Pioneer Club

National Labor Relations Board - Board DecisionsOct 4, 1974

213 N.L.R.B. 841 (N.L.R.B. 1974)

PIONEER CLUB 841 Vegas Vic, Inc ., d/b/a Pioneer Club and Local Joint Executive Board of Las Vegas, Hotel and Restaurant Employees & Bartenders International Union, AFL- CIO. Case 31-CA-3897 tion (a) from paragraph 4 thereof, and reletter the remaining subsections of that paragraph accordingly. ORDER October 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On May 6, 1974, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(a)(5) of the Act by changing its method of operation from a "sit-down" bar to a "service" bar without consulting the Union. We do not agree. The Act does not require bargaining in advance over such changes in method of operation. Rather, the Act's intent was to leave business manage- ment decisions of this kind to the employer, but where such a decision has some adverse effect on the em- ployees, they may grieve or request negotiations on the subject of what corrective action the employees desire in order to cure any inequity to the employees which may have resulted from the change. Since the change had an effect on the employees' earnings, be- cause it apparently resulted in the employees' receiv- ing less tips from customers, there was a duty to bargain, upon request, about the effects of the change; i.e., whether additional economic benefits should be provided to compensate the employees for the loss of tips which allegedly resulted from the change. But here no such request was ever made. Ac- cordingly, we will dismiss this allegation of the com- plaint relating to the change in method of operation, and delete that portion of the remedial order relating thereto. CONCLUSIONS OF LAW We adopt the Conclusions of Law of the Adminis- trative Law Judge except that we shall delete subsec- Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Vegas Vic, Inc., d/b/a Pioneer Club, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(b) of the recommended Order: "(b) Effecting changes in the insurance plan of em- ployees in the above-described bargaining unit with- out prior consultation with the Union." 2. Delete paragraph 2(c) from the recommended Order and reletter the subsequent paragraphs accord- ingly. 3. Substitute the attached notice for that of the Administrative Law Judge. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with the Local Joint Executive Board of Las Ve- gas, Hotel and Restaurant Employees & Barten- ders International Union, AFL-CIO, as the collective-bargaining representative of the em- ployees in the following bargaining unit: All employees, including bartenders, wait- resses, change girls, cashiers, porters, and snack bar attendants, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT effect changes in the insurance plan of employees in the above-described bar- gaining unit without prior consultation with the aforesaid Union. 213 NLRB No. 116 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT bargain directly with employees with respect to their wages or terms and condi- tions of their employment. WE WILL NOT discourage membership in the aforesaid Union by discriminating in regard to hire or tenure of employment or terms or condi- tions thereof. WE WILL NOT solicit employees to withdraw their membership from the aforesaid Union or threaten employees with loss of employment if they do not do so. WE WILL NOT condition receipt of health insur- ance benefits of employees on their withdrawal from membership in the aforesaid Union. WE WILL NOT threaten loss of bonuses paid to certain of our employees should they elect to have the aforesaid Union represent them. WE WILL NOT, in any other manner, interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL bargain in good faith with the afore- said Union, upon its request, as the exclusive representative of the employees in the above-de- scribed bargaining unit and embody in a signed agreement any understanding reached. WE WILL offer to Michael Leone immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory discharge. VEGAS VIC, INC., d/b/a Pio- NEER CLUB (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on August 6, 1973, as amended on September 26 and October 31, 1973, by Local Joint Executive Board of Las Vegas, Hotel and Restaurant Employees & Barten- ders International Union, AFL-CIO, hereinafter referred to as the Union, the complaint herein was issued on October 31, 1973. The complaint alleges that Vegas Vic, Inc., d/b/a Pioneer Club, hereinafter referred to as Respondent, en- gaged in various acts violative of Section 8(a)(1), (3), and (5) of the Act. Respondent, by its answer, denies that it engaged in conduct violative of the Act as alleged.' Pursuant to notice, the hearing was held in Las Vegas, Nevada, on January 22, 23, 24, and 25, 1974, before me, duly designated as Administrative Law Judge. Appearances were entered on behalf of all the parties and briefs were received from the three said parties on April 1, 1974. Upon the entire record in this proceeding and my obser- vation of the witnesses as they testified, I make the follow- ing: FINDINGS OF FACT I. BUSINESS OF RESPONDENT Respondent, a Nevada corporation, maintains a facility in Las Vegas, Nevada, called the Pioneer Club where it is engaged in the operation of a gaming casino and bar. In the normal course and conduct of its business operations Re- spondent annually receives in excess of $500,000 in gross revenue, and purchases and receives goods and materials in excess of $50,000 originating from sources outside the State of Nevada. As is admitted by the Respondent, it is now, and has been at all times material herein, an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by the Respondent, the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Bargaining Unit Involved The bargaining unit involved herein is as follows: All employees including bartenders, waitresses, change girls, cashiers, porters and snack bar attendants, em- ployed by Respondent, excluding office clerical em- ployees, guards and supervisors as defined in the Act. There is no dispute as to the above-described unit being an 1 Respondent raises five affirmative defenses . The first affirmative defense was dismissed on motion of Respondent . Its fourth affirmative defense, that the Union has engaged in conduct violative of the Act (unfairly representing employees) and should therefore be denied the protection of the Act, was ruled as an inappropriate defense to the issues raised by the complaint. The other affirmative defenses are considered hereinbelow. PIONEER CLUB 843 appropriate bargaining unit, however, as opposed to the General Counsel and the Union, the Respondent contends that the Union did not and does not represent the employ- ees within the classifications of change girls and cashiers. B. Background Information The Respondent operates a gambling casino which is limited solely to slot machines as contrasted to a casino which also has a "pit" in which there are gambling tables for such games as roulette, 21, and craps. For easy refer- ence, Respondent's type of operation will be referred to as a "slot house" as opposed to a casino. Also, for ready reference is a list of the management personnel who are involved in this proceeding: Margaret Elardi (hereinafter referred to as Mrs. Elardi) is president and owner, hence a supervisor; Tommy Elardi (hereinafter referred to as Elardi) is the son of Mrs. Elardi and general manager, hence a supervisor; Chuck Uhls is a manager, hence a supervisor; and V. E. Hamm and Raymond D. Bohart were Respondent's bargaining representatives. At the outset, it should be stated that it is deemed neces- sary, in order to resolve the issues herein, to consider the record as a whole. also, it appears that the operation was converted from a casino to a slot house. On or about May 13, 1970, the Respondent and Union negotiated a new contract. Apparently because of its status as a slot house Respondent's representatives indicated that they did not want to enter into a "casino agreement" (such as the 1967-70 agreement) but rather a "bars only" con- tract, the type of contract which the Union entered into with the smaller Las Vegas establishments. Unlike the casino agreement , there were no job classifications in the bars only contract for cashiers and change girls. The parties entered into the bars only contract on May 13, 1970, by executing a "memorandum of understanding" which read as follows: It is agreed and understood by the parties signatory that employees of the Pioneer Club will suffer no loss of wages or reduction in benefits as a result of the Collective Bargaining Agreement executed between the parties this date. It is further understood and agreed that change girls and booth cashiers are included in the bargaining unit at the same wage rates as provided in the Agreement between the Local Joint Executive Board and the Ne- vada Resort Association. C. Respondent's Bargaining Relationship with the Union As a framework for the consideration of the various inci- dents material to the resolution of the issues herein, the history of the bargaining relationship between the Respon- dent and the Union is set forth hereinbelow. The Union is composed of two local unions, Bartenders Union Local 165 and Culinary Workers Union Local 226. The Union (Charging Party) is the representative for collec- tive bargaining and contract enforcement for said two lo- cals. On or about May 7, 1967, Mrs. Elardi became the owner of Respondent but did not, for a period thereafter, partici- pate in the operations of Respondent. Apparently, at the time, Respondent was party to the "Casino Center Associa- tion" collective-bargaining agreement with the Union on an individual basis which agreement was by its terms effective from April 1, 1967, to April 1, 1970. At the time said agree- ment was signed by a representative of Respondent, a letter of understanding was executed which indicated that the Union and the employer had a dispute as to whether or not the change girls and cashiers were represented by the Union and covered by the agreement. Some time in May 1968 the dispute was resolved by a settlement agreement which pro- vided, inter alia, that the Union was entitled to represent the change girls and booth cashiers as part of the appropriate bargaining agreement represented by the Union, that said classifications of employees were covered by the terms of the 1967-70 agreement and that contributions were to be made to the health and welfare fund provided for in said agreement on behalf of change girls and cashiers retroactive to January 1, 1968. It appears that at about the same time the settlement was entered into the Respondent was closed down and that it was reopened after a couple of months (in or about July 1968) under the management of the Elardis. At that time The parties hereto also mutually agree that (a) the Pio- neer Club will be bound by the terms of the 1970-73 Collective Bargaining Agreement for "bars only" and (b) if the Pioneer Club casino is reopened all of the terms and conditions of the Collective Bargaining Agreement between the Local Joint Executive Board and the Nevada Resort Association, representing downtown hotels and casinos, shall be immediately applicable to the Pioneer Club and the latter shall be considered legally signatory to the aforesaid Agree- ment. There is uncontradicted testimony by Mrs. Elardi that she had an understanding with the Union that Respondent would only pay health and welfare contributions for one cashier in each of the three shifts and for none of the change girls. It appears that contributions were made for the other classifications of employees in the bargaining unit. It further appears that by mid-1971 Respondent made health and welfare contributions for all employees in the above-de- scribed bargaining unit including all the change girls and cashiers, which contributions were made through June 1973. According to Hamm's credited testimony the Elardis on several occasions in the period between January 1, 1973, and the expiration date of the 1970-73 agreement expressed a desire not to "be under any contract whatsoever" with the Union. On April 18, 1973, the Union sent a letter to Respon- dent notifying it that it wished to negotiate changes and modifications in the collective-bargaining agreement with the Respondent and requested a meeting for negotiations. On April 26, 1973, Respondent, through Hamm, notified the Union that it was Respondent's desire to terminate the collective-bargaining agreement effective at the expiration date of the agreement and stated its willingness to meet with 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union to discuss this decision. The only evidence in the record as to the reason for this notice by Respondent is testimony that when Elardi received the Union's request for negotiations he discussed with Hamm Respondent's desire to remove the cashiers and change girls from the existing union health insurance program and establish a new one and raised a question of whether the said two employee classifications were represented by the Union. It is noted at this point that parties stipulated that Respondent believed that the bartenders and cocktail waitresses were members of the Union and that the change girls and cashiers were not members of the Union. It appears that there was no further communication be- tween the Respondent and the Union until some time in mid-July when a union representative made several calls requesting a meeting for negotiations which was arranged for July 25, 1973. The July 25 meeting was of short duration, lasting no longer than 5 or 10 minutes. While there is some disagreement among the witnesses as to what was stated at the meeting, it is found that Respondent's representative made it clear to the union representatives that the Respon- dent wanted an election before entering into negotiations with the Union, and that the union representative said he would have to check with his superior to determine the Union's position. There was no further communication be- tween the two except for the filing of the original charge herein on August 6, 1973, and the subsequent filing of an RM petition by the Respondent on August 16, 1973. D. The Issues 1. Whether the Union is, and has been at all times materi- al herein, the collective-bargaining representative of Respondent's employees in the above-described bargaining unit. 2. Whether Respondent violated Section 8(a)(5) and (1) of the Act by (a) unilaterally changing the operation of its sitdown bar to a service bar in April 1973; 3 (b) unilaterally changing its service bar back to a sitdown bar in July 1973; (c) soliciting employees to accept and unilaterally institut- ing a new health insurance plan for employees commencing the first few days in July 1973; and (d) insisting upon a representation election before negotiating with the Union on July 25, 1973. 3. Whether Respondent violated Section 8(a)(3) and (1) of the Act by (a) causing the constructive discharge of Fred Gomez on April 28, 1973, by its unilateral change of its sitdown bar to a service bar; and (b) discharging Michael Leone on July 19, 1973, because he refused to withdraw from the Union. 4. Whether Respondent, through Elardi, violated Section 8(a)(1) of the Act by (a) soliciting employees to withdraw from their membership in the Union; (b) threatening em- ployees with loss of employment if they did not do so; and 2 There was no union-security clause in the contract; Nevada is a "right to work" state. 3 A sitdown bar is one which has bar stools and/or cocktail tables at which customers can purchase drinks for cash. A service bar has no provision for the seating of customers and all drinks are served on a complimentary basis. Complimentary drinks are also taken care of by the bartender tending a sitdown bar. (c) conditioning receipt of health insurance benefits by its employees on their withdrawal from union membership. 5. Whether Respondent, through Mrs. Elardi violated Section 8(a)(1) of the Act by (a) soliciting employees to withdraw their membership from the Union; (b) condition- ing receipt of health insurance benefits by its employees on their doing so; and (c) threatening loss of bonuses paid to certain employees should the employees elect to have the Union represent them. E. The Union's Majority Representation Respondent asserts that the Union never was the majority representative of the above-described bargaining unit, that it was never the understanding between Respondent and the Union that the change girls and cashiers were included among the members of the bargaining unit represented by the Union. Thus, the Respondent contends, in effect, that, therefore, there can be no presumption of majority repre- sentation of a bargaining unit which includes the said two classifications of employees." There appears to be no merit to the Respondent's conten- tion that it was not the understanding of the Respondent and the Union that the change girls and cashiers were in the bargaining unit. In the 1968 settlement agreement entered into between the Union and Respondent it was clearly stat- ed that they were to be considered in the bargaining unit. Then, when the 1970-73 agreement was executed, there was a memorandum of understanding which clearly stated that "change girls and booth cashiers are included in the bar- gaining unit." The testimony of Respondent's witnesses that this provision had only a limited purpose (which did not encompass the unambiguous statement that they were to be considered in the bargaining unit) is not persuasive. Said unambiguous language, coupled with the fact that just 2 years prior thereto there had been an agreement between the parties settling the dispute as to whether the change girls and booth cashiers were in the bargaining unit and the absence of any credible testimony to indicate that the Union had abandoned its position leads me to the conclu- sion that the parties understood that the change girls and booth cashiers were included in the bargaining unit and were covered by the 1967-70 and 1970-73 contract. This conclusion is buttressed by the fact that from at least mid- 1971 to the expiration of the 1970-73 agreement the Re- spondent made contributions to the Union's health and welfare fund on behalf of all employees including said two classifications of employees. The fact that the Respondent was not required to use the hiring halls available for the employment of change girls and booth cashiers is consid- ered of little significance ,5 as is the fact that no grievances were filed by the Union on behalf of the change girls or cashiers. There is no showing that at any time a change girl or cashier brought a grievance to the Union. Thus, it is concluded that it is appropriate to presume that Said two classifications constitute a majority of the bargaining unit de- scribed hereinabove. 5It appears that the Union did not strictly enforce provisions for hiring hall referrals for change girls and cashiers, and never required Respondent to use the hiring halls for said two classifications , even after the 1968 settle- ment agreement. PIONEER CLUB at the expiration of the 1970-73 contract the Union repre- sented a majority of the employees in the above-described bargaining unit. It is well established that a union's majority is presumed to continue after the expiration of its labor agreement and the employer is required to bargain with it unless there is competent evidence that it did not in fact represent the majority or the employer can demonstrate that it has a good-faith doubt of its majority representation. Celanese Corporation of America, 95 NLRB 664, 672; Auto- mated Business Systems, 205 NLRB 532 (1973). The record indicates that well before the expiration date of the contract the Respondent had resolved that it did not want to have any contract whatsoever with the Union.6 While there is testimony that there were some complaints to Mrs. Elardi from employees during the previous year with respect to the payment of insurance claims under the union contract, said complaints furnish little basis for a finding that Respondent had a good-faith belief that a majority of the bargaining unit employees had become disenchanted with union representation. The only testimony of such dis- enchantment relates to events in the third week of July and first week in August. In the latter part of the third week in July 1973 two of the employees approached Elardi and one of them stated to him that she did not want to be covered by the Culinary Union and that a majority of the change girls and booth cashiers felt the same way. It appears that Elardi responded that he would "like to hear what the other girls have to say and then maybe we could do something about it." On or about August 2, 1973, Elardi was presented with a petition signed by 14 change girls and booth cashiers on July 31, 1973. The petition stated that "the undersigned no longer want to be covered by the Culinary Workers Local 226." It is noted, however, that almost immediately after the expiration of the contract on July 1, 1973, the Respondent offered employees and unilaterally instituted a private insurance plan (provided by the Prudential Insur- ance Company) as a substitute for the coverage under the union contract and solicited bartenders and cocktail wait- resses to withdraw from the Union in order to obtain the new insurance. As set forth hereinbelow, this conduct con- stituted a violation of Section 8(a)(5) and (1) of the Act. On July 25, 1973, prior to receipt of the aforesaid employees' petition but subsequent to the commencement of the cam- paign to solicit employees to sign up for the private insur- ance plan, Respondent's bargaining representative stated to the Union that it wanted an election before negotiating a contract with the Union. At the expiration of the contract Respondent had little objective basis for believing the ma- jority of the employees in the bargaining unit did not want to be represented by the Union. It is reasonable to assume that thereafter Respondent effectively encouraged employ- ees' disenchantment with having union representation by its solicitation of them to accept, and its unilateral institution of, the Prudential insurance plan. 6 In addition to Hamm's above - mentioned testimony that the Respondent expressed a desire not to be under any contract whatsoever , Linda Mc- Elwame , who was employed at the end of March 1973 credibly testified that after she was hired by Uhls he asked her if she was "in the Union," and that, when she said she was not, he stated , "Well, that's good , because this is not a Union house " 845 Consequently, it is concluded that Respondent has failed to rebut the presumption that the Union enjoyed majority representation of the employees in the bargaining unit or to demonstrate that it had a good-faith doubt thereof on July 25, 1973, when it insisted on an election before beginning negotiations. It is not clear whether Respondent seriously contends that the Union abandoned its position as collective-bargain- ing representative of the bargaining unit. Since there is testi- mony that Respondent so believed, this contention is considered. It appears that Respondent, prior to the expira- tion of the contract, wished to institute the private insurance program but was advised by its labor consultant to wait until after the contract had expired. Meanwhile, Respon- dent made union health and welfare contributions on behalf of all employees in the bargaining unit through June 1973. The record discloses that Respondent started soliciting its employees to accept coverage under the private insurance plan almost immediately after the contract expired and an explanation was offered that, since there had been no word from the Union by the beginning of July, it was assumed that the Union had abandoned representation of the em- ployees. This, despite the fact that by letter dated April 16, 1973, the Union requested negotiations for modifications of the then existing contract. The fact that there was a delay until mid-July 1973 before the Union attempted to arrange a meeting for negotiations was no basis for finding that there was an abandonment.? In the circumstances of this case it appears that the Respondent did not, in good faith, believe that there was abandonment, but seized upon the fact that it had not been contacted by the Union as an excuse to undermine adherence to the Union by instituting the private insurance plan. Therefore, it is concluded that the Union had not abandoned its representation of the bar- gaining unit. F. Changes in the Operation of the Bar Without consulting the Union, Respondent changed the operations of its bar from that of a sitdown bar to that of a service bar on or about April 27, 1973. Then, on or about July 21, 1973, without consulting the Union, the Respon- dent reversed its policy and changed the operation of its service bar back to a sitdown bar. At a sitdown bar the bartender receives tips which is not true of a service bar. Thus the first change caused a loss of income to the barten- ders thereby affecting the terms and conditions of their employment. It appears that bartender tips are part of their wage structure, for it is noted that, in the industry, service bartenders are generally given higher wages than sitdown bartenders receive In Hilton Hotels Corporation, 191 NLRB 283, it was found that it was a violation of Section 8(a)(5) and (1) for an employer to reduce the amount of gratuity of its employees without giving their bargaining representative advance notice and an opportunity to negotiate over the contemplated change. Therefore, it is found that Respondent's action in changing its operations from a sit- down bar to a service bar without prior consultation with 7 A mere lack of communication from the Union does not suggest an intent on its part to abandon its representation of the employees Brahaney Drilling Company, 209 NLRB 624 (1974) 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union constituted a violation of Section 8(a)(5) and (1) of the Act. The General Counsel contends that the change in opera- tions was motivated by an attempt to undermine the majon- ty status of the Union. The record will not support such a finding. The change required a considerable capital expend- iture for installing a new bar in a different part of the premises, and it appears that the sitdown bar was operated at a loss. Therefore, it is found that the change was made solely for economic reasons. It appears absurd, in the cir- cumstances, that the Respondent made the change in order to undermine employees' adherence to the Union (by de- priving bartenders of their tips). The fact that the change was not discriminatorily motivated does not alter the re- quirement upon the part of the Respondent to consult the Union before making the change. With respect to the reversion some 3 months later to a sitdown bar operation without prior consultation with the Union, it appears that at the most it was a technical viola- tion of Section 8(a)(5) and (1) of the Act, since it did involve a change in the terms and conditions of employment of employees.8 However, this change restored the opportunity for employees to receive tips and thereby increase their income , thus restoring the status enjoyed by employees prior to the first change. Consequently, it does not appear that any purpose would be served in finding that the restora- tion of the sitdown bar was violative of Section 8(a)(5) and (1) of the Act as alleged. As a remedy for the first change it will be recommended that the Respondent cease and desist from unilaterally changing the wages or other terms and conditions of employment of employees in the bargain- ing unit without prior consultation with the Union and make the bartenders whole for any loss of income they would have received during the period between the first and second change in the operation of the bar. Even if the sec- ond change were to be found to be violative of the Act, no further remedy could be recommended. In arriving at the above conclusion that Respondent vio- lated Section 8(a)(5) and (1) of the Act I have not failed to consider several defenses raised by Respondent. The first is that, even though the Union did not receive notice of the decision to change the sitdown bar to a service bar, it did have actual knowledge of the change after it was accom- plished and acquiesced to it. In support of this, Respondent alludes to hearsay testimony of Elardi that two bartenders reported to him that they consulted the Union as to whether there should be a change in the wage rate because of the conversion to the service bar and were informed that no change in wage rate was required. This hearsay testimony is not considered to be probative evidence that the Union waived the right to bargain about the change in the bar operations. A second defense is that the Union had knowledge of the change and took no action with respect thereto.' The claim of knowledge is predicated upon testimony that a union representative saw the bar operating as a service bar and 8 The second change was prompted by customer complaints of a lack of seats for those who wished to lounge at the bar, particularly husbands waiting for wives playing the slot machines 9 Until it filed its first amended charge herein on September 26, 1973 that on at least one occasion the Respondent applied to the hiring hall for and received therefrom a "service barten- der." These facts far from establish a clear and unmistaka- ble waiver of the right to bargain with respect to the change in operation (which was a fait accompli) It is well estab- lished by proof that the subject matter was consciously explored and that it was clearly and unmistakably waived. Century Electric Motor Co., 180 NLRB 1051, 1055. Respondent also argues that the matter of the change in bar operations could have been made the subject of the grievance procedure under the contract and submitted to arbitration citing the "Collyer doctrine." 10 This contention is raised for the first time in Respondent's brief. Conse- quently, the record evidence is insufficient for a finding that a deferral is warranted. Nedco Construction Corp., 206 NLRB No. 17; International Association of Bridge, Structu- ral and Ornamental Ironworkers Local Union No. 70, 206 NLRB No. 20. In any event, it does not appear appropriate to defer one of the many issues presented herein to arbitra- tion, and, in addition, it does not appear that an issue raised by the General Counsel, that the change was motivat- ed by a desire to undermine the Union, is one that could be considered in arbitration proceeding, since it would involve more than an interpretation of the contract. G. Respondent's Insistence Upon an Election As found hereinabove, Respondent's representative at the meeting on July 25, 1973, with union representatives indicated that the Respondent was not willing to enter into negotiations for a collective-bargaining agreement until af- ter an election was held. In view of the findings hereinabove that at the expiration of the collective-bargaining agreement there is a presumption that the Union enjoyed a majority representation of the employees in the above-described bar- gaining unit , and further findings that said presumption was not rebutted and that the Respondent did not have a good- faith doubt of said majority representation, it follows that its refusal to bargain with the Union on July 25 without first having an election constituted an unlawful refusal to bar- gain within the meaning of Section 8(a)(5) and (1) of the Act. The record discloses that the Respondent had, even before the expiration of the collective-bargaining agree- ment , resolved not to enter into any contract with the Union, and by its solicitation of the change girls and cash- iers to accept the private insurance plan and solicitation of the bartenders and cocktail waitresses to withdraw from the Union (ostensibly in order to obtain coverage under the private insurance plan) Respondent was attempting to un- dermine the Union and cause its defeat at the election which it sought." H. The Alleged Unlawful Constructive Discharge of Fred Gomez Apparently the service bar was completed on April 27, 1973. Gomez worked for the first day at the service bar on April 28 and quit his employment at the end of the shift on 0Collyer Insulated Wire, 192 NLRB 837, 841-842 (1971) ^1 Said solicitation of employees is set forth herembelow. PIONEER CLUB that date. He testified that the reason he quit was that the loss of tips (which he estimated to be between $7 to $10 a day) made it impossible for him to continue his employ- ment.iZ The General Counsel contends that the change to a service bar was motivated by a desire on the part of the Respondent to rid itself of the bartenders (who were known to be union members). As stated hereinabove, the record will not support a finding that the change to a service bar was so motivated. However, as also stated hereinabove, the change to the service bar without prior consultation with the Union was violative of Section 8(a)(5) and (1) of the Act. Therefore, the issue with respect to whether the termination by Gomez of his employment on April 28 constituted an unlawful constructive discharge turns on a question of whether or not Gomez quit his employment because of the change in the terms and conditions of his employment. The record discloses that for several months Gomez had been taking a course in refrigeration and intended to change to that field of employment. The record further discloses that about an hour before he decided to quit his employ- ment he inquired of an employee of Dependable Appliance who was repairing an ice machine on Respondent's prem- ises about employment with Dependable and was told whom to contact. He then called and arranged for an inter- view. It further appears that he started his employment with said company 2 days later. Gomez testified that he knew that the area practice was for service bartenders to receive a higher salary than sitdown bartenders. It is noted, howev- er, that he made no request of Respondent to make an adjustment for his loss of tips because of the change to a service bar, nor did he complain to the Union with respect thereto, but merely notified his supervisor Uhls that he was quitting because he "could no longer work under those conditions" and "could get a better job someplace else." It is concluded that the General Counsel has failed to prove by a preponderance of the evidence that Gomez quit his employment because of the change to a service bar. The fact that he had 9 months to go before concluding his course in refrigeration has not been overlooked, but he might very well have considered that the on-the-job training he would receive while being employed in the field would comple- ment his study. His hasty decision to quit without first at- tempting to obtain an adjustment for the loss of his tips leads me to believe that he was motivated not by the change in the terms and conditions of his employment but rather by an opportunity to enter the field of employment in which he was interested. Thus, it will be recommended that the allegation that Respondent violated Section 8(a)(3) and (1) of the Act by causing the constructive discharge of Fred Gomez be dismissed. 1. The Discharge of Michael Leone Leone was employed by Respondent toward the end of May 1973 as a service bartender through the Union's hiring hall and was discharged on July 19, 1973. It is noted that after the expiration of the 1970-73 contract the Respondent 12 It appears that it is more the area practice for service bartenders to be paid $3 to $4 more per day, ostensibly to compensate for lack of tips, and that Gomez was receiving $29 per day as a sitdown bartender 847 ceased hiring bartenders through the hiring hall, but instead replaced the bartenders (who were male) with girls who were transferred from other job classifications. Leone testified that he had a conversation with Elardi on or about July 1 or 2 in which Elardi asked him if he would "go non-Union to work as a bartender." Leone further testi- fied as follows as to what then ensued in their conversation: And I told him I wouldn't take a withdrawal from my Union. And he said, "Okay. Look around for work, Mike, because within a few weeks I'm going to have to dis- charge you." Q. And what did you say in response? A. I told him to do what he had to do. Q. Do you recall if anything else was said during that conversation? A. He told me that he didn't want to fire me, and he asked me if he did go back to Union if I would come back to work for him. When Elardi was questioned as to this testimony, his testimony was as follows: Now, at any time during Mr. Leone's employment did you ever inquire as to whether he had taken a withdrawal card? A. Yes, I could have, right in the very first part of July. Q. Okay. And do you remember having such a con- versation? A. I really don't recall it. If Mike was behind the bar, I talked with him because of the same situation I had with the Prudential insurance. s s s Q. Do you remember at any time saying to him that if he did not get a withdrawal card, he would lose his job? A. No, I absolutely never said that. It is noted that Elardi admitted that he talked to two barten- ders about getting withdrawal cards from the Union. Uhls testified that he overheard part of the conversation between Leone and Elardi, that Elardi asked Leone "If he had his withdrawal card," and that he walked off when he "saw" what the conversation was about. While Uhls, when on the stand, could remember no more of the conversation, his pretrial affidavit contains a statement that Elardi also said, "You know we're going non-Union and we might have to get rid of you." Leone further testified that on July 19, 1973, Elardi told him that Respondent was "definitely going nonunion," that it was his "last shift," that he was a good worker, and asked him if he would come back if Respondent "went union." Elardi testified that when he terminated Leone he told him that he was doing so because of dissatisfaction with the unclean way he kept the bar. Elardi further testified that he had had two complaints from the porter about the way Leone kept the bar. It appears from the porter's testimony 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, while he did make two complaints about Leone, his last complaint was made 3 or 4 weeks before Leone's discharge. Elardi testified that after the second complaint he warned Leone about keeping the bar clean. Leone denied this testi- mony. Elardi further testified that shortly after the second com- plaint from the porter he received a complaint from Mary Jo Daniel, who objected to the way Leone left the bar. Mary Jo Daniel who worked 3 months as a bartender (starting about July 10, 1973) testified that Leone left the bar in a very unclean condition and that about the middle of July she complained to Elardi with regard thereto. Elardi admit- ted that he had never checked the bar himself and it appears that he never checked with Uhls, Leone's supervisor, for Uhls testified that Leone was a "good bartender," that he "seemed to get along with all the other employees," that he never reprimanded him, and that he never talked to him about the "sloppiness of the bar." As set forth hereinbelow, another witness, Sandra Daniel, credibly testified being threatened with loss of job if she did not obtain a withdrawal card from the Union. Leone was a convincing witness and, in the circumstances, particularly Uhls' good appraisal of Leone as a bartender, Elardi's fail- ure to check personally on the condition of the bar, and the inference drawn from the record that the Respondent was attempting to use the device of a private insurance plan to undermine the Union, it is found that Leone's testimony should be credited. Consequently, it is concluded that Leone was discrimina- torily discharged in violation of Section 8(a)(3) and (1) of the Act, and that, while there may have been some basis for complaints about the way Leone kept the bar, said com- plaints were only a pretext for discharging him. J. Soliciting Employees to Accept and Instituting a New Insurance Plan As above stated, for at least 2 years prior to the expiration of the 1970-73 agreement all of the employees in the bar- gaining unit were covered under the union insurance plan for which Respondent made contributions. There is no dis- pute that immediately after the expiration of the contract the Respondent, through the Elardis, solicited the cocktail waitresses and bartenders to obtain withdrawal cards from the Union upon the assertion that the Prudential Insurance Company wanted to avoid double coverage and solicited the change girls and cashiers to accept coverage under the Prudential plan. It appears that Respondent believed that the cocktail waitresses and bartenders were members of the Union and the change girls and cashiers were not. Since, as it has been found hereinabove, the Union continued to be the collective-bargaining representative of the employees in the bargaining unit, this action of bargaining directly with the employees with respect to their insurance coverage and unilaterally instituting a new insurance plan is violative of Section 8(aX5) and (1) of the Act. The Board has held that dealing directly with employees about the terms and condi- tions of their employment without prior consultation with the union and refusing to negotiate with it constitutes a violation of Section 8(a)(5) and ( 1) of the Act. Chevron Oil Company, 168 NLRB 574. Also, it was a violation of Section 8(a)(1) of the Act to require, as a condition for receiving the benefit of the insurance plan, withdrawal from the Union. K. Threatening Employees With Loss of Employment As found above, Elardi threatened Leone with loss of his job if he did not obtain a withdrawal card from the Union. By his so doing, Respondent violated Section 8(a)(l) of the Act. Sandra Daniel testified that, during the first week of July, Elardi told her that the Prudential Insurance plan was being put into effect and that "in order to continue employment at the Pioneer Club" the employees "would be expected to take withdrawal cards" from the Union. She further testi- fied that around the middle of July Elardi asked her whether she and the other cocktail waitresses had taken withdrawal cards from the Union and he stated that in order for them to be signed up under the Prudential Insurance plan they "had to show withdrawal cards," that Prudential would not cover members of the Union unless they had withdrawal cards. Daniel also testified to a conversation she had with Mrs. Elardi on July 3 in which Mrs. Elardi gave her an extension of a month before submitting her withdrawal card because she needed coverage for her son's dental work. Daniel testified to an additional conversation she had with Elardi at the beginning of August in which Elardi asked her if the cocktail waitresses had taken withdrawal cards yet, and stated that the time had come to make a decision, that they would have to take withdrawal cards or they would have to go. Don Foulkrod testified that he was employed by the Re- spondent between July 3 and October 9, 1973, as a floor- man, an admitted supervisory position. He credibly testified that he was present at a conversation between Elardi and Daniel (apparently the last one to which Daniel testified) in which Elardi asked Daniel if all the girls had withdrawals from the Union, that he thought he had allowed them enough time and said "you're going to have to get these withdrawals or I'm going to have to let you go." Elardi denied that he had ever threatened to discharge an employ- ee if he or she did not obtain a withdrawal card from the Union. Daniel was a convincing witness and, in addition, her testimony is supported in part by Foulkrod. Therefore, her above testimony is credited and it is concluded therefrom that Respondent violated Section 8(a)(1) of the Act by threatening her with discharge if she did not obtain a with- drawal card from the Union. Although other witnesses testi- fied they were not threatened with loss of job if they did not obtain withdrawal cards and one testified that she is still a member of the Union and is covered by the Prudential plan, I am not of the opinion that this evidence is sufficient to discredit the convincing testimony of Leone and Daniel. L. Threat to Eliminate Bonuses It appears that the Respondent gave bonuses to the change girls based upon the amount of "cans of nickles" they sold. Linda McElwaine, who at the time of the hearing was still employed by Respondent, testified that in the first week of PIONEER CLUB 849 October 1973 Mrs. Elardi made a statement to her and Dorothy Walker , another employee , that it was up to the employees to determine whether they wanted the Union to represent them but that if they did, "she would have to cut out the bonuses." Dorothy Walker testified that it was she (Walker) who made the statement that the employees would lose their bonuses if they elected to have the union represent them. Mrs. Elardi testified that after Walker said that the employ- ees would be " losing their bonuses" she (Mrs. Elardi) made a "comment" that it would probably save her between $200 and $300 a month. McElwaine also testified that about a week later Mrs. Elardi said that "she gave out several hundred dollars extra each paycheck to the change girls as bonuses, and that if we did go Union she would just have to cut it out." Mrs. Elardi testified that she could not remember having any conversa- tion with McElwaine about the Union other than the first one above-mentioned. Even if Mrs. Elardi 's and Walker's testimony about the first conversation were to be credited (that it was Walker who made the comment about losing the bonuses), never- theless, Mrs. Elardi 's further testimony that she said she would save between $200 and $300 a month makes it clear that she adopted Walker 's statement. Consequently , she, in effect , did threaten to eliminate the bonuses if the employ- ees elected to be represented by the Union. In any event, McElwaine was a convincing witness and her testimony as to the two incidents is credited . Therefore, it is concluded that Respondent did unlawfully threaten to eliminate bonuses for the change girls if the employees elected to be represented by the Union and did thereby violate Section 8(a)(1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE reinstatement to his former job, or , if his job no longer exists , to a substantially equivalent position without preju- dice to his seniority or other rights and privileges . It will be further recommended that Respondent be ordered to reim- burse him for any loss of pay he may have suffered as a result of its discriminatory action against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291- 293 (1950), together with 6 -percent interest thereon in ac- cordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1963). It having been found that Respondent violated Section 8(a)(5) and ( 1) of the Act by converting its sitdown bar to a service bar from the period between April 27 to July 21, 1973, it will be recommended that the Respondent be or- dered to make the bartenders employed during that period whole for any loss of tips they would have received had the bar remained a sitdown bar. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding , I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is, and has been at all times material herein, the collective -bargaimng representative of Respondent's employees in the appropriate bargaining unit described as follows: All employees including bartenders, waitresses, change girls, cashiers , porters and snack bar attendants, ex- cluding office clerical employees , guards and supervi- sors as defined in the Act. The unfair labor practices of the Respondent set forth in section III, above , occurring in connection with its opera- tions set forth in section I, above , have a close, intimate and substantial relation to trade , traffic and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. V THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below , designed to effectuate the policies of the Act. In view of the conclusions stated hereinabove , an order is warranted herein requiring Respondent to bargain with the Union as the exclusive representative of the appropriate bargaining unit described hereinabove . Therefore, it will be recommended that Respondent bargain with said Union with respect to the above -described bargaining unit upon the Union 's request and embody in a signed agreement any understanding reached. It having been found that Michael Leone was unlawfully discharged on July 19, 1973 , it will be recommended that Respondent be ordered to offer him immediate and full 4. Respondent violated Section 8(a)(5) and ( 1) of the Act. by (a) unilaterally changing its bar operation from that of a sitdown bar to a service bar in April 1973; (b) insisting upon a representation election before negotiating with the Union on July 25, 1973 ; (c) bargaining directly with the employees by soliciting them to accept and instituting a new insurance plan. 5. Respondent violated Section 8(a)(3) and ( 1) of the Act by discharging Michael Leone on July 19 , 1973, because of his adherence to the Union. 6. Respondent violated Section 8(a)(1) of the Act by (a) soliciting employees to withdraw their membership from the Union ; (b) threatening employees with loss of employment if they did not do so; (c) conditioning receipt of health insurance benefits by employees on their withdrawal from membership ; and (d) threatening loss of bonuses paid to certain of the employees should the employees elect to have the Union represent them. 7. General Counsel has failed to prove by a preponder- ance of the evidence the allegations in the complaint that Respondent unlawfully caused the constructive discharge of Fred Gomez on April 28, 1973. Upon the foregoing findings of fact , conclusions of law and upon the entire record , and pursuant to Section 10(c) of the Act , I hereby issue the following recommended: 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER13 Respondent, Vegas Vic, Inc., d/b/a Pioneer Club, its offi- cers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Union as the collective-bargaining representative of the employees in the above-described bargaining unit. (b) Effecting changes in the wages, terms, or conditions of employment of employees in the above-described bar- gaining unit without prior consultation with the Union. (c) Bargaining directly with employees with respect to their wages or terms and conditions of their employment. (d) Discouraging membership in the Union by discrimi- nating in regard to hire or tenure of employment or any term or condition thereof. (e) Soliciting employees to withdraw their membership from the Union. (f) Threatening employees with loss of employment if they do not withdraw their membership from the Union. (g) Conditioning receipt of health insurance benefits by its employees on their withdrawal from Union membership. (h) Threatening loss of bonuses paid to certain employ- ees should the employees elect to have the Union represent them. (i) In any other manner interfering with, restraining or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Bargain in good faith with the aforesaid Union, upon its request, as the exclusive representative of the employees 13 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes in the above-described appropriate bargaining unit; and embody in a signed agreement any understanding reached. (b) Offer to Michael Leone immediate and full reinstate- ment to his former job, or, if his job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discrimi- natory discharge in the manner set forth in the section here- inabove entitled "The Remedy." (c) Make the bartenders who were employed during the period from April 27 to July 21, 1973, whole for any loss of tips they would have received had the Respondent contin- ued to operate its bar as a sitdown bar. (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll and other records containing information concerning its backpay obligation under this recommended Order. (e) Post at its place of business in Las Vegas, Nevada, copies of the attached notice marked "Appendix" 14 Copies of said notice, on forms to be furnished by the Regional Director for Region 31, shall, after being duly signed by an authorized representative of Respondent, be posted by Re- spondent immediately upon receipt thereof and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT is FURTHER ORDERED that the allegations in the complaint that Respondent discriminated against Fred Gomez by con- structively discharging him be, and are hereby, dismissed. 14 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "