Playboy Club of New York, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1968

173 N.L.R.B. 783 (N.L.R.B. 1968)

PLAYBOY CLUB OF
Playboy Club of New York, Inc. and Mikki Taylor,
and Local Joint Executive Board of New York
City of the Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO and
Bartenders Union of New York City, Local 15;
Chefs, Cooks, Pastry Cooks and Assistants Union,
Local 89; Dining Room Employees Union , Local 1
and Playboy Clubs International , Inc. and Hotel
and Restaurant Employees and Bartenders
International Union, AFL-CIO , Parties in
Interest.
Local Joint Executive Board of New York City of the
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO and Bartenders
Union of New York City, Local 15; Chefs, Cooks,
Pastry Cooks and Assistants Union , Local 89;
Dining Room Employees Union, Local 1 and
Mikki Taylor, and Playboy Club of New York,
Inc. and Playboy Clubs International Inc. and
Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO, Parties in
Interest . Cases 2-CA-11206 and 2-CB-4468
November 13, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 7, 1968, Trial Examiner Thomas F. Maher
issued his Decision in the above - entitled case, finding
that the Respondents had not engaged in the alleged
unfair labor practices within the meaning of the
!National Labor Relations Act, as amended, and
recommending that the complaint in this case be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
!Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs, Respondent Union
filed an answering brief, and the General Counsel filed a
brief in opposition to the answering brief.
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.
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 Trial Exam-
iner'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. I
N. Y. 783
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts the recommendations
of the Trial Examiner and orders that the complaint
be dismissed in its entirety.
1 Under the established policy not to overrule a Trial Examiner's
credibility findings unless a clear preponderance of all the relevant
evidence convinces us that they were incorrect , we find no basis for
disturbing the credibility findings made by the Trial Examiner in this
case Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 118 F.2d
362 (C A 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner Upon charges filed
on January 18, 1967, and amended charges filed thereafter by
Mikki Taylor, an individual employed by Playboy Club of New
York, Inc., a Respondent herein, the Regional Director for
Region 2 of the National Labor Relations Board, herein called
the Board, on April 28, 1967, issued a consolidated complaint
against the aforesaid Respondent Employer and Local Joint
Executive Board of New York City of the Hotel and
Restaurant Employees and Bartenders International Union,
AFL-CIO, Local 15 of the Bartenders Union of New York
City, Local 89 of Chefs, Cooks, Pastry Cooks and Assistants
Union, and Local 1 of Dining Room Employees Union, herein
referred to collectively as the Union, alleging violations of
Section 8(a)(1) and (2) and 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.),
herein called the Act. In duly filed Answers the Respondents,
while admitting certain allegations of the Complaint, denied
the commission of any unfair labor practice.
Pursuant to notice a trial was held before me on various
days in June, July, and September, 1967, in New York, New
York, where all parties were present, represented by counsel,
and afforded full opportunity to be heard, to present oral
argument, and to file briefs with me. All parties filed briefs
At the outset of the trial of this matter counsel for the
several Respondent Unions amended their respected answers to
reflect their contention that numerous charges and amended
charges herein were filed at points in time which would deprive
the Board of its jurisdiction by virtue of the terms of Section
10(b) of the Act 1 As will be noted hereafter the execution of
a collective-bargaining agreement on October 21, 1966, is
relevant to the principal issue in this proceedings. On March
31, 1967, Second Amended Charge in Case 2-CB-4468 was
filed, and on April 3, 1967, copies of it were served on all
Respondent Unions. As this Second Amended Charge was filed
within 6 months of the execution of the contract and its
subject matter constituted but a "particularization" of the
violations alleged in the original charge, and as the allegations
of the Complaint are clearly related and germane to the
1 Section lo(b) provides in pertinent part that ". . no complaint
shall issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such charge is made "
173 NLRB No. 111
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original charge, the contention that the Board is divested of its
jurisdiction by Section 10(b)is without merit.2
Upon consideration of the entire record, including the briefs
filed with me, and specifically upon my observation of each
witness appearing before me,3 I make the following:
FINDINGS OF FACT AND CONCLUSION OF LAW
I THE BUSINESS OF THE EMPLOYER
Playboy Club of New York, Inc., is a New York corporation
and a wholly owned subsidiary of Playboy Clubs International,
Inc. It maintains an office and place of business in New York,
New York, where it is engaged in providing restaurant, bar, and
related services. During the most recent annual fiscal period, in
the course and conduct of its operations, it derived gross
revenues in excess of $500,000, and has purchased and caused
to be transported in interstate commerce from States other
than the State of New York liquor, food, and other goods
valued in excess of $50,000.
Upon the foregoing undisputed facts,4 I conclude and find
that Playboy Club of New York, Inc., is an employer within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
It is undisputed and I conclude and find that Local Joint
Executive Board of New York City of the Hotel Restaurant
Employees and Bartenders International AFL-CIO; Local 15,
Bartenders Union of New York City; Local 89, Chefs, Cooks,
Pastry Cooks and Assistants Union; Local 1, Dining Room
Employees Umon; and Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, are labor organi-
zations within the meaning of Section 2(5) of the Act, and I so
conclude and find.
III THE ISSUES
1. Quantum of proof necessary to establish representative
status.
2. Substantiality of misrepresentation necessary to prove a
coerced majority.
3. The presumptions which arise from the performance of
usual acts in the usual manner.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
Beginning in early April and continuing through July 1966
the Union engaged in a campaign to organize the employees of
the Playboy Club. Prominent among those soliciting was
Employee Robert Friedman who procured signed authori-
zation cards from 12 or 13 bartenders, and an informal
committee of employees led by Employees Rego Urguiella,
Jerry Pellegrino and a busboy identified only as Juan, all of
whom actively solicited signed union authorization cards
among the kitchen, washroom, and dining room employees
including, as we shall see in some detail, the waitresses,
commonly referred to as Bunnies.
As the campaign approached its peak on Friday afternoon,
July 29, 1966 the informal committee visited with the Umon
officials at their headquarters and complained of the treatment
shown the employees by certain members of management. A
meeting of the employees at the Union hall was arranged for
the following day, Saturday, July 30th. On this occasion about
50 of the Club's employees gathered and voiced their
complaint After being told what the Union could do to help
them those who had not previously done so signed union
authorization cards. When the Union representatives had
thoroughly explored the employees' grievances with them and
the cards had been signed the meeting broke up and everyone
returned to the Club; the Union representatives to a con-
ference with management, the employees to their jobs, having
been previously advised by the Union officials not to engage in
a work stoppage. By 4 p.m. on this afternoon of the 30th
everyone was back at the Club, and Union President David
Siegel and several of his associates met with William Siegel,
General Manager of Playboy International and Bert Laacks, the
Club manager. In addition to discussing the outstanding
grievances with the management representatives President
David Siegel informed General Manager Siegel that a number
of the employees had signed union authorization cards. To this
General Manager Siegel replied that if the Union had the cards
management would be glad to check them. Whereupon
arrangements were made for a verification of the cards in the
Union's possession with the Club's records and 11 o'clock
Monday morning, August 1, was selected for the next meeting.
The authorization card used by the Union in its campaign
took several forms, depending upon the affiliation of the
organizer who was soliciting, there being several interested
constituent locals of the Respondent Joint Board. Thus the
cards signed in behalf of Bartenders Local 15 bore the fol-
lowing inscription:
I, the undersigned, hereby authorize the Bartenders Union
Local No. 15, of New York, to bargain collectively for me
with my employer in matters affecting union recognition,
hours, pay rates and conditions of employment.
The card used by the New York Local Joint Board, after
reciting Section 7 of the Act, stated:
I hereby designate the New York Local Joint Executive
Board of the Hotel and Restaurant Employees and Bar-
tenders International Union AFL-CIO, through its repre-
sentatives to act as my sole collective bargaining agent.
And the Dining Room Employees Union, Local 1, card stated5
I hereby designate Dining Room Employees Union, Local 1,
H & R.E. and B.I.U., AF of L, as my exclusive collective
bargaining representative and authorize said Union to act as
my agent for all matters concerning Union recognition,
wages, hours and working conditions.
2 N.L.R.B. v Fant Milling Co, 360 U.S. 301, 307, cf. Deaton Truck
Line, Inc. 152 NLRB 1531, 1539.
3 I have considered the testimony of all witnesses , including those
whose testimony I neither accept nor refer to. In evaluating the
testimony of each witness I have relied specifically upon his or her
demeanor and have made my findings accordingly And while, apart
from considerations of demeanor , I have taken into account inconsist-
encies and conflicting evidence , my failure to detail each of these is not
to be deemed a failure of my part to have fully considered it. Bishop and
Malco, Inc., 159 NLRB 1159, 1161.
4 The Union was petitioner in a representation case involving
employees of this Employer in Case 2-RC-13026 in which it was
found that the Employer was engaged in commerce and no exception
thereto was taken.
5 No card for Local 89 of the Cooks and Chefs Union appears to
have been used during the campaign.
PLAYBOY CLUB OF N. Y. 785
This card shall also constitute my intention to apply for
membership in the Union.
As will be noted in some detail hereafter a number of
employees signed cards for more than one of these constituent
members of the Local Joint Board. In the final tally, however,
such multiple authorizations were considered as duplicates and
only one authorization was honored.
As the two parties were perfecting arrangements for a
peaceful settlement of outstanding grievances and the possibil-
ity of representation, the employees, upon their return from
the union hall, and contrary to the advice of the Union
officials, resorted to a more direct form of self-help by leaving
their jobs and engaging in a work stoppage, complete with
walking pickets This lasted for several hours during the early
Saturday evening of July 30, the kitchen workers and busboys
predominating. The waitresses (Bunnies) did not participate.
While the work stoppage was in progress and for several
days following it the leaders among the employees continued
to solicit signed authorization cards and a number of the
waitresses were singled out, specifically by Juan, Rego Urguiel-
la and Pellegrino A number of them signed cards. Cards thus
obtained were turned over to the Union representatives as had
those previously procured.
On Monday, August 1, shortly after noon, Union and
Management officials met to conduct the card check. Present
for the Employer were General Manager William Siegel, Club
Manager Laacks and one or more unidentified clerical assist-
ants, for the Union, President David Siegel, Attorney Ben
Stein, Messrs. Brickman and Kaufman and several other Union
representatives.
The mechanics of the card check, as credibly described by
those who participated in it6 was as follows- Representatives
of the Employer made available the personnel files of all the
employees currently employed in the bargaining unit. These
were washroom attendants, receiving employees, bartenders
and barboys, busboys, kitchen employees, wardrobe attend-
ants, cleaners, maintenance employees, elevator operations,
buffet employees and waitresses ( Bunnies). Not included were
office clericals and those individuals holding supervisory
positions.
In his preliminary arrangements General Manager Siegel did
not include among the employees in the unit the four
Keyroom employees whose function it was to verify from
office credit records the credit standing of members (key-
holders) seeking entrance into the Club facilities. Thus when a
functionary at the front entrance makes such a request by
telephone to the Keyroom where the credit records are kept
the check is made and proper action taken, if any is required.
There is in evidence the National Agreement between
Playboy Clubs International and the Union upon which
supplemental agreements involving at least eight local Clubs are
based. This document excludes Keyroom employees from the
bargaining unit.
Upon my view of the duties of these particular employees
as being office clerical in nature, and upon the practice which
the parties have traditionally followed in excluding them from
coverage in agreements throughout the country I would
conclude and find that the agreement to exclude the Keyroom
employees here was proper.
While it appears that in 1964 the Regional Director
determined in Case 2-RC-13026 that Keyroom employees
were properly a part of the bargaining unit no representation
resulted at that time. I do not deem such a determination to be
dispositive of any issue arising here. Suffice it to say the
mutual agreement of the parties here and their practice
elsewhere to exclude Keyroom employees does not render
inappropriate an otherwise appropriate bargaining unit.7
Included in each of the employee files prepared for
checking was the signature, the usual personnel information,
and the work schedules. Files for employees on leave of
absence or sick leave were likewise included. All were arranged
alphabetically. A count was then made of employees on the
current work schedule, including those on layoff and sick
status and a total of 208 was arrived at.
Attorney Stein as spokesman for the Union, presented the
signed authorization cards to General Manager Siegel one by
one As he reviewed them Siegel would compare the signature
on the card with the one on the employee's application or on
the Income Tax Deduction Authorization, W-4. After satis-
fying himself that the comparison was accurate Siegel would
remove the employee file from the original file and place it in a
separate group consisting of those for whom authentic cards
had been presented. The card thus compared and accepted was
placed in a steel drawer provided for the purpose.
It appears that Stein had in the neighborhood of 140 to 150
cards in his possession as the comparison procedure began.
General Manager Siegel, upon checking certain of these cards
with the appropriate employee files, detected various discrep-
ancies. Some were dated more than six months previously,
others were for individuals no longer employed, others were
cards signed by supervisors, and still others were cards whose
signatures did not match the signature in the Company's files.
And finally there were instances where the employee file was
being sought for the purpose of comparison with a card and it
had already been placed with the special group for which cards
had been accepted, thus indicating that a duplicate authoriza-
tion card was under scrutiny Each card among those described
above was rejected by Siegel after individual consideration,
sometimes heated, by representatives of the Employer and the
Union. It was then returned to Attorney Stein who noted in
the upper left corner the reason for its rejection, initialed it,
and retained it in his possession. Siegel then counted the
acceptable cards that had been deposited in the steel drawer
and found them to total 98. Having arithmetically determined
that this did not represent a majority of the 208 employees in
the unit, General Manager Siegel so informed Union President
Siegel who expressed a belief that there were additional cards
in the Union 's possession which they like to present for
consideration. General Manager Siegel then stated that he was
returning to Chicago within hours but suggested that Club
6 The description of the card check which took place on August 1,
and continued on the following day, is a synthesis of the testimony of
David Siegel, William Siegel , Bert Laacks, and Attorney Ben Stein, all of
whom I credit , making due allowance for such minor inconsistencies as
are the normal result of the foibles of recollection and the passage of
time.
In this respect I further note that all of the foregoing findings and
those which follow relating to the Union 's organizational campaign, the
meetings between it and management, and the disposition of the
authorization cards following the card count, the personnel structure of
the Club, the history of its relationship with the Union and the
authenticity of documents verified by officials of the Club and the
Union, are based upon the credited testimony of these same individuals.
To the extent that any of such testimony is denied by other witnesses
appearing before me I reject such denials after full consideration.
7 Cf N.L.R.B v. Sagamore Shirt Co., 365 F.2d 898, 904 -905 (C.A.
D C.)
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Laacks would receive and verify the additional cards
and be in touch with him.
On the following day, Tuesday, August 2, the Union
representatives again met with the Employer's representatives,
minus William Siegel, at which time Laacks, pursuant to
Siegel's isntructions, compared ten additional cards presented
to him by Attorney Stein, using the identical procedure
followed on the previous day, as described above As a result
of this operation Laacks determined that eight of the ten cards
presented were the authentic cards of employees presently
employed in the bargaining unit and for whom no other cards
had previously been accepted. Laacks made no statement to
the Union representatives concerning majority status but he
did immediately communicate the information concerning
these additional cards to General Manager Siegel in Chicago.
Upon specific advice of counsel the employer made no list of
those among its employees who had authorized the Union to
represent them.
The record abounds in searching cross-examination and
extended discussion and argument, all directed to the possible
hazzards and intricacies of the August 1-2 card verification
procedure. Lest the intensity of advocacy confuse a proper
understanding of how this card counting operation was
executed and suggest hidden complications and legerdemain it
should be noted at this point, and I conclude and find, that
nothing in the credited testimony of the participants suggests
anything but a group of experienced and intelligent business-
men engaged in the most simple of clerical operations to the
end that they would visually match a specific group of files
with a specific group of cards, eliminating any which do not
match. I reject anything in the record, including the infrequent
failure on the part of otherwise credible witnesses to identify
specific cards, and the minor contradictions that emerged from
many days of testimony on the same subject, that would
suggest contrivance, misstatement, significant error, or lack of
reasonable care.
Thereafter, by an exchange of correspondence between
General Manager William Siegel and Union President David
Siegel dated August 3 and 5, respectively, the events and
results relating to the August 1-2 card authentication and
tally were reviewed, and upon the Union's assertion of
majority status based upon these results and its request for
recognition and bargaining, William Siegel, on behalf of the
Club, acknowledged the Union's majority status, agreed to
recognize it as representative of the employees in the pre-
viously determined bargaining unit and made tentative arrange-
ments for bargaining meetings, using as a basis for such sessions
the copies of an outstanding agreement presently in force
between the Union and The Restaurant League of New York,
Inc., an employer association of which the Club was not a
member.
Negotiations began forthwith and on October 21, 1966, a
Supplemental Agreement, the end product of these negotia-
tions, was executed by representatives of the Club and the
Union. By its terms the Supplemental Agreement was executed
pursuant to an outstanding National Agreement between
Playboy International and the Union and consisted of the
applicable terms contained in the International Agreement, its
own stated provisions, and the terms of the contract between
the Union and The Restaurant League of New York, wherever
applicable. Specifically the Supplemental Agreement provided
that it covered all employees of the Club with the exception of
Bunnies who are covered by the National Agreement and
"subject to Article V thereof."8
By way of explication for the record it was stipulated
among the parties that a local supplementary agreement, as
here, incorporates by reference and applies the terms and
conditions of the National Agreement insofar as Bunnies and
all other employees are concerned. To the extent, therefore,
that the local agreement thus incorporates the National
Agreement's Article V respecting Bunnies they are thereby
included in the unit and the National Agreement' s terms are
locally in force and effect. Article V of the National
Agreement as thus incorporated reads as follows:
ARTICLE V - Bunnies
Both parties agree that the classification of Bunnies is a new
one not presently maintained by the Union. All conditions
of employment, therefore, including wages, hours and
welfare benefits as to this classification will be exclusively
governed by the terms of this contract In all states whereby
virtue of a minimum wage law that is applicable, the
Employer shall pay to the Bunnies as wages, that sum
required by such law The parties recognize , however, that
the principal source of earnings by all Bunnies is the tips
paid to them by customers. The parties further recognize
that the Employer maintains a standard of decor, service,
entertainment and quality of food and liquor to make
possible substantial earnings from such tips. The Employer
agrees that the minimum earnings of all Bunnies in Class A
cities (as defined in Appendix A attached hereto) shall be
$90.00 per week, derived from a total of tips and salary
paid by the Employer to the Bunnies, and the Employer
further agrees that in the event that such total earnings fall
below $90.00 in any particular week, he will supplement
the earnings of such Bunnies sufficiently to bring the total
to the said guarantee of $90.00. In cities other than Class A
cities, the minimum earnings shall be 76.00 per week.
8 Considerable argument ensued on a proffered correction of a
pencilled interlineation on page two of the supplemental agreement
admitted into evidence Thus in the preparation of the document
and its execution Attorney Stein, in behalf of the Union , had sought
to clarify the coverage of Bunnies by including, by reference, the
terms concerning them in the National Agreement. The inter-
lineation as to the Bunnies "who are covered by the National
Agreement and subject to article III thereof" was written in. In a
colloquy at the hearing Stein invited my attention to article III in
the national agreement , indicating that it related to union security, a
subject completely irrelevant to the unit issue herein . He further
invited attention to article V, the one to which reference was
intended . This article, as quoted elsewhere herein , applies strictly to
Bunnies. Whereupon I was asked to permit the record to reflect the
correction from "Article III," to Article V." Counsel for the General
Counsel objected to this correction , insisting upon the right to
cross-examine Attorney Stein on the subject
I have carefully read the claimed erroneously written article III as
well as the claimed correct one, article V. It is obvious that the
suggested change is the proper one, referring as it does to Bunnies,
the article III subject matter having no relevance whatever to the
issue. Moreover, counsel for the General Counsel thereafter called
Attorney Stein as a witness but faded to question him concerning
the pencilled interlineation Under all these circumstances I accept
the change as requested and read the interlineation on page two of
the supplemental agreement as incorporating article V of the
National Agreement. Furthermore, in the absence of any evidence I
reject the gratuitous suggestion of counsel for the General Counsel in
his brief (pp 64-65) that the interlineation in the supplemental
agreement was itself made by Attorney Stein at a time subsequent to
the execution of the Agreement and that it was made "in an effort
to cover-up" the alleged earlier non-inclusion of Bunnies in the
contract , a status never established by evidence in the record.
PLAYBOY CLUB OF N. Y. 787
The guarantee of $90.00 or 76.00, as the case may be,
referred to above, is for Bunnies working the normal 5 day
work week, of 8 hours per day 40 hours per week. It is
recognized that there are some Bunnies who work lunch-
eons 5 days per week with approximately 4 hours of work
on each of such days and who work 8 hours on Saturday. It
is understood and agreed that the normal work week of
these Bunnies shall be 6 days with 30 hours of work. For
such Bunnies, the guarantee referred to above shall be
$67.50 per week in Class A cities and $57.00 per week in
other cities. Whenever a Bunny works less than a full week,
the aforementioned guarantee shall be proportionate. Any-
body called into work shall be credited with a minimum of 4
hours worked.
All guarantees referred to above are not guarantees after
all deductions other than deductions for payments to the
Union in accordance with the check-off provision of this
agreement and other than deductions required by law.
Anything in this Article to the contrary notwithstanding, in
no event shall the guarantee provisions be applicable to any
Bunny for a given work week where fifteen percent (15%)
of her gross billings as shown on the records of the
Employer for said week exceed the amount of the
guarantee. The above provisions shall not be applicable to
training given Bunnies prior to the opening of any establish-
ment After an establishment is opened, a Bunny shall
receive $1.25 per hour for training which shall not include
waiting on the public.
B The Disenchantment
The Union's organizing campaign, its recognition by the
Club as majority representative of the employees, and the
subsequent negotiations and resulting agreement between the
parties could find a counterpart in any one of the thousands of
usual labor-management situations which form the pattern of
our industrial fabric. But at some point in time here, however,
disenchantment or indeed outright objection to the relation-
ship has brought into question the mechanics and the
consequences of what is usually accepted as a typical fact of
labor relations life. Thus a vocal number of the waitresses
(Bunnies) decided they would have no part of the Umon nor
of the relationship created between it and their employer
Because their belated protests bring into question the legiti-
macy of the process by which majority recognition was
granted and a collective agreement reached it now becomes
necessary to explore the complaints of this dissident few to
assess the action taken in behalf of all of the employees.
At the outset it would be appropriate to note a fundamen-
tal principle, namely that where the Board's election and
certification processes are not involved, the recognition of a
union by an employer as the majority representative of his
employees and the process by which this is accomplished may
be presumed to be reasonable and legal unless and until the
contrary has been established. For were this not so the burden
of proving the absence of a majority would be removed from
the General Counsel, where it legally belongs, and imposed
upon the Respondents who in the very first instance would be
required to justify their actions by which majority recognition
was granted. Thus it is obvious that objections to the conduct
of parties who acquire or grant majority recognition in any
given form, including this one, may not be taken lightly In the
subdivisions which follow, therefore, I will attempt to analyze
the Employer and Union conduct which the waitresses
(Bunnies), Charging Parties in this proceeding, and the General
Counsel in their behalf, claim to constitute misrepresentation,
coercion, or skullduggery of such gravity as would consititute
interference with the employees by the Employer and the
Union, the granting by the Employer of unlawful assistance
and support to the Union, discrimination by it and, by the
Union, the causing or attempting to cause the Employer to
discriminate against the employees.
1. The signing of authorization cards
An essential element of the General Counsel's case is the
claim that Union authorization cards were procured from
employees in such a manner as to render them suspect and to
brand as coerced the majority which they were used to
establish. To this end 10 waitresses (Bunnies) were called as
witnesses to attest to the manner in which they were solicited
for signed cards.9 Of this group eight actually signed authoriza-
tions and the other two refused to do so. The testimony of
these people followed a definite pattern Each one told how
she was approached by one of the kitchen helpers or a busboy
(generally Juan or Pellegrino) during the weekend period
immediately before the card count. None who signed admitted
to having read the card before signing, although all of them
knew it was for a union. And, although all but two testified
they were in a hurry when approached, each said she was told
that the card was intended to help the other employees in the
Club and that signing it would not involve them.
Were I to accept the testimony of these people as I have
detailed it above it might well establish a pattern of misrepre-
sentation of sufficient gravity to justify the conclusion that the
majority, of which the cards are a significant part, was not a
free and uncoerced one. I cannot and do not believe it. On the
contrary, I am convinced by the repetitive, mechanical
testimony of these people, by their attitude as witnesses, and
indeed by the efforts expended to procure their testimony' 0
that the accuracy of their testimony leaves much to be desired.
I therefore reject it.
Illustrative of the testimony and demeanor upon which I
base my conclusion are the following
Employee Terry Jennings was very precise in detailing the
circumstances of the card signing, even to the location, the
conversation and the name of the solicitor. She was not as
precise as to the date upon which the event occurred. In fact
she could not be sure of it by relating it to when she went on
vacation to Mexico. Indeed she could not say exactly when she
was in Mexico-"I said that by the end of June or the end of
July I became unemployed, that I was in Mexico on August
1." When records were checked in an effort to refresh her
recollection of the exact date she recalled that she left for
Mexico on August 5, having worked through July 30. It occurs
to me that a witness who has such difficulty placing the time
of her Mexico vacation should not be expected to recall the
details of hurriedly signing a card which she claims did not
9 These were Moseman, Jennings , Licata, King , Schweighardt,
Clark, Budrick, Kisshng, Laird, and Adams.
10 There is ample indication in the record of the amount of time
spent waiting for specific waitresses ( Bunnies) to appear in answer to
subpoenas . Many were late, others failed to appear at all, and on one
occasion an adjournment was taken for the enforcement of subpoenas.
See infra
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"involve" her. But she was most explicit in the details of the
card incident, even as she was vague in whatever else she had to
say. This anomaly impels me to reject her testimony generally,
and I do so.
Employee Anna Licata readily indentified two cards which
she signed, a second one having been required, she said,
because she first wrote in an address that was not the same as
the one entered in the Company files. She was most explicit as
to all the conversation attendant upon the signing, including
conversations between herself and Pellegrino, the card solici-
tor, concerning the date to be placed on the card. From that
point on in her testimony Miss Licata indulged in a series of
vagaries that visably taxed the patience of all participating in
the hearing. Upon this conduct alone I have no alternative but
to conclude that throughout her examination and cross-
examination she was seeking to obfuscate the record as it
related to critical dates.
These circumstances, the "pat" answers by which she
described why she had signed a card (identical to answers
supplied by the other Bunnies), her accurate recollection of
matters not in issue, and her general attitude compel me to
reject her testimony.
Employee Denise Schweighardt's testimony likewise sug-
gests adherence to a "pattern" answer. Thus when first asked
to describe the circumstances under which she signed her card
she stated
Well, it was during the day while I was working the day
shift, and I signed a card after employees of Playboy Club
approached me asking me to sign for their benefit so that
they could get a union into the Club.
Later, when reference to the incident was made, she replied:
This is not their exact words, but they said they wanted me
to sign so that they could have a union and if I signed they
only needed a few more in order to get a union for
themselves.
Her earlier answer quite accurately, I find, describes the
purpose of the cards, namely, the employees of the Playboy
Club wanted a union for themselves. But by her second answer
the witness injects the element of helping the busboys get their
union-the stock phrase used by the Bunnies who testified.
Considering this adherence to pattern and the insistence of a
college educated young lady that she had neither read what she
signed nor knew what it meant I reject her testimony as
contrived.
To this point I have described what I believe to be an effort
by the Bunnies who testified to use a "pattern" explanation-
that the card was to help the busboys to get a union.
Employee Elizabeth Clark's testimony which I credit in this
respect establishes, as far as I am concerned, the unreliability
of the others' testimony. Thus, Miss Clark, a college graduate
with honors, who gave the impression of being a very
intelligent and knowledgeable person, refused to sign the card
because she read it and knew she would be designating a union
to represent her. On cross-examination she conceded that there
was quite a bit of conversation among the girls on this subject
at the time, that she had expressed her views to other Bunnies,
and that others had refused to sign the cards. Thus it would
appear that even granting, ex arguendo that the Bunnies were
told that signing the cards would not involve them, the simple
fact is that they knew better, and that throughout the hearing
before me they were seeking to give the impression that they
did not.
Jan Adams, employed as a waitress (Bunme) during the
summer of 1966, explained the details of her card signing in
the usual form-that she was in a hurry, that it was to help the
busboys, and that she was told that she would not be involved.
She also testified she had no idea at the time what union she
had signed for. Between that time and August 19, she must
have learned, however, for on that date she signed an
authorization card for another union, Local 202 Teamsters,
"because I did not want Local 1 and I wanted to be in Local
202." Later in her testimony she stated that it was not until a
meeting of the Bunnies in January 1967 that she first knew
that the original card she signed was for Local 1 Then, in an
effort to extricate herself from the contradiction, she ex-
plained that the reason why she had signed the Teamster card
was "because we were afraid there were more Bunnies than we
had thought that had signed that card," referring to the
original card for Respondent Local 1
Two conclusions are obvious from Miss Adams' testimony:
It highlights again the unreliability of the "standard" account
of the card signing, and it suggests a possible reason for this
whole dispute-that the Bunnies were trying, even by joining
the Teamsters, to extricate themselves from the Respondent
Union which they had initially designated. While this latter
conclusion is not important to the issues presented here, the
Teamsters' interest in the Bunnies never having been explored,
it does provide further basis for my conclusion that the
seemingly corroborated description of the card signing incident
was fabricated
In the same category is the testimony of Employee Marlene
Laird whose account of the signature solicitation followed the
same pattern of haste, help for the busboys, and non-involve-
ment of Bunnies. Continually referring to the Union authoriza-
tion card as a "pledge card" Miss Laird, who never signed a
card, and insisting she refused because she did not want to be
bothered, testified on cross-examination concerning her inter-
est in the Union, "I asked management many times whenever I
was talking with the girls about the Union, it would be on my
mind, and when I would run into someone I would ask them,
if they were management." But at a later point in her
testimony, when asked what was her complaint with the Union
(Local 1), she replied "we never heard of them until January."
In the face of such contradictory testimony, as well as the
confusion which she manifested on the witness stand, I place
no reliance upon Miss Laird's account of the card signing
incident.
While the foregoing discussion does not exhaust the record
of the contradictions and vagueness in the Bunnies' testimony
it does suggest that throughout this maze of confusion the
manner in which their respective authorization card signatures
were solicited was not exactly as described by them. Added to
this estimate which I have made, and quite apart from it, the
demeanor of this group of witnesses, the Bunnies who
testified, and, if I may, the general impression created by those
who did not, deserve some further comment.
An attitude of flippancy prevailed among the Bunnies who
testified, particularly in their answers to questions pre-
pounded. Nor did they manifest, individually or as a group, the
modicum of respect or concern for the seriousness of the
occasion that is usually evident among individuals called upon
to testify under oath. Similarly the record will substantiate
that a considerable amount of time and effort was expended
repeatedly in attempting to locate Bunnies who had failed to
PLAYBOY CLUB OF N. Y. 789
appear in response to subpoenas. Indeed, at one juncture, after
an extended search for missing witnesses bore no fruit the
hearing was adjourned for several months for the purpose of
obtaining court enforcement of subpoenas served upon the
missing witnesses.11 In all, therefore, little in the demeanor of
the bunnies who testified, and less in the contradictions
enumerated above, would inspire the confidence required for a
finding that the testimony was credible I accordingly reject so
much of the testimony in the record that would suggest that
the Bunnies signed Union authorization cards with the stated
understanding that they were not thereby designating the
Union as their bargaining representative
2 The dated and undated cards
It appears from an inspection of a number of cards
admitted into evidence that the date was written in a different
handwriting, or at least in a different color in ink. Counsel for
the General Counsel called a number of witnesses to testify as
to the date upon which they signed the cards, the suggestion
being that employees signed cards after the card count which I
described earlier (supra) and that in some unexplained fashion
the cards were predated to reflect that it had been counted.
Other cards identified by signers bore no dates and were also
singled out to establish the same variety of alleged misconduct.
The several instances raised by the General Counsel are
considered at this point.
Employee Jack Abrams' card was undated. He first testified
that he signed the card in September and then stated "it could
have been in August." In an effort to determine whether he
actually signed the card before or after the July 30 work
stoppage he was examined at considerable length. Although
the witness ended up by saying that the signing was before the
stoppage his testimony was so vague and his recollections so
poor that even this particular testimony would be worthless to
determine precisely when he signed his card. A former
employee and Bartenders Union's solicitor, Robert Friedman,
was called as a witness to substantiate the late signing of
Abrams' card. Friedman was equally vague as to the time when
the cards were signed. It was, he said, one, two, or three
months after he had solicited the other bartenders to sign
cards. As he testified that he commenced soliciting bartenders
in April 1966 Abrams' signature could have been procured in
May, June, or July-or, if we believe Abrams himself, in
August or September. In any event, there is no indication that
it was counted for the majority, particularly since no one
denies the possibility of its lateness.
Employee Anna Licata's testimony presented no less
confusion as to when she signed the card than why she signed
it (supra). Actually she signed two cards and nothing on either
one would indicate that it was misdated, the dates being July
31, 1966, and August 2, 1966. I will not accept Miss Licata's
already discredited testimony (supra), to impeach an otherwise
acceptable card.
Employee King identified her signed authorization card but
denied the date was written in her handwriting. Quite apart
from the fact that it was not shown by counsel for the General
Counsel that the card was used in the card count I am not
disposed to accept as rebuttal of the inscribed date the lack of
further evidence as to when the card was signed, regardless of
who may have put the date on there. This is particularly so
since the witness acknowledges it is her own signed card.
Employee Alexander Borden's card bears the date 7/30/66
which does not appear to be in his handwriting. Borden was
questioned extensively as to when he signed the card. His
testimony and recollection was so vague, confused and
contradictory that no conclusions as to the date of the signing
could possibly be drawn from it. In the absence of contrary
testimony I am not disposed to accept counsel for the General
Counsel's premise that the card must therefore have been
deliberately misdated and that Borden must necessarily have
signed it after the card count. Such a conclusion would be a
non sequitur in its pristine form.
And finally Employee Irene Holmes identified her signed
card but did not remember the date on which she signed it,
although the card bore the date 7/30/66 in the same red ink as
was used by Miss Holmes in filling out the rest of the card In
an effort to fix the time of the signing of the card and to
establish that it was signed, not on the date indicated, but after
recognition, counsel for the General Counsel sought to elicit
testimony to that effect from Miss Holmes. Apparently she
had stated in an earlier affidavit that the card solicitor had told
her that "the Union was in", i.e., recognition had already been
granted. Miss Holmes was not disposed to testify in this
manner at the hearing and it was only after repeated references
to her earlier statement, and after she had read and reread it
several times that she finally testified to the fact in answer to a
leading question. Similarly there was a discrepancy between
her testimony and her earlier statement as to how many days
elapsed before she filled out and returned her authorization
card after first receiving it. In the light of the hesistant and
vague testimony gleaned by the continued refreshing of her
recollection I reject her testimony.
Upon consideration of all of the incidents of alleged
mistaken or contrived dating of signed union authorization
cards, and upon consideration of cards submitted which did
not contain dates, I am persuaded that there is no credible
evidence in the record that any card was mistakenly or
deliberately misdated. 12
C. Analysis and Conclusions
"If an employer takes reasonable steps to verify union
claims, themselves advanced only after careful estimate ... he
can readily ascertain their validity and obviate a Board
elections ."r 3 This, despite the abundance of rhetoric, is the
sole issue in this case. And upon it hinges a broader question:
Must employers and unions who have complied with the
Supreme Court's norm thereafter coexist in the shadow of
some individual or group dissenter's potential to raise a belated
impediment.
11 One illustration of this general attendance situation is reflected
by the efforts, on the record , to procure the testimony of Witness
Elizabeth Clark. Thus the record reflects that at 11 a.m. on July 5, 1967
counsel for the General Counsel announced that Miss Clark and five
other named Bunnies under subpoena to testify had failed to appear and
could not be located Later in the day, upon being located, Miss Clark
advised counsel by telephone , and apparently for the first time, that she
had not appeared because she was leaving for Montreal later in the
afternoon . In her testimony eventually given in mid -September Miss
Clark confirmed her departure for Montreal on July 5.
12 Whether any such cards or any not containing a date was or was
not used in the card count is a subject that I find unnecessary to
consider in this context but will discuss hereafter (infra).
13 International Ladies' Garment Workers' Union , AFL-CIO v.
N.L.R.B and Bernhard-Altmann Texas Corporation , 366 U.S. 731,
739.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Bernhard-Altmann case the Supreme Court, while
eliminating good faith as a determinate in an employer's
recognition of a union's majority status, underlined the need
for an exercise of reasonable care. Thus, without any reference
whatever to an employer's good faith beliefs and conduct, it
would require "responsible negotiators to be careful, by
cross - checking, for example, well-analyzed employer records
with union lisitngs or authorization cards."' 4
At the outset it is important to note that insofar as the
mechanics of the recognition of the Union by the Club is
dispositive of the issue herein I have already found as a fact
that this reasonable care required by the Court has been
exercised. Thus, by the credited testimony of those who
participated in the card checks, Messrs. W. Siegel, D. Siegel,
Laacks, and Stein, the mechanics and the details of the
operation have been shown to be precise and efficient. And in
such elements as the checking and handling of duplicates and
individuals no longer employed I am satisfied that it was
completely foolproof as well. Having thus satisfied myself as to
the care and efficiency of the operation and as to the
truthfulness of those who performed it I see no reason why I
may not rely with equal finality on their testimony as to the
outcome of this operation, the final score.
At least four credible witnesses have testified that they
personally attended a count of cards that disclosed a majority
of 106 out of 208 employees in the bargaining unit. Once I
have satisfied myself that this testimony may be believed I see
no reason why those truthfully attested the incident must be
required to go out and seek documentary substantiation for
what they have truthfully asserted.
Upon this premise the production of the cards used in the
count would not only be an exercise in redundancy, but would
be an added burden on union employees. Here it would be a
burden to expect the Union, or any union anywhere, to
preserve intact and for some indefinite future period of time
each authorization card ever used to determine the majority
status, awaiting the voicing of some unexpected complaint
When such a complaint was first voiced here in January 1967,
for example, officials of the Union and the Club were
summarily directed (1) to produce all the cards used in the
card count eight months previously, and (2) to identify card
by card the ones used to make the determination. Understand-
ably they could do neither, for no one was ever on notice at
any earlier time that such cards would become germane on
some possible future date. Of the cards produced pursuant to
subpoena at the hearing many of them were identified by
either markings, signature identification, or circumstantial
surmise, as cards used in the count, whereas many other cards
could not be so identified. But at no point could anyone say,
"These are all the cards that there were." And by the very
nature of card count proceedings generally no one could be
expected to be more definite.
Suffice it to say that no card shown to have been counted
has been established to be spurious. 15 The credited testimony
relating to the count and the recognition, however unsubstan-
itated by the production of documentary evidence, stands
unrebutted, and, for the foregoing reasons, I conclude and find
that the Club's recognition of the Union on August 5, 1966, as
the majority representative of its employees was based upon an
14 Supra.
15 In the course of the hearing I refused to admit into evidence any
authorization card that either (1) could not be identified by the signer
or (2) could not be shown by competent evidence to have been counted
as part of the card check . Because I see no established relevance
accurate card check which disclosed that a majority of the
employees had selected the Union to represent them.
Having concluded that the evidence supports the recognized
majority status of the Union there remains for consideration
only a determination of the character of this majority status.
General Counsel claims that because of the manner in which
the Bunnies were solicited for authorization card signatures,
and by virtue of the alleged misdating of some of the cards the
majority was a tainted and coerced one. I find nothing in the
credited testimony to support either conclusion
Elsewhere in this decision I have considered the testimony
of the ten Bunnies who testified before me Nothing in their
individual or collective testimony has persuaded me that they
were duped into signing union authorization cards. In the light
of this I previously concluded that the mechanically repeated
reasons given by these girls in their testimony failed to provide
a true estimate of the circumstances under which they selected
the Union to represent them. I reiterate that conclusion now.
Moreover, even were I to believe that each was approached
hurriedly and beseeched to sign a card that would not involve
her but would help the busboys I would still have no
alternative but to conclude and find that each had knowingly
and willingly selected the Union as her representative. The
Board has most recently considered a situation where cards
were signed on the misrepresentation that every other em-
ployee had signed. It concluded that "statements of this type
are immaterial in determining the validity of authorization
cards, even when signed in reliance thereon. Such statements
are harmless sales talk or puffing, which do not operate `to
overcome the effect of ... [the employees'] overt action in
signing' " (cases cited).' 6 And quite apart from the substance
of what was told the signers, what was understood by them has
received judicial consideration. Thus in Joy Silk Mills v.
N.L R.B. 1 7 the court noted that "an employee's thoughts (or
afterthoughts) as to why he signed a union card, and what he
thought that card meant cannot negative the overt action of
having signed a card designating a union as bargaining agent." I
therefore conclude and find that nothing in the manner in
which the Bunnies were solicited for union authorization
cards, even if it had occurred as portrayed in the testimony,
would constitute a form of misrepresentation to intelligent
young women that would amount to such coercion as would
destroy the Union's majority status.
The dating of the cards and the existence of cards without
dates presents the same question in a different form. In essence
this allegation, as well as the previous one involving the alleged
misrepresentations, presents for resolution issues which have
been completely distorted by faulty logic. Thus it is claimed
that because cards are undated or misdated and have been
identified as having been signed by employees in the bargaining
unit it therefore follows that these are the cards that were used
in the card count and that the card count is therefore
improper, No one, however, has ever identified the cards used
in the count, excepting those specifically marked as "repeat"
or "not employed." Under such circumstances the only
conclusion that flows from the undated or allegedly misdated
cards is the presumption that if they were not signed before
the card count they obviously could not have been counted.
For if for some unexplained reason it could be shown that
between such cards, individually , and the process by which majority
recognition was granted, here I renew my ruling rejecting these cards.
16 G and A Truck Line, Inc., 168 NLRB No. 106.
17 185 F.2d 732, 743 (C.A. D.C.).
PLAYBOY CLUB OF N. Y. 791
such cards were in existence at this time, it has already been
concluded upon credible evidence that all cards were carefully
inspected and checked for signatures in the counting procedure
on August 1 and 2. To belatedly rely now upon these patently
unreliable cards would place everyone in the ridiculous
position of saying that on a given day cards were used that did
not exist. I am satisfied with the more reasonable conclusion
that the corroborated testimony establishes that on two given
days, August 1 and 2, cards were used that were properly
authenticated, signed, checked and verified against current
payrolls. In so doing I reject the suggestion, contrary to this
credited testimony, that the cards used in the card check were
augmented by additional ones in altered or incomplete form at
some time after the August 5 recognition.
In summary I would reflect upon the credited testimony of
the officials who participated in the card count and that of the
Club officials, W. Siegel and Laacks who recognized the Union.
A synthesis of this testimony discloses the reasonable care
required by the Supreme Court in such matters' 8 and a
complete absence of a "prefunctory ... investigation of the
Union's claim of majority."' 9 I would accordingly reject so
much of the Complaint as alleges that the recognition of the
Union and subsequent execution of a collective agreement
which included the Bunnies constituted unlawful support and
assistance by the employer, in violation of Section 8(a)(2) of
the Act, and restraint and coercion of employees by the
Union, in violation of Section 8(b)(1)(A).
It is alleged and the evidence supports the allegation that
the agreement executed on October 21, 1966, and referred to
herein as the Supplementary Agreement, which covered the
Playboy Club's employees including Bunnies, included a
provision which required that these employees acquire or
maintain, as the case may be, membership in good standing in
the Union as a condition of continued employment. As I have
already concluded and found that the Union was properly
recognized and that the execution of the contract was proper
in all respects, thus negating any manifestation of unlawful
conduct, the union security provisions contained in the
contract are quite legal and proper. I would accordingly
dismiss so much of the Complaint as alleges this contract
provision and the maintenance of it to be discrimination in
violation of Section 8(a)(2) and (3) and the causing or
attempting to cause discrimination in violation of Section
8(b)(1)(A) and (2).
Finally it is alleged that by certain conduct involved in the
calling of a meeting of Bunnies on January 16 and 17, 1967,
the Club and the Union engaged in further unlawful conduct
On these dates, it is clear, a Bunny meeting was called and
after prefunctory remarks and introductions by representatives
of management, the Union officials, specifically President
David Siegel and Union Representative Pola, spoke. The
substance of the remarks was that as representatives of the
Bunnies the Union officials wanted to talk with them, learn of
their complaints and discuss them with them, and discuss what
could be done generally in their behalf. It is clear from all
testimony that the Bunnies were not receptive to the Union's
offer of assistance and responded accordingly. The meeting
terminated in an atmosphere of tantrum and pandemonia.
Having concluded that the Union had been designated by
the Bunnies as their representative, and the Club having
recognized it as such there is nothing improper in the
circumstance of the Club calling a meeting of the employees to
meet with their duly designated and recognized bargaining
representative. I accordingly would dismiss so much of the
Complaint directed to this particular conduct which has been
alleged to be employee interference, restraint or coercion,
assistant or sponsorship of a labor organization, discrimination
against employees, or the causing or attempting to cause such
discrimination, all alleged to have been in violation of Section
8(a)(1), (2), and (3) and 8(b)(1)(A) and (2).
RECOMMENDED ORDER
It is recommended that the Complaint in this matter be
dismissed in its entirety.
18 International Ladies, Workers' Union, AFL-CIO v N.L.R.B. and
Bernhard-Altmann Texas Corporation , supra.
19 The Grand Union Company, 122 NLRB 589, 603.