Sahara-Reno Corporation, d/b/a Sahara Reno

National Labor Relations Board - Board Decisions

Jul 13, 1982

262 N.L.R.B. 824 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sahara-Reno Corporation, d/b/a Sahara Reno and
Hotel, Motel, Restaurant Employees and Bar-
tenders Local Union No. 86, a/w Hotel & Res-
taurant Employees and Bartenders International
Union, AFL-CIO. Case 32-CA-1384
July 13, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING, ZIMMERMAN, AND
HUNTER
On June 20, 1980, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has excepted to the Administrative Law Judge's finding
that employee Heltonl testified that he came to the hotel at 11:30 a.m. on
October 2, 1978. While Helton's initial testimony was to that effect, Re-
spondent correctly notes that Helton later clarified his testimony and
stated that he arrived at the hotel at 10 a.m., met with union officials out-
side, then entered the hotel at 11:30 a.m. We find that this inadvertent
error does not affect the Administrative Law Judge's legal conclusions.
In sec. IllF,2, of his Decision, the Administrative Law Judge inad-
vertently referred to the discharge of "Coleman," while the context
makes it evident that he meant to refer to "Tollman." Similarly, in sec. 9
of his "Concluding Findings," the Administrative Law Judge referred to
Nigro's dissatisfaction with Perkins and "Tobin" when he clearly intend-
ed to refer to Perkins and Tollman.
' The Administrative Law Judge concluded, and we agree, that Re-
spondent violated Sec. 8(a)l) of the Act by maintaining and enforcing a
no-solicitation rule which prohibited solicitation "in any working area for
any purpose ... on company time," without having demonstrated any
special justification for the rule. In so doing, we note that the Board con-
sistently has found the prohibition of solicitation during "company time"
to be overly broad. See, e.g., Florida Steel Corporation, 215 NLRB 97, 98
(1974).
Chairman Van de Water and Members Zimmerman and Hunter, in
adopting the Administrative Law Judge's conclusion that Respondent un-
lawfully threatened employees on October 2, 1978, note that the Admin-
istrative Law Judge found that the employees' protest on that date con-
cerned their working conditions as well as their dissatisfaction with Ex-
ecutive Food and Beverage Director Bienz and their fear that Bienz
would discharge Executive Chef Perkins. Accordingly, they deem it un-
necesary to pass on the Administrative Law Judge's statement that an
employee protest concerning only Bienz' continued supervision and/or
Perkins' rumored discharge would constitute protected concerted activi-
ty.
3 We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from its personnel records, or other files, any refer-
ence to the unlawful layoffs of employees William O'Dell and Howard
Topping on October 6, 1978, and of all food department employees laid
off as a result of the decision to close the Sahara coffeeshop on October
262 NLRB No. 95
1. The Administrative Law Judge concluded,
and we agree, that Respondent violated Section
8(a)(3) and (1) of the Act by closing the Sahara
coffeeshop, laying off" many of the food service em-
ployees who worked there, and laying off store-
room employees O'Dell and Topping because of
employee activity in support of the Union. Follow-
ing the issuance of the Administrative Law Judge's
Decision in this proceeding the Board issued its de-
cision in Wright Line,4 in which it articulated a
two-step mode of analysis for examining causation
in cases alleging violations of Section 8(a)(3) or
Section 8(a)(l) turning on mixed or dual motivation
on the part of an employer. For the reasons set
forth below, we find the Administrative Law
Judge's conclusion that Respondent violated the
Act by engaging in the above conduct is consistent
with the mode of analysis set forth in Wright Line.
With regard to the October 6, 1978, 5 closing of
the coffeeshop and resulting layoff of food service
employees who worked there, the Administrative
Law Judge found without merit Respondent's as-
sertion that it acted solely for economic reasons.
He found that, unlike plans to close other portions
of its operations, Respondent neither mentioned
plans to close the coffeeshop to its department
heads nor included them in memoranda covering
plans to improve the profitability of its operations.
The Administrative Law Judge further found that,
had Respondent determined prior to October 2,
1978, the date when employee union activity
began, to close the coffeeshop, the department
heads would have been notified of those plans. He
further noted that Respondent's union animus had
been clearly demonstrated; that Respondent was
aware that employee unrest was centered in the
Sahara food service employees, who bore the brunt
of the layoffs; and that Sahara food service em-
ployees were treated less favorably than food serv-
ice employees in other parts of its operations who
had not engaged in union activities. Additionally,
he found, based on credited testimony, that Re-
spondent told its supervisors that it would close
rather than recognize a union and instructed them
to select for layoff marginal employees and those
who were active for the Union. Based on these
findings, inter alia, the Administrative Law Judge
concluded that, although Respondent had ample
economic justification to restructure its food serv-
ice department, it decided to close the Sahara cof-
6, 1978 and to notify them in writing that this has been done and that
evidence of these unlawful layoffs will not be used as a basis for further
personnel actions against them. See Sterling Sugars. Inc., 261 NLRB 472
(1982). We shall modify the Administrative Law Judge's recommended
Order accordingly.
Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083 (1980).
' Except as otherwise indicated, all dates are in 1978.
824
SAHARA RENO
feeshop only after commencement of union activity
by coffeeshop employees and that its action was
designed to deliver a devastating blow to such ac-
tivity.
We conclude that the Administrative Law
Judge's findings with regard to Respondent's
knowledge of the employees' union activity, the
timing of Respondent's decision to close the coffee-
shop, and the evidence of animus and disparate
treatment of coffeeshop employees constitute a
prima facie showing sufficient to support the infer-
ence that a motivating factor in Respondent's deci-
sion was the employees' union activity. We further
conclude, based on the Administrative Law Judge's
findings, and particularly the manner in which Re-
spondent's decision was made, that, although Re-
spondent may have had economic justification to
restructure its food service operations, it has not es-
tablished that the coffeeshop would have been
closed even absent the employees' union activity.
With regard to O'Dell, the Administrative Law
Judge credited testimony that Director of Purchas-
ing DiFulvio, who had informed O'Dell of his
layoff, subsequently admitted to O'Dell that he had
been unable to help O'Dell because of his involve-
ment in union activities. This statement constitutes
a prima facie showing that O'Dell was laid off for
union-related reasons. We further find that Re-
spondent has not rebutted this prima facie showing.
In this regard, Respondent asserts that O'Dell was
laid off because the reorganization of its food serv-
ice department diminished its need for storeroom
employees, and that O'Dell was the least senior
storeroom employee. We note, however, that
O'Dell would not have been the least senior such
employee if his prior service with Respondent
were considered, and that Respondent has not
shown that its policy has been to compute seniority
only from the most recent date of hire for purposes
of layoff. Further, the evidence indicates that se-
niority was not a factor in Respondent's other lay-
offs which occurred around the same time. Thus,
as noted above, the Administrative Law Judge
credited testimony that, in laying off Sahara coffee-
shop employees, Respondent's supervisors were in-
structed to choose "marginal" employees and those
employees who were engaged in union activity,
rather than the least senior employees. According-
ly, we find that Respondent has not established
that O'Dell would have been laid off absent his
union activity.
With regard to Topping, the Administrative Law
Judge credited evidence which we find establishes
all of the elements of a prima facie showing that a
motivating factor in Respondent's decision to lay
off Topping was his union activities. Thus, there
can be no doubt that Respondent was aware of
Topping's activities and that Respondent expressed
animus not only to union activity in general but
specifically as to Topping by enforcing its unlawful
no-solicitation rule against him upon learning that
he had handed out union cards. Finally, the timing
of the layoff supports an inference that Topping's
union activities motivated Respondent to lay him
off. We further conclude that Respondent's evi-
dence concerning Topping's work performance did
not rebut the prima facie case established by the
General Counsel. Thus, as noted by the Adminis-
trative Law Judge, although Topping was not a
model employee, Respondent had tolerated his
work and granted Topping a pay increase a week
before the layoff. Although Respondent contended
that this increase was due to a tight labor market,
the Administrative Law Judge specifically discred-
ited such testimony and noted that various other
witnesses of Respondent had indicated that, in fact,
there was a ready availability of skilled job appli-
cants. Accordingly, we conclude that Respondent
has failed to show that Topping would have been
laid off in the absence of his union activity.
Accordingly, applying the analysis set forth in
Wright Line and based on all of the Administrative
Law Judge's findings, particularly those summa-
rized herein, we conclude that the General Counsel
has established that Respondent has violated the
Act by closing the Sahara coffeeshop, laying off
food service employees who worked in the coffee-
shop, and laying off O'Dell and Topping.
2. The General Counsel excepts to the Adminis-
trative Law Judge's failure to find the layoff of
several sous chefs unlawful because it was part of
Respondent's discriminatory layoff of food service
employees. The General Counsel argues that, al-
though the complaint alleges and the answer
admits that Sous Chef Van DeBogart was a super-
visor, the other sous chefs may have been rank-
and-file employees who would be entitled to rein-
statement and backpay along with other laid-off
employees. Alternatively, the General Counsel, re-
lying on Nevis Industries, Inc., d/b/a Fresno Towne-
house, 246 NLRB 1053 (1979), argues that, even if
the sous chefs were supervisors, their layoff was an
integral part of Respondent's pattern of unlawful
conduct and that, therefore, the sous chefs should
be reinstated along with the laid-off employees.
Respondent contends that the lawfulness of the
layoff of sous chefs was neither timely raised nor
fully and fairly litigated. Thus, Respondent notes
that the instant complaint alleges only the unlawful
layoff of "employees," while at the same time the
complaint alleges, and the answer admits, that Sous
Chef Van DeBogart was a supervisor. Further, Re-
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent observes that the General Counsel re-
ferred to sous chefs as supervisors in his brief. Ac-
cordingly, Respondent argues that the General
Counsel's first theory, that sous chefs are not su-
pervisors, is "preposterous."
With regard to the General Counsel's alternative
theory, Respondent contends that, unlike cases
where employers have been found to have acted
unlawfully in laying off all employees and supervi-
sors alike in an effort to rid a facility of union ac-
tivity, here Respondent laid off only part of the
food department. Further, Respondent argues that,
at best, the General Counsel's evidence indicates
only that four or five employees were selected for
layoff because of their union activity. Respondent
further argues that only two sous chefs were laid
off, and that there is no evidence that either was
involved in the Union, while Sous Chef Van De-
Bogart, who may have been involved in the Union,
was never laid off.
We agree with Respondent that the General
Counsel's argument that sous chefs are employees
rather than supervisors is without merit. Thus, al-
though the supervisory status of sous chefs was
never directly raised, there is sufficient evidence in
the record to indicate that sous chefs possessed su-
pervisory authority. In this regard, we note par-
ticularly testimony that sous chefs had the authori-
ty to give employees time off and to enforce Re-
spondent's no-solicitation rule. Accordingly, we
conclude that sous chefs are supervisors rather than
employees.
We further find no merit in the General Coun-
sel's alternative theory. The record shows that sev-
eral of the sous chefs were heavily involved in or-
ganizing the October 2 employee protest and in
presenting the employees' grievances to manage-
ment. However, in its recent decision in Parker-
Robb Chevrolet, Inc., 262 NLRB 402 (1982), the
Board held that the protection of the Act does not
extend to supervisors who are disciplined or dis-
charged as a result of their participation in union
or concerted activity. In so doing, the Board over-
ruled Fresno Townehouse supra, on which the Gen-
eral Counsel relies, and similar cases to the extent
those cases held that a violation is established when
the discharge of supervisors is an "integral part" of
an employer's pattern of unlawful conduct directed
against employees. Accordingly, even assuming, ar-
guendo, that several sous chefs were laid off as an
integral part of Respondent's pattern of unfair
labor practices against employees, we conclude, for
the reasons fully set forth in Parker-Robb, that
there is no basis for finding unlawful these supervi-
sory layoffs.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Sahara-Reno Corporation, d/b/a Sahara Reno,
Reno, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as new paragraph 2(b)
and reletter the subsequent paragraphs accordingly:
"(b) Expunge from its personnel records, or
other files, any reference to the unlawful layoffs of
William O'Dell and Howard Topping on October
6, 1978, and of all food department employees laid
off as a result of the decision to close the Sahara
coffeeshop on October 6, 1978 and notifty them in
writing that this has been done and that evidence
of these unlawful layoffs will not be used as a basis
for future personnel actions against them."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amend-
ed, gives all employees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten employees with dis-
ciplinary action or discharge if they leave their
work stations and engage in protected concert-
ed activities in protest of their working condi-
tions.
WE WILL NOT inform employees that they
will be discharged if they engage in activities
on behalf of Hotel, Motel, Restaurant Employ-
ees and Bartenders Local Union No. 86, a/w
Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO, or any other
labor organization.
826
SAHARA RENO
WE WILL NOT inform employees who have
been laid off that the reason for their layoff is
because they engaged in activities on behalf of
the Union.
WE WILL NOT threaten employees with
arrest if they engage in union activities on our
property.
WE WILL NOT maintain or enforce an inval-
id no-solicitation rule prohibiting employees
from soliciting on company time in work
areas.
WE WILL NOT close portions of our oper-
ation thereby causing the layoff of employees
in order to suppress union activity.
WE WILL NOT lay off employees because
they are involved in activities on behalf of the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights, described above,
guaranteed them in Section 7 of the Act.
WE WILL offer William O'Dell, Howard
Topping, and all food department employees
laid off as a result of our decision to close the
Sahara coffeeshop on October 6, 1978, imme-
diate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WILL make them whole for
any loss of pay they may have suffered as a
result of our unlawful discrimination against
them, plus interest.
WE WILL expunge from our personnel
records, or other files, any reference to the
October 6, 1978, layoffs of William O'Dell and
Howard Topping, and of all food department
employees laid off as a result of the decision to
close the Sahara coffeeshop on October 6,
1978, and WE WILL notify them in writing that
this has been done and that evidence of these
unlawful discharges will not be used as a basis
for future personnel actions against them.
SAHARA-RENO CORPORATION, D/B/A
SAHARA RENO
DECISION
STATEMENT OF THE CASE
GORDON J. MYATr, Administrative Law Judge: Upon
a charge filed on November 20, 1978, by Hotel, Motel,
Restaurant Employees and Bartenders Local Union No.
86, a/w Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO (hereinafter called the
Union), against Sahara-Reno Corporation, d/b/a Sahara
Reno (hereinafter called the Respondent or the Sahara)
the Regional Director for Region 32 issued a complaint
and notice of hearing on January 31, 1979. A first
amended charge was filed by the Union on May 11,
1979, and an amended complaint and notice of hearing
was issued by the Acting Regional Director on August
9, 1979.
The amended complaint alleges that Respondent com-
mitted numerous violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, 29 U.S.C.
§ 151, et seq. (hereinafter called the Act). More specifi-
cally, the amended complaint alleges that the Respond-
ent, through its agents or supervisors: (1) threatened em-
ployees with reprisals if they engaged in union or pro-
tected activities; (2) threatened to terminate employees
on several occasions if they engaged in union or protect-
ed activities; (3) unlawfully interrogated an employee
about his union or protected activities; (4) informed a
laid-off employee that he had been terminated because of
his union activities; (5) threatened a laid-off employee
with arrest if he ever came on the Respondent's property
to engage in union activities; and (6) engaged in and/or
created an impression of engaging in unlawful surveil-
lance of employees' union activities at the local union
hall. The amended complaint further alleges that the Re-
spondent closed the coffeeshop and buffet' at the Sahara
Reno on October 6, 1978, and laid off employees and re-
fused to reinstate them because they joined or assisted
the Union or engaged in other protected concerted activ-
ities. Finally, the amended complaint alleges that the Re-
spondent unlawfully terminated employees Howard Top-
ping and William O'Dell on October 6 and 7, 1978, and
refused to reinstate them to their former positions of em-
ployment. During the course of the hearing, the com-
plaint was further amended to allege that the Respondent
maintained and discriminatorily enforced a facially inval-
id no-solicitation rule in violation of Section 8(a)(1) of
the Act.
The Respondent filed an answer in which it admitted
certain allegations of the amended complaint, clarified
others, and specifically denied the commission of any
unfair labor practices. In addition, at the hearing the Re-
spondent specifically denied the amended allegation re-
lating to maintaining and discriminatorily enforcing a fa-
cially invalid no-solicitation rule.
A hearing was held on this matter in Reno, Nevada,
on various dates during the months of September and
October 1979. All parties were represented by counsel
and afforded full opportunity to examine and cross-exam-
ine witnesses, and to present material and relevant evi-
dence on the issues involved herein. Briefs were submit-
ted by counsel for the General Counsel and the Re-
spondent and have been duly considered.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
I Although the amended complaint alleges that the buffet was closed
by the Respondent on this date, the General Counsel never contended
nor was an) evidence ever intended to he introduced to indicate that the
buffet at the Sahara Reno was closed by the Respondent. It Is clear that
the closing involved in this case relates solely to the coffeeshop in the
Sahara Reno.
827
DECISIONS OF NATIONAL
FINDINGS OF FACT
1. JURISDICTION
The Sahara Reno is a hotel and gaming casino owned
and operated by the hotel division of the Del Webb Cor-
poration, an Arizona corporation. This division of the
Del Webb Corporation owns and operates a number of
hotels in Arizona, California, and Nevada. Commonly,
the hotels in Nevada are designated with the parent cor-
poration's name; i.e., Del Webb's Sahara Las Vegas, Del
Webb's Sahara Tahoe, and the only facility involved
herein, Del Webb's Sahara Reno. The hotel division is
headed by a president and each hotel is operated by a
vice president and general manager.
The Sahara Reno is a Nevada corporation and its
place of business is located in Reno, Nevada. During the
12-month period preceding the issuance of the amended
complaint herein, the Sahara Reno grossed revenue in
excess of $500,000. During a similar period, the Sahara
Reno, in the course and conduct of its business oper-
ations, purchased and received goods or services valued
in excess of $50,000 directly from suppliers located out-
side the State of Nevada.
On the basis of the above, I find that the Respondent,
Sahara Reno, is and has been at all times material herein
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Restaurant Employees and Bartenders
Local Union No. 86, a/w Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Sometime in 1974, the Del Webb Corporation pur-
chased the Primadonna Casino in Reno. The "Prim," as
it was commonly called, was an old establishment which
contained a gaming casino and eating facilities consisting
of a coffeeshop, a buffet, a snackbar, and a steak house.
It fronted on Virginia Street, the main gambling street in
Reno. In 1976, Del Webb Corporation announced plans
to build the Sahara Reno immediately behind and across
the street from the Prim. Construction started in 1977
and the grand opening was on July 1, 1978.2 Although
the Sahara Reno opened for business on that date, the
construction work on the multimillion dollar facility was
far from complete.3 In order to comply with the require-
ments of the licensing authorities, the hotel had to have
at least 100 rooms available for guests. However, at the
time of the grand opening only 37 of those rooms were
fully appointed and occupied. Construction delays and
setbacks resulted in postponing the opening of the show-
room where headline entertainers were to perform. The
only restaurant facilities available at the time of the
a Unless otherwise indicated, all dates hereafter refer to the year 1978.
3 The record indicates that the Sahara Reno was estimated to be a $55
million hotel-gaming casino facility.
grand opening were the coffeeshop, the buffet, and a
snackbar. In addition, room service was available for the
limited number of hotel guests. Not all of the elevators
were fully operational and because construction was still
going on, some of the elevators in operation had to be
removed from guest service for use by the contractors.
Although the Prim and the Sahara were separated by
a street (Sierra Street) they were connected by an en-
closed, overhead walkway which spanned the street. Ini-
tially each of the properties was operated as a separate
entity. The Prim was managed by Tom Aro, an assistant
general manager, and the Sahara was managed by Vlad
Chuhlantseff, also an assistant general manager. Both
Aro and Chuhlantseff reported to Doyle Mathia, who
was at that time the general manager of the Reno oper-
ations and a vice president of the hotel division of Del
Webb Corporation. All of the hiring of employees, ac-
counting and payroll functions, financial reporting and
the like, was separate for each establishment. There were
certain overlapping responsibilities, however, vested in
several employees. For example, the food and beverage
director of the Sahara, Kenneth Tollman, had overall re-
sponsibility in this same area for the Prim. Similarly, the
initial executive director of advertising for the Sahara,
Larry Close, also functioned in this capacity for the
Prim. Also, the director of purchasing, Enrico DiFulvio,
was responsible for purchasing for both operations.
Sometime prior to August, Mathia became president of
the hotel division of Del Webb. Because significant
losses were being incurred in the Reno operation, Mathia
caused an analysis to be conducted, discussed in detail,
infra, and management began to take steps to integrate
the operation of the two properties. Aro was moved
during the latter part of August to corporate headquar-
ters and subsequently to Del Webb's Atlantic City, New
Jersey, operation. Chuhlantseff then became the general
manager of the Reno operations and a vice president of
the hotel division.
B. The Progress of the Sahara After Its Opening
As noted, the Sahara opened for business on July 1,
even though the construction work on the facility had
not been completed. Because of the construction delays,
the showroom, which was also scheduled to open on
July 1, did not open for business until July 27. This set-
back interfered with the booking of name performers and
lesser-known entertainers had to be substituted. This in
turn decreased the drawing power of the showroom and
fewer customers than projected by the Sahara manage-
ment were attracted to the facility. In addition, financial
records introduced into evidence by the Respondent dis-
closed that the Sahara Reno was incurring substantial
losses in its operation. For July, the overall losses in-
curred were $429,188. (Resp. Exh. 5.) The losses in-
creased in August to $1,128,570. (Resp. Exh. 6.) In mid-
August, Mathia, now president of the hotel division, sent
Edward Nigro from Las Vegas to evaluate the Reno op-
eration and to come up with proposals for reducing the
high rate of loss. Nigro was formerly a vice president
and the general manager of the Sahara Las Vegas. He
subsequently became the executive vice president of the
828 LABOR RELATIONS BOARD
SAHARA RENO
hotel division in charge of all of the Nevada operations
for the Del Webb Corporation.
The minutes of the meeting between Chuhlantseff and
the department heads of the Sahara reflect a constant
concern over the losses experienced in the Sahara's oper-
ation and the need to reduce them by attracting more
customers and cutting costs in all departments. (Resp.
Exhs. 14-18.) One of the prime concerns, although by no
means the only major concern, was the loss incurred by
the food department of the Sahara. The records of the
Respondent reveal that for July the Sahara food depart-
ment loss was S72,423. (Resp. Exh. 10.) For August these
losses totaled $148,807 (Resp. Exh. 9), and amounted to
$153,575 in September (Resp. Exh. 8). Chuhlantseff testi-
fied that although in the hotel-gaming casino industry
the restaurant facilities were not expected to earn a profit
(the clear indication being that the major source of prof-
its were derived from the casino operation), these losses
were at a level out of proportion with the industry norm.
After Nigro's initial visit to Reno, he and Chuhlantseff
began discussing tentative proposals designed to reduce
the amount of losses experienced by the Reno operation.
Nigro, who was no longer employed by the Del Webb
Corporation at the time of the hearing, 4 testified that he
determined there was duplication of functions between
the two properties. Initially it was the thinking of the
Del Webb Corporation officials that the Prim and the
Sahara Reno should be operated independently. The
Prim was a much older establishment with only gaming
casino and restaurant facilities. In comparison to the lav-
ishness of the Sahara, it was a rundown facility with
worn carpeting and furnishings. The original view of the
corporate officials was that the Prim would attract pa-
trons from a different customer market than would be at-
tracted to the Sahara. For this reason, it was determined
that the two establishments would be separate and dis-
tinct in all respects.
Nigro, on the other hand, came to the conclusion,
after his initial survey of the Reno properties, that they
should be integrated and the Prim brought up to the
standards of the Sahara. He felt there was duplication of
management and accounting functions and procedures as
well as unnecessary costs incurred in running the two
properties as separate facilities. For example, he pointed
out that on one occasion the Prim was laying off casino
employees while at the same time the Sahara was adver-
tising for persons with those same skills to work in its
casino. He was also concerned about the high labor costs
incurred by the Sahara and sought to devise means of re-
ducing them.
Nigro testified that he initially felt the food service at
the Prim should be shut down completely and central-
ized under the Sahara as one of the first steps in integrat-
ing the properties. He stated that Chuhlantseff persuaded
him to abandon this idea. According to Nigro, Chuhlant-
seff indicated there were physical limitations in the
design of the Sahara kitchen facilities that had to be cor-
rected. In addition, he asserted that Chuhlantseff pointed
out that the complete closing of the Prim food service
4 At the time of the hearing, Nigro had left the Del Webb Corporation
and was putting together his own hotel-casino management investment
company.
would interfere with the traffic flow of patrons to the
Sahara.'
After numerous visits to Reno and after many tele-
phone conversations with Chuhlantseff, Nigro finally
made recommendations to the board of directors of the
Del Webb Corporation regarding the Reno operation.
Although he asserted that his reports were verbal, he set
them down in a memo to his file on September 14 and
produced this memo at the hearing. (Resp. Exh. 37.)
Among his many recommendations were the following:
2. Integration of Sahara Reno and Primadonna
-Staff reorganization plan under one General Man-
ager, including Casino operation
-Remodel Primadonna-budget and interior design
underway
3. Entertainment re-evaluation
-Cancel 1978 schedule in Main Room, effective Sep-
tember 20
-Changed current show policy to one show per
night to reduce costs
8. Food/Beverage Department Review
-Authorized hiring of Joe Bienz as Food & Bever-
age Director over Reno Operations
-Reduce exorbitant labor costs
-Integrate Sahara Reno and Primadonna Food &
Beverage employees and facilities
* * * a a
11. Integration Plan-Sahara Reno/Primadonna
-Casino personnel organization
-Other operating departments organizational plan
-One financial statement
-Legal ramifications
-Gaming Control Board requirements on Regulation
6 filings
-Remodel of Primadonna
-Sign Program
As a result of Nigro's recommendations, Chuhlantseff
was made general manager of both properties and steps
were taken to get cost studies on the remodeling of the
Prim. All of the administrative and financial responsibil-
ities were placed under Chuhlantseff and the properties
were operated as one entity, even though they had sepa-
rate names at that time. Joseph Bienz was hired as the
executive food and beverage director for the Reno oper-
a It is evident from the testimony that customer traffic flowed from the
Prim through the eating area to the overhead walkway into the Sahara.
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations, and Perkins and Tollman reported directly to
him.6
Although Nigro's recommendations merely related to
integrating the food and beverage departments of the
Prim with the operation at the Sahara, he and Chuhlant-
seff testified that they had'agreed upon a specific plan to
implement the decision to integrate the properties. Nigro
stated it was decided that the buffet at the Prim would
be closed and the buffet at the Sahara would be the only
one serving in this capacity for the entire operation. He
also stated it was decided that the coffeeshop at the
Sahara would be closed and the Prim coffeeshop would
remain open. Nigro testified, however, that it was never
intended that the Sahara would be without a coffeeshop
on a permanent basis.7 According to Nigro, he gave
Chuhlantseff verbal approval on September 25 to effect
these changes and directed him to outline the means by
which this would be accomplished in a memorandum to
his (Nigro's) office.
Chuhlantseff's memorandum to Nigro, in the form of
recommendations submitted for the latter's approval, was
dated September 26. 8 In this document Chuhlantseff set
forth the following steps which were to be taken to inte-
grate the food and beverage services of the two proper-
ties:
I. Close the Primadonna buffet.
2. Buffet service at Sahara Reno only.Service:
breakfast, lunch & dinner.
3. Priniadonna Coffee House to operate as coffee
house only.
4. Close Sahara Station (coffee house) and utilize
it only as an overflow for the buffet.
5. Retain Charles Silverman to coordinate with
our food and beverage department to do an in-
depth study of all food and beverage services at
Sahara Reno and the Primadonna to integrate as
one operation Sahara Reno.
As one of the initial steps in integrating the food serv-
ices of the Prim with that of the Sahara, management in-
tended closing the buffet at the Prim and operating that
service exclusively at the Sahara. The minutes of the
meeting between Chuhlantseff and the department heads
on September 29 disclose that Bienz was to implement
this step on October 2. (Resp. Exh. 18). The minutes also
show that management planned to have an oyster bar, a
coffeeshop, and a snackbar with areas for pizza and
Mexican food at the Prim. Remodeling on the Prim,
however, was to be held up until a report was received
from the interior designers.
C. The Closing of the Sahara Showroom
As previously noted, the Sahara showroom opened
during the latter part of July. It was initially scheduled
to present headline performers in two shows a night and
the early show was also to involve the serving of food.
Because the construction delays had postponed the open-
Prior to this, Bienz was the food and beverage director at the Sahara
Tahoe property.
This was apparent since the plans envisioned that the coffeeshop at
the Prt,n would be remodeled into a seafood restaurant.
I Reap. Exh. 19.
ing of the showroom, the Respondent was unable to
book the name performers it had originally sought and
had to settle for lesser-known individuals. This resulted
in fewer patrons being attracted to the showroom and
the operation became highly unprofitable. As a part of its
overall effort to minimize its losses, the Respondent's top
officials decided in early September to close the show-
room. This could not be accomplished immediately,
however, because of the outstanding contracts with the
entertainers. Chuhlantseff testified that he met with the
showroom employees on September 7 and advised them
that the showroom was going to be closed on September
19-when the outstanding contracts of the entertainers
expired or had been settled. Chuhlantseff further testified
that while it was not the policy of the Respondent, or
for that matter of any of the hotel casinos in the indus-
try, to give employees prior notice of the closing down
of operations, an exception was made in this instance be-
cause the showroom was not to be closed until several
weeks later. He stated that he informed the employees
the Respondent would make efforts to relocate them in
other areas of the food department, if it could be done
without creating new positions.
D. The Hiring of Bienz and the Employee Opposition
to Him
Joseph Bienz was brought in as the executive food and
beverage director for the Reno operations from the
Sahara Tahoe sometime in mid-September. As indicated
by the memoranda and the discussions between Nigro
and Chuhlantseff, Bienz' job was to tighten up the oper-
ation of the food and beverage department in order to
reduce the substantial losses being incurred there. The
testimony of the Charging Party's witnesses disclose that
Bienz almost immediately engendered animosity and re-
sentment from the Sahara food preparation and food
service employees because of the methods employed by
him in supervising their department. This resentment was
not limited to rank-and-file employees, however, but also
existed among the sous chefs (supervisors in the food
preparation department) as well. The main complaint of
the sous chefs, the dinner cooks, and other food prepara-
tion employees centered on the fact that Bienz did not
treat them with respect and was dictatorial and rude to
the employees generally. Among the food service em-
ployees, Bienz was considered to be something of a
"storm trooper" who ran the operation with gestapo-like
tactics. Doyle, a waitress in the coffeeshop, testified that
after Bienz' arrival in Reno, the waitresses in the coffee-
shop were no longer permitted to take breaks, even for
personal reasons. She also testified that he removed a
table used by the food service employees to grab snacks
of toast or coffee while working.9 This table had been
located in the hallway leading to the buffet kitchen.
9 Shirley Smith, the day-shift supervisor in the coffeeshop at the
Sahara testified that she knew of no "drastic" complaints against Bienz
by the employees. According to Smith, Bienz never changed the breaks
or any other working conditions of the employees on her shift. Despite
Smith's testimony, it is apparent from the testimony of all of the other
witnesses that Bienz did in fact make changes in the employees' working
conditions and the employees expressed their dissatisfaction to Smith as
well as to other supervisors.
830
SAHARA RENO
Rumors were also circulating among the food depart-
ment employees that the executive chef, Perkins, was
going to be fired by Bienz. The majority of the food
preparation employees and some of the food service em-
ployees had worked with Perkins at Harrah's in Tahoe
prior to the opening of the Sahara Reno. Many of them
were hired or their hiring was recommended by Perkins
when the Sahara Reno began recruiting employees. It
was apparent from the testimony that the employees
formed a strong loyalty toward Perkins.
The dissatisfaction with Bienz increased as the remain-
ing weeks in September passed. On September 30, the
Sahara food preparation and service employees, led by
the sous chefs, decided that they would confront top-
level management on October 2 with their complaints
about Bienz' methods and, if no satisfactory resolution of
this problem was reached, they would walk out in pro-
test at noon.
On Sunday, October i. the Respondent gave an all-
day picnic for its employees. Word of the employee dis-
satisfaction, or "employee unrest" as it was termed at the
hearing, was a topic of discussion among some of the
employees and supervisors as well as among some of the
management officials present at the picnic. Lois Miller, a
garde-manger,' testified that she went to the picnic after
her shift was over at 5 p.m. Miller was accompanied by
her husband. She stated that she had been informed of
the plan to walk out by a coworker. She asked John Ci-
borski, a sous chef, about the matter prior to going to the
picnic and he confirmed that it was the employees' inten-
tion to take this action on October 2. Miller testified that
Ciborski said if she wanted to participate, she should be
present that day but if she did not, he would give her the
day off.
At the picnic, Miller stated she spoke with the head
pastry chef, Ron Hinzen. According to Miller, when she
mentioned the walkout to Hinzen, he told her that man-
agement vxs aware of the employee unrest because it
had been discussed in a meeting he had attended the day
before the picnic. Miller testified that Hinzen said man-
agement was working on the matter, but was prepared to
close the coffeeshop, and the whole casino if they had
to, in order to put down the unrest.
Hinzen, who was no longer employed by the Re-
spondent at the time of the hearing, denied making these
comments to Miller. He admitted that while it was possi-
ble he had talked to Miller at the picnic, he did not
recall doing so. He further testified that while there was
a lot of "union talk" going on among the employees, he
stayed out of it because it did not interest him.
Larry Close, who at this point had become the admin-
istrative asslistant to Chuhlantseff, testified that Perkins
told him at the picnic that some employees in the food
department were upset because of Bienz. According to
Close, he asked Perkins if he had informed Chuhlantseff
of this fact and Perkins replied, "on several occasions." t
z0 A garde-mange decorates all of the salads and the fancy prepara-
tions that leave the kitchen.
1 1 Perkins was present throughout the hearing but was not called as a
witness.
E. The Employee Activity on October 2
Patrick Helton, then a dinner cook at the Sahara, testi-
fied that in August he had seen an ad in the local news-
paper where the Union was attempting to organize the
employees of the MGM Grand Hotel Casino. Helton
stated that on August 21, he went to the union office and
met with Jim Tobin, the union official in charge of the
organizing campaign in Reno. On September 30, Helton
was informed by Van DeBogart, a sous chef and his su-
pervisor, that the employees were unhappy with Bienz
and were going to walk out on October 2 at noon. 2
Helton testified that he then contacted the union officials
and informed them of the employees' discontent and pro-
posed walkout. Tobin advised against this course of
action. According to Helton, Tobin stated that he
wanted to meet with the sous chefs. Helton then asked
Tobin to come to the hotel on October 2 so that some of
the employees could talk with him.
On the morning of October 2, a group of employees
on the first shift sought to have a meeting with Chuh-
lantseff in his office. Although the group was composed
mainly of sous chefs, it also included nonsupervisory
food preparation and food service employees. Ciborski,
one of the chief spokespersons for the group, testified
that he and Sous Chefs Van DeBogart, Crockett, and
Brandt had compiled a list of the employees' grievances
in the chefs' office that morning for presentation to
Chuhlantseff.' 3 According to Ciborski, he and Crockett
called Chuhlantseff's office at 7 a.m. and spoke to the
general manager's secretary. They requested a meeting
but were told that Chuhlantseff had not arrived and he
would get back to them.
Doyle testified that an hour or so after she reported to
work that morning, her supervisor, Shirley Smith, in-
structed her to go to Chuhlantseff's office to a meeting
to discuss the employees' complaints. Jean Kelly, another
waitress in the Sahara coffeeshop, also testified that
Smith instructed her to report to Chuhlantseff's office for
a meeting. Kelly stated that Smith did not inform her of
the purpose of the meeting at that time."
The meeting between Chuhlantseff and the food de-
partment employees was held in the general manager's
office between 9:30 and 10 a.m. that morning. Ciborski
and Crockett were among the chief spokesmen for the
group. They expressed the employees' complaints stating
that Bienz was running the food department like a Nazi
concentration camp. They also told Chuhlantseff they
heard that Bienz intended to fire Perkins. The employees
demanded that Bienz be terminated and Perkins retained
as the executive chef. They told Chuhlantseff that, if
their demands were not met, the employees intended to
"2 Van DeBogart and Helton were friends and Hellon lived at Van
DeBogart's home while he was employed by the Respondent.
'3 Ciborski testified that he first wrote the grievances out in longhand,
but later printed them up because he did not want to present them in his
handwriting.
'4 Smith denied sending either Doyle or Kelly to the meeting. She also
denied that she was present during part of the meeting. Because it is ap-
parent that Smith, during the course of her testimony, was prepared to
deny even the most obvious and admitted facts, such as the employee dis-
satisfaction with Bienz and the manner in which he treated therm I do
not credit tier where her testimony conflicts with that of other witnesses
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walk out. Ciborski testified that he handed Chuhlantseff
a copy of the grievances which he and the other sous
chefs had compiled.1 5 (G.C. Exh. 18.) According to the
employee witnesses, Chuhlantseff stated that he was not
aware of their grievances regarding Bienz and that he
would take steps to straighten out the matter.1 6 Accord-
ing to Ciborski, Chuhlantseff stated that he knew of no
plans to terminate Perkins, but that he could not do any-
thing regarding Bienz because he was hired by the cor-
porate headquarters. The employees expressed a fear that
their jobs were in jeopardy because they met with Chuh-
lantseff and he assured them they would not lose their
jobs because of the meeting. However, he told the em-
ployees that, if they walked off their jobs, there was
nothing he could do. Ciborski testified that Shirley Smith
came into the office halfway through the meeting. Ci-
borski also testified that the employees agreed to give
Chuhlantseff until 11 a.m. to answer their complaints. He
stated that he knew from Van DeBogart that the Union
and the media would be present at that time. Doyle and
Kelly both testified that Chuhlantseff asked the employ-
ees to please call off the media and the Union and he
would get everything straightened out.
The witnesses for the Respondent gave a somewhat
different version of what occurred at the meeting in the
general manager's office. Chuhlantseff testified that he
was approached somewhere between 8 and 9 a.m. by
three cooks who asked him to meet with a group of the
employees. He agreed and the 3 went out and returned
with approximately 15 or 20 food preparation employees.
Although he was unable to identify the chief spokesman
for the group, he stated that two or three employees
acted in this capacity. The employees complained about
their fear that Bienz was going to terminate Perkins and
stated that Bienz was using gestapo tactics in running the
food department. They asked that Bienz be terminated.
According to Chuhlantseff, the employees indicated that,
if their demand regarding Bienz was not met, they would
demonstrate on the sidewalk in front of the Sahara at 11
a.m. and that the media would be present. He denied that
there was any mention of the Union or any organizing
activities on behalf of the Union at this meeting. Chuh-
lantseff also denied that he asked the employees to call
off the media or the Union. He stated that he told the
employees he would have to check with the corporate
offices in Las Vegas and that he would get back to them
as soon as possible. He told the employees that he did
not have any plans to terminate Perkins and was un-
aware of any such action before the employees brought
it to his attention. Chuhlantseff stated he also told the
employees that if they walked off their jobs or obstruct-
ed access to hotel property, or caused embarrassment to
the Sahara Reno, they would be subject to disciplinary
action. He denied that any list of grievances or com-
plaints were presented to him at this time by the employ-
'I Chuhlantseff denied that a list of grievances was handed to him at
this meeting. He testified that he later discovered a copy on his desk the
next day, although he did not know who put it there. I do not credit his
testimony in this regard and find that a list of grievances was in fact pre-
sented to him by the employees at this meeting.
'" Doyle testified that Chuhlantseff stated he was not aware of the em-
ployees' problems with Bienz until the evening of October 1.
ees. He also assured them that they would not be termi-
nated for coming to his office to express their grievances.
According to Chuhlantseff, he had not heard or been
made aware of any of the complaints expressed by the
employees prior to the meeting in his office. Chuhlantseff
stated that after the employees left, he contacted Nigro
in Las Vegas and notified him of the situation. He asked
Nigro to get back to him as soon as possible.
Larry Close testified that he was present during the
meeting in Chuhlantseff's office. He stated the employees
complained about Bienz' gestapo tactics and their fear
that he was going to terminate Perkins. According to
Close, the employees indicated they were going to walk
out at noon and that the media had been notified. He
stated they were also fearful that they would be termi-
nated for coming to the general manager's office to voice
their complaints. Close testified Chuhlantseff assured
them they would not be discharged for coming to his
office. According to Close, there was no discussion on
any other matters such as raises, late pay, or the Union.
Close stated he did not recall Chuhlantseff asking the
employees to call off the media or the Union.
Ciborski testified that sometime between 10:45 and 11
a.m., he went back to Chuhlantseff's office. He was ac-
companied by Brandt, Crockett, and Van DeBogart. Ac-
cording to Ciborski, the employees were seeking to get
Chuhlantseffs answer to their demands. He stated that
Chuhlantseff informed the sous chefs that he had not re-
ceived an answer from Las Vegas. Ciborski testified that
Chuhlantseff told employees they "had a gun at his
head," and ask them to call off the Union and the media.
According to Ciborski, he replied that all that was neces-
sary was to take action regarding Bienz and a phone call
would stop the planned walkout. Ciborski stated that the
sous chefs and Chuhlantseff then left the general manag-
er's office and went to the employees' cafeteria where
approximately 100 employees were waiting for Chuhlant-
seff's response to the demands.
The events in the cafeteria are again in dispute de-
pending upon which witness was testifying. According
to Ciborski, the employees as a group asked for Bienz'
termination. Chuhlantseff told them Bienz would be re-
moved from the property, but that his termination would
have to be "evaluated." Ciborski was unable to recall
whether there was any discussion about the Union while
Chuhlantseff was at the meeting in the cafeteria, but that
at some point, while the employees were gathered there,
Helton told them the union representatives were down-
stairs. According to Ciborski, Helton stated that the em-
ployees were not getting anywhere with management
and should talk to the union people. Ciborski stated he
and the other sous chefs returned to their work stations
and did not go to meet with the union officials because
they were supervisors.1 7
Helton testified that he came to the hotel at 11:30 a.m.
that day, even though he was not scheduled to report to
work until 3 p.m. Helton stated he met with the union
1? Doyle and Kelly did not attend the meeting in the cafeteria as they
were on duty at the time. A number of the other employees who were on
duty remained at their work stations in the coffeeshop and the buffet in
order to keep them operating.
832
SAHARA RENO
representatives at the entrance to the showroom in the
hotel before going up to the employees' cafeteria. He
stated that at the meeting Ciborski presented Chuhlant-
seff with a list of the employees' complaints and Chuh-
lantseff, who came to the meeting accompanied by an ex-
ecutive of Del Webb about 5 or 10 minutes after the em-
ployees had gathered, said the employees "had a gun to
his head." According to Helton, Chuhlantseff told the
employees that Bienz was going to be removed from the
property. He stated that no one would be fired for at-
tending the meeting, but if anyone walked off their jobs
to demonstrate, they would be terminated. Helton testi-
fied there was no mention of the Union while Chuhlant-
seff was at the meeting. He stated, however, that after
Chuhlantseff left, he (Helton) told the assembled employ-
ees they should talk to the union representatives who
were then in the hotel. Helton left to bring the union of-
ficials up to the employees' cafeteria but stated that he
was followed by hotel security guards. He testified he
then returned to the cafeteria and suggested that the em-
ployees go to the union hall instead. Helton testified that
before he left the hotel, however, he attempted to go to
Chuhlantseff's office to speak with him. He asserted that
he was prevented from entering by a security guard who
told him that Chuhlantseff did not want to see him.
After leaving the cafeteria, Helton and a group of em-
ployees who were not on duty at that time went outside
of the building where they met with television reporters
from the local stations. S Helton was interviewed while
on the street. He told the reporters that the employees'
dissatisfaction was part of a union organizing campaign.
He accused Bienz of acting like a "fuhrer" and running
the food preparation and service department of the
Sahara like a concentration camp.
Chuhlantseff testified that, although he had called
Nigro in Las Vegas immediately after the first meeting in
his office, Nigro was unable to get back to him before 11
a.m. He stated that someone from the group called his
office to find out if a decision had been made regarding
Bienz. Chuhlantseff testified that he informed this person
he had not received any word from corporate headquar-
ters. At that point, according to Chuhlantseff, Close
came in and advised him that the employees wanted to
meet with him in the cafeteria. He stated that this was
shortly after 11 a.m. Chuhlantseff and Close went to the
cafeteria where, according to his testimony, 30 or 40 em-
ployees were seated waiting for him. Chuhlantseff stated
that the employees wanted to know when he was going
to get rid of Bienz. He told them that he would let them
know as soon as he had heard from his superiors in Las
Vegas. He also testified that he instructed Close to
remove Bienz from the property at this time because the
employees were insisting that Bienz be terminated. Chuh-
lantseff denied that any employee read off a list of com-
plaints or handed him a copy. He said that the main con-
cern of the employees was the termination of Bienz and
denied he told the employees that they "had a gun to his
head." He also denied that there was any mention of the
'" Helton stated he later learned that the Union had called the news
media to cover the demonstration.
Union or any union activity by the employees while he
was at the meeting.
Close testified that Chuhlantseff instructed him to
come to the meeting with the employees in the cafeteria.
According to Close, the employees wanted to know why
Bienz had not been terminated and was still on the prop-
erty. Chuhlantseff then directed Close to go downstairs
and have Bienz leave the premises. Close testified that
while he was at the meeting there was no mention of the
Union or any organizing activity, nor did the employees
present a list of complaints to Chuhlantseff. Close stated
that pursuant to Chuhlantseff's instructions, he left the
meeting and informed Bienz that he had to leave the
property.
After the television interview, Helton and a group of
employees who were not on duty-40 by his estima-
tion-went to the union hall and signed authorization
cards. Doyle and several other employees completed
their work shift and went to the union hall to sign au-
thorization cards. The testimony indicates that a number
of employees took cards with them and solicited other
coworkers at the hotel.'9
F. Management's Response to the Employee Activity
1. Nigro's arrival in Reno
Nigro did not arrive in Reno until the afternoon of
October 2. After being brought up to date on the events
that occurred, he and Chuhlantseff conferred on the situ-
ation. According to Nigro, they had to determine "what
happened and why it had taken place." Nigro testified
that since the spokespersons for the employees were out
of the kitchen preparation department and were all sous
chefs and supervisors, management wondered why the
food and beverage director and the executive chef had
allowed this activity to take place among their supervi-
sory personnel. He stated that at approximately 6:30
p.m., Close came in and pointed out to him and Chuh-
lantseff the television coverage of Helton's interview that
afternoon. Nigro recalled that Helton alleged that the
cafeteria conditions at the Sahara were terrible and the
employees were angry enough to organize and to seek
union help. The testimony indicates that the Respond-
ent's officials videotaped the newscast. After conferring
with their labor attorney, who flew in from Los Angeles,
management drafted a memorandum which was circulat-
ed among the food and beverage employees that eve-
ning. This memorandum denied that management was
unconcerned about the employees' welfare. It also in-
formed the employees that management would continue
to make decisions on the basis of what it considered to
be best for all concerned. The memo urged the employ-
ees not to take any precipitous action and promised that
management would respond to the problem troubling
them. (G.C. Exh. 8.)
I1 According to Ciborski, for the next few days cards were being
passed among the Sahara food department employees like "supermarket
leaflets."
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Perkins and Coleman
Sometime during the course of their discussions, Nigro
and Chuhlantseff decided that Perkins and Tollman
should be discharged. According to Nigro, they felt the
employee activity the day before was a rebellion against
upper-management, and the food and beverage director
and the executive chef should have been aware of the
discontent among the employees. Since the sous chefs
were the leaders in expressing the employee complaints,
upper-management decided that Perkins and Tollman
were derelict in their duty by not being aware of the em-
ployee unrest or if they were aware, by not informing
Chuhlantseff that the employees intended to engage in
some action in order to get rid of Bienz. Nigro stated
that upper-management decided to wipe the slate clean
by getting rid of Perkins and Tollman. On October 3,
Perkins and Tollman were fired. The testimony indicates
that Tollman was succeeded by his assistant, Michael Ca-
valli, who became the acting food and beverage director
for the Reno operation.20 Eddie Irniger, the executive
chef for the Prim, succeeded Perkins and became the
acting executive chef for the Reno operation.2 1
Close testified that he was called into Chuhlantseff's
office by Nigro and informed of management's decision
to discharge Perkins and Tollman. He stated that he was
instructed to go down to the executive chef's office and
be certain that Perkins turned in his keys. He testified
that when he arrived in the kitchen, Gordon Jenkins, di-
rector of security for the hotel, was there with Perkins.
Jenkins testified that he had been called by Close and in-
structed to accompany Perkins to the chefs' office to re-
cover his company keys, elevator card, and any other
property belonging to the Respondent. Jenkins stated
that he went to Perkins' office and was given these
items. Jenkins, who wore civilian clothes, stated that he
was the only individual from the security section with
Perkins at the time, and that no uniformed security
guards were present in the area. 22
Pam Wheeler, currently the showroom reservation
manager, testified that in 1978, she was Tollman's secre-
tary. She stated that after their discharges, she joined
Perkins and Tollman at one of the bars in the Sahara
where they discussed the action taken against them by
management. According to Wheeler, Tollman pulled her
away from the bar and asked her if she would be willing
to return to the office and type up a memo for him. She
stated that Tollman said the memo was necessary to
"cover him." Wheeler testified that she went to the
office and Tollman called her from a house phone and
*O Shortly after January 1979, Cavalli became the food and beverage
director. He held this position at the time of the hearing.
Ii Irniger remained in an acting capacity as the executive chef. At the
time of the hearing he was no longer employed by the Respondent and
indicated that he resigned. On cross-examination by the General Counsel,
it became evident, although Irniger's testimony was evasive, that the res-
ignation was not a voluntary one. While he was no longer employed by
the Respondent, Irniger was present throughout the entire course of the
hearing and testified on behalf of the Respondent. The Respondent indi-
cated that it was paying Irniger the rate he would have received as ex-
ecutive chef for each day that he attended the hearing.
aa After his termination, Perkins became an international representative
for the Union. As noted, he was present throughout the hearing but was
not called upon to testify.
dictated the memo. He directed her to backdate the
memo 3 or 4 days. According to Wheeler, after she
typed the memo, Tollman came to the office and asked
her to change the date that she had placed on the memo
to September 26.
A copy of the memorandum was introduced into evi-
dence by the General Counsel. (G.C. Exh. 10.) It was di-
rected to Chuhlantseff and stated:
Vlad, since Mr. Joseph Bienz was brought into our
organization the morale of the personnel in the
entire food department has dropped drastically.
With the feedback that I am getting from the crew
I foresee heavy union involvement.
Wheeler testified that Tollman told her not to make any
copies of the document and he took it with him. On
cross-examination, Wheeler stated that prior to the hear-
ing she became aware that management was looking
through files for a document. She testified that she then
recalled typing and backdating this memo for Tollman.
She mentioned the matter to Cavalli and he took her to
Chuhlantseff so that she could explain the details to him.
3. Cavalli's meeting with the employees on
October 3
Helton testified that after Cavalli assumed the duties of
acting food and beverage director, he came into the
kitchen and asked that a group of the representatives of
the employees get together and talk with him. Helton
stated that he, Lois Miller, Faith Jackson, and Judy
Coyle joined Cavalli in the employees' cafeteria. Accord-
ing to Helton, Cavalli stated that he was going to be the
food and beverage director and he wanted to get every-
thing straightened out, but that the employees would
have to work with him and that the Union should be for-
gotten. Helton asked if Cavalli would allow the Union to
represent the employees in their negotiations regarding
salaries. He stated that Cavalli replied, "Absolutely not."
Helton further testified that Miller asked if anybody was
going to be fired "over this thing." Helton stated that
Cavalli assured the employees that no one was going to
be fired and that all of their jobs were secure.
Miller testified that October 3 was her day off and she
went to the hotel to get her paycheck. It was at this time
that she learned Perkins had been terminated. She stated
that she, Helton, and several other employees decided to
go to Chuhlantseff's office to inquire about the discharge
of Perkins. According to Miller, Cavalli intercepted the
employees and told them to meet with him in the cafete-
ria as they need not bother Chuhlantseff. Miller testified
that Cavalli stated none of the employees would be fired
because of the activity on October 2. He also stated, ac-
cording to Miller, that Mathia was coming in and would
settle the matter about Perkins' job. Miller recalled that
Cavalli indicated management was not certain about Per-
kins' job and that maybe he would still be working at the
Sahara.
Cavalli, on the other hand, gave a different version of
this meeting with the employees. He stated that he was
approached by Brandt and told that a number of the
834
SAHARA RENO
kitchen preparation employees were concerned about
what happened to Perkins and wanted to hear from Ca-
valli about the situation. Cavalli testified that he met
with approximately eight employees, some of whom
were supervisors, in the employee cafeteria. He could
only recall that Brandt, Crockett, and Beatty were
among the group. He did not recall that Miller or Helton
were present. He stated that the employees' main con-
cern was about their job security and the discharge of
Perkins. Cavalli testified that he told the employees his
only concern was maintaining the operation of the food
and beverage departments. He did not recall mentioning
that Mathia was coming in from corporate headquarters.
He denied that he told the employees that Perkins might
come back to the hotel or that he told the employees the
Union should be forgotten. Because he could not recall
whether Helton was present at this meeting, Cavalli had
no recollection as to whether a request was made for the
Union to represent the employees in their salary negotia-
tions. 2 s
4. Management's meeting with the supervisors
Chuhlantseff and Nigro met with all of the Sahara
food and beverage department supervisors on October 4.
The management officials testified that they wanted to
announce the appointments of Cavalli and Irniger and
the removal of Bienz from the Reno operation. They
also wanted to persuade the supervisors, especially the
sous chefs, to pull together and keep the hotel function-
ing. Although Nigro's testimony indicated that Chuhlant-
seff was the principal spokesman for management at this
meeting, it is evident from all of the testimony that
Nigro filled this role during the meeting. Both Chuhlant-
seff and Nigro testified that the supervisors were in-
formed that they were a part of management and that it
was expected that they would keep top management in-
formed about any union activity in their respective sec-
tions. They also reminded the supervisors of the Re-
spondent's no-solicitation rule and that the supervisors
were expected to enforce it.24 Nigro testified that he
also told the supervisors about management's philosophy
regarding union representation for the employees. He
stated that management was of the view that it could
better represent the interests of the employees than could
a union. Both Nigro and Chuhlantseff denied telling the
supervisors that any employees involved in union activi-
ty would be discharged immediately or that management
would close the casino and hotel rather than to allow it
to be organized by the Union.
Cavalli, who attended the meeting along with Irniger,
testified that Nigro also told the supervisors that the em-
ployees had forced management to do something [get rid
of Bienz] and he was "not happy" about that fact. Con-
trary to the testimony of Chuhlantseff and Nigro, Cavalli
23 Although Brandt testified at the hearing, he made no mention of
being present at a meeting with Cavalli on October 3.
24 Nigro testified that Helton was at this meeting and asked if any of
the employees were going to be fired for engaging in union activities. He
testified that it was in response to this question that Chuhlantseff said
they would not, but reminded the supervisors about the no-solicitation
rule. Since Helton was a dinner cook and not a supervisor, and since the
meeting was limited solely to supervisory personnel, it is evident that
Helton did not attend this meeting.
denied that the supervisors were instructed by manage-
ment to report any union activity among their employees
to their supervisors.
The witnesses put on by the General Counsel gave a
different account of this meeting. Brandt testified that he
was directed by Close to attend the meeting. He stated
that Close was the first person to speak to the supervi-
sors. According to Brandt, Close said anyone involved in
union activity would be dismissed right away. 25 Brandt
stated that Nigro then told the supervisors that their jobs
were not in jeopardy and he wanted them to work as a
team. He also instructed the supervisors to enforce the
no-solicitation rule in their areas. Brandt further testified
that Nigro stated he would close the coffeeshop and lay
off employees in order to stop the Union. On cross-ex-
amination, however, he changed this last statement to in-
dicate that Nigro said he would rather close the casino
than let the Union represent the employees.
Ciborski also attended this meeting. He recalled that
Nigro asked the supervisors to pull together even though
Perkins and Tollman had been fired. According to Ci-
borski, Nigro stated that while there were unions at
other resorts of Del Webb, they were not needed. He
stated that Nigro said he would "just as soon shut the
doors than to deal with an outside party telling [him]
how to run the Sahara Reno." Nigro stated no one
would be fired for participating in the employee demon-
strations but that if the supervisors observed any union
activity among their employees, they were to report it to
their supervisors.
Kathleen Cagle, a former employee and supervisor,
testified that she attended this meeting. 2e According to
Cagle, after Nigro advised the employees of the appoint-
ment of Cavalli and Imiger, he stated that he did not
want a union at the Sahara Reno. Cagle testified that
Nigro told the supervisors he would close the doors to
the whole operation before he would let the employees
or outsiders tell him how to run the Sahara Reno. She
corroborated the testimony that Nigro told the supervi-
sors to report any union activity to their supervisors.
Dolores McMacken, another former employee and su-
pervisor of the Respondent, also gave testimony regard-
ing the meeting between upper-level management and
the supervisors on October 4.27 According to
"I Brandt was the only witness who placed Close at this meeting.
Close testified that he did not attend the meeting, and none of the other
witnesses recalled that Close was there.
as Cagle was the supervisor of the graveyard shift of the coffeeshop
and the employees' cafeteria. She was fired by Close in the latter pert of
October.
z' McMacken was hired by the Sahara Reno on June 16 as the head
supervisor of the food service section. Her title was changed in July to
restaurant manager. Sometime in November McMacken was demoted to
the position of a relief supervisor. On March 9, 1979, the Respondent's
officials decided to terminate McMacken but allowed her to resign. At
the time of the hearing, McMacken was employed as a waitress in a res-
taurant at another hotel-casino in Reno.
It was evident at the hearing that McMacken was biased against and
bitter towards the Respondent. Bronna Hankoff, one of the Respondent's
management employees, testified that she went to the restaurant where
McMacken was currently working for lunch. According to Hankoff,
McMacken stated, "[The Respondentl would hear from her," and "She
would get them." McMacken admitted having a conversation with Han-
koff regarding the Respondent, but stated she told Hankoff, "When the
truth comes out, I will get even with the Sahara."
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMacken, when the supervisors were called in to the
meeting with Chuhlantseff and Nigro, Nigro stated that
he would close the doors before he would allow employ-
ees or outsiders to come in and run the Sahara Reno.
G. The Alleged Surveillance at the Union Hall
Helton testified that on October 3 a group of employ-
ees met at the union hall sometime between 10 and 10:30
a.m. He stated that while there he noticed a car sitting
across the street. According to Helton, Brian Phay, a se-
curity guard from the Sahara Reno, was sitting in the
car. Helton testified that one of the cooks from the cof-
feeshop left the hall and went across the street to see
why Phay was there. Helton stated that when the cook
was approximately halfway across the street, Phay drove
off in the car. Helton testified that when he reported to
work at approximately 3 p.m., he went into the kitchen
area and saw Phay and two other uniformed security
guards, along with a supervisor, in civilian clothes, ac-
companying Perkins to the executive chef's office. Ac-
cording to Helton, they were acoompanying Perkins to
get his belongings after he had been discharged. Helton
stated that he approached Phay and asked him if he en-
joyed spying on employees. He testified that Phay re-
plied, "Not really," and indicated that he was instructed
to do so by his supervisor.
Phay was called as a witness by the Respondent and
denied that he had engaged in any surveillance of the
union hall. Phay testified that he worked from 4 p.m.
until midnight from the last of September through Octo-
ber. He stated that he had never been instructed by his
supervisor to go to the union hall to spy on the employ-
ees and, in fact, did not even know where the building
was located. 2 8 Phay also denied having any conversation
with Helton in the kitchen on October 3 as he had not
been detailed to escort Perkins to gather his belongings.
H. Helton's Conversation With Irniger and Van
DeBogart
Helton testified that on October 4, he had several con-
versations with his supervisors about the union activity
taking place at the Sahara. He stated that Imiger spoke
to him in the kitchen. According to Helton, Irniger
asked him to help get things operating again and to
forget about the Union. Helton stated he told Irniger a
union was needed at the Sahara in order to protect the
employees.
Later that same day, according to Helton, Van DeBo-
gart also apoke to him in the kitchen. He told Helton
there had been a meeting between management and the
sous chefs earlier that day. Helton stated that Van DeBo-
gart said management intended to fire anyone discovered
signing a union card or involved in any activity on
behalf of the Union. Helton testified that Van DeBogart
asked him not to do anything that would cause him to
have to take such action against Helton.
as The Respondent's payroll records for the security department dis-
close that Phay did not receive any overtime pay during the period in
question. This would have been the case if Phay had been employed to
engage in surveillance of the union headquarters during the morning
hours before his shift.
Van DeBogart was not a witness in these proceedings
but Irniger's testimony conflicted with that given by
Helton. According to Irniger, after his appointment as
acting executive chef, he went around introducing him-
self to the food preparation employees. Irniger indicated
that in his position as executive chef at the Prim, he had
little or no contact with the food preparation personnel
at the Sahara. Therefore, he went around introducing
himself and soliciting their cooperation. He denied telling
Helton, or any other employee, that he wanted them to
forget about the Union. He stated that he merely sought
their support to get the operation running smoothly
again.
I. The No-Solicitation Rule and its Enforcement
The testimony indicates that from the time of the
opening of the Sahara Reno management maintained a
rule against solicitation and distribution of literature on
hotel property. James Skaggs, director of industrial rela-
tions for the hotels in Del Webb's western operation, tes-
tified that Del Webb had what he described as "basically
a non-union philosophy." He stated this was true, even
though units of employees at the Las Vegas properties
were represented by unions. Skaggs testified that after
the Sahara Reno opened he put on a training session for
the supervisors. The purpose of the training program
was to advise the supervisors on what they could or
could not do in terms of employee union activity on the
hotel property. He distributed copies of an article put
out by the Industrial Relations Department of the Na-
tional Association of Manufacturers (NAM) entitled
"Some dos and don'ts for supervisors." (Resp. Exh. 32.)
He also met with all of the general managers of the hotel
properties in mid-June and supplied them with his ver-
sion of "supervisory do's and don'ts." (Resp. Exh. 33.)
One of the items contained in this last document stated:
A. You can keep outside organizers off the prem-
ises. Make sure you do not allow any other solicita-
tions. Maintain Company No-Solicitation Policy
consistently.
Skaggs testified that copies of this document were also
sent to the personnel directors of the hotels for distribu-
tion to the supervisors.29
A version of the no-solicitation rule was incorporated
in the "Sahara Reno Rules of Conduct," which was
given to all employees. Violators of any of these rules of
conduct were subject to disciplinary action "up to and
including immediate discharge." (G.C. Exh. 11.) The rule
relating to the no-solicitation policy stated as follows:
1. No solicitation. Soliciting any employee in any
working area for any purpose, including the unau-
thorized posting, distributing, or circulating of any
written materials in a working area and the unau-
thorized sale of anything on Company time.
s Close, who was in overall charge of the personnel department as
the administrative assistant to the general manager, testified that no one
had ever informed him of Del Webb's policy regarding unions. However,
he admitted that he caused copies of the supervisors' do's and don'ts to
be distributed to the Sahara Reno supervisors.
836
SAHARA RENO
It was this rule that Chuhlantseff and Nigro told the su-
pervisors on October 4 that they were expected to en-
force.
Enrico DiFulvio, director of purchasing for the Re-
spondent at the time of the incidents involved in this
case, testified that his understanding of the Respondent's
no-solicitation rule was that employees were not to talk
about the Union or pass out union literature on company
time or on company property. DiFulvio stated that it
was reported to him sometime shortly before the first
week in October that Howard Topping, one of the em-
ployees in his department, was passing out union cards
on hotel property. DiFulvio stated that he told Topping
he was not to pass out literature on company time to any
of the employees. DiFulvio indicated that this admoni-
tion was consistent with his understanding of the Re-
spondent's no-solicitation rule.
J. The Threat To Have Topping Arrested
Topping, who was laid off by the Respondent when
the coffeeshop was closed on October 6, discussed infra,
testified that he returned to the Sahara on that date to
get his final paycheck. Topping drove his automobile to
the hotel and stated that he got permission from the
parking lot attendant to park on the hotel property while
he went inside. Topping had a stack of union authoriza-
tion cards and literature spread out over the front seat of
his automobile. While inside, he was paged by hotel se-
curity. He stated that he returned to the place where he
had parked his automobile and was met by Jenkins, the
director of security. According to Topping, Jenkins said
that he had been terminated and had no right to be on
company property. He testified that Jenkins then asked
what he was doing with the Union. Topping replied that
he was trying to get it in the Sahara. According to Top-
ping, Jenkins said he could see that by the literature in
Topping's automobile. Topping then protested that Jen-
kins had no right to go through his car as he "did not go
through Jenkins' car." Topping stated that Jenkins told
him to take his belongings and leave the Sahara proper-
ty. He also testified that Jenkins said if he was seen on
Del Webb's property again, he (Jenkins) would have se-
curity turn him over to the Reno Police Department and
see if they could not put him in jail for trespassing.
Jenkins testified that, when Topping came to the hotel
on October 6, his attention was directed to a vehicle
parked near a receiving dock blocking a fire exist from
the hotel. Jenkins stated he recognized the vehicle to be
that owned by Topping and, while he was standing
there, Topping came out of the hotel. According to Jen-
kins, the hotel had a rule that no unauthorized person
would be in any nonpublic area on the company proper-
ty. He stated that he directed Topping to move the car
and as he looked inside he noticed a large stack of union
cards on the front seat. He then asked Topping if he was
affiliated with the Union. When Topping responded that
he was, Jenkins stated he told Topping not to interrupt
Sahara Reno employees while they were on duty. He ad-
mitted telling Topping that he did not want him back on
the Sahara property, but denied threatening to have Top-
ping thrown in jail if he returned.
K. The Closing of the Sahara Coffeeshop
Nigro's testimony indicated that after he arrived in
Reno on October 2 and dealt with the problems brought
on by the employee unrest. he and Chuhlantseff turned
their attention to the plans for reducing losses and inter-
grating the operation of the two properties. Although
the closing of the Prim buffet had been scheduled to take
place on October 2, this phase of the consolidation of the
operations was never put into effect because of the em-
ployee activity that took place that day. Nigro testified
that upper management was in a "quandry" because of
the significant losses occurring in the food department
while at the same time the employees of that department
were expressing serious dissatisfaction. According to
Nigro. he and Chuhlantseff finally decided to go ahead
with the plans that had been developed the prior month
regarding the Prim huffet and the Sahara coffeeshop. He
said this decision v a. made even though management
was fearful that closing part of the food operation would
add to the employee unrest. Chuhlantseff testified that,
although Bienz knew on September 29 that management
intended to close the Sahara coffeeshop following the
closing of the Prim buffet, this particular feature of the
consolidation of the food department was never dis-
cussed with other department heads at the regular man-
agement meetings.30
Chuhlantseff further testified that the decision to close
the Sahara coffeeshop was based on the factors he and
Nigro considered in late August and during September.
He testified that the labor costs and the loss per cover in
the Sahara coffeeshop were dominant reasons for decid-
ing to close that operation.s He also stated that upper
management decided that Prim coffeeshop was well es-
tablished and would provide a traffic flow of customers
via the overhead walkway into the Sahara. Chuhlantseff
testified that another factor was the need to complete the
stainless steel and fan work in the Sahara kitchen, al-
though he and Nigro admitted this work could have
been accomplished while the coffeeshop remained open.
Chuhlantseff stated that the decision to consolidate the
coffeeshops and the buffets had to be put into effect
sometime. Therefore, management decided to do it at
that time, in spite of the difficulties with the food depart-
ment employees, because steps had to be taken to reduce
the losses incurred by that department.32
s0 Irniger testified that he had dinner with Bienz on September 29 or
30, and was told by Bienz that the Prim buffet would be moved to the
Sahara the following Monday. Irniger gave no indication in this testimo-
ny that Bienz said anything about closing the Sahara coffeeshop thereaf-
ter.
Il Loss or profit per cover was defined as the Io.,; or profit earned for
each person served in the coffeeshop. The Respondent's records indicate
that during September the Prim coffeeshop was averaging a profit per
cover in the amount of 20 cents (Resp. Exh. 21), while the Sahara was
experiencing a loss per cover in the amount of $1.01 (Resp. Exh. 20).
32 Nigro testified that by closing the Sahara coffeeshop the Respond-
ent would achieve a savings in labor costs of approximately $125,000 a
month. The records reveal that this resulted in a net reduction of the
losses of the Sahara food department by approximately $12.000 for Octo-
ber and approximately $27,000 for November. (See Resp. Exhs. 8 and 36
and i.C. Exh 23.)
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cavalli and Irniger were called into Chuhlantseff's
office during the afternoon on October 5. They were
told that the Sahara coffeeshop would be closed at the
end of the graveyard shift, and this would result in lay-
offs. Cavalli was to handle the layoffs of the food service
employees and Irniger was to select the food preparation
employees who were to be laid off. According to Ca-
valli, Chuhlantseff expressed concern that the layoff be
accomplished in a fair fashion. He stated that Chuhlant-
seff instructed him to base the layoffs on seniority. Close
and Bonnie Kreyling, the personnel director, were also
called in by Chuhlantseff and informed of the closing of
the Sahara coffeeshop. Close was instructed to prepare a
press release as well as a memo to be placed on the em-
ployees' bulletin board notifying them of the closing of
this portion of the Sahara's food operation.
Cavalli testified that because of the short notice given
to him, he had to call a number of supervisors at their
homes and direct them to come in for a late meeting that
evening. Smith, McMacken. Cagie, Marilee Jay, then the
swing shift supervisor of tile coffeeshop and buffet, and a
relief supervisor met with Cavalli.3 3 According to Ca-
valli,.he told the supervisors to keep as many employees
as was needed to run the operation efficiently. He stated
that he asked each supervisor to draw up a list of em-
ployees to be laid off and to submit them to him. He tes-
tified that he directed them to make their selections
based on seniority, ability, job performance, appearance,
and attitude. He denied telling the supervisors to select
for layoff those employees known to them to have been
involved in the employee activity earlier that week.
Smith testified that Dolores McMacken selected the
employees who were to be laid off from the coffeeshop.
According to Smith, she supplied McMacken with job
performance evaluations of all of the employees under
her supervision and McMacken made the selection.
Smith testified that she gave poor evaluations to Doyle,
Pat Fisk, and Jean Kelly. According to Smith, she had
received numerous complaints from customers about
Doyle's poor attitude. She also stated that she had re-
ceived complaints about Fisk and Kelly as well. Accord-
ing to Smith, these complaints were as many as three to
four a week. She stated that these three were the only
waitresses about whom she had received complaints. On
cross-examination, however, Smith was unable to give
specifics about the complaints against these employees.
She stated that they were simply customer complaints
and that she would merely give the employees verbal
warnings. In addition, according to Smith, Kelly was fre-
quently late or failed to come in to work. At one point
in her testimony, Smith stated that McMacken asked for
the evaluation of the employees because some were
going to be laid off, but at another point Smith professed
not to have any knowledge as to why McMacken
33 Smith testified that she came to work and found the coffeeshop
closed. She stated that she went to McMacken and was told that the cof-
feeshop was closed because of a lack of business. All of the other wit-
nesses, however, placed Smith at the meeting on the evening of October
5. Cavalli testified that he had called Smith at her home and told her to
come to the meeting Accordingly, I find that Smith did attend the meet-
ing.
wanted the evaluations of the employees. She stated that
making the evaluations was a daily routine.
McMacken and Cagle testified that when they met
with Cavalli they were instructed to make a list of all of
the employees under their supervision and to place a star
or an asterisk by the names of those employees who
were suspected of being involved with the Union or who
were dragging their feet and not working. Cagle testified
that she put a star by the name of an employee (Kor-
donaway) and this employee was subsequently laid off.3 4
Although McMacken testified that Cavalli asked that
stars be put by the names of the employees known to be
involved in union activities, her affidavit did not indicate
that this comment was made. In her affidavit she said
there were numerous customer complaints about Doyle
and Kelly. She stated that she received this information
from Smith. Contrary to her testimony, McMacken's affi-
davit indicated that the food service employees selected
for layoff were chosen on the basis of their ability and
job performance. 3 6
Marilee Jay, who was the food service manager at the
time of the hearing herein, testified that at the meeting
between the supervisors and Cavalli, the supervisors
were told to keep the employees who were needed and
to lay off those who would become excess after the clos-
ing of the coffeeshop. According to Jay, Cavalli did not
tell the supervisors to lay off any specific employees or
any employees who were involved in union activity. She
stated that Cavalli did not give the supervisors any
guidelines by which to select the employees who were to
be laid off.
The record does not disclose the exact number of food
service employees who were laid off as a result of the
closing of the Sahara coffeeshop. Although it is not clear
in the record, Cavalli's testimony on cross-examination
indicated that the Prim buffet was closed either immedi-
ately before or at the same time that the Sahara coffee-
shop was closed. Cavalli stated that none of the Prim
buffet employees were laid off but, rather, they were
transferred to the Prim coffeeshop. After the closing of
the Prim buffet and the Sahara coffeeshop, the Sahara
remained without a coffeeshop operation until approxi-
mately December 18, 1978. At that time, the Prim cof-
feeshop was closed for remodeling into a seafood restau-
rant and the Sahara coffeeshop was subsequently re-
opened.
As previously noted, Irniger made the selection of the
food preparation employees to be laid off at the Sahara
after the closing of the coffeeshop. Irniger stated that he
was unfamiliar with the Sahara kitchen employees and
had to rely on the evaluations furnished him by Ed
Huestis, the assistant executive chef at the Sahara. He
34 The records indicate Kordonaway was rehired by the Respondent
on March 24, 1979.
35 When questioned by the Respondent's counsel about the apparent
conflict between her testimony at the hearing and the statements con-
tained in her affidavit, McMacken said that at the time she gave the affi-
davit she was advised by the Respondent's counsel to tell the truth, but
not to mention the Union. The Respondent's counsel took the stand and
testified that he advised McMacken to tell the truth, but not to volunteer
any information when she was interviewed by the Board agent taking the
affidavit.
838
I
SAHARA
testified that he and Huestis made up a list of the em-
ployees who were scheduled to be laid off. Irniger also
stated that with the elimination of the coffeeshop oper-
ation, he had more sous chefs than he needed in the
kitchen. He stated that many of those that were retained
were demoted to the rank of dinner cook. According to
Irniger, he did not post the list of the names of the em-
ployees to be laid off. He stated that he and Huestis com-
piled the list in his office and then he left it on his desk
for a brief period of time. Irniger denied knowing which
of the employees were involved in the protest over
Bienz or in union activity. He said the selection of the
employees was based solely on the evaluations provided
him by Huestis.
Although Irniger could not recall whether Helton's
name was on the list, it is clear from the testimony that
Helton was one of the employees selected for layoff. Ir-
niger testified that when he first replaced Perkins on Oc-
tober 3, he had a conversation with Helton in the kitch-
en. According to Irniger's testimony, Helton seemed un-
happy and said he had already given management 2
week's notice a few days before and he was leaving the
Sahara. Irniger stated he later learned that Helton was
going to go into some kind of business in Denver. Ac-
cording to Irniger, he may have discussed the fact that
Helton was going to leave with Cavalli.3 6
Lois Miller was one of the employees laid off by Ir-
niger on October 6. She stated that she reported to work
sometime between 6 and 7 p.m. and found out that the
Respondent was closing the coffeeshop at the end of the
graveyard shift. She was also told that a list of the em-
ployees to be laid off would be posted in the executive
chefs office. According to Miller, she went into the
office to see the list and observed that Helton's name
was at the top of the list. Helton testified that October 5
was his day off, but he had been told by Van DeBogart
there was going to be a meeting of the employees at 10
p.m. to find out what was going on at the Sahara. Helton
stated that he did not arrive until approximately 11 p.m.
and was informed that the Respondent was closing the
Sahara coffeeshop. Helton stated that he was informed
Irniger had a list posted in his office but that it had been
taken down. He was told that his name was at the top of
the list. Helton denied ever telling Irniger or anyone
from management that he intended to leave the Respond-
ent's employ and go into a catering business in Denver,
Colorado.
The testimony indicates that on October 6 Cavalli,
Close, and Kreyling met with a group of the food serv-
ice employees in the banquet room to explain the layoff.
Doyle, who did not attend this meeting, testified that
when she reported to work that morning Smith told her
the coffeeshop had been shut down for remodeling and
that Doyle was being laid off. She stated that Smith said
management would try to place the employees elsewhere
and directed Doyle to go to the personnel office. Doyle
testified that on her way to the personnel office she met
36 The testimony indicates that all of the personnel action or layoff
slips for the employees who were selected for layoff were signed by their
supervisors, except in the case of Helton. Cavalli, rather than Irniger,
signed Helton's layoff slip as the management official authorizing the
layoff
839
McMacken, who told her there was nothing that man-
agement could do.
Cavalli stated that he and Kreyling met with the em-
ployees and explained that the coffeeshop was closed for
economic and financial reasons. He testified that the em-
ployees were concerned about being relocated or rehired
by the Sahara. According to Cavalli, the employees were
told they could inquire at the personnel office to see if
there were other jobs available in the hotel and if so,
they could seek a transfer. He stated that he and Kreyl-
ing also told the employees to check back with the per-
sonnel office to see if other openings would become
available later. He told them that if they had the skills
required for such openings, they would be considered.
According to Cavalli, it was pointed out to the employ-
ees that they were not told, according to Cavalli, that
management would contact them if openings occurred.
Rather, they were to keep in touch with the personnel
office themselves.
Close recalled that Kreyling told the employees they
would have to contact her regarding rehire in the food
service department because she could not maintain a list
for recall purposes. Jay testified that she told some of the
employees she listed for layoff that there were openings
in the Prim coffeeshop. Although Jay did not identify
these individuals by name, she stated that several of these
individuals applied at and were rehired by the Prim.
L. The Discharge of O'Dell and Topping
O'Dell worked in the storeroom of the purchasing de-
partment at the Sahara. He testified that about a week
before October 6 Topping asked him if he wanted to
sign a union card. O'Dell stated he wanted to think
about the matter. According to O'Dell, he went to Di-
Fulvio, the director replied he did not believe in unions.
According to O'Dell, DiFulvio said that if a person were
good enough, he would give them a raise..3 O'Dell testi-
fied that on October 3 he went to a meeting at the union
hall and picked up some authorization cards. He stated
that he and Topping distributed them in front of the
Sahara after work on October 4 and 5. O'Dell testified
that on October 6, DiFulvio told them there was going
to be a layoff in the purchasing department and he did
not know how many or who would be let go. He stated
that at approximately 1 p.m. he was told by DiFulvio he
was going to be laid off.
According to O'Dell, on October 23 he had occasion
to go into the Primadonna where he saw DiFulvio sit-
ting at a bar. He testified that DiFulvio asked him,
"Where his union buddy 'Kodiac' [Topping] was."
O'Dell said he had not seen Topping in several days. He
stated that DiFulvio then told him that he would have
normally tried to bend over backwards for him (O'Dell)
but he knew that O'Dell was involved in something big
and he could not help him. He asked O'Dell why he did
not come to him in the first place about the Union and
1s The Respondent's records indicate that O'Dell. Topping, and all of
the employees in the purchasing department had received a $2-a-shift
raise sometime during September. DiFulvio testified that these raises
were granted because there was a tight labor market in Reno and he
wanted to keep the employees
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Dell replied that he had spoken to DiFulvio a week
before the layoff about the Union.
Topping, who also worked in the purchasing depart-
ment at the Sahara under DiFulvio, testified that he
became interested in having a union at the Sahara in
early June. He stated that, when the protest against
Bienz occurred on October 2, he attended a union meet-
ing after work and he picked up a number of cards and
passed them out to Sahara employees at the street en-
trances of the hotel. He stated he continued to do this
after his shift on Wednesday and Thursday evenings.
Topping testified that on October 4, DiFulvio asked him
if he had heard of anyone soliciting for the Union. Ac-
cording to Topping, he replied that he had not. He testi-
fied that DiFulvio then told him that if he saw anyone
soliciting on behalf of the Union to send them to the ex-
ecutive offices. Topping was terminated along with
O'Dell on October 6.
DiFulvio testified that when the coffeeshop at the
Sahara was closed Chuhlantseff told him there would
have to be a cutback in personnel. and the storerooms of
the Prim and the Sahara had to be consolidated into one
storeroom at the Sahara. DiFulvio stated that he brought
over the Prim food purchasing agent and laid off the
purchasing agent at the Sahara along with O'Dell and
Topping. He testified that O'Dell was the least senior
person in his department and Topping was the least reli-
able. 3
DiFulvio denied ever having a di:;cussion with O'Dell
regarding unions or telling the employee that he did not
believe in unions. He also denied asking O'Dell on Octo-
ber 23 where Topping was or telling O'Dell that because
he was involved in union activity he (DiFulvio) could
not help him at the time of the layoff DiFulvio admitted
being informed that Topping was passing out union cards
on hotel property. He stated this is when he told Top-
ping that he was not to pass out literature on company
time to any employees. He denied ever telling Topping,
however, that if he saw anyone passing out union cards
he should send them to the executive offices. DiFulvio
also admitted that a week before O'Dell and Topping
were laid off he had given them a raise of $2 a shift. lHe
stated that the raises were given to other employees in
his department at the same time because the labor market
in the Reno area was poor and he wanted to retain the
employees. He indicated that when the raises were given
they had been approved by Chuhlantseff and there was
no mention that the Sahara coffeeshop was going to
close.
M. The Respondent's Recall Policy and the Alleged
Efforts of Some Employees to be Rehired
All of the management officials testifying on behalf of
the Respondent indicated that it was not the practice in
a8 O'Dell initially worked at the Primadonna in March 1966 as a buffet
runner. He left to go to California and returned to work for DiFulvio in
the purchasing department in December 1977. -le left to go to another
job and returned to the Sahara in June 1978. Topping admitted that
during the time he worked at the Sahara, he had been admonished by
DiFulvio on several occasions because of his failure to lock the door to
the storeroom area and for not getting requisitions filled out properly for
supplies
the hotel-casino industry in Reno to give employees ad-
vance notice of layoffs or to maintain a recall or rehire
list of employees who had been laid off. Hopkins, who
succeeded Kreyling as director of personnel on October
16, testified that the Reno labor market was "wide open"
and therefore none of the establishments in the industry
ever maintained a recall policy because there was no
problem to get employees for all departments. Ite stated
that after he became personnel director, the Respondent
was averaging 45 to 50 applicants a day for positions at
the hotel. He also testified that the Respondent usually
hired 50 to 60 percent of these applicants and that there
was a high turnover, especially in the food and slot ma-
chine departments. Close testified that the policy of the
industry is predicated on the fact that many of the em-
ployees are transients and the personnel departments
could not keep track of their whereabouts in order to
contact them when jobs were available.
The testimony indicates that it was the practice for
laid-off employees who were eligible for rehire to go to
the personnel department to inquire about openings or
directly to department heads, who would then advise the
personnel office that they wanted to hire a particular in-
dividual. Hopkins testified that while this policy was fol-
lowed when he took over the personnel office, he insti-
tuted a different practice in late November, but did not
put it into writing until February 1979. (See Resp. Exh.
39.) Under the new Procedure established by Hopkins,
he would make a determination from the former employ-
ee's personnel file as to whether the individual was eligi-
ble for rehire. If there was a question in his mind, he
would contact the former supervisor of that person.
Once a favorable determination of eligibility was made,
the applicant for rehire would then be sent to the hiring
supervisor for a direct interview.
Several of the employees laid off on October 6 testi-
fied about their efforts to secure reemployment by the
Respondent. Miller stated that she spoke with Irniger at
the hotel approximately 2 weeks after her layoff. Ac-
cording to Miller, she and Doyle went to the hotel spe-
cifically to see about reemployment. She stated that Ir-
niger told her he saw no reason why she could not be
recalled, but that the $52 per shift that she had been
earning as a garde-manger was too much. Concerning
this incident. Irniger testified that when Miller asked him
if there was any way she could come back, he told her
that if he had an opening she could return. He stated that
he asked Miller how much she had been earning and was
told that she had been receiving $52 per shift. He stated
he felt she was overpaid because she did not perform the
work of a true garde-manger, but that if an opening de-
veloped he would consider her and pay her whatever
the job classification required.
Doyle and Miller went to the personnel office to in-
quire about their eligibility foir rehire. They stated that a
clerk in the office told them that they were eligible for
rehire by the Respondent as there was nothing in their
personnel files to indicate otherwise. Miller testified that
the clerk also advised them that they would be contacted
by management regarding the time to come back to
work.
840
SAHARA RENO
Doyle also went to see Bronna Hankoff, then director
of catering services for the Sahara, shortly after she was
laid off. She asked about availability of work. Hankoff
testified that she told Doyle the banquet staff was filled,
but she would use her as a fill-in when the need arose.
Hankoff called Doyle to work a reception and a break-
fast. She stated that business was slow, however, and she
could not provide work for Doyle or any of the other
fill-ins on a consistent basis. Hankoff stated that because
Doyle and the other fill-ins did not continue to contact
her periodically she took their names off the Respond-
ent's payroll.3 9
Kelly testified that she went to the Respondent's per-
sonnel office sometime in January 1979. According to
Kelly, she was prompted to do this because of an adver-
tisement she noticed in the newspaper where the Re-
spondent was seeking food service employees. Kelly
stated that she was told by someone in the personnel
office that there were openings in the restaurant. Kelly
said the person to whom she spoke advised her that
someone from management would get in touch with her.
Kelly testified that she was never contacted by anyone
from the Respondent regarding reemployment.
The Respondent introduced into evidence copies of
advertisements it had placed in the newspapers for em-
ployees during the months of January, February, and
March 1979. (Resp. Exhs. 40-42.) These documents
reveal that the Respondent did not advertise for food
service employees until March 22, 1979. The only adver-
tisements placed in January related to the hiring of room
attendants. 4 0 Hopkins testified that he could find no
record of any application for rehire being filed by Doyle,
Kelly, or Miller.
Helton testified that shortly after his layoff on October
6 he called Kreyling's assistant in the personnel office
and was told that he could be rehired only if he ap-
peared before a "review board." Helton did not make
any other effort to seek reemployment with the Re-
spondent until May 15, 1979. He testified that he applied
for rehire because he saw an advertisement in a newspa-
per. He asserted that when he went to the personnel
office he was told his application would have to be re-
viewed by the director of personnel and that he should
return in an hour. Helton stated that when he returned
he was informed that he was eligible for rehire and
would have to be interviewed by the executive food and
beverage director. According to Helton, he then went to
that individual's office but was informed that he was not
in. He then had the executive food and beverage director
paged, but there was no response. Helton stated he re-
turned to the food and beverage director's office and left
the application with the secretary, who informed him
that he would be contacted. Helton testified that since
leaving his application he had not been contacted regard-
ing reemployment by the Respondent.
as There was a mixup regarding Doyle's paycheck as a fill-in. Hankoff
had treated Doyle as a transfer rather than a laid-off employee, and as-
sumed that Doyle's name was on the Respondent's payroll when she
started to work as a fill-in. When Doyle failed to receive her check, the
error was discovered by Hankoff and corrected by filling out papers
treating Doyle as a new hire.
40 It is not clear what position Kelly applied for, however, her past
experience was as a waitress in the food service section.
Hopkins testified about the events surrounding Hel-
ton's application for reemployment in May 1979. He
stated that when the application was brought into his
office by his secretary he instructed her to have Helton
return in an hour because he wanted to review Helton's
file. Since he was aware that Helton had been named in
an unfair labor practice charge by the Union, Hopkins
contacted the Respondent's attorney. When the attorney
advised him that it was permissible to rehire Helton,
Hopkins arranged for an interview with Executive Food
and Beverage Director Gilbert Pierrel. These instruc-
tions were relayed to Helton by Hopkins' secretary.
Hopkins further stated that Helton's application and
rehire slip were never returned to him, so he checked
with Pierrel to determine what had occurred. According
to Hopkins, the executive food and beverage director
stated that he waited for an hour for Helton to show for
the interview, but he never appeared. Hopkins also indi-
cated that the Respondent had openings at that time for
cooks-a job for which Helton was qualified.
McMacken testified that in February 1979, prior to the
time she resigned, Cavalli came to her on one occasion
and asked her about an applicant for reemployment. Ac-
cording to McMacken, Cavalli wanted to know if the ap-
plicant had previously been involved with the Union.
She also testified that on several occasions Close asked
her about the union involvement of prospective rehires.
She stated that Hopkins was present during one of these
conversations with Close. Close, on the other hand,
denied that he had ever questioned McMacken about the
union activities of former coffeeshop employees applying
for reemployment with the Respondent. Hopkins also
testified that he had no recollection of ever asking
McMacken about the union involvement for former cof-
feeshop employees.
Concluding Findings
The testimony of the witnesses for both sides presents
sharp conflicts and contrasting versions of the events
that are alleged to have occurred in this case. In addi-
tion, there are a number of instances wherein the testi-
mony of the witnesses for both the General Counsel and
the Respondent conflict among themselves as well as
with the testimony given by the witnesses for the oppos-
ing side. While this may be in part due to faulty recall, I
am of the opinion, having observed the witnesses and
weighing their statements against the objective evidence
adduced at the hearing, that it is also the result of an
effort on the part of some of the witnesses to dissemble
and to obscure the true facts. For this reason, in making
credibility determinations in order to establish the true
facts, I find it necessary in some instances to credit a
portion of a witness' testimony and to discount or disbe-
lieve other parts. While this compounds the difficulty in
resolving the facts, it is not an uncommon experience in
cases of this nature. See opinion of Judge Learned Hand
in N.L.R.B. v. Universal Camera Corporation, 179 F.2d
749, 754 (2d Cir. 1950).
Section VI of the complaint alleges that the Respond-
ent, through acts and statements of agents and supervi-
sors, engaged in activity which violated Section 8(a)(1)
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act. Addressing the allegations of this section as
they appear, the following findings are made.
1. The conduct of Hinzen
It is alleged that Hinzen threatened employees with
"serious reprisals" on October I if they engaged in union
or other protected concerted activities. Support for this
allegation is found in the testimony of Lois Miller, who
stated that Hinzen informed her he had attended a man-
agement meeting and that management was aware of the
employee dissatisfaction and was working on the matter.
She asserted he also told her that management was pre-
pared to close the coffeeshop and the casino and lay ev-
eryone off in order to put down any employee unrest.
Hinzen denied making these statements to Miller at the
picnic, although he acknowledged it was possible he may
have talked to her. He also denied having attended a
top-management meeting in which the employee unrest
was discussed.
Weighing the trustworthiness of the testimony of these
two witnesses, I find the testimony of Hinzen to be more
credible. Miller stated that Hinzen indicated he had par-
ticipated in a management meeting in which the matter
of the employee unrest was discussed. It is clear that
Hinzen, as head pastry chef, did not participate in any of
the department head meetings. Until the arrival of Bienz,
the executive chef and the food and beverage director
were the participants from the food department and after
his arrival, Bienz himself represented this department.
Hinzen was a midlevel supervisor, as were the sous
chefs. However, none of the witnesses at this supervisory
level, including the sous chefs who testified on behalf of
the General Counsel, made any reference to a manage-
ment meeting on employee unrest being held prior to the
employee picnic on October 1. I conclude, therefore,
that such statements were made by Hinzen. I further
credit Hinzen's denial regarding the asserted statement
that the Sahara management would close the coffeeshop
and the casino in order to stifle the discontent among the
employees.
On the basis of the above, I find that the General
Counsel has failed to present any credible evidence to
support the allegations contained in paragraph VI(a) and
(b) of the complaint. Accordingly, these allegations of
the complaint should be dismissed.
2. The threats uttered by Chuhlantseff on October 2
The complaint alleges that on October 2 Chuhlantseff
threatened employees that if they engaged in a walkout
or a demonstration they would be terminated. The
record discloses that Chuhlantseff had two meetings with
employees on that date. The first was in his office and
the employee delegation consisted of sous chefs as well
as nonsupervisory employees from the food department.
There is no question that the main thrust of the employ-
ee dissatisfaction related to the methods employed by
Bienz in running the food department and the fear that
Bienz would terminate Perkins as the executive chef. Al-
though Chuhlantseff and Close, who also attended this
meeting, testified that the employees' complaints were
limited to these issues, I do not credit their testimony in
this regard. Ciborski testified that he had a list of griev-
ances which he and other sous chefs compiled prior to
going to the meeting. The employee complaints included
dissatisfaction with Bienz, wages, lack of sufficient help
in the food service area, and the possibility of employees
seeking union assistance. In spite of Chuhlantseff's and
Close's denials that a list of grievances was presented at
this meeting, it seems highly improbable that the employ-
ees would request a meeting with the top management
official in the Reno area and not cover all of their con-
cerns. The attempt on the part of the Respondent's wit-
nesses to portray a lack of knowledge of anything at this
point but the issues relating to Bienz and Perkins rings
hollow and appears contrived. Thus, I find that, at the
first meeting, the Respondent's management was made
aware of all the employee concerns and that the employ-
ees were considering seeking union assistance in redress-
ing their grievances. In addition, Chuhlantseff was told
that the employees were prepared to demonstrate outside
of the hotel in order to bring their grievances to the at-
tention of the public. Accordingly, I credit the testimony
of Doyle and Kelly that Chuhlantseff asked the employ-
ees at this meeting for time to contact the corporate
headquarters in Las Vegas and urged them to call off the
Union and the media. By his own admission, Chuhlant-
seff told the employees that, if they walked off their jobs
to demonstrate, or if they obstructed access to the hotel
property or caused embarrassment to the Sahara, they
would be disciplined or terminated.
The testimony regarding the second meeting in the
employees' cafeteria shortly after 11 a.m. is conflicting.
Helton stated that Ciborski presented Chuhlantseff with
a list of grievances and the general manager accused the
employees of "having a gun to his head." Helton also
stated that Chuhlantseff told the employees that while no
one would be fired for meeting with him, if any of the
employees walked off their jobs to demonstrate they
would be terminated. Ciborski testified that he spoke
with Chuhlantseff shortly before the meeting in the cafe-
teria in order to determine if management had reached a
decision on the employees' request regarding Bienz. It
was at this time that Chuhlantseff stated, according to
Ciborski, that the employees "had a gun to his head." Ci-
boreki made no mention of any warning by Chulantreff
at the meeting in the cafeteria that management would
fire any employees who walked off the job. Topping,
who also attended the meeting, recalled that Chuhlant-
seff stated the employees "had a gun to his head," but in
the course of his testimony made no mention of the fact
management would fire any employees who left their
jobs to demonstrate. Topping also testified that Helton
questioned Chuhlantseff on employee compliants about
working conditions and the failure to receive raises, and
was told by Chuhlantseff that a list of grievances had to
be presented to him before he could act on them.
Because of the conflicting testimony given by the wit-
nesses for the General Counsel concerning this meeting,
I am not prepared to find that Chuhlantseff told this
group of employees that they would be subjected to dis-
charge if they walked off their jobs and demonstrated. In
view of Chuhlantseff's admission that he made such a
842
SAHARA RENO
statement to the employees at the earlier meeting, and in
view of the fact that of all of the witnesses to this second
meeting only Helton attributed such a statement to
Chuhlantseff, I find that Helton's testimony in this regard
is not reliable. Accordingly, I find that no such comment
was made by Chuhlantseff at the second meeting.
Having found that Chuhlantseff did tell the employees
at the first meeting that they would be subject to disci-
pline or discharge if they walked off their jobs in order
to demonstrate in support of their grievances, the ques-
tion becomes whether this statement by Chuhlantseff in-
terfered with the right of the employees to engage in
protected concerted activity. I find that it did and that it
was coercive and in violation of Section 8(a)(1) of the
Act. There is no question but that the employees were
protesting about their treatment under the supervision of
Bienz and their fear that he would discharge Perkins. It
is also clear that the employees' complaints involved
their working conditions and other matters as well. But
even if their grievances were limited solely to Bienz and
the actions they feared under his continued supervision,
the efforts to bring this issue to management's attention
and the announced plan to demonstrate in order to get
the matter resolved would constitute activity protected
under Section 7 of the Act. See Hitchiner Manufacturing
Co., Inc., 238 NLRB 1253 (1978). As indicated, however,
the complaints encompassed other matters involving the
employees' working conditions and, thus, make it even
more apparent that the employee activity enjoyed statu-
tory protection. N.L.R.B. v. Washington Aluminum Com-
pany, Inc., 370 U.S. 9 (1962); Vic Tanny International,
Inc., 232 NLRB 353 (1977). Accordingly, the statement
made by Chuhlantseff at the first meeting that employees
who walked off their jobs to demonstrate and cause em-
barrassment to the Sahara, or who prevented access to
the hotel, would be subject to discipline or discharge
was a threat to take reprisals against employees for en-
gaging in protected concerted activity. Although the
latter part of this statement indicates that employees who
blocked ingress or egress at the Sahara while demon-
strating would be subject to discharge, this does not re-
lieve the Respondent from the responsibility of the coer-
cive nature of Chuhlantseff's statement. At the time
Chuhlantseff made the statement, he had no way of
knowing whether the employees in demonstrating would
do so in such a manner as to remove their actions from
the protection of the statute. Therefore, the threat to dis-
charge them for walking out to demonstrate, without
any prior indication that the demonstration would be
done in an unprotected fashion, constitutes an unlawful
threat of reprisal against the employees for engaging in
activity sanctioned by Section 7. I find, therefore, that
by this statement the Respondent interfered with the
rights of the employees protected by Section 7 of the
Act and in so doing violated Section 8(a)(l) of the Act.
3. Van DeBogart's warning to Helton
The testimony presented in support of this allegation
was given solely by Helton. Helton stated that Van De-
Bogart told him, on October 4, that the Respondent had
a meeting of all of the sous chefs and intended to fire
anyone signing a union card or who was involved in
union activity. Helton stated that Van DeBogart urged
him not to do anything that would cause him (Van De-
Bogart) to have to take such action against him. The Re-
spondent asserts that Helton's testimony is highly im-
probable and, even if such a statement were made, it was
not coercive because of the personal relationship be-
tween Van DeBogart and Helton. I reject both of these
arguments. It is apparent that Van DeBogart spoke to
Helton after the meeting between upper-level manage-
ment and the supervisors on October 4. It is also evident,
just from the testimony of the Respondent's own wit-
nesses, that the supervisors were instructed to report any
union activity occurring in their section to their supervi-
sors. Thus, I do not find it improbable that Van DeBo-
gart would have reported the results of such a meeting
to Helton, who was his friend and a leading activist on
behalf of the Union. Further, it is highly probable that
Van DeBogart urged Helton not to do anything which
would cause Van DeBogart to take action against him in
order to protect his own position. In the absence of any
evidence to refute Helton's statements concerning this in-
cident, I credit his testimony.
I find, therefore, that Van DeBogart's statement to
Helton was made with the intent to restrain the employ-
ee in his activities on behalf of the Union and this unlaw-
fully interfered with the rights guaranteed him by Sec-
tion 7. I further find that by this conduct the Respondent
committed a violation of Section 8(a)(1) of the Act.
4. DiFulvio's unlawful interrogation of an employee
The complaint alleges that DiFulvio unlawfully inter-
rogated an employee about his union activity on or about
October 3. Several incidents involving DiFulvio were
testified to by O'Dell and Topping, although it is not
clear which of these the General Counsel is relying on to
support this particular allegation.
O'Dell testified that he was asked to sign a union card
by Topping during the first week in October and he
went to DiFulvio and asked how he felt about the
Union. He stated DiFulvio said he did not believe in
unions and that if a person were good enough he would
give him a raise. Although DiFulvio denied having this
conversation with O'Dell, even if it had occurred, it es-
tablishes nothing more than DiFulvio's antipathy toward
unions. It certainly cannot be considered unlawful inter-
rogation since it was initiated by O'Dell and contained
no questions about O'Dell's union activities or that of
any other employee.
The other incident involves Topping, who stated that
DiFulvio asked him on October 4 if he had heard of
anyone soliciting for the Union. Topping testified that
DiFulvio asked him to send anyone he discovered solic-
iting to the executive offices. Although DiFulvio ad-
mitted telling Topping he could not distribute union lit-
erature on company time when he was informed that the
employee was passing out cards, he denied making any
of the statements attributed to him by Topping. Based on
the inherent probabilities of the testimony and my obser-
vation of the witnesses, I do not credit Topping's state-
ments regarding this asserted incident. In my judgment,
it is highly unlikely that DiFulvio, a supervisor, would
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request that Topping, a known union adherent and card
solicitor, send anyone he discovered soliciting on behalf
of the Union to the executive offices. Indeed, Topping's
story would have more credibility had he stated that Di-
Fulvio wanted him to report any union solicitors directly
to him (DiFulvio), as his immediate supervisor. But to
suggest that Topping was to instruct anyone he discov-
ered soliciting to go to the executive offices simply is not
believable. For this reason, I find that the record evi-
dence fails to establish that on or about October 3, the
Respondent, through DiFulvio, unlawfully interrogated
an employee about his union activities. Therefore, this al-
legation of the complaint must be dismissed.
5. Difulvio's statement that O'Dell was terminated
because of his union activity
The complaint alleges that on or about October 6 Di-
Fulvio told employee O'Dell that he was terminated be-
cause of his union activity. The testimony introduced in
the record, however, indicates that on October 23, sever-
al weeks after his discharge, O'Dell saw DiFulvio sitting
at a bar in the Prim. It was at this time that DiFulvio
asked O'Dell where his "union buddy, Kodiac [Topping]
was," and told O'Dell that he "normally would have
tried to bend over backwards for him, but knew that
O'Dell was involved in something big and he [DiFulvio]
couldn't help him." Although DiFulvio denied meeting
O'Dell or making these comments, I do not credit him in
this regard. While it has been found, based on the inher-
ent probabilities that DiFulvio's testimony concerning his
converstation with Topping was credible. I am unable to
assign a similar stamp of acceptability on his denial about
the conversation with O'Dell on October 23. Having ob-
served DiFulvio on the stand, I am persuaded that por-
tions of his testimony were less than candid. For exam-
ple, when questioned about giving raises to O'Dell and
Topping a week prior to the time they were laid off, he
asserted that it was necessary in order to insure retention
of the employees in his department because of the tight
labor market in the Reno area. Yet Respondent's person-
nel director, Hopkins, testified that the Reno labor
market was wide open and the Respondent had no diffi-
culty getting applicants for any of the jobs which were
available. Thus, I find that DiFulvio, during parts of his
testimony, was willing to shade the truth in order to jus-
tify his actions or to prevent candid disclosure. Accord-
ingly, I find that O'Dell's testimony regarding his en-
counter with DiFulvio on October 23 is to be credited.
It is evident from the above that DiFulvio was inform-
ing O'Dell that he would have made an effort to retain
the employee when the consolidation of the purchasing
department made the layoffs necessary, but could not do
so because of O'Dell's involvement in activity on behalf
of the Union. Not only is this statement evidence of an
unlawful motive in selecting O'Dell for layoff, but it also
constitutes an independent violation of Section 8(aXl) as
well because it is evidence of unlawful interference with
O'Dell's statutory right to assist and support the Union.
6. Jenkins' threat to have Topping arrested for
trespassing
The evidence discloses that this incident occurred on
October 6 rather than October 9 as alleged in the com-
plaint. Topping had returned to the hotel to get his final
paycheck after he had been laid off by DiFulvio and
parked his automobile on company property. When he
returned he was met by Jenkins and the testimony of
both witnesses indicates that Jenkins observed union lit-
erature on the front seat of Topping's car and ordered
him off the hotel property. Topping testified that Jenkins
told him if he ever returned he would be escorted off the
property and turned over to the Reno police and
charged with trespassing. Jenkins, on the other hand, tes-
tified that he ordered Topping off the property and told
him he did not want him to return.
There is little difference between the testimony of the
two witnesses other than Topping's assertion that Jenkins
said he would have him arrested. Having observed both
of these individuals while testifying and bearing in mind
the Respondent's avowed antipathy toward unionization
of its employees, I credit the version given by Topping
regarding this incident. Accordingly, I find that Jenkins
not only ordered Topping off the property but threat-
ened to have him arrested for trespassing if he returned.
I find that Jenkins uttered this statement because he felt
that Topping was engaging in union activity on the Re-
spondent's property when in fact Topping was merely
there in order to get his final paycheck. I further find
that Jenkins made this threat because he was aware that
Topping was a supporter of the Union and this violated
Section 8(a)(l) of the Act. This is especially true since as
will be found herein, Topping was unlawfully selecteted
for layoff because of his activities on behalf of the
Union.
7. The asserted surveillance of the union hall
The complaint alleges that Brian Phay, one of Re-
spondent's security guards, engaged in surveillance of a
meeting of the employees at the union hall on October 3.
The evidence in support of this, however, leaves much
to be desired. Helton testified that he observed Phay sit-
ting across the street in an automobile while the employ-
ees were meeting at the union hall, and, when one of the
employees approached Phay, he drove off. Phay credibly
denied that he had ever been instructed to engage in sur-
veillance of the employees' union activities and denied
that he had any such automobile as described by Helton
available to him at that time. In addition, the payroll evi-
dence introduced by Respondent establishes that Phay
had not received any overtime pay during this period,
which would have been the case had he engaged in such
activity while he was off shift. Concededly, it is true that
Phay could have been recompensed by the Respondent
by other means, but this is pure speculation and there is
no evidence of it in the record. In addition, Helton's tes-
timony regarding this particular incident appears to be
contrived. Helton stated that later that same afternoon he
approached Phay, who was part of a group allegedly es-
corting Perkins from the Respondent's premises, and
asked if he enjoyed spying on the employees. The cred-
844
SAHARA RENO
ited testimony, however, indicates that only one individ-
ual, Jenkins, was escorting Perkins off the premises and
that no other uniformed security officers were present at
the time. Therefore, I do not credit Helton's testimony in
this regard and find that the General Counsel has failed
to establish by any credible evidence in the record that
the Respondent. acting through Phay or any other secu-
rity officer, engaged in surveillance or created an impres-
sion of engaging in surveillance of the employees' meet-
ings at the union hall.
8. The Respondent's no-solicitation rule and its
enforcement
The General Counsel asserts that the no-solicitation
rule maintained by the Respondent is unlawful on its
face. Since, as acknowleged in the Respondent's brief,
the rule forbids "soliciting any employee in any working
area for any purpose on . . . company time," it is clear
that the rule maintained by the Respondent is presump-
tively invalid under the Board's holding in Essex Interna-
tional and its progeny. 4 But the Respondent contends
that the presumption is overcome because of the peculiar
nature of the hotel-casino business, i.e., that solicitation
in the hotel lobby or showroom would interfere with
and annoy the hotel patrons "who by necessity occupy
the 'work area' for many of the hotel employees." Al-
though there is some persuasiveness to the Respondent's
argument, it must be rejected. The Respondent's rule for-
bids solicitation in all working areas of the hotel proper-
ty, not just areas occupied by customers or patrons.
Therefore, it would restrict employee organizational ac-
tivity in noncustomer occupied work areas on "company
time." Since company time would include employee
breaks or lunchtime, it is clear that the Respondent's rule
would unlawfully restrict employee organizational activi-
ty during times and in places that the Board has deemed
permissible. For this reason, I find that the Respondent
has not rebutted the presumption of invalidity of its no-
solicitation rule, nor has it established that the rule is
necessary for "protection, safety, or discipline." Sparks
Nugget, Inc., d/h/a John Ascuaga's Nugget, 230 NLRB
275 (1977).42
In light of the above, I find that the Respondent did
maintain a facially invalid no-solicitation rule, and the
maintenance of such a rule constitutes an independent
violation of Section 8(a)(1) of the Act. Essex Internalion-
al, Inc., supra.
In addition to maintaining the invalid no-solicitation
rule, it is alleged that the Respondent unlawfully en-
forced the rule when DiFulvio told Topping he could
not pass out union literature on company time to any of
the employees. DiFulvio also testified it was his under-
standing that the no-solicitation rule prohibited employ-
ees from talking about the Union or passing out any
union literature on company time while on company
property. Having found that rule itself was unlawful, it
follows that DiFulvio's enforcement of the rule against
41 Essex International. Inc., 211 NLRB 749 (1974) See also Comar
Glass Companyv. 244 NLRI 379 (1979); Switchcraft. Inc., 241 NLRB 985
(1979).
42 Cf East Bay .Vewspapers. Inc.. d/ba Contra Costa Times, 225 NLRB
1148 (197b)
Topping so as to prevent him from distributing union
cards and literature to employees during working hours
was also unlawful and violated Section 8(a)(1) of the
Act.
9. The closing of the coffeeshop
The General Counsel argues that the Respondent
closed the Sahara coffeeshop on october 6 in order to
stifle the union activity among the food department em-
ployees. It is contended that the reasons advanced by the
Respondent for making and implementing this decision
are pretextual and are offered solely to mask the unlaw-
ful motive underlying the decision.
The Respondent, on the other hand, submitted ample
economic justification for taking steps to reduce the sub-
stantial losses being incurred by the hotel operation in
general and the food operation in particular. Indeed, the
Respondent's financial records, the minutes of the de-
partment head meetings, and the testimony of Chuhlant-
seff and Nigro fully substantiate the fact that radical
changes were necessary to sustain the Reno operation
until it could achieve a profitable posture. The construc-
tion delays, the inability to schedule first-class entertain-
ment in the showroom, the change in attitude about the
operation of the Prim which resulted in the need to re-
model and refurbish that property in order to integrate it
with the Sahara, were all valid and legitimate factors jus-
tifying management's need to restructure parts of its op-
eration to reduce losses as much as possible.
Ordinarily, in these circumstances, it would be rash
and indeed presumptuous to attempt to second-guess the
wisdom of management's decision to close the Sahara
coffeeshop. however, there are a number of factors here
which cannot be ignored and which, in my judgment,
cast a severe cloud of suspicion over the events that oc-
curred on October 6.
First, it is evident from the contents of the minutes of
the department head meetings that Chuhlantseff dis-
cussed all aspects of the operations with his top-level
managers; some of these matters appeared highly impor-
tant and significant and others were merely routine and
mundane ill nature. Nevertheless, with the sole exception
of his memorandum to Nigro on September 26, none of
these documents reflect any discussion about the closing
of the coffeeshop at the Sahara. In contrast, it is clear
from the minutes that the department heads were in-
formed of the decision to close the buffet at the Prim. It
would seem highly unlikely that the general manager
would fail to discuss the closing of the Sahara cofleeshop
while informing the top managers of the closing of the
Prim buffet; this is especially true since these were both
important changes in the Respondent's operation. More-
over, several of the department heads would have been,
of necessity, directly involved in the implementation of
both decisions.
From the testimony, it would appear that only Nigro
and Chuhlantseff were privy to the decision to close the
Sahara coffeeshop and that Chuhlantseff informed Bienz
of this decision on September 29, when he directed Bienz
to implement it on October 2. In contrast to Chuhlant-
seffls testimony, however, the minutes reflect that it was
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only intended that Bienz close the buffet at the Prim.
Indeed, Irniger, who was a major witness for the Re-
spondent, testified that he had dinner with Bienz on Sep-
tember 29 or 30, and was told by Bienz that the Prim
buffet was to be closed the following Monday. At no
time during his testimony did Irniger state that Bienz
also indicated there would be a closing of the Sahara
coffeeshop as well.
Other than the testimony of Nigro and Chuhlantseff
and the memo of September 26, the Respondent has pro-
duced no evidence to substantiate its claim that the deci-
sion to close the Sahara coffeeshop was made prior to
October 2. On the other hand, the Respondent did pro-
duce substantial documentation establishing that the deci-
sion to close the buffet at the Prim was in fact made
prior to that date. This gives rise to a strong inference
that no management decision regarding the closing of the
Sahara coffeeshop was made until after the occurrence of
the employee activity on October 2. But this is not the
only factor which tends to refute the Respondent's asser-
tion that the closing of the Sahara coffeeshop was based
on economic justification.
It is apparent from the record that the Respondent's
officials considered the locus of the employee unrest and
union activity to be centered in the Sahara food depart-
ment. Nigro testified that he felt Perkins and Tobin had
been derelict in their responsibility as top-level managers
in failing to be aware that the employee unrest was
going on in that department. He also stated that he was
concerned because many midlevel supervisors (the sous
chefs) appeared to be leaders in the employee dissatisfac-
tion. Therefore, management knew at least by October 2
that the unrest and organizational activity originated
with the food preparation and food service employees of
the Sahara. Thus, the very department that was the focal
point of the employee activity was the department select-
ed to bear the greatest burden in terms of layoffs result-
ing from the decision to close the coffeeshop. Further-
more, while the Prim buffet was closed at the same time,
the record discloses that none of the employees of that
operation were laid off. Rather, they were absorbed into
the staff of the Prim coffeeshop or placed elsewhere. I
deem it quite significant that management was able to ac-
commodate the employees of the Prim, who were not in-
volved in the employee protest or the union activities,
but failed to do so for the employees of the Sahara
where all of the activity centered.
In addition, the manner in which the employees at the
Sahara were selected for layoff supports the contention
that the Respondent's management was using this as a
means to deliver a crushing blow to the union activity
among the employees in the food department. It cannot
be gainsaid that the Respondent was hostile to the con-
cept of having its Reno employees represented by a
union. This is evidenced by the statements of Nigro that
he felt it was not necessary to have the employees repre-
sented by a third party. I also credit Ciborski's testimony
that at the supervisors' meeting on October 4 Nigro
stated that he would "just as soon shut the doors" than
have an outside party telling him how to run the Sahara
Reno. When one considers this avowed antipathy toward
union representation of the employees and the manner in
which the layoffs were effectuated, it becomes evident,
in my judgment, that management was using the closing
of the Sahara coffeeshop as a means to rid itself of union
supporters and to suppress union activity amllong the em-
ployees in the food department.
McMacken and Cagle, who were in supervisory posi-
tions at the time, testified that Cavalli instructed the food
service supervisors to place a star or an asterisk after the
names of the employees involved in union activity or
who were "dragging their feet." Although Cavalli and
Jay denied that this was so, I do not credit their testimo-
ny in this regard. In addition to observing their demea-
nor while testifying, I note a glaring inconsistency in
their statements about the instructions issued by Cavalli
to the supervisors. Cavalli stated that he told the supervi-
sors to use seniority, job performance, ability, appear-
ance, and attitude as the guidelines in determining which
of the employees were to be laid off. Jay, on the other
hand, testified that Cavalli did not give the supervisors
any guidelines when telling them they had to lay off the
excess employees resulting from the closing of the cof-
feeshop. Since the testimony of these two witnesses was
offered to support the Respondent's position, I consider
it noteworthy that each gave a different version of this
event. I conclude, therefore, that their testimony is not a
reliable description of what was said by Cavalli during
his meeting with the coffeeshop supervisors.
In crediting McMacken and Cagle I am not unmindful
of their obvious bias against the Respondent. Each had
been terminated (McMacken was allowed to resign
under threat of termination) and their resentment over
their treatment by the Respondent was quite apparent.
Moreover, I am also aware that McMacken's testimony
was at variance with the statements contained in the affi-
davit she gave the Board representative about this event.
However, I also consider that her affidavit was given at
a time when she was sympathetic to the Respondent's in-
terest.4 3 While the variance between McMacken's affida-
vit and her testimony is substantial enough to raise suspi-
cions about her credibility, her testimony is consistent
with the finding that the decision to close the Sahara
coffeeshop was made subsequent and not prior to the pro-
tected activity engaged in by the employees. It is also
consistent with the facts found herein regarding the se-
lection of other food department employees for layoff,
infra. Therefore, I find that the testimony of McMacken
and Cagle is to be credited and that the Respondent did
indeed, through Cavalli, instruct the supervisors to lay
off not only marginal employees but also those who
were known to be involved in activities on behalf of the
Union.
Among the food preparation employees selected for
layoff, the record testimony indicates that the name of
Helton headed the list compiled by Irniger. There is no
question but that Helton was the leading union activist
43 Although McMacken testified that she was advised by the Respond-
ent's attorney not to mention anything about the Union, I do not find this
to be the case. The Respondent's attorney advised her to tell the truth
and not to volunteer any inforniation. That McMacken may have inter-
preted this to mean that counsel was advising her not to mention the
Union in no way indicates that this was in fact the instruction given by
the Respondent's attorney.
846
SAHARA RENO
among the Sahara employees. He went on television on
October 2 and publicly announced that the employees
needed the assistance of a union in order to correct the
conditions about which they were complaining. Al-
though Irniger testified that, when he first became the
acting executive chef at the Sahara, he spoke to Helton
and was advised by the employee that he had given
notice and was leaving to go into a business in Denver, I
do not credit his testimony at all in this regard. I find
Irniger to be a less than candid witness who was tailor-
ing his testimony in an effort to exculpate the Respond-
ent of any wrongdoing. Thus, I find that during his con-
versation with Helton, Irniger was seeking to get his sup-
port, along with that of other food preparation employ-
ees, in order to get the kitchen operation running
smoothly again. I further find that during this conversa-
tion Irniger urged Helton to forget about the Union and
Helton insisted that one was needed to protect the em-
ployees. It is evidence that this conversation, along with
Helton's other activities on behalf of the Union, made
him an undesirable person in the food department. Ac-
cordingly, I find that his name was indeed the first on
the list compiled by Irniger and Huestis of those to be
laid off, and that he was so selected because he was the
foremost advocate for the Union among the food depart-
ment employees. I note at this point that of all the em-
ployees selected for layoff, Helton's layoff slip was the
only one signed by Cavalli. In my judgment, this is fur-
ther evidence that Helton was being singled out for re-
taliation by the Respondent's officials because of his ac-
tivities on behalf of the Union.
In sum, I find that the decision to close the Sahara
coffeeshop was in fact made after the employee activity
on October 2 and not prior thereto as contended by the
Respondent. While I find that the Respondent had ample
economic justification to cause it to restructure the food
department at the Reno operation, I also find that the
closing of the coffeeshop at the Sahara was not one of
the methods that Nigro and Chuhlantseff decided upon
in September in their efforts to reduce the losses in the
food department. Based on Nigro's own testimony, it is
apparent that it was never intended that the Sahara
would be without a coffeeshop and, indeed, the record
indicates that the Prim coffeeshop was permanently
closed on December 18 and the Sahara coffeeshop was
reopened. I also find that the absence of discussion about
the closing of the Sahara coffeeshop with the various de-
partment heads prior to October 2 is further evidence
that the Respondent's decision to close the Sahara cof-
feeshop was not contemplated until after the employees
engaged in union and protected activity. The timing of
the decision and its implementation, coming after the
onset of the union organizational activity among the em-
ployees, the suddenness with which these plans were im-
plemented, the selection of the employees to be laid off
as a result of the closing of the coffeeshop, and the Re-
spondent's avowed animus toward union representation
of its employees lead me to conclude that the General
Counsel has effectively rebutted the Respondent's claim
of economic justification for its actions. I find, therefore,
that the closing of the coffeeshop at the Sahara was a
maneuver designed to enable the Respondent to lay off
employees in that portion of its operation where the ac-
tivity in support of the Union was most prevalent and
thereby deliver a devastating blow to the union activities
of its employees. Eccomunity Farms. Inc., d/b/a Moun-
tain Meats, 236 NLRB 1481 (1978). Conduct such as this
clearly interferes with, restrains, and coerces employees
in exercising rights guaranteed by Section 7 of the Act
and discriminates against employees in order to discour-
age membership in a labor organization. Accordingly, by
the above conduct, the Respondent has violated Section
8(a)(3) and (1) of the Act.
In so finding, I do not consider it necessary to treat
the allegation that the Respondent has refused to recall
or rehire the laid-off employees for unlawful reasons.
The evidence shows that the Respondent, consistent with
industry practice, does not maintain a recall list of laid-
off employees because many are transients and because
of the ready availability of persons with the needed skills
in the Reno labor market. The only evidence presented
that the Respondent was checking the union sympathies
or prior union activities of employees seeking rehire was
presented by McMacken. She stated that on several oc-
casions Cavalli and Close questioned her about the prior
union activity of certain unnamed employees who were
seeking rehire. However, the evidence also indicates that
some of the former employees who were laid off after
the closing of the coffeeshop were subsequently rehired
by the Respondent as its operations expanded and con-
struction was completed. The only other evidence in the
record is presented by Helton, who testified that when
he sought reemployment in May 1979 he was told that
his record had to be reviewed and he had to have an in-
terview with the executive food and beverage director.
It is apparent from the testimony of Hopkins that Helton
never kept this interview. I find, therefore, that no sub-
stantial record evidence has been presented to indicate
that the Respondent refused to reemploy any of the laid-
off employees because they had been involved in union
activities. Indeed, the testimony shows that the Respond-
ent was willing to rehire Helton because it was in need
of dinner cooks at the time he applied. Nor does the tes-
timony of Doyle and Kelly establish an unlawful rehire
policy, since each of these employees was told that they
were eligible to be rehired by the Respondent. It is clear
from their testimony that each waited to be recalled but,
as the Respondent had no such recall policy, there is no
evidence of unlawful discrimination against them in
terms of rehire.
10. The unlawful discharges of O'Dell and Topping
Having found that DiFulvio told O'Dell he would not
have been laid off but for his involvement in the union
activity, it follows from this finding that O'Dell was se-
lected for layoff because he was an active supporter of
the Union. While it is true that under the Respondent's
plan for integrating the Prim and the Sahara that the
food department was being consolidated, it is equally
clear from DiFulvio's statement to O'Dell on October 23
that the employee would not have been affected by the
consolidation except for the fact that he was an active
supporter of the Union. Accordingly, I find that by this
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action the Respondent discriminated against O'Dell in
order to discourage employee support for the Union and
thereby violated Section 8(a)(3) and (1) of the Act.
The evidence indicates that Topping was somewhat of
a problem employee for the Respondent. DiFulvio stated
that he repeatedly had to admonish Topping for failing
to secure the storeroom and to get the proper requisi-
tions filled out. But, in spite of this, the Respondent re-
tained Topping in its employ and, I week prior to his
layoff, gave him a wage increase. Having rejected Di-
Fulvio's explanation for the reason underlying the wage
increase, i.e., the so-called tight labor market in Reno, it
is evident that DiFulvio was prepared to overlook Top-
ping's shortcomings as an employee until he became
active on behalf of the Union. While DiFulvio character-
ized Topping as the least reliable employee in his depart-
ment, his testimony indicates that he was well aware of
Topping's activities on behalf of the Union and, indeed,
enforced the Respondent's unlawful no-solicitation rule
against Topping.
In light of the above, I find that Topping's activities
on behalf of the Union, and not his deficiencies as an em-
ployee, were the "dominant or moving cause" for his se-
lection for layoff by DiFulvio. Western Exterminator
Company v. N.L.R.B., 565 F.2d 1114 (9th Cir. 1977). My
conclusions in this regard are buttressed by DiFulvio's
reference to Topping after the layoff as O'Dell's "union
buddy." It follows, therefore, that Topping was laid off
for unlawful reasons and in violation of Section 8(a)(3)
and (I) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Sahara-Reno Corporation, d/b/a
Sahara Reno is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Hotel, Motel, Restaurant Employees and Bartenders
Local Union No. 86, a/w Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees on October 2 with disci-
pline or discharge if they left their work stations and en-
gaging in protected concerted activity in protest of their
working conditions, the Respondent violated Section
8(a)(l) of the Act.
4. By informing an employee on October 4 that em-
ployees would be discharged if they engaged in activities
on behalf of the Union, the Respondent violated Section
8(a)(1) of the Act.
5. By informing an employee on October 23 that he
had been laid off because of his activities on behalf of the
Union, the Respondent violated Section 8(a)(1) of the
Act.
6. By threatening, on October 6, to cause the arrest of
an unlawfully laid-off employee if he returned to the Re-
spondent's property to engage in union activities, the Re-
spondent violated Section 8(a)(1) of the Act.
7. By maintaining and enforcing an invalid no-solicita-
tion rule, the Respondent violated Section 8(a)(1) of the
Act.
8. By closing the coffeeshop at the Sahara Reno on
October 6 and thereby causing the layoff of employees in
order to suppress union activity among its food depart-
ment employees, the Respondent violated Section 8(a)(3)
and (1) of the Act.
9. By laying off employees O'Dell and Topping on
October 6 because they were involved in activities on
behalf of the Union, the Respondent violated Section
8(a)(3) and (1) of the Act.
10. The Respondent did not threaten employees on
October 1 with serious reprisals or by stating that it
would terminate its Reno operations if they engaged in
union or other protected activities.
11, The Respondent did not, through its supervisor
and agent, DiFulvio, unlawfully interrogate an employee
about his union activities on October 3.
12. The Respondnet did not engage in or cause an em-
ployee to engage in unlawful surveillance, or create an
impression of engaging in unlawful surveillance of em-
ployees' union activities.
13. The violations found herein are unfair labor prac-
tices affecting 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 within the meaning of Section
8(a)(1) and (3) of the Act, the Respondent shall be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act. Since the decision to close the Sahara coffeeshop
has been found unlawful, all of the employees laid off in
the food department as a result of the implementation of
that unlawful decision are discriminatees entitled to
offers of employment to the positions they held prior to
their layoffs in October 1978, without prejudice to their
seniority and other rights and privileges. Thus, it is not
necessary on this record to establish their specific identi-
ties or to prove that each so affected was engaged in
union or other protected activities. Cf. D.R.C, Incorpo-
rated, 233 NLRB 1409, 1421 (1977). As to William
O'Dell and Howard Topping, inasmuch as it has been
found that they were specifically laid off because of their
activities on behalf of the Union, they are also entitled to
reinstatement to their former positions of employment
without prejudice to their seniority or other rights and
privileges. All of the employees found to have been dis-
criminated against here are entitled to be made whole for
loss of earnings they may have suffered by reason of the
unlawful discrimination, and backpay shall be computed
with interest thereon, in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 44 Finally, be-
cause the evidence discloses that some of the laid-off em-
ployees were subsequently rehired by the Respondent in
the following year, this is a matter which can be ascer-
tained and adjusted in the compliance proceedings
herein.
44 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
848
SAHARA RENO
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER4 s
The Respondent, Sahara-Reno Corporation, d/b/a
Sahara Reno, Reno, Nevada, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with disciplinary action or
discharge if they leave their work stations to engage in
protected concerted activity in protest of their working
conditions.
(b) Informing employees that they will be discharged
if they engaged in activities on behalf of the Union.
(c) Informing employees who have been laid off that
their layoffs were caused by their activities on behalf of
the Union.
(d) Threatening to cause the arrest of employees if
they engage in union activities on the Respondent's prop-
erty.
(e) Maintaining and enforcing an invalid no-solicitation
rule which prohibits employees from soliciting in all
work areas on company time.
(f) Shutting down or closing parts of its operation in
order to suppress union activity among its employees.
(g) Laying off employees because they are involved in
activities on behalf of the Union.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, as amended.46
45 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
4' See Hickmott Foods Inc., 243 NLRB 1357 (1979).
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer William O'Dell and Howard Topping and all
food department employees laid off as a result of the de-
cision to close the Sahara coffeeshop on October 6, 1978,
immediate and full reinstatement to their former posi-
tions, or, if those jobs no longer exist, to substantially
equivalent position without prejudice to their seniority or
other rights and privileges. Make the above-described
employees whole for any loss of pay which they may
have suffered by reason of the discrimination against
them in conformity with the section of this Decision en-
titled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary and relevant to analyze and compute the amount of
backpay due under this recommended Order.
(c) Post at its Reno, Nevada, hotel operations copies
of the attached notice marked "Appendix." 47 Copies of
said notice, on forms provided by the Regional Director
for Region 32, after being duly signed by the Respond-
ent's authorized representative, shall be conspicuously
posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
47 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
849