Sahara Las Vegas Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1987

284 N.L.R.B. 337 (N.L.R.B. 1987)

SAHARA LAS VEGAS CORP. 337
Sahara Las Vegas Corp. and General Sales Drivers,
Delivery Drivers & Helpers, Local No. 14, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Gordon L. Nicholson
and Ricardo Atilano. Cases 31-CA-12438, 31-
CA-12478, 31-CA-12587, 31-CA-12714, 31-
CA-12790, 31-CA-13065, 31-CA-13233, 31-
CA-13257, 31-CA-12530, and 31-CA-13078
19 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 29 March 1985 Administrative Law Judge
William L. Schmidt issued the attached decision.'
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision and a reply brief to the
Respondent's exceptions.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 3 and
conclusions,4 to modify his remedy, 5 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sahara Las
1. The judge issued a correction of the case caption on 2 April 1985.
2 The Respondent filed with its exceptions an "Appendix" containing
various documents that were not submitted into evidence at the hearing.
The General Counsel has moved to strike the Appendix. Because there is
no allegation or showing that such documents are either newly discov-
ered evidence or previously unavailable evidence they are not properly
part of the record and have not been considered by the Board.
3 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
4 We adopt the judge's conclusion that the Respondent violated Sec.
8(aX5) by delaying its recognition of the Union for 90 days. In so doing,
we do not rely on his discussion of the discontinuation of line bets for
dice dealers. As the Respondent asserts in its exceptions, that change was
contained in the 18 and 19 August 1982 wage and benefit memorandum.
Nonetheless, whether or not the Respondent made unilateral changes be-
tween August and November 1982, its refusal to recognize the Union
during that period remains unlawful.
Further, the Chairman in adopting the judge's conclusions that the em-
ployee dischages violated Sec. 8(a)(3), does not rely on the judge's find-
ings that the Respondent's bargaining proposals are indicative of its un-
lawful motive.
5 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621
284 NLRB No. 34
Vegas Corp., Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Ann Reid Cronin and David R Tajgman, Esqs., for the
General Counsel.
Norman H Kirshman, Esq. (Richards, Watson, Dreyfuss &
Gershon), of Los Angeles, California, for the Respond-
ent
Robert J. Dambro, of Las Vegas, Nevada, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This matter was heard over 14 days between November
15, 1983, and December 12, 1983, and on an additional
day, September 20, 1984. The cases were initiated by the
charges listed in the caption filed by the two named indi-
viduals and General Sales Drivers, Delivery Drivers 7
Helpers, Local No. 14, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Union); the formal proceeding
is based on a fifth consolidated amended complaint
issued by the Regional Director for Region 31 of the Na-
tional Labor Relations Board (Regional) on behalf of the
General Counsel. The complaint alleges that the Sahara
Las Vegas Corp. (Respondent) violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act by vari-
ous acts described more fully below between August 20,
1982, and July 30, 1983. 1 By an answer dated November
11, 1983, the Respondent admitted certain allegations of
the complaint and denied others, including all of the al-
leged unfair labor practices. In addition, Respondent's
answer alleges affirmatively that as the Union failed to
comply with the requirements of Chapter 463.A.010, et
seq., of the Nevada Revised Statute (NRS), the Respond-
ent is relieved of any obligation under the Act to recog-
nize and bargain with the Union as the exclusive repre-
sentative for its gaming casino employees. The answer
also alleges affirmatively that the names of seven termi-
nated employees listed in the complaint were never al-
leged in any unfair labor practice charge served on Re-
spondent and, accordingly, the complaint allegations per-
taining to those individuals are barred by Section 10(b)
of the Act.2
On the entire record in this matter, my observation of
the witnesses as they testified at the hearing, and my
The fifth consolidated amended complaint also alleged Consolidated
Casinos Corporation, Sahara Division (consolidated or Del Webb) as a
Respondent in Case 31-CA-12353, a charge filed by the Union. At para-
graph 20 of the complaint it was alleged that Consolidated engaged in
various acts and conduct in degradation of its duty to bargain with the
Union between April 12, 1982, and July 15, 1982 Early in the hearing,
Consolidated, the Union, and the General Counsel concluded the terms
of an informal settlement agreement that was subsequently reduced to
writing, executed by all parties, and approved by me on December 7,
1983. Thereafter, Case 31-CA-12353 was severed from the remainder of
the proceeding. A copy of the approved settlement agreement is hereby
entered in the record of this proceeding as ALT Exh. 2.
2 In its brief, the Respondent abandoned this later defense in this pro-
ceeding.
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
careful consideration of the posthearing briefs filed by
the General Counsel and the Respondent, as well as the
oral argument made by the Union at the conclusion of
the hearing, I make the following
FINDINGS OF FACT
L JURISDICTION
It is admitted that the Respondent, a Nevada corpora-
tion, has continually operated the Sahara Hotel and
Casino in Las Vegas, Nevada, since August 20, 1982. It
is also admitted that the Respondent annually purchases
and receives goods or services valued in excess of
$50,000 directly from suppliers located outside the State
of Nevada and that it annually derives gross revenues in
excess of $500,000 from the course and conduct of its
retail business operation. On the basis of the foregoing, I
find that the Respondent is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act. I further find
that it would effectuate the purposes of the Act for the
Board to assert its jurisdiction over the labor dispute de-
scribed below.
IL THE LABOR ORGANIZATION INVOLVED
It is admitted, and I fmd, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Overview
The Sahara Hotel and Casino (Sahara) is located on
Las Vegas Boulevard South, in Las Vegas, Nevada, an
area commonly referred to as the "Las Vegas Strip" or
simply "The Strip." The Sahara is one of the major Las
Vegas hotel and gaming casino establishments.
Although the employees engaged in the hotel, food,
and beverage operations have been organized for a
number of years, there is practically no history of collec-
tive bargaining among the casino employees in Las
Vegas notwithstanding the fact that the gaming industry
is the city's preeminent business. Indeed, insofar as the
record here shows the only casino employees presently
represented for purposes of collective bargaining are
those employed at the Frontier Hotel and Casino and, as
described more fully below, those employed at the
Sahara.3
Organizational efforts among the Sahara casino em-
ployees commenced in approximately June 1980, when
the Sahara was operated by Consolidated, a subsidiary of
the Phoenix, Arizona based Del Webb Corporation. This
3 The Board-conducted election at the Frontier was held on February
7, 1981, and the Union was subsequently certified having received an
overwhelming endorsement in the election. Thereafter, that employer
sought to test the certification in an unfair labor practice proceeding. The
Board rejected that employer's contentions and ordered the employer to
bargain. Frontier Hotel, 266 NLRB No. 155 (1983) (unpublished), enfd. in
an unreported opinion of the Ninth Circuit. Subsequent to the court's en-
forcement of the Board's Order, a writ of certiorari was sought in the
U.S. Supreme Court in that matter. Frontier Hotel a NLRB., No. 83-
2026. The petition for that writ was dismissed September 17, 1984.
organizational effort culminated in a NLRB election su-
pervised by the Regional Director for Region 31 on Oc-
tober 25, 1980. There were approximately 475 employees
eligible to vote in that election; 426 ballots were actually
cast. Of thOse voting, 279 voted for representation by the
Union, 124 voted against representation, and 23 ballots
were challenged, a number insufficient to affect the out-
come of the election. Following the election, timely ob-
jections were filed by Consolidated. A hearing was even-
tually held concerning the objections but they were ulti-
mately overruled in their entirety. On March 29, 1982, a
Supplemental Decision and Certification of Representa-
tive was issued in the Sahara representation matter (Case
31-RC-4841) wherein the Board certified the Union as
the exclusive representative of the casino employees at
the Sahara. 4 Following the Union's certification, Con-
solidated refused to recognize and bargain with the
Union. This action culminated in the filing of an unfair
labor practice charge on April 15, 1982, in Case 31-CA-
12064 alleging that Consolidated had refused to bargain
since about April 12, 1982. Following the issuance of a
complaint and filing of an answer thereto by Consolidat-
ed, the General Counsel moved for summary judgment
in that case. On September 30, 1982, the Board granted
the General Counsel moved for summary judgment in
that case. On September 30, 1982, the Board granted the
General Counsel's motion and entered an order requiring
Consolidated to recognize and bargain with the Union.
See Consolidated Casinos Corp., 264 NLRB No. 92 (1982)
(not printed in bound volumes).
There is evidence that the Union's organizational cam-
paign among the Sahara casino employees received
widespread publicity in the Las Vegas news media. Spe-
cifically, there is evidence that one of the organizational
meetings held at the home of 21-dealer Gloria Nelson
was covered by the news department from one of the
Las Vegas television stations and other evidence suggests
that the print media in Las Vegas reported a number of
stories concerning the organizational efforts as well as
the election. A number of the witnesses called by both
the General Counsel and the Respondent in this case ac-
knowledged familarity with the media coverage of the
Sahara organizing drive. Similarly, it appears that there
was extensive media coverage of the Union's poll in late
August 1982 of the willingness of the Sahara casino em-
ployees to engage in strike action against the Respondent
discussed in more detail below.
In the meantime, at least some of the management offi-
cials at the Hacienda Hotel and Casino (the Hacienda)
began to hear inside rumors that Paul Lowden, the prin-
cipal stockholder and chief executive officer at the Haci-
4 Specifically the unit in which the Umon is certified is as follows:
All gaming casino dealers including keno writers, keno runners,
twenty-one dealers, crap dealers, bacarat dealers, shills, poker deal-
ers, pan dealers, poker and pan shills and shill dealers, extra board
dealers and oriental games dealers employed by [the Sahara]; exclud-
ing all other employees including casino shift nianagers, assistant
shift managers, pit bosses, pit floormen, boxmen, slot shift supervi-
sors, floormen, slot mechanics, booth cashiers, change girls, casino
cage cashiers, slot cage cashiers, coin counters and wrappers, pit
clerks, credit clerks, office clencal employees, guards and supervi-
sors as defined in the Act, as amended
SAHARA LAS VEGAS CORP. 339
enda, was involved in discussions with representatives of
Del Webb concerning the purchase of the Sahara. By at
least March 1982, representatives of Del Webb and
Lowden were engaged in extensive negotiations for the
sale of the Sahara to the Lowden. Those negotiations cu-
liminated in the execution of a purchase and sale agree-
ment on May 3, 1982, between Paul Lowden, as buyer,
and Sahara Nevada Corporation (another Del Webb sub-
sidiary) and Consolidated, as seller.
Extant labor relations matters were significant part of
the complex purchase-sale agreement; Exhibit M of that
purchase-sale agreement lists seven collective-bargaining
agreements in effect between the Sahara and a variety of
labor organizations (which Lowden apparently agreed to
assume) as well as variety of unresolved unfair labor
practice complaints and employment relations claims
pending against the Sahara as of April 6, 1982. Subse-
quently, on August 20, 1982, the Respondent and Sahara
Nevada Corporation and Consolidated Casino Corp., as
buyer and seller respectively, entered into an amendment
of some 11 pages in length to the purchase-sale agree-
ment wherein the buyer agreed to indemnify the seller
for a variety of claims, litigation, and obligations arising
from the employment contracts, unfair labor practice
complaints, and other employment claims listed in Exhib-
it M of the original purchase-sale agreement executed on
May 3.5 Between May 3 and August 20, 1982, the
charge in Case 31-CA-12353 was filed by the Union
against Consolidated but it is clear that the purchase-sale
documents were never amended in any manner to refer
to this charge. There is a dispute about whether any
agent or representative of the Respondent was ever
orally advised of the existence of this charge prior to the
closing of the transaction represented by the May 3 pur-
chase-sale agreement on August 20, 1982.
With a few exceptions the unfair labor practice matters
listed in Exhibit M of the purchase-sale agreement per-
tain to a consolidated proceeding heard by Administra-
tive Law Judge Clifford H. Anderson during 19 days of
trial in the months of March, April, and May 1982. The
General Counsel's allegations in that consolidated pro-
ceeding can be roughly separated into two categories: (1)
various statements and interrogations alleged to be un-
lawful under Section 8(a)(1) of the Act that occurred
during the course of the flowing from Consolidated's use
of polygraph examinations administered to approximately
565 casino employees in October 1980. In his decision,
Judge Anderson concluded that Consolidated had en-
gaged in a variety of unfair labor practices in violation of
Section 8(a)(1) of the Act during the organizing cam-
paign and that it had unlawfully discharged a number of
employees who had sought the presence of a representa-
tive during the course of the interviews leading up to,
and including, the polygraph examinations. Judge Ander-
son essentially rejected the General Counsel's alternate
contention that Consolidated had initiated the polygraph
process because of the employees' union activities, or the
5 The record is not clear as to the manner in which the Respondent
succeeded to Paul Lowden's contingent interest as an individual in the
Sahara resulting from the purchase-sale agreement but there is no issue
pertaining to that point However, it appears that Lowden is the Re-
spondent's controlling management official.
pending election, and had manipulated the polygraph ex-
aminations so as to cause the discharge of known, or sus-
pected, union supporters. Instead, Judge Anderson con-
cluded that the polygraph examinations resulted from a
long pending investigation of an alleged cheating scam
involving Sahara supervisors, dealers, and players that
had been conducted by the Nevada State Gaming Con-
trol Board with the cooperation of the Sahara. 6 On June
13, 1983, the Board affirmed the findings of Judge An-
derson and ordered Consolidated to take the action set
forth in Judge Anderson's recommended Order. See
Consolidated Casinos Corp., 266 NLRB 988 (1983).
The principal significance here a the so-called poly-
graph case heard by Judge Anderson from the General
Counsel's view is that at least one employee alleged to
be a discriminatee in this case was found to have been
unlawfully interrogated, other alleged discriminatees
herein testified that they participated in that proceeding,
and yet others alleged as discriminatees herein asserted
that they attended the proceedings, all of which provides
a part of the basis for the General Counsel's argument
that some of the alleged discriminatees here were known
union adherents and activists, at least as far as Consoli-
dated was concerned. From the Respondent's perspec-
tive, the events for its claim that the Sahara casino was
known about Las Vegas as a losely run and poorly su-
pervised operation justifying strict adherence to the rules
and procedures implemented when it acquired the
Sahara.
In the period between the execution of the purchase-
sale agreement and August 20, 1982, the buyer under-
took to secure a gaming license from the Nevada
Gaming Commission to operate the Sahara casino. Fol-
lowing that approval, steps were quickly taken to close
the transaction and assume control of the Sahara. Pend-
ing that approval, Leo Lewis, an executive hired by the
buyer, maintained an office on the premises of the
Sahara. Lewis' primary function was to familiarize him-
self with the Sahara operation and to make plans for an
orderly transition of ownership and operation. Among
other matters, Lewis undertook to review the executive
staffing as most of the executives employed by Consoli-
dated were terminated effective with the assumption of
control by the Respondent. One notable exception to the
executive housecleaning was Consolidated's personnel di-
rector, Tom Peacock.
On August 19, 1982, the Nevada Gaming Commission
licensed Lowden for the operation of the Sahara casino
and steps were promptly taken to close the sale agree-
ment. On August 17, 1982, Attorney Norman Kirshman
and a local attorney representing the Respondent met
6 Judge Anderson's decision reports as follows concerning that investi-
gation.
The investigation focused on suspect activity in the 21 and craps
area and involved a wide variety of irregular procedures of varying
degrees of seriousness. By the latter part of September t1980], a
Nevada Board official reported to hotel management that the
Nevada Board felt that it had sufficient evidence to prosecute certain
employees and was therefore seeking arrest warrants for several of
the hotel staff, including a craps and 21 dealer, as well as a floortnan,
a boxman and a pitboss The Nevada Board told the hotel the arrests
were to be expected in a fortnight.
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Robert Dambro and Del Seleska, the Union's presi-
dent, and secretary-treasurer (chief executive officer), re-
spectively, at the Union's offices, apparently in anticipa-
tion of imminent action on the pending license applica-
tion. At that time, Kirshman hand delivered a letter to
the Union advising that the change of ownership of the
Sahara from Del Webb to the Respondent was scheduled
to occur at 11 a.m. on August 20, 1982. The letter fur-
ther advised the Union that: (1) between 30 and 45 deal-
ers "from sources other than the Del Webb Sahara" had
been prescreened and selected for employment at the
Sahara effective with the change of ownership; (2) that
there would not be sufficient vacancies for all Del Webb
dealers; (3) that the available jobs in the casino would be
offered to the Del Webb dealers on the basis of their se-
niority with Del Webb; (4) that the terms and conditions
of employment of the dealers would be as set forth in a
document provided to the Union on that date; (5) that
the Respondent would not in a position extend recogni-
tion to the Union until the casino was fully staffed with
the required (but unspecified) number of dealers; and (6)
that when the casino was fully staffed a determination
would be made about whether the Union "is the bargain-
ing agent" and, if so, recognition would be extended and
negotiations would be commenced on request. The writ-
ten terms and conditions of employment delivered to the
Union on August 17, 1982, provided that employees
would be subject to a 90-day probationary period.
On August 18 and 19, 1982, representatives of the Re-
spondent including Personnel Director Peacock, con-
ducted meetings to take employment applications from
the incumbent Sahara dealers interested in post-sale em-
ployment. Applicants were provided with information
concerning the new wage and benefit package as well as
the rules governing personal conduct and house game
rules. Applicants were also advised that they would be
informed of their retention by the new management by
the shift schedules to be posted on August 20. Those in-
dividuals listed on the shift schedules were to consider
themselves retained by the new management; those em-
ployees not listed were, in effect, terminated. Each of the
dealers who applied for employment was required to ac-
knowledge in writing that they had received a document
outlining the new terms and conditions of employment as
well as the rules of personal conduct and the gaming
rules. Some confusion resulted from the instruction con-
cerning this latter acknowledgement. Certain employees
returned the rules of conduct and the house gaming rules
when they turned in their written acknowledgements.
The closing of the sale of the Sahara occurred on
August 20 as planned. The Respondent immediately re-
placed the casino management team, i.e., the casino man-
ager, the shift managers, and the pit bosses. The only su-
pervisory personnel retained were several of the former
Del Webb floorpersons. 7 A majority of the casino unit
7 The pecking order for the casino management is . casino manager,
shift manager, pit manager, and floorperson. There is no dispute about
the supervisory status under the Act of the specific individuals occupying
those positions. Respondent does not concede the supervisory status of
the crap table boxmen (excluded from the unit) but no issue exists in this
proceedmg which would be affected significantly by actions of any
boxman.
were retained immediately following the takeover.
Indeed, all of the approximately 320 casino employees
with the exception of approximately 40 dealers trans-
ferred from the Hacienda to the Sahara had previmialy
been employed at the Sahara when it was owned by bel
Webb. There was no interruption in the operation of the
hotel and casino at the time of the transfer of ownership.
There is no serious dispute about the fact that the Re-
spondent had the indicia of a successor employer at the
Sahara under the doctrine enunciated in NLRB v. Burns
Security Services, 406 U.S. 272 (1972). However, the Re-
spondent does dispute that it was obliged to recognize
the Union until the expiration of the 90-day probationary
period, which it imposed as a condition of employment
for the casino employees. The Respondent argued then—
and now—that the earliest date a determination could be
made of the makeup of its regular casino work force was
November 17, 1982, when the probationary period ended
for its initial work force.
Apparently because the Respondent hired 40 or so
dealers from outside sources and declined to hire an
equal number of incumbent Sahara dealers or to prompt-
ly recognize the Union, strike action as proposed. A vote
on the proposed strike action by unit employees was
held on August 30, 1982, and was defeated following a
debate. The proposed strike also attracted local media at-
tention. Reporters from the TV stations and the print
media were on hand at the union hall on August 30 but
were not permitted to attend the meeting. As will be
noted below, several employees were interviewed as
they entered and left this meeting.
In the period following November 17, 1982, the Re-
spondent did extend recognition ot the Union as the rep-
resentative of its casino employees. Four bargaining ses-
sions ensued between January 11, 1983, and February 22,
1983. At a bargaining session on the latter date, the Re-
spondent suspended negotiations with the Union on the
ground that it had not registered in accord with the re-
quirements of Chapter 463.A of the Nevada Revised
Statutes (NRS), a statute that imposes certain require-
ments on representatives of gaming casino employees.
The Union subsequently undertook to register pursuant
to the requirements of the Nevada law but there have
been no further bargaining sessions after February 22,
1983.
During the four negotiating sessions it appears that the
Respondent and the Union progressed toward agreement
with respect to a few subjects but not others. A particu-
larly significant issue in bargaining concerned the Re-
spondent's refusal to agree to a grievance-arbitration
system that included a "just cause" standard for the ter-
mination of unit dealers.
The discharges alleged to be unlawful commenced in
the period immediately following the Respondent's ac-
quisition of the Sahara. The initial discharges (those of
crap dealers Mitchell Sheck and Arthur Anderson) oc-
curred on August 24 and 25, 1982, respectively. (Ander-
son's termination slip was signed by his shift boss on
August 23, 1982.) Eight other discharges at issue here
occurred in the period between August 20 and Novem-
ber 17, 1982. the final discharge involved here—that of
SAHARA LAS VEGAS CORP. 341
Ray Ferrero-occurred on July 30, 1983. As some of the
terminations occurred, the Union requested that the Re-
spondent furnish information concerning the terminations
but the Respondent declined on the ground that such re-
quests were pretext for discovering information that the
Union intended to use in processing unfair labor practice
charges.
B. Issues
As noted, the General Counsel alleges that the Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act
in the complaint. The issues raised by the General Coun-
sel's 8(a)(5) allegations are:
1. Whether the Respondent acquired ownership
of the Sahara with notice of the unilateral changes
in the terms of employment by Consolidated alleged
in 31-CA-12353 and was thereby obliged to remedy
Consolidated's unfair labor practices.
2. Whether the Respondent unlawfully refused to
recognize and bargain with the Union as the repre-
sentative of its casino employees during the initial
90-day probationary period between August 20,
1982, and November 17, 1982.
3. Whether the Respondent unlawfully refused to
provide the Union with information concerning the
discharge of certain employees.
4. Whether the Respondent's suspension of nego-
tiations on February 22, 1983, and its subsequent re-
fusal to bargain with the Union because it had failed
to register pursuant to the requirements of NRS
Chapter 463.A was unlawful.
The issues raised by the General Counsel's 8(a)(3) allega-
tions is whether the Respondent unlawfully discharged
the following employees:8
Mitchell Scheck

August 24, 1982
Arthur Andersen August 25, 1982
Vince Giuffre September 6, 1982
Christopher Scott September 9, 1982
Sidney Martin September 11, 1982
Robert A. Bero September 12, 1982
George Tornich

September 16, 1982
Loren Johnson September 19, 1982
Gorden L. Nicholson October 10, 1982
John G. Tiedemann October 18, 1982
Ricardo Atilano March 27, 1983
David McGuire July 16, 1983
Raymond Ferrero July 30, 1983
There is an independent 8(a)(1) allegation involving a
single instance of interrogation.
8 The complaint originally alleged the unlawful discharge of an addi-
tional employee, Andrew Rahas. Apparently unable to secure Rahas' co-
operation, the General Counsel moved to delete the Rahas allegation at
the hearing. As there was otherwise no evidence pertaining to Rahas, the
motion was granted.
C. The 8(a)(5) Allegations
1. The duty to remedy Consolidatedl's unfair labor
practices
Paragraph 20 of the complaint alleges that between
April 12 and August 20, 1982, Consolidated undertook
certain unilateral changes in the terms and conditions of
employment of its casino employees without giving
notice to or providing the Union with an opportunity to
bargain concerning such changes. In particular, com-
plaint alleges that Consolidated reduced the work hours
of various casino employees contrary to its past practice
of permitting employees to volunteer for fewer hours per
week; that commencing about July 15, 1982, Consolidat-
ed required all full-time casino employees to be available
regularly to work 5 days a week as opposed to permit-
ting those employees to work 4 days per week, the pre-
vious practice; that Consolidated required employees on
and after May 1982, to submit excuses from medical doc-
tors for absences due to sickness that occurred prior to,
or following, scheduled days off contrary to its past
practice; that Consolidated required casino employees to
divide and distribute their tips (tokes) on their own time
after July 15, 1982, as opposed to working time, the
prior practice; that Consolidated changed the regular
days off of several employees on or after June 1982,
without providing the employees with a specific reason
for such action; that Consolidated, commending in June
and July 1982, scheduled several casino employees for
split days off as opposed to consecutive days off, the pre-
vious practice; that commencing in June 1982, Consoli-
dated refused to permit employees to take their work
breaks during the period immediately prior to their shift
departure time and thereby prevented the employees
from ending their workday at the beginning of a break,
the previous practice; and that Consolidated, commenc-
ing in approximately June 1982, required employees to
begin their scheduled vacations on Monday rather than
permitting vacations to commence on any day of the
week, the previous practice.
Consolidated's answer admitted the allegations of para-
graph 20 of the complaint but denied subsequent allega-
tions that such conduct constituted an unfair labor prac-
tice. By entering into the settlement agreement executed
on December 7, 1983, Consolidated undertook to remedy
the allegations of Case 31-CA-12353 for that period of
time when it owned and operated the Sahara. The settle-
ment agreement did not require that it rescind the unlaw-
ful unilateral changes and provide the Union with the
opportunity to bargain concerning similar future changes
because Consolidated no longer owned the Sahara. The
Respondent believes that it has no obligation to rescind
the changes made by Consolidated and bargain with the
Union concerning future changes of a similar nature be-
cause it had no notice of the pendency of Case 31-CA-
12353 (the charge on which complaint par. 20 is based)
when it acquired possession of the Sahara and, therefore,
it has no obligation to remedy Consolidated's unlawful
conduct.
Case 31-CA-12353 was filed on July 28, 1982, nearly
3 months after the purchase-sale agreement between the
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent and Del Webb was executed and nearly 4
months after the date specified in Exhibit M to the pur-
chase-sale agreement listing the then pending unfair labor
practices.
None of the sale documents in evidence refer to Case
31-CA-12353. There is no evidence of any other written
notification from any party or individual to the Respond-
ent concerning the existence of the disputed case predat-
ing Respondent's acquisition of the Sahara. However, the
General Counsel asserts that Gary Reid, an assistant gen-
eral counsel for the Del Webb Corporation, orally noti-
fied Respondent's counsel Kirshman of the pendency of
Case 31-CA-12353 prior to August 20.
Reid testified that between the filing of the disputed
charge and August 20, he had at least two telephone
conversations with Attorney Kirshman in which he dis-
cussed the disputed charge. Reid recalled that Kirshman
inquired about whether or not there was any financial li-
ability involved in the disputed charge and Reid ex-
pressed the opinion that there was not, a view that Reid
said the NLRB Regional Office initially shared during its
investigation. Attorney Kirshman testified that he had
"no recollection" that Reid ever mentioned the penden-
cy of the charge to him.
It is undisputed that between July 28 (when the charge
was filed) and August 20, 1982, both Kirshman and Reid
conversed on several occasions by telephone and met at
least once or twice in person to negotiate some of the
final labor relations details involved in the sale of the
hotel. Reid conceded that the charge was never raise in
their face-to-face meetings when others were present
who could corroborate or deny discussions about the
charge and acknowledged that no attempt was made to
amend Exhibit M to include Case 31-CA-12353 even
though an extensive amendment was prepared concern-
ing other labor relations matters immediately prior to
August 20. The failure to amend Exhibit M was, accord-
ing to Reid, an oversight.
There is no question but that Reid was intimately fa-
miliar with the most of the bases for the charge that the
Union filed against Consolidated on July 28. When Reid
was recalled as a rebuttal witness by the General Coun-
sel he identified Del Webb's internal memoranda, which
he had prepared dating back as far as March 2, 1982,
concerning the consideration of certain changes in the
working conditions of the Sahara casino employees
(G.C. Exhs. 45 through 48). Reid's personal view was
that the contemplated changes would be unlawful if an
opportunity was not provided to the Union to bargain
concerning the changes before they were implemented.
Reid even expressed this view in a telephone conversa-
tion with Union Representative Dambro after the
changes had been implemented.
The amendment to the purchase-sale agreement exe-
cuted between the principal officials of the buyer and
seller of the Sahara on August 20, 1982 (see G.C. Exh.
43), contains—at page 6—essentially an indemnification
agreement between the buyer and the seller broad
enough to include financial liability that would arise
from Case 31-CA-12353. Under the terms of paragraph
(D) of that indemnification agreement, the seller (Del
Webb) agreed to indemnify and hold the buyer (Re-
spondent) harmless from liability arising from, among
other things, obligations that could arise from, the mat-
ters listed in schedule M of the purchase and sale agree-
ment (G.c. Exh. 42), except for the four matters specifi-
cally listed in paragraph (D) of the indemnification
agreement, none of which are related to Case 31-CA-
12353. Hence, it would appear if any financial liability
continued to accrue after August 20, 1982, from the uni-
lateral changes made by Consolidated, which Respond-
ent would be obliged to remedy, the Respondent would
have a claim against Del Webb by virtue of their private
agreement. For this reason, Reid's testimony that he
orally notified a responsible representative of the Re-
spondent concerning the pendency of Case 31-CA-12353
appears to be contrary to the economic interest of this
client. This fact, when considered together with Reid's
candidness while testifying and the limited testimony of
counsel for the Respondent that he had "no recollection"
of discussions with Reid concerning the disputed charge,
has caused me to conclude that Reid's testimony con-
cerning this matter is essentially accurate and should be
credited. Accordingly, I find that the Respondent was
provided with notice that Case 31-CA-12353 was pend-
ing before it acquired possession of the Sahara and that it
is obliged to take steps to remedy the unilateral changes
alleged in paragraph 20 Of the complaint that Consolidat-
ed admits it instituted without prior notice at the affect-
ed employees' certified bargaining representative. Golden
State Bottling Co. v. NLRB, 414 U.S. 168 (1974). Howev-
er, as Consolidated, in effect, provided a partial remedy
to and including August 20, 1982, under the terms of the
December 7 settlement agreement, and is the Respond-
ent established written initial terms of employment that it
distributed to unit employees on August 18 and 19, 1982,
the recommended Order pertaining to this matter shall
account for these circumstances.
2. The refusal to recognize the Union between
August 20 and November 17, 1982
It is undisputed that the Respondent refused to recog-
nize the Union in the period between acquiring owner-
ship of the Sahara on August 20 and November 17, 1982.
The Respondent stipulated that regarding the casino it
had the attributes of a successor employer; it argues, in
effect, that the 90-day probationary period that it estab-
lished for the casino employees left doubt about the
actual makeup of its work force until the probationary
period was completed and, hence, it was not possible to
determine whether a majority of the employees in the
casino unit would be former Sahara employees or not.9
9 The evidence shows that the primary purpose of Leo Lewis' daily
presence at the Sahara (he was provided with an office and complete
access to the operations with the exception of Consohdated's confidential
business information) was to direct and assure an orderly transition that
would permit operation of this major facility to continue without inter-
ruption as clearly occurred. The Respondent assumed the labor agree-
ments applicable to its hotel operations under the purchase-sale agree-
ment. The parties stipulated that the Respondent purchased the Sahara
including the assets, some liabilities, the name, goodwill, and equipment,
and that following the sale Respondent continued operations utilizing the
same building, substantially the same equipment, games, and supervisory
positions.
SAHARA LAS VEGAS CORP. 343
Certain observations with respect to the 90-day proba-
tionary period are essential. First, with respect to the ini-
tial complement of casino unit employees employed by
the Respondent an exception was made with respect to
Respondent's terms and conditions of employment that
health insurance benefits would not be provided until
employees had completed the probationary period so
that all of those initially employed were immediately
covered by health insurance. Secondly, there is no evi-
dence that any employee was ever notified that he/she
had successfully completed the probationary period.
Third, there is no evidence that any type of personnel
action was generated at the completion of the probation-
ary period at least with respect to the initial complement
of Respondent's employees. Fourth, insofar as the evi-
dence in this record is concerned, there is no discernable
distinction in the considerations that are evaluated when
discipline is imposed on either probationary employees
or nonprobationary employees; at all times the Respond-
ent retained its common law right to discipline and dis-
charge employees at will and without just cause. 1 ° Final-
ly, there is no evidence that the probationary period was
used for any type of systematic review of the records
and backgrounds of the Del Webb dealers.
The Respondent argues that the probationary period
that it invoked produced an "unknown variable" with re-
spect to the makeup of its permanent casino work force.
As noted, the evidence establishes that it retained ap-
proximately 280 Del Webb casino employees and hired
approximately 40 other casino employees from other
sources. 11 As its initial work force was overwhelmingly
employees formerly employed by the predecessor Del
Webb, only a major upheaval of the work force during
the 90-day probationary period would have produced a
contrary result. No evidence was produced that the Re-
spondent planned any significant expansion or contrac-
tion of the casino work force other than that dictated by
normal business fluctuations in existing operations. It was
stipulated that throughout the period from August 20 to
November 17, 1982, a majority of the Respondent's
casino work force were former Del Webb dealers.
Other evidence strongly supports the conclusion that
the Respondent's motives for refusing to accord the
Union prompt recognition were grounded on strategic
considerations and not legal considerations. Thus, Lewis
testified that attorneys were retained to provide advice
about how to handle the casino union problem in the
pretakeover period because the Union situation was
"very definitely" a concern to him at that time. In par-
ticular, Lewis said that his concerns related to manage-
ment rights and the freedom of control when the Re-
spondent commenced operating the Sahara.
10 Although Respondent's personnel manager, Peacock, testified that
the Respondent attempted to establish a personnel policy providing for
the suspension if employees for infractions of rules while an investigation
was undertaken to determine the extent of discipline to be imposed, there
is no evidence that this policy was ever followed, and much evidence
that it was not, during both the initial probationary period and afterward.
I I Although it is not entirely clear, it appears that in Del Webb's final
days of ownership, it employed approximately 325 casino employees. Re-
spondent's initial complement secured from outside sources appear to
have all been employees who were, in effect, transferred from the Haci-
enda to the Sahara.
Most illustrative of the effect of the Respondent's uni-
lateral control is seen in the situation that promptly de-
veloped concerning line bets. Even though the Respond-
ent prepared a written memorandum setting forth the
employees' wages and benefits in detail, which the Re-
spondent distributed to the former Del Webb dealers
when they applied for employment with the Respondent
on August 18 and 19, 1982 (which is capable of being
construed as the sum and substance of Respondent's ini-
tial terms of employment), a major change was imple-
mented in the following week when Casino Manager
John Bonifacio (a/k/a "John Boni" and not to be con-
fused with Pit Manager Joe Bono) met with the casino
employees for orientation purposes. Thus, Bonifacio an-
nounced at that time that line bets for crap dealers (a sig-
nificant source of income for that group of unit employ-
ees) would be discontinued until further notice." Bonifa-
cio explained that this action was taken because he had
heard the Sahara crap dealers were putting too much
pressure (hustling) on the customers for line bets, a prac-
tice he wanted discontinued. Line bets were not restored
until immediately prior to Christmas 1982. Although
Bonifacio denied that he had knowledge of any sort con-
cerning the identity of the Union's activists, there is testi-
mony (of employees and floormen) that the Union was
almost unanimously supported by the Del Webb crap
dealers.
It is my conclusion that in the circumstances shown
here the unilaterally imposed probationary period has no
legally cognizable significance on the legal obligation of
a successor employer to recognize and bargain with an
exclusive employee representative. The Ninth Circuit has
had occasion to summarize a successor's obligation to
recognize and bargain with an incumbent union under
the Supreme Court's Burns doctrine as follows: "When it
is perfectly clear that the employer intends to hire a ma-
jority of his work force in a unit represented by a union
from the ranks of his predecessor, his duty to bargain
with the (*ion commences immediately." San Juan
Packers v. NLRB, 626 F.2d 674 (9th Cir. 1980). Accord:
NLRB v. Hudson River Aggregates, 639 F.2d 865 (2d Cir.
1981)—"we have found no decision postponing determi-
nation of a successor employer's bargaining obligation
for so long an interval following the commencement of
its operations." Similarly, the Board has only recently re-
fused to entertain an employer's delay in meeting its rec-
ognition obligation when a successor essentially contin-
ued an ongoing operation. Harbor Cartage, 269 NLRB
927 (1984). Although it is recognized that a successor's
obligation to recognize and bargain with an incumbent
will vary with the circumstances of each case (see, e.g.,
Pacific Hide & Fur Depot v. NLRB, 553 F.2d 609 (9th
Cir. 1977)), the Respondent has shown no special cir-
cumstances here warranting the postponement of that ob-
ligation. The probationary period imposed by the Re-
spondent comes across on this record as little other than
a meaningless device having no discernable impact on
employee tenure or the Respondent's staffing plans
12 Lme bets, a form of tip from the customer, are unique to the crap
dealers and, hence, this action did not affect other unit employees.
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which, for all that's shown here, were complete as of
August 20. For this reason, I am at a complete loss to
comprehend what policy under the Act would be served
to accord the sweeping effect the Respondent desires
here to the probationary period. Indeed, the Respond-
ent's argument on this point is so lacking in merit when
weighed against the existing case law that I am com-
pelled to look elsewhere for an explanation of its refusal
to adhere to its legal obligations. That explanation is, in
my judgment, fully explained in Lewis' testimony, noted
above, the essence of which is that the Respondent in-
tended to retain complete unilateral control over its
casino employees consistent with the historical pattern of
this industry in Las Vegas.
Accordingly, as it is my conclusion that the Respond-
ent staffed the continued casino operations at the Sahara
with an overwhelming majority of employees from the
predecessor Del Webb operation, it was immediately
obliged to recognize and bargain with the Union. Its fail-
ure to do so violated Section 8(a)(1) and (5) of the Act
as alleged in the complaint.
3. The refusal to furnish information
Paragraphs 26 through 32 of the complaint allege that
the Respondent refused to supply the Union with infor-
mation concerning the termination of certain unit em-
ployees at all times after January 20, 1983. The Respond-
ent disputes its legal obligation to do so when, as here,
there were several pending unfair labor practice charges
involving the termination of other employees.
The evidence discloses that the first request for infor-
mation was made in the latter part of January 1983,
when Union Representative Dambro telephoned Attor-
ney David Cohen, a partner in the law firm then repre-
senting the Respondent, to request information concern-
ing the termination of casino dealer Cruz Rojas. Dambro
testified that Cohen told him that the Respondent would
not supply him with "discovery" for use in "negotia-
tions." Cohen testified that he informed Dambro that he
would not provide him with "discovery" to be used for
the "unfair labor practice charges."
Subsequently, Dambro addressed written requests for
information to Attorney Kirshman concerning the termi-
nation of Ricardo Atilano on April 20, 1983 (G.C. Exh.
34), Gilbert Betoncourt on May 26, 1983 (G.C. Exh 36),
and David P. McGuire, Andrew Rahas, and Ray Ferrero
on September 12, 1983 (G.C. Exh. 37). The September
12 letter also included a request that the Union be fur-
nished with information concerning the termination of
"any other Gaming Employee [who] may be terminated
in the future." There is no dispute about the fact that the
Respondent refused to furnish information concerning
any of the foregoing requests.
The complaint discloses that by the time the initial re-
quest fdr termination information concerning Rojas was
made in January 1983, there were unfair labor practice
charges pending concerning the termination of nine other
casino dealers, which were filed by Dambro, and one
pending unfair labor practice charge filed by casino
dealer Gordon Nicholson, in his individual capacity, con-
cerning his termination.
The General Counsel argues that the Respondent's
failure to supply information concerning the discharge of
several casino unit employees violated Section 8(a)(5)
and (1) as such information was relevant to bargaining.
As noted, the Respondent claims that it has no legal duty
to furnish the Union with "discovery" for use in unfair
labor practice proceedings.
A review of the charges and pleadings in this case dis-
closes that in each instance the Union's request for infor-
mation concerning the termination of unit employees
preceded the filing of unfair labor practice charges con-
cerning the termination of the specific employees for
whom termination information was requested. Sometimes
the request for information preceded the filing of the
unfair labor practice charge by a considerable period of
time; other times not. Only the initial request for infor-
mation concerning Cruz Rojas occurred at a time when
collective-bargaining negotiations concerning a contract
were actively in progress. There is no evidence that
issues were ever raised during contract negotiations con-
cerning the terminations of any other employees.
The fact that the Union had filed numerous other
unfair labor practice charges concerning the termination
of employees does provide the Respondent with a rea-
sonable basis to conclude that any disclosures might be
used against it in a proceeding before the Board. Al-
though it is true that an employer generally has a duty to
furnish the Union wth information concerning the layoff
of employees when the request is made at a time when
an unfair labor practice charge is pending before the
Board concerning layoff. See General Electric Co., 163
NLRB 198 (1967). To be sure, the circumstances here do
not fit precisely into those found in the cited case, but
the fact that the Union had filed numerous other unfair
labor practice charges concerning the terminations of
other employees made it reasonable for the Respondent
to conclude that charges would likely follow concerning
the terminations of those employees for whom informa-
tion was requested. In these circumstances, I find that
the Respondent was not obliged to furnish the Union
with the requested termination information and that the
allegations concerning the Respondent's failure to furnish
information should be dismissed.
4. The Respondent's suspension of negotiations on
February 22, 1983
At the bargaining session held on February 22, 1983,
Respondent's attorney ICirshman inquired about whether
the Union had registered in accord with NRS Chapter
463.A. Dambro informed Kirshman that it had not, but
that he would look into the matter. In effect, Kirshman
then told Dambro that the Respondent would no longer
meet with the Union until the Union was in compliance
with NRS Chapter 463.A.
NRS Chapter 463.A was adopted by the Nevada legis-
lature in 1975. The statutory declaration underlying the
statute is that it is necessary to determine the suitability
of any person performing significant functions in the rep-
resentation of gaming casino employees because persons
whose backgrounds are not suitable for association with
licensed gambling in Nevada have gained positions of
SAHARA LAS VEGAS CORP. 345
control in labor organizations representing gaming em-
ployees in the State of Nevada."
To carry out the legislative purpose, the statute re-
quires that every labor organization representing gaming
casino employees file with the Nevada Gaming Control
Board (NGCB) a list of its responsible personnel who
adjust grievances; negotiate or administer wages, hours,
and working conditions; or solicit or collect dues and as-
sessments on behalf of a labor organization that repre-
sents gaming casino employees. The statute also requires
that each person listed file with the NGCB a copy of
his/her fingerprints and written information describing
his/her functions with the labor organization, as well as
a written statement concerning the prior performance of
similar functions, employment history, and criminal
record. The Nevada Gaming Commission (NGC) is em-
powered by the statute to establish regulations concern-
ing the frequency of the filing of such reports and to pre-
scribe further information required of the persons listed
by the labor organization. The statute also provides that
any person performing the regulated functions on behalf
of the labor organization can be disqualified by the NGC
from performing those functions if the NGC finds that
the individual: (1) has been convicted anywhere of any
crime involving moral turpitude; (2) lacks business integ-
rity or honesty; (3) files misleading statements with the
NGCB; or (4) is a member or an associate of any orga-
nized criminal element or lacks good moral character
and integrity as evidenced by the individuals prior con-
duct. The statute empowers the NGCB to investigate the
suitability of labor organization personnel to perform
their duties on behalf of the gaming casino employees
and to recommend to the NGC that any such person be
disqualified from performing such functions. The statute
also provides a fair hearing procedure before the NGC
in the event the NGCB seeks the disqualification of any
individual. An adverse determination by the NGCB is
subject to judicial review. The statute additionally pro-
vides a means for preventing individuals who have been
disqualified from performing certain functions by fines or
injunctive relief against a labor organization employing
such persons. In conclusion, the statute provides that
"[t]he provisions of [NRS 463.A] do not deny or limit in
any way the legitimate rights of gaming casino employ-
ees to bargain collectively or otherwise to engage in con-
certed activity for the mutual aid and protection through
representatives of their own choosing, if such representa-
tives are not disqualified pursuant to the provisions of
this chapter."
Dambro conceded that the Union had never undertak-
en to register its personnel under the terms of NRS
463.A prior to February 22, 1983. However, in the
period following February 22, Dambro did undertake to
secure information from the NGCB concerning the nec-
essary steps the Union would be required to undertake in
order to comply with NRS 463.A. Dambro, the only in-
" As noted, the record here indicates that no gaming casino employ-
ees in Las Vegas, Nevada's largest city, were represented by a labor or-
ganization until the Umon was selected by the Sahara and Frontier em-
ployees in 1980 and 1981, respectively, albeit there had been an orgatuza-
tion many years earlier. The legislative declaration suggests that this lack
of representation does not exist elsewhere m the State of Nevada.
dividual to testify concerning the Union's attempt to
comply with the terms of the statute, reported that when
he initially called on the Las Vegas office of the NGCB,
necessary registration forms were not available and had
to be devised. Once newly devised forms were provided
to Darnbro and filed together with the completed finger-
print forms, additional forms were forwarded to him
from the Reno office of the NGCB that closely approxi-
mated an application for a gaming license. These added
forms required the disclosure of each individual's various
banking accounts, detailed information about their family
relationships, and past marital involvements. On receipt
of these added forms, Dambro consulted the Union's
local counsel for advice and was informed that such in-
formation appeared unnecessary as the Union was not
applying for a gaming license. Armed with this advice,
and believing that providing this added information
would be burdensome and unnecessary, Dambro again
called on the NGCB Las Vegas office where he was in-
formed that the analysis of the Union's counsel was es-
sentially correct. When Dambro later inquired of the
local office of the NGCB about whether the Union was
in compliance, he was told only that he should wait to
hear from the NGCB. As of the time the hearing was re-
opened on September 20, 1984, Dambro had received no
added information from the NGCB and no action has
ever been taken by that state agency to disqualify any in-
dividual employed by the Union.
Certain employees of the Sahara such as slot machine
mechanics and change girls are represented by other
labor organizations. The requirements of NRS 463.A are
broad enough to require that those labor organizations
register their responsible employees. There is no evi-
dence that the Respondent has declined to bargain with
any other labor organization on the ground that they
have not complied with NRS Chapter 463.A.
As noted, the Respondent asserts as an affirmative de-
fense, in effect, that it should not be obliged to bargain
with the Union because it is not in compliance with that
part of the Nevada gaming statute requiring registration
by labor organizations representing gaming employees.
The General Counsel's motion to strike the aforemen-
tioned affirmative defense was granted at the outset of
the hearing on the basis of the Third Circuit's opinion in
Hotel Employees Local 14 v. Danziger, 709 F.2d 815 (3d
Cir. 1983). When the Third Circuit's decision in that case
was reversed on appeal to the Supreme Court, the ruling
on the General Counsel's motion to strike was vacated
and the hearing was reopened to permit the parties to
present evidence pertaining to the issues presented by
Respondent's affirmative defense.
In Brown v. Hotel Employees Local 14, 468 U.S. 491
(1984), vacating Danz:ger, supra, the Supreme Court held
that the portion of New Jersey's Casino Control Act reg-
ulating labor organizations representing casino industry
employees in that State was not preempted by the Na-
tional Labor Relations Act. The disputed provisions of
the New Jersey law are, as here, part of a comprehen-
sive regulatory mechanism for that State's gaming indus-
try. Under the New Jersey statute, labor organizations
representing casino indistry employees are required to
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
register annually with an independent state commission
established to administer that State's casino industry reg-
ulatory scheme. The New Jersey statute also establishes
"disqualification" criteria for officials of registered labor
organizations designed to permit the State to exclude
persons with criminal backgrounds or associations from
involvement with the gaming industry. Labor organiza-
tions found to be employing officials who are disqualified
(pursuant to a fair hearing procedure) are prohibited
from receiving dues from casino industry employees and
from administering pension and welfare funds.
In an appeal from an action to enjoin state commission
from applying the disqualification criteria and attendant
sanctions against a labor organization reqresenting tradi-
tional hotel and restaurant employees (as opposed to
casino employees), the Supreme Court, applying tradi-
tional preemption principles applicable in labor cases,
concluded in Brown that there is no explicit or implicit
expression of intent by Congress in the Act or its legisla-
tive history to "ursurp the entire field of labor-manage-
ment relations." Similarly, the Court concluded that the
New Jersey regulatory scheme was not in actual conflict
with conduct protected under Section 7 of the Act and,
hence, the New Jersey regulatory mechanism withstood
scrutiny under the Supremacy clause of the U.S. Consti-
tution.
At the conclusion of the reopened hearing, the Re-
spondent argued forcefully that Nevada's interest in con-
trolling criminal conduct in its gaming industry could
probably be considered even greater than New Jersey's
interest as Nevada's economy is much more closely tied
to the gaming industry than is New Jersey's. Certain of
the Court's rationale in the Brown case is particularly
noteworthy in assessing that argument in this case. New
Jersey asserted, in its effort to bolster its contention that
its Casino Control Act was constitutional, that a balanc-
ing test, as articulated initially in San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959), should be
applied to determine whether the local interest (crime
control in the game industry) outweighed any potential
interference with Federally protected rights under the
Act. The majority opinion rejected this approach saying
that it confused actual Federal protection of the conduct
at issue with that which is based on the primary jurisdic-
tion of the Board. The Garmon balancing test, the Court
said, applies in situations when there is a presumption of
Federal preemption and the presence of a state law that
rises to the level of being arguably in conflict with the
Act. The Garmon test was designed, according to the
Court, to avoid jurisdictional conflicts between the
Board and the state courts or agencies by assuring the
Board's jurisdiction except in those instances in which
"deeply rooted" local interests (such as certain breach of
contract, trespass, and tort actions) are at stake. Properly
analyzed, the Brown decision teaches that if there is no
evidence the Federal law entirely preempts a particular
field of conduct and there is no actual conflict between
the Federal and state law, then coexistence under the Su-
premacy clause is permissible and no balancing is re-
quired Clearly then, the Act does not preempt the
Nevada statute involved here and, hence, the ultimate
question presented is whether the Board should, as a
matter of policy, recognize the Respondent's affirmative
defense as it appears that there is nothing that compels
either the Board or Nevada to withhold the exercise of
their respective jurisdictions.
The Respondent's argument that the Board should, in
effect, excuse the Respondent's refusal to bargain with
the Union misses a very vital point, to wit, thus far
Nevada has done nothing that would affect in the slight-
est bit the Board's conceded jurisdiction to act here.
Dambro's uncontradicted testimony shows that Nevada
has not notified the Union that either its failure to regis-
ter in the past, or its post-February 1983 effort to register
impedes the Union's right to function in Nevada in any
fashion. Nevada has to sought to disqualify any of the
Union's officials nor has it attempted to impose any sanc-
tions against the Union. Instead, the only thing that has
occurred is the Respondent's precipitous resort to self-
help by refusing to bargain which, it argues, the Board
should overlook because it would somehow aid the
Union's conformance with a state law that Nevada, from
all appearances, is either satisfied the Union has complied
with or is choosing not to enforce. Moreover, Nevada
declared in NRS 463.A, that apart from the specific
mechanism of the statute, it did not intend to do any-
thing to interfere with employee collective-bargaining
rights. Hence, nothing has occurred that impugns on the
Board's jurisdiction to enforce the Act by compelling the
Respondent to bargain with the Union.
To the extent that the Respondent's argument suggests
that the Board should recognize the Respondent's affirm-
ative defense and excuse its admitted refusal to bargain
as a means of compelling the Union to comply with the
state statute, I am satisfied that such an approach would
be unwise. It would seem that the Board has no more
business involving itself in the State's gaming control
scheme than Nevada does in involving itself in enforcing
the Act by attempting, for example, to revoke a casino's
license solely because it refused to bargain with a labor
organization as the Act requires. Such a course would
likely enhance the undesired potential for Federal-state
conflict rather than avoid it." Accordingly, I find that
the Respondent's first affirmative defense lacks merit and
that its refusal to bargain with the Union on and after
February 22, 1983, violated Section 8(a)(1) and (5) of the
Act, as alleged."
D. The 8(a)(3) Allegations
The complaint, as amended at the hearing, alleges that
13 individuals were terminated in violation of Section
8(a)(3) of the Act. In her brief, the General Counsel de-
tails the evidence of union activity, employer knowledge,
and the circumstances surrounding each discharge, and
14 Quite clearly the Nmth Circuit recently recognized that preemption
questions are magnified when state action serves to enforce substantive
Federal rights. See Golden Gate Transit Corp. v. Los Angeles (9th Cir.
1985) (unofficially reported at 118 LRRM 2801).
15 The Respondent argues an impasse was reached in negotiations over
the arbitration issue even before negotiations were suspended on Febru-
ary 22. The evidence clearly shows otherwise as it is evident that the
Union has not foreclosed employee acceptance of Respondent's position.
SAHARA LAS VEGAS CORP. 347
argues, in each case, that a discriminatory motive for
each discharge is present.
The Respondent argues that the General Counsel's
proof in support of the 8(a)(3) allegations is characterized
by several "common denominators." The Respondent
concedes that "in some degree" each of the alleged dis-
criminatees engaged in some union activity during the
1980 organizing campaign and that a few solicited the 40
or so dealers transferred to the Sahara from the Hacien-
da at the time of the sale. However, the Respondent as-
serts that following the October 1980 election employee
union activity "settled into a routine of discussing the
pros and cons of the Union and its progress or lack
thereof." The Respondent further notes that these discus-
sions were generally among the casino dealers them-
selves albeit in a few instances, such discussions included
exchanges with floorpersons—the first line casino super-
visors—including some who were retained by the Re-
spondent following the sale. Notwithstanding, the Re-
spondent argues that after it acquired the Sahara "even
the modest level of union activities attributed to the al-
leged discriminatees . . . faded into virtual non-exist-
ence." The Respondent further argues that there is evi-
dence that each of the alleged discriminatees failed to
adhere to strict rules of conduct applied in its casino op-
eration—rules that the Respondent asserts are necessary
to maintain the close control necessary to safeguard
against dishonesty in an operation characterized by high
volume—high speed unrecorded transactions. Military-
like adherence to the casino rules, the Respondent
argues, is vital to protect the entrepreneur's license
which is essential to operation. In substance, the Re-
spondent claims that the discharges here were the result
of business necessity and that the proof of an unlawful
motive is lacking.
Certain preliminary observations and findings are sug-
gested by the allegations and the record before consider-
ing the merits of each 8(a)(3) allegation. First, to sustain
an allegation that an employees' discharge violated the
Act, the General Counsel must show at the outset that
an employee's protected activity was a motivating factor
in the employer's discharge decision. If the General
Counsel makes such a showing, an employer can avoid
liability by proving that the same action would have
been taken even in the absence of the employee's pro-
tected activity. Wright Line, 251 NLRB 1083 (1980).
Proof that a discharge would have occurred in any event
for valid reasons is an affirmative defense which an em-
ployer is obliged to prove by a preponderance of the
credible evidence. NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). The burden assigned by law
to both the General Counsel and an employer in cases of
this nature must be proven by a preponderance of the
evidence, meaning the evidence proffered to support the
proposed finding must be sufficient to permit the conclu-
sion that its existence is more probable than not. McCor-
mick Evidence, at 676-677 (1st ed. 1954).
The "decisive factor" in determining whether the Act
has been violated is the employer's motivation. NLRB v.
Senfiner Volkswa,gon Corp., 681 F.2d 557 (8th Cir. 1982).
An employer's motivation for discharging an employee is
a factual question that may be resolved by examining
both the direct and circumstantial evidence. NLRB v.
Link-Belt Co., 311 U.S. 584 (1984); Panchito's v. NLRB,
581 F.2d 204 (9th Cir. 1978). Direct evidence of an an-
tiunion motive is rare and, for that reason, reliance on
circumstantial evidence and the reasonable inferences
that may be drawn therefrom is not only permissible, but
most often it is necessary. NLRB v. V & W Casting, 587
F.2d 1005 (9th Cir. 1978).
Courts have cautioned triers of fact against viewing
union or concerted activity as a shield from lawfully mo-
tivated discipline. NLRB v. Anchorage Times Publishing
Co., 637 F.2d 1359 (9th Cir. 1981). On the other hand,
the courts have also cautioned against assigning conclu-
sive weight to selfserving declarations of management in
explaining the reasons for an employee's termination.
Shattuck-Denn Mining Corp. V. NLRB, 362 F.2d 466 (9th
Cir. 1966). "Indeed, when [it is determined} that such
declarations are untrue, the false assertions of lawful pur-
pose support the inference that the declarants' motive
was unlawful." Golden Day Schools v. NLRB, 644 F.2d
834 (9th Cir. 1981). Ultimately, motive is a subjective
factor rarely admitted that must be inferred from a varie-
ty of factors. NLRB v. Price's Pic-Pac Supermarkets, 707
F.2d 236 (6th Cir. 1983).
The quintessence of judging motive from circumstan-
tial evidence is that no single factor is determinative; in-
stead, an actor's state of mind is generally discernable in
any objective sense only by assessing a variety of the cir-
cumstances. As the General Counsel has alleged that the
discharges here violated Section 8(a)(3) of the Act, the
focal point of the motive inquiry is whether, by discharg-
ing the 13 individuals involved, the Respondent was at-
tempting to encourage or discourage union membership.
At the conlcusion of the General Counsel's case, the Re-
spondent moved to dismiss the General Counsel's dis-
charge allegations on the ground that she had failed to
prove that the Respondent was unlawfully motivated in
terminating the named individuals. That motion was
denied and that denial is hereby reaffirmed as, in my
judgment, there is sufficient evidence to permit the infer-
ence, in the absence of a sustainable affirmative defense,
that the dischares were motivated by Respondent's desire
to discourage union activities among its casino employ-
ees.
Insofar as the record discloses, there is no significant
collective-bargaining history among gaming casino em-
ployees in Las Vegas albeit other employees of the hotel
and restaurant operations have been organized for a
number of years. The more recent attempts at organizing
gaming casino employees in that city have occurred at
the Sahara and the Frontier, and those efforts appear to
ve been of such significance in the community as to at-
tract extended media coverage. To date, those efforts
have not been successful (insofar as is known) in produc-
ing fruitful collective bargaining. Indeed, with the excep-
tion of four relative brief bargaining sessions between the
Respondent and the Union, it appears that there has been
significant and protracted resistance to collective bar-
gaining involving the gaming casino employees. At the
time of the sale, Respondent's predecessor was testing
the Union's certification and that process had reached
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the court of appeals level. Although the sale documents
provided the Respondent with the option of continuing
that legal course, it did not do so. Yet, no significant col-
lective bargaining—the focal pont of the Act—has result-
ed.
Rather than continuing its predecessor's legal course,
the evidence supports the conclusion that the Respond-
ent embarked on a course of conduct to frustrate fruitful
collective bargaining. Thus, the evidence shows that the
Respondent unlawfully interposed its 90-day probation-
ary period as an obstacle to bargaining. In the limited
bargaining that followed before the Respondent again
unlawfully terminated negotiations, the Respondent rig-
idly adhered to a position against agreement on any form
of contractual jurisprudence, which included the neutral
arbitration of discharge grievances coupled with a "just
cause" discharge standard. Instead, the Respondent ada-
mantly sought to retain its right to discharge employees
based on a "reasonable suspicion." Moreover, the Re-
spondent appeared to have developed a provocative tone
over the subject, telling the Union that the lack of an ar-
bitration provision would simply mean that it would
have to take its chances with a strike in the event of dis-
putes over employee discharges. As noted, 10 of the dis-
charges disputed here had occurred by the time bargain-
ing commenced. Although the General Counsel did not
allege that the Respondent's bargaining conduct was un-
lawful, and no fmding is made here that such conduct
was unlawful, the fact that the Respondent's unusual po-
sition regarding arbitration was sandwiched between its
initial unlawful refusal to recognize the Union and its
later unlawful refusal to continue to negotiate with the
Union is clearly relevant to the question of the Respond-
ent's overall motives. And overall, the bargaining back-
ground strongly supports the conclusion that the Re-
spondent repeatedly adopted a stance of stubborn resist-
ance than more likely than not would serve to put the
casino employees on notice that their overwhelming
desire for representation was unacceptable to the Re-
spondent. In this context, Respondent's other conduct
likely to produce a similar effect—such as the summary
discharge of casino employees with little or no cause—
requires close and critical examination.
Before examining the evidence in each individual case,
one further element of the Respondent's overall argu-
ment—its knowledge of employee union sympathies—
merits consideration. The course of the Respondent's ex-
amination of witnesses at the hearing was designed to
provide the basis for the argument that it alluded to re-
peatedly in its brief that, because there was almost a
complete turnover in the managerial staff of the casino
from the pit manager level up following the sale, the
new managers following the sale were, by and large, un-
aware of the identity of the union activists. For the fol-
lowing reasons, I reject the claim that the Respondent
was without such knowledge.
The evidence detailed below shows that the Union
was a frequent subject of discussion between the casino
dealers and the floormen both at work and on social oc-
casions. Several of the dealers made no attempt to hide
prounion sympathies. As previously noted, Lewis, the
highest ranking executive of the Respondent on the
premises testified that the Respondent was very con-
cerned about the situation with the Union in the casino.
Yet, nearly all of the casino managers who testified pro-
fessed to know little of the Union other than what they
heard or read through the media before the sale and
some even professed at times no knowledge whatsoever.
In view of Lewis' significant concern, I am skeptical of
the casino managers' assertions in this regard and do not
credit them.
Additionally, employees Vincent Guiffre, Sidney
Martin, and David McGuire testified concerning state-
ments by Floorman Denver Davis concerning a "hit list"
of union activists which was provided to the Respondent
by the Del Webb management. Although the existence
of "hit list" provided by the Del Webb management was
never established by the General Counsel and was
denied by all of the Respondent's witnesses, other evi-
dence suggests that the identity of the union sympathiz-
ers was known to the Respondent. Testimony by floor-
man Sam Filigenzi shows that Shift Manager Frank Ca-
varicci purportedly declined to follow a discharge rec-
ommendation involving McGuire at one point because
Cavaricci did not desire to become further embroiled in
a dispute with the Union. When dealer Ricardo Atilano
was terminated, Cavaricci—who was involved in several
of the discharges here—informed him that he had been
given a list of employees to terminate.
The evidence also shows that the Respondent's person-
nel office played a key or central role in the termination
process. I am satisfied that the record in this case shows
that Personnel Manager Peacock, the highest ranking
management official known to have been retained by the
new Sahara management, and quite likely in a, position
most able to identify significant union sympathizers, was
a key figure in several discharges. Although Peacock
was not employed until February 1982, and hence was
not in the employ of the Respondent during the course
of the 1980 organizing drive, he was associated with the
Respondent's predecessor in the same , position through-
out the course of the so-called polygraph litigation
before Judge Anderson and clearly would have been in a
position to become familiar with the background events
and personalities involved in the organizing drive.
Guiffre's credited evidence in the polygraph case shows
that he was interrogated concerning the union activity
purportedly because of interest on the part of the Del
Webb managers. Consolidated Casinos, 266 NLRB 988,
995 (1983). Hence, I reject any suggestion that the man-
agement realignment that took place at the time the
Sahara was sold resulted in some kind of a wash with re-
spect to the Respondent's capacity to have knowledge of
the significant union sympathizers among the casino em-
ployees. 16
' 6 As will be seen below, many of the terminations involved here ex-
hibited circumstances similar to those found in Anderson's' instance in
that the first real explanation or the first real attempt to explain the
reason for an employee's termmation came from information provided to
the employee from the Respondent's personnel department and not from
the employee's immediate supervisor or the supervisor who purportedly
decided on the adverse action. When that was shown to be the case, I
have accorded significant weight to that fact m reaching my ultimate
Continued
SAHARA LAS VEGAS CORP. 349
The fact that the discharges here occurred against the
backdrop of the Respondent's unlawful and brinksman-
ship bargaining conduct provides substantial support for
an inference that the discharge of several long-term
casino employees who were active in their support of the
Union and whose continued allegiance was essential if
the fruits of collective bargaining were to be realized
had, as a substantial object, the total discouragement of
the remaining casino staff in the collective-bargaining
process. Having considered this bargaining backdrop and
the inexplicable nature of most of the discharges, it was,
and is, my conclusion that without a sustainable affirma-
tive defense in the form of an explanation that the dis-
charges resulted from cause, the Respondent had em-
barked on a course of conduct to discredit the Union's
effectiveness to its casino staff. Hence, I am satisfied that
the General Counsel did meet the burden of proving a
prima facie case with respect to the discharge allega-
tions.
There follows a detailed discussion of the circum-
stances of each discharge in alphabetical order of the em-
ployees' last names and my ultimate findings with respect
to each employee.
1. Arthur Andersen
a. The evidence
Andersen, a craps dealer who started at the Sahara in
1962, was notified of his termination by the Respondent
indirectly (described more fully below) on August 25,
1982. 17 Among the alleged discriminatees involved here,
Andersen had the longest tenure as a Del Webb employ-
ee. 18 In 1977, while employed at the Del Webb Sahara,
Andersen received one of the "dealer of the year"
awards given by the Las Vegas Chamber of Commerce,
an award that likely contributed to his own perception—
repeated in one form or another several times in the
course of his testimony—that he was "one of the best
dealers they've had in there—the best probably."
Andersen joined the Union early in the 1980 organiz-
ing drive and solicited several others to join. He attend-
ed the first union meeting held at the Paradise Park in
Las Vegas and the other union meetings held at Gloria
Nelson's house. Andersen acknowledged that he did not
discuss the union organizing campaign while he was on
the job at the Sahara but, nevertheless, there is some evi-
dence that Andersen's participation in the organizing
drive was known to supervisors and managers of the Del
Webb Sahara. Thus, Andersen credibly testified that
when the news segment concerning a meeting at Nel-
son's home in 1980 was carried by a local television sta-
tion, he was identified along with Vince Giuffre in the
audience by Del Webb Pit Manager Bob Davis (not
conclusion about whether or not the General Counsel has met the neces-
sary burden of proving the nexus between an unlawful motive and the
termination.
17 Andersen was also trained as a 21 dealer but appears to have been a
craps dealer for a considerable period of time preceding his termination.
58 That tenure spanned approximately 22-1/2 years beginning first at
Del Webb's Mint hotel in Las Vegas in 1960 and lasting continuously
thereafter until the Sahara sold in August 1982. Andersen's relocation
from the Mint to the Sahara in 1962 appears to have been in the nature of
a transfer.
hired by Respondent), and Floorman Don Lawrence
(hired by Respondent). In addition, Andersen attended
the NLRB hearing on the election objections filed by
Del Webb but was not allowed in the hearing room as
he was a potential witness. 19 Andersen also attended the
1982 strike vote following the sale of the Sahara but this
event occurred after Andersen's termination by the Re-
spondent.
Andersen learned of his termination on August 25
while taking a shower bath at home in preparation for a
social evening with his wife and stepdaughter. Accord-
ing to Andersen, his stepdaughter answered a telephone
call from Terry Conley at the Sahara who informed her
that Andersen had been fired. Andersen said that his
wife and his stepdaughter then passed the news as he
was completing his shower. Shortly thereafter, Andersen
telephoned the Sahara and spoke with Conley seeking an
explanation. When Andersen asked what happened,
Conley replied only, "Art, I don't know. They just said
'change of personnel.' They told me to call you."
Subsequently, when Andersen went to the Sahara to
get his final check and other material, he was provided
with a termination slip at the personnel department
signed by Personnel Manager Tom Peacock (G.C. Exh.
21). That document reflects Andersen's termination date
as "8-20-82" and the reason for termination "Not hired
by Sahara/Las Vegas Corp," Peacock's signature is
dated August 25, 1982. Seeing the explanation on the ter-
mination slip, Andersen protested that he had been hired
by the Respondent, but he was told by the unidentified
personnel employee who presented him with a termina-
tion slip that "we made a mistake." Andersen was also
told by the same individual that if he persisted in trying
to fmd out why he was terminated, "[The are just going
to send down a couple of rules you broke. That's what
they going to put down there. You'll get a couple of
numbers, or whatever, why you were terminated."
Andersen telephoned Conley again a few days later in
a further effort to learn why he was terminated. Ander-
sen said that Conley persisted in his assertion that he did
not know the explanation for his termination and sug-
gested that Andersen contact Day-Shift Manager Bob
Weiss. Subsequently, Andersen did telephone Weiss and
he too told Andersen that he did not know why he was
terminated, but that after checking, he would get back to
him Ten minutes after his telephone call to Weiss, An-
dersen received a call from an individual in the personnel
department known to him only as Linda. This individual
reported that Andersen was terminated because he had
broken rules 1 and 19, namely, dealing one-handed and
not taking care of the crap game, respectively. At the
hearing, Andersen emphatically denied that he had ever
dealt one-handed or failed in his care of a crap game
during the very limited period of time that he dealt for
the Respondent.
Subsequently, Andersen was provided with a termina-
tion slip dated "8-23-82" which listed as a reason for
termination the following: "Did not make new manage-
ment's standards, less than 90-days." (G.c. Exh. 22.)
" Apparently, however, he was not actually called as a witness
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Apart from a copy of the written rules that Andersen
acknowledged that he received, he said he received
nothing other than minimal instructions from anyone
with the new management about how the crap dealers
were to operate. And this minimal instruction amounted
merely to a brief conversation as he initially started to
work for the Respondent at 11- a.m. on August 20. An-
dersen testified that Weiss approached the table and told
the entire crew, "I want the game to be run smoothly.
Keep the game moving." Andersen said that Weiss then
looked in his direction and remarked, "I've seen your
work. 1 know you can handle it." Apart from Weiss,
there is no evidence that any other supervisor or manag-
er ever spoke to Andersen concerning the performance
of his duties during the course of his 3-day employment
at the Sahara following the sale.
Weiss asserted that it was his decision to terminate An-
dersen; he gave no indication in his testimony that he
had received a discharge recommendation from any of
his subordinate supervisors, or that he discussed Ander-
sen's termination with any °fills superiors. According to
Weiss, his only opportunity, to observe Andersen came
after he transferred from the Hacienda to the Sahara on
August 20 as a shift manager. Weiss claimed that from
his observation, Andersen was very lethargic in the per-
formance of his duties—he testified that Andersen "just
did not seem to be up to par for our standards, especially
after he had the ruling and everything to follow." Asked
if he-,had ever had a conversation with Andersen con-
cerning his job performance, Weiss initially testified that
there had been at least one conversation but he could not
recall what it was about. He did recall that Andersen
smirked at him in response and kind of shrugged his
shoulders. According to Weiss, it was only a day or two
later that he took action to terminate Andersen. Asked
on cross-examination to be more specific about his criti-
cism to Andersen, Weiss testified: "All I know is it per-
tained to the game, something. What it was I cannot re-
member. Something that he wasn't doing right, I guess."
Weiss acknowledged that he was aware Andersen had
been a craps dealer for a long time and that he knew
how to handle a game.
Although Weiss was aware of the union organizing
drive at the Sahara in 1980 from reading about it in the
newspapers, he denied that he was aware that the Union
won an election at the Sahara and, hence, that it repre-
sented activities at the time Andersen was terminated
and he testified that Andersen never complained to him
about any of the changes that had been implemented fol-
lowing the sale of the Sahara.
Weiss asserted in his testimony that the 90-day proba-
tionary period at the Sahara was a standard industry
practice but said that it was irrelevant as far as he was
concerned. Nevertheless, Weiss identified an undated
memorandum that he claimed he prepared concerning
the termination of Andersen shortly after that event oc-
curred. The first paragraph of that memorandum reads as
follows:
When Mr. Anderson [sic] was hired, he was issued
a set of Rules and Regulations and signed an ac-
knowledgement that he understood that he was to
follow these rules and regulations and that he
would be considered a probationary employee for
ninety (90) days from August 20, 1982.
The final paragraph of the memorandum prepared by
Weiss concerning Andersen's termination reads as fol-
lows:
A prior warning slip was not issued because Mr.
Anderson [sic] was fully aware that the above rules
would be strictly enforced, that all aspects of his
demeanor that conflicted to the rules and regula-
tions would be subject to disciplinary action, up to
and including termination.
Although, as will be seen below, Weiss was involved in
the termination of other employees, there is no evidence
that he prepared similar memoranda concerning other
terminations.
b. Conclusions
I find that the credible evidence clearly preponderates
in favor of the General Counsel's allegation that Ander-
sen was unlawfully discharged.
Respondent's defenses concerning Andersen and
nearly all of the other alleged discriminatees can be gen-
erally classified in three different categories: (1) the em-
ployee failed to perform in accord with the high stand-
ards of conduct imposed when Respondent took over the
Sahara; (2) the employee's union activity for the most
part occurred during the 1980 organizing campaign and,
hence, was stale insofar as their 1982 (or 1983) discharge
was concerned; and (3) there is little or no evidence that
agents of the Respondent, as opposed to agents of the
predecessor, were aware of the employees' union activi-
ties.
With respect to the Respondent's assertion that Ander-
sen's job performance Was deficient, the evidence is so
woefully and pathetically inadequate and inconsistent as
to make the conclusion that was not the real reason for
his termination almost inescapable. Between August 20
and 25, 1982, when Andersen was formally terminated
from the Respondent's employment, Andersen had
worked only three shifts. There is no doubt about the
fact that Andersen received no written warning concern-
ing his conduct and, although there is a dispute about
whether he was provided any form of an oral warning
or admonition, Weiss' vacillating vagueness on this point
merits the conclusion that Andersen's testimony to the
effect that he received no oral warnings concerning his
work is the more credible version. Even in the Respond-
ent's brief, Weiss' testimony about the reason for Ander-
sen's termination was properly characterized as vague.
Weiss' testimony is also contradictory in a very materi-
al respect. Thus, on one hand, Weiss specifically dis-
counted the significance of the probationary period in his
testimony but, on the other hand, he claimed authorship
of the purportedly contemporaneous memorandum in
which the probationary period was cited as a significant
predicate in the decision to discharge Andersen. Further-
more, Weiss' assertion first that the media reports of the
1980 union organizing drive at the Sahara sparked con-
SAHARA LAS VEGAS CORP. 351
versations about the subject in the gaming community in
general (he had never been employed at the Sahara
before August 1982) and his subsequent assertion from
the witness chair that he was not aware that the Union
had won the right to bargain does not inspire confidence
in his truthfulness. A similar contradiction exists with re-
spect to Weiss' knowledge of Andersen's tenure and abil-
ity; knowing that, it seems to make no sense that Ander-
sen was summarily terminated without warning after
only three shifts on the job when, as will be seen below,
Respondent appeared to be much more tolerant of em-
ployees with substantially lesser skill and tenure.
The contradictions concerning Andersen's termination
do not end with Weiss' testimony alone. There is some
indication that the Respondent harbored doubt about
whether to hire Andersen in the first place, even though
it purportedly employed a policy of hiring the former
Del Webb dealers solely on the basis of their seniority.
Andersen's extended tenure it would seem would make it
unlikely that there would be any doubt in Personnel
Manager Peacock's mind that Andersen had been hired.
Yet, the evidence reflects that it was necessary for him
to investigate the matter before giving Andersen a defi-
nite and final answer. The personnel form executed by
Peacock and given to Andersen immediately following
his termination completely contradicts both Weiss' entire
testimony about Andersen's discharge and the Respond-
ent's hiring by seniority policy in that it reflects that An-
dersen was never really hired by the Respondent in the
first place. Although Peacock testified in the course of
both the General Counsel's case and the Respondent's
case concerning the Respondent's hiring policy, no at-
tempt was made to clear up the inexplicable contradic-
tion represented by Peacock's termination notice con-
cerning Andersen.
The unusual and irregular conduct by the Respond-
ent's agents surrounding the termination of Andersen do
not stop with the foregoing. In addition, there is no cor-
roboration of Weiss' testimony about Andersen's derelic-
tions from Andersen's more immediate supervisors who
would be in a much more likely position to observe any
deficiencies on Andersen's part. The manner in which
Andersen was informed of his termination is also indica-
tive of an effort on the part of the Respondent to rid
itself of an individual not to its liking and to cover up
the real resons for termination is believed--and I see no
reason not to after having observed Andersen's impres-
sive and candid performance as a witness—he was in-
formed of his termination and essentially by an underling
(Conley), who was completely uninformed about the
basis for his separation, and who exhibited a desire to
have as little to do with it as possible. Even that individ-
ual was not called as a witness to enlighten the tribunal
about the circumstances of Andersen's dismissal and no
other witness explained Conley's involvement. Crediting
as I have Andersen's account of his postdischarge efforts
to obtain an explanation for his termination, it is readily
seen that even Weiss would not explain the basis for his
alleged action in terminating Andersen even though he
was the sole individual purportedly responsible for it.
These circumstances do not inspire confidence in the
truthfulness of Weiss' assertions that Andersen was ter-
minated for cause. Instead, Weiss' failure to confront An-
dersen was terminated for cause. Instead, Weiss' failure
to confront Andersen with his purported deficiencies at
the time that Andersen asked Weiss direclty for an expla-
nation and Weiss' deferral to the Respondent's personnel
department for the purpose of providing Andersen with
an explanation for his termination suggest strongly the
conclusion that Andersen's termination resulted not from
conduct on the casino floor but rather from decisions
made at another location within the Respondent's organi-
zation. Further support for such a conclusion is found in
the personnel clerk's remark to Andersen that it would
be futile for him to press for an explanation for his termi-
nation because other officials would, in effect, conduct a
reason for terminating Anderson.
The foregoing merits the conclusion that I have
reached when the reasons advanced for Andersen's ter-
mination were manufactured. When, as here, an employ-
er charged with unlawful discrimination in the termina-
tion of an employee under the Act, provides false or un-
believable explanations concerning the discharge of an
employee, it is permissible to infer that the discharge was
unlawfully motivated. In my judgment the circumstances
involving Andersen (and as will be seen below, others)
justify such an inference. Thus, as noted above, it is my
conclusion that the Respondent's bargaining conduct ex-
hibited an effort, ab initio, to frustrate the Sahara casino
employees decision to bargain concerning their wages,
hours, and working conditions through a representative
freely choosen under the Act. Having thus decided to
thwart the employees' desire for representation, it is rea-
sonable to conclude that the Respondent was predis-
posed to engaged in other activities in furtherance of this
basic management policy decision.
The evidence establishes that Andersen was an early
and ardent supporter of the Union. His length of service
at the Sahara and his past recognition that he received as
a dealer when coupled with his forceful, confident, and
articulate personality exhibited while testifying in this
case indicates that Andersen was likely to be looked on
by many of his peers for leadership and direction with
respect to the union matter. For these reasons, his inex-
plicable termination immediately following the sale and
the Respondent's announced delay in recognizing the
Union (as it was obliged to do) would clearly serve to
convey the message to other employees that the Re-
spondent intended to discourage the casino employees
union activities. Accordingly, I fmd that the true motive
for Andersen's discharge was centered in the most part,
if not entirely, in the Respondent's overall design to dis-
courage and weaken support for the Union and, for this
reason, his discharge violated Section 8(a)(3) of the Act
as alleged.
2. Ricardo Atilano
a. The evidence
Atilano, a craps dealer who initially began working at
the Sahara in January 1979, was terminated on March
27, 1983. At the time of his termination, Atilano was em-
ployed on the swing shift under the immediate supervi-
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion of Floorman Michael Wong. His shift manager was
Frank Cavaricci.
Atilano joined the Union in June 1980, early in the
course of the organizing campaign. He attended The
union ineetings and solicited authorization cards in the
locker room at the Sahara. Atilano testified that he kept
authorization cards in his locker for anyone who wanted
one and that floormen were occasionally present in the
locker room, but his testimony does not indicate that any
of the floormen ever observed him soliciting other em-
ployees to join the Union at this location. Following the
sale of the Sahara, Atilano continued to solicit employees
to join he Union.
Atilano testified concerning a number of instances in
which the Union came up in the course of conversations
between supervisors and himself, both before and after
the sa1e. , On one occasion, in approximately 1981, Pit
Manager Bob Bradom asked Atilano how the organizing
was going, and on another occasion, when Atilano had
asked Bradom for an extra day off immediatlye prior to—
the sale; Bradom refused saying: "Well, you guys want
an union in, and the NLRB says we got to give you five
days a , week work." On another occasion, Atilano re-
called , a conversation with Foreman Les kasner in
which, kasner expressed his lack of sympathy for the
Union and told Atilano that there was "no way you guys
are gong to get this on." He recalled another occasion
immediately after the 1983 New Year's Eve when the
Union, was brought up in the course of a conversation
with, Floorman Mike Wong as Wong complained about
the dealers' tokes (tips). Atilano said that he good natur-
edly accused Floorman Don Lawrence on numerous oc-
casions of becoming a management "turncoat" and put-
ting the "heat" on the dealers; he said that he had nu-
merous conversations with Lawrence about the Union.
Atilano further testified that on occasion he joined a
Sahara group, which included Floorman Denver Davis,
for postwork drinks at the Cattlemen's Bar in Las Vegas,
a favorite after-work gathering place for Sahara dealers.
Milano ,recalled one occasion at the Cattlement's when
Jim thiakas (a dealter who was transferred from the Ha-
cienda to the Sahara at the time of the sale) remarked
that he had spoken to a floorman at the Hacienda who
had said that not one of the "guys from the old Sahara"
was going to be left there. When this remark was made,
Davis injected: "That's right. They are going to get all
of you. You're gone. They going to get everyone of you.
There won't be one of you left." On another occasion
(which Atilano placed as a couple of days prior to his
termination) Davis purportedly told Atilano: "They're
watching you, they going to get you." 2° Atilano report-
20 On cross-exammation Respondent's counsel established that in Ati-
lano's prehearmg affidavit, there is no reference to any such remark by
Denver Davis. Although this evidence is clearly a proper matter for
cross-examination, it is often difficult to assess whether such deficiencies
reflect on a witness' credibihty or on the thoroughness of the General
Counsel's precomplamt investigation. In view of the discharge conversa-
tion reported by Atilano, which is strongly suggestive of a hidden
motive, I am inclined to believe that the explanation lies in the investiga-
tor's less'than thorough examination.
ed that Davis had made other similar remarks to him
previously.
Both Davis and Lawrence denied the remarks attrib-
uted to them by Atilano. Although Lawrence acknowl-
edged numerous conversations with many of the dice
dealers concerning the Union, he claimed that he had
never discussed the Union with Atilano. Lawrence did
report, however, that in the dice pit there was over-
whelming support for the Union. For this part, Davis
denied that he was ever aware that Atilano was very
prounion. Davis said that Atilano was only an infrequent
visitor at the Cattlemen's Bar where Davis often drank
with other dealers from the Sahara. And, in general,
Davis denied that there were any union discussions at
the Cattlemen in'hispresence. In particular, he specifical-
ly denied telling Milano: "they are watching you. They
will get you, YOu will all be gone. There will be none of
you left." Instead, Davis said that he had told Atilano on
occasion that he should watch his procedures because if
he did not follow , them, he would be gone. Nevertheless,
Davis testified that Atilano had not given him any reason
to be concernedr about his adherence to the dice dealing
procedures. bisvis described Atilano as a good dealer
and that his admonition to Atilano about following pro-
cedures was siniffer to that which he had given all the
rest of the dealers in his area. Although Davis reported
on connection With remarks attributed to him by Atilano
that he had heard rumors after the sale that everyone
might be fired, Davis could not recall ever saying such a
thing to Atilano..24
On the eVenini of Atilano's termination (March 27,
1983), Atilan6 began working at 7 p.m. His initial assign-
ment was as stickinan on a crap game. The position of
the stickman is essentially in the center of the crap table
opposite the boxman, at least a lead-like employee as-
signed to each crap table crew. Two dealers are located
adjacent to the boxman, one on each side. At the begin-
ning of play, the stickman dumps a bowl containing five
dice on the table and pushes the dice toward the player
next in line to shoot. The player selects two dice and the
stickman retrieves the remaining dice (three in the in-
stance of the Sahara) returning them to the bowl. After
each roll, the stiekman's job includes calling the numbers
rolled and retrieving the dice for the player. When the
player "sevens , out,' i.e., rolls a seven after establishing a
game point on the initial roll, the two dice in play are
retrieved by the stickman, the remaing three dice are
again dumped on the table and mixed .with the dice that
had been in play, and then the five dice are pushed in the
direction of the next player to select two dice to ro11.22
2i By the time of the hearing, Davis had quit his employment at the
Sahara. Ordinarily I would accord that factor significant weight in assess-
ing credibility. However, the record in this'. case strongly suggests that
one of the most significant factors in obtaining employment m casinos is
"juice," meaning influence, contacts, or connections with those in a posi-
tion to hire. This record strongly suggests that a dealer's reputation is
likely to follow him/her and that dealers carefully nurture their "juice."
22 This description of the stickman's duties is based essentially on Ati-
lano's testimony. At the hearing a dispute developed between Milano
and the Respondent's witness about whether there were three dice or five
dice in the bowl when the incident occurred which purportedly resulted
in Atilano's termination
SAHARA LAS VEGAS CORP. 353
Floorman Wong testified that as he was observing
play on Atilano's game on the evening of March 27, he
observed Atilano dump a bowl of dice "with a very bad
attitude." According to Wong, Atilano flipped the bowl
and the dice scattered all over the table. He said that
Atilano appeared to be very angry. Wong purportedly
told Atilano immediately "that's enough." According to
Wong, Pit Manager Joe Ortiz was standing directly
behind him and he remarked to Ortiz that Milano should
be given a warning. Wong said that Ortiz took Atilano
to the pit podium and talked to him after the incident
with the bowl, and later turned Atilano over to Shift
Manager Frank Cavaricci.
According to Atilano's version of the relevant events.
Floorman Wong told him that he did not like the way he
had emptied the bowl and then he observed Wong walk
to the podium. Atilano said that he later routinely rotat-
ed from the stick position to the third-base position (one
of the dealers positions adjacent to the boxman) where
he worked for approximately another 20 minutes before
being replaced by another dealer for break time." At
the time he was replaced from the base position, Atilano
was told that Cavaricci wanted to see him, so he went to
the back of the pit. When Atilano approached Cavaricci,
he remarked, "I am in a lot trouble, huh?" Cavaricci re-
plied, "Yeah, you're in real big trouble. I've got to let
you go." Atilano then inquired, "Why? Because the
Boorman didn't like the way I emptied the bowl?" Ca-
varicci responded: "It's not that. It's just your attitude in
general." Atilano argued, "Well, my attitude is no differ-
ent than anybody else's. You know, I do what you want
me to [d]o, I do my job." To this Atilano said that Ca-
varicci remarked, "Well, it's not me. It's out of my
hands. It's somebody else." Atilano asked: "Well, there is
no way I can talk you out of firing me?" Cavaricci re-
sponded, "No. I was suppose to let you go three months
ago, but I didn't. I got a list of names." Atilano testified
that Cavaricci then remarked, gesturing with his hands,
"[This one, this one and this one. And you are on the
list. Wye] got to let you go."
According to Atilano, Cavaricci and he (they had
known each other while they were both employed at the
Marina Hotel in Las Vegas prior to their employment at
the Sahara) parted friends; he told Cavaricci that he had
no hard feelings and Cavaricci told him to tell prospec-
tive employers to call him if he needed a reference.
Atilano picked up his termination slip (G.C. Exh 14)
the following day at the personnel office. The termina-
tion notice lists a violation of "Policy #11" as the reason
for discharge. Although never specifically explained, the
apparent reference in the termination slip is to the
"Sahara Hotel General Rules" that are applicable to all
employees. Those general rules provided that violators
are subject to a warning notice and/or discipline or dis-
charge for among other things: "11. Willful Miscon-
duct."24
23 The testimony throughout the hearing established that the dealers
work 40 minutes on a game and then receive a 20-minute break.
24 Item 11 of the rules and procedures for dice dealers clearly refers to
conduct on the part of the baseman and not a stickman and hence would
not be applicable to the accusation made against Atilano. The only refer-
ence to a sticlonan's duty in connecton with dumping a bowl is rule and
Cavaricci testified that Wong reported the unprofes-
sional bowl dumping incident to him According to Ca-
varicci, Wong told him that Atilano had dumped the
dice "in a very defiant manner," that he had thrown
them up in the air. 25 In his direct testimony, Cavaricci
asserted that Atilano had been warned several times ver-
bally about his defiant manner and attitude, and recalled
that Atilano had received one written warning slip."
Cavaricci testified that when Atilano was terminated,
there was no extended conversation other than the fact
that he had expressed sorrow for letting Atilano go and
advised that the reason for his termination would be set
out on his termination slip. Cavaricci denied that he told
Atilano that he had been instructed to terminate Atilano
3 months prior or anything similar to that. Cavaricci also
denied that he was aware of Atilano's union sympathies
at the time he was terminated, or that Atilano had ever
voiced any complaints about the operation of the Sahara
after the sale, In fact, Cavaricci testified that Atilano was
always very congenial toward him Having thus testified,
Cavaricci then said that Atilano gave him the impression
that he had a bad attitude toward the new management
following the takeover. 27 When cross-examined, Cavar-
icci asserted his belief that Atilano had received three
warning slips as well as numerous verbal warnings, but
this testimony appears to be unsupported exaggeration.
The boxman positioned directly across from Atilano
when the bowl dumping incident reportedly occurred
was Norman Palor. Palor was not called as a witness by
either side, nor was his absence otherwise explained by
anyone. In her brief, the General Counsel argued that I
should draw an inference adverse to the Respondent for
its failure to call Palor. Obviously, Palor would have
been in a position to corroborate the manner in which
the bowl was dumped and to provide useful testimony as
to whether Atilano's actions on the evening on which he
was terminated was in any manner unusual. However,
this testimony could cut both ways—it could either be
procedure for dice dealers 25 that reads: "Always dump the bowl, never
take the dice out of the bowl with your hand."
25 At the hearing, both Cavaricci and Wong physically demonstrated
the manner in which Milano had purportedly dumped the dice bowl. In
her brief, the General Counsel argued that had the dice been dumped in
the manner demonstrated by Cavaricci and Wong, they would have been
thrown into the boxman's money rack. In my judgment, the demonstra-
don at the hearing was exaggerated.
26 The record reflects that Atilano received a written warning dated
January 22, 1983, from Pit Manager Zack Azar (R. Exh. 3). The warning
concerned arguing with a boatman over the boxman's instruction to Mi-
lano to refrain from assisting a player. According to Cavaricci's testimo-
ny, when this warning slip was issued, Atilano refused to sign it and the
matter was referred to Cavancci, who threatened a further warning slip
if he persisted in his refusal to sign the shp. At the conclusion of this
earlier warning transaction, Cavancci said that when Atilano was given
the pink copy of the warnmg slip, he said, "in a defiant manner that the
pink copy would look good in his bathroom." Cavaricci told Atilano to
"knock that stuff off and to straighten his act out."
27 On cross-examination, Atilano testified that nobody was "over
thrilled about the new management" and "nobody was like over thrilled
about the working conditions." tIe acknowledged that he was not enthu-
siastic and that he felt "complacent." According to Atilano, he was un-
willing to make any extra effort because he had the feeling that manage-
ment would end up warning him about it and, as a consequence, he
merely did his job. This testimony by Atilano seems to indicate that he
was pained by the warning that he had received m January.
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
useful to the Respondent or to the General Counsel—and
for that reason I decline the General Counsel's invitation
to base an adverse inference on Palor's failure to testify.
Moreover, it is noted that Atilano's own testimony re-
flects the fact that—at the very least—Wong admonished
him about the manner in which he dumped the bowl.
b. Conclusions
I am satisfied that the credible evidence concerning
Atilano's termination supports the conclusion that the
evidence preponderates in favor of the allegation made
by the General Counsel.
Concluding as I have that the Respondent had adopted
a policy sometime before Atilano's termination to dis-
courage collective bargaining among the casino employ-
ees, the critical determination in Atilano's case essentially
boils down to whether Atilano's account of his termina-
tion conversation with Cavaricci deserves to be credited
over that of Cavaricci. Although in certain respects Ati-
lano was hesitant to acknowledge any responsibility for
prior warning slips that he received, I found him in gen-
eral to be a candid and convincing witness in the course
of his testimony. By contrast, Cavaricci was given re-
peatedly to exaggeration and unsupportable speculation
concerning several matters in the course of his testimo-
ny. Thus, in addition to his inflated account of the
number of warnings received by Atilano, Cavaricci's as-
sertion that Robert Bero (detailed below) was repeatedly
absent from work is simply an unsupported assertion that
provided considerable reason to doubt his veracity.
Moreover, Cavaricci's repeated description of employees
as "defiant" appeared to be used as a depreciating buzz
word so frequently and so out of context that it lost any
real meaning in describing employee actions. Finally, I
note that the detail in the transaction leading from the
bowl dumping incident at the table to the termination
conversation in the back of the pit as described by Wong
and Cavaricci are to a certain degree inconsistent. Thus,
Wong purportedly spoke to Ortiz, who in turn took Ati-
lano to Cavaricci. Cavaricci's testimony suggests that he
learned of the incident directly from Wong and made no
mention to Ortiz, who in turn took Atilano to Cavaricci.
Cavaricci's testimony suggests that he learned of the in-
cident direclty from Wong and made no mention of
Ortiz' role in the termination. Ortiz did not testify nor
was his absence explained. Although I recognize that in
the busy hubbub of a casino dice pit these inconsistencies
may be only incidental, especially months later, they do
indicate further a lack of reliability in the account pro-
pounded by Cavaricci. On the other hand, there would
be a natural tendency on the part of Atilano to more
clearly recall the events surrounding his termination as
the impact on his life was obviously greater than anyone
else involved. Because Atilano's demeanor while testify-
ing as a witness provided no significant basis to discount
his testimony when weighed against that of Cavaricci, I
find that his account of the termination conversation
with Cavaricci to be reliable and generally accurate.
Crediting as I have, Atilano's account of the termina-
tion conversation, it is clear that it provides ditect evi-
dence that his termination was ordered by others in the
Respondent's organization and was not the result of ac-
tions that occurred on the floor. Accordingly, it is my
conclusion that the Respondent's explanation of Atilano's
discharge propounded at the hearing was a pretext to
mask the true reason for his termination. As Atilano re-
mained an active union sympathizer and had been
throughout the organizational effort an open supporter of
the Union, I fmd that it is reasonable to conclude under
the circumstances—especially in view of the Respond-
ent's policy of resisting the employee's effort to bargain
through a representative chosen under the Act—that Ati-
lano's discharge resulted primarily from the Respond-
ent's overall policy of discouraging union activities
among its casino dealers. Accordingly, I fmd that Ati-
lano's termination violated Section 8(a)(3) of the Act as
alleged in the General Counsel's complaint.
3. Robert Bero
a. The evidence
Bero, a crap dealer who began his employment at the
Sahara in 1975, was terminated effective September 11,
1982.
Bero's active support of the Union was manifested in a
variety of ways. He joined the Union in approximately
June 1980, early in the organizing drive. In addition,
Bero estimated that he passed out approximately 15
pledge cards to other employees and that employees re-
turned pledge cards to him, apparently to pass along to
the Union. In addition, Bero said he discussed the Union
with a variety of employees and supervisors throughout
the organizational effort. Thus, Bero recalled that there
was open talk about the Union in the dice pit itself. He
recalled one conversation with Les Kasner (who at the
time was employed as a boxman, but later became a
floorman) in which Kasner sought to discourage the
union effort by suggesting that the management might
put "no tipping" signs on the tables and might close , the
hotel for a short period and reopen with an entirely new
staff. Bero also said that he had a number of conversa-
tions concerning the Union with Floorman Don Law-
rence. According to Bero, Lawrence would always ask
probing questions about what was happening, what dif-
ferent employees were doing, and where Bero stood.
Bero testified that he never made any secret about his
prounion attitude. Bero further said that he attended two
sessions of the polygraph hearing at which supervisors of
the Del Webb management were present and that he was
present at the union meeting held at Gloria Nelson's
house that was covered by a television news team. Bero
said that he appeared on television as a result of this cov-
erage, apparently as the television camera panned the au-
dience. 28 Bero attended the strike vote meeting held at
the union hall on August 30, 1982, and recalled that
there were television cameras as he entered the union
hall. Bero also recalled that following the evening news-
cast after the strike vote meeting, Floormen Denver
Davis and Don Lawrence indicated to Sid Martin, Vince
Giuffre, and himself as they approached the dice pit to-
28 In addition, Bero recalled that Sahara employees Art Andersen, Bob
Brooks, Q. B. Bush, and Vince Giuffre also were on television as a result
of the coverage of the meeting at Nelson's home
SAHARA LAS VEGAS CORP. 355
gether to commence work that they had seen all of them
on television." According to Bero, the television news
commentator of the evening of the strike vote meeting
lead into the story with a comment to the effect that this
was the first time in the history of the State of Nevada
that a casino staff at a major strip resort was considering
strike action. Following the strike vote meeting, Bero
was interviewed by a reporter from the print media con-
cerning his opinion about the events that had caused the
strike vote, but that as far as he knew, his name was
never mentioned in a newspapar article.
Bero also testified concerning the sole independent
8(a)(1) allegation contained in the complaint. In this
regard, Bero said that on August 27-3 days before the
strike vote—he was on his way to the dealers' room for
his regular break and passed by an area where Lawrence
was seated on a couch. According to Bero, he stopped
to speak with Lawrence for a few moments and men-
tioned that the situation at the hotel was very bad be-
cause no one's job was safe including Lawrence's. Bero
said that Lawrence responded by asking, "Are you sanc-
tioned to have a strike?" Bero told him that there was
going to be an election in 3 days and that they would
fmd out then. Bero said that Lawrence then asked,
"How do you guys feel? Are you solid, are you togeth-
er?" In characterizing this conversation with Lawrence,
Bero said that he was mildly supprised because Law-
rence's questions seemed to change the direction of the
conversation but that he did not feel that Lawrence's in-
quiry was malicious or threatening.
The events immediately preceeding Bero's termination
occurred on September 9, 1982. On that date Bero was
scheduled to report for work on the swing shift at 7 p.m.
He recalled that by the early afternoon he remained in
bed for the most part suffering from symptoms of the flu,
i.e., elevated body temperature and vomiting. Feeling
unfit to report for work, Bero requested that his girl
friend, Madonna Baguj, call the dice pit, report his ill-
ness, and advise that he would be unable to report for
work that evening. Bero said that he Overheard Baguj
speak on the telephone shortly after he made this request
and specifically overheard a portion of her conversation
in which she asked to speak to the dice pit, report that
she was calling about Bero's illness, and advise that he
would not be able to report for work that night. When
she completed the conversation, Bero asked her if there
was any problem and that she reported to him that there
was no problem at all.
Baguj testified concerning her telephone call to the
casino on September 9. She said she telephoned from
Bero's home and asked for the dice pit when she reached
the casino. Shortly thereafter, a woman came on the line
and she asked for the dice pit manager, but the woman
told her that she would take care of the matter. At that
point, Baguj said that she told the woman (who never
identified herself) that she was calling for Bero, that he
was ill with the flu or virus, and that he would not be
able to report for work. According to Baguj, the woman
on the other end, after hesitating for a few moments, said
29 According to Bern. Davis, and Lawrence made a joke of it. One of
them remarked, "Here come the movie stars."
that was fine and the conversation ended. According to
Baguj, she only called the Sahara on Bero's behalf on
this one occasion. Baguj said that Bero did not leave the
apartment the rest of the day; instead he remained in
bed.
According to Bero, he reported for work the follow-
ing day, September 10, and worked through the evening.
Bero said that nothing was mentioned to him about being
absent the previous work shift. In more general terms,
Bero reported that he had never been criticized by any
of the supervisors or managers following the sale."
At approximately 9 a.m. on September 11, Bero re-
ceived a telephone call from Graveyard Shift Manager
Gary Chandler. At this time, Chandler told Bero that he
was terminated because the casino was making some
changes. Chandler gave no further explanation.
Bero said that the following day he went to the hotel
where he was given a written termination notice (G.C.
Exh. 17). Bero's termination notice is signed by Swing
Shift Manager Cavaricci. It recites as a reason for his
termination, a violation of several rules including general
rules 1 and 10, casino department rules 7 and 21, and
dice rule number 33. General rule 1 alludes to poor at-
tendance due to habitual tardiness or unexcused ab-
sences. Bero asserted that his September 9 absence was
the sole occasion following the sale he did not report for
a scheduled shift. Apart from Cavaricci's testimony dis-
cussed below, no attempt was made to rebut this asser-
tion by Bero from any of the documentary evidence
available to the Respondent. General rule 10 and casino
department rule 7 both relate to insubordination. Bero
denied that he had ever been warned or reprimanded
concerning any insubordinate conduct and denied that he
had any encounters with any member of the new, man-
agement of an insubordinate nature. Casino department
rule 21 refers to the 90-day probationary period and dice
rule 33 prohibits cross-firing." Bero denied that he had
engaged in any cross-firing since the new management
took over the Sahara or that he had even been accused
of engaging in cross-firing.
Following his termination Bero applied for unemploy-
ment compensation benefits and his application was op-
posed by the Respondent. According to Bero at the un-
employment compensation hearing held to resolve the
issues raised by the Respondent's opposition, Pit Manag-
er Joe Ortiz testified that Bero was terminated because
he had called in sick on numerous occasions and that
when he, Ortiz, attempted to reach Bero, on such occa-
sions, Bero was not at home. In the present proceeding
Bero denied that he had called in ill on "numerous" oc-
casions.
On cross-examination, Bero was questioned at length concerning
warnings that he had received under the Del Webb management that
dated from 1981 and before This evidence shows that Bero had received
approximately four written warnings under the old management, but
none related to his bemg absent from work. As in all other instances, the
Respondent conceded that the pnor Del Webb warnings were not con-
sidered in making the decision to 1 teninnate Bero. Indeed, in no case is
there evidence that the employee's personnel file was reviewed for any
purpose prior to, or at the time of, their termination
31 Cross-firing is nonwork related talk between dealers The record
shows in general that cross-firing is strictly prohibited when play is in
progress and largely ignored at dead tables, s e., tables where there is no
play.
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cavaricci testified that he terminated Bero for exces-
sive absenteeism asserting that he had called in sick sev-
eral times. Cavaricci could not recall the number of
times that Bero had called in sick but he asserted gener-
ally that it was "quite often." Cavaricci denied that he
was instructed by anyone to terminate Bero and reported
that he did not have a conversation with Bero at the
time he was terminated.
Although Shift Manager Gary Chandler was called by
the Respondent concerning the termination of another
individual, Chandler did not testify concerning his in-
volvement in the termination of Bero. As previously
noted, Ortiz was not called as a witness in this proceed-
ing.
Floorman Don Lawrence testified that approximately
2 weeks after the sale, he had occasion to warn Bero
about cross-firing. Lawrence recalled that at the time
Bero was on a dead game (no players) and that he was
attempting to speak to another dealer in a live crap
game. He reported that Bero discontinued the cross-
firing when he told him to do so. Lawrence said he re-
ported the incident to Ortiz at the time. Lawrence could
not recall the name of the other dealer to whom Bero
was speaking but asserted that he talked to both the deal-
ers about the cross-firing. Lawrence acknowledged that
no written reprimand was given concerning the cross-
firing incident. Although Lawrence acknowledged that
he was aware that almost all of the dice pit dealers fa-
vored the Union, he testified that dealer Dick Moody,
who was still employed at the Sahara at the time of the
hearing, was the only dealer who was very outspoken
about his prounion sympathies.
b. Conclusions
The credible evidence proponderates in favor of the
General Counsel's allegation concerning Bero's termina-
tion.
Bero, who impressed me as a credible and candid wit-
ness, was an active union sympathizer. It is evident that
he was open and straightforward about his sympathies
with his supervisors over the years and, hence, I find
that knowledge of Bero's sympathies were well known
among those in the Del Webb hierachy at the Sahara.
The effectuation of Bero's termination as described by
him strongly suggests that it was originated at some
place in the Respondent's organization other than at the
casino floor supervisory level. Thus, Bero received
notice of his termination from Supervisor Chandler who,
insofar as this record shows, had no involvement with
the discharge decision. Moreover, Chandler's explanation
to Bero that he was being terminated "because some
changes were being made" when compared to the rea-
sons listed on Bero's termination slip further suggests
that the Respondent was attempting to mask the true
reason for Bero's discharge.
In addition to Chandler's misleading explanation to
Bero about the reason for his discharge, other evidence
discloses serious deficiencies in the Respondent's expla-
nation of the reason for Bero's discharge. Thus, no sup-
port exists for Cavaricci's assertion in the instant hearing
and Ortiz's assertion in Bero's unemployment compensa-
tion hearing that Bero had been absent frdm work due to
illness on an excessive number of occasions. In fact, the
record shows that Bero reported ill on one occasion only
and the Respondent made no attempt to dispute his testi-
mony on this point with its business records. Moreover,
Cavaricci, the only witness of the Respondent to testify
about the reasons for Bero's discharge, made no mention
of the purported insubordination listed on Bero's termi-
nation slip as among the reasons for his separation. These
variances between Cavaricci's testimony, the reasons ad-
vanced on Bero's termination slip, and the true state of
affairs further support the conclusion that the Respond-
ent has not disclosed its real motives for discharging
Bero.
Because the Respondent has not proffered a consistent
and believable explanation for terminating Bero, it is nec-
essary to look elsewhere in this record for the true
reason for Bero's discharge. Having done so, I fmd that
it is reasonable to infer that Bero's discharge was
prompted by his union sympathies as it occurred at a
time when the Respondent was otherwise engaged in ac-
tivities designed to frustrate the collective-bargaining
process and, when called on to provide an explanation
for Bero's discharge, the Respondent put forth reasons
that are unsupported and false. In these circumstances,
the only other inference permissible from this record is
that Bero was terminated because of his union sympa-
thies and, hence, I conclude that Bero's termination vio-
lated Section 8(a)(1) and (3) of the Act as alleged in the
complaint.
With respect to the independent 8(a)(1) conduct al-
leged involving Bero and Lawrence, I find that the Gen-
eral Counsel's evidence insufficient to support that alle-
gation.
Bero acknowledged several conversations with Law-
rence regarding union affairs. The record supports the
conclusion that the strike vote matter was well known
and widely discussed at the Sahara. Lawrence's appar-
ently casual inquiries to Bero contain no direct threats or
promises and, in view of the prior discussions with Law-
rence about union matters, the circumstances proffered
by the General Counsel to support the coercive interro-
gation allegation clearly do not meet the present Board
standard. Rossmore House, 269 NLRB 1176 (1984).
4, Raymond Ferrero
a. The evidence
Ferrero, a day-shift 21 dealer who commenced work-
ing at the Sahara in 1966, was terminated on July 29,
1983. 32 Of the discharges alleged in the instant com-
plaint, Ferrero's was the last. Ferrero was terminated by
Joe Bono, the day-shift 21 pit manager at that time.
Until his discharge, Ferrero had never received any
written warnings or any other known disciplinary action.
On one occasion approximately 7 or 8 years before the
hearing, Ferrero had been honored as the "dealer-of-the-
month." Nevertheless, Ferrero's self-described assessment
of his ability was that he was an average dealer.
32 Ferrero was originally employed at the Del Webb organization at
the Mint in January 1964 and was transferred to the Sahara in 1966.
SAHARA LAS 1/QA-S CORP. 357
In the 10-year period preceding his discharge, Ferrero
assisted the dealer's toke committee in dividing and dis-
tributing the dealers' tokes (tips). During the final 2 years
of his employment, Ferrero served as an elected repre-
sentative of the 21 dealers on the toke committee. In ap-
proximately June 1980, Ferrero attended one of the
union meetings at Gloria Nelson's home and his interest
in the organizing drive at the Sahara was sparked at that
time. Following the initial meeting that Ferrero attended
it was his belief that he attended all other union meetings
related to the Sahara organizing drive save one. Addi-
tionally, Ferrero solicited other dealers to join the Union
in the dealer's breakroom and in the "help's hall." Fer-
rero's interest in the Union continued even following the
sale of the Sahara; he solicited dealers transferred from
the Hacienda to join the Union. According to Ferrero's
estimate, at one time or another he talked to nearly all of
the dayshift 21 dealers about joining the Union. When
Ferrero attended the August 1982 strike vote, he was
interviewed by a television newsperson and his interview
was carried on a local television station. Ferrero recalled
that one of the department heads at the Sahara spoke to
him concerning the television interview. 33 When collec-
tive bargaining began, Ferrero was one of six or seven
employees who attended the negotiating sessions as an
observer.
On his fmal day of employment, Ferrero was assigned
in the 21 pit as a relief dealer. 34 At approximately 4:20
p.m. Ferrero filled in for the regular dealer on Black
Jack table No. 1 (BJ-1). There were three players at that
table when Ferrero entered the game; one of the players,
Gaylord Stubbings, was betting substantial sums of
money and was usually playing more than one hand per
game. Although Ferrero was not acquainted with Stub-
bings, the latter also placed bets for Ferrero from time to
time that ranged from $25 to $100.
Because of the stakes advanced by Stubbings, the play
at BJ-1 attracted considerable attention. Thus, in addi-
tion to the floorman, Jaime Rodriguez, whose duties or-
dinarily included close oversight of a limited number of
21 tables, the play at BJ-1 was carefully observed by Pit
Manager Bono and his immediate superior, Shift Manag-
er Weiss. Bono said he paid particular attention to the
play at BJ-1 by standing behind and to Ferrero's left
where he could observe the dealing during this entire
relevant period with the exception of a brief period
when he turned away to telephone the "eye-in-the-sky"
to determine whether the play was being videotaped."
Weiss, who introduced himself to Stubbings and chatted
with him, appeared to have been present for most of the
period after Ferrero arrived to deal, standing adjacent to
Stubbings facing Ferrero. Dave Slater, the security em-
ployee on duty in the "eye-in-the-sky" and himself an ex-
33 During his testimony, Ferrero could not recall the department
head's name; it was his belief that the individual headed the Sahara's ad-
vertising department.
34 The relief dealer substitutes on a 21 table so the regularly assigned
dealers may be relieved for their 20-minute break
35 The "eye-in-the-sky" refers to the overhead electronic surveillance
system that is manned by security personnel The system is capable, inter
alia, of scanning the casino floor, focusing on a single table, and videotap-
ing play.
perienced dealer, observed the amount of money being
bet by Stubbings as his camera system scanned table-to-
table and began videotaping the play at BJ-1 because it
was easily the heaviest action in the house at the time."
Where large stakes are involved, it does not appear that
added supervisory attention is unusual. Forewarned by
the departing dealer of the heavy sums involved, Ferrero
asserted that he exercised considerable caution in dealing
to Stubbings as he had not been involved in a game with
such large stakes in a number of years and he was nerv-
ous about it.
Ferrero continued to deal at BJ-1 beyond the normal
20-minute break period a relief dealer would be expected
to be at the table. No explanation was provided about
why this occurred or who may have made the decision
that Ferrero was to be retained at the table. While Fer-
rero was still dealing, Stubbings eventually exhausted his
chips and executed a marker (credit slip) for an addition-
al $1000 in chips. After losing a portion of that money,
Stubbings finally withdrew from the game at 4:45 p.m.
having lost, by Ferrero's estimate, approximately $4000
in slightly less than half an hour while Ferrero was deal-
ing.
According to Ferrero, the only impropriety called to
his attention during the course of play occurred when
Stubbings put down bets for fOur hands of 21. It is con-
certed that the house rules limit players to three hands in
any single game but Ferrero asserted that when the four
bets were placed he looked over his shoulder at Bono
and then dealt the hands. 37 At the completion of that
game, Ferrero reported that Bono admonished him to
limit the play to three hands per player per game. Bono's
recollection of this incident varied only insignificantly
from that of Ferrero but, more importantly, Bono con-
ceded that such an infraction would normally result only
in a written warning after repeated violations and that a
dealer would only be discharged for this reason on fur-
ther failure to adhere to the rule. Nonetheless, Ferrero
said that when he was finally relieved on the table his
floorman informed him that Bono wanted to speak to
him about dealing four hands.
Although Ferrero sought to comply with the floor-
man's instructions immediately, he was unable to locate
Bono within the 21 pit and soon left for his own 20-
minute break period. When Ferrero returned and was
about to relieve another dealer, Homer Sims, another
floorman, told him to retrieve another dealer from the
break room and then wait for him at the bar. Ferrero
complied with that instruction also. After a short wait at
the bar, Ferrero was approached by Bono who told him
he was being terminated. Ferrero asked if the reason was
his union activities, noting that he had worked at the
casino for 19 years. Bono responded, "I can't tell you.
You'll find out when you get your termination slip."
Rhetorically, Ferrero questioned, "You can't tell me[?]"
Sticking to his earlier response Bono replied, "No, you
36 Slater began videotaping the game even before Bono telephoned
37 Ferrero's testimony does not show that Bono responded to Ferrero
in any fashion. Ferrero said that earlier when Stubbings initially bet a
$100 chip for the dealer, he hesitated to look at Bono and Bono respond-
ed with a nod Ferrero interpreted as approval.
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
will get it when you get your termination slip [tomor-
row]." Ferrero then left as he was not given the option
of completing his scheduled shift.
The termination slip later provided to Ferrero (G.C.
Exh. 19) listed the following three reasons for his termi-
nation: (1) poor job performance; (2) dishonesty; and (3)
permitting a player to handle bet money after the start of
a game. Apart from the termination slip, there is no evi-
dence that Ferrero was provided with an explanation for
his termination, notwithstanding that the first two rea-
sons listed on the termination slip are, at best, generic in
nature.
Bono was the sole witness called by the Respondent to
explain the reasons for Ferrero's discharge despite the
fact that—as detailed further below—several others who
testified in this proceeding about other matters were
closely involved in the discharge decision if, in fact, no
more responsible for it than Bono. Bono, who agreed
that he had encountered no problems with Ferrero's
work performance prior to July 29, explained that as he
watched Ferrero dealing to Stubbings there were a lot of
things "going on" that he could not pinpoint but that he
did not like. Pressed further to explain what he observed,
Bono explained, "Just . . . a lot of little discrepancies,
nothing major, but just a lot of little things." Principal
among those "little discrepancies" (as guaged by the fact
that they were the only ones he could recall asked for
further detail by Respondent's counsel) were the very
slow-paced progress of the game and the four-hand game
dealt to Stubbings (which, as noted above, Bono later
conceded on cross-examination was not normally a
ground for termination nor was it cited on Ferrero's ter-
mination slip). Bono asserted that his discomfort about
the game centered solely on the play involving Stubbings
rather than the other players.
After watching the game for approximately 15 to 20
minutes, Bono telephoned the overhead security station
to inquire if the play at BJ-1 was being taped and
learned that it was. Bono then returned to watch the
play until Stubbings left the table. At the hearing, it was
Bono's opinion that Ferrero was aware that the play at
BJ-1 was, at least, being observed by the overhead
camera.
When Stubbings departed, Bono went to the overhead
security room to review the videotape. According to
Bono's account, the videotape was eventually reviewed
approximately three times with a variety of individuals
before the decision was made to terminate Ferrero and
that decision was effectuated. Thus, Bono testified that
after he viewed the videotape, he summoned Weiss,
Chandler, Sims, and Peacock to review it because there
were "some discrepancies that I didn't like whatsoever,
and I wanted another opinion." Bono asserted that it was
his judgment after reviewing the tape that Ferrero was
helping Stubbings win. When Bono was pressed on
cross-examination to identify the person who actually de-
cided to terminate Ferrero, he testified, "I guess whoev-
er reviewed the tape." And when asked directly if he
had made the decision, Bono testified, "It was a general
thing amongst the people who reviewed the tape." Nev-
ertheless, Bono also asserted that Weiss and Chandler
were asked to review the tape because, "I don't do any-
thing unless they tell me."
The videotape segment of the play at BJ-1, which
purportedly resulted in Ferrero's discharge, was intro-
duced in evidence through Bono (R. Exh. 6) and he nar-
rated the playing of the tape (which lacks any audio
property) during the hearing. During this narration,
Bono pointed to three instances where, in his judgment,
Stubbings had made a clear hand signal to be dealt an
additional card but Ferrero failed to do so.38
After having an opportunity to review the tape, Fer-
rero testified on rebuttal that he was having considerable
difficulty understanding Stubbings' various unorthodox
signals and would often confirm the player's signals with
signals of his own, which is not an unusual practice.
Ronald Ruffin, a former floorman for the Respondent,
was called as a rebuttal witness by the General Counsel
and was permitted to testify concerning the Respondent's
rules and Ferrero's conformance with them during the
course of play shown on the videotape. In Ruffin's view,
Stubbings hand signals were not very clear and at least
in one instance he felt there were conflicting hand sig-
nals. He noted that if a dealer errs in dealing a card to a
player or bypassing a player, a floorman must be called
to resolve the situation created by the dealer's error;
hence, Ruffin said that as a floorman he would not delib-
erately standby and watch a dealer make a mistake.
In addition, Bono identified an instance in the tape
when, in his judgment, Stubbings added a bet for the
dealer after the first card was pulled from the dealing
shoe." Although Ferrero conceded that the card had
been removed from the shoe, he noted that the card had
not yet been turned over when the bet was placed by
Stubbings. In that instance, Stubbings had placed a $100
bet on behalf of the dealer. In a later instance, Stubbings
placed a late $25 bet for Ferrero and Ferrero rejected
the bet.
Altogether, Ferrero estimated that he won approxi-
mately $600 in tokes in the course of play involving
Stubbings. Because tokes are pooled and divided evenly
among all dealers who worked during any given 24-hour
period, Ferrero estimated his personal gain from the
takes put up for him by Stubbings was approximately $3.
No attempt was made to dispute Ferrero's estimate.
b. Conclusions
I am satisfied that the credible evidence concerning
Ferrero's termination supports the conclusion that the
38 Under the house rules a player is required to provide a hand signal
in order to indicate a desire to either be dealt added cards or to play with
the cards already dealt. The preferred signal for the former is a scratch-
mg motion with a cupped hand over the cards in the direction of the
player. The preferred signal to play with the cards dealt is a palm-down
waving motion over the cards It was agreed that it was the dealer's duty
to see that the player understands the signals and conforms with this
policy presumably to permit the overhead surveillance personnel to un-
derstand the play in progress. Oral commands from the player to the
dealer are not accepted
39 The dealing shoe is a plastic wedge shaped deVice located on the
table adjacent to the dealer that may contain 5 or 6 decks of playing
cards. Proficient dealers remove cards during play from the shoe with a
rapid sweeping like motion over the sloped front of the shoe.
SAHARA LAS VEGAS CORP.
attempt to engage in any dishonest conduct. His unspot-
ted record of 19 years service to the Sahara casino dem-
onstrates that any such attempt would have been highly
out of character.
In sum, having carefully wieghed the Respondent's ex-
planation for Ferrero's discharge, and having rejected
that explanation as being untruthful, it is necessary to
look elsewhere for an explanation of the motives under-
lying this discharge. The record before me shows that
Ferrero was an active and open union adherent over the
course of years the casino employees have attempted to
achieve fruitful collective bargaining that the Respond-
ent has resisted. It is not unreasonable to infer that the
summary dismissal of Ferrero in view of his persistent
adherence to the Union's effort to advance the process of
collective bargaining would serve to weaken the support
for the Union and thereby advance the Respondent's re-
sistence to collective bargaining for the casino employ-
ees. As these conditions remained extant at the time of
Ferrero's discharge and as the Respondent advanced an
untruthful explanation for Ferrero's discharge, I find that
the Respondent sought to further discourage support of
the Union and the process of collective bargaining by
terminating Ferrero. Accordingly, I conclude that Fer-
rero's discharge violated Section 8(aX3) of the Act, as al-
leged.
359
evidence preponderates in favor of the allegations made
by the General Counsel.
Bono's assertion that Ferrero was dishonestly aiding
Stubbings in the course of play on July 29 is, in my judg-
ment, not at all supportable on the basis of the evidence
before me. At the outset, I note that Stubbings was spec-
tacularly unsuccessful; by all accounts, he lost in the
neighborhood of $4000 in the course of a half an hour at
BJ-1. And if as Slater testified, the play at BJ-1 was
easily the heaviest action in the house at the time, I find
it difficult to rationalize Bono's assertion that Ferrero
was undermining the house's interest absent compelling
evidence, which is simply not present in this record. The
fact that the Respondent failed to solicit corroborating
evidence from several other supervisors involved direct-
ly in the oversight of the game and the review of the
tape is, in itself, adequate to permit the adverse inference
that Bono's claim of dishonesty by Ferrero is unsuppor-
table. Additionally, it is reasonable to assume that if
some dishonest conduct was suspected, there would have
been considerably more intervention in the play by the
plethora of supervisors present. In fact, there was practi-
caly none of any significance. If Bono did indeed suspect
some form of collusion between Ferrero and Stubbings,
Ferrero's continuation on the game beyhond the regular
20-minute work period for a relief dealer and the exten-
sion of an added $1000 marker to Stubbings in the course
of play at Ferrero's table are simply inexplicable. Hence,
in weighing the probabilities and available inferences
suggested by the circumstances surrounding the play and
the explanation put forth by the Respondent at the hear-
ing, I am persuaded that Bono's explanation concerning
the reasons for Ferrero's termination is simply false.
Bono's performance as a witness further supports the
foregoing conclusion. Even the record reflects the eva-
siveness of his responses to questions concerning the de-
cision-making process leading to Ferrero's discharge and
his appearance while testifying strongly reinforced my
conclusion that the reason he advanced for terminating
Ferrero was not true. Furthermore, his claim at one
point in his testimony that he was unaware that there
was a Union at the Sahara likewise did not inspire confi-
dence in his truthfulness, especially when he subsequent-
ly conceded on cross-examination that he was aware of
the publicity concerning the Union at the Sahara. In
short, I did not find Bono to be a convincing witness
either in the course of the hearing or on a careful review
of his testimony and, hence, I do not credit his explana-
tion of the reasons for Ferrero's discharge.
By contrast, Ferrero's demeanor while testifying and
the plausible explanations he provided were persuasive.
After reviewing the tape of the play involving the Stub-
bings play, I am satisfied that in connection with the late
bet incident, Ferrero made a reasonable judgment to
accept it. This conclusion is strongly supported by the
fact that there was no intervention by any of the supervi-
sors attracted to the game by the magnitude of the stakes
either to overrule Ferrero's judgment or to caution him
concerning his judgment. Moreover, Ferrero's assertion
that he was being noticeably cautious during the course
of the play with Stubbings and the presence of several
supervisors makes it highly unlikely that Ferrero would
5. Vincent Giuffre
a. The evidence
Giuffre, a swing shift craps dealer who was originally
employed at the Sahara casino in November 1971, was
discharged on September 6, 1982.
Giuffre joined the Union when the organizing drive
first started. Thereafter, Giuffre distributed union pledge
cards to other dealers and solicited support for the Union
at, among other places, the dealer's break room. He at-
tended many of the union meetings and testified in sup-
port of one of the 8(aX1) allegations contained in the
complaint giving rise to the so-called polygraph hearing.
In addition to the foregoing activity, other occurances
suggest that Giuffre's activities have been noticeable to
the Sahara management. Thus, Giuffre was in attendance
at the 1981 union meeting at Nelson's home that received
TV media attention as well as the 1982 strike vote meet-
ing also covered by the media. In both instances, Giuffre
was among those who appeared on local news programs
and his presence was observed by casino supervisory
personnel. Moreover, Giuffre associated around the
casino with other employees who were actively support-
ing the Union including Arthur Anderson and Sidney
Martin, both alleged discriminatees in this matter.
Giuffre was retained by the Sahara following the sale.
Recalling his brief employment history after the sale,
Giuffre said that he worked 3 days, then was off work ill
for 3 days, and, finally, worked 6 consecutive days
before he was terminated. During his illness, Giuffre
called the casino each day at least 4 hours in advance of
his scheduled shift to report his condition as the Re-
spondent's rules require. No evidence was proffered to
contradict Giuffre's assertion in this regard and no expla-
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nation is provided as to why Giuffre's absences were
cited on his termination slip as one of several causes for
his discharge.
Giuffre reported for work as scheduled at 6 p.m. on
September 6, his final day of employment. Three crap
tables were open that evening but only one—that to
which Giuffre was assigned—was busy. At approximate-
ly 8 p.m., Pit Manager Ortiz closed one of the empty
tables and reassigned its crew to Giuffre's busy table.
Ortiz instructed Giuffre's crew to punch out and go
home. There is no evidence that this action was taken
for any reason other than the lack of business.
After Giuffre was relieved, he went to the dealer's
break room, spent 15 or 20 minutes visiting with friends,
and then proceeded to leave the casino, stopping on the
way to punch out at the timeclock. Ortiz met Giuffre at
the timeclock and advised him that he was being let go.
Giuffre sought an explanation but Ortiz told him only
that there were several reasons and that Ortiz did not
know what they were. 4 ° Ortiz referred Giuffre to the
time office for his termination slip but, as it turned out,
the slip was not available for Giuffre until the following
day.
When Giuffre was provided with a termination slip
(G.C. Exh. 16), which is signed by Shift Manager Cavar-
icci, it listed the following as reasons for his discharge:
(1) poor attendance (General Rule 1); (2) insubordination
(General Rule 10); (3) aiding a player and taking odds
without direction from a boxman or a floorman (Dice
Dealer Rule 21); (4) cross-firing (Dice Dealer Rule 33);
and (5) fraternizing with dealers and customers (Dice
Dealer Rule 32).41
In general, Giuffre denied any awareness that the new
management disapproved of his work or work-related
conduct. As noted above, Giuffre's assertion that his ab-
sences for illness were reported in advance in accord
with Respondent's policy is uncontradicted. Giuffre
denied that he was ever accused of insubordination.
Giuffre recalled one instance following the sale where a
player requested his assistance in betting odds that he
provided while Ortiz was standing directly behind him
and Ortiz said nothing in the nature of an admonishment.
Giuffre also denied that he engaged in any cross-firing
with other dealers or that he fraternized with the cus-
tomers. Indeed, the only admonishment Giuffre could
recall that he received from any supervisor or manager
following the sale occurred approximately 2 or 3 days
preceding his discharge when a floorman told him that
he smiled too much for the new casino manager.42
40 In its brief, Respondent asserts that Ortiz "declined to enumerate"
the reasons fcir Giuffre's discharge at this time. Giuffre's uncontradicted
and unambiguous testimony concerning Ortiz' statement does not merit
any inference other than the fact that Ortiz intended to convey the im-
pression that he did not know the reasons for Giuffre's discharge at that
time.
41 Immediately prior to the sale, Giuffre received a written warning
and a 3-day suspension for cross-firing with Art Andersen, who was simi-
larly disciplined. There is no evidence that this mcident played any role
in Giuffre's later termination by the new management.
42 Evidence other than Giuffre's testimony indicated that this admon-
ishment circulated among the dice dealers as a joke;
Don Lawrence, a floorinan who often directly super-
vised Giuffre, acknowledged that many of the dice deal-
ers talked to him about the Union organizing campaign
openly; that nearly everyone who spoke to him favored
the Union; that he was aware that in 1980 nearly every-
one in the dice pit supported the Union; that he was
aware of nearly all of the union activities even though he
never attended any of the meetings. Lawrence denied
that he ever passed information that he acquired about
the Union to the Del Webb management or that he had
been called on by the new management to finger the
union activists. Lawrence further denied any awareness
concerning the existence of a "hit" list of union sympa-
thizers. Notwithstanding his professed knowledge con-
cerning the union activities in general and the sympathies
of many of the dice dealers, Lawrence asserted that,
even at the time of the instant hearing, he was unaware
that Giuffre, whom he regarded as a personal friend, was
a strong supporter of the Union.
Lawrence, who by the time of the hearing had been
promoted to the position of pit boss on the recommenda-
tion of Swing Shift Manager Cavaricci, asserted Casino
Manager Boni's announcement shortly after the sale that
line bets were being discontinued until further notice, re-
sulted in a precipitous change in Giuffre's attitude
toward his work. According to Lawrence, Giuffre had a
"special dance of his own" (meaning that he gyrated his
body in a certain fashion Lawrence thought was unbe-
coming for a dice dealer) and that he was the kind of
person who "pretty much had it the way he wanted it,"
Lawrence said that Giuffre broke many of the rules; he
engaged in hustling, did not pay attention to the game,
and engaged in cross-firing. Purportedly, Giuffre told
Lawrence that he did not care if he was fired because he
could at least collect unemployment insurance."
Lawrence testified that Cavaricci bore the responsibil-
ity for Giuffre's discharge. Although Cavaricci testified
about other matters, he was not called on to explain the
Respondent's motive for terminating Giuffre. As noted
before, Ortiz, the pit manager who informed Giuffre of
his discharge, was not called at all as a witness. Law-
rence, the only supervisor to testify concerning Giuffre,
said that he did have a discussion with Cavaricci con-
cerning Giuffre prior to Giuffre's discharge, but it is un-
likely that Lawrence's report caused Giuffre's discharge.
Thus, when asked if such a conversation occurred, Law-
rence testified, "I'm sure I [did], but not from the stand-
point that he should be fired . . I might have said,
'Vince is getting out of line here." According to Law-
rence, his report to Cavaricci was not precipitated by
any major infraction of the house rules.
Lawrence claimed that Giuffre's unacceptable conduct
finally reached the level to cause him to be concerned
for his own position so he went to Ortiz in order to
relate some of Giuffre's derelictions. Lawrence said that
Ortiz told him not to worry about it.44
43 Lawrence acknowledged that he failed to mention this statement by
Giuffre at a hearing held concerning Giuffre's unemployment insurance
claim following his discharge.
44 According to Giuffre, Lawrence testified at the unemployment in-
surance hearing that he had warned Giuffre about turning his head away
Continued
SAHARA LAS VEGAS CORP. 361
b. Conclusions
The credible evidence preponderates in favor of the
General Counsel's allegation concerning Giuffre's dis-
charge.
I do not credit Lawrence's denial that he was aware of
Giuffre's active support for the Union. Considering the
extent of support for the Union in the dice pit, Law-
rence's acknowledged awareness of the union activity in
general, his claimed personal affinity for Giuffre even to
the point of overlooking Giuffre's alleged work derelic-
tions for so long as to place his own job in jeopardy and
Giuffre's public support of the Union to the extent of tes-
tifying in the "polygraph" hearing, Lawrence's effort to
diminish his knowledge of Giuffre's involvement with
the Union is, in my judgment, contrived. Entirely apart
from Lawrence's knowledge, which for reasons stated
below, I do not regard as particularly significant, Giuffre
is the one individual among the 13 discharged dealers in-
volved here whose support of the Union is a matter of
public record. Hence, Respondent's attempt to diminish
the element of knowledge in Giuffre's instance makes its
defense in Giuffre's case suspect from the outset.
After carefully scrutinizing this record, If am satisfied
that, apart from Giuffre's termination slip that was intro-
duced by the General Counsel, there is no probative evi-
dence explaining the Respondent's reasons for terminat-
ing Giuffre. Although Lawrence recited a laundry list of
Giuffre's purported deficiencies, he admitted that he only
called one minor infraction to Cavaricci's attention (the
individual allegedly responsible for Giuffre's discharge)
and one other infraction of a house rule to Ortiz's atten-
tion. Giuffre's uncontradicted testimony concerning
Lawrence's statements at the unemployment hearing
shows that the decision to discharge Giuffre had already
been made when Lawrence went to Ortiz. If Cavaricci
was motivated to watch for Giuffre's deficiencies as a
result of Lawrence's report, it is not shown in this record
and there is no basis to infer this important fact. Hence, I
am compelled to conclude that the record contains no
explanation whatsoever by any management official re-
sponsible for making the decision to discharge Giuffre
about what caused such action.
As for the termination slip, I reject that likewise when,
as here the listing of Giuffre's purported deficiencies
begins with the claim of excessive absences that is pa-
tently unsupportable on the record before me and there
is otherwise substantial reason in this record to question
the reliability of Respondent's termination records.
Moreover, even Lawrence's exuberance to detail
Giuffre's defects indicates nothing resembling insubordi-
nation as that term is commonly used. Hence, I conclude
that Giuffre's termination slip is little other than a record
designed to mask the real reasons for his termination.
As Guiffre was an active and open union supporter
who was terminated summarily following a long tenure
at the Sahara and at a time when the Respondent was
embarking on a course designed to thwart employee de-
sires for collective bargaining, I find that it is reasonable
from the game (which Giuffre denied at the instant hearmg) and that
when Lawrence told Ortiz about it, Ortiz responded saying not to worry
about it because "he is already fired."
to infer in the absence of an explanation by any manage-
ment official responsible for making the decision to dis-
charge Guiffre (or at least present when the decision was
made) that Giuffre was discharged in order to discourage
union activities among the casino employees. According-
ly, I conclude that Giuffre's discharge violated Section
8(a)(1) and (3) of the Act, as alleged.
6. Loren Johnson
a. The evidence
Johnson, a craps dealer who began working at the
Sahara casino in June 1969, was discharged on Septem-
ber 19, 1982.
Johnson joined the Union in 1981 or early 1982. After
doing so, he attended several union meetings and spoke
openly concerning the Union. Discussions about the
Union around the Sahara occurred almost anywhere ac-
cording to Johnson. He recalled numerous instances
when the Union was discussed among the dealers at the
dice tables when they were standing idle. On other occa-
sions, the subject came up in the back of the dice pit by
the sign-in log, in the dealer's break room, in the rest-
room, at the shoe-shine stand, and other places. Johnson
also recalled that floormen and other supervisors were
within earshot when union discussions occurred; he re-
ported being present on several occasions when floormen
and other supervisors cautioned dealers (including him-
self) against talking about the Union at the Sahara. John-
son identified Pit Manager Chris Cody, and Floormen
Lawrence and Davis as supervisors who had occasion to
overhear dealer talk about the Union in which he was in-
volved."
Following the sale, Johnson was openly critical of the
new management for terminating Del Webb dealers.
Thus, 2 or 3 days following the sale, Johnson spoke
about this subject with dealers Robert Bero and Sidney
Martin and speculated that they, too, would probably be
discharged without reason and without recourse. On this
occasion, Pit Manager John Russo intervened in the con-
versation telling Johnson, "We're not all hatchet men."
Johnson responded by asking Russo why the dealers
should have faith in that assertion after the new manage-
ment had made similar promises in its prehire confer-
ences and then let several dealers go. Nevertheless,
Russo asserted that he was not a hatchman and that he
was not going to fire anyone.
When Johnson was discharged, he was told by Pit
Manager Russo that he was being terminated for insubor-
dination. Johnson described an incident earlier that day
on which Respondent relies to justify its action in John-
son's case. According to Johnson, he was working at a
base position during a busy craps game and was adjacent
to the boxman, Pat Kennedy. As one player was retiring
from the game, Johnson solicited the player to color
change her chips, i.e., exchange smaller denomination
chips for a larger denomination, a routine procedure de-
45 Johnson testified that both Lawrence and Davis intervened in dealer
talk about the Union to caution against that activity at the casino. Neither
denied Johnson's claim in their testimony Johnson claimed that he had
discussions with Cody concerning dealer talk about the Union.
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed to keep as much change at the table as possible.
The player agreed and placed 16 white ($1) chips on the
table. Johnson retrieved the chips and placed them in
front of Kennedy calling "color change" so that Kenne-
dy would know to exchange the stack for $5 chips.
Johnson then went about cleaning the layout in front of
him in preparation for the next shooter. As he did so,
Kennedy interrupted to ask, "What's this?" Johnson said
he repeated that it was for a color change to which Ken-
nedy retorted, "Well tell me." Johnson responded briefly
saying that he had told him. At that point, floorman
Tom Lynch spoke up from directly behind Johnson, tell-
ing him to "dummy-up and clean your layout" 46 John-
son said that he made a brief retort to Lynch and contin-
ued with his work.
Johnson continued on the game until his 20-minute
break period. Following his break, Johnson reported to
another table where he worked for approximately 5 min-
utes. At that time, Johnson was relieved by another
dealer who informed him that Russo wanted to speak to
him. Johnson located Russo who told him that he was
fired for insubordination and because he had a record of
insubordination. There is no evidence of any further ex-
change between Johnson and Russo. Johnson denied that
he was deliberately attempting to provoke his termina-
tion.47
According to Lynch, his attention to Johnson and
Kennedy was attracted by a loud exchange between
them that he overheard standing 20 to 30 feet away.
When Lynch went to the table he overheard Kennedy
telling Johnson how to make a payoff and then he heard
Johnson reply, "I dont need you to teach me how to
deal the game." As the table was busy, Lynch said that
he told Johnson to follow the boxman's instructions. Ac-
cording to Lynch, Kennedy reported the incident to
Russo after he was relieved from the game and Russo
asked Lynch to confirm the incident, which he did.
Lynch said Johnson was fired shortly thereafter. Lynch,
who had worked at an Atlantic City, New Jersey casino
immediately before being hired at the Sahara on August
20, 1982, denied that he was aware of Johnson's involve-
ment with the Union.
Neither Russo nor Kennedy testified in this proceeding
nor was their absence explained apart from the fact that
neither were employed at the Sahara at the time of the
hearing.
b. Conclusions
I fmd that the credible evidence does not preponderate
in favor of the conclusion that Johnson was discharged
in violation of the Act.
Although the Respondent's failure to call either Russo
or Kennedy casts doubt concerning Johnson's discharge,
I am satisfied that Johnson's own description, when con-
sidered together with Lynch's testimony, precludes the
conclusion that the reason advanced for Johnson's dis-
46 "Dummy-up" in the dealer's parlance means to shutup or keep
quiet.
44 In this regard, Johnson testified that even though he was unem-
ployed for approximately 3 months following his termination, he did not
apply for unemployment insurance payments because he did not believe
in that program.
charge is false. To a significant degree the violations
found with respect to other discharges herein are
grounded on the most probable inference available after
examining the circumstances surrounding each discharge
and depend in some measure on the conclusion that the
explanations advanced by Respondent's witnesses are
false.
Unlike several other employees involved here, John-
son was informed directly by his pit manager at the time
of the discharge that he was being terminated for a
single reason clearly associated with an incident that had
occurred immediately prior to his discharge. Even John-
son acknowledged that his tone of voice was raised
albeit he asserted that this was due to crowd noise. How-
ever, Johnson's testimony in this regard tends to cor-
roborate Lynch's assertion that Johnson argued with
Kennedy in a voice loud enough to be heard some dis-
tance away, a circumstance likely to be distracting at a
busy crap table. Whatever else may be said, Lynch's
conclusion that an argument had erupted that required
his immediate attention cannot be viewed as unbelievable
or even unreasonable. Moreover, both Johnson and
Lynch agree that Lynch undertook to immediately quell
the situation. As Johnson was quickly terminated by
Russo who as noted, immediately advanced a reason
which, under all of the circumstances, cannot be viewed
as either false or unreasonable, inferences of an unlawful
motive because Respondent failed to provide any believ-
able explanation for discharging Johnson are unwarrant-
ed.
As the General Counsel's case with respect to Johnson
was, at the outset, weak with respect to establishing an
unlawful motive for Johnson's discharge and the reason
advanced by the Respondent is at least plausible under
all of the circumstances, I conclude that the General
Counsel has failed to carry the burden or proving that
Johnson's discharge was unlawfully motivated. Accord-
ingly, I shall dismiss the allegation pertaining to John-
son's discharge.
7. Sidney Martin
a. The evidence
Martin, a swing shift dice dealer who began working
at the Sahara in 1971, was terminated on September 11,
1982.
Martin and dealer Arthur Andersen were early
moving forces in the Sahara organizing effort and they
had contacted the Frontier casino dealers in an effort to
gain knowledge about the organizing process. According
to Martin, this action was motivated by several dis-
charges that had occurred at the Sahara under the Del
Webb management. Martin attended the initial organiz-
ing meeting with representatives of the Union held at the
Flame restaurant as well as all subsequent union meetings
held at Gloria Nelson's home and at the union hall. Fol-
lowing the sale of the Sahara, Martin attended the strike
vote at the union hall and the TV coverage of that event
shown on the three local stations that evening included a
segment shown on the three local stations that evening
included a segment showing dealers Nicholson, Guiffre,
SAHARA LAS VEGAS CORP. 363
Andersen, CaseIli, and himself entering the union hall.
Although Martin avoided discussion of the Union around
the Sahara before the representation election, he and
others, including Floormen Davis and Lawrence, dis-
cussed the Union extensively following the election. Ac-
cording to Lawrence, Martin was an "outspoken" propo-
nent of the Union and this fact was "common knowl-
edge" around the Sahara even among the supervisors.
Although Martin did not testify in the polygraph case,
he did attend that hearing as a spectator on one occasion.
Martin learned that he was being terminated at the
conclusion of an otherwise uneventful shift on September
11 when he was informed by a time office employee that
his was one of three termination notices sent down from
management. 48 Theretofore, Martin had been given no
indication that anyone within the new management was
dissatisfied with his work or conduct, and he had not
been subjected to any type of disciplinary action follow-
ing the salP The next day Martin was telephoned at
home by either Zack Azar, his pit manager, or Cavar-
icci, his shift manager, with news of his termination but
he was provided with no specific explanation of the rea-
sons for his discharge.
The termination slip provided to Martin (G.C. Exh
12) is signed by Cavaricci. It cites insubordination (Gen-
eral Rule 10), the dress code (Casino Departmental Rule
1), and the probationary period (Casino Departmental
Rule 21) in the space provided for listing the reasons for
termination.
Martin, who was unemployed for 6 months following
his discharge at the Sahara, filed a claim for unemploy-
ment insurance that was contested by the Respondent
and a hearing was held concerning the issues presented
by his disputed claim. According to Martin, Floorman
Davis and Pit Manager Azar testified at that hearing for
the Respondent. It was at this time that Martin learned
the particulars of the purported insubordination. Martin
said that Davis testified concerning an incident in which
Martin failed to properly hand off a bet won by a player
and when Davis instructed Martin to hand off the bet,
Martin purportedly said, "Fuck him." Azar, according to
Martin, testified that a player had tendered $50 in chips
to Martin for change and that Martin had failed to prop-
erly tender the change chips to the player. At the instant
hearing, Martin denied that such events had ever oc-
curred.
The only individual who raised the subject of the dress
code at the unemployment insurance hearing was the ref-
eree who questioned Respondent's counsel about wheth-
er Respondent maintained a dress code. The only inci-
dent Martin could recall that this assigned dereliction
might refer to was an occasion when he had gotten a
grease spot on his shirt from a railing at the casino but
Martin claimed that no supervisor ever mentioned the in-
cident to him and Martin's dress was not referred to by
Respondent's witnesses at the hearing of this matter.
Cavaricci testified that he terminated Martin on the
recommendation of Davis, Lawrence, Wong, and Fili-
genzi. Initially, Cavaricci testified that Martin was termi-
4 8 No attempt was made to identify the other two mdwiduals purport-
edly terminated on that date.
nated because he had a bad attitude and was defiant, a
word Cavaricci used repeatedly in describing the con-
duct of discriminatees Atilano, Martin, and Scheck.
Asked if he had personally observed Martin do anything
wrong, Cavaricci testified, "Of course, I observed every-
one of them after they [presumably his subordinate su-
pervisors] told me about their attitude and defiance." Ca-
varicci added that Martin was "defiant and he had abso-
lutely no interest hi the game whatsoever." One of the
"primary reasons" Martin was terminated, according to
Cavaricci, was because Martin "wouldn't protect the
game, he let the customers do what they wanted to do."
Attempting to be more specific, Cavaricci testified,
"Denver Davis had said something about telling one of
the players to do something on the table, to get both
dice at one end of the game, or whatever it was, going
into the come line. [Martin] purportedly replied: "Let
them do what they want to."
Davis testified that the first he learned of any purport-
ed insubordination allegation with respect to Martin was
when it came up at the unemployment insurance hearing.
According to Davis, Martin was not an insubordinate
employee, he simply did not follow the procedures. The
only example Davis recalled of Martin's failure to adhere
to procedures concerned the payment of bets. Davis tes-
tified that Martin did not pay bets or give change the
way he was supposed to, i.e., spread the chips out on the
table so the observation personnel could see the amounts
tendered to the players. Davis said that he never told
Ortiz that he could not work with Martin but he did
recall telling Azar that Martin did not follow procedures.
Davis made no mention in his testimony of the recom-
mendation to Cavaricci to terminate Martin.
Azar testified that one evening early in his Sahara
tenure he overheard an argument between Davis and
Martin that caused him to call Davis aside for an expla-
nation. According to Azar, Davis told him that he could
not work behind Martin and when Azar inquired further
as to what had occurred, Davis reported that he had cor-
rected Martin's procedure for handing off change to a
customer and reminded Martin that customers should not
be allowed to reach into the playing area for their
money. Azar said he was told that Martin responded by
saying, "Fuck it, let them take whatever they want. I
don't care." When Azar passed this information along to
Cavaricci, the latter made the decision to terminate
Martin because he felt if Martin did not care about the
hOuse and the money, Martin should not be there. Azar
testified that no one ever told him that Martin favored
the Union or that he should watch certain employees, in-
cluding Martin, in order to find a reason to terminate
them.
Filigenzi, Lawrence, and Wong did not testify con-
cerning Martin's work performance or any recommenda-
tion that he be terminated.
b. Conclusions
In my judgment, the credible evidence supports the
General Counsel's complaint allegation pertaining to
Martin.
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have credited Martin's denial concerning the occur-
rence of the incident that was cited by Cavaricci and
Azar as the basis for martin's termination. Although it is
true that both Cavaricci and Azar alluded to that pur-
ported incident in their explanation of Martin's dis-
charge, Davis, the supervisor most likely to be familiar
with the incident, did not report any insubordinate re-
sponse to the corrective action he took when he ob-
served Martin improperly tender change to a customer.
Indeed, Davis denied that Martin was an insubordinate
employee and his testimony further lends support for the
conclusion I have reached in several other instances that
the Respondent's supervisors deliberately fabricated rea-
sons to terminate employees by routinely interpreting the
slightest mis-cue as insubordination. Such a conclusion is
clearly consistent with Cavaricci's obviously exaggerated
assertions while testifying that Martin was a defiant em-
ployee. Also noteworthy in evaluating Cavaricci's verac-
ity—which, as noted before, I am not at all inclined to
trust—is the fact that he failed to cite in his testimony
any specific observation he personally made with respect
to Martin's conduct after he was purportedly alerted to
Martin's behavior by subordinate supervisors. When this
lack of mutually corroborative testimony by Respond-
ent's witnesses is considered together with a total ab-
sence of information about how the Respondent's dress
code figured in Martin's termination, I am compelled to
conclude that the explanation for Martin's discharge was
fabricated to hide the true motive.
As the evidence otherwise demonstrates that Martin
was an early and outspoken union sympathizer, whose
attitudes were well known over the lengthy course of
the struggle for representation, I find that the inference
remaining from this record after rejecting the Respond-
ent's proffered explanation for Martin's discharge is that
Martin was one of several employees the Respondent
sought to eliminate from its rolls in order to discourage
adherence to the Union in the future by other employees.
Accordingly, I fmd that the Respondent's discharge of
Martin violated Section 8(a)(1) and (3) of the Act, as al-
leged.
8. David P. McGuire
a. The evidence
McGuire, a swing shift craps dealer who began work-
ing at the Sahara in June 1979, was terminated on July
16, 1983.
McGuire was active in the Union's organizing effort.
In addition to signing an authorization card himself;
McGuire solicited other dealers to do the same. He at-
tended union meetings at Gloria Nelson's home, at the
union hall and at the Cattlemen's Restaurant. 49 Follow-
49 McGuire was the only employee who referred to union meetings at
the Cattlemen's Restaurant. However, several other witnesses referred to
numerous discussions concerning the Union at that location. To the
extent that McGuire may have been in error concerning formal meetings
at this location, I do not deem such error to be significant, especially
when as here, the exchanges that took place at that location may have
appeared, at times, to be the functional equivalent of a union meeting.
ing the sale McGuire solicited several dealers who were
transferred from the Hacienda to the Sahara to join the
Union. McGuire's soliciting activities oecurred primarily
in the "help's hall," at the bar after work, and at "dead"
tables during work. The Union, according to McGuire,
was a normal subject of conversation among the dealers
much the same as sports or social events.
In addition to union talk among the dealers, McGuire
was also involved in exchanges with some of the Sahara
supervisors about the same subject In particular,
McGuire testified that Floorman Denver Davis was fre-
quently present when the Union was discussed at after
work social gatherings involving the dealers. On one oc-
casion following the sale, Davis talked openly about a
"hit list" of employees the new management wanted to
discharge. McGuire said that Davis told him to watch
his "Ps" and "Qs" because the management was looking
for reasons to get rid of people. In another conversation
with Supervisor Dan Cote, during which the Union was
discussed, Cote told McGuire that Paul Lowden prob-
ably would not "give a damn" about the employees'
union activities as it was unlikely that Lowden was at all
worried about the Union. McGuire recalled a further
conversation that occurred in the month preceding his
discharge involving Dick Moody, an activie unionist and
a member of the negotiating committee, dealer Andy
Rahas, and himself wherein Moody told of the Union's
pay proposals in negotiations. On this occasion, McGire
told Moody that he would accept a lower than proposed
pay rate but that he wanted a "grievance" committee.
According to McGuire, Shift Manager Weiss, who was
standng only a few feet away, looked at McGuire and
then "more or less turned away." Finally, McGuire
voiced complaints to Supervisors Orlando and Azar
about his failure to receive consecutive off-days as well
as the staggered starting times, both of which McGuire
attributed to the new management.
Following the sale of the Sahara, McGuire received
three written warnings prior to being discharged. In the
first two warnings, dated September 24, 1982, and March
29, 1983, McGuire was cited for violating a house rule
prohibiting too much assistance to players. McGuire ex-
plained that the latter warning resulted when he remind-
ed a player to place a bet that the player had been
making for the previous 30-45 minutes. Weiss, the swing
shift manager at the time, overheard McGuire and in-
structed him immediately not to be that attentive to any
particular player. McGuire asserted that no one had ever
questioned similar action in a similar situation before.
Indeed, McGuire asserted without contradiction that dis-
putes occasionally arise when players overlook long-
standing bets that require intervention by a floorman
who, likely as not, will resolve the matter by paying the
player. McGuire asserted that his conduct on this occa-
sion was designed to prevent just such an incident from
arising.
McGuire acknowledged that on July 9, 1983, a few
days prior to his discharge, he exchanged words with
Floorman Sam Filigenzi when Filigenzi verbally warned
McGuire against hustling a customer, i.e., inducing the
customer to place a bet for the dealer. McGuire denied
SAHARA LAS VEGAS CORP. 365
that he was engaged in that prohibited conduct and sub-
sequently complained to Cavaricci, the shift manager,
about Filigenzi's accusation. Cavaricci, according to
McGiure, simply told him he should turn in his resigna-
tion if he could not get along with his floorman, advice
which McGuire declined to follow because he liked
working at the Sahara.
McGuire was terminated at the conclusion of his shift
on Sunday, July 16, by Shift Manager Cavaricci who
told McGuire, "Pat, I've got to let you go." When
McGuire asked about the reason, Cavaricci told him, "I
don't know the reason. It will be on your blue [termina-
tion] slip on Monday."
McGuire's termination slip (G.C. Exh. 39) was signed
by both Filigenzi and Cavaricci. Both of their signatures
are dated July 16. Listed as reasons for the termination
was the following, "Violation of Policy, Job Perform-
ance." McGuire asserted that he never received any type
of specific explanation of the reasons for his dishcarge.
Both Cavaricci and Filigenzi testified in Respondent's
defense of the General Counsel's allegation concerning
McGiure. Cavaricci, who knew that the Union had been
selected by the Sahara dealers by a wide margin but who
denied knowing the union proclivities of any particular
dealer, including McGuire, asserted that McGuire was
terminated following a couple of disputes with Floorman
Filigenzi. The first run-in, Cavaricci said, arose when
McGuire was corrected for being too friendly with a
customer shortly before his termination. Cavaricci said
that Filigenzi reported to him that McGuire had accused
Filigenzi of picking on him and had told Filigenzi to
"get off [his] back?' Cavaricci instructed Filigenzi to
have Mcguire report to him when McGiure was off the
table. When McGuire spoke to Cavaricci (presumably as
instructed), Cavaricci asked McGuire for an explanation.
McGuire told Cavaricci that Filigenzi was picking on
him. Asked to explain, McGuire purportedly told Cavar-
icci that Filigenzi was constantly getting on him about a
variety of matters, especially talking to customers, and
that he could not work with Filigenzi. Cavaricci claimed
that he told McGuire that he was going to have to work
with Filigenzi and that if he returned to his table and did
his job, he would not have any problems. Subsequently,
Cavaricci reported that there was another run-in be-
tween McGuire and Filigenzi "so we let him go." Cavar-
icci provided no specific testimony about this final inci-
dent and was never asked to describe the exit interview
with McGuire but he did deny that he was instructed by
anyone to discharge McGuire.
Filigenzi, who was also aware of the Union's presence
at the Sahara but denied any knowledge of McGuire's
union sympathies, said that he became acquainted with
McGuire when the latter transferred to swing shift from
graveyard. Filigenzi described McGuire's work demean-
or as that of a person who was not paying attention to
the game; he asserted that there were occasions when
McGuire would be "lost, wandering around," meaning
that he would turn his attention from the table and oth-
erwise demonstrate that his mind was not on the game.
Filigenzi claimed that he probably told McGuire to pay
attention to the game a dozen times and that for short
periods McGuire would obey such admonitions. 5° Fili-
genzi declared that on one occasion he removed
McGuire from a game and sent him to Cavaricci because
McGuire had permitted a player to place a bet for the
dealer with odds contrary to the house rules. 51 Filigenzi
did not hear what was discussed between Cavaricci and
McGuire on this occasion but he said that Cavaricci later
told him that McGuire should be given another chance
because he did not want to "go through all that hassle
with the union."
Filigenzi reported that following the above incident,
McGuire was attentive for a day or two and then he re-
verted to his inattentive ways by carrying on conversa-
tions with customers, especially women not involved in
the game. This conduct prompted a further warning of
potential termination by Filigenzi.52
Filigenzi said that he removed McGuire from a game
a second time. Filigenzi claimed that he told Cavaricci
about McGuire's lack of attention to the game but Ca-
varicci told him "to do what [he had] to do" so Filigenzi
let the matter pass again. Filigenzi did not describe what
it was specifically which lead to his action against
McGuire on this occasion."
According to Filigenzi, McGuire was fmally terminat-
ed after he described his problems with McGuire to Shift
Manager Weiss who seemed to know more about
McGuire than he did. Filigenzi said that he recommend-
ed McGuire's termination and that was how McGuire's
discharge resulted.
Weiss testified that he observed McGuire deal and that
it was his opinion that McGuire "dealt for himself,"
meaning that he was more interested in the customers
than he was in taking care of the game and following
house rules. However, Weiss' testimony gives no indica-
tion that he was involved in McGuire's termination.
Respondent's Exhibit 7 is a portion of a videotape
showing McGuire at work on July 14. General Counsel's
Exhibit 44 is additional videotape footage of McGuire
from another angle on the same day. As narrated at the
hearing by Filigenzi, Respondent's Exhibit 7 shows
McGuire engaging in conversation with players and not
paying the kind of attention to the table that is required.
Filigenzi called attention to the other dealer shown in
the videotape who, he claimed, kept his eyes on the table
at all times as is expected. In Filigenzi's view the tape
demonstrates that McGuire was being too courteous to
the customers. In addition Filigenzi asserted that Re-
spondent's Exhibit 7 shows McGuire putting his hand to
his shirt collar without first exposing his hand palm side
5° Cavaricci testified that McGuire had received several "warning
slips" about his lack of interest in the game as evidence by McGuire's
purported habit of turning his head completely away from the game.
There is no documentary evidence McGuire ever received a written
warning for such conduct.
52 House rules permit bets for dealers but not with odds.
52 Specifically, Filigenzi testified that he told McGuire, "You're asking
for it."
53 In describing his chat with Cavaricci, Filigenzi alluded to an inci-
dent that McGuire said had occurred in January or February 1983, and
that It was not until months later that Fihgenzi mentioned it to him in the
course of a casual conversation.
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
up so the security officer has an opportunity to deter-
mine if there are chips in his hand.
On cross-examination Filigenzi acknowledged that a
button reading "Sahara Super Friendly Team" is worn
by all dealers as a part of their uniform and that dealers
run the complete spectrum from those who keep their
head down constantly to those who act like McGuire
purportedly performed, insofar as their appearance of at-
tention to the game is concerned. Respondent adduced
evidence that at the Sahara, the crap dealers were ex-
pected to keep their eyes on the layout at all times while
play was in progress. The General Counsel adduced tes-
timony from Andersen (an experienced crap dealer) that
certain actions by McGuire as shown on Respondent's
exhibit 7 demonstrate that McGuire had to be paying at-
tention to the game and that, in the absence of accompa-
nying sound, it would be impossible to discern whether
the conversation between McGuire and others was con-
versation essential to the game or unnecessary banter.
Contrary to Filigenzi's assertion, Andersen was of the
view that, as shown on the videotape, McGuire was
paying adequate attention to the game. Whatever else
may be said, it was conceded that none of the Respond-
ent's officials who were involved in the termination of
McGuire reviewed the portions of the videotape pertain-
ing to McGuire prior to his discharge and the Respond-
ent makes no assertion that the specific conduct shown
thereon was immediately responsible for McGuire's ter-
mination. Instead, the tape was offered as an exemplar of
McGuire's purported lack of attention to the game.
b. Conclusions
It is my conclusion that the preponderance of the evi-
dence supports the General Counsel's allegation that
McGuire was discharged for discriminatory reasons.
The evidence demonstrates that McGuire has been
sympathetic to the Union's effort to secure effective rep-
resentation and bargaining for the Sahara dealers almost
from the outset. And there is no indication that McGuire
was a closet supporter. The repeated conversations that
are indicated through his social contracts with the Re-
spondent's floormen strongly suggest that McGuire's atti-
tudes about the Union were well known. Other evidence
shows that McGuire's interest in the Union survived the
transition in ownership and that he undertook to con-
vince the employees transferred from the Hacienda to
join the Union's protracted cause. Still further evidence
shows that his continued involvement in union matters
was not lost on those new managers who appeared on
the scene following the sale including, in particular,
Weiss who was implicated by Filigenzi in the decision to
discharge McGuire. Both Cavaricci and Filigenzi denied
knowing of McGuire's union sympathies, and Weiss
denied the inference strongly suggested by McGuire's
testimony that he overheard the McGuire-Moody con-
versation wherein McGuire advanced his strong prefer-
ence for a grievance system. Notwithstanding their deni-
als, Filigenzi's testimony that Cavaricci demurred disci-
plinary action against McGuire on one occasion because
he did not want to "go through all of that hassle with
the union" strongly suggests that, at least in Cavaricci's
mind, there was a connection between McGuire and the
Union that could be troublesome. Hence, in the absence
of a plausible explanation for McGuire's discharge, the
General Counsel's prima facie case provides a basis for
concluding that McGuire's termination was discrimina-
torily motivated. This conclusion is warranted notwith-
standing the fact that it occurred several months follow-
ing the sale and after at least two warnings to McGuire
to get to work on time especially where, as here, the evi-
dence pertaining to Raymond Ferrero, discharged even
later, strongly indicates a lingering discriminatory motive
on Respondent's part.
The quality of evidence presented by the Respondent
to rebut the prima facie case by showing a lawful motive
for McGuire's discharge can, at best, be described as
confused. Although Cavaricci, Filigenzi, and Weiss all
portrayed McGuire as a dealer inattentive to his duties
over a long period of time—an assertion that is, in. itself,
puzzling in view of the rapidity with which the Re-
spondent dispatched several other dealers involved here
for alleged minor infractions54—the Respondent's evi-
dence proffered concerning the events that finally led to
McGuire's discharge is hopelessly contradictory. Thus,
Cavaricci reported that McGuire was discharged after
McGuire and Filigenzi had a second confrontation
within a short time span. Filigenzi failed to even come
close to corroborating the detail of Cayaricci's explana-
tion; instead he suggested that Cava..ricci, in effect,
washed his hands of Filigenzi's purported dispute with
McGuire and that McGuire was discharged only after he
made a recommendation to that effect to Weiss. Weiss'
testimony gives no hint at all of a scenario depicted by
Filigenzi. Indeed, Weiss gave no indication that he was
even involved in the termination of McGuire. For these
reasons, I cannot place any credence in the explanation
for McGuire's discharge provided by the Respondent.
The conclusions I have reached concerning , the lack of
credence of the explanation provided by the Respond-
ent's witnesses after a careful review of the record testi-
mony is consistent with the unconvincing demeanor of
Cavaricci, Filigenzi, and Weiss as they testified.
Nor am I at all satisfied that the July 14 videotapes
demonstrate that McGuire was the inattentive employee
described by Filigenzi. Although McGuire appears some-
what inattentive from the angle shown in Respondent's
Exhibit 7, the angle shown in General Counsel's Exhibit
44 strongly indicates otherwise. Thus, in the latter tape, I
noted that McGuire's motions in several instances where
players appeared to be seeking change Indicated a re-
sponse by him even before the player had completely
withdrawn their hand from the table. Money exchanges
appeared to occur at McGuire's base promptly after the
dice are rolled and McGuire's movements do not appear
at all sluggish to the untrained eye. In sum, I fmd that
considered together, Respondent's Exhibit 7 and General
Counsel's Exhibit 44 are not convincing evidence that
McGuire was inattentive to his work.
Having failed to provide a credible explanation for
McGuire's discharge, I find that it is fair, to infer that the
54 As will be seen below, crap dealer Christopher Scott was dis-
charged for purportedly glancing only momentarily at a woman.
SAHARA LAS VEGAS CORP. 367
Respondent was seeking to hide the true motive for ter-
minating McGuire. And in the circumstances, it is fair to
infer that the real reason for McGuire's discharge was to
eliminate one further individual committed to the
Union's cause and thereby further weaken the resolve of
the other dealers to ultimately secure effective represen-
tation by the Union. Most illustrative of the evidence
supporting this latter inference is McGuire's uncontra-
dieted testimony that when he asked Cavaricci for an ex-
planation for his discharge, Cavaricci told him he did not
know the reason. 55 Accordingly, I find for the foregoing
reasons that Respondent's discharge of McGuire violated
Section 8(a)(1) and (3) of the Act as alleged.
9. Gordon Nicholson
a. The evidence
Nicholson, a mini-baccarat dealer, was employed at
the Sahara from 1969 until he was terminated on Octobr
20, 1982, in the middle of his shift.56
In 1980 Nicholson became active in the Union's orga-
nizing drive shortly after its inception. He attended all of
the union meetings and solicited other dealers to sign
union authorization cards. When Hacienda dealers were
transferred to the Sahara following the sale, he solicited
some of those dealers to join the Union. Nicholson was a
witness in the polygraph hearing and was in attendance
at as many of the hearing sessions as he could arrange to
attend and at times when Sahara supervisors were
present, including, apparently, Zack Azar. Nicholson
also openly discussed the Union's efforts and activities
with Floormen Treavor Batemen and Don Crowley.
Among other things, Nicholson recalled telling Crowley
that it looked like the new management appeared to be
attempting to get rid of the old Sahara dealers who fa-
vored the Union.
In other respects, Nicholson was obviously a leader
among the blackjack dealers. Thus, between approxi-
mately 1977 and the date of his termination, Nicholson
served as the elected representative for the swing shift 21
dealers on the toke committee. 57 According to Nichol-
son, his toke committee duties following the sale resulted
in at least one confrontation with Pit Manager Bob
Cully. Thus, the keys to the toke boxes were collected
and maintained at the pit stand that required that Nichol-
son locate the pit manager to gain access to the keys in
order to count and divide takes. When Nicholson com-
plained about the cumbersomeness of this new proce-
55 As in some other discharges herein, this lack of explanation by the
terminating supervisor is indicative of the fact that the termination was
directed elsewhere in the Sahara organization.
56 Although Nicholson worked primarily as a mini-baccarate dealer,
and was doing so at the time of his discharge, he also substituted occa-
sionally as a blackjack and roulette dealer.
57 The toke committee is composed entirely of employees. Its primary
function is to divide and distribute the tokes among the dealers. Prior to
the issuance of a July 15, 1982 memo, by Consolidated Manager Sylves-
tro, at least one member of the toke committee was paid for this work. In
addition, prior to the changes instituted by Sylvestro, the dealer's sched-
ule was normally prepared by the toke committee and dealers reported
into work to a toke committee representative on duty. This served the
dual purpose of providing a sign-in register system and a convenient time
to distribute the previous day's tokes. Usually these activities were con-
ducted in the dealers' break room.
dure, Cully told Nicholson that if he did not like it he
could quit.
The incident cited in defense of Nicholson's discharge
occurred on October 10, 1982. On that occasion, Nichol-
son was dealing at the mini-baccarat table. One of the
players at the table had been given a $500 marker
(credit). When the player was prepared to leave the
table, he tendered $500 in chips to a place on the table
just to the left of the dealer and a few inches in front of
the dealing shoe that Nicholson was using for the game.
Nicholson explained that the game had also progressed
to the point where it was necessary for Nicholson to
shuffle the spent cards. Nicholson called Floorman Bate-
man to the table and advised that the credit player de-
sired to redeem his marker. Bateman left to retrieve the
marker paperwork. To avoid wasting time, Nicholson
proceeded to "wash" the cards, i.e., mix the cards by
spreading them about on the table and moving them
about. In the course of washing the cards, Nicholson
bumped the stack of chips tendered by the credit player.
In an attempt to get the chips out of his way, Nicholson
took a $500 "lamtner button" from his money rack,
placed it in front of the credit player, and then placed
the stack of chips in his money rack separate from his
other chips.
A short time later Bateman returned with the credit
paper and promptly asked the whereabouts of the chips.
When Nicholson told Bateman he had put the chips in
the rack and pointed to the $500 lammer in front of the
player, Bateman told Nicholson to put the chips back out
on the table until the paperwork was completed. Nichol-
son complied. When the paperwork was completed and
signed by both Bateman and Nicholson, the chips were
returned to the rack and Nicholson left with the
lammer.58
Thereafter Nicholson continued to deal until his next
break period. After completing his break, Nicholson was
intercepted by Shift Manager Cavaricci before he re-
turned to his assigned table who told Nicholson that he
was being terminated for improper marker procedures.
According to Nicholson, Cavaricci "expressed a disinter-
est in hearing [his] explanation." and told him he would
be given a termination slip the following day when he
came for his final check. Nicholson said there was no
further discussion; he testified that, to his knowledge, he
had not violated any rule or procedure established by the
house.
The termination slip provided to Nicholson (G.C. Exh.
6) lists the following reasons for termination: "11 -
Violation/Policy; 12 Job Performance." No testimony
was provided to link or explain the cited rule violations
on the termination slip with Nicholson's conduct in con-
nection with the marker redemption incident. The only
rules remotely resembling those cited in the termination
slip are the general rules applicable to all employees. As-
suming that the referenced rules in the termination slip
are, in fact, the general rules, the cited rules provide gen-
erally for discipline or discharge for willful misconduct
56 Apparently Bateman's instruction was given with a tone of irrita-
tion. When the transaction was completed, the player expressed concern
about the possibility of having caused trouble for Nicholson.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Rule 11) and for failure to observe company policy
(Rule 12). None of the rules in evidence here are demon-
strably detailed with respect to marker procedures or the
use of lammers to permit the conclusion that there was a
specific written instruction prohibiting the procedure em-
ployed by Nicholson.
Cavaricci asserted that he terminated Nicholson be-
cause he did not follow house procedures in the marker
redemption incident. Knowledge of Nicholson's union
sympathies were denied by Cavaricci. Explaining the cir-
cumstances leading to Nicholson's discharge, Cavaricci
claimed that he initially learned of the marker redemp-
tion incident from Pit Manager Cully who, by the time
of the hearing, had also been terminated. Purportedly,
Cully told Cavaricci that after the floorman was advised
of the player's request to redeem his marker and the
floorman returned to the table, the chips tendered by the
credit player were no longer on the table. According to
Cavaricci, there was no explanation about what hap-
pened to the chips; indeed, Cavaricci asserted that he
was never told that the chips were or were not account-
ed for and that he still did not know at the time of the
hearing what had happened to the chips. Although Ca-
varicci claimed that he asked Cully what happened to
the chips, he testified that Cully told him that he did not
know. Cavaricci conceded that he made no further at-
tempt to find out if the house had lost the $500 and that
neither Cully nor Bateman recommended Nicholson's
termination. Instead, Cavaricci purportedly acted inde-
pendently.
Cully was not called as a witness in connection with
Nicholson's termination.
Bateman, who likewise was no longer employed at the
Sahara at the time of the hearing, testified that he was at
the table when the player first attempted to redeem his
marker. At that point Bateman said that he stepped to a
nearby podium to call the pit clerk for the marker and
was distracted briefly by play at another table. When
Bateman observed Cully enroute to the mini-baccarat
table, he too returned to that table where he met Cully.
Bateman said that Cully handed him the marker and
asked where the chips were. Bateman then directed the
same question to Nicholson who reported that he had
put the chips in the rack. Bateman said that he told
Nicholson that "was against all procedures" and asked
why Nicholson had done that. Nicholson responded
saying he did not know or he had screwed up or words
to that effect. Bateman, who acknowledged that he had
seen the chips earlier, reassured Cully that the chips
were, in fact, in the rack; he said that he was able to
show Cully from his tracking sheet that Nicholson's ex-
planation was correct. 59 Cully told Bateman not to
worry about the incident as nothing would come of it.
Bateman gave no indication that Cavaricci ever talked to
him about the incident.
59 A tracking sheet is a house form used by the floorman to track the
winnings or losses of high stakes players. The player involved here was
playing with $100 chips which, Bateman said, was unusual at the mini-
baccarat table and, hence, the player was apparently being "tracked" by
Bateman. Clearly, the accuracy of the tracking sheet is dependent on the
floorman's ability to follow the play
b. Conclusions
I find that the credible evidence preponderates in
favor of the conclusion that Nicholson was terminated in
violation of the Act.
The foregoing discloses that Nicholson was a vocal
union sympathizer and, as a toke committeeman, was
otherwise active in employee affairs. It is reasonable to
conclude that, as knowledge of Nicholson's attitudes did
not escape observance by Bateman, they similarly did
not escape others in the Del Webb management. It is
also reasonable to conclude that because of Nicholson's
open sympathies, his termination for unjustified reasons
would serve to discourage others from emulating his
conduct in support of the dealers' efforts at unionization.
Hence, I conclude that the General Counsel had estab-
lished, in Nicholson's instance, an adequate prima facie
case requiring rebuttal by the Respondent.
Even though some of the evidence supplied by the Re-
spondent lends legitimacy to the Respondent's discipli-
nary action against Nicholson, I am persuaded that the
weight of the evidence compels the conclusion that the
incident cited for discharging Nicholson was little other
than a pretext that was seized by Cavaricci to dispense
with another active union adherent. Although Bateman's
testimony that Nicholson's action in replacing the ten-
dered chips with a lammer for convenience reasons was
not in accord with the usual dealer procedures, it is plain
that the conclusion which Bateman quickly reached that
the situation presented a "no harm-no foul" circumstance
was unmistakenly accurate.
Obviously, Cavaricci took a different view and it is his
underlying motive that is the gravaman of the outcome
here. At the hearing, Cavaricci steadfastly asserted that
he still did not know if the house was shorted $500 as a
result of Nicholson's conduct. Cavaricci's own conduct
belies any such claim. He acknowledged that the deci-
sion to discharge Nicholson was made without the rec-
ommendation of any of his subordinate supervisors. He
acknowledged that he made no effort to determine what
happened to the $500, a highly unusual (and unexplained)
decision if, in fact, the incident was serious enough to
merit discharging a long-term employee. In addition to
there being no evidence that Cavaricci ever consulted
with Bateman either before or after Nicholson's dis-
charge, there is an insufficient explanation of the details
of the marker redemption procedures to even merit the
conclusion that there should be any cause for concern at
all. In this regard, it is noteworthy that both Bateman
and Nicholson signed off on the marker, before it was
placed in the dealer's cash box—a highly[ unlikely occur-
rence if Bateman doubted the whereabouts of the $500.
And the fact that Nicholson replaced the stack of chips
with the less obtrusive lammer does mit present a cir-
cumstance for dishonesty which differs at all from the
ordinary game-by-game transaction betWeen the dealer
and the player. For these reasons, and as Cavaricci's ex-
planation of other terminations have likewise been found
to lack a credible basis, I find that Cavaticci's testimony
as to the reason for Nicholson's termination lacks cre-
dence.
SAHARA LAS VEGAS CORP. 369
Having failed to supply a credible explanation for
Nicholson's discharge, I further fmd that there is reason-
able cause to infer that the true reason for that action
was Nicholson's vocal adherence to the Union's cause
and the effects such a termination would have on like
conduct by other employees. Accordingly, I find that
Nicholson's discharge violated Section 8(a)(1) and (3) of
the Act, as alleged.
10. Mitchell Sheck
a. The evidence
Sheck, a swing shift craps dealer who was originally
employed at the Sahara in 1979, was terminated on
August 23, 1982, 4 days after the sale was completed.
Sheck was active in the union organizing campaign.
He attended the union meetings and solicited other deal-
ers to join the Union. According to Sheck, he was open
about his sympathy for the Union; Sheck also testified
that he solicited Don Lawrence to join the Union before
Lawrence became a floornian; and he asserted that he
often talked about the Union with other dealers at and
after work.
With respect to his termination, Sheck reported that
when he came to work on the evening of August 23, he
noticed that there was a new individual he had never
seen before working on the crew to which he was nor-
mally assigned. Shortly thereafter, Cavaricci, whom
Sheck had known since the two had worked together at
the Marina Hotel in 1977, took him aside and told him,
"I don't know how to tell you this but you have been
terminated." Sheck said that Cavaricci continued by
saying that he should have received his termination slip
the previous day and he did not understand what had
happened. Sheck asserted that when he asked who had
terminated him, Cavaricci told him that he did not know.
Cavaricci explained, "[lit came from upstairs. I had to
terminate you." Sheck said that Cavaricci also told him
that he "felt real bad about it" and provided him with
the names of individuals at a couple of other casinos
where he could seek employment.
Sheck was provided with a termination slip (G.C. Exh.
15) signed by Cavaricci and dated August 23, which lists
the following as the reason for his discharge: "Not To
New Manager Management Standards—Less Than 90
DAYS."
Cavaricci asserted that he terminated Sheck on the
recommendation of Pit Boss Joe Ortiz and Floorman
Sam Filigenzi, neither of whom provided testimony to
corroborate Cavaricci concerning Sheck. Cavaricci
denied that he was aware of Sheck's involvement with
the Union.
Instead, Cavaricci reported that after he was informed
by his subordinate supervisors that Sheck was "defiant"
toward customers and had a bad attitude, he watched
Sheck for a short period and came to the conclusion that
he was "definitely defiant" and was not dealing in
accord with the new management's standards. Cavaricci
testified that Sheck did not give customers proper serv-
ice, that he did not deal with the customers in a conge-
nial but not overly friendly manner, and that he did not
give customers the proper service by paying and taking
bets in a "smooth, clean manner." 6° Pressed to further
explain on cross-examination Cavaricci said that Filigenzi
told him that Sheck was throwing chips and being rude
to the customers. Cavaricci explained, "He was defiant.
He was just—his general attitude was defiant, even with
customers, with the floormen, with the pit bosses. He
was never defiant to me. To describe a defiant attitude
on a crap table, if a customer wins a. . . two dollar bet,
he'd just throw the chips to him instead of paying him
like he's supposed to."
Cavaricci's version of the discharge conversation
markedly differed from the Sheck's version. Cavaricci
denied that he told Shack that the decision to terminate
him had been ordered "upstairs." Instead, Cavaricci said
that he took Sheck aside and told him that he was sorry
but that it was necessary to terminate him Sheck, Cavar-
icci said, told him that it was alright as he expected it, a
response which purportedly surprised Cavaricci.
Cavaricci agreed that the discharge conversation con-
cluded with a brief discussion concerning Cavaricci's
willingness to recommend Sheck for a position in an-
other casino albeit he disagreed as to the degree to
which he expressed a willingness to assist Sheck in secur-
ing other employment.
b. Conclusions
I find that the credible evidence preponderates in
favor of the conclusion that Sheck was terminated in
violation of the Act.
Sheck impressed me as a candid witness who attempt-
ed to relate the circumstances of his quick demise fol-
lowing the sale without exaggeration. The General
Counsel's case established that Sheck was one among
several who engaged in efforts to secure representation
by the Union. His employment following the sale was
extremely brief; of the individuals involved here, Sheck
was the first or second employee to be terminated.
Sheck's version of the conversation with Cavaricci at the
time of his discharge credibly establishes that his termi-
nation was directed by others than the casino floor su-
pervisors. It is reasonable to assume in this circumstance
alone that his discharge was for reasons other than the
manner in which he performed his job duties. Hence, I
am satisfied that, in Sheck's instance, the General Coun-
sel has provided adequate evidence to merit the inference
that Sheck was discharged as a part of an overall effort
to discourage union activities among the casino employ-
ees in the absence of a suitable explanation by the Re-
spondent showing that Sheck was terminated for nondis-
criminatory reasons.
As noted, Cavaricci charged that Sheck was terminat-
ed for work misconduct reported to him originally by
Filigenzi and Ortiz. Neither of these two supervisors
60 Throughout the record there are a variety of references to the ap-
propriate degree of congeniality between the dealers and the players. The
employee rules clearly require dealers to conduct themselves in a friendly
fashion but, apart from that, there is no evidence that any effort was
made to instruct the dealers on the standard expected. The variety of
events in this record strongly suggest the standard was entirely amor-
phous and completely subject to the whim and caprice of each separate
supervisor at the moment.
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provided corroborating testimony in support of Cavaric-
ci's claim that Sheck exhibited a defiant and disrespectful
attitude toward customers or otherwise exhibited poor
work habits. Moreover, the vagueness of Cavaricci's
claims with respect to Sheck's conduct lends further sup-
port for the conclusion, which I have reached, that Ca-
varicci's explanation of Sheck's discharge was not truth-
ful. In the circumstances, the lack of a truthful explana-
tion provides further support for the conclusion that I
have reached that Sheck was terminated as a part of a
scheme to discourage casino employees from continuing
their support of the Union. Accordingly, I find that
Sheck was discharged in violation of Section 8(aX1) and
(3) of the Act, as alleged.
11. Christopher Scott
a. The evidence
Scott, a swing shift craps dealer who was originally
employed at the Sahara in December 1977, was terminat-
ed on September 10,1982.
Scott attended the first union meeting held at the Para-
dise Park in Las Vegas and signed an authorization card
on that occasion. Thereafter, he attended union meetings
held at Gloria Nelson's home and at the union hall, in-
cluding the post-sale strike vote meeting. Scott solicited
numerous employees to join the Union; he distributed au-
thorization cards in the casino locker room and in the
employee parking lot. Scott was one of the Union's ob-
servers at the October 1980, NLRB election and attend-
ed the preelection meetings involving NLRB agents,
union officials, and management officials. Following the
sale, Scott engaged in a number of conversations with
various floormen, including Don Lawrence, Denver
Davis, and Mike Wong, concerning the changes in work-
ing conditions that could be anticipated from the new
casino management. He acknowledged that he was re-
peatedly warned by the floormen with whom he spoke
to keep his nose clean and to pay careful attention to his
work because his job was at stake; among other things,
Lawrence, in particular, told Scott to "keep his head
down," an admonition which, to craps dealers, means to
pay careful attention to the game.
With regard to the incident ultimately cited as the
cause of his discharge, Scott testified that as he returned
from his break period at approximately 7:20 p.m. on Sep-
tember 9, 1982, he noticed Relief Shift Manager Chan-
dler and a woman standing at a nearby money cage on
the casino floor talking with a cage employee. Scott rec-
ognized the woman with Chandler was the daughter of
cage employee Fran Dell. There seemed to be implicit
agreement that Fran Dell's daughter is quite attractive in
appearance, perhaps even distractingly attractive. Scott
continued to a nearby crap table where he relieved the
stickman.
Play progressed for a short period after Scott returned
to the table before—according to Scott—a player rolling
the dice threw them with such force that one of the
cubes hit the end rail, bounced off the table, flew
through the air, and finally came to rest on the floor.
Scott testified that when the die left the table, he fol-
lowed it with his eyes until it landed so be could instruct
the floorman (Mike Wong) who would normally retrieve
the errant die. As fate would have it, the die came to
rest almost immediately in front of the attractive daugh-
ter of Fran Dell. Admittedly, Scott's eyes focused on the
young woman for a brief period (perhaps less than five
seconds, he estimated) before he returned his attention to
the table and continued with the play. At that point,
Chandler, very agitated, leaned between the boxman and
the dealer across the table from Scott and told Scott,
"[Y]ou watch the game and I'll watch the girls" and
asked Scott if he understood. An irritated customer inter-
rupted the agitated Chandler saying, "Hey are you al-
right[7] [E]verything's alright here[.] [L]et's have a crap
game." Chandler walked away without responding to the
customer or addressing Scott further. Scott worked the
remainder of his shift without another incident. Howev-
er, Scott testified that when he was relieved on the table
for his regular break, he passed the pit podium and ob-
served that Chandler appeared to be completing a termi-
nation slip. Chandler gave no indication as to when the
slip was actually completed.
The following day, Pit Manager Ortiz telephoned
Scott at home, advised him that he had been terminated,
and instructed Scott not to report for work that evening.
In response to Scott's inquiry, Ortiz told him he did not
know the reason for his discharge but that a termination
slip would be provided either at the personnel or time
office.
Scott was provided with a termination slip (G.C. Exh.
9) when he went to the office for his final check. The
termination slip, signed by Chandler and dated Septem-
ber 9, cites violations of the following rules as the reason
for his termination: (1) General Rules of Conduct 19 (re-
quires dealers to pay attention to the layout and the play-
ers being serviced); (2) Casino Department Rule 6-1
(concerns poor job performance, working attitude, or at-
tendance); (3) Dice Dealer Rule 23 (requires that the
dice be watched at all times except when they are in
front of the boxman). When Scott had an opportunity to
review the cited rules, he concluded his discharge was
the result of his glance at the young woman. According
to Scott, attractive women are not all that unusual in ca-
sinos; occasionally Scott said, even the supervisors will
call a dealer's attention to particularly attractive women.
Pit Manager Zack Azar and Shift Manager Gary
Chandler explained the circumstances leading to Scott's
termination. Thus, Azar testified that he had noticed that
Scott had a poor habit of looking around and, thus, not
paying attention to the game on several occasions prior
to September 9 Finally, on the evening of September 9,
Azar said that he corrected Scott early in the evening
when he observed Scott look away from the table. Ap-
proximately an hour later Azar said that he was standing
directly behind the boxman at Scott's table and, hence,
was facing Scott directly from a distance of about 8 feet.
The cashier's cage was directly behind Scott. As a
woman approached the cashier's cage, Azar said that
Scott turned and looked in the direction of the cage for a
period of about 5 to 7 seconds. Azar denied that he ob-
served any dice fly off of the table at this particular time.
Azar said that he then spoke to Chandler (his immediate
SAHARA LAS VEGAS CORP. 371
superior at the time) and recommended that Scott be ter-
minated. According to Azar, the decision to discharge
Scott occurred at that time. Azar made no mention of
Chandler's admonition to Scott to the effect that Scott
should watch the table and he would watch the "girls"
until the cross-examination conducted by the Union and
even then he appeared confused about it, as he initially
asserted that the remark had been made to Martin in-
stead of Scott.
According to Chandler, preceding the incident that
caused him to discharge Scott, he had received a couple
of reports from Azar that Scott had been cautioned
about turning away from a game in progress. Additional-
ly, Chandler asserted that he too had warned Scott on a
couple of prior occasions concerning the same conduct.
Finally, Chandler reported, he decided to discharge
Scott after observing him turn away from the table and
look at a woman at the cashier's cage while the dice
were in the air in the course of a game. Chandler said
that he made this observation while standing behind the
boxrnan (which would be directly opposite Scott's stick
position on the other side of the table) no more than 2
feet from the table. Chandler testified that he promptly
told Scott that he would watch the "girls" and Scott
should watch the dice. It was this incident, Chandler
said, which caused him to discharge Scott. According to
Chandler, neither of the dice left the table when this in-
cident occurred. Chandler testified that he was unaware
that Scott had been active in the Union's organizational
drive.
Moorman Wong, identified by Scott as having been on
duty at the time of the incident, testified on behalf of the
Respondent in connection with Atilano's termination but
Was not queried by any party concerning the events at-
tributed to Scott's discharge.
Both Azar and Chandler asserted that it is imperative
for the stickman to keep his attention focused on the
table at all times while a game is in progress in order to
ensure the integrity of the game. Both said that it is pos-
sible for the dice to be surreptitiously exchanged if the
stickman is not vigilant; Chandler said that it is also pos-
sible for a player to bump a die off the point it landed on
if the stickman is not watchful.
b. Conclusions
I find that the General Counsel has failed to establish
by a preponderance of the evidence that Scott was dis-
charged in violation of the Act.
Although it is true that Scott's activities were open,
persistent, and quite likely known to officials of the Re-
spondent, the circumstances surrounding his discharge
strongly suggest that his inattention to the game he was
working on September 9 aggravated Chandler causing
him to personally intervene and warn Scott to pay atten-
tion to the game. The salient facts, i.e., that Scott's atten-
tion to the game was interrupted by an attractive woman
are undisputed. In dispute is whether that inattentative-
ness occurred during a break in the action occasioned by
an errant die and whether, in any circumstance, such a
dereliction was a minor incident seized on by the Re-
spondent to rid itself of another union activist.
Both Chandler and Azar disputed Scott's testimony
that a die left the table when the incident occurred lead-
ing to Chandler's prompt and stern warning. Indeed,
Chandler asserted that the incident occurred during a
critical moment in the play so far as the stickman's duties
are concerned. Although other employees were obvious-
ly present who would have been in a position to cor-
roborate Scott's version of the events, the General Coun-
sel failed to call such employees or explain their absence
either during the course of the direct case presented or
the extensive rebuttal concerning other matters the Gen-
eral Counsel saw fit to present. In these circumstances, I
find it impossible to discredit Chandler's testimony that
was corroborated to a certain degree by Azar. At the
very least, it is possible to say that as to this critical
point, the evidence favors the Respondent's version.
With respect to the General Counsel's argument that
the incident was minor and that its very nature suggests
that the Respondent was looking for some reason to rid
itself of Scott's presence, I cannot agree. Accepting
Chandler's version of the incident, it is clear that Scott's
inattention occurred at a critical point in the play. When
the dice are thrown, the stickman's prime duty is to call
the number thrown and then retrieve the dice for the
next roll. Although it might be possible for a dishonest
substitution of the dice at the end of a roll, an even more
critical and likely occurrence was noted by Chandler,
i.e., bumping the thrown dice off point by a player or
onlooker. Hence, I cannot find that Scott's inattention
was insignificant. Chandler's immediate intervention fur-
ther supports this conclusion.
For the foregoing reasons, I find that the General
Counsel has failed to prove by a preponderance of the
evidence that Scott's termination resulted from its overall
effort to discourage its employees adherence to the
Union even though it occurred at a time when, as found
above, the Respondent actively pursuing such a plan. Al-
though Respondent may well have desired to discharge
Scott because of his union sympathies, the evidence
before me suggests that Scott clearly provoked Chandler
with cause. Accordingly, the allegation pertaining to
Scott will be dismissed.
12. John Tiedemarm
a. The evidence
Tiedemann, a keno writer who had been employed at
the Sahara since 1971, was terminated on October 18,
1982.
Tiedemann had been a member of the Union since
1969, long before the Union undertook its organizing
drive at the Sahara, and had been acquainted with Union
Representative Dambro since that time. When the Union
organizing at the Sahara began in June 1980, Tiedemann
signed an authorization card given to him by another
Keno department employee. Thereafter, Tiedemann at-
tended union meetings and discussed the potential bene-
fits of union representation with other employees albeit
not around the keno department. In addition, Tiedemann
openly associated with other known union adherents in-
cluding Dick Moody, previously described as one of the
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
principal employee members of the Union's negotiating
committee. Following the sale of the Sahara, Tiedemann
became highly critical of the tone set by the new man-
agement. He felt that the casino had lost its class and
glamour; that it was no longer a friendly place to work;
and that Sue Davis, the graveyard supervisor in the keno
department following the sale, was not a good manager.
Tiedemann recalled that on a few occasions, he discussed
his attitude and observations concerning the post sale op-
eration of the hotel with Alberta Gibson, another keno
department employee who later became Davis' assistant.
Following the sale, Davis, who had been transferred
from the Hacienda to the Sahara, verbally admonished
Tiedemann for not reporting to the department at the
time scheduled for work." Until Davis' reprimands, Tie-
demann claimed that he was unaware that his less than
diligent conformance with the unwritten rule about re-
porting early was regarded as a violation of employee
policies.
Davis terminated Tiedemann about 10 minutes prior to
the conclusion of his shift on October 18. Tiedemann
gave the following account of the discharge conversation
which took place in the work area behind the keno
counter. Using what Tiedemann described as an "ob-
scene and vulgar" tone, and a head motion that resem-
bled a ping pong ball, Davis told Tiedemann, "You no
longer like working in this fucking hotel, and you are
terminated." When Tiedemann asked for reasons, Davis
told him it was for insubordination, willful misconduct,
and his failure to follow her orders. Although Tiede-
mann claimed he did not understand what Davis was
talking about specifically, he did not press for an expla-
nation.
Davis provided Tiedemann with a termination slip
(G.C. Exh. 20). It too cites insubordination and willful
misconduct as the reasons for the termination.
Sue Davis recounted a litany of deficiencies exhibited
by Tiedemann prior to his termination. She asserted that
Tiedemann was chronically late—about 90 percent of the
time—by not reporting for work pursuant to her request
that employees punch in by 1:40 a.m. and be at the keno
department available to relieve the prior shift by 1:45.
She further reported that although Tiedemann was quite
accurate in the mathematical aspects of the keno writer's
job, he used his time inefficiently because he would talk
excessively with other employees and customers. In addi-
tion, Davis said that Tiedeniann repeatedly criticized
other employees and the management. With regard to
such criticism, Davis noted that on one occasion Tiede-
mann asserted that Davis' assistant, Alberta Gibson, was
not qualified to be performing the assistant's duties. On
other occasions, Davis said that Tiedemann blamed the
new management for a decline in business and also corn-
61 Because the keno games operated around the clock, department em-
ployees had traditionally been requested to report to the department 15
minutes before the scheduled start of their shift in order to be available to
relieve the previous shift between the keno games neat' the scheduled
shift change. As a similar requirement exists for all shifts, the end result
seems to be a "report early-leave early" situation that accommodated the
nature of the ' keno game as well as employee work time obligation.
Hence, the scheduled starting time for the keno graveyard shift (2 a.m.)
was only for administrative purposes.
plained about the potential that employees would no
longer receive the annual sick pay as in the past. Tiede-
mann, Davis asserted, used profanity around both other
employees and, occasionally, customers. More particular-
ly, Davis accused Tiedemami of repeatedly referring to
the Sahara openly as a "fucking toilet."
Respondent elicited the testimony of Jan Lieberman, a
frequent customer of the keno department from Ed-
monds, Washington, who claimed to have become
friendly with Tiedemann over the years. Lieberman said
that Tiedemarm often made remarks exhibiting his dissat-
isfaction with the Sahara to her and other customers
after the sale. Tiedemann once told Lieberman that he
was going to have to get out of the department as it was
driving him crazy because no one knew what they were
doing. Lieberman recounted one dispute that she over-
heard between Tiedemann and another employee (appar-
ently Gibson) in the department over the amount of a
payout due on one of Lieberman's tickets. Purportedly,
Tiedemann angrily told the other employee in her pres-
ence, "God damn it, why do they have you up here
when you don't what you're dong? For God's sake, this
place is a fucking toilet." According to Lieberman,
Davis intervened and told Tiedeinann to cool it.
For the most part, Davis said that she did not single
out Tiedemann for warnings. Rather, Davis said that she
would admonish the entire staff for matters which were
occasioned by Tiedemann's conduct. Nevertheless, it is
undisputed that shortly prior to his termination, Davis
specifically warned Tiedemann about his failure to
comply with her wishes that he report for work as she
desired.
Davis asserted that she was prompted to recommend
Tiedemann's discharge to her superior after witnessing
an incident between Tiedemann's discharge to her superi-
or after witnessing an incident between Tiedemann and a
keno runner. Although Davis testified that she was not
close enough to overhear specifically what was said, she
did observe the runner approach Tiedemames window in
the course of her duties with tickets and money for the
ensuing keno game. A loud argument followed and
Davis observed Tiedemann throw the tickets and the
money at the runner. Davis said that the runner retreated
in tears; that she promptly relieved Tiedemann for his
lunch break; and that she then went to console and assist
the runner to compose herself.62
Following the incident, Davis reported to her superior
and received authorization to take whatever disciplinary
action she deemed appropriate. She decided to terminate
Tiedemann at the conclusion of the shift. When she in-
formed Tiedemann of his termination, Davis advised him
that a termination slip and his final check would be avail-
able later that same day. However, Tiedemann asked her
why he was being discharged and she promptly told him
62 Tiedemann was queried about this incident when cross-examined.
He asserted that the particular individual was a drug abuser who fre-
quently 'exhibited extreme mood shifts. Tiedemann acknowledged that on
one occasion, this runner presented herself at the window and that after
he had completed writing her tickets, she began to cry. Later, Tiedemann
said that Davis accused him of causing the runner to cry and warned him
not to do that again Davis claimed to know the runner personally. She
asserted that the individual did not abuse substances of any kind.
SAHARA LAS VEGAS CORP. 373
that it was because of his tardiness, uncooperativeness,
and his failure to follow company rules. Davis conceded
that there was no mention of that morning's encounter
with the keno runner. According to Davis, Tiedemann
responded, "Well this is some shit, you know, what is
the real reason." Davis replied, "Well, try your profani-
ty, [such as] you don't Re working in this `fucking
toilet."
b. Conclusions
I find that the General Counsel has failed to prove by
a preponderance of the credible evidence that Tiede-
mann's discharge violated the Act.
It is my judgment that Davis' testimony merits belief.
Entirely aside from the fact that her testimony was to a
limited degree corroborated by Lieberman, I found
Davis to be a straightforward and convincing witness.
The evidence provided by her testimony demonstrates
that Tiedemann was repeatedly uncooperative both
about Davis' request that he be available to report for
work at a specified time and about his willingness to be
cooperative with other employees. Her testimony also
shows that she exhibited considerable restraint and tact
in seeking to reform Tiedemann's attitude toward his job,
an undertaking that appeared unsuccessful. The incident
involving the keno runner quite clearly came at a time
when Davis' patience with Tiedematm had worn very
thin and it certainly can not be said that such a confron-
tation within the public view was a minor matter that
could reasonably be overlooked. As the evidence shows
that Davis acted promptly to terminate Tiedemann fol-
lowing this serious incident, it is impossible to fmd that,
in so doing, her true motive was another unlawful
reason. Accordingly, it will be recommended that the
complaint allegation pertaining to Tiedemann be dis-
missed.
13. George Tomich
a. The evidence
Tomich, a 21 dealer who originally began working at
the Sahara in 1964, was discharged on September 16,
1982.
Tomich joined the Union during the initial part of the
organizing campaign in 1980. Thereafter, he attended the
union meetings and "talked the Union up" among his
fellow dealers. Usually, his conversations with the other
dealers occurred in the dealers room, in the Sahara cafe-
teria, in the 21 pit, or wherever else Tomich had an op-
portunity to speak with the other dealers. Tomich also
distributed authorization cards to interested dealers. His
efforts to convince dealers to join the Union continued
up to the time of the Sahara was sold. Tomich attended
the post-sale strike vote but did not know whether his at-
tendance was evident from the ensuing television news
programs.
In addition to discussing the Union with his fellow em-
ployees, Tomich testified that he had repeated conversa-
tions with Floormen Moran and Olsen about the employ-
ees need for union representation. Tomich said that he
broached the subject with Moran on almost a daily basis
and that Moran eventually came to merely laugh and
walk away whenever Tomich brought the subject up.
Tomich asserted that he made no attempt to hide his atti-
tude about the Union from anyone.
It is undisputed that very soon following the sale, the
21 dealers were informed that the new management
would require that double decks of cards be used in the
manually dealt blackjack games, i.e., those not involving
the use of the previously described dealing shoe. Appar-
ently, this practice had not been followed for a consider-
able period of time at the Sahara as Tomich, an experi-
enced dealer, had not had occasion to deal wth a doble
deck in approximately 10 years. Because of its expanded
size, use of the double deck is somewhat more cumber-
some from the dealer's perspective.
Tomich acknowledged that approximately 4 or 5 days
prior to his termination, Swing Shift Pit Manager Doug-
las Hackett—who came to the Sahara in that capacity
following the sale—approached him and inquired if he
understood the manner in which the new management
wanted him to shuffle and deal. Tomich said that he told
Hackett that he had read the rules but asked that Hack-
ett show him so he would not make any mistakes. Hack-
ett acceded to Tomich's request and the two men went
to an empty table where Hackett provided a demonstra-
tion. When Hackett was finished, Tomich told Hackett,
tongue-in-cheek, that in case he forgot, Hackett should
remind him
Hackett recalled that the foregoing demonstration al-
luded to by Tomich was the first of two or three deo-
monstrations he personally provided to Tomich before
his discharge." On another occasion following a person-
al demonstration by Hackett related to shuffling proce-
dnres, Hackett said that Tomich told him, "I'm not going
to be too fucking good at that." Immediately following
the final demonstration that Hackett provided to
Tomich, Hackett said that Tomich returned to his as-
signed table where play was in progress. Hackett
watched as Tomich shuffled the cards out to the player
in the air—as opposed to sliding the deck across the
table as Hackett instructed—to insert the cutting card in
the deck and then turned to look at Hackett. Hackett in-
terpreted Tomich's look as saying, "that's the way I'm
going to do it, and if you don't like it, it's too bad."
Regardless of what Tomich may or may not have in-
tended looking at Hackett, the latter testified that it
prompted him, to seek additional opinions in preparation
for terminating Tomich. Hackett said that he called the
"eye-in-the-sky" to ask to have a tape run on Tomich's
dealing and to further ask whether the security agent
(whose name Hackett could not recall at the hearing)
agreed with his conclusion that Tomich was not follow-
ing procedures designed to protect the game. Hackett
also said that he asked Shift Manager Weiss to observe
Tomich's dealing habits. Both concurred with the con-
clusion that Hackett had already reached, to wit, that
Tomich was, in Hackett's words, a sloppy, unprofession-
al dealer.
83 Totnich denied that there was ,ever more than a single demonstra-
tion or that he was ever criticized by management for his dealing style.
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The following day, Hackett said that he discussed ter-
minating Tomich with Weiss and a decision was reached
to do so. Hackett, who made not the slightest attempt to
diminish his knowledge of the situation with the Union
at the Sahara in general, denied that he was ever told
that Tomich was a dealer requiring particular scrutiny
because of his union sympathies.
Weiss confirmed that Hackett recommended Tomich's
termination and that it occurred perhaps a day following
that recommendation. Weiss testified that he did not
speak with Tomich about his job performance but from
what he observed, Tomich was, as far as he was con-
cerned, the worst dealer in the house.
Tomich was actually terminated by the Swing Shift
Pit Manager Bob Cully at the conclusion of his shift on
September 16. Apparently there was little or no ex-
change; Tomich testified that he merely told Cully
"thank you" when he was given his termination slip.
Tomich's termination slip (G.C. Exh. 11) cites To-
mich's "poor dealing habits" as the reason for his separa-
tion. At a subsequent unemployment compensation hear-
ing, Hackett testified that in addition to the noted bad
habits, Tomich was also less than courteous in his treat-
ment of customers.
The video tape of Tomich ordered by Hackett is also
in evidence (R. Exh. 8(b)). It tends to confirm Hackett's
criticism of Tomich's style. However, the tape was not
reviewed by management officials prior to Tomich's dis-
charge.
b. Conclusions
I fmd that the General Counsel has failed to establish
by a preponderance of the credible evidence that
Tomich was discharged in violation of the Act.
Although I credit Tomich's testimony concerning his
union activity and find that there is a basis for the Re-
spondent's knowledge concerning Tomich's sympathies,
I am satisfied that the evidence here fails to establish that
his discharge was motivated in any significant part by his
union sympathies. Tomich's own testimony suggests that
Hackett was less than enamored with his dealing habits.
Likewise, Tomich's testimony concerning his comport-
ment at the time even he acknowledged that Hackett
took him aside for instruction tends to confirm Hackett's
impression that Totnich did not take Hackett's instruc-
tion at all seriously. This degree of convergence in the
testimony of Tomich and Hackett has caused me to lend
substantial credence to the remainder of Hackett's testi-
mony to the effect that an effort was made to instruct
Tomich concerning the type of shuffling and dealing
procedures desired by the house. Hackett's testimony
and the video tape of Tomich indicate strongly that
Tomich was not responsive. As his discharge occurred
shortly following these efforts and as the evidence is oth-
erwise insufficient to show that it was motivated primari-
ly by the Respondent's overall effort to discourage union
sympathizers, I find that the General Counsel has failed
to meet her burden in Tomich's case. Accordingly, it
will be recommended that the complaint allegation per-
taining to Tomich be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unlawful activities of the Respondent described in
section III, occurring in connection with the operations
of the Respondent described 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 burdening and obstructing commerce
and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act engaged in commerce or an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. On October 25, 1980, the Union was designated by
a majority of the employees in the appropriate unit set
forth below as their exclusive representative for the pur-
poses of collective bargaining, the designation having oc-
curred as a result of a secret-ballot election conducted
under the direction and supervision of the Regional Di-
rector for Region 31. The appropriate unit is:
All gaming casino dealers including keno writers,
keno runners, twenty-one dealers, crap dealers, ba-
carat dealers, shills, poker dealers, pan dealers,
poker and pan shills and shill dealers, extra board
dealers and oriental games dealers employed by [the
Sahara]; excluding all other , employees including
casino shift managers, assistant shift managers, pit
bosses, pit floormen, boxmen, slot shift supervisors,
floormen, slot mechanics, booth cashiers, change
girls, casino cage cashiers, slot cage cashiers, coin
counters and wrappers, pit clerks, credit clerks,
office clerical employees, guards and supervisors as
defined the the Act, as amended.
4. Pursuant to the foregoing election, the Board, on
March 29, 1982, certified the Union as the exclusive rep-
resentative of the employees employed in the appropriate
unit pursuant to Section 9 of the Act.
5. At all times between March 29 and August 20, 1982,
Consolidated Casinos, Inc., then the employer of the em-
ployees in the unit specified in paragraph 3, above, un-
lawfully „refused to recognize or bargain with the Union
and between April and August 20, 1982, unilaterally al-
tered the terms and conditions of employment of the unit
employees.
6. Effective August 20, 1982, the Respondent acquired
the Sahara Hotel and Casino pursuant to an agreement
for the purchase and sale thereof with notice of unfair
labor practice charges pending concerning the aforemen-
tioned unilateral changes, continued the operation of the
enterprise without interruption, employed a majority of
Consolidated Casinos, Inc.'s former employees in the ap-
propriate unit described above, and since that date has
been the legal successor of Consolidated Casinos, Inc.
with respect to the operation of the Sahara Hotel and
Casino, obliged to recognize and bargain with the Union
SAHARA LAS VEGAS CORP. 375
as the exclusive representative of the employees in the
specified unit.
7. On December 14, 1983, Consolidated Casinos, Inc.
entered into a settlement agreement approved by the Re-
gional Director for Region 31 wherein it undertook to
provide its former employees in the unit specified above
with a remedy for the losses incurred as a consequence
of the unilateral changes in employment specified in
paragraph 5, above, for the period to and including
August 20, 1982, but not thereafter.
8. By refusing to recognize and bargain with the
Union as the representative of the employees specified in
paragraph 3, above, between August 20 and November
17, 1982; by refusing to meet and bargain with the Union
concerning said employees on and after February 22,
1983; and by refusing to remedy the unilateral changes in
employment made by its predecessor, Consolidated Casi-
nos, Inc., between April and August 20, 1982, in the
period following August 20, 1982, the Respondent has
engaged in, and is continuing to engage in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
9. By discharging Arthur Andersen, Ricardo Atilano,
Robert Bero, Ray Ferrero, Vince Giuffre, Sidney
Martin, David McGuire, Gordon Nicholson, and Mitch-
ell Sheck in order to discourage their activities and sym-
pathies on behalf of the Union, and in order to discour-
age the union activities and sympathies of other employ-
ees in the appropriate unit specified in paragraph 4,
above, the Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
10.Except as specified above, the General Counsel has
failed to prove by a preponderance of the credible evi-
dence that the Respondent engaged in any other unfair
labor practices.
11. The unfair labor practices specified above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that the
Respondent be ordered to cease and desist therefrom and
to take the affirmative action described below that is de-
signed to effectuate the policies of the Act.
In order to restore the status quo ante to that which
existed prior to the time the Respondent's predecessor,
Consolidated Casinos, Inc. undertook to unilaterally alter
the terms and conditions of employment of the employ-
ees in the appropriate unit represented by the Union as
alleged in the complaint in this matter, the Respondent
shall be required to forthwith restore the terms and con-
ditions of employment to those which existed prior to
April 1982, except to the extent that the terms and con-
ditions were altered by the original terms and conditions
of employment established by the Respondent and an-
nounced in writing to employees in the course of the em-
ployee application process conducted by the Respondent
about August 18 and 19, 1982. to the extent that any em-
ployee incurred any losses subsequent to August 20,
1982, by Respondent's failure to take the foregoing
action, the Respondent shall be required to make those
employees whole. Further, the Respondent shall be re-
quired to recognize and bargain, on request, with the
Union as the exclusive representative of its employees in
the certified unit specified in this decision and maintain
in effect all wages, hours, and other terms and conditions
of employment of the employees unless and until changes
thereto are agreed on with the Union, or a bona fide im-
passe is reached in negotiations related to any proposed
changes in the wages, hours, and other terms and condi-
tions of employment. The Respondent shall be required
to immediately offer to reinstate Arthur Andersen, Ri-
cardo Adlano, Robert Bero, Ray Ferrero, Vince Giuffre,
Sideny Martin, David McGuire, Gordon Nicholson, and
Mitchell Sheck to their former positions, or to substan-
tially equivalent positions if their former positions no
longer exist, and make these employees whole for all
losses incurred by them as a consequence of the unlawful
discharges found herein. In accord with the Board's de-
cision in Sterling Sugars, Inc., 261 NLRB 472 (1982), the
Respondent shall remove from its records any reference
to the unlawful discharges found herein and it shall
notify each employee, in writing, that it has done so and
that such action will not be considered in any future per-
sonnel action involving them. Any backpay due shall be
computed in the manner specified by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest there-
on as provided by the Board in Olympia Medical Corp.,
250 NLRB 146 (1980), and Florida Steel Corp., 231
NLRB 651 (1977). And see generally Isis Plumbing Co.,
138 NLRB 716 (1962). Any necessary trust fund reim-
bursements shall be made in accord with the procedure
prescribed by the Board in Merryweather Optical Co., 240
NLRB 1213 (1979). Finally, the Respondent shall post
the notice to employees attached hereto as appendix in
order to fully inform employees of their rights and the
outcome of this matter.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed64
ORDER
The Respondent, Sahara Law Vegas Corp., Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discriminating against its employees by discharging
employees in order to discourage its employees activities
on behalf of, sympathies for, or membership in the Gen-
eral Sales Drivers, Delivery Drivers & Helpers, Local
No. 14, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America Union.
(b) Refusing to recognize, and meet and bargain with
General Sales Drivers, Delivery Drivers & Helpers,
Local No. 14, affiliated with International Brotherhood
64 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of all employees
in the following appropriate collective-bargaining unit
concerning their wages, hours, and other terms and con-
ditions of employment:
All gaming casino dealers including keno writers,
keno runners, twenty-one dealers, crap dealers, ba-
carat dealers, shills, poker dealers, pan dealers,
poker and pan shills and shill dealers, extra board
dealers and oriental games dealers employed by [the
Sahara]; excluding all other employees including
casino shift managers, assistant shift managers, pit
bosses, pit floormen, boxmen, slot shift supervisors,
floormen, slot mechanics, booth cashiers, change
girls, casino cage cashiers, slot cage cashiers, coin
counters and wrappers, pit clerks, credit clerks,
office clerical employees, guards and supervisors as
defmed the the Act, as amended.
(c) Refusing to restore the terms and conditions of em-
ployment to the condition that existed prior to the
changes made by its predecessor, Consolidated Casinos,
Inc., between April and August 20, 1982, in the manner
specified in the remedy portion of this decision.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, meet and bargain col-
lectively with General Sales Drivers, Delivery Drivers &
Helpers, Local No. 14, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative
of the employees in the appropriate unit described above
concerning their wages, hours, and other terms and con-
ditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b)Restore the terms and conditions of employment of
the employees in the appropriate unit described above to
those which existed prior to April 1982, except to the
extent said terms and conditions were altered in the writ-
ten notices provided to employees on August 18 and 19,
1982, and make employees whole for losses incurred sub-
sequent to August 20, 1982, by the failure to take such
action as specified in the remedy.
(c) Offer immediate and full reinstatement to Arthur
Andersen, Ricardo Atilano, Robert Bero, Ray Ferrero,
Vince Giuffre, Sidney Martin, David McGuire, Gordon
Nicholson, and Mitchell Sheck, and make those employ-
ees whole for the losses they suffered in the manner
specified in the remedy section.
(d) Remove from its files any reference to the dis-
charge of the employees named in paragraph 2, subpara-
graph (c), above, and notify each of them in writing that
this has been done and that evidence concerning their
unlawful discharge will not be considered in future per-
sonnel actions.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Sahara Hotel and Casino in Las Vegas,
Nevada, copies of the attached notice marked "Appen-
dix." 65 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the allegations of the
complaint in this matter found without merit be, and the
same hereby are, dismissed.
65 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to recognize and meet and bar-
gain with General Sales Drivers, Delivery Drivers &
Helpers, Local No. 14, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative
of:
All gaming casino dealers including keno writers,
keno runners, twenty-one dealers, crap dealers, ba-
carat dealers, shills, poker dealers, pan dealers,
poker and pan shills and shill dealers, extra board
dealers and oriental games dealers employed by [the
Sahara]; excluding all other employees including
SAHARA LAS VEGAS CORP. 377
casino shift managers, assistant shift managers, pit
bosses, pit floormen, boxmen, slot shift supervisors,
floormen, slot mechanics, booth cashiers, change
girls, casino cage cashiers, slot cage cashiers, coin
counters and wrappers, pit clerks, credit clerks,
office clerical employees, guards and supervisors as
defined the the Act, as amended.
WE WILL NOT continue to refuse to restore your con-
ditions of employment to those which existed prior to
the changes made by Consolidated Casinos, Inc., be-
tween April and August 20, 1982, except to the extent
that we established different conditions in the written
materials given to you when you applied for employ-
ment with us on August 18 and 19, 1982.
WE WILL NOT discharge or otherwise discriminate
against any employee in order to discourage employees
from execising their right to belong to, or be represented
by, Teamsters Local 14.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, meet and bargain
with Teamsters Local 14 as the exclusive representative
of the employees in the unit described above concerning
their wages, hours, and other terms and conditions of
employment and, if any agreement is reached, we will
sign a contract containing such agreement.
WE WILL restore the conditions of employment for the
employees in the above bargaining unit to those which
existed prior to April 1982, except to the extent that we
amended those conditions in writing on August 18 and
19 1982, and WE WILL make employees whole for any
losses suffered after August 20, 1982, together with inter-
est, as a result of our failure to immediately restore those
conditions after we began operating the Sahara Hotel
and Casino.
WE WILL offer immediate and full reinstatement to
Arthur Andersen, Ricardo Atilano, Robert Bero, Ray
Ferrero, Vince Giuffre, Sidney Martin, David McGuire,
Gordon Nicholson, and Mitchell Sheck and make each
of them whole for the losses suffered as a result of their
discharge, together with interest.
WE WILL remove from the records of the employees
named above any written reports, notations, or memo-
randa reflecting their discharge by us, and WE WILL
notify each of them in writing that this has been done
and that evidence of their discharge will not be used as a
basis for future discipline against them.
SAHARA LAS VEGAS CORPORATION