Harrah's Club

National Labor Relations Board - Board Decisions

Feb 12, 1965

150 N.L.R.B. 1702 (N.L.R.B. 1965)

1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in this
hearing, I make the following:
CONCLUSION OF LAW
The net backpay due from the Company is as follows: to Russell, none ; to Emer-
son, $48 ; to Medile , $49; to Alford, $692; to Garrett, $36.99; to Hill , $654.35; and to
Steelman, none.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, and upon
the entire record in the case, I recommend that the Company, Ripley Manufacturing
Company, Ripley, Tennessee , its officers , agents, successors , and assigns , shall:
1. Make Emerson, Medile, Alford, Garrett, and Hill whole for loss of pay suf-
fered, by payment to them of the respective amounts of net backpay as hereinabove
,set forth, with interest and minus the tax withholding required by Federal and State
laws.
2. Notify the Regional Director for Region 26, in writing, within 20 days from
the date of this Supplemental Decision, what steps have been taken to comply here-
with.5
Is In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
Harrah's Club and International Alliance of Theatrical Stage
Employees and Motion Picture Operators of the United States
and Canada, Local 363, AFL-CIO. Case No. 2O-CA-2839: Feb-
ruary 12, 1965
DECISION AND ORDER
On October,16, 1964, Trial Examiner Irving Rogosin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in- and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action; as set forth in the attached Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General Counsel filed 'a
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner. -
150 NLRB No. 169.
HARRAH'S CLUB 1703
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as
its Order, the Order recommended by the Trial Examiner, and
orders that the Respondent, Harrah's Club, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq., 61 Stat. 136), herein called the Act, is based upon a complaint
issued November 21, 1963, alleging that Harrah's Club, herein called Respondent,
the Club, or the Employer, has engaged in unfair labor practices within the meaning
of Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act.'
Specifically, the complaint alleges that on 'various dates between on or about
August 9, 1963, and on or about October 20, 1963, Respondent, through various
named supervisors, (1) coercively interrogated employees regarding their union
membership, activities, and sympathies; threatened them with reprisals therefor; and
solicited them to bypass their bargaining representative and deal directly with man-
agement, thereby interfering with, restraining, and coercing employees in violation
of Section 8(a)(1); and (2) on or about September 1, 1963, discharged Robert H.
Wetherill because of his union or other protected activities, thereby discouraging
membership in a labor organization, in violation of Section 8(a) (3), and interfering
with, restraining, and coercing employees in the exercise of the rights guaranteed
by Section, 7, in violation of Section 8 (a) (1) of the Act. Respondent's answer sub-
stantially admits the jurisdictional allegations of the complaint, and the status of
named persons, with the exception of Herbert Swartz, as supervisors within the
meaning of the Act, and denies generally the commission of^any unfair labor practices.
Hearing was held before Trial Examiner Irving Rogosin at Reno, Nevada, on
January 28, 29, 30, and 31 and February 4 and 5, 1964. All parties were repre-
sented by counsel and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to present oral and documentary evidence relevant and
material to the issues, to argue orally, and to file briefs. All parties declined to
argue orally but, pursuant to an extension duly granted, filed briefs on April 23,
1964 (the Charging Party formally adopting the brief of the General Counsel),
which have been fully and carefully considered.
Upon the entire record in the case, including my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Harrah's Club, a Nevada corporation, with its principal office and place of busi-
ness in Reno, Nevada, is, and at all times mentioned herein has been, engaged in the
business of owning and operating restaurants and gambling casinos in Reno and
Stateline, Nevada. During the past year, Respondent in the course of its business
operations purchased and received goods and materials valued in excess of $50,000
directly from points outside the State of Nevada. During-the same period, Respond-
ent sold goods, merchandise, and services valued in excess of $500,000. Respondent
admits, and I find, upon the basis of the foregoing and the entire record, that
Respondent, at all times mentioned herein, has been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.2
1 The original charge was filed on September 5, 1963, and served on Respondent the
following day ; the complaint was served on November 22, 1963.
2 The Board has asserted jurisdiction over this Respondent (Board Member Leedom,
dissenting), in a prior unfair labor practice proceeding, Involving another labor organiza-
tion , 143 NLRB 1356, as well as in the representation proceeding involving employees
represented by this Union , in an unpublished decision , Case No. 20-RG-5597,, referred to
hereinafter. '
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED _
International Alliance of Theatrical Stage Employees and Motion Picture Opera-
tors of the United States and Canada, Local 363, AFL-CIO, is, and at all times
mentioned herein has been, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Chronology of events
a. Introduction
The business of Respondent consists of the operation of gambling casinos and
restaurants, known as Harrah's Reno, Harrah's Bingo, and Harrah's Casino and
Restaurant, located in Reno, Nevada, and Harrah's Lake Tahoe and Harrah's Tahoe,
located at Lake Tahoe, in Stateline, Nevada. Harrah's Tahoe is the largest of these
operations, and contains the South Shore Room, a theatre-restaurant accommodat-
ing upward of 700 guests and featuring many of the outstanding performers in the
entertainment industry. Also located in this casino is the Stateline Lounge, which
features continuous entertainment around the clock. This proceeding concerns the
stage technicians who provide the technical services for stage productions in the
South Shore Room.
There is no dispute as to the supervisory status,of management personnel, except-
ing Herbert Swartz, responsible for the production of the shows, at the times men-
tioned in the complaint. They are: Robert I. Brigham, director of industrial rela-
tions; Robert (Bob) Vincent, director of entertainment; Arthur Barkow, producer;
Sy Lein, stage manager; Jacques A. Vogt, chief lighting technician; and Joseph L.
Sheeketski, shift manager.3
Among other management representatives who figured prominently in the events
which occurred, or who have been mentioned in the course of the proceedings, were
Rome Andreotti, vice president of administration, and Kenneth E. Clever, assistant
manager in charge of operations and personnel. The status of Swartz, head of the
sound department during the early stages of the events described hereinafter, will be
considered in connection with the alleged discriminatory treatment of Wetherill.
Efforts to organize Respondent's stagehands at its South Shore Room culminated
in the filing of a petition for certification of representatives on August 14, 1963, in
Case No. 20-RC-5597.4 On September 5, 1963, Respondent, through its attorney,
entered into a stipulation for certification upon consent election among said employ-
ees.5 A tally of ballots cast in the election on October 14, 1963, revealed that of 12
eligible voters, 11 had cast ballots in favor of the Union, the remaining ballot having
been challenged. On or about October 18, 1963, Respondent filed objection to elec-
tion , alleging that the Union had engaged in preelection conduct affecting the results
of the election. On February 27, 1964,,the Board issued its Decision and Certifica-
tion of Representatives (unpublished), adopting the findings and recommendations
of the Regional Director dismissing the objections, and certifying the Union as exclu-
sive bargaining representative of the employees in the unit found appropriate.
s Also mentioned in the complaint as a supervisor Is William Ross, who Is alleged
to have engaged In Interrogation of employees. During the hearing, the allegations of
the complaint with respect to this alleged supervisor were amended to substitute the
name of Ian Griggs as the supervisor alleged to have engaged in these activities. Upon
motion of the General Counsel, these allegations Insofar as they related to Ian Griggs
were stricken from the complaint.
* The terms "stagehands ," "stage technicians," and "stage crew" are used Inter-
changeably to describe the same group of employees.
a The appropriate unit as described in the stipulation is as follows:'
All stage technicians, apprentice stage technicians, and sound console operator in
the South Shore Room employed by Harrah's Club at Lake Tahoe ; excluding all
other employees , guards, and supervisors as defined In the Act.
It was further stipulated that Inclusion of the sound console operator, and his eligibility
to vote in the election, were not to be binding upon the Employer In any other matter or
proceeding. The Employer agreed, however, that in the event the Union was certified
as bargaining representative pursuant to the election, the Employer would not in any
Board proceeding contest the right of the Union to represent the sound console operator
as long as the Union continued as the certified representative of the employees in the unit.
HARRAH'S CLUB 1705
b. Organizational activity ; subsequent events
Early in June 1963, Robert H. Wetherill, a stage technician at the South Shore
Room, became business agent of Local 363, the Charging Union. Wetherill began to
organize the stage crew early in August 1963, and on August 9 dispatched a telegram
to Robert Brigham, director of industrial relations, demanding recognition on behalf
of those employees. On August 14, having received no reply, he filed a petition for
certification of representatives.
That night or the following night, according to employee Ray McNerthney, Pro-
ducer Barkow asked him to which union he had belonged. McNerthney told him
that he had belonged to Local 202, I.B.E.W., San Francisco. Barkow, McNerthney
testified, said that that was the same union as the one to which Herb Swartz belonged.
McNerthney, according to his testimony, also informed Barkow that he had held a
card with NABET,6 in San Francisco, while he was working for Station KGO, Ameri-
can Broadcasting Company. Barkow informed him that he himself had held a
NABET card while working at ABC in New York. Barkow, however, testified that
he had at one time been employed at CBS, that he had never been a member of
NABET, nor had he ever worked for NBC. (He was not asked nor did he testify
whether he had ever worked at ABC.) However, although he denied telling McNerth-
ney that he had been a member of NABET, Barkow did not specifically deny that he
had a 'conversation with McNerthney in which the other matters were discussed. In
any 'event, assuming the conversation occurred substantially in accordance with
McNerthney's testimony, there is nothing in the interrogation by Barkow or his
remarks to McNerthney to warrant a finding of interference, restraint, or coercion.
Several days after the filing of the petition for representation and the posting of a
copy at the Club, Stage Manager Sy Lein and Lighting Director Jacques Vogt spoke
to Wetherill in the stage manager's office backstage. Lein told Wetherill that he
and Vogt had been summoned to the office where they were shown the petition and
asked what they knew about it. Lein told Wetherill that they disclaimed any knowl-
edge of the petition and were "flabbergasted." When Lein asked Wetherill why he
hadn't told them about the petition, Wetherill said that he didn't .trust him. Lein
returned the compliment, and Wetherill left. Later the same evening, Wetherill
approached Vogt and volunteered that he had not told him about the petition because
Vogt was "too close" to Lein and he did not feel he could not trust Vogt either. Vogt
told him that he carried an "I.A. [union] card," which he respected, and that he
would "never stab [him] in the back." Wetherill remarked, "I hope not," and walked
away. During the conversation, Vogt remarked, according to Wetherill, "You will
never keep 14 men working here if you go union or have a contract."
About the same date, Lein told Bruce T. Lovelady, a stage technician, that they
sure threw him a curve"; that he and Vogt had just returned from a meeting with
management; and that management had found it incredible that Lein and Vogt had
not known in advance about the filing of the petition. Later that day, Vogt remarked
to Lovelady that they had "put him in hot water." Asked what he meant by the
remark, Vogt replied, "Springing this Petition on us; that we were raked over the
coals up in a meeting and nobody believed that we didn't know anything about it."
During this same period, Lein told Lovelady that "as far as management was con-
cerned they wouldn't trust Bob Wetherill anymore." Asked why, Lein said that it
was because of Wetherill's filing of the petition "after all we had done for him,"
remarking that Wetherill "had stabbed them in the back.",7
6 National Association of Broadcast Employees and Technicians
7 The findings as to this, and the incidents, in which Lovelady participated, which
follow, are based upon his testimony Lovelady impressed me as a truthful, forthright,
intelligent, and articulate witness. He obviously enjoyed the confidence of management,
as well as of his fellow crew members. He acted as assistant to Stage Manager Lein,
substituting for him on occasion during his absence He was also employee representa-
tive on the board of review, discussed later, having been elected by the members of the
crew. Wherever there is a conflict between his testimony and that of other witnesses,
I have based my findings on Lovelady's testimony. Moreover, Lein did not specifically
deny the statements attributed to him by Lovelady. As to the "stabbing in the back"
remark, Lein testified that he merely stated to Wetherill his personal opinion that it did
not seem "the proper thing to do," obviously referring to Wetherill's union activities,
after the way the Club had treated Wetherill during his illness. Regarding the remarks
attributed by Lovelady to Vogt, Vogt frankly and forthrightly admitted making the re-
marks, in substance, including the remark about "never keeping 14 men working," al-
though he endeavored to explain the remark in the frame of reference of conditions under
an IATSE contract.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 5, ,a conference was held at the Regional Office of the Board in
San Francisco in connection with the representation petition. Attending on behalf
of Respondent were Vice President Andreotti, Director of Industrial Relations Brig-
ham, Producer Barkow, and Attorney Nathan R. Berke. Lovelady was also present.
While Berke was conferring with the Hearing Officer, Barkow asked Lovelady wether
he was aware that the Union required stagehands to take tests in order to qualify for
membership , adding that he did not believe that the stagehands at Harrah 's would
be able to pass these tests. Barkow also ventured that, even if the stagehands were
successful in passing these tests, it was unlikely, that they would be accepted for
membership by the local, and that if they could overcome that obstacle, it was very
doubtful that the International would admit them to membership.8
Next evening, Lein asked Lovelady for an account of what had happened at the
hearing at the Regional Office. When Lovelady related what had occurred, Lein
remarked, "I guess you know because you were at the hearing-management thinks
you are on the Union side." Lovelady protested that the hearing was open to the
public, and that his attendance should not be taken to mean he was on "any side."
Lein persisted, "Nonetheless, they think you are on the Union' s side."
On the morning of September 9, Lein told Lovelady that the stage, technicians
"would be crazy to vote for the union." Asked to explain, Lein told Lovelady that if
the employees "brought the union in at this time," they would have less job security,
"would probably not all be kept on," and "would work [as under] any union contract
where they would have four major men"; namely, a "head" man for each classification
of carpenters, electrician, propman, and flyman. The remainder of the men would
be hired from the union hall .9
That morning, according to the credited testimony of Donald W. Rux, a stage
technician, Barkow approached him in the employees' cafeteria, and remarked, "Of
course, you know the crew will be cut back because of the union activity," adding,
.. you realize, of course, the crew does not have to be as big because of a union
contract." Rux acknowledged that he was not aware of that. Barkow rejoined,
"Well, there are still things to be seen from this." During this exchange, 'Barkow
told Rux that "Even though the stage technicians had signed cards designating the
union, they could still `vote no' in the election and that it would be advantageous to
[them] if [they] did."
The same night, after the first show, Entertainment Director Vincent questioned
Lovelady about his familiarity with unions, and asked him whether he had ever read
the Union's constitution. When Lovelady replied that he understood the constitution
was available only to union members, Vincent said he doubted that, and offered to try
to procure copies of the constitution for the men.
Lovelady testified that he had numerous conversations with Lein, one of which
occurred between shows, about September 12, several days after the opening of the
Liberace show. Lein told Lovelady that he assumed Lovelady realized that some
of the stage crew would have a fairly difficult time working "if this Union contract
thing goes through." Asked to explain, Lein said that as stage manager he could
reject any stagehand dispatched from the union hall. Lovelady protested that he
could not do so without good cause. Lein rejoined, "I can think of many things."
Pressed for clarification, Lein, using Monty Norman, one of the stagehands, as an
example, pointed out that since he was already familiar with this man's capabilities,
8 Although Barkow testified that he could not recall making the remarks attributed to
him by Lovelady on this-occasion ( a device to which he frequently resorted during much
of his testimony), he admitted that he could have made such statements In view of
Lovelady 's positive and convincing testimony on this subject, as well as his general
credibility , and especially as these statements reflected the general pattern of similar
statements by responsible employer representatives , notably Brigham, I find that Barkow
made the statements substantially as attributed to him by Lovelady. The consequences
of these statements will be considered later.
e Although, Lovelady originally placed this conversation as having occurred several
days after the copy of the petition for election was posted, he later corrected this to
indicate that it occurred on the date mentioned in the text , which he established by
reference to the Liberace show which opened that evening. While denying'that he had
told Lovelady that the men would be "crazy" to vote for the Union, Lein did not specifi-
cally deny the other statements , but attempted to rationalize the remarks as having been
made in response to questions posed by Lovelady, or as information based on his familiarity
with the IATSE contracts. For reasons already stated, I credit Lovelady's version of
this incident.
HARRAH'S CLUB 1707
if Norman were dispatched from the hiring hall, he could reject him on the grounds
that he considered him incompetent , and request a man he was "willing to take a
chance on," even though he was not familiar with his capabilities. Lein suggested
that Lovelady give that some thought.
Admitting this conversation, Lein testified that he merely undertook to explain that
under the union contract, management could only hire department heads and assist-
ants, but the stage crew would have to be hired through the union hall, the size of
the crew depending on the nature of the show, resulting in some instances in only a
minimum crew. Lein conceded making the remark about his right as stage manager
to reject any stagehand dispatched from the union hall if he regarded that the man
was not qualified. He also testified that he told Lovelady that the stage manager
could reduce the crew as often as he wished, and admitted using Monty Norman to
illustrate his point.
On the night of September 13, Charles H. Walker, the returning veteran who dis-
placed Wetherill, went to Barkow's office on a personal matter. After the matter was
disposed of, Barkow detained Walker. Inquiring how he had been getting along,
and whether he was having any problems at work, Barkow asked him if he had heard
about "this union deal" and how he "felt about it." Walker replied that he had only
"heard and seen one side of the picture" and was reserving judgment. Barkow then
said that he understood it was rather difficult to get into the Union,, and that applicants
were required to submit to a test. "As you yourself know," Barkow continued, "they
can always put a question in that even the best prepared man would fail."
During this discussion, Barkow questioned Walker about any previous union experi-
ence. Walker related three separate experiences, from which Barkow concluded that
Walker had, in effect, been "on both sides of the fence," and asked him to explain this.
In this discussion Barkow also took occasion to refer to Walker's previously
expressed desire to become part of management. Barkow suggested that Walker
take the matter up with Brigham, who was more familiar with the availability of
those jobs, and volunteered to let Walker know when it would be opportune for him
to talk to Brigham 10
On the afternoon of September 12, a meeting of the board of review was scheduled
in the conference room at the Club to consider Wetherill's grievance, discussed below.
The board consisted of two management representatives, in this case, Director of
Industrial Relations Brigham and Assistant Club Manager Clever, and one employee
representative, Rux, substituting for Lovelady, the regular employee representative.
For reasons that will later appear, Wetherill did not attend this meeting. After
exchanging the usual amenities, Clever left the room to see if Wetherill had arrived.
During Clever's absence, Brigham asked Rux whether he had been approached to
join the Union. - Rux admitted to him that he had. According to Rux, Brigham asked
him if he knew anything about unions. Rux replied in the negative, but added that
he knew something, but not everything, about unions.
Brigham then asked him if he knew that Wetherill had been arrested at one time.
Rux replied that he had not been aware of it. Brigham then related the circum-
stances of that arrest, which will be referred to in the discussion of Wetherill's dis-
10 Although Barkow testified that be recalled the incident, according to him, when he
asked Walker how he was getting along, Walker assumed Barkow was referring to the
"union problem," and volunteered information regarding his former experience as a retail
store manager, which bore no resemblance to the previous union experiences Walker had
described in his testimony. Barkow denied that Walker had related these experiences
during this encounter. He further denied that he had asked Walker to explain his
having been "on both sides of the fence." Barkow admitted, however, that it was "highly
possible" that the subject of Walker's desire for a management position was discussed on
this occasion since it had been discussed between them on several occasions. Barkow's
explanation of the manner in which the "union problem" came up is farfetched and
unconvincing ; It is neither plausible nor persuasive. Moreover, Barkow's mention of the
management position is a typical example of the carrot -and-stick approach Barkow's gen-
eral demeanor on the witness stand, characterized by an asserted lack of recollection,
evasion, or equivocation when he believed it suited his purpose, and outright denials of
statements attributed to him which were often innocuous , did not inspire credence. On
the other hand, Walker, who had only recently been reinstated to his former position,
displacing Wetherill , and admittedly aspired to a position in management , would scarcely
be likely to jeopardize his chances for advancement by testifying adversely to his em-
ployer if he were not telling the truth . I therefore credit Walker 's version of this
incident, and find that Barkow made the statements essentially as testified to by Walker.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge." When Clever returned, and reported that Wetherill had not arrived,
Brigham offered to make a phone call to find out whether Wetherill was coming, and
left the room. While Brigham was gone, Clever asked Rux if he knew why Wetherill
had obtained the job of union business agent. When Rux replied that he did not,
Clever continued, "So that he can create a permanent job for himself through the
union." Rux told him that he knew nothing about that.
Brigham returned to the conference room and, in the course of the conversation
which followed, told Rux that "the union was ... a father and son organization."
Expanding on the subject, Brigham added that a stagehand could not join the Union
unless his father was a member, and that applicants for membership would be required
to undergo extensive tests which the stage crew at the Club might not be able to
pass. Brigham quoted Wetherill as having said that the stage crew would not be able
to qualify as IATSE members or stagehands. Rux retorted that he did not know what
Wetherill had said, that Rux knew only that the matter had been submitted for "repre-
sentation." Brigham said that he understood that it required a 30-percent showing
in order to file a petition. Rux said that that was also his impression. According to
Rux, Brigham remarked that he did not know "who the men were [presumably refer-
ring to the union adherents] but he felt that Bob Wetherill and Herb Swartz were the
two likely men, that they were already union men." Rux testified that he told
Brigham and Clever that he had heard Swartz say that he, Swartz, was not "in favor
of unions."
During this episode, according to Rux, Brigham asked him to notify the crew,
or have Sy Lein do so, that Brigham would be in the coffeeshop between shows that
evening to talk to the crew and answer any questions they might have about union
activities. At this conference, Brigham also told Rux that it was his understanding
that under union regulations a member of one local, with more union seniority than
a member of a local with which the crew at the Club might be affiliated, could
"bump" the crewmember from his job at the Club. Brigham also remarked that he
considered that any crewmember who joined a union was either a "weakling and
afraid of his job [and] the possibility of being fired," or knew that he needed the
Union as "a crutch to lean on."
Brigham's version of his conversation with Rux did not differ materially from that
given by Rux. Except for that portion of Brigham's testimony which related to
Wetherill's discharge, which is treated later, the principal difference between the
versions is that in Brigham's version his remarks were made in response to questions
propounded by Rux.
Brigham testified that, in response to a query by Rux as to the nature of seniority
within the IATSE, he told Rux that under the union contract at Las Vegas which,
according to him, he had either made available or said he would make available,
seniority was governed by registration in the International, which the employer would
be bound to recognize in the event of a layoff or reduction in force.12
In this context, Brigham testified that he told Rux that in 1960, prior to Brigham's
employment with the Club, the Sacramento IATSE local, in an effort to obtain
recognition as bargaining representative of the stage technicians, had informed man-
agement that if it recognized that local, the Club would be permitted to operate with
a maximum crew of 8 instead of 12. According to Brigham, he probably also told
Rux that Supervisors Lein and Vogt, as well as Wetherill, had confirmed this to him
on other occasions.
21 Brigham gave no reason then or in his testimony for mentioning the subject of
Wetherill's arrest. Since it is not contended that that was a factor in the decision to
terminate him, this suggests that the purpose was to disparage the Union's principal
representative. On the other hand, it is at least conceivable that Brigham may have
raised the subject as evidence that Respondent had hired Wetherill in spite of his previous
arrest. No 'unfavorable inference is, therefore, drawn from this reference.
12 A copy of the union contract, designated "Working Agreement" between Local No. 720
and the Nevada Industrial Council, representing the Las Vegas resort hotels, received
in evidence, provides, in part, as follows:
Section XI. The employers agree to recognize the seniority of the persons supplied by
the Union as registered within the [I.A.T.S.E.]. Any dispute that may arise over
this clause shall be settled by an International Officer of the Union and the employer
involved . . . provided, however, that nothing contained in this section shall be
deemed to [affect] the provisions of [HIRING PROCEDURE].
HARRAH'S CLUB 1709
Brigham testified that Rux also questioned him about "the value of the [member-
ship] card," mentioning that Lein and Vogt held union cards. He told Rux that
there were "obvious advantages" in having a union card, and mentioned that Wetherill
had sought his advice at a time when the IATSE allegedly had threatened to with-
draw his card. Brigham told him that the membership card was "a very valuable
asset' in a closed union, such as the IATSE, and related an instance of a motion
picture theatre owner of his acquaintance who had unsuccessfully attempted to pro-
cure employment for his son as a movie projectionist because the theatre owner had
not himself been a projectionist. Commenting on this, Brigham remarked that it
was unfortunate that neither of them had a father who was a projectionist.
Brigham further acknowledged that he had discussed with Rux, again, in response
to Rux's question , the alleged union requirement of a qualifying examination as a
prerequisite to membership in the Union. Brigham also testified that he mentioned
to Rux that Wetherill had stated to him, upon notifying him of his appointment as
business agent, that none of the members of the stage crew was qualified for mem-
bership in the IATSE because, Wetherill told him, referring specifically to the pro-
duction of The Flower Drum Song, "We all saw that they couldn't cut the mustard."
Brigham denied making the remark to the effect that any member of the stage
crew who would join a union "was a weakling, afraid of his job and needed the
union as a crutch to lean on." He also denied that he asked Rux to notify the stage
crew, or to tell Lein to pass the word to the crew, that Brigham would be in the
coffeeshop between shows to answer any questions the crew might have regarding the
Union. Brigham testified that he did not actually appear at the coffeeshop at or
about that time for the purpose stated.
Upon the basis of Brigham's general attitude and demeanor on the witness stand,
discussed in more detail below, and his guarded admissions to many of the remarks
attributed to him, which he qualified primarily on the basis that they were made in
response to questioning by Rux, I am persuaded that Rux's version more nearly
reflects what occurred. I therefore find that Brigham made the statements substan-
tially as testified to by Rux. Whether, under all the circumstances , Brigham's state-
ments constituted no more than expressions of "views, argument, or opinion," will
be considered later.13
On the evening of October 15, the day after the Board-conducted election, Brigham
approached a group of the stage crew who were seated at a table in the employees'
cnfeteria.14 Pointing to the food and coffee on the table, Brigham remarked irritably,
"This is one of the things we will be bargaining for." Continuing, he said, "I have
just been made a fool of and I don't like it. I am here so you will know who I am
and I will know who you are." Asked by one of the group what he meant by his
remarks, Brigham continued, "It may take me six to eight months to get even, but I
will," pointing to each of the members of the group, and addressing them by name
(although addressing Walker mistakenly as Larry Helderbrand).
During this episode, Rux, Helderbrand, Richard C. Pouts, and Allen Cole, also
members of the stage crew, were seated at a nearby table. Although Ponts, the only
one of this group, other than Rux, to testify, did not actually overhear Brigham's
remarks, he testified that he observed Brigham, visibly disturbed, pointing at the
men at that table. Brigham returned to his table, where he remained briefly, then
started to leave. As he approached the exit, Brigham turned and, pointing to the
table at which Ponts and the others were seated, called out, "I will get them too,"
referring to the light crew.
Brigham admitted the encounter in the cafeteria substantially as described above.
He further admitted that he told the men that he was hurt because they had "made a
fool of him" and "bamboozled" him. He also volunteered that he told them,
' Since the complaint contains no allegation of acts of interference, restraint, or
coercion by Clever, I do not pass upon the effect of any statements attributed to him.
14 The group consisted of Walker, on whose testimony regarding this incident these
findings are based, Tony Himenez, whose testimony substantially corroborated Walker,
Fred Marsden, Monty Norman, and Paul Jordan. Marsden and Norman were not called
as witnesses ; Jordan, who testified as a witness on behalf of the General Counsel, was
not questioned about this incident Since, as will presently appear, Brigham's version
of this episode furnishes substantial corroboration for Walker's testimony, contrary to.
the contention of Respondent , I attach no significance to the fact that Marsden and Nor-
man were not called as witnesses, and that Jordan was not questioned by the General
Counsel regarding this incident.
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"You suckered me into answering questions which you planted not for information
but to see whether I would commit an unfair labor practice charge [sic]." 15 Brigham
testified that he explained that management had "tried to get the facts across so that
[the crew] could make a just decision, that the outcome was definitive and [that] now
in the next six months or nine months we would all be educated, we would all found
out what the facts were, especially that we had been trying to post and tell them
about." 16
Brigham further testified that he told the men that management had believed it
..had been furnishing them with impartial information regarding the IATSE and the
Company, but that the stage crew continued to believe "the threats, promises or false-
hoods that were fed them" rather than "the truth as it was posted."
Brigham denied that he had threatened to "get even" with, or "get" any of, the
stage crew, or that he had said that the crew would be reduced by 30 percent, or any
other percentage, within the next 6 to 8 months. He conceded, however, that he had
made a remark to the effect that under a union contract free coffee would be the
type of subject which would have to be negotiated.
Soon afterward, Vice President Andreotti notified Brigham that Murray, a member
of the crew, had complained that Brigham had "threatened" the men. The following
evening, October 16, Brigham encountered Ponts and McNerthney at the Club.
Brigham told them that there seemed to be some misunderstanding about the remarks
he had made in the cafeteria. According to Pouts, Brigham protested that the crew-
members had unjustly accused him of threatening them, and said that "if he [had
been] of a mind [to threaten the crew] he could have [done so]," adding that he did
ss Brigham testified that he was referring to a meeting with the stage crew on
October 8, a week earlier (before the election), immediately preceding a regular pro-
duction conference for the new show. According to Brigham, the entertainment depart-
ment supervisors had requested him to meet with the stage crew, who had asked for the
meeting, to answer questions about the Union. Attending this meeting-it does not
appear whether for this specific purpose or as part of the regular routine in regard to
production meetings-were Vice President Andreotti, Vincent, Barkow, Lein, and Vogt.
Brigham began by apologizing for not having attended a meeting in the coffee shop, but
said that, although he had heard that he had been expected, he had not been asked to
attend. Questions asked by some of the crew' dealt generally with whether the men
'could expect assistance in obtaining other employment at the Club ; whether the Union
required tests as a condition of membership ; and whether there would be- any reduc-
tion in the crew, all in the event the Union won the election. According to Brigham,
he or some of the other officials answered these questions, generally, by referring the
employees to the posted notice, explaining management's understanding of the operation
of the hiring hall, or by giving some noncommittal answer. Since it is not alleged or
contended that any statements made by Respondent's supervisors at this meeting con-
stituted an unfair labor practice, Brigham's indelicate, if not intemperate, remark that
the employees had, in effect, attempted to entrap him into committing an unfair labor
practice, is rather difficult to comprehend. It appears to be a case of Brigham's
"protesting too much." In any event, there is no justification for any inference of at-
tempted entrapment in connection with this incident.
16 Reference was presumably to the following bulletin , which Respondent had posted, on
or about the date it bears, at the entrance to the stage area:
MEMORANDUM October 4, 1963
TO: Stage Technicians and Sound Console Operator
P'R: Management Committee
RE: How Does the Union Hiring Hall Work?
In those areas where the IATSE has organized theatres, stagehands are,hired out of
the Union Hiring Hall.
A theatre-restaurant such as the South Shore Room has a minimum steady crew.
In 1961, Local 50, IATSE, recommended that Harrah's reduce the size of its perma-
nent crew. Had we followed the suggestion of Local 50, IATSE, our crew would have
been cut considerably.
As a matter of fact, under an IATSE contract, it would be possible to end up with a
basic crew of only three men.
Whenever any other help is needed, the IATSE contracts dictate that the employer
call the "Hall" and put in a requisition. What chance would most of you have of
being dispatched to a job by the Union?
Management Committee
Since the complaint does not allege the posting of the notice, nor its contents as violative
of Section 8(a) (1), it is unnecessary to pass on this issue.
HARRAH'S CLUB 1711
not say what he had actually felt or "could have said." When Ponts insisted that
Brigham had, in fact, threatened the crew, Brigham remarked, "What I said [which]
may have been construed as a threat was that the crew would be reduced in the next
couple of months and that the next eight to ten months would prove to be highly
educational." Ponts further quoted Brigham as saying that he was not in a position
to "get even with anybody except what would be proven that the crews would be
cut and that he knew about many of the piddling affidavits and the cards, and [that]
he really didn't know how he personally could get even with anybody, but the whole
thing would be proven out in the next months to follow, as` the crew was cut back
from 30 to 40 percent." I
Brigham acknowledged that he had told Ponts and McNerthney that there seemed
to be some misunderstanding about his remarks to the crew. He agreed that he had
denied threatening anyone, and testified that he had told the two men, "If I were
going to threaten it would be definite enough," adding "so they would know it and I
would know it." He denied, however, that Ponts had accused him of threatening
the crew, that he, Brigham, had said that he knew they had given affidavits and signed
cards, and that the crew would be reduced to 30 or 40 percent or any other per-
centage. According to Brigham, be told Ponts, "Well, I want to rectify it now," and
that he was on his way to do so. Despite his categorical denial that he had told the
crew in his remarks at the cafeteria that there would be a cutback, Brigham testified
that in his conversation with Ponts, "The mention was made, although I don't recol-
lect how, as to the crew being cut back because I do remember that Mr. Ponts said
that he didn't mind taking the risk that was involved in voting for the I.A.T.S.E.
because he was still young, and I said it didn't make any difference one way or the
other and I said, `I wish I was that young.' "
Next night, Brigham went to the cafeteria, where he found a group of the stage-
hands consisting of Ponts, Helderbrand, Rux, Jordan, and Lovelady. Brigham asked
whether any of them had been present the other evening. Receiving no specific
response, be continued, "I have been told I cursed you and threatened you. I have
a reputation for not cursing and I don't believe that I did. I have been in industrial
relations as an employee representative for 15 years and in the union before that and
I know better than to threaten.17 If I did either threaten or curse you in your mind,
I want to apologize because I don't believe it necessary to threaten and I wouldn't
want to curse, so if I did either I want to apologize." 18
According to Lovelady, Jordan interrupted Brigham, and said, "You didn't curse
us. You threatened us." To which Brigham rejoined, "If I did not then, I do it
[now]. I am a vindictive man, and, believe me, what I said still goes. Within six to
eight months this crew will be reduced 30 to 50 per cent."
About noon, October 16 or 17, Director of Entertainment Vincent phoned Love-
lady at his home and asked him to come to the Club so that he could discuss the
14 Brigham testified that he became director of industrial relations at the Club in
October 1962, after his initial employment on July 31, 1962, as employee relations coun-,
selor . From 1950 to 1962 he was employed by "a complex of companies" in various
capacities, which included handling industrial relations. Prior to 1950, he had been a
college professor and lay minister. He presently holds the following college degrees:
A.B., B.S., MA., M. Ed., and Ph. D. (in English). The reference to his union back-
ground is to a position as secretary of an AFL-CIO local, and State secretary of the
AFL-CIO, American Federation of Teachers, in 1949-50, in Wisconsin. This Impres-
sive background, however, was scarcely reflected in his attitude and demeanor on the
witness stand which, while presenting a stance of ingenuousness, was characterized by a
propensity to cavil, even with Respondent's own counsel, and to give self-serving, gra-
tuitous, and argumentative responses . While his occasional excursisons into semantics
may be understandable in light of his academic background, this does not explain the
other shortcomings in his testimony. Moreover, his choice of language toward the crew
(e g., "You suckered me into answering questions," etc.) was decidedly at variance with
his scholastic background, and could hardly be regarded as an attempt at camaraderie, or
as a necessary condescension toward the crew, which, as borne out by the testimony of
those of them who testified, was wholly unwarranted. Rather does this remark, and
other intemperate outbursts of a similar nature, indicate the measure of his resentment
at the successful organizational efforts of the employees. Nor, do I regard that Brigham's
former affiliation with the teachers' union militates against his having made the remarks
attributed to him. I am unable to give any credence to his denials, and find that he
made the statements attributed to him by the various members of the stage crew, sub-
stantially as related above.
>8 The effectiveness of this attempted repudiation will be considered below. - -
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board election with him, and ask him some questions , because he regarded him
"a good sounding board for the crew." Lovelady consented, and late that afternoon
the men met in Vincent 's office. After repeating the remarks he had made on the
phone, , Vincent asked Lovelady "where [management had] gone wrong" so as to
influence 11 men to vote unanimously for the Union . Although Lovelady said he
had been asked not to make any statements , he recounted a number of unredressed
informal grievances which had been the subject of discussions at production meetings.
Vincent acknowledged that he was aware of the problems, but told Lovelady that
he did not believe they were sufficiently important to cause 11 men to vote for the
Union . Vincent asked Lovelady whether the Union had made the men any promises.
Told that it had not , Vincent persisted , "Do you mean to say the Union promised
you absolutely nothing?" Lovelady replied that the men were intelligent enough to
know that neither the Union nor management could make "outright promises," and
understood that conditions would have to be negotiated . Vincent commented , "Well,
maybe they . . . just ... talk a better game than we do." Vincent then asked, "Are
you aware that we would have done anything to have stopped this Union thing?"
adding, that management would have discharged Barkow, Lein, or Vogt "like that,"
snapping his fingers , if necessary to combat the Union . "Why didn 't you come to us
before all of this took place?" Vincent demanded . Lovelady reminded him that the
men had voiced their complaints but had received no satisfaction.
During the discussion which , according to Lovelady , lasted at least an hour and a
half, Vincent declared that "Mr. Harrah was basically against all Unions, that he
didn 't want any part of this or any other union , that he had worked long and hard
for his business and had gotten it where it was today and he felt that he had the
right to run it and control it the way he wanted it without outside interference."
Vincent took this occasion to ask Lovelady whether he was aware that Wetherill
had come to the Club "begging us for a job ," and told Lovelady that they not only
gave him a job but also paid him while he was out ill, only to have Wetherill "[turn]
around and [do] this thing to us." Continuing , Vincent said , "It's the same thing
as if I had invited him into my house and he [seduced ] 19 my wife. It is something
I will never forget and forgive him for ." After a telephone interruption , the con-
versation continued in the same vein . Vincent asked Lovelady if Wetherill had
organized the crew. Lovelady replied that he could not recall . All he knew, he
told Vincent , was that "[I]t was something that evolved ," and that it would take too
long to go into details.
Vincent admitted in his testimony the circumstances of this interview , the discus-
sion of the stage crew's complaints, and his inquiry as to whether the Union had
made any promises to the employees . He denied , however, saying that the Union
had apparently been more persuasive than management , that management would
have taken any steps to combat the Union , including the discharge of supervisors, and
that Harrah was basically opposed to unions. Vincent did not deny his remarks
concerning Wetherill 's plea for a job, nor Vincent's expressed indignation at the
means Wetherill had used to show his appreciation , which Vincent had underscored
by the uncouth analogy involving his wife.
Apart from Lovelady's general credibility , it is altogether unreasonable to believe
that he would have concocted the obscene remark which he attributed to Vincent,
and thereby jeopardize his position at the Club. I credit Lovelady's version of the
incident , and find that it occurred , and that the statements attributed by him to Vincent
were made substantially in accordance with Lovelady's testimony.
Later that night , after the first show, Vincent sent for Walker and questioned him,
too, about where management had "gone wrong." Walker reminded Vincent that he
had been away with the Armed Forces and could not speak for the other men.
Vincent then told Walker that he could not believe Walker would have voted for the
Union , that in view of Walker's expressed desire for a job in management , he regarded
Walker's conduct in voting for the Union as "very foolish ," and his chances for a
position with management "washed up."
Vincent also told him that the stage crew had decided to "go union " quite a while
ago; that Wetherill "didn't have the guts to organize the men on his own , that the
men had asked him to organize them, and then after they had gotten into it some
of them would like to have backed out but did not want to let Mr. Wetherill down."
Vincent then said , "It is still not too late as negotiations will start in a few days,"
and recommended to Walker that the stagehands come to him "en masse," or desig-
nate a group , including men like Lovelady , to "iron out [their] differences with him."
In that way, Vincent continued, the men would be "forming [their] own union and
would not be obliged to "go through Mr. Wetherill ," or a business agent.
19 A euphemism for the actual expression.
HARRAH'S CLUB 1713
Vincent also repeated, in substance, what he had told Lovelady, that if necessary
something could be done about Barkow and Lein, observing that, although he had
believed that the two men would be able to work well together, he knew that "they
got at each other's throats." The discussion was interrupted by a telephone call and
Walker started to leave. Vincent repeated what he had said about the crew forming
its own group and coming to him to iron out their differences, and commented that
the I.A.T.S.E. "want Harrah's so bad they can taste it and Harrah's wants nothing
to do with the union."
Walker asked Vincent if it was not true that the steamfitters, plumbers, and carpen-
ters at the Club were union members. Vincent replied, not as far as he was aware,
adding that Harrah's "had no union ," volunteering that the culinary workers had
been represented by a union for a year, but had been "voted out," and that "Harrah's
prefers to bargain directly with the employees." Vincent asked Walker to notify the
other members of the crew to come in, and Walker agreed to do so, and left.
Vincent conceded that he summoned Walker to his office on the occasion in ques-
tion, and that he questioned him in an effort to ascertain how management had
"fail[ed] the crew." According to Vincent, when Walker asked him about his chances
for advancement to some other department, Vincent told him that Harrah's was
known for "making vice presidents out of bus boys." Vincent denied making any of
the other statements attributed to him by Walker, including the one to the effect that
the Union wanted to organize Harrah's so badly it could "taste it," and that Harrah's
was opposed to unions and preferred to bargain directly with its employees.
As had already been indicated, I was not favorably impressed with Vincent's testi-
mony. Moreover, the statements imputed to him by Walker closely paralleled those
which Lovelady testified Vincent had made to him. In view of what has been previ-
ously said about Walker's situation as the returning veteran who displaced Wetherill,
and his aspirations for advancement, which were not likely to have been enhanced
by any unfavorable testimony implicating his supervisor, I credit Walker's version of
this episode.
On or about October 20, some 6 days after the Board election, Lovelady asked
Lein about a rumor that stagehands would no longer be permitted to work in the
Entertainment Lounge. When Lein confirmed the rumor, Lovelady asked, "As of
when?" Lein replied, "As of the election." Asked the reason for the change, Lein
said, "Well, because Mr. Andreotti doesn't want the Lounge to come under the con-
tract." Lovelady expressed astonishment that "after three or four years of working
in the Lounge . . . it no longer belong[ed] to [them]." 20 Thereupon Lein replied,
"This is true, and many other things no longer belong to you," adding, "For instance
there is more than $200.00 paid in annual holidays in a year that you will no longer
get.... These type of privileges you won't get." Lovelady protested that those mat-
ters were "negotiable," and asked, "What do you know that I don't know?" Lein
replied, "Nothing. You are right. They are negotiable, however, these are Mr.
Harrah's benefits and if Mr. Harrah doesn't wish to give them to-you you won't get
them." When Lovelady repeated that the subject was negotiable, Lein remarked,
"That's true, but I will bet you you won't get them."
Lein admitted telling Lovelady that the stage crew would no longer be permitted
to work in the Lounge, but denied that he had in any way related this to the election,
or stated that Andreotti did not want the Lounge under a union contract. According
to Lein, he told Lovelady that since management had trained a member of the stage
crew, obviously referring to Jordan,21 to perform the duties in the Lounge, "rotation
of personnel" would no longer be necessary to carry out those duties. Regarding
the $200 in holiday pay, Lein testified he made the statement in reply to questioning
by Lovelady, explaining merely that the usual IATSE contract did not provide such
benefits. Lein admitted, however, telling Lovelady that, although paid holidays
might constitute a negotiable issue, the stagehands would not receive these benefits
unless Harrah's saw fit to grant them.
20 Respondent contends that, far from constituting discriminatory conduct, the change
in operation actually benefited the stage crew, since it reduced their work tasks without
affecting their earnings, and afforded them greater opportunity for rest. The stagehands,
however, appear to have regarded the Lounge as part of their special preserve, insofar
as their particular functions were concerned. Apart from what they apparently regarded
as a loss of prestige which the change entailed , the change in operation had the probable
consequence of removing the Lounge from the 'ambit of any subsequent bargaining
negotiations with the Union. Whether this conduct afforded a basis for a charge of
refusal to bargain, is not an issue tendered by the pleadings.
21 Who was officially assigned to the job of Entertainment Lounge supervisor on Octo-
ber 22, 1963, although he had been working in the Lounge prior to the Board election
on October 14.
775-692-65-vol. 150-110
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Late in October ,22 while driving Lovelady to a local restaurant , Lein remarked,
"I am really worried about you guys." Asked why, Lein replied, "Because , frankly,
I don 't think it's going to work." Pressed for a further explanation ,' Lein continued,
"I don 't think the men are going to be able to cut it. I don't think they will be able
to pass the test. I don 't think they will be able to get in the Union , and I think you
guys will end up hanging out on a limb." Responding to further questioning, Lein
told Lovelady that his basic objection was that he felt that was the wrong time for
the stagehands to organize . Lein added , "If we have a show that only needs two
or ... three men , it won't be like in the past where you all stayed on working.
That is all we will use and the rest of you will be out of work ." Continuing, Lein
asked, "Since there are no other union establishments around , where are you going
to work?"
Lein admitted , in effect, that he made the remarks which Lovelady attributed to
him on this occasion , testifying that his remarks were based on a conversation he had
had with an International representative in San Francisco in December 1962, but
denying that he had said that the men would not be able to qualify for membership
in the Union.
For reasons previously indicated concerning Lovelady's credibility , upon the basis
of Lein's admissions , and the substantial similarity of Lein 's remarks to those of
other supervisors , discussed elsewhere , I credit Lovelady's version of this conversation.
C. Sheeketski 's interrogation of Karla Murray
Karla M. Murray, wife of William F . Murray, the stagehand , was employed at the
Club as a 21 dealer on the swing shift. On October 17, Joseph L. Sheeketski, her
shift manager , sent for her . She was relieved at her card table, and , about 7 : 30 p.m.,
met Sheeketski at the premium booth at the rear of the building , as instructed. He
asked whether she would mind having a "chat " with him. She consented, and he
ushered her to the office of Assistant Club Manager Clever on the second floor of the
Club. On the way to the office, she asked him whether it was about her work that
he wanted to talk to her . He replied that it was not.
Arriving at Clever's office, Sheeketski asked her whether she knew that 12 men
had voted for the Union in the election . Murray corrected him, saying she under-
stood the number was only 11. Sheeketski accepted the correction , and went on,
"You know the Union made promises that in case the men didn 't have work there
would be work in Las Vegas for them. You know there is a possibility of cutting
down on the men back stage . You know how hard it is to move a family." Sheeketski
then asked her if she liked working at the Club . She said that she did . Sheeketski
continued , "You know about the promises made and you also know that your hus-
band could possibly be one of the men to go since he is lower in seniority." Murray
protested , "Joe, I consider that a threat." Sheeketski denied that the remark was
meant as a threat . Several times he asked her where the men held their meetings.
Murray ventured , "You have 11 men back stage. Why don't you ask them ." Sheeket-
ski observed , "This conversation isn't getting anywhere , is it?" Murray agreed,
repeating her suggestion that Sheeketski question the men , then excused herself and
left.
Sheeketski , whose previous employment included that of director of athletics and
football coach at various universities and 5 years as special agent with the FBI,23
gave the following explanation for his interview with Murray . He had learned by
overhearing "casual conversations" among employees at the Casino-which included
discussions about the Union and the election-that meetings had been held in
Wetherill 's trailer, at which Wetherill had purportedly promised the stagehands that,
if "something happened to their particular job at Harrah 's," the Union would -provide
22 Lovelady fixed the time as some 3 weeks before the Harry Belafonte show opened
at the Club. Stage Manager Lein ' s employment was terminated 4 days after the open-
ing of that show under circumstances not disclosed by the record
23 Although there is no , direct evidence that Karla Murray was aware of this back-
ground, Sheeketski had been employed at the Club since 1952, and as shift manager
for the past 3 years. It is a reasonable assumption that the employees on the swing
shift knew of his previous experience as an F.B I. agent prior to the interview, and
that it was for this reason that Sheeketski mentioned to Brigham the possibility that she
might accuse him of "threatening " or "imposing on her." As it turned out, this was
precisely what happened.
HARR.AH'S CLUB 1715•
the men with employment elsewhere 24 Sheeketski felt that by talking to Murray he
might obtain "some truthful information" from her concerning these matters. Asked
by Respondent's counsel the reason he wanted this information, Sheeketski testified,
"I felt it was necessary in my capacity to inform Carla [sic] about certain matters
concerning her husband's future employment, so I thought I would ask her to meet
with me at a prescribed location." Responding to a leading question by the same
counsel, Sheeketski testified that he sought the information in connection with the
filing of Respondent's objections to the election, adding that "in view of the promises
that were purported to have been made by Mr. Wetherill I felt it was my duty to
investigate the matter and to obtain, if possible, some information concerning this
in order that we may have some ground on which to make these objections."
Sheeketski testified that when they reached the office, he noticed that Murray was
"breathing rather heavily, so we both sat there for a minute or so trying to regain
our breath, and the first remark that I made to Carla was this.25 I asked her if she
knew whether or not I had always been fair or unfair with the employees at Hariah's."
After hesitating momentarily, she said that as far as she knew he had always been
fair in his relations with the employees. He then advised her that "she wasn't required
to answer any questions that I might ask her, make any comments to any remarks
that I might put to her," and waited for a reply. When she made none, he told her
that she could feel free to leave. Murray agreed to stay. Then, according to
Sheeketski, he asked her if she was familiar with working conditions for women in
Las Vegas, prefacing his remarks with the statement that what he had to say was
for her own welfare and "only for informational purposes." He told her that, accord-
ing to his information, casinos at Las Vegas did not employ lady dealers, that-in
view of his information about the promises Wetherill had made to the stagehands-
if her husband were transferred to Las Vegas, it was very doubtful that she could
obtain employment there as a dealer.
Expanding on the subject, Sheeketski told her that in negotiating a union contract,
it was probable that only a basic crew would be retained at the Club, and that it was
"quite possible" that her husband might be without a job. According to Sheeketski,
Murray asked him whether she would have to quit her job in the event her husband
went to Las Vegas. Before he could reply, Sheeketski testified, Murray accused him
of having threatened her. He assured her that his remarks had not been intended as
a threat of any kind, and told her that since she felt that way they should terminate
their discussion.
Sheeketski testified that the decision to interview Murray had been reached several
days earlier in a discussion with Director of Industrial Relations Brigham, although
Sheeketski maintained that the decision was his own. According to him, the purpose.
of the interview was to question Murray concerning the "clandestine " meetings in
Wetherill's trailer, and the promises which had allegedly been made by Wetherill to
the stagehands. Brigham testified that a few days after the election, in a conversa-
tion with Sheeketski in the "pit" at the Casino, he told Sheeketski that all 12 mem-
bers of the crew had voted for the Union; that he was "alarmed" because he had
learned from "a couple of people" that threats and promises had been made to induce
the crew to vote for the Union; that he was "very apprehensive about this, that [he]
wanted to see to it that the rights of the people to make a decision had been protected,
and [that he] asked [Sheeketski] whether he could find out from one of his employees
whether any such threats had been made to her husband." According to Brigham,
he told Sheeketski that if this proved to be true, he would include these facts with
evidence which had already been accumulated, as grounds for objections to the
election which management intended to file. Sheeketski testified that Brigham asked
him if Karla. Murray worked on his shift. He told Brigham that she did. Brigham
asked him if he thought she could "truthfully" supply information concerning the
meetings in Wetherill's trailer, and the rumors regarding Wetherill's promises to
the stagehands. Brigham also asked him if Karla Murray was aware of the employ-
2A Since there is no allegation that Respondent engaged in surveillance, or attempted
to create an impression that it had done so, it is unnecessary to consider this issue.
The circumstances are related merely as background for this incident.
'B Murray made no mention of this in her testimony . She appeared to be a com-
paratively young, healthy person. Although Sheeketski (presumably a former athlete)
testified that he, himself, had also been breathing heavily, it seems surprising that the
walk to the office on the second floor could have accounted for Murray 's heavy breathing.
If it actually happened , it seems more probable that it was due, as Sheeketski had
implied earlier to Brigham, to her apprehension at the approaching interview.
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment situation for women in Las Vegas, observing that in the event her husband
were transferred to Las Vegas this information would be helpful to her. In this con-
text, according to Sheeketski, Brigham mentioned that her husband ranked about
"5th, 6th, or 7th" in seniority among the crew, and that if the Club were obliged to
comply with I.A.T.S.E. requirements, there was "a very strong possibility" that he
might be terminated. Sheeketski further testified that Brigham "emphasized" that
this was information which he felt Karla Murray should have.
Sheeketski testified that he agreed to talk to Karla Murray, and after Brigham
left, he made notes to remind him of the matters which he was to discuss with her.
Signficantly, Sheeketski also testified that before he and Brigham separated, Sheeketski
told him, "Now, Mr. Brigham, you know that if I talk to Carla [sic] that sometime
during my conversation she is going to accuse me of threatening her or imposing on
her," adding, that he had "kind of anticipated this."
Brigham's version of the reason for selecting Karla Murray as the subject for the
interview cast the matter in a somewhat different perspective. According to Brigham,
he believed that Murray was "greatly intimidated" by his fellow crewmembers. Brig-
ham regarded Murray as "a highly educated man," a comparative "loner," not very
popular with the other members of the crew because he was inclined to "upstage"
them. He also testified that he regarded Murray "a weak link" in the union orga-
nizational activities . Brigham testified , he suggested that Sheeketski interview Karla
Murray rather than her husband because he was "greatly afraid that [Murray] had
been seriously intimidated and that no good would come to him if it were learned
by the rest of the crew that [Brigham] had talked to him." Referring to the meeting
which preceded the production meeting on October 8, Brigham testified, Murray was
one of the men who had raised the question of what help they could expect from
management in obtaining a job elsewhere in the Club if the Union were successful
in the election. Finally, Brigham testified, he preferred not to approach Murray
directly because other employees who had approached Brigham with "validated state-
ments" concerning threats or promises made to other members of the stage crew,
later refused to substantiate what they had previously reported to him.
As for interviewing Karla Murray in Clever's office, Sheeketski testified that since
he had no regular office of his own, and the first-aid and security office on the first
floor, which would normally have been used for the interview, was occuplied by a
heart patient, he decided to use Clever's office. Assuming this to be the real reason,
Sheeketski's failure to explain this to Murray was scarcely conducive to allaying
Murray's apprehensions.
The explanation offered by Respondent for questioning Karla Murray is not very
convincing. The record suggests that Brigham had concluded that Stagehand Murray
was one of the least enthusiastic union adherents, and thus more susceptible to per-
suasion by his employer. The coincidence that his wife also worked at the Club
afforded Respondent's officials the means of conveying its message to Murray with-
out approaching him directly. It will also be recalled that it was Murray who had
asked Brigham at the October 8 meeting if the stagehands could expect his help in
obtaining other employment at the Club if the Union won the election.
Respondent manifestly contends that Sheeketski's interrogation of Murray was
protected because its primary purpose was to gather evidence to support Respondent's
objection's to the election, and, incidentally to furnish Murray with information
regarding the probable lack of employment opportunity for lady dealers in Las Vegas.
Signficantly, however, the thrust of Sheeketski's interrogation was directed at impress-
ing upon Karla Murray the jeopardy to her husband's job, and consequently, to her
own, if Respondent were obliged to enter into a contract with the Union. Thus,
Sheeketski's interrogation and remarks were reasonably calculated to persuade Mur-
ray, by playing on his wife's concern about her own job, as well as her husband's,
to renounce the Union.
An employer may, under certain circumstances, have a legitimate interest in inter-
rogating his employees, as for example, where he does so for the purpose of resolving
a good-faith doubt of the union's majority status (certainly not present here, in view
of the results of the election), or for the purpose of preparing his defense to charges
of unfair labor practices, or, as contended here, to enable him to prepare objections
to an election. The "area of permissible inquiry" is, however, "designed to minimize
the coercive impact of such employer interrogation." 26
"Johnnie's Poultry Co., 146 NLRB 770, where the Board held that in order to be
entitled to "the privilege of ascertaining the necessary facts from employees" in the two
types of situations in which "an employer has a legitimate cause to inquire . . . the
employer must communicate to the employee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his participation on a voluntary basis ; the
HARRAH'S CLUB 1717
It must be clear from all that has been stated, that Respondent, far from observing
"the boundaries of [the] safeguards" erected by the Board and the courts, actually
"transgressed" those boundaries,27 thereby forfeiting the benefit of such protection.
I have considered the evidence regarding Brigham's purported repudiation of the
statements to the stagehands in the cafeteria. Although Brigham testified that he
made these statements at the instance of Vice President Andreotti, he did not tell
the stagehands that he had been directed by Andreotti to renounce his former state-
ments. Moreover, Brigham's remarks were couched in terms of a personal apology
for his outbursts and alleged "cursing," rather than in terms of repudiation of his
earlier statements. More significantly, he gave the stagehands no assurances that
they were free to engage in their organizational activities without fear of reprisal.28
Moreover, far from having repudiated his previous remarks, according to the credited
testimony of at least one witness , Brigham, in effect reiterated his earlier threats
and underscored them.
Nor, was the effect of Brigham's remarks neutralized by the fact that Respondent
had issued instructions, both oral and written, initially in the early part of 1963, and
subsequently, soon after the posting of the election notice at the Club, as well as in a
meeting with Respondent's counsel, instructing supervisors regarding the scope of
their privileges and responsibilities under the Act in connection with the forthcoming
election.29 Even if this conduct on the part of responsible supervisors was contrary
to Respondent's written instructions, there is no evidence that this fact was ever
communicated directly to the employees. In these circumstances, Brigham's attempted
disavowal can scarcely be regarded as the type of repudiation which has been held
effectual.
2. Respondent 's contentions regarding interrogation and statements by supervisor
Respondent's contentions regarding the conduct which has been described may
be broadly stated as follows. First, that the statements and interrogation are pro-
tected, either as free speech or predictions of the economic consequences of union
organization, without threat of reprisal; second, that the interrogation following the
election was essential to the preparation of its objections to the conduct of the
election.
As to the first of these contentions, Respondent maintains that the statements relat-
ing to the Union's requirements for membership, including the passing of qualifying
tests, the operation of the hiring hall, and reduction in the size of the stage crew,
were made in response to inquiries by the employees. This information, according
to Respondent, was derived from discussions several years earlier with union repre-
sentatives of another local affiliated with the same International, as well as from the
provisions of the union contract between another IATSE local and Las Vegas Resort
Hotels, previously mentioned. The record does not support Respondent's contention
that it furnished this information to the members of the stage crew in response to
their inquiries, but rather, that the information was volunteered by various supervisors
and announced in bulletins posted at the Club before the election. Be that as it may,
Respondent argues, in effect, that its dissemination of this information was pro-
tected as the expression of "views, argument, or opinion" or a prediction of the
economic consequences of contractual relations with the Union. It is patent, of
questioning must occur in a context free from employer hostility to union organization
and must not be itself coercive in nature ; and the questions must not exceed the neces-
sities of the legitimate purpose by prying into other union matters, eliciting informa-
tion concerning an employee's subjective state of mind, or otherwise interfering with
the statutory rights of employees [cases cited]."
2'' See Johnnie's Poultry Co ., supra. See also footnote 26.
28 See Nopco Chemical Company, 138 NLRB 1275, 1280, and cases cited ; N.L R.B v.
Solo Cup Company, 237 F. 2d 521 (C.A 8) , A. P. Green Fire Brick Co, 140 NLRB
1067, 1071-1072. See also Feribo Turkeys, Inc, 140 NLRB 1397, 1399-1400; Austin
Powder Company, 141 NLRB 183, 191-192, and cases cited, Drennon Food Products
Co , 122 NLRB 1353; Neco Electrical Products Corporation, 124 NLRB 481; H. L.
Green Company, Incorporated (Store #15), 1118 NLRB 1459; G & S Manufacturing, Inc.,
123 NLRB 1602; California Textile Mills, 120 NLRB 1245; Nibco, Inc, 119 NLRB 277,
Mrs. Dora S. Lanthier, et al., doing business as Lanthier Machine Works, 116 NLRB 1029.
29 The typewritten statement, copy of which was received in evidence, bears a striking
similarity to the one described in Nopco Chemical Company, 138 NLRB 1275, 1277, in
which the quoted excerpts from the written instructions were almost identical with those
supplied to supervisors in the instant case.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course, that in order to be entitled to the protection of Section 8(c) of the Act, the
expression must be free from the taint of "threat of reprisal or force or promise of
benefit."
With regard to interrogation by supervisors, it has been said that "... interrogation
as to union sympathy and affiliation has been held to violate the Act because of its
natural tendency to instill in the minds of employees fear of discrimination on the
basis of the information the employer has obtained [citation omitted] 30 As to predic-
tions of economic consequences, it has been held that, "An employer may predict
unfavorable consequences of unionization without committing an unfair, labor prac-
tice if he can do so in a manner which contains no threat," the court noting, however,
that "it is often difficult to distinguish a threat from a prediction." 31 It has been
said that "a prediction not coupled with a threat to use the employer's economic power
to make the prediction a reality" is permissible.32 It has been held, however, that
the threat need not be contained in the very utterance or expression in which the
prediction is made, if it "form[s] a part of a general pattern or course of conduct
which constitutes coercion and deprives the employees of their free choice guaranteed
by section 7...." 33
Since Respondent relies to a large extent in justification of its predictions as to
the economic consequences of union recognition, it is appropriate to examine the
pertinent provisions of the specimen contract upon which Respondent relies. In
substance, it provides that the Union will maintain nondiscriminatory referral lists for
persons desiring employment on jobs covered by the agreement, without charge to
applicants for registration and referral. The Union agrees to furnish the Employer,
upon request, with qualified persons from the referral lists according to their "stand-
ing" on these lists, the employer being permitted to specify particular requirements.
Referrals are to be on a "nondiscriminatory basis, and shall not be in any way
affected by Union membership, by-laws, rules, regulations, constitutional provisions,
or any other aspect or obligation of Union membership, policies, or requirements."
The employer retains the right to reject any job applicant referred by the Union,
provided the rejection is not based on discrimination for union activities.
With regard to seniority, the employer agrees to recognize seniority as registered
with the International, any dispute to be settled by an International officer and the
employer, "provided, however, that nothing contained in this section shall be deemed
to rescind, supersede, or modify" the hiring provisions, previously described.
Nothing in the contract requires applicants to take an examination as a prerequisite
to registration and referral. Nor, does the contract contain any provision requiring,
or permitting, the employer to hire a specified number of technicians. Even if it be
assumed that the union constitution (which was not offered in evidence) provides
that applicants for membership must pass an examination as a prerequisite to mem-
bership, the contract by its terms provides that referrals shall not be affected by union
membership, bylaws, rules, regulations, or constitutional provisions. Moreover, the
discharge of an employee under a union-security provision for failure to pass a
qualifying test for membership in the contracting union would constitute a violation
of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act.34 It fol-
lows, therefore, that it would be equally unlawful to condition the hiring of an
employee under a union-security contract, or the referral of an applicant from a
union hiring hall, upon his ability to pass a qualifying test for membership in the
union.
Nor is Respondent aided by the fact that in furnishing employees with information
on purported union requirements and practices Respondent claimed to be relying on
statements made by union representatives of another local. Furthermore, the circum-
stances that Respondent may have honestly, but mistakenly, believed that the state-
ments to its employees correctly expressed the prevailing union policies and practices,
does not excuse Respondent from the consequences of its dissemination of misleading
information. The traditional maxims, that ignorance of the law does not excuse, and
that a person may reasonably be presumed to intend the natural and necessary conse-
quences of his act, apply here. Moreover, if Brigham were in any doubt about the
10 N.L.R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902, 904 (C.A. 9).
si N.L.R.B. v. J. E. McCatron, et al., d/b/a Price Valley Lumber Co., et al., 216 F. 2d
212, 216 (C.A. 9), cert. denied 348 U.S. 943.
19 N.L.R.B. v. Rockwell Manufacturing Company (DuBois Division), 271 F. 26 109,
118 (C.A. 3) ; see also Philip Carey Manufacturing Company, Miami Cabinet Division
v. N.L.R.B., 331 F. 2d 720 (C.A. 6).
33 N.L.R.B. v. Kropp Forge Co., 178 F. 2d 822, 828-829 (C.A. 7), cert. denied 340
U.S. 810.
as A. Nabakowaki Co., 148 NLRB 876.
HARRAH'S CLUB 1719
accuracy of the information which he was disseminating, or the legality of 'the
Union's purported position, he could have verified the information before undertaking
to impart it to the employees. Respondent was, at least, since before the election,
represented by able and experienced counsel,' who had instructed its supervisors
regarding their rights and responsibilities under the Act, and prepared written instruc-
tions and bulletins for their guidance, as well as for the edification of the employees.
This is not to suggest that the right of free speech is necessarily dependent upon
the truth or accuracy of the statements made. However, in evaluating Respondent's
conduct, and in determining whether the statements of its supervisors, in fact, con-
stituted mere expressions of opinion, or predictions of unfavorable consequences,
rather than implicit threats of reprisal, it is relevant to consider whether the statements
were substantially true and correct, not reasonably calculated to coerce the employees
in the exercise of their rights to self-organization.
With respect to Respondent's contention that the interrogation by Respondent's
supervisors after the election was protected as a necessary means of preparing its
objections to the election, the law is clear that,
... "an employer is privileged to interview employees for the purpose of dis-
covering facts within the limits of the issues raised by a complaint, [and, pre-
sumably, as here, for the purpose of preparing objections to an election] where
the employer, or its counsel, does so for the purpose of preparing its case for
trial and does not go beyond the necessities of such preparation to pry into
matters of union membership, to discuss the nature or extent of union activity,
to dissuade employees from joining or remaining members of the union, or
otherwise to interfere with the statutory right to self-organization." May
Department Stores Company, 70 NLRB 94, 95. See also N. & W. Overall Com-
pany, Incorporated, 51 NLRB 1016; Richard F. Kline, 39 NLRB 1047; Joy Silk
Mills, supra, 85 NLRB 1263, enforced 87 U.S. App. D.C. 360, 185 F. 2d 732.35
[Emphasis supplied]
3. Concluding findings regarding interrogation
and statements by supervisors
The record establishes that commencing with the filing of the petition for election,
Respondent embarked upon a course of conduct calculated to interfere with the
employees' free choice of bargaining agent. Thus its various supervisors engaged
in interrogating the employees regarding their union membership, activities, and sym-
pathies. Director of Industrial Relations Brigham threatened "to get even" with the
stage crew; warned that Respondent would withdraw- benefits from the employees;
and would reduce the size of the crew if it were obliged to sign a contract with the
Union. Entertainment Director Vincent stated to Lovelady and Walker that President
Harrah was opposed to unions and would refuse to deal with them; reproached Love-
lady for failing to consult with management before proceeding with the organizational
activities; denounced Wetherill to Lovelady for what Vincent regarded Wetherill's
ingratitude in organizing the crew after the favors which Respondent had shown him;
questioned employees after the election about where management had gone wrong,
and said that it would have gone to any lengths, even to the extent of discharging
Barkow, Lein, or Vogt, to dissuade the crew from organizing; told Walker, after the
election, that it was still not too late to bypass the Union and to form a committee to
deal directly with management; and told Walker that he had ruined his chances for
a position with management by voting for the Union. Producer Barkow made state-
ments to Rux before the election regarding the reduction of the crew and other unfav-
orable consequences; told the men they could still vote against the Union, and that
it would be to their advantage to do so; interrogated Walker regarding his attitude
toward the Union; mentioned the requirement of qualifying tests for union member-
ship, which could be devised to cause applicants to fail, echoing similar remarks he
had made to Lovelady during the conference in the Regional Office regarding the
inability of the crew to qualify. Stage Manager Lein and Chief Lighting Technician
Vogt also protested to Wetherill and Lovelady their failure to notify them in advance
of the contemplated filing of the petition for election, and remarked that it would
never be possible to keep 14 men working if the Union came in. Lein also told
Lovelady that if Respondent signed a union contract, it would be obliged to employ
stagehands through the hiring hall, and that Respondent could resort to various
strategems to reject persons so dispatched; stated to Lovelady, after the election, that
the stagehands would no longer be permitted to work in the Lounge because Vice
sc N.L.R.B. v. Katz Drug Co., 207 F. 2d 168, 171 (C.A. 8). See also Johnnie's Poultry
Co., 146 NLRB 770; Texas Industries, Ino., et al. v. N.L.R.B., 336 F. 2d 128 (C.A. 5).
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Andreotti did not want the Lounge to come under a union contract; that
the stagehands would no longer receive paid holidays, which had amounted to over
$200 a year; and later, that he doubted that the men could qualify for membership
in the Union; that the men would be "out on a limb"; that they had chosen the wrong
time to organize; that under a union contract the Club would retain a crew of no
more than two or three men, depending on the nature of the production; and that
the remainder of the crew would be out of work since there was no place else in the
area for them to work. Not to be overlooked is the incident of Shift Manager
Sheeketski's interrogation of Karla Murray, and his tacit threat of loss of employment
to her husband, and, consequently, herself, because the employees had designated the
Union as their representative.
It is, therefore, clear from the totality of Respondent's conduct, that the interroga-
tion and statements by Respondent's supervisors were not "casual, perfunctory, non-
hostile interrogation by minor supervisory employees"; 36 mere expression of views,
argument, or opinion; predictions of economic consequences of unionization, unac-
companied by threat of reprisal; or, with respect to the interrogation after the election,
essential to the preparation of Respondent's objections to the election, but "part of a
[deliberate] plan" 37 to interfere with, restrain, and coerce its employees in the exer-
cise of the rights guaranteed by the Act.
Upon the basis of the foregoing, and upon the entire record, I conclude and find
that Respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7, thereby violating Section 8(a)(1) of
the Act.
B. Discrimination in regard to hire and tenure
of employment of Robert H. Wetherill
Robert H. Wetherill was employed by Respondent on August 30, 1962. Hired as
sound console operator, by Herbert Swartz, sound technician in charge of the sound
equipment at the Club, Wetherill continued in that job at the South Shore Room until
early in May 1963, when he left due to illness. On his return, about May 30, he was
transferred at his request to the job of stagehand. His wages as sound console
operator had been $25 a day, in contrast to $24 a day for stagehands. When he
brought this to Brigham's attention shortly afterward, his pay was adjusted to $25.
For the first week of his employment as a stagehand he worked on the a.c. lighting
board under the supervision of Lighting Director Vogt. A week or 10 days later,
at Wetherill's request, Vogt relieved him of that assignment, and Wetherill was then
assigned to the "deck" or stage.
Early in June 1963, Wetherill became unsalaried business agent for the local.
About a week later, he notified Director of Industrial Relations Brigham of his posi-
tion with the Union. Vincent, Barkow, Lein, and Vogt learned of this soon after-
ward. When asked by Vogt about his future plans, Wetherill told him that he had
none as yet.
Wetherill began to organize the stagehands and by August 9 had recruited a
majority of those employees. On that date, he sent Brigham the telegram requesting
recognition. On August 14, Wetherill filed the representation petition. The events
which followed have already been discribed.
On August 30, Entertainment Director Vincent instructed Barkow to have Wetherill
notified that he was to be terminated September 1. In the absence of Stage Manager
Lein, Barkow told Lovelady (who, as has already been mentioned, occasionally sub-
stituted for Lein) that Wetherill was to be terminated during the second show the
following night. Barkow told Lovelady to have Wetherill report to Barkow at that
time and asked Lovelady to keep the matter confidential. Lovelady asked Barkow
the reason for the termination, and Barkow said that it was to make room for a
returning veteran.
When Wetherbill reported to Barkow as directed, Barkow began by saying that he
was at a loss to understand what Wetherill had against him, unless it was the tem-
porary reduction in his daily rate following his transfer from the job of console
operator to that of stagehand.38 Barkow then told Wetherill that he was being
terminated as of the end of the show that night. Wetherill asked whether he was
being selected as "the first to go" because he was "the youngest man," and inquired,
"What about Paul Jordan?" Barkow replied, according to Wetherill, "Oh, he is just
ss N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596-600 (C.A. 2).
37 See infra.
ae This remark, volunteered by Barkow in his testimony, was not explained further.
It suggests that Barkow was referring to Wetherill's activities in organizing the crew,
which Barkow apparently regarded as a personal reflection on himself.
HARRAH'S CLUB 1721
an apprentice." Wetherill asked whether he was being terminated because of the
Union. Barkow said that he was not, and showed Wetherill his termination slip,
which gave as the reason for termination the return of an employee from the Armed
Forces. Wetherill was thereupon terminated, effective September 1, and, after a
delay of several days, received his final paycheck.39
A meeting of the board of review was originally scheduled for September 13, 1963,
to consider Wetherill's protest against his discharge40 Due to an apparent lack of
communication between the parties, Wetherill, who was attending a representative
election at another gambling casino in the outlying area, did not appear. Some of
the discussion at this abortive meeting of the board of review has been previously
detailed.
During this episode, Brigham, after examining Wetherill 's personnel jacket, inquired
whether the other members of the board were aware that Wetherill had been con-
victed of a crime 41 Clever said that he was not, and wondered aloud how Wetherill
came to be hired under those unusual circumstances. Further examination of
Wetherill's file revealed that Wetherill had been recommended by Herbert Swartz, the
sound engineer who claimed to have known Wetherill for 20 years. Brigham further
observed that Wetherill's previous employment had consisted of work as an "odd job
man" in a hospital, and, previous to that, as a liquor store manager, earning half as
much as stagehands at the Club. When Clever expressed surprise that Wetherill had
been employed as a sound man, in view of his background, Brigham remarked that
it had undoubtedly been due to Swartz' intervention. Rux, however, told them that
he believed that Wetherill, as an IATSE member, has worked as a stagehand prior
to his employment at the Club.
Two days later, on September 15, the board of review again convened 4`' The
same management representatives were present; Lovelady attended as employee
representative.
The board was in session for about 30 minutes before Wetherill was admitted.
Clever read Wetherill's request for a hearing which stated the grounds for his griev-
ance. Brigham then produced the personnel records of the stage crews, and, selecting
Wetherill's jacket, examined his employment records. Brigham again called atten-
tion to Wetherill's record and the fact that he had been hired by Swartz.
39 There is no substantial basis for finding , as Wetherill appeared to intimate , that the
delay in issuing his paycheck was deliberate. Such delay as may have occurred was
apparently due to routine administrative procedures and the temporary absence of
Barkow and Vincent. Nor , is there any substantial evidence to support a finding, as
Wetherill maintained , that there was an express or implied agreement that he would
receive 2 weeks ' notice in case of termination . Apart from Respondent 's denial of
such an arrangement, Brigham testified that it was contrary to established company
policy because of the risk of "swinging" in the gambling industry, a practice which made
it possible for employees slated for termination to win substantial sums of money at the
gaming devices by connivance with other employees
"The board of review, as described in the employees' handbook and the testimony of
Respondent 's witnesses , consists of three voting members ; namely , the club manager, the
director of industrial relations , or their representatives , and an employee representative
elected by the fellow employees in his department . Although , according to the hand-
book, . the board is empowered to deal with "all types of problems," its primary function
is to handle grievances not satisfactorily resolved by the supervisor , or by resort to
the "gripe" box . Under the applicable section, the decision of the board of review
is final.
41 Wetherill had been convicted after a plea of guilty , of violation of Federal statutes
prohibiting the sending of obscene material through the mail. This evidence was adduced
on Wetherill 's direct testimony , Wetherill admitting that he had received a suspended
sentence of 1 year, on each of two counts, and been placed on probation . No record
of conviction was offered by Respondent , presumably because of his admission . In view
of the circumstances under which the evidence was introduced , it is not altogether clear
whether Respondent was relying on this conviction as ground for impeachment. On the
assumption that Respondent so intended , I have carefully considered the evidence of this
conviction in passing upon Wetherill 's credibility . However, in view of the substantial
corroboration by other witnesses , whose testimony has been credited , of Wetherill ' s testi-
mony on many of the salient facts , I find that his credibility has not been adversely
affected by the evidence of his conviction.
4a The findings as to what occurred at this meeting are based on a composite of the
testimony of all the participants
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clever asked Lovelady which members of the crew he considered had less seniority
than Wetherill. Lovelady mentioned Paul Jordan and Ray McNerthney. Turning
to their personnel records, Clever maintained that Jordan had become a member of
the stage crew in November 1962, while Wetherill had not joined the crew until
May 1963, and was, therefore, junior to Jordan. As to McNerthney, Clever con-
tended that he had never been employed in the entertainment department , but had
been , and still was, in the sound department . Lovelady said that , as far as he was
aware , there had been no sound department at the Club for months . Clever insisted
that the sound department had never been abolished, even though the position of
head sound engineer had been eliminated . Lovelady argued that since July 1963,
on instructions from Stage Manager Lein , McNerthney had been making out his
time slips showing him in the entertainment rather than the sound department.
Clever left the room to verify this and, upon returning , announced that as far as
their records were concerned McNerthney was still in the sound department, cur-
rently assigned to maintenance.
With respect to Jordan , after referring to his personnel records, Brigham stated
that Jordan was still assigned to the food stores department, and was only on loan
to the stage or entertainment department for the 10 months he had been working
on the stage crew . Lovelady, therefore , maintained that Jordan was only a tem-
porary employee , not permanently assigned to the stage , and that even if the date of
his temporary assignment to the stage was earlier than Wetherill 's, Jordan rather than
Wetherill should have been terminated . At this juncture Wetherill was admitted to
the meeting 43
According to Wetherill , Brigham asked him why he had requested the meeting.
He replied that he thought his termination was "unfair " because there were others on
the stage crew who had less seniority than he. Brigham countered by asking him
whether he thought they had been "unfair" when they hire him in spite of his crim-
inal record and paid him during his illness.
Clever asked Wetherill to state the basis for his grievance. Wetherell stated his
position, substantially as Lovelady had outlined it to the board members. Clever
countered with the same replies he had made to Lovelady , concluding with the state-
ment that Wetherill had less seniority than any other member of the stage crew.
Wetherill, contending that the job of sound console operator was part of the enter-
tainment department, insisted that his seniority should date from August 30, 1962,
when he was hired on that job, rather than May 31, 1963, when he joined the stage
crew, thus giving him more seniority than Jordan or McNerthney. Clever asked
Wetherill who had been his supervisor while he worked as sound console operator.
Wetherill named Lein . Clever vehemently disputed this, emphasing his disagree-
ment with a vulgar epithet.
After extended argument, Wetherill was excused. Clever announced that he
would be governed by the records, and decided that Wetherill was the last stagehand
hired, and, therefore, properly terminated.44 Lovelady conceded that, while "on
paper" management might be correct , as a practical matter , it had been wrong in
terminating Wetherill. By a vote of 2 to 1. Clever and Brigham concurring, the
board sustained Wetherill's termination . Wetherill was then summoned and notified
of the board's decision , Brigham consoling him with the reminder that, since he had
already filed charges with the Regional Office of the Board, he would have a further
opportunity to present his case.
Under date of September 16, 1963 , a notice announcing the decision of the board
of review was posted on the bulletin boards at the Club.
Analysis of Contentions Concerning Wetherill's Discharge; Conclusions
As is already evident , Respondent contends that the sole reason for Wetherill's dis-
charge was the necessity for restoring Walker , the returning veteran, to his former
98 When Wetherill entered the room, Brigham greeted him with the remark, "Con-
gratulations on your victory at Sparks ," a sarcastic reference to the fact that the Union
had lost the election at a casino there. Since this appeared to be an attempt at levity,
however ill-considered under the circumstances, I do not regard this remark as evidence
of hostility toward the Union or Wetherill.
"According to Lovelady, Clever remarked to Brigham that Wetherill should have been
laid off rather than terminated . Although both Clever and Brigham denied that Clever
had made such a remark, it appears to be the type of spontaneous reaction which the
discussion of the comparative seniority of the stagehands would have prompted. I find
that Clever made the remark attributed to him by Lovelady.
HARRAH'S CLUB 1723
job on the stage crew.45 There is no issue regarding Walker's seniority or his right
to the job. Since, in Respondent's view, Wetherill was the stagehand with least senior-ity, it decided to dismiss him to make a place for Walker. According to Respondent,
this was its first experience in dealing with a returning veteran, and Brigham and
Vincent conferred to decide how to comply with the law.46 After discussing the size
of the stage crew, Brigham asked Vincent whether he could "absorb another man."
Vincent replied that he was already overstaffed, and he was being criticized for main-
taining a much larger stage crew than any comparable casino in Las Vegas. Vincent
asked Brigham whether there was any other place for Walker but Brigham said that
it would be preferable to reinstate Walker to the job he had held before his induction.
Although Wetherill did not become a stagehand until May 31, 1963, after the
"appraisals" of the individual members of the stage crew had been made, Brigham
and Vincent reviewed these appraisals and concluded that Wetherill would be the
logical man to go. Brigham concurred in this decision.
If, as Respondent contends, Wetherill's seniority was based on the date of his
assignment to the job of stage technician, May 31, 1963, then it would appear that
he had less seniority than any of the other stage technicians. The General Counsel
contends, however, that Wetherill's seniority should have commenced on August 30,
1962, when he was initially employed as a sound console operator under the super-
vision of Herbert Swartz. Based on this date of hire, the General Counsel contends
that Wetherill had seniority over at least two employees, Jordan and McNerthney.
As to Jordan, the record discloses that he was first hired in September or October
1960 as a waiter in the food service department. He continued in that job through
May 1961, when he left for the summer. Returning in October of that year, he
worked as a clerk in the food stores department until about May 1962, While still
employed in that department, he was given a training course, and, on November 27,
1962, became an apprentice stage technician, working on the production of The
Flower Drum Song as his first assignment. The first week of January 1963, Stage
Manager Lein instructed him to sign his time slips thereafter as stage technician in
the entertainment department, although, as has been seen , the personnel department
continued to show him as on loan from food stores. The General Counsel contends,
therefore, that Jordan's seniority date should be January 1963, when he was first
recognized as a full-fledged stage technician, or at the very earliest, on November 27,
1962. In either case, this would make Jordan junior to Wetherill, if August 30, 1962,
the date of his initial hiring, were considered controlling for purposes of seniority.
Respondent, however, contends that, even if the January 1963 date is used to deter-
mine Jordan's seniority, he would have seniority over Wetherill, based on the May 31,
1963, date, when Wetherill became a stagehand.
There are, however, some remarkable circumstances in respect to the issue of
Jordan's seniority. In July 1963, soon after he learned of Walker's imminent return,
Jordan went to Stage Manager Lein and told him that he felt "it would be better to
solidify his [own] position before Walker came back or [he] would be the logical one
to be bumped." Lein promised to "attempt to make [him] a stage technician." The
day after Wetherill's discharge, Lein told Jordan that he was "a lucky [s.o.b.] because
they ruled that Wetherill was the junior man as far as the seniority and [Jordan] was
kept on."
As to McNerthney, Respondent contends that he was never an employee of the
entertainment department (which is under the overall supervision of the vice president
in charge of public relations) but of the sound department, which is a separate depart-
ment under the direct supervision of the sound engineer (who is under the overall
supervision of the manager of construction and maintenance).
McNerthney was first hired by the sound engineer on May 4, 1962,, and worked
as sound ^ maintenance man in the casino for about a week. At about that time,
Herbert Swartz succeeded to the sound engineer's job, and McNerthney was assigned
to the job of sound console operator in the South Shore Room, where he worked for
about 4 months, 7 days a week, until Wetherill was hired as sound console operator.
45 Although there was some suggestion that Wetherill's work performance may have
left something to be desired, both Brigham and Respondent's counsel categorically stated
that this was the sole reason for Wetherill's discharge.
'e An interoffice memorandum from Personnel Manager Bill Ross to Vincent, dated
August 14, 1963, concerning Walker's reemployment, stated that Ross was awaiting a
copy of the applicable, law, which could be examined for "loopholes" In the event Vincent
had "no use for this man." Although this casts some doubt on Respondent's motivation,
I have accepted Brigham's testimony that it was contrary to company policy to evade
its responsibility in reemploying returning veterans , and that he so advised both Ross
and Vincent.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McNerthney then returned to the job of sound maintenance man, working at that
job until Wetherill became ill early in May 1963. Swartz then operated the sound
console, and McNerthney relieved Swartz on his days off, working 3 days a week on
sound maintenance in the casino and 2 days in the South Shore Room. About mid-
July 1963, Austin Raymer, director of maintenance, complained that his department
was being charged with McNerthney's entire salary, though he was only working for
him 3 days, and for the South Shore Room, 2 days. Raymer discussed this with
Vincent, Swartz, Barkow, and McNerthney, and, as a result, Swartz and Lein
instructed McNerthney to sign his timeslips as an employee of the entertainment
department, informing him that he would thereafter be assigned exclusively to the
South Shore Room. Since then, McNerthney has been employed in that room, oper-
ating the sound console on Swartz' days off and on vacations, and the sound equip-
ment the remainder of the time 47
With respect to the issue of seniority in general, and McNerthney's in particular,
the record also reveals a singular set of circumstances. Thus, early in August 1963,
Producer Barkow informed McNerthney that he was to be replaced by a returning
veteran, advised him to start looking for another job, while assuring him of at least
a month's employment, offered to help him obtain other employment, and promised
to furnish him with a reference.
About a week later, Vogt told McNerthney that as a result of a meeting between
Lein, Barkow, Vogt, and Swartz, it had been decided, in view of his electrical back-
ground, to assign McNerthney to the lighting department under Vogt, to assist in
maintaining the light equipment, and to act as a relief spotlight operator. Thus,
instead of terminating McNerthney, Respondent's supervisors found a job for him
elsewhere in the Club. At the same time, Vogt told him that Norman Julian (who
had worked at the Club for a week in June learning the sound console operation)
would be coming to work in the sound department, to relieve Swartz on his days off,
and to do some work in the lighting department.
In the latter part of August, McNerthney asked Vogt when Julian was coming to
work. Vogt told him that management "would make no changes until the union
situation was clarified."
On the basis of this evidence, the General Counsel maintains that McNerthney
became a member of the entertainment department in May 1963 when he replaced
Wetherill as sound console operator. Based on the assumption that Wetherill's senior-
ity began August 30, 1962, when he was first hired as console operator, the General
Counsel contends that Wetherill also had more seniority than McNerthney at the
time of his discharge48
Respondent, on the other hand, maintains that, since McNerthney never was in the
entertainment department, but always was in the sound department, the question of
his seniority is irrelevant because Respondent made its selection of the employee to
be terminated on the basis of seniority among the stage crew.
To substantiate their contention that management actually regarded the sound
console operator as part of the stage crew, the General Counsel and the Charging
Party introduced timeslips applying to this job signed by stagehand supervisors49
Respondent attempts to meet this evidence by pointing to evidence that, contrary
to express instructions in the employees' handbook, requiring employees to follow
specified procedures in signing time slips, as a prerequisite to obtaining their pay-
checks, widespread laxity prevailed throughout the Club in the signing of such slips
by supervisors. Thus, according to Brigham, it was common practice during 1962
47 Although McNertbney claimed that he also performed "stage work," such as "open-
ing the room," which included mopping the stage, setting the curtains, and adjusting the
lights, he was instructed by Brigham and Vogt, in about mid-August, not to "touch
anything else on the stage," and to confine his duties "strictly to sound equipment work."
48 It may be noted that McNerthney voted for employee representative of the stage
technicians on the board of review in an election held in October 1963. He did not,
however, vote in the representation election for bargaining agent.
4e According to Wetherill, after he had been working as console operator for about a
month, the job was placed under the entertainment department and Stage Manager Lein
told him that he would thereafter sign his timeslips. Ten slips, signed by Wetherill,
dated November 7 to 12 and November 16 to 18, both inclusive , and December 14, 1962,
were introduced in evidence. All list the department as "Stage," and the job classifica-
tion as "Console Opr." Except for the slip, dated November 11, which is signed by
Barkow, all are signed by Lein, as supervisor.
HARRAH'S CLUB 1725
and 1963, for supervisors to sign timeslips for employees who were not under their
supervision. In numerous instances, nonsupervisory employees signed timeslips,
ostensibly as'supervisors, frequently actually signing the name of a supervisor 50
In further support of his position on the seniority issue, the General Counsel relies
upon the fact that in the stipulation for consent election, the sound console operator
is included with the stage technicians in the description of the appropriate unit. This
overlooks the fact that the stipulation was not entered into until September 5, 1963,
4 days after the termination of Wetherill's employment. It would be manifestly
improper to view this as a retrospective admission by the Employer that the sound
console operator was a part of the stage crew. Moreover, it ignores the fact that the
Employer specifically qualified the stipulation by a provision that inclusion of the
sound console operator in the appropriate unit, and his eligibility to vote in the elec-
tion, would not be binding upon the Employer in any other proceeding. I have
placed no reliance on the fact that the sound console operator is included in the
description of the unit in reaching his conclusions.
Despite the evidence adduced by Respondent, including the organizational charts
and tables purporting to establish the entertainment department, including the stage
crew, as separate from the sound department, the record as a whole indicates that, in
the actual operations of the South Shore Room, Respondent did not maintain such
a rigid separation between the two departments as it contended at the hearing. The
record supports a finding that the functions of the sound console operator who worked
in the South Shore Room in connection with the production of the shows, were more
directly related to those of the stage crew than those of the sound department. Thus,
a tenable basis exists for concluding that the job of sound console operator was actu-
ally in the entertainment department, and, since Respondent contends that it applied
departmental seniority in making its selection, Wetherill should not have been dis-
charged. It is significant that Respondent adduced no evidence that there had existed,
prior to Wetherill's discharge, a policy of seniority, whether departmental or company-
wide, in the event of a reduction in force. The evidence establishes merely that
Respondent claimed to have applied the principle of departmental seniority, and, by
contending that Wetherill's previous services had been performed outside the depart-
ment, justified his discharge.
It may be conceded that it is not within the province of the Board to decide
whether, in discharging Wetherill, Respondent acted fairly, justly, or reasonably;
whether it used criteria such as seniority, departmental or otherwise; or whether it
discharged him for just cause, or, indeed, for none at all. We are concerned only
with whether, in discharging the employee, Respondent was motivated by discrimina-
tory reasons proscribed by the Act. And, in making this determination, it must be
borne in mind that existence of a valid cause for discharge is no defense where the
employer's actual motive is to discourage union membership. As the court has said:
We observe preliminarily that-where, as here, contradictory reasons for the
discharge of an employee are advanced, it is the responsibility of the Board to
weigh the evidence and resolve the factual conflict. N.L.R.B. v. WTVJ, Inc.,
268 F. 2d 346 (5th Cir. 1959); N.L.R.B. v. West Point Mfg. Co., 245 F. 2d 783,
786 (5th Cir. 1957); N L.R.B. v. Wagner Iron Works, 220 F. 2d 126, 135 (7th
Cir. 1955), cert. den. 350 U.S. 981; N L.R.B. v. Whitin Machine Works, 204
F. 2d 883, 885, (1st Cir. 1953) ; N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d
50 Brigham testified that some 17,000 such slips are used weekly for the 4,000 ein-
ployees at the Club According to him, these slips are not used for payroll purposes,
although they establish the shift and number of hours worked, but for the sole purpose
of furnishing President Harrah with a daily profit-and-loss statement. Brigham testified
that, in accordance with Respondent's business practices, timeslips for 1963 have been
destroyed However, Respondent introduced 26 timeslips, all but 2 dated the latter
part of January 1964, the remaining 2, September 1963. The two in 1963 had been
preserved, according to Brigham, in connection with objections to an election among
Respondent's culinary workers. Some of these slips were signed by a secretary of a
supervisor; others bore names of nonsupervisory personnel. None of the slips covered
stage employees, but, for the most part, such departments as customer relations, bar,
premium booths, commissary, restaurant, etc. These slips can scarcely be regarded, as
Brigham claimed, a random sampling, and were of negligible probative value. They
furnish scant support for Brigham's testimony that probably as many as 50 percent of
the timeslips were signed by persons other than supervisors of the particular employees,
or by unauthorized personnel. Brigham admitted that normally the supervisor of the
employee involved would be the person to sign his timeslip if he were available.
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
980, 982 ( 3rd Cir. 1950 ). There is clearly no obligation on the Board to accept
at face value the reason advanced by the employer. The concurrent existence
of an otherwise valid reason for the discharge of an employee does not preclude
a factual determination that his discharge was discriminatory if it appears from
a preponderance of evidence , and the reasonable inferences drawn therefrom,
that the discharge was in fact motivated by the employer 's opposition to the
employee's union activities . Ibid.51
Since , however, there is no magic touchstone by which the trier of facts can deter-
mine with absolute certitude the motivations which prompt an employer 's conduct
in terminating the employee , we must look to the evidence , circumstantial , as well
as direct , and the reasonable inferences therefrom 52
The record is replete with evidence of Respondent 's hostility toward the Union; its
systematic interrogation of employees ; threats of reprisals ; studied attempts to per-
suade the employees to renounce the Union and deal directly with the employer; its
bitter resentment toward Wetherill for what it considered his base ingratitude in orga-
nizing the crew , after the favors it had shown him; and other acts of interference,
restraint , and coercion previously detailed . When there is considered against this
background the undenied remark of Swartz, Wetherill 's former supervisor , to Jordan,
2 days after Wetherill 's discharge , to the effect that Wetherill "had had his neck stuck
out a mile because of the union business ," Respondent 's motivation becomes increas-
ingly apparent.53
Further evidence of Respondent 's actual motivation is to be found in the circum-
stances which immediately preceded Walker 's return to work . This evidence dis-
closes that after agreeing with Walker that he could report for work on September 4,
Barkow made an urgent call to Walker several days earlier, asking him to report for
work on September 1. This prompted Walker to ask whether "somebody had broken
a leg." Barkow admonished him to "keep his mouth shut ." Although Respondent
contended that its true purpose in advancing the date of Walker 's return was to afford
him a chance to become "reoriented" to the stage , this explanation was wholly uncon-
vincing. The evidence reveals that there was an unusual need for manpower at the
time in connection with the assembling and rigging of heavy scenery for the show
opening the following week, and Wetherill was actually working on this scenery when
he was summarily terminated , rather than laid off , ostensibly to make room for an
employee who admittedly required a period of reorientation.
It is significant that , although Vincent had steadfastly maintained that the stage
crew had been overstaffed , he at no time took any steps to reduce the size of the
m N.L.R .B. v. Buitoni Foods Corporation, 298 F. 2d 169 (C.A. 3 ). See also Bituminous
Material & Supply Co . v. N.L.R .B., 281 F. 2d 365 , 367 (C.A. 8 ) ; Boeing Airplane Com-
pany v. N.L.R .B., 217 F. 2d 369, 374 ( C.A. 9) ; see also N.L.R.B. v. J. H. Rutter-Rex
Manufacturing Company, Inc., 229 F. 2d 816, 819 (C.A. 5).
63 See Bituminous Material & Supply Co . v. N.L.R.B., supra, at 367 , and cases cited.
sa Swartz was not called to testify and there was no showing that he was unavailable.
It may, therefore , be assumed that his testimony would have been adverse to Respondent.
As to Respondent 's contention that he was not a supervisor at the time he made the
remark, the record discloses that, although the job of sound technician was abolished,
Swartz, himself , assumed the duties of sound console operator , there was no showing
that he had been relieved of his supervisory duties, and the employees had been so
advised . Moreover , since the views he expressed reflected similar views of other respon-
sible supervisors and management officials , I find that his remarks are attributable to
Respondent . It is true , as Respondent argues , that most of the incidents which have
been adverted to occurred after September 1, the date of Wetherill's dismissal. This, how-
ever , does not preclude the consideration of this evidence in evaluating Respondent's
motive for the discharge , first, because it is reasonable to assume that Respondent's
opposition to the unionization of its employees did not develop suddenly, but had existed
both before and after the event of the discharge ; second, because they furnish evidence
of the employer ' s underlying motive. As the court has held in an analogous situation,
"The company contends that any antiunion statements made by company officials
after . . . the date of [the employee ' s] discharge , have no relevancy . We do not agree.
Such statements, reflecting the attitude of the company toward the union at a period
closely following the date of [ the] discharge , indicate what its attitude undoubtedly was
immediately preceding that event. Joy Silk Mills, Inc. v. N.L.R.B., 87 U.S. App. D.C.
360, 185 F. 2d 732, 742." Angwell Curtain Company , Inc. v. N.L .R.B., 192 F. 2d 899,
903 (C.A. 7). See also N.L.R.B. v Entwistle Mfg. Co., 120 F. 2d 532, 535 (C.A. 4) ;
N.L.R.B. v. C. W. Radcliffe, et al ., d/b/a Homedale Tractor & Equipment Company, 211
F. 2d 309, 314 ( C.A. 9) ; N.L.R.B. v . Counsins Associates , Inc., 283 F. 2d 242, 243 ( C.A. 2).
HARRAH'S CLUB 1727 -
crew prior to the advent of the Union. In this regard , it should be noted that the
dismissal of Wetherill made no difference in the size of the crew, because his position
was filled by Walker.
Finally, the record discloses that early in August 1963 , in a discussion about the
possible effect upon the stagehands of the new wage-hour law, Producer Barkow
told Lovelady that it appeared as if Respondent was faced with the alternative of
scheduling a 7-hour day, 6-day workweek, or hiring three additional stagehands, to
avoid payment of overtime . Barkow volunteered that Lein and Vogt had been urg-
ing him to hire additional men because , as things were, Vogt had been obliged to do
relief work at the spotlight and light board , and Lein had been complaining that he
had been unable to,give his men vacations and time off. The employment of the
two additional men, Lein said , would relieve that problem.54
Upon the basis of the foregoing , and upon the preponderance of the credible and
reliable evidence , considered on the record as a whole, I am convinced and find that
Respondent discharged Wetherill because of his union activities , thereby discrimi-
nating in regard to the hire or tenure of his employment to discourage membership
in a labor organization , in violation of Section 8(a)(3), and interfering with,
restraining , or coercing employees in the exercise of the rights guaranteed in Section
7, in violation of Section 8(a),(.1) of the Act 55
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section , III, above , occurring in connection
with its operations described in section I, above, have a close, intimate , and substan-
tial relation to trade, traffic , and commerce among the several States , and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor . practices within the
meaning of Section 8 (a)(1) and (3 ) of the Act , by the conduct described above, it
will be recommended that Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. Having
also found that Respondent violated Section 8(a)(1) and ( 3) of the Act by dis-
charging ' Robert H . Wetherill, it will be recommended that Respondent offer him
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges , and make him whole
for any loss of pay he may have suffered by reason of the Respondent 's discrimina-
tion against him , by payment to him of a sum of money equal to that which he
would normally have earned as wages from the date of his discharge to the date of
Respondent's offer of reinstatement , less his net earnings during said period, in a
manner consistent with Board policy, as set out in F. W. Woolworth Company, 90
NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
bs Although it later developed that the amendment to the Fair Labor Standards Act
did not affect the employees involved , according to Barkow , he did not learn of this
until sometime in October , and Brigham testified that he did not receive a formal ruling
to this effect until November 21, 1963 ( a date which he recalled as the day before the
late President Kennedy's assassination). In either case, this was not until over a month
after Wetlierill 's discharge on September 1.
es I have considered Respondent 's argument that the decision of the board of review
upholding Wetherill 's discharge should be accorded the same weight as an arbitrator's
decision and award. The hearing before the board of review amounted to little more
than the submission of a grievance to a board consisting of two representatives of man-
agement and one employee representative. The Board was created by the unilateral
action of the employer under a procedure outlined in the employees ' handbook. It was
not the terminal point of a grievance procedure established by contract . It was accom-
panied by none of the safeguards for a full and complete hearing, such as opportunity for
cross-examination , representation by counsel , and assurance of a fair and impartial hear-
ing. See Spselberg Manufacturing Company, 112 NLRB 1080 ; see also Lummus Com-
pany, 142 NLRB 517; Roadway Express, Inc ., 145 NLRB 513; International Union of
Operating Engineers, Local 18, AFL-CIO (Frazier Davis Construction Co.), 145 NLRB
1492.
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Harrah's Club, is, and at all times mentioned herein, has been
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Alliance of Theatrical Stage Employees and Motion Picture
Operators of the United States and Canada, Local 363, AFL-CIO, is, and at all
times mentioned herein has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Robert H. Wetherill on or about September 1, 1963, because
of his union or other protected activities, Respondent has discouraged membership
in a labor organization in violation of Section 8(a)(3), and has thereby interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed by
Section 7, thereby violating Section 8 (a) (1) of the Act.
4. By interrogating employees coercively regarding their union membership,
activities, and sympathies; threatening employees with reprisals because of their
union activities; soliciting employees to circumvent the Union as their collective-
bargaining representative, and deal instead directly with management; and by other
acts above described, Respondent has interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed in Sction 7, thereby violating Section
8(a)(1)oftheAct.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the, Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and upon the
entire record of the case, I recommend that Respondent, Haraah's Club, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees with regard to their union activities, membership, and
sympathies; threatening employees with reprisals because of such membership, activi-
ties, and sympathies; soliciting employees to circumvent the Union as their collective-
bargaining representative and deal instead directly with management; threatening
employees with loss of fringe benefits in reprisal for union activities; or otherwise
interfering with, restraining, or coercing employees in the exercise of the rights guar-
anteed under Section 7 of the Act.
(b) Discouraging membership in a labor organization by discharging, refusing to
reinstate, or in any other manner discriminating against any of its employees in
regard to their hire or tenure of employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Robert H. Wetherill, immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of earnings he may have
suffered by reason of Respondent's discrimination against him, as set forth in the
section of this Decision and Recommended Order entitled "The Remedy."
(b) Notify the above-named employee, if presently serving in the Armed Forces
of the United States of America, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
HARRAH'S CLUB 1729
(d) Post at its Club, Stateline , Nevada, copies of the attached notice marked
"Appendix ." 56 Copies of said notice , to be furnished by the Regional Director for
Region 20, shall , after being duly signed by the Respondent 's authorized representa-
tive, be posted by Respondent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to such employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not altered , defaced , or cov-
ered by any other material.
(e) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps Respond-
ent has taken to comply herewith 5 7
56 In the event this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's order be 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."
Fin the event that this Recommended Order shall be adopted by the Board , this pro-
vision shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Decision , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT interrogate our employees regarding their union membership,
activities , and sympathies ; threaten them with reprisals because of such mem-
bership, activities , and sympathies ; solicit our employees to circumvent the
Union as their collective -bargaining representative , and deal instead directly
with management ; threaten employees with loss of fringe benefits in reprisal
for the union membership , activity , or sympathies ; or otherwise interfere with,
restrain , or coerce our employees in the exercise of the rights guaranteed under
Section 7 of the Act.
WE WILL NOT discourage membership in any labor organization by discharg-
ing, refusing to reinstate , or in any other manner discriminating against any
of our employees in regard to their hire or tenure of employment , or any term
or condition of employment.
WE WILL OFFER to Robert H. Wetherill immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to his seniority
and other rights and privileges , and make him whole for any loss of pay he may
have suffered by reason of the discrimination by us against him.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to join or assist said Union or
any other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in any other concerted activities for the pur-
pose of collective bargaining , or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent that such right may be
affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act, as amended.
HARRAH'S CLUB,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of America of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
775-692-65-vol 150-111
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 450
Golden Gate Avenue, Room 13050 , San Francisco , California, Telephone No. 556-
3197, if they have any question concerning this notice or compliance with its
provisions.
Ben Patrick d/b/a Westside Pattern Works and Pattern Makers
Association of Los Angeles and Vicinity. Case No. 01-CA-5711.
February 12, 1965
DECISION AND ORDER
On September 8, 1964, Trial Examiner James R. Hemingway
issued his Decision in the above-entitled proceeding, finding that
it would not effectuate the purposes of the National Labor Relations
Act to assert jurisdiction over Ben Patrick d/b/a Westside Pattern
Works and recommending that the complaint herein be dismissed,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief and the Respondent filed an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, and briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations with the modification
noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby adopts,
as its Order the Order recommended by the Trial Examiner, and
orders that the complaint herein be, and it hereby is, dismissed.
1 we agree with the Trial Examiner that the Board should not , under all the circum-
stances, exercise its discretion to assert jurisdiction herein. We do so, however , without
adopting all the views of the Trial Examiner as to the governing principles in applying
the national defense standard . Cf. Ready Mixed Concrete & Materials , Inc., 122 NLRB
318. In view of our determination that the complaint should be dismissed on jurisdic-
tional grounds , we find it unnecessary to consider the findings of fact and conclusions of
law based on the merits of the case, which the Trial Examiner made in order to obviate
a remand in the event that the Board were to assert jurisdiction herein.
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On December 12, 1963, Pattern Makers Association of Los Angeles and Vicinity
(affiliated with Pattern Makers League of North America), herein called the Union,
150 NLRB No. 168.