more common in the public
sector, where economic conditions are set by legislative bod-
ies, rather than by collective bargaining, but they are also
used in the private sector.
The Company responded with a set of full blown contract
proposals, which then served as the basis for negotiations.
The testimony of Tom Long, Augie Tellez, and Brain
Doherty shows me that there were some conflicts, some dif-
ferences, but these were negotiated, rather than being im-
posed by one side or the other. The basics of the Union’s
initial proposal, fundamental issues like union shop, check-
off, and a binding arbitration procedure, remained in the
agreement reached.
I cannot make a determination on the economic issues in
the absence of any basis of comparison with, say, the SIU
agreements on the river with towboat operators, or with the
often-mentioned Delta Queen and Mississippi Queen cruise
ships. Nor can I compare this contract with agreements cov-
ering restaurants, hotels, and/or lounges in the Alton area to
see whether the wages paid and benefits offered compared
favorably or unfavorably.
In the absence of any such evidence, I cannot find that the
negotiations or the contract itself lead to a conclusion that
the process was a collusive effort to deceive HERE, or the
employees, or the Labor Board, or all three.
G. The Recognition of the SIU
I have departed from a strict chronological order in de-
scribing events here because I wanted to place before the
reader of this decision all of the events which might serve
to illuminate the motivations of Alton Belle and the SIU in
the actions leading up to, and including, the Company’s rec-
ognition of the Union.
Augustine Tellez testified that after the employee meetings
on August 28, he, with Byron Kelley, and Brian Doherty, de-
termined, generally, what an appropriate unit would be at
Alton Belle, and they estimated the numbers of employees
they thought it would take to run the operation. Having fig-
ured all that out, they determined that they had a majority
of cards for that unit.
The figures in the document I have used throughout this
decision, General Counsel’s Exhibit 44, show that, as of Au-
gust 28, 195 people had been hired.40 These included the
deckhands, reservationists, utility, housekeeping, mainte-
nance, bussers, bartenders, cocktail and food servers, gift
shop, and kitchen employees. The union people estimated
that they had a total of 137 cards. My figures, eliminating
the licensed shipboard personnel, show a total of 122 cards,
which would constitute a majority of these currently em-
ployed.
On the question of whether a representative complement
of employees were then on the payroll, General Counsel’s
Exhibit 44 shows that by April 6, 1992, just before the open-
ing of this hearing, a total of 292 people had been hired. Of
these, my figures show that 92 had been separated from em-
ployment. This leaves a total of 200 employees as of April
6, 1992, showing that the total of 187 as of August 28, 1991,
was in fact a representative complement of employees.
As far as the unit is concerned, no one has raised any
question as to the appropriateness of the unit contained in a
Memorandum of Understanding executed by Long and Tellez
on August 30:
All full time and regular part time employees of Alton
Riverboat Gambling Partnership at its Alton Belle Ca-
sino, but excluding all gambling dealers and all slot de-
partment employees and others directly involved with
the dealers of line games, supervisors, managers, guards
and all other employees excluded under the National
Labor Relations Act.
This definition was changed slightly in the parties’ collec-
tive-bargaining agreement signed on September 7 by adding
after the words ‘‘all other personnel directly involved with
line games’’ the words ‘‘all accounting department per-
sonnel, including cashiers.’’
In the absence of any objection to this description of the
unit as contained in the September 7 contract, and insofar as
the question of the unit may be relevant here, I find that the
unit as described in the contract is an appropriate unit.
627ALTON BELLE CASINO
41 Jackson testified here on the question of lobbying, described
above, but he was asked no questions about the submission of the
cards to Father Campbell.
42 There is no evidence of what Father Campbell used to compare
the signatures, or where he got the comparison data. The General
Counsel urges that I disbelieve the assertion in the letters both from
Father Campbell on August 30, and from Monsignor Polizzi of St.
Roch’s Church in St. Louis for the first 31 cards, because neither
cleric was produced to verify their letters. However, no evidence
was introduced by the General Counsel casting any doubt on the sig-
natures. All those who testified about the cards admitted their signa-
tures to be genuine. I admitted all these cards into evidence and I
have no reason to doubt their authenticity.
After concluding that the SIU had a majority, based on
signed and valid authorization cards, in an appropriate unit,
Byron Kelley wrote to Long on August 29 claiming this ma-
jority and offering to submit the authorization cards for an
independent confirmation (of their validity). A total of 137
cards were submitted by the Union’s political field represent-
ative, Steve Jackson,41 to the Reverend Michael A. Campbell
of the Church of Saint Raphael the Archangel in St. Louis.
Father Campbell duly verified the signatures and reported
them to be valid, by letter dated August 30.42
That same day, Long and Tellez prepared and signed the
Memorandum of Understanding recognizing the SIU as the
collective-bargaining representative for the above-described
unit, and agreeing to commence bargaining for an agreement.
Standing by itself, these last stages of the organizing effort
by the SIU, the submission of the cards to Father Campbell,
the priest’s certification, the numbers of cards compared to
the current number of employees, a reasonable complement
of staff, the unit claimed to be represented, and the recogni-
tion by the Employer, all appear to be orderly and legitimate.
The General Counsel, however, points to a number of cir-
cumstances outside of these last stages of the recognition
process to urge that I find that the Employer in fact unlaw-
fully assisted the SIU, and that the recognition itself con-
stitutes a violation of Section 8(a)(2) of the Act. Concur-
rently, the SIU, by accepting such unlawful assistance, has
violated Section 8(b)(1)(A) of the Act. The contract is in-
valid, the SIU must be disestablished as the bargaining agent
for Alton Belle’s employees, and the Union must pay back
all dues which it has received under the unlawful terms of
the contract.
As may be noted above, I have had considerable difficulty
with some of the General Counsel’s positions here. I do not
believe the testimony of Mary Oglesby, whose inconsist-
encies and demonstrably untrue statements made her testi-
mony worthless in proving a predisposition by Alton Belle
toward the SIU or threats to employees either to sign up or
have no job. As far as HERE is concerned, the testimony of
Mary Jarrett, which was corroborated by Tom Hanley (un-
wittingly, perhaps), shows that HERE was not prejudiced at
all by any actions of Alton Belle or the SIU. HERE was just
too late. By the time that HERE representatives got to the
place where organization could take place, it was after 4
o’clock on the afternoon of August 28, and, by that time, the
SIU already had its majority of authorization cards. With re-
spect to the contract as a tell-tale for an illegal recognition,
there is really no evidence of collusion, or a sweetheart deal.
The General Counsel’s references to scribbled notes taken
during bargaining are not convincing. Notes taken during
contract negotiations are almost always scribbled and fre-
quently incomprehensible, even to the author, 6 or 8 months
later. I will grant the General Counsel that Augie Tellez was
a forgetful witness, but in the absence of any objective evi-
dence to show comparisons between the contract provisions
noted here, and other agreements either on the river or in the
hotel or restaurant business, I cannot say that the contract is
evidence of unlawful intent by either of the parties.
On the question of pay to employees for attending SIU
meetings, I do not find that it has been established whether
or not the employees were paid. Some of them were in-
volved in training, or in cleaning, or other chores preparatory
to the opening of the casino, some may have worked an hour
or two, and been also paid for a union meeting, others may
have not. Payrolls submitted for August 19, 27, and 28 do
not permit any objective way to decide whether a credited
hour was devoted to work, or to the Union.
Moreover, despite the General Counsel’s assertion that I
should believe the nine employees still employed at the time
they testified, I find the testimony of these employee wit-
nesses to indicate poor memories in many cases. Several of
them were engaged in a wage dispute with Alton Belle and
the Union, while others had signed cards for HERE, which
brings up possible conflicts. I do not credit too much of their
testimony. I believe, because there really is no dispute, that
supervisors were present at the meetings on August 27 and
28, but I do not believe the several allegations that super-
visors told employers to sign cards or lose their jobs.
I do, however, agree with the General Counsel on two
issues. I believe, as I have already indicated, that the rec-
ognition by Alton Belle of the SIU on August 23 was pre-
mature, and that the unit, considering that it purported to be
for ‘‘all nonsupervisory personnel,’’ did not represent a rep-
resentative complement, nor, indeed, did it represent any-
where close to a majority of employees already working.
I, therefore, find that Alton Belle violated Section 8(a)(1)
and (2) of the Act, and that the SIU violated Section
8(b)(1)(A) of the Act by the recognition and acceptance of
that recognition on August 23. The fact that, in my opinion,
neither the Employer nor the Union knew they were doing
anything wrong, in fact I do not believe they knew what they
were doing at all, makes any difference in this conclusion.
Price Crusher Food Warehouse, 249 NLRB 433 (1980); Al-
lied Products Corp., 220 NLRB 732 (1975).
The second issue on which I am in agreement with the
General Counsel’s conclusion, although perhaps not with her
reasons, is the issue of the second recognition on August 30.
In looking at the reasons for this recognition I note, of
course, the premature recognition of August 23. The cards
used in that recognition I have found to be valid (not 31
however, but 22) and they continued to be valid in the count
of the August 30 recognition in the larger, appropriate unit.
However, the effect of that earlier, unlawful, action must
have had an effect on the employees’ impressions of the sta-
tus of the SIU. So that when Brian Doherty, in his ‘‘sales’’
message to larger groups of employees on August 27 and 28
spoke of the SIU being ‘‘their union,’’ the employees who
knew about the earlier recognition, may, as several people
testified, have felt that the game was already over and the
SIU was their representative.
Doherty, on the whole, was a credible enough witness, but
he did slip when he said he never asked management to
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 I cannot find that the supervisors who made the calls said to ev-
eryone that the meetings were mandatory, although a few may have
been told that.
44 Feltus himself testified that he attended only one of the meet-
ings. He would have been easily recognized as he is a tall, good-
looking, well-dressed man, and he was the only African-American
who testified here.
45 I credit Feltus and Mary Smith, who testified that he did not
tell employees they had to sign cards, over Linda Woodfin and Jack-
ie Poe, who said that he did. I note that Poe and Woodfin were in-
volved in a grievance over wages with both management and the
SIU at the time of the hearing.
46 I infer and find, also, that Alton Belle must have agreed to have
these supervisors remain at the meetings. Otherwise Brickley, who
was there, could have told them all to leave.
bring employees in for meetings. He did not want them
‘‘herded’’ in, as he put it. However, based on credible testi-
mony from Bob Brickley and Terry Oster, ask, Doherty did,
and herded, the employees were.
Then, at the meetings on August 27 and 28, the employ-
ees, having been called in,43 were literally ‘‘herded’’ up to
the lounge area. All of the witnesses did not agree on the
details of the meeting, but all were in basic agreement on
some facts. There were at least three SIU representatives
present, most remembered Brian Doherty, and that a sales
pitch was made to them, including the phrase ‘‘we are your
union.’’ All agreed that there were a number of supervisors
there. Robert Feltus figures prominently in the testimony as
standing leaning against the bar throughout the meeting.44
Feltus also went around to several tables and answered ques-
tions about the cards and applications which had been passed
out by the Union.45 Other supervisors who were prominent
at the meetings were Sharon Hawkins, Jay Vaughn, and
Mary Oglesby. Vaughn was said by several witnesses to
have been present through the whole of at least one meeting,
in the lounge; Hawkins passed through on a number of occa-
sions; Brickley at least once; and Oglesby was around the
hallway between the lounge and the buffet area.
Doherty is an experienced and obviously skilled organizer
with dozens of campaigns notched on his belt. As such, I
cannot believe that by his second day, having had pretty
much free run of the barge and landing areas, he did not
know who the supervisors were. He testified that he did
know Louis Drieth, the head of security, and had asked him
to leave an area where he was talking to employees. I find
that he must have known Feltus, Vaughn, Hawkins, and
Oglesby, by the time of the meetings on August 28.
Brickley, he did know, because he asked Brickley the day
before to call the employees in for the meetings. I do not
credit Doherty’s denial that he knew the supervisors, and I
do believe that he acquiesced in their presence at his organi-
zational meetings.46 The impact on employees of statements
that the SIU was their union, together with the constant pres-
ence of supervisors at the meeting, witnessing the card sign-
ing, in the case of Feltus, answering employee questions
while the meeting was going on, must have been profound.
Several employees felt obliged to sign because of the pres-
ence of the supervisors.
Based on these factors, I find that the conduct of these
meetings in this manner constituted coercion of employees
and unlawful assistance by Alton Belle, and unlawful accept-
ance of such assistance by the SIU, is violation of Section
8(a)(1) and (2) and Section 8(b)(1)(A) of the Act.
Having so found, I find that all of the cards obtained as
a result of these unlawful conditions are tainted and may not
be counted toward a majority. Therefore, I find that the rec-
ognition on August 30 is invalid and unlawful, and further
violations on the part of the Company and the Union of Sec-
tion 8(a)(1) and (2) and Section 8(b)(1)(A) of the Act.
The next step, which must necessarily follow, is that the
contract negotiated on the basis that the Union was the law-
fully recognized bargaining representative is itself invalid
and unlawful. Alton Belle, by entering into such a contract,
containing union-shop and checkoff provisions, has violated
Section 8(a)(1), (2), and (3) of the Act, and the SIU has vio-
lated Section 8(b)(1)(A) and 8(b)(2) of the Act. Farmers En-
ergy Corp., 266 NLRB 722 (1983); Siro Security Service,
247 NLRB 1266 (1980); Famous Castings Corp., 301 NLRB
404 (1991).
H. The 8(a)(1) Violation
The General Counsel alleges in the complaint that the
Alton Belle employee manual, given to each employee on
hiring, contains, on page 18, a specific prohibition of solici-
tation ‘‘during working hours,’’ and from distributing lit-
erature, pamphlets, or other materials in ‘‘Company areas.’’
This would appear to be a violation of Section 8(a)(1). Our
Way, Inc., 268 NLRB 394 (1983), even though there is no
evidence that it was ever enforced Independent Stations Co.,
284 NLRB 394 (1987).
However, the Company amended the rule by a notice to
employees, posted on the company bulletin board by Rick
Watts, a personnel assistant, on October 9, 1991. This did
not, apparently, have much effect, because nine different em-
ployees who identified the employee manual testified that
they had never seen the notice of the revision. I think the
General Counsel is correct that the original rule was in effect
during all the events which make up this case. Furthermore,
I think that the posting of a notice off in some corner on a
bulletin board would not have as much of a therapeutic effect
as a revision of the manual, deleting the offensive rule, or
at least a distribution of the notice to all employees.
I, therefore, find that by promulgating and maintaining an
invalid no-solicitation rule, Alton Belle has violated Section
8(a)(1) of the Act.
I. The Due-Process Issue
The Respondent Company, through its counsel, has taken
issue throughout this hearing with the Board’s practice on
pretrial discovery, release of witnesses’ affidavits and files,
memorandum, and other materials developed during the in-
vestigations and pretrial stages of Board proceedings. A sec-
tion of Alton Belle’s brief contains further arguments and ci-
tations in support of these positions.
As far as I am concerned, I am satisfied that I have con-
ducted the hearing under the Jencks rule, Jencks v. U.S., 353
U.S. 657 (1957), and the Board’s adoption of that rule, Ra-
Rich Mfg. Corp., 121 NLRB 700 (1958). I, therefore, deny
Alton Belle’s motion to dismiss the complaint in its entirety,
contained in its brief.
As postscript to this ruling, I would note that we had con-
siderable discussion during the presentation of the General
Counsel’s witnesses of the problems created for Alton
Belle’s counsel by the fact that he did not have available,
629ALTON BELLE CASINO
while cross-examining these witnesses, the prehearing affida-
vits of subsequent witnesses. Counsel’s position was that if
he had had the affidavit of one witness while cross-exam-
ining a prior witness, that cross-examination ‘‘would have
been far more meaningful.’’
At one point, counsel stated in the record that all of the
pretrial statements of the employee witnesses who had testi-
fied should be made a part of the record so that he ‘‘may
be able to establish what I think is the significant prejudice
in the failure of the Board to provide that information and
other related information to me prior to the onset of the hear-
ing.’’
Seeing some merit in this proposition, I authorized the
General Counsel to make copies of the affidavits of 15 em-
ployees who testified in this proceeding. These affidavits
were turned over to all counsel and made a part of the record
in this case.
Just for the record, I note that there is no indication in Re-
spondent Company’s brief that these affidavits, or the ab-
sence of them during the hearing, showed significant preju-
dice, or any prejudice, or were used for any purpose.
THE REMEDY
Having found that Respondent Alton Belle has engaged in
certain unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act, I shall recommend that it
cease and desist therefrom, and that it take certain affirma-
tive action designed to effectuate the policies of the Act. In
addition, Respondent Alton Belle shall be ordered to with-
draw and withhold all recognition from Seafarers Inter-
national Union until such time as the Union has been cer-
tified by the Board as the exclusive representative of the em-
ployees involved here, and to cease giving any effect to a
collective-bargaining agreement Alton Belle entered into with
the Seafarers International Union on September 7, 1991, or
any modification, amendment, extensions, or renewal of the
agreement, provided, however, that nothing in the Order
herein shall require Alton Belle to vary or abandon any wage
increase or other benefit, terms, and conditions of employ-
ment which may have been established pursuant to the per-
formance of the agreement.
Having found that Respondent Seafarers International
Union has engaged in certain unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall
recommend that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies
of the Act. In particular, I shall recommend that the Re-
spondent Union reimburse to all employees who are or have
been covered by the agreement of September 7, 1991, all
dues or fees paid to the Respondent Union pursuant to union-
shop and checkoff provisions contained in that contract.
CONCLUSIONS OF LAW
1. Respondent Alton Riverboat Gambling Partnership d/b/a
Alton Belle Casino is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Seafarers International Union of North
America, Atlantic, Gulf, Lake and Inland Waters District,
AFL–CIO, and Hotel Employees and Restaurant Employees
International Union, and its Local Unions 1 and 15 are all
labor organizations within the meaning of Section 2(5) of the
Act.
3. By aiding and assisting Respondent Seafarers Inter-
national Union in organizing its employees Respondent Alton
Belle has violated Section 8(a)(1) and (2) of the Act.
4. By entering into a recognition agreement on August 30,
1991, and a collective-bargaining agreement on September 7,
1991, containing union-shop and checkoff provisions with
Respondent Seafarers International Union, Respondent Alton
Belle has violated Section 8(a)(1), (2), and (3) of the Act.
5. By accepting the assistance of Respondent Alton Belle
in organizing the employees of Alton Belle, Respondent Sea-
farers International Union violated Section 8(b)(1)(A) of the
Act.
6. By entering into a recognition on August 30, 1991, and
a collective-bargaining agreement with Alton Belle on Sep-
tember 7, 1991, the Respondent Seafarers International
Union violated Section 8(b)(1)(A) and (2) of the Act.
[Recommended Order omitted from publication.]