Frontier Hotel & Casino

National Labor Relations Board - Board Decisions

Dec 7, 1992

309 N.L.R.B. 761 (N.L.R.B. 1992)

761
309 NLRB No. 120
FRONTIER HOTEL & CASINO
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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. The Respondent also con-
tends that the judge’s rulings, findings of fact, and credibility resolu-
tions are the result of bias against the Respondent. After a careful
review of the record, we are satisfied that this allegation is without
merit.
In agreeing with the judge that the Respondent unilaterally pro-
mulgated new disciplinary rules in violation of Sec. 8(a)(5) and (1),
we note that, although the record does not definitively identify all
of the rules in effect prior to the distribution of the July 1, 1990
rules, the Respondent’s counsel, Keiler, testified that a document en-
titled ‘‘Frontier Hotel Rules’’ and dated December 1, 1989, con-
stituted at least some of the old rules. Consistent with the judge’s
conclusion, we find that the rules contained in that document are dif-
ferent from the July 1, 1990 rules. Further, we note that Keiler testi-
fied that he did not bargain with the Union about the new rules, and
Personnel Director Patton testified that he did not mail a copy of
them to the Union.
We note that the judge inadvertently misspelled the name of Secu-
rity Chief Michael Klug.
2 Member Oviatt finds Union Plaza to be distinguishable from the
instant case. He would not, in any event, address the question of the
effect of the parties voluntarily including supervisors in the contrac-
tual unit because, in his view, its resolution is unnecessary to the
disposition of this case.
Unbelievable, Inc., d/b/a Frontier Hotel & Casino
and Local Joint Executive Board of Las Vegas,
Culinary Workers Union Local 226, and Bar-
tenders Union, Local 165, affiliated with Hotel
Employees and Restaurant Employees Inter-
national Union, AFL–CIO. Cases 28–CA–10027,
28–CA–10425, 28–CA–10539, and 28–CA–10572
December 7, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 19, 1991, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party filed
answering briefs.
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 and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We agree with the judge’s ruling that the Respond-
ent’s contention that the unit described in the collec-
tive-bargaining agreement includes supervisors and is
therefore inappropriate is irrelevant for the purposes of
finding and remedying the violations in this case, and
with the judge’s refusal to permit the Respondent to
adduce evidence on that issue. We note that at the
hearing, the General Counsel amended the complaints
in Cases 28–CA–10027 and 28–CA–10572 so that all
four of the complaints alleged that the appropriate unit
is as described in the agreement, ‘‘but excluding super-
visors as defined in the Act.’’ Moreover, even if the
contract unit had been alleged, the Board has found
that where, as in the circumstances here, parties have
voluntarily included supervisors in a unit the Board
will order the application of the terms of a collective-
bargaining agreement to those supervisors. Union
Plaza Hotel & Casino, 296 NLRB 918 (1989), enfd.
sub nom. E.G. & H. v. NLRB, 949 F.2d 490 (9th Cir.
1991).2
In adopting the judge’s conclusion that the Respond-
ent violated Section 8(a)(5) and (1) by unilaterally dis-
continuing its contributions to the pension fund, we
agree with his finding that the Respondent’s February
5, 1990 ‘‘last, best and final’’ proposal and its Feb-
ruary 23, 1990 implementation notice did not include
changes in the pension plan. Attorney Efroymson, who
represented the Respondent in negotiations, testified
that if an article of the expired agreement was not
being changed it was not contained in the implementa-
tion letter. We note that article 27, Pensions, was not
included in the implementation notice, and that the Re-
spondent’s final proposal states that no change in that
article was proposed.
In excepting to the judge’s finding that the Respond-
ent did not notify the Union that the pension plan was
being discontinued, the Respondent also relied on a
May 10, 1990 letter from Keiler to the Union, which
was stipulated into the record. The letter stated that the
Respondent intended to cease payments to the plan as
of June 2, 1990. The Respondent contends that the
Union failed to request bargaining in response to this
letter and thereby waived its right to bargain over the
Respondent’s proposed change. We note, however, that
the Union responded to Keiler’s letter in a May 24,
1990 letter, also stipulated into the record, which stated
that the Union had not been advised that Keiler rep-
resented the Respondent, and that the Union would re-
spond to his letter if it received such notification.
Keiler testified that he did not respond to the Union’s
letter. Moreover, although Keiler testified that the Re-
spondent’s owners had informed the Union in March
that he was representing the Respondent, he also testi-
fied that he was not present when such notice was
given and did not know how it happened. Other than
this testimony by Keiler, there is no evidence in the
record regarding the asserted waiver of bargaining by
the Union. Under these circumstances, we find that the
Respondent has not established a clear and unmistak-
able waiver by the Union of the right to bargain about
this change in terms and conditions of employment.
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
See generally Metropolitan Edison v. NLRB, 460 U.S.
693 (1983).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Unbelievable, Inc., d/b/a
Frontier Hotel & Casino, Las Vegas, Nevada, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Lewis S. Harris, Esq., for the General Counsel.
Joel I. Keiler, Esq. (Ammerman & Keiler), of Reston, Vir-
ginia, for the Respondent.
Barry S. Jellison, Esq. (Davis, Cowell & Bowe), of San Fran-
cisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Las Vegas, Nevada, on March 12, 14
and 15, 1991, on consolidated complaints issued by the Re-
gional Director for Region 28 of the National Labor Rela-
tions Board on December 29, 1989, September 7, November
15, and December 28, 1990. The complaints are based upon
charges filed by the Local Joint Executive Board of Las
Vegas, Culinary Workers Union, Local 226, and Bartenders
Union, Local 165, affiliated with Hotel Employees and Res-
taurant Employees International Union, AFL–CIO (the
Union) on November 16, 1989, July 17, October 4, and Oc-
tober 23, 1990. Two of the charges were subsequently
amended. They allege that Unbelievable, Inc., d/b/a Frontier
Hotel & Casino (Respondent) has committed certain viola-
tions of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act.
Issues
The principal issue to be decided is whether Respondent
unlawfully unilaterally changed certain terms and conditions
of employment. Specifically, the complaint alleges that Re-
spondent, without notice to the Union, made various discipli-
nary rule changes, rescinded the contractual right of union
representatives from access to the employees it represents,
changed the rules regarding hiring and transferring employ-
ees and ceased making payments to the pension plan. In ad-
dition, there is the question regarding whether or not Re-
spondent unlawfully spied upon its employees as they con-
ferred with their union representatives. Respondent denies
few of the facts and offers, instead, the defense that these
changes were permitted by circumstances such as past prac-
tice, bargaining impasse, breach of contract by the Union and
necessity.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs which have been carefully considered. Based
upon the entire record of the case, as well as my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Unbelievable, Inc., d/b/a Frontier Hotel & Casino, a Ne-
vada corporation, operates a hotel and gaming casino at its
facility in Las Vegas, where its annual gross revenue exceeds
$500,000 and it annually purchases and receives goods in
interstate commerce valued in excess of $50,000. Accord-
ingly, Respondent admits and I find it to be an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a hotel and casino located on the ‘‘Strip’’
in Las Vegas. Until 1988 it was owned by the Summa Cor-
poration. Summa had a collective-bargaining agreement with
a number of unions including the Charging Party. The last
collective-bargaining agreement between the Hotel and the
Union was a 5-year agreement whose term was from May
4, 1984, to June 1, 1989. In general, it covered cooks and
miscellaneous kitchen help, dining room personnel, bar-
tenders, the bell desk and the housekeeping employees.
These are the types of employees usually found in hotels and
hotel-restaurant facilities. At the time Respondent took over
the hotel and casino on July 1, 1988, it specifically agreed
to adopt the collective-bargaining contract and continued to
operate under its terms until it expired on June 1, 1989. In-
deed, it concedes operating under the terms set forth in that
contract until February 26, 1990, when it imposed the terms
of a so-called last offer.
In general, the complaints allege that Respondent has
made certain unlawful unilateral changes either during imple-
mentation of the last offer or somewhat later.
B. Preliminary Observation Regarding Respondent’s
Defense That the Bargaining Unit is Inappropriate
Respondent has consistently, and persistently, maintained
that because the bargaining unit found in the expired contract
covered statutory supervisors, that it is in fact an inappropri-
ate unit. That circumstance, it further argues, allows it to de-
cline to bargain with the Union until such time as the bar-
gaining unit is rendered appropriate. During the hearing it
regularly sought to adduce evidence that certain job classi-
fications covered by the expired contract were supervisory in
nature. I declined to hear evidence on the point, regarding
the issue as not relevant to the proceedings as framed by the
complaint.
It is true, as in most 8(a)(5) cases, that the complaints con-
tain unit description clauses; it is also true that some of them
were later amended to clearly exclude supervisors. Despite
that, the remainder of the complaints attack only issues in-
volving unilateral changes of terms and conditions of em-
ployment. None of the issues raised by the complaints actu-
ally deals with Respondent’s affirmative good faith duty to
bargain in good faith over a new collective-bargaining con-
763FRONTIER HOTEL & CASINO
1 Enf. denied 699 F.2d 148, 156 (3d Cir. 1983). Although the court
denied enforcement on the facts, it recognized the general rule.
2 See also Carolina Telephone & Telegraph Co., 258 NLRB 1387,
1388 (1981).
3 The text of the clause reads:
Article IV. Union Representatives. Authorized representatives of
the Union shall be permitted to visit the Employer’s establish-
ment to see that this Agreement is being enforced and to collect
union dues, assessments and initiation fees, provided that such
visits by Union representatives shall not interfere with the con-
duct of the Employer’s business or with the performance of
work by employees during their working hours. Union represent-
atives may be required to wear identification badges in non-pub-
lic areas.
4 It should be observed here, that it is unlikely that it is Franklin’s
obligation to ‘‘write up’’ an employee who was outside his work
area. That seems to me more to be the duty of the immediate super-
visor. In any event there is no suggestion that Morris actually was
on duty at the time he spoke to Tynan. Even if he was, Tynan had
Continued
tract; nor is there an issue over what the bargaining unit was
at the time the unilateral changes occurred.
The bargaining unit extant at the time the alleged unlawful
unilateral changes were imposed was that set forth in the ex-
pired collective-bargaining contract, one which Respondent
voluntarily adopted when it purchased the hotel and casino.
The Board has said in such circumstances, Cardox Div. of
Chemetron Corp., 258 NLRB 1202, 1203 (1981):1
Having voluntarily recognized and bargained with
the Union as the collective-bargaining representative of
a unit composed of [individuals who alone would not
have constituted an appropriate unit under Section 9],
Respondent argued for the first time at the hearing . . .
that the unit is inappropriate because the employees
lack a distinct community of interest. We reject this be-
lated attempt to repudiate the voluntary recognition.4 A
contrary holding would fly in the face of our statutory
obligation to promote stability in bargaining relation-
ships.
4Berbiglia, Inc., 233 NLRB 1476, 1494 (1977).
Clearly, the Board will not permit the disruption of an oth-
erwise stable bargaining relationship through the unilateral
declaration by an employer that because the Board would not
have initially certified the unit, it has no obligation to bar-
gain in it where bargaining has been successful for many
years.2 It is quite obvious that the Frontier Hotel & Casino
has bargained with the Union in the unit described by the ex-
pired contract for many years and for many contract terms.
Indeed, Respondent found the unit sufficiently appropriate
when it adopted the contract upon the purchase of the facil-
ity.
This, of course, does not mean that Respondent cannot
seek to modify the collective-bargaining unit to comport with
the statute. It may timely file a unit clarification petition or
negotiate with the Union to obtain such changes. If it choos-
es the latter, however, it must bear in mind that unit descrip-
tion clauses are nonmandatory subjects of bargaining and not
subject to impasse privileges. See New York Times Co., 270
NLRB 1267, 1273 (1984).
Accordingly, even though the contract may have expired
at the time the unilateral changes were made, and even if Re-
spondent was entitled to seek a change in the bargaining
unit, its purported inappropriateness would not constitute a
defense to a unilateral change. Indeed, until the Board
changes the unit or until the parties agree to change it, it is,
and has been, a demonstrated unit appropriate for collective
bargaining. Therefore, I concluded at the hearing that the evi-
dence bearing on the supervisory status of some of the unit
members was not relevant to the case and barred it. I adhere
to that ruling now, and comment only that the issue appears
to be a red herring. It is of no concern to the outcome of
the case. It does not even bear on the remedy, for bargaining
unit members are entitled to any remedy appropriate to the
unfair labor practices found and, here at least, the Board will
not be issuing a general bargaining order. This observation,
of course, does not preclude cease-and-desist orders, rescis-
sion orders, or make-whole orders.
C. The Unilateral Changes
1. The expulsion of union representatives from
the premises
Article IV of the expired collective-bargaining contract
permitted union officials access to the hotel for the purpose
of communicating with its members. The text of the clause
is set forth in the footnote below.3
Although the language of article IV is clearly broad
enough to cover areas other than breakrooms, union officials
visiting the premises generally met employees at a
breakroom known as the Helps’ Hall. The Helps’ Hall is an
employee lunchroom not open to the general public. Also lo-
cated adjacent to that room is the security office. Exercising
their contractual right to provide union representatives on
site, the union officials assigned to the Hotel would first go
to the security office, obtain a badge and then sit in the
Helps’ Hall or, occasionally go to other locations within the
hotel to perform their duties. On those latter visits, disagree-
ments sometimes arose regarding whether or not a union of-
ficial was exceeding the contracted-for bounds of conduct,
perhaps by interfering with an employee who was on duty.
Respondent believes it has the authority in those situations
to expel the union official from the premises on a permanent
basis. Such expulsions are known as ‘‘86ing.’’
On October 20, 1989, Union Business Agent Roxanna
Tynan was 86ed by Respondent’s security chief, Michael
Kluge. Kluge’s decision, however, had been preceded by a
few days with an incident between Security Officer Gregg
Franklin and Tynan. Franklin testified that he had seen
Tynan speaking to a kitchen steward named George Morris.
He says he had observed the two conversing on a porch out-
side the building in a nonwork area. He assumed, without
really knowing, that Morris was on duty. Tynan, however,
had assumed that Morris was off duty since he had come
outside the building to speak to her. She regarded herself as
being in a proper area to speak to employees. Franklin told
Tynan that she was to speak to employees only if they were
on break or in an appropriate break area such as the Helps’
Hall. She told him she would take his opinion into account.
He said he recalled the incident pretty well because he
‘‘wrote up’’ the employee, Morris, who was outside his work
area. Franklin says that he later conferred with Morris’ su-
pervisor to determine whether that was so or not.4
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no way of knowing that. She obviously did not seek him out since
she was standing on the porch outside the building and his duties
were in the kitchen. To the extent Franklin or other of Respondent’s
officials regarded Tynan as in breach of art. IV, they have over-
reached.
5 To corroborate Kluge, Respondent called employees Lynette
Thorne and Betsey Bracken. Neither of them was a bargaining unit
employee but they testified that they had overheard Tynan make
similar remarks at other times in the Helps Hall. Their testimony is
not particularly weighty although it does show that Tynan may have
been making such remarks. Even so, Kluge only relied on what he
himself had overheard.
6 LaVoie is the administrative assistant to the Union’s secretary-
treasurer, Jim Arnold. The secretary-treasurer is the chief executive
officer of the Union.
7 Canty could read Crossland’s first name from her employee name
tag.
This incident was followed on October 20 by Kluge 86ing
Tynan for a conversation she was having with employees in
the Helps’ Hall. Tynan testified that on October 20 she had
been in and out of the Helps’ Hall during the day speaking
to employees. On her attempt to return in the afternoon
Kluge advised her that she had been 86ed and she was to
leave the premises. When she asked why, he simply cited ar-
ticle IV, declining to be more specific. When she asked for
documentation supporting his decision, he told her to take it
up with the legal department.
Kluge testified that on that day he had received word from
a shift supervisor that there was some sort of ‘‘commotion’’
occurring in the Helps’ Hall and that he and another security
officer, Yesko, had gone to the Helps’ Hall in response. He
agrees that he found no commotion occurring but did ob-
serve Tynan speaking with some employees at a table, appar-
ently a waitress and a bartender. He and Yesko sat a few ta-
bles away and listened to the conversation. During that time
he heard Tynan refer to Respondent’s general manager,
Tommy Elardi, as a ‘‘snake in the grass,’’ a ‘‘liar’’ and an
‘‘asshole.’’ During the conversation Tynan supposedly told
the employees that the Company was in a financial bind and
it was a good time to ‘‘bring them to their knees.’’
Upon hearing these things, Kluge says he consulted with
Company Attorney Cohn. Afterwards, as Tynan was leaving
the facility he told her she was being 86ed. He says he read
her the state trespass act. He also says he cited article IV of
the contract.5
On November 22, 1989, John Patton, Respondent’s per-
sonnel director, 86ed Business Agent Michelle Vieira. Vieira
was unable to testify at the hearing, having just given birth
to a child. Patton agreed that he gave Vieira no reason for
86ing her and explained to me that he had done it simply
because Respondent was ‘‘just taking a hard stand.’’
There was no further 86ing for almost a year. On Septem-
ber 20, 1990, the Union had selected three individuals to
service Respondent’s employees. These were Kevin Kline,
Hattie Canty, and Geoconda Espinosa. All three had special
attributes. Kline was an experienced business agent who had
worked for a long period of time for a local in Washington,
D.C., and was currently on the International’s staff; he had
been lent to Respondent when it became apparent that bar-
gaining was becoming difficult. Canty was the recently elect-
ed president of the Charging Party. Espinosa, although inex-
perienced as a union representative, spoke fluent Spanish, an
attribute which enabled her to speak easily with Respond-
ent’s Hispanic employees, of which there is a large number.
Shortly thereafter, the Union’s administrative assistant,
Johnny LaVoie, gave all three letters of introduction to Pat-
ton.6 All three promptly met with Patton, delivered the letters
and told him they were there to deal with grievances, collect
dues, and engage in a membership drive. Patton says he
doesn’t recall a reference to any membership drive. At one
point, Kline showed Patton a bank draft which the Union
hoped to persuade employees to sign to assist the Union in
collecting dues more easily.
Within a week, by letter dated September 27, 1990, Patton
86ed Kline on the basis that Patton had learned that Kline
‘‘is an employee of the Hotel and Restaurant International
Union.’’ At the hearing Patton admitted that Kline was 86ed
‘‘solely’’ because he was a representative of the International
Union.
On October 22, 1990, Canty was 86ed. She had been visit-
ing the Helps’ Hall during the day performing her duties. At
some point she sat with two employees, Eileen Crossland
and Barbara Thomas. Crossland made two reports, one on
October 22 and the other on October 23, regarding what she
perceived to be misconduct by Canty and Espinosa. As a re-
sult of those reports Patton caused Canty to be 86ed. He later
relied on the second report to assist him in deciding to 86
Espinosa as well.
Crossland’s reports are, to say the least, unremarkable. She
apparently did not know Canty’s name and referred to her
only as a ‘‘black lady.’’ In pertinent part, the report follows:
A black lady sat down & was asking how to pro-
nounce my name.7 She asked how long I had worked.
I answered 16 yrs. The black lady asked my last name.
I answered that I don’t wish to give it as I am not inter-
ested in the Union. I told the black lady that I don’t
want to talk to you. Black lady asked if I was happy
with the insurance & medical coverage. I answered that
I was happy with what I have. I am still not in talking
with you. Black lady said that she had the authority to
talk to anyone at anytime that she wanted. I told her
that she didn’t have the right to harass me.
I then got up & picked up my food, moving to an-
other table. As I left she says that okay I talk with
her[,] the bus person.
As I left I told the black lady I thought what the
Union was doing was a disgrace for allowing this to go
on.
On the following day Crossland gave her second report,
this time dealing with Espinosa. This one is even shorter:
I was sitting alone having my lunch when a lady
I.D.ing herself as a union representative sat down. I
told her I didn’t want to talk to her. She asked why not.
I explain to her I had been harass by a union represent-
ative the day before & did not have anything to say to
her. I asked to please leave me alone. She said that I
had the right to talk to you or anyone else as she want-
ed. At this point I got up and left. Leaving my lunch
1/2 finished.
765FRONTIER HOTEL & CASINO
8 It should be noted here that in order to obtain the badge, a union
representative must present himself or herself at the security office
inside the building.
9 His accusation that she used abusive language to him is rejected.
Leuthy is a huge, intimidating young man. Espinosa is a slight, shy
young woman who speaks English as a second language. She would
not risk the anger such language would be likely to provoke, even
if she was proficient with such epithets.
Although neither Canty or Espinosa adopts Crossland’s re-
ports, their testimony is not greatly different. Canty simply
says that her question to Crossland regarding the pronuncia-
tion of her first name was a means of breaking the ice be-
tween the two; she has a friend with the same first name but
who pronounces it slightly differently. Both Canty and
Espinosa say they did nothing which would constitute harass-
ment under any definition.
When Canty returned to the hotel later that afternoon, she
was denied access and was given a letter from Patton stating
that she was being 86ed because she had ‘‘harassed’’ em-
ployees on break and that was prohibited by article IV of the
contract. Patton made no effort to discuss the incident with
Canty before issuing her the letter.
Patton also used Crossland’s second report to justify 86ing
Espinosa. He did so by letter dated October 25, 1990, accus-
ing her of harassing employees who were on break and con-
ducting union business outside the scope of the Culinary
contract, citing article IV.
At the hearing Respondent added another incident to jus-
tify its action. That appears to have occurred outside the
building several days before. Espinosa says an employee
named Lily Martinez had agreed to meet her after work at
a bench located outside the employee entrance next to the
parking lot in order to pay dues. They met as planned and,
as they talked, they were approached by security guard Kirk
Leuthy. She says Leuthy knew her by sight, if not by name,
due to her numerous visits to the hotel. Nonetheless, he
asked her for some identification. When she replied she was
a union business representative, he asked her for her badge.
She replied that she was not in the building and therefore did
not have to have a badge.8 Leuthy persisted in demanding
identification, so they walked to her car which was parked
nearby, to obtain her driver’s license. After looking at it,
Leuthy wrote her name down and told her to leave the prem-
ises because she was parked in an unauthorized zone.
Leuthy’s version of the incident is far more graphic. He
says he and another guard had been notified by radio that
there was a disturbance at the stairway between the time of-
fice and the parking lot. He says when he arrived, he ob-
served Espinosa blocking the stairway and preventing indi-
viduals from either coming down or going up. His testimony
was a bit confused on the point. He first testified that she
was blocking four or five people who were coming down the
stairway, but conceded that they might have been talking to
her. Nonetheless, he says there were individuals trying to
enter the building on the other side of the stairway and who
were impeded from doing so. Accordingly, he says he asked
Espinosa to step away from the stairway. When she did so,
their conversation began.
He contends that he had never seen Espinosa before, so
he asked her for her identification. She replied she was a
union business agent and he again asked for identification.
At that point he says that she became rude and obscene. In
contrast, he volunteered he was ‘‘gracious’’ toward her. His
testimony is somewhat inconsistent, however, because he as-
serts that at one point she was removed because she did not
have proper identification, i.e., the badge, at another he as-
serted he asked her to leave because she was parked in an
unauthorized area. Later he conceded that she wasn’t re-
quired to have a badge in the parking lot.
It is clear to me based upon Leuthy’s demeanor that he
is a self-important exaggerator. Even by his own subjective
description, there was no disturbance occurring at the loca-
tion. Even if his version is believed, i.e., that Espinosa was
somehow blocking the stairway, nothing occurred which war-
ranted ejecting her from the premises. All he needed to do
was to ask her to move. However, I do not credit his version.
Espinosa is of slight stature and even if the stairway is as
narrow as Leuthy says, she would not have been able to
block both sides of it. Moreover, by his own testimony it
seems likely that she was not blocking the stairway but
speaking to a group of people who had no objection. In fact,
Leuthy moved so quickly, according to his own version, that
he did not take sufficient time to observe what was actually
occurring. He did not listen to any of her words nor to the
words of any of the others who were there. Therefore, it is
clear that Leuthy reached his conclusions more quickly that
the facts presented themselves. Frankly, I find Leuthy’s ver-
sion not to be worthy of belief. But even if believed, it was
it does not amount to anything warranting discipline.9
Patton testified, however, that he took the incident into ac-
count together with Crossland’s report and decided to 86
Espinosa as well. As he testified, he ‘‘thought it best to take
a hard stand in 86ing the agents.’’
Article IV of the collective-bargaining contract is clearly
a bargained-for accommodation between Respondent’s prop-
erty right to control access to the property by nonemployee,
noncustomers, and the right of employees who have chosen
a union representative to have those union representatives
visit them on the premises in order to perform the business
of union representation. The clause specifically includes the
explicit right to observe the premises to determine whether
the agreement is being followed and to collect dues and initi-
ation fees, so long as the union officials do not interfere with
the Employer’s business or with the performance of work by
the employees.
None of the incidents cited by Respondent demonstrates
that the Union had breached this rule. The only suggestion
that there may have been a breach is Kline’s testimony that
he told Patton he was present in order to conduct a member-
ship drive. But even a membership drive is permitted by this
clause for it specifically authorizes the Union to collect initi-
ation fees, i.e., obtain memberships. There is absolutely no
evidence that any union business agent ever spoke to an em-
ployee who was on duty, security guard Franklin’s testimony
notwithstanding, and there is no evidence that any union rep-
resentative interfered with the Employer’s business or with
the performance of any employee’s work.
It may be true that Tynan made insulting remarks about
members of the Elardi family in the Helps’ Hall. Even so
that is not a breach of article IV. She did it at a time when
employees were on break, at a location where they were to
take their breaks, and did it in private conversations with her
members or prospective members. This clause clearly per-
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 It may be true that she referred to the possibility that union
members may be asked to support a strike at another hotel,
Fitzgerald’s. Again, there is nothing in art. IV that prohibits her from
doing so. Certainly Respondent never cited that as one of the reasons
to 86 her. At one point, Patton said that Tynan and Vieira passed
out leaflets in the Helps’ Hall. He believes that such conduct violates
art. IV, but was unable to say how. The leaflet basically informs the
union membership of the strike about to begin at Fitzgerald’s. It has
little, if any, likelihood, of affecting employees’ work at Respondent.
11 Kentucky Utilities Co., 76 NLRB 845, 846–847 (1948), enfd. as
modified 182 F.2d 810 (6th Cir. 1950); KDEN Broadcasting Co.,
225 NLRB 25, 35 (1976); General Electric Co. v. NLRB, 412 F.2d
512, 517 (9th Cir. 1969). There are some exceptions, but none of
them are applicable here.
12 Keiler has represented the Barbary Coast in a separate proceed-
ing before the Board.
mitted the union business agents to conduct union business
at the Hotel so long as the Hotel’s business was not dis-
rupted.10 Furthermore, it is quite clear that Respondent had
no basis for 86ing Kline whatsoever, except for his being di-
rectly employed by the Union’s parent International union. It
has long been the law that a union is entitled to select
whomever it wishes to represent it without legal objection by
the employer.11 Furthermore, Respondent’s reliance on the
statements of Crossland is clearly misplaced. Crossland has
described nothing which constitutes harassment or which was
disruptive. It is clear from Crossland’s own statements that
she overreacted to Canty’s and Espinosa’s approaches. Even
if both said, as Crossland seems to say, that they had right
to speak to employees, all Crossland had to do to avoid it
is exactly what she did; walk away. Clearly Crossland was
being overly sensitive and it is clear that Respondent knew
or should have known that was the case. Certainly nothing
which she said in her statements constitutes grounds for
86ing either business representative.
Since Respondent has presented no credible evidence that
any business representative ever breached article IV, and
since the expulsion of these individuals was based on no
grounds or flimsy grounds, one can only conclude that the
reason these individuals were ejected from the hotel was to
somehow inhibit the Union from communicating with its
membership and/or the people it is legally obligated to rep-
resent. Furthermore, it appears that some of the confronta-
tions occurred in the presence of employees. That is certainly
true of the Espinosa incident in the parking lot, Franklin’s
statement to Tynan that she could only speak to employees
in the Helps’ Hall, and the surveillance of Tynan and
Espinosa while they conversed with employees. This conduct
either had the indirect impact of interfering with union-relat-
ed communications (which may have had bargaining aspect
to it) or was a direct coercion and restrain of employees who
were engaging in the union activity of conversing with their
bargaining representative. Either way it violated Section
8(a)(1) of the Act. Harvey’s Wagon Wheel, 236 NLRB 1670
(1978). To the extent that it deprived employees of their con-
tractually granted access to their bargaining representative, it
was a unilateral change of a material term or condition of
employment and therefore a breach of Section 8(a)(5); it
likewise tended to interfere the representational process, also
a breach of Section 8(a)(5). Boyer Bros., 217 NLRB 342
(1975); Precision Anodizing & Plating, 244 NLRB 846
(1979); cf. Westinghouse Electric Corp., 243 NLRB 306
(1979). Furthermore, that term and condition of employment
survives the expiration of the contract. Houston Coca-Cola
Bottling Co., 265 NLRB 766, 777 (1982), enfd. as modified
740 F.2d 398 (5th Cir. 1984); American Commercial Lines,
291 NLRB 1066, 1072 (1988).
2. House disciplinary rules
On July 1, 1990, Respondent issued a set of rules to all
employees. These rules covered many aspects of employee
behavior and performance. In total there were 63 specific
rules. They were headed by the statement ‘‘Employees vio-
lating one or more of these rules or procedures shall be sub-
ject to immediate discipline up to and including termi-
nation.’’ Furthermore, they were not all inclusive for it stated
that each department may impose additional rules. Beyond
the list of 63, an additional 4 rules were attached covering,
among other things, a hiring policy dealing with nepotism,
a transfer policy requiring Elardi family approval if an em-
ployee was switched from one department to another, and a
rehire policy stating that an individual who left employment
would be ineligible for rehire for 6 months. Respondent as-
serts that it was privileged to impose these rules principally
because similar rules had been in effect before that time.
Clearly, however, none of the hiring, transfer and rehire poli-
cies had been in effect before. These were new rules.
Furthermore, although some of the 63 behavior rules may
have been similar or covered the same conduct as previous
rules, it is quite clear at least rules 12, 13, 40, 42, and 48
were significantly different from any of the rules which had
preceded them. Furthermore, Respondent’s witness, its attor-
ney, Joel I. Keiler, gave testimony about these changes
which suggests a disregard for historical accuracy.
Keiler first testified that he had compared the new rules
with the old rules in order to reach the conclusions that they
were pretty much the same. He made that argument to the
Regional Office during the investigation and subsequently
testified to it before me. However, on cross-examination he
was forced to concede that the old rules which he was com-
paring were rules which had been promulgated by a totally
different hotel, unrelated to Respondent, the Barbary Coast.12
Clearly Keiler has, at the very least, dissembled during the
investigation and has demonstrated an untoward recklessness
regarding presenting accurate facts. As the record now
stands, there is no evidence regarding the language of any
of the previous rules. We only know the July 1, 1990 rules.
In any event, Keiler admitted that the new July 1, 1990
rules set forth in General Counsel’s Exhibit 15 were never
proposed to the Union and that Respondent never gave the
Union an opportunity to bargain over them.
In that circumstance, it is clear that Respondent made sig-
nificant and substantial changes regarding terms and condi-
tions of employment in violation of Section 8(a)(5) and (1)
of the Act. Before implementing such rule changes, an em-
ployer is obligated to give notice to the union in order to
give the union an opportunity to bargain over them. Re-
spondent did not do so and therefore violated the Act. NLRB
v. Katz, 369 U.S. 736 (1962); Boland Marine & Mfg. Co.,
225 NLRB 824 (1976); Great Western Produce, 299 NLRB
1004 (1990).
767FRONTIER HOTEL & CASINO
13 Scott on Trusts (3d ed. 1967): ‘‘§ 194. Several Trustees. Where
there are two or more trustees, it is essential that they all concur in
the exercise of powers conferred upon them. [fn. omitted]. In the
case of charitable trusts, such unanimity of action is not required of
the trustees; action by a majority is effective, as in the case of action
by corporate directors. [Fn. omitted.]’’ Also, Survey of the Law of
Trusts, Smith (1949), § 14(e).
3. The cessation of the pension fund contributions
The expired collective-bargaining agreement provided that
Respondent make contributions to the Southern Nevada Cul-
inary Workers and Bartenders Pension Fund. Contributions
had been made on the 1984–1989 collective-bargaining con-
tract during its life, both by Summa Corporation and by Re-
spondent when it took over. Respondent continued to make
contributions until June 1990. Indeed, in its February 5, 1990
‘‘last, best and final’’ offer it proposed no changes in the
pension plan. Similarly, in a subsequent proposal, dated Feb-
ruary 23, 1990, Respondent omitted any reference to any
changes in the pension plan. Its then attorney, Kevin
Efroymson, testified that there was no reference to a change
in the February 23 proposal and therefore Respondent in-
tended to make no changes in the pension plan.
Consistent with that intent, when Respondent actually im-
posed its last offer on February 26, 1990, it made no changes
in the pension plan or pension contributions. But, on June
25, it advised its employees that pension contributions were
being discontinued. Payments ceased on that date and have
not been resumed. Such failure is a violation of Section
8(a)(5) and (1). Hen House Market #3, 175 NLRB 576
(1969), enfd. 428 F.2d 133 (8th Cir. 1970).
Respondent defends on the ground that an impasse had
been reached and that the implementation letter had canceled
the pension. Clearly that is not the case. At no time until
June did Respondent advise anyone that the pension plan was
being discontinued. Even then it only advised the affected
employees, not the Union. Furthermore, there is no evidence
that a genuine impasse on that issue existed. At no time dur-
ing bargaining was anyone contemplating changing the pen-
sion plan. Clearly this is not the implementation of a pro-
posal after impasse as contemplated by Taft Broadcasting
Co., 163 NLRB 475 (1967), affd. 395 F.2d 622 (D.C. Cir.
1968), the seminal case on the issue.
Finally, as a rather lame justification, Attorney Keiler tes-
tified that he had a conversation with a trustee of the plan
who had supposedly told him that the plan could not accept
payments if a year had passed since the last collective-bar-
gaining agreement had expired. Aside from the fact that such
a statement is hearsay not probative of much, it is clear that
such statement does not constitute the official position of the
trust. The trust acts only through its board of trustees when
serving as a Board. One trustee’s statement does not con-
stitute a statement of policy or practice. As an attorney,
Keiler undoubtedly knows the basic tenet of trust law that a
trust can only act at the behest of the Board. Single trustees
have no such authority.13 See Section 302(c) of the Act. In-
deed, the official statement of the trust administrator would
carry more weight than that of a single trustee. Since Keiler
undoubtedly knows that, I can only conclude that his testi-
mony is designed to obfuscate.
Accordingly, I am unable to find any justification for Re-
spondent having discontinued paying the pension plan.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1), I
shall direct that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. The affirmative action shall include an order requiring
Respondent to make whole the pension trust for contributions
not paid since May 1990 in accordance with the Board’s de-
cisions in Ogle Protection Service, 183 NLRB 682 (1970),
and Merryweather Optical Co., 240 NLRB 1213 (1979). It
shall also require rescission of the July 1, 1990 rules, the re-
scission of any discipline brought thereunder and, where ap-
propriate, the reinstatement with backpay for any employee
discharged or suspended due to enforcement of those rules,
together with interest. See Boland Marine & Mfg. Co., supra;
Great Western Produce, supra. The identity of the individ-
uals so affected shall be determined at the compliance stage.
Backpay for dischargees shall be calculated as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Suspended employees shall be made whole as
if they had not been suspended, together with interest there-
on. In addition, Respondent shall expunge their personnel
files of any record of that discipline and notify the employ-
ees in writing that it has done so.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent’s conduct in ejecting union representatives
from its premises contrary to their contractual right to be on
the premises violated the Act as follows:
(a) It deprived employees of access to their statutory col-
lective-bargaining representative and thereby interfered with
the employees’ Section 7 right to union representation, a vio-
lation of Section 8(a)(1).
(b) It had the tendency of undermining the Union as the
employee bargaining representative because the employees
could no longer communicate as readily with their represent-
atives and because it constituted direct interference with the
Union’s right to collect dues and initiation fees, thereby vio-
lating Section 8(a)(5) and (1).
(c) To the extent that ejection occurred within the view of
statutory employees, the conduct disparaged and sought to
discredit union representatives in the eyes of the employees,
suggesting to them that union representation was not appro-
priate and could result in employees being treated in a simi-
lar negative manner, thereby violating Section 8(a)(1).
(d) It constituted a repudiation of a contract clause de-
signed to protect the employees’ Section 7 rights and thereby
violated Section 8(a)(5) and (1).
(e) It constituted a unilateral change in material and sub-
stantial terms and conditions of employment in circumstances
where Section 8(d) of the Act prohibits unilateral repudiation
of collectively bargained terms and conditions and thereby
violated Section 8(a)(5) and (1).
(4) Respondent violated Section 8(a)(1) by eavesdropping
or otherwise watching employees as they had private con-
versations with their union representatives.
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 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) Respondent violated Section 8(a)(5) and (1) by unilat-
erally imposing employee behavior and hiring rules without
first giving the Union notice and an opportunity to bargain
over them.
(6) Respondent violated Section 8(a)(5) and (1) by unilat-
erally and without notice to the Union ceasing to pay the
pension plan contributions as mandated by Section 8(d).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Unbelievable, Inc., d/b/a Frontier Hotel
& Casino, Las Vegas, Nevada, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Ejecting union representatives from its premises con-
trary to their contractual right to be on the premises.
(b) Repudiating collective-bargaining contract clauses de-
signed to protect the employees’ Section 7 rights and unilat-
erally changing material and substantial terms and conditions
of employment in circumstances where Section 8(d) of the
Act prohibits such conduct.
(c) Eavesdropping or otherwise watching employees who
are having private conversations with their union representa-
tives.
(d) Unilaterally imposing employee behavior and hiring
rules without first giving the Union notice and an oppor-
tunity to bargain over them.
(e) Unilaterally and without notice to the Union ceasing to
pay the pension plan contributions mandated by Section 8(d).
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the employee behavior and hiring rules which
it imposed on July 1, 1990, and rescind any disciplinary ac-
tion which it has taken against employees for the breach
thereof, including reinstating any employee discharged or
suspended thereunder together with backpay and interest; no-
tify the employees who were disciplined under the July 1,
1990 rules that we have removed from our files any ref-
erence to that discipline and that the discipline will not be
used against them in any way.
(b) Pay to the Southern Nevada Culinary Workers and
Bartenders Pension Fund those monies improperly withheld
from it beginning in May 1990 and continue such payments
thereafter until such time as Respondent negotiates in good
faith with the Union to a new agreement or an impasse, to-
gether with any penalties or late fees the trust normally re-
quires. Merryweather Optical, supra at 1216 fn. 7.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its hotel and casino in Las Vegas, Nevada, cop-
ies of the attached notice marked ‘‘Appendix.’’15 Copies of
the notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT eject representatives of the Local Joint Ex-
ecutive Board of Las Vegas, Culinary Workers Union Local
226, and Bartenders Union, Local 165, affiliated with Hotel
Employees and Restaurant Employees International Union,
AFL–CIO, from our premises contrary to their contractual
right to be on the premises.
WE WILL NOT repudiate any collective-bargaining contract
clauses designed to protect our employees’ Section 7 rights
and WE WILL NOT unilaterally change material and substan-
tial terms and conditions of employment in circumstances
where Section 8(d) of the Act prohibits such conduct.
WE WILL NOT eavesdrop or otherwise watch employees
who are having private conversations with their union rep-
resentatives.
WE WILL NOT unilaterally change our employee behavior
and hiring rules without first giving the Local Joint Execu-
tive Board of Las Vegas notice and an opportunity to bargain
over them.
WE WILL NOT unilaterally and without notice to the Local
Joint Executive Board of Las Vegas cease to pay the South-
ern Nevada Culinary Workers and Bartenders Pension Fund
pension plan contributions mandated by Section 8(d).
769FRONTIER HOTEL & CASINO
WE WILL NOT in any like or related manner interfer with,
restrain or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the employee and hiring rules which we
imposed on July 1, 1990, and WE WILL rescind any discipli-
nary action which we have taken against employees for
breaching them, including reinstating any employee dis-
charged or suspended under those rules together with back-
pay and interest.
WE WILL notify employees who were disciplined under the
July 1, 1990 rules that we have removed from our files any
reference to that discipline and that the discipline will not be
used against them in any way.
WE WILL pay to the Southern Nevada Culinary Workers
and Bartenders Pension Fund those monies improperly with-
held from it beginning in May 1990 and thereafter.
UNBELIEVABLE, INC., D/B/A FRONTIER HOTEL
& CASINO