Dunes Hotel

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 725 (N.L.R.B. 1968)

M & R INVESTMENT CO, INC. 725
M & R Investment Co., Inc ., d/b/a Dunes Hotel and
United Casino Employees Organizing Committee,
AFL-CIO, affiliated with Seafarers International
Union of North America , AFL-CIO
M & R Investment Co., Inc ., d/b/a Dunes Hotel and
Las Vegas Casino Employees , Local 7, AFL-CIO,
affiliated with Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO
M & R Investment Co., Inc ., d/b/a Dunes Hotel and
International Association of Machinists and Aero-
space Workers , AFL-CIO. Cases 31-CA-734-1,
31-CA-734-2, 31-CA-739, and 31-CA-733
November 12, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS,
AND ZAGORIA
On June 24, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceedings, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a brief in support of its exceptions. The General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, briefs, and the entire record
in this case, and hereby adopts the findings, conclu-
sions,' and recommendations of the Trial Examiner.
supervisor as it is clear from the record that Duckworth's entire remarks
to Whiting on April 17 were couched in such a manner as to elicit
information as to Whiting's union activities and sympathies and thereby
violative of Section 8(a)(1) of the Act. We find that the complaint is
sufficiently broad and the matter sufficiently litigated to justify basing
our conclusions upon the entire conversation between Whiting and
Duckworth rather than , as the Trial Examiner concluded , upon only
that portion of the conversation relating to George Laird's activities
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner This case was
heard at Las Vegas, Nevada, on October 9, 1967, and February
29, 1968,' upon an amended consolidated complaint issued on
August 31, 1967,2 alleging that the Respondent had violated
Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended In its answer, Respondent denied the commission of
unfair labor practices. The issues presented are whether or not
(1) Respondent interfered with, restrained, and coerced its
employees in the exercise of protected rights, and (2) the
admitted discharges of five employees were motivated by their
union activities.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel, the Respondent,
and Local 7, one of the Charging Parties, I make the following-
FINDINGS AND CONCLUSIONS3
1. THE UNFAIR LABOR PRACTICES
A The Section 8(a)(1) Allegations
1. The evidence
Respondent is a Nevada corporation engaged in the business
of operating a nonresidential hotel and gaming casino in Las
Vegas. In late February or early March 1967,4 employees
decided to organize. Employees Choltko and Strohlein ob-
tained authorization cards from the Seafarers Union, and
passed them out to other employees. Strohlein passed them
out at Respondent's premises as well as elsewhere; and at his
request, Employee Perez signed a card. Sometime during the
first two weeks of March, a number of Respondent's em-
ployees met at Strohlein's home. Among those present, in
addition to Strohlein, were Choltko, Perez, and Truman Scott,
an organizer for the Seafarers Union. Toward the end of the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby adopts
as its Order the Recommended Order of the Trial
Examiner, and orders that the Respondent, M & R
Investment Co., Inc., d/b/a Dunes Hotel, Las Vegas,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
1 The Trial Examiner describes George Laird as an employee and the
Respondent contends that Laird is a supervisor within the meaning of
the Act It is unnecessary to determine whether Laird is in fact a
1 The hearing was continued on the first -mentioned date to permit
the General Counsel to seek enforcement of subpenas ad testificandum
served upon two of the discriminatees named in the complaint, Eugene
C Strohlein and William F Choltko.
2 Based upon charges filed on June 7, 8 , and 13, 1967.
3 No issue of commerce is presented The complaint alleges and the
answer admits facts which , I find, establish that Respondent is an
employer engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act. The Respondent
admitted at the hearing, and I find, that Local 7, the Machinists, and
United Casino Employees Organizing Committee are each labor organi-
zations within the meaning of Section 2(5) of the Act . I also take
official notice that Local 7's parent body, Hotel and Restaurant
Employees and Bartenders International Union, AFL-CIO (also known
as the Culinary Workers Union ), and that the Seafarers Union, with
which United is affiliated , are labor organizations within the meaning of
that Section.
4 All dates hereafter referred to relate to 1967 unless otherwise
stated.
173 NLRB No. 109
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, after some of the participants had left, Supervisor
Ettinger5 dropped in, exhibited surprise, and said, "Don't
worry, fellows I don't see nothing." Choltko testified that he
and Scott were the only ones there at the time, Strohlem
having left to pick up his wife. Perez testified that he,
Strohlem, Choltko, another employee, and Organizer Scott
were still present. Based on Choltko's reluctance to testify,
discussed below, his demeanor and that of Perez, I credit the
latter
Thereafter, Perez passed out a few Seafarers authorization
cards to employees, including one to an employee during the
latter's rest period. Strohlein continued to pass out cards each
day. In early April, Supervisor Cutler told Strohlein that he
had heard that the latter was organizing at Respondent's
casino, that he should not be doing it, and that Sid Wyman,
one of Respondent's owners, was a little annoyed with the
union activities then going on.6 During the same month,
Employee Dambrogio learned that Local 7 was attempting to
organize Respondent's casino employees, went to see that
union's secretary, Bramlett, obtained information and authori-
zation cards, and thereafter solicited Respondent' s casino
employees during rest periods on behalf of that Local
On April 17, the date of the hearing in a representation
proceeding involving Respondent, Supervisor Duckworth told
Employee Whiting that organizing for the Seafarers Union was
no way to repay him for giving Whiting a lob, asked the latter
whether Employee Laird was signing up employees; stated that
Whiting's work was good and that as far as he was concerned
Whiting had a permanent job with Respondent, but added that
if Whiting had a better chance with Organizer Scott of the
Seafarers and would prefer to work with him, he should take
his choice. Whiting told Duckworth that he was organizing for
the Seafarers, and continued to pass out cards and literature to
employees during their rest periods subsequent to his conversa-
tion with Duckworth.7
Respondent discharged Strohlein on April 29, Whiting on
June 4, Choltko on June 5, Perez on June 7, and Dambrogio
on June 9
About 2 weeks before the election scheduled to be held
among Respondent's employees on June 23, Wyman asked
Employee Ostrander how he felt about unions. When
Ostrander stated that he intended to vote for the Seafarers,
Wyman appeared perturbed, replied that he hoped Ostrander
would vote for him and, in the course of the ensuing
conversation, stated that he was going to get all the employees
a raise and that Ostrander need not worry about his job. About
a week or two before the scheduled election, Wyman told
Employee Campbell that he had already talked to some of the
dealers, expected to talk to all of them, did not want "the
union" in, and wanted his vote in the election; stated that
Campbell had a job at the casino as long as he desired; and
promised to give a 10-percent raise to the employees as soon as
he completed negotiations with the Culinary Union, stating
that the latter would not agree to accept a 6 percent raise if he
gave the casino employees a raise of 10 percent. About a week
before the election, Wyman told Employee Hix that he was
against the competing unions and would like to win the
election, asked him how he was going to vote, and stated that
he had proposed a 10 percent raise for the casino dealers but
had refrained from putting it into effect because Respondent
was negotiating with the Culinary Workers.
2 Concluding findings
I find that on April 17, Duckworth interrogated Whiting
regarding Laird's union activities; and that about a week before
the election scheduled for June 23, Wyman interrogated Hix as
to how he was going to vote Since such interrogations were
coercive, I find that they violated Section 8(a)(1)
I make no finding of violations based upon Duckworth's
coercive statement to Whiting that he must choose between
working for Respondent or for Organizer Scott of the
Seafarers, upon Cutler's coercive remarks to Strohlein regard-
ing Wyman's views relating to union activity, and upon
Wyman's coercive conduct in holding out to Employees
Ostrander, Campbell and Hix the possibility of a pay raise if
the employees voted against unionization at the scheduled
election Such violations were not alleged in the complaint and
it does not appear that they were fully litigated at the hearing.
The complaint contains allegations that certain other
statements by Wyman, Cutler and Zahlout constituted viola-
tions of Section 8(a)(l), but I find that there is no evidence to
support such allegations.
B The Discharges
1. Contentions, evidence, and analysis
The General Counsel contends that the five above-named
employees were discharged because of their union activities
This contention is predicated upon Respondent's knowledge of
such activities, the union animus which it exhibited, and the
timing of the discharges Respondent does not seriously
dispute, and I find, that it was aware of their union activities 8
There is no doubt that Respondent opposed unionization.
Indeed, it engaged in unlawful interrogation and other anti-
union conduct which would be found unlawful had it been
alleged in the complaint Moreover, Strohlein was discharged
on April 29 and the remaining four during the period from
June 4 through 9, i.e within a brief period of time, during one
of Respondent's busy months, and shortly before an election
scheduled by the Board. I find that such timing lends support
to an inference of unlawful motivation9 and that the timing,
when combined with the other considerations already men-
tioned, establishes a prima facie case of unlawful discrimina-
tion against the five employees.
Respondent's position is that the General Counsel has failed
to sustain his burden of establishing unlawful motivation in
5 Perez, who lived 4 or 5 blocks from Strohlein 's home, testified
that Ettinger "is a neighbor, and he is a friend "
6 Neither Cutler nor Wyman testified
7 Duckworth did not testify
8 Supervisor Ettinger saw Strohlem , Choitko and Perez at the
meeting with Organizer Scott Supervisor Cutler told Strohlem that he
had heard of the latter's solicitation at the Dunes Supervisor Reggio
admitted that Whiting's prior activities on behalf of another union had
received newspaper publicity and were well known. Whiting told
Supervisor Duckworth of his organizing activities at the Dunes. At the
time Dambrogio was discharged , Supervisor Zahlout told him that his
union activity was affecting his work Zahlout admitted that he had
heard rumors that Perez and Choltko were members of "the Union,"
and that Dambrogio had often boasted that he had been a lifelong
member of the Culinary Workers Union.
9 N.L.R.B. v. Tennessee Packers, Inc, 390 F.2d 782 (C.A. 6).
M & R INVESTMENT CO., INC.
connection with the discharges which, it contends, were for
cause The facts surrounding the discharges are discussed
below.
a Eugene Strohlein
Strohlein was discharged on April 29. He testified that on
that day, Supervisor Saul stated to him, "We're not going to
fire you for any Union activity, but have you ever taken any
customers out of the Dunes2", that Saul also mentioned
something about borrowing money from customers, that
Strohlem denied both accusations, and that Saul then stated
that he was terminated. Saul testified that he was instructed by
his superior, Duckworth, to let Strohleini ° go at the end of his
shift for taking a customer, Wahlmack, from the Dunes to
other places and borrowing money from him, and that Saul
then informed Strohlein that he was terminated for those
reasons
In his testimony, Strohlem denied that he had taken any
customer of the Dunes to other places and that he had
borrowed from any customers He admitted, however, that he
had met Wahlmack by accident on one occasion at another
casino, the Silver Slipper; that they had a drink together; that
Strohlern engaged in gambling on that occasion as Wahlmack's
agent and with the latter's money, with the expectation of
receiving a gratuity if he won, and that he never told
Respondent about the incident. Strohlein further admitted
that dealers were not permitted to borrow money from, or
even fraternize with, customers, that for dealers to become
friendly, drink and go out gambling with customers was not
approved of, but was not unheard of; that such conduct was
"usually" cause for "immediate" discharge, and that even a
suspicion that a dealer has borrowed money from a customer
or has engaged in the conduct which Strohlein admitted was a
ground for discharge. Finally, he testified that the single
occasion on which he engaged in his admitted conduct
occurred about 4 or 5 months before his discharge; that after
his encounter with Wahlmack, the latter returned to Respond-
ent's casino and gambled at Strohlein's table; and that
Strohlern was never reprimanded for any violation of rules
Although Strohlern violated Respondent's rules and could
lawfully have been discharged therefor, I reject Respondent's
contention that he was discharged because of his infraction
The record establishes that an infraction like that committed
by Strohlern was "usually" a cause for discharge. That being
so, it was incumbent upon Respondent to go forward with
evidence showing in which circumstances such an infraction
was not punished by discharge and how Strohlein's situation
differed from those circumstances, inasmuch as such informa-
tion was "most accessible" to Respondent NLRB v. Great
Dane Trailers, Inc , 388 U S 26; Standard Container Co , 171
NLRB No. 59. Moreover, it is undisputed that Strohlein's
infraction occurred 4 or 5 months prior to his discharge. Since
the infraction was usually cause for "immediate" discharge, it
was similarly incumbent upon Respondent to go forward with
evidence showing how and when it received the information
which led to Strohlein's discharge on April 29
10 Although the transcript of testimony contains the name
"Choltko" at this point in Saul's testimony , it is evident from the
context that Saul was referring to Strohlem.
11 If anything , the record suggests earlier knowledge of the
infraction The logical source of information relating thereto would
727
Respondent has not gone forward with such evidence. I
cannot assume that the circumstances involving Strohlem were
not such as to except him from Respondent's usual practice
Nor does the record contain any basis for an inference that
Respondent learned of the infraction immediately or even
shortly prior to Duckworth's instructions to Saul to fire
Strohlem, and that it took prompt steps to effectuate its
policies as soon as it learned of the infraction.'' In addition,
the record shows that Strohlein was reluctant to testify on his
own and the General Counsel's behalf at the hearing and that
enforcement of the subpena against him was required For this
reason, I am inclined to credit his testimony, which supports
the General Counsel's position, that Saul began his discharge
statement by stating, "We're not going to fire you for any
Union activity " Saul's very negation of union activity as a
motive suggests that such activity was very much on his mind
Otherwise there would have been no reason for Saul to make
the remark.
b John Whiting
Whiting was hired by Respondent as a dice dealer on July
10, 1965. In the early spring of 1967, he expressed to
Supervisor Reggio and Personnel Director Koteas his interest in
returning to school, and requested their help in obtaining a job
which he could hold while going to school in Los Angeles
Both agreed to try to help him Reggio testified that "after
that" Whiting's work started slipping, i.e., he was less attentive
to his work and made constant mistakes; that Reggio and other
supervisors expressed criticism of his work, that "this went on
for a couple of weeks"; that finally on June 4, which was a
Sunday and a very busy day, his mind was not on his work and
he made too many mistakes to be tolerated, and that Reggio so
advised him and discharged him on that day.
As already found above, Duckworth told Whiting on
April 19 that his work was good Whiting testified that he had
never been reprimanded because of unsatisfactory work prior
to his discharge. He further testified that when Reggio
informed him of his discharge, the latter stated that he did not
know the reason; that so far as he was concerned, Whiting's
work was satisfactory; but that one of Reggio's superiors felt
that his work was no longer satisfactory. Koteas testified that
he understood that Whiting had gone back to school.
Respondent contends that Whiting was discharged because
subsequent to his disclosure of his desire to return to school,
he became inattentive to his work and made constant mistakes
I am not persuaded that this was the true motive for the
discharge There is no disagreement that Whiting's work was
good both prior to such disclosure and between the disclosure
and the two-week period before his discharge Reggio testified
only that Whiting's lack of attention, his mistakes and the
reprimands continued for a couple of weeks until he was
finally discharged. The disagreement relates to whether or not
Whiting became inattentive, made frequent mistakes and was
reprimanded therefor during that two-week period; to whether
or not Whiting performed slipshod work on the day of his
discharge, and to whether Reggio told him that his work was
have been Wahimack He returned to gamble at Respondent 's casino
sometime between Strohlem's infraction and discharge , and it would
seem likely that Wahlmack at that time disclosed to Respondent his
encounter with Strohlem.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or was not satisfactory at the time he discharged him 12
Whiting had worked for Respondent for two years and was
considered a good dice dealer No reason has been suggested to
explain why he should suddenly become inattentive to his
work. If he still hoped to receive help from Respondent in
obtaining another job, it is improbable that he would have
permitted his work to deteriorate. Even if he had given up
hope of help from Respondent, there is nothing to show that
he had nevertheless decided to quit his job and had accordingly
lost interest in his work. Moreover, in view of his past
experience in union activity, it is equally improbable that he
would have permitted his work to deteriorate at a time when
he was engaging in union activity and thereby deliberately
furnish to his employer a basis for discharging him Respond-
ent's explanation thus does not seem to have the ring of
plausibility. For this reason, as well as the demeanor of the
witnesses, I accord greater credence to Whiting's testimony in
resolving the conflict, and reject Respondent's explanation for
the discharge
c. William F. Choltko
Choltko had been served with a subpena requiring him to
testify as a witness for the General Counsel on October 9, the
date on which the hearing began, but he failed to respond
thereto Thereafter, an order enforcing the subpena was
obtained and Choltko appeared as a witness when the hearing
was resumed on February 29, 1968. He testified that he had
failed to respond to the subpena because he had requested that
"my charges" be withdrawn and had concluded that it would
be unnecessary to appear ;13 that his withdrawal request was
made because the Board agent who obtained a prehearing
statement from had failed to include therein information given
him by Choltko regarding several arguments with Supervisor
Saul concerning his work; and that the statement accordingly
did not contain the entire truth. He admitted, however, that
the statement contained "a sentence that says something about
a formal reprimand," but stated that he assumed that the
sentence referred to a formal reprimand by one of Respond-
ent's owners
Choltko was hired by Respondent as a blackjack dealer in
December 1963 On direct examination, he testified that he
had had three or four arguments with Supervisor Saul
concerning his work; that a few days before June 5, while he
was staring into space as he was dealing, Saul told him to keep
his eyes on the game, that during his next rest period, he went
to Saul and told him to "go to hell", and that on the latter
date, Supervisor Ryan gave him a termination slip, stated, "I'm
sorry to see you go. As far as I'm concerned, you're a good
worker," and said that he would recommend Choltko for a job
at any place.' 4 On cross-examination, Choltko testified as
follows. He had been reprimanded twice by Saul's superior,
Zahlout, and had been reprimanded at least three or four times
by Saul during the 2-month period preceding his discharge.
When he uttered the above-mentioned profanity to Saul, the
latter responded to the effect that he ought to fire Choltko
then and there. On the following day, Zahlout asked him
about the argument with Saul, informed him that Saul had
recommended his suspension for a week, and reprimanded
him. On the next day, June 5, he was discharged Had he been
a supervisor, he would have immediately discharged an
employee who used such profanity to him Inasmuch as he had
not been discharged within a day after the incident with Saul,
he assumed that everything was all right and was surprised by
the termination.' 5 At the time he received his termination
slip, he did not believe that his work had been unsatisfactory,
but after thinking things over, he had concluded that he was at
fault. A dealer whose eyes wander while working is a bad
dealer He considers himself a good dealer when his mind is on
his work
Saul testified that on several occasions he had warned
Choltko about looking around while working, that cheating by
customers is possible when the dealer's eyes are not on the
table, that after "the last time [he] warned" Choltko, the
latter told him to "go to hell" and stated that his eyes were his
most valuable possession; that Saul then replied that he would
give Choltko some time off so he could rest his eyes, that the
next day Saul recounted to Zahlout the exact conversation and
recommended a week's suspension; that Zahlout replied that
he should either fire Choltko or give him one last chance.
Finally, Saul testified as follows-
Q. I see. Did he tell you to terminate Mr. Choltko?
A. Because he did it again and two days later is when I
let him go.
Q. I see. Did you, in fact, terminate him?
A. I think so. I'm not sure.
Q. Do you recall telling Mr. Ryan-
A Mr Ryan
Q. -you terminated him?
A. He told me to let him go.
Q. I see. And this all occurred in a period of two or
three days.
A. Between two or three days
Zahlout testified that he had reprimanded Choltko several
times for glancing all over the room while shuffling cards and
not paying attention to customers and the money being
wagered, that on June 4, Saul had recommended a week's
suspension because of Choltko's lack of attention to his work,
but that Zahlout replied that he should either be fired or given
one last chance, that when he asked Choltko about the
incident with Saul, Choltko told him that he had been
reprimanded several times by Saul, and that when he subse-
quently heard about, and questioned Choltko regarding, his
profanity to Saul, Choltko admitted it.
Respondent contends that Choltko was discharged as the
result of his poor performance which led to several arguments
with Supervisor Saul, the last one having occurred shortly
before the discharge. I do not agree. Like Strohlem, Choltko
was a reluctant witness. His alleged reason for failing to
i 2 If, as Whiting testified , Reggio in fact said that his work was
satisfactory , it follows that Whiting did not perform slipshod work on
the day of his discharge Accordingly, Whiting's testimony relating to
Reggio's discharge statement contains an implicit denial of slipshod
work
13 The charge which named Choltko, as well as Strohlem , was filed
by the United Casino Organizing Committee.
14 The termination slip gave unsatisfactory work as the reason for
the discharge The record shows that in the gaming industry, it is
customary to refrain from stating the true reason for a discharge and to
state only that the employee's work was unsatisfactory or that the
discharge was due to a change in personnel.
15 Choltko testified "Mr Saul's the type that you can argue with
and tell him to go to hell and everything else and, well, I guess I went
too far with him that time."
M & R INVESTMENT CO., INC
respond to the subpena is patently incredible. His eagerness to
admit that his work had been unsatisfactory, particularly in
view of his contrary belief when given his termination slip,
strains credulity. Indeed, his self-denunciation because of
misconduct was somewhat reminiscent of the admissions of
guilt by defendants at trials conducted under other systems of
law. I therefore accord no weight to Choltko's admissions of
misconduct.
In addition, it is undisputed that Supervisor Ryan, at the
time he informed Choltko of his discharge, expressed the
opinion that the latter was a good worker and agreed to give
him a recommendation Moreover, Saul's testimony is that he
told Zahlout about Choltko's profanity and suggests that it
was such profanity that prompted him to recommend a week's
suspension for Choltko.16 Saul's testimony thus contradicted
that of Zahlout, who testified that Saul recommended suspen-
sion because of Choltko's lack of attention, and that he
learned of the profanity after Saul's recommendation.
In view of Choltko's lack of credibility, the conflict in
testimony between Saul and Zahlout, and Ryan's view of
Choltko's work, I find that Respondent's explanation for the
discharge is unpersuasive.
d Armando Perez
Perez was hired as a roulette dealer by Respondent on
August 20, 1961. He testified that at about 2.00 a in on June
7, during an idle moment in his shift, Supervisor Zemel
informed him that he was discharged Zemel testified that
Supervisor Zahlout had instructed him to terminate Perez but
did not disclose the reason for the order, that he then
terminated Perez, and that this occurred at the end of his shift.
Zemel further testified that sometime prior thereto, Supervisor
Duckworth had pointed to Perez, asked who he was, and
stated that the latter had just "spit" on the floor; that Zemel
did not know "what to think of it" and could not imagine him
"spitting on the floor"; and that he could not remember when
the incident occurred, but thought it was close to the date of
the discharge.
Zahlout testified that shortly before he went home at about
2 a m on June 7, he saw Perez walk to his work station with a
cigar in his mouth, place the cigar under the table, and "spit"
on the floor, that Zahlout turned to Zemel, who was standing
next to him, and said "Terminate that fellow tonight. We're
not going to make a pigpen out of this place." Zahlout further
testified that a week or two earlier, Supervisor Duckworth had
reprimanded and almost terminated Perez for "spitting" on the
floor.
Perez testified that he is a habitual cigar smoker but had
never entered the roulette pit with a cigar in his hand; that on
one occasion about 6 or 7 months before his discharge, at a
time when he was not smoking, Duckworth had told him
"Listen, don't spit on the floor, because you don't do it in
your house", and that he did not know whether he had
actually "spit" on the floor at that time, but might have.
Respondent contends that Perez was discharged for his
"vile" and "disgusting" conduct in expectorating on the casino
floor. Perez did not deny that he did "spit" on the casino floor
on the two occasions, and I find that he engaged in that
729
conduct. There is, of course, no doubt that a discharge for
such conduct would be lawful if that was the reason for it.
However, I am not convinced that it was.
Asserting that the Dunes Hotel is one of the most luxurious
hotels in the United States and a source of pride to both its
owners and employees, Respondent argues that "to suggest
that an employee who spits on the floor is deserving of
continued employment is incredible." This position is entirely
reasonable. But in view of that position, the fact that Perez
was not discharged for "spitting" when observed by Duck-
worth suggests that consideration must be given to the fact
that the term "to spit" may be used with imprecision and can,
for example, merely mean to eject a minute piece of tobacco
from the mouth. If that is what Perez did, the reprimand
rather than discharge on the first occasion becomes under-
standable, and the discharge on the second occasion becomes
suspect Since the facts were most accessible to Respondent, it
had a duty to go forward with evidence showing the severity of
the misconduct committed by Perez. No such evidence was
adduced, and I cannot assume that his misconduct involved
expectoration in the full sense of that word
Illumination regarding Respondent's motivation in dis-
charging Perez on the second occasion may be obtained from a
comparison of the dates of his misconduct If the first occasion
occurred shortly before the second, I would have no difficulty
in finding that the discharge was for cause But if it occurred
before Perez and others began their union activities, it is
difficult to escape the conclusion that the misconduct became
intolerable to Respondent only after the advent of such
activities and the scheduling of a Board election. Zemel's
testimony involved nothing more than a guess and sheds little
light on that date. Zahlout testified that it occurred a week or
two before the discharge. Perez testified that it occurred 6 or 7
months before the discharge. I credit Perez. In this connection,
I note that Zemel contradicted Zahlout's testimony that he
told Zemel the reason for his order to discharge, that Saul
contradicted Zahlout's testimony relating to Choltko's dis-
charge (see discussion, supra), and that Zahlout gave conflict-
ing testimony relating to Dambrogio's discharge (see discus-
sion, infra) Accordingly, I regard Zahlout as a less reliable
witness than Perez, who testified in a straightforward and
convincing manner. For these reasons, I reject Respondent's
explanation for the discharge of Perez, an employee for almost
6 years
e. Attilko J. Dambrogio
Dambrogio was hired by Respondent as a 21 dealer on
February 28, 1965. He testified on direct examination that
when he returned from a rest period with three other dealers at
about 7 p.m. on June 9, Supervisor Zahlout discharged him,
stating. "I am firing you right now. You have been passing out
too goddamn many union cards in here. I am going to
terminate you right now. Go and turn in your stuff " On
cross-examination, he added that Zahlout also told him that he
was not paying attention to the tables. Dambrogio further
testified that prior thereto, he had never been reprimanded
regarding his work by Respondent, and that Zahlout had never
theretofore told him to pay more attention to his work.
16 Choltko apparently felt that it was the profanity which might
lead to his discharge
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Moose, a witness for the General Counsel,
testified that "the Union" had become a constant topic of
conversation with Dambrogio, that he would gather employees
around him during and on the way back from rest periods to
discuss the Union, that Dambrogio had become lax in
returning to his work station, that it was very important for
dealers to return on time in order to permit other dealers to
take their rest periods promptly, and that Zahlout had
reprimanded Dambrogio about failing to return from rest
periods on timer 7 Moose further testified that on the day of
the discharge, he was returning from a rest period with
Dambrogio and several dealers to relieve other employees, that
Dambrogio was talking about "the Union" and the group were
walking at a very slow pace, that Zahlout was standing at the
pitl8 and angrily said to Dambrogio, "You're meddling
around, you're taking part in too much Union activities around
here, and it's affecting your work And so, therefore, I'm going
to fire you."' 9
Zahlout testified as follows Dealers must return promptly
from rest periods to avoid disrupting the entire work schedule
and causing considerable confusion and complaints from other
dealers Dambrogio was "always" late in returning from his
rest periods and Zahlout had reprimanded him several times
therefor Dambrogio was also a chronic complainer. On the
day of his discharge, Dambrogio returned from a rest period
with three other dealers They were due to resume work at 7
p in , but at a minute or two after that hour, they remained
standing nearby Zahlout waved for them to come to the pit to
relieve other dealers At one point, he testified- "And I'm
waving to them, and they're starting to walk slow and they're
still talking " Elsewhere he testified that "Dambrogio was
doing the talking." Zahlout was angry and when the group
reached him, he said to Dambrogio, "Attilho, you're
through .. I'm tired of this . Your work has suffered, and
I don't want no more part of you here " Although the other
three dealers with Dambrogio were also late, Zahlout did not
discharge them. Other dealers have been late, but he could not
estimate how often, testifying as follows
A They might go through one day without being late,
and the next day they might be late two or three times
Q. There might be a whole day when no one is late but-
A. It's possible
Q How often would you say that would happen?
A I can't answer that question, sir
Q. (By Mr Davis) Well-
A. Because it's too matter-of-fact for me to be able to
pinpoint anything like that.
Q. All right. Let's get back to the point again. How
often in one week would you estimate that people are late
by one or two minutes?
A. I wouldn't estimate it.
Q. How often9 You wouldn't estimate it Can you
i7 Moose did not specify how many times Dambrogio had been
reprimanded
18 Moose did not know whether or not Zahlout had waved to the
dealers to indicate that they should hasten their return to their work
stations
19 On cross -examination , Moose testified that Zahlout had stated to
Dambrogio the remarks set forth in Moose's preheating statement, i e.,
"Now, you're handing out those union cards and its affecting your
work "
estimate it?
A. No, I can't estimate it.
Q Well, would it be once a week that one person might
be late one or two minutes, or could it be ten people?
A. It could be ten people.
Q Could it be fifty?
A It could be one
Q. Could it be fifty people
A It could be fifty.
Zahlout further testified that he selected Dambrogio for
discharge because of his "repeated" lateness, because of "a
series of being late " On further interrogation, he testified as
follows
Q. That was a series of being one or two minutes late.
You didn't say you discharged him for anything else, did
you?
A I said-yes, I did. I said it was a series of continual
gripes.
Q. Did you tell him that you discharge him for
continually griping?
A I didn't give him any reason at all I don't have to
give no reason for discharging.
Finally, Zahlout testified that he knew of no one else who had
been discharged by Respondent for lateness in returning from
a rest period
Respondent contends that the record establishes
Dambrogio's lateness and prior reprimands therefor, that he
was late once too often, and that he was discharged for that
reason Like the General Counsel, Local 7, one of the Charging
Parties, contends that the discharge was motivated by
Dambrogio's union activity In this connection, Local 7 points
out that Zahlout made no reference to Dambrogio' s lateness at
the time of the discharge
I find that Dambrogio had frequently been late in returning
from rest periods because of conversation with other employ-
ees regarding unionization, and that he had been reprimanded
several times therefor. Based on the credited testimony of
Moose, I further find that in effect, Zahlout's discharge
statement indicated that Dambrogio's union activities had
resulted in his lateness If such lateness was the true reason for
the discharge, it would, of course, have been lawful I am,
however, unable to conclude that it was the true reason
Although there appears to have been considerable lateness
among the dealers, there is no evidence that any other
employee had ever been discharged by Respondent because of
lateness, or indeed that anything was said about being late to
the three dealers who returned from their rest period with
Dambrogio In addition, Zahlout gave conflicting testimony as
to whether Dambrogio was the only one of the group who was
doing the talking after he waved to them to return more
promptly, and as to whether Dambrogio's chronic complaints
played a part in causing the discharge I am, therefore,
contrained to find that Respondent had been willing to
overlook lateness among its dealers; but that when such
lateness was caused by union activity, it was no longer
tolerable.
2. Concluding findings
Upon a consideration of the entire record, including the
demeanor of the witnesses, I conclude that Respondent has
failed to rebut the puma facie case made by the General
Counsel I accordingly find that the Respondent discharged
Strohlem, Whiting, Choltko, Perez, and Dambrogio because of
M & R INVESTMENT CO., INC.
their union activities , and that such discharges constituted
unfair labor practices violative of Section 8(a)(3) and (1) of
the Act
It. THE REMEDY
I shall recommend that Respondent cease and desist from
its unfair labor practices, and that it take certain affirmative
action, specified below, which I find necessary to remedy and
to remove the effects of the unfair labor practices.
I shall recommend that Respondent offer to Eugene
Strohlem, John Whiting, William F. Choltko, Armando Perez,
and Attillio J. Dambrogio immediate and full reinstatement to
the positions which they held at the time of the discrimination
against them or to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges. I
shall further recommend that Respondent make each of them
whole for any loss of earnings suffered because of its
discrimination against them by paying to each a sum of money
equal to that which he would have been paid by Respondent
from the date of the discrimination against him to the date on
which Respondent offers reinstatement as aforesaid, less their
net earnings, if any, during the said period. The loss of earnings
under the order recommended shall be computed in the
manner set forth in F. W Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co , 138 NLRB 716.
CONCLUSIONS OF LAW
1 By Duckworth's interrogation of Employee Whiting and
Wyman's interrogation of Employee Hix, Respondent engaged
in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. By discharging Employees Strohlem, Whiting, Choltko,
Perez, and Dambrogio on the dates found because of their
union activity, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
4 Respondent did not violate the Act by any conduct not
found herein to be an unfair labor practice
RECOMMENDED ORDER
Respondent, its officers, agents, successors, and assigns,
shall
A. Cease and desist fiom
1. Unlawfully interrogating employees concerning their
union desires, sympathies and activities.
2 Discharging employees or otherwise discriminating in
regard to their hire, tenure of employment, or any term or
condition of employment, because of their protected union
activities
3 In any other manner interfering with, restraining, or
coercing employees in the exercise of Section 7 rights.
B Take the following affirmative action
I Make Employees Strohlem, Whiting, Choltko, Perez, and
Dambrogio whole for any loss of earnings they may have
suffered by reason of the discrimination against them, in the
manner set forth in the section herein entitled "The Remedy "
2. Preserve and make available to the Board or its agents on
request, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
731
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of the Recommended
Order.
3 Notify the above-named employees if presently serving
in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces
4 Post at its place of business in Las Vegas, Nevada, copies
of the attached notice marked "Appendix."20 Copies of said
notice, on forms provided by the Regional Director for Region
31, after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material
5 Notify the Regional Director for Region 31, in writing,
within 20 days from the date of the receipt of this Decision,
what steps it has taken to comply herewith .21
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
20 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice. In
the further even that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for
the words "a Decision and Order "
21 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify the Regional
Director for Region 31, in writing, within 10 days from the date of this
Order what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT unlawfully discriminate against Eugene
Strohlem, John Whiting, William F. Choltko, Armando
Perez, Attrllio J. Dambrogio, or any other employee,
because of their union activity
WE WILL offer to the above-named employees imme-
diate and full reinstatement to their old jobs, and pay them
for all back earnings lost as a result of the discrimination
against them.
WE WILL NOT unlawfully interrogate our employees
concerning their union desires, sympathies and activities, or
in any other manner interfere with, restrain or coerce our
employees in the exercise of rights guaranteed to them in
Section 7 of the Act.
M & R INVESTMENT CO., INC.
d/b/a DUNES HOTEL
(Employer)
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By amended, after discharge from the Armed Forces.
This Notice must remain posted for 60 consecutive days
(Representative) (Title) from the date of posting, and must not be altered, defaced, or
covered by any other material.
Note We will notify the above-named employees, if If employees have any question concerning this Notice or
presently serving in the Armed Forces of the United States, of compliance with its provisions, they may communicate di-
their right to full reinstatement upon application in accordance rectly with the Board's Regional Office, 215 West Seventh St ,
with the Universal Military Training and Service Act, as Los Angeles, Calif , 90014, Telephone 688-5850