Thunderbird Hotel, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1965

152 N.L.R.B. 1416 (N.L.R.B. 1965)

1416 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Thunderbird Hotel , Inc.; Joe Wells , James Schuyler and William
Deer, Co-Partners , d/b/a Thunderbird Hotel Company; and
Ralph Lamb, Sheriff , Clark County , State of Nevada and Inde-
pendent Guards Association of Nevada , Local No. 1. Case No.
10-GA-2521. June 10, 1965
DECISION AND ORDER
On June 8, 1964, Trial Examiner Henry S. Sahm issued his Decision
in the above-entitled proceeding, finding that the Respondents had
engaged in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Respond-
ents Thunderbird Hotel, Inc., and the Co-partners, d/b/a Thunder-
bird Hotel Company, filed exceptions to the Decision and a supporting
brief. A brief was also filed by the General Counsel.'
The National Labor Relations Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the foregoing excep-
tions and brief, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner except as modified herein?
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents Thunderbird Hotel, Inc.,
Winchester, Nevada, its officers, agents, successors, and assigns; and
Joe Wells, James Schuyler and William Deer, Co-partners, d/b/a
Thunderbird Hotel Company, Winchester, Nevada, their agents, suc-
cessors, and assigns; and Ralph Lamb, Sheriff, Clark County, State of
Nevada, and his agents, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified : 3
1. Reletter subparagraph (d) of paragraph 2 of section A of the
Trial Examiner 's Recommended Order as "(e)" and insert a new sub-
paragraph (d) as follows:
1 Respondents ' request for oral argument is hereby denied as , in our opinion , the record
including the exceptions and briefs adequately present the issues and positions of
the parties
8 We find it unnecessary, in the particular circumstances of this case , to adopt the Trial
Examiner 's recommendation that a notice by the sheriff of Clark County be posted
3 The address and telephone number for Region 20 , as given below the signature line
in Appendix A attached to the Trial Examiner ' s Decision , is amended to read: 450 Golden
Gate Avenue, Box 36047 , San Francisco , California , Telephone No. 556-3197.
152 NLRB No 144.
THUNDERBIRD HOTEL COMPANY 1417
"(d) Notify Thomas B. Cranford if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended. after
discharge from the Armed Forces."
2. Delete section B, 2, (a), of the Recommended Order of the Trial
Examiner in its entirety, and reletter section B, 2, (b), as B, 2, (a).
3. Delete "Appendix B."
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
TRIAL EXAMINER'S DECISION
Upon a charge and amended charges filed on January 15, February 27, and Api if 9,
1963, by Independent Guards Association of Nevada, Local No. 1, herein called the
Union, the General Counsel of the National Labor Relations Board issued a com-
plaint dated September 10, 1963, against the above-named Respondents, herein called
the Thunderbird Hotel and Ralph Lamb, sheriff of Clark County, Nevada, alleging
that the Respondents violated Section 8(a)(1) by coercively interrogating employees
concerning their union activities, membership, and sympathies and discharged
Thomas B. Cranford in violation of Section 8(a)(3) of the National Labor Rela-
tions Act, as amended, herein called the Act. Copies of the charges and"notice of
hearing were served on the parties.
Pursuant to notice, a hearing was held in Las Vegas, Nevada, on October 30 and
31, 1963, before Trial Examiner Henry S. Sahm. All parties were represented by
counsel and were afforded full opportunity to participate in the hearing, to introduce
relevant evidence bearing on the issues, to argue the issues orally upon the record,
and to file briefs and proposed findings of fact and conclusions of law. Respondents'
motions to dismiss the complaint are disposed of in accordance with the findings
below Briefs were received from all parties which have been fully considered.
Upon the entire record in the case, and from observation of the demeanor of the
witnesses, there are hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
(a) The Thunderbird Hotel, Inc., a Nevada corporation, with its main office and
principal place of business at the unincorporated town of Winchester, Nevada, is,
and at all times material herein has been, the owner and operator of the Thunderbird
Hotel, and lessor of said hotel's bars, restaurants, and gambling casino
(b) Joe Wells, James Schuyler, and William Deer, who comprise the partnership,
with its main office and principal place of business at Winchester, Nevada, is, and at
all times material herein has been, the lessee of the bars, restaurants, and gambling
casino at the Thunderbird Hotel.
(c) Respondents Corporation and Partnership are, and at all times material have
been, a single integrated enterprise and a single employer within the meaning of
Section 2(2) of the Act.'
(d) During the calendar year 1962, Respondents Corporation and Partnership, in
the course and conduct of their business operations, each received gross annual reve-
nue in excess of $500,000.
(e) During the calendar year 1962, less than 75 percent of the guests of the Thun-
derbird Hotel remained for I month or more.
(f) During the calendar year 1962, Respondents Corporation and Partnership in
the course and conduct of their business operations, each purchased and received
goods and materials valued in excess of $50,000 from enterprises located in the State
of Nevada, which enterprises received said goods and materials directly from places
and points located outside the State of Nevada.
'Thunderbird Hotel , Inc., and Joe Wells, James Schuyler and William Deer, Co-
Partners , d/b/a Thunderbird Hotel Company , 144 NLRB 84.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Respondents Corporation and Partnership , herein referred to collectively as
the "hotel" are, and at all times material herein have been , an employer engaged in
commerce and in operations affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is found that Respondents Corporation and Partnership constitute a single
employer for jurisdictional purposes and are engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
Independent Guards Association of Nevada , Local No. 1, is a labor organization
within the meaning of Section 2(5) of the Act which admits to membership security
guards employed at Nevada hotels and gambling casinos
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Thomas B Cranford, the alleged discriminatee herein, was employed as a security
guard at the Thunderbird Hotel from August 1 to December 11, 1962. These guards
maintain peace , order, and security in and about the gambling casino, quelling dis-
turbances and controlling crowds awaiting admittance to that part of the hotel where
entertainment is featured. The security guards wear uniforms furnished by the hotel.
They also wear badges and carry guns and handcuffs, which are their own property
and they pay for their own false arrest insurance.3
The procedure for obtaining a guard's job is to apply to the chief security officer of
a particular hotel or gambling casino. If the chief security officer approves of the
apphcant's qualifications, he gives him a letter addressed to the sheriff of Clark
County, requesting the latter to issue the applicant a special deputy's commission pro-
vided the sheriff , after checking the applicant 's background , approves .4 If the sheriff
clears the applicant , he is issued a commission , sworn in as a special deputy, and a
card is issued by the sheriff stating the guard's name , his title "Special Deputy," and
the name of the hotel at which he is employed.5 When deputized, the guard's func-
tions and authority are limited to the premises of the hotel which hired him. It
should be noted, however, that neither the laws of the State of Nevada nor any of its
political subdivisions require such a guard to be deputized by the sheriff but the hotels
prefer them to be deputized in order to carry concealed weapons . ( See Respondent
Lamb's Exhibit No . 3, page 1.)
The "special" deputies commission , which is issued to security guards employed by
hotels and gambling casinos , differs from that of "patrol " deputy sheriffs in the follow-
ing respects - The patrol deputy sheriffs ' jurisdiction cover an entire county and they
work under the direct control and supervision of the sheriff's office which pays their
salaries, whereas the salaries of the "special" deputies are paid by the hotels whose
premises they guard.
"Thunderbird Hotel , The, and Joe Wells, James Schuyler and William Deer, Co-
Partners , d/bla Thunderbird Hotel Company , supra. See also Harrah's Club, 143 NLRB
1356
3 Thunderbird Hotel Company , supra.
4 This finding as to how an applicant applies for a guard 's job is based on the testimony
of Joseph De Saro , who has been employed since 1951 as a guard at various gambling
casinos in greater Las Vegas, including the Thunderbird where he was a guard from
February 1962 to August 11, 1963 He is presently employed as a guard at a hotel in
Clark County which includes the greater Las Vegas area De Saro also testified that
when a guard leaves the employ of a gambling casino , normally he surrenders his special
deputy ' s commission to the chief guard In determining which of the various witnesses'
conflicting versions to credit , detailed in later sections of this Decision , reliance has been
made to a great extent on De Saro ' s testimony as he is a disinterested witness and , having
been employed as a guard for over 12 years in the Las Vegas area , he Is familiar with
nian' of the situations involved in this proceeding As such, he depends on his guard's
job for his livelihood and he understood that after testifying in this case , he must con-
tinue to have contact with the Clark County sheriff 's office and those connected with the
gambling casinos This practical consideration , coupled with the normal workings of
human nature, has led the trier of these facts to place considerable credence upon De
Saro's testimony
5 Thunderbird Hotel Company, supra.
THUNDERBIRD HOTEL COMPANY 1419
About the middle of November 1962, Cranford, the alleged discrimmatee, who was
then a guard at the Thunderbird Hotel, went to the home of an official of the Inde-
pendent Guards Association, the Union herein, and inquired about the possibility of
organizing a union to represent the Hotel's security guards. A meeting was held on
December 2, 1962, at the home of the Union's president which was attended by five
Thunderbird security guards, including Cranford. Invitations to attend this meeting
were given on November 30 by Cranford personally to all the nine guards employed
at the Thunderbird Hotel. All five of the Thunderbird Hotel guards who attended
this meeting signed union cards for the eventual purpose of having the Union repre-
sent them in collective-bargaining negotiations. At this organizational meeting on
December 2, 1962, Cranford was given union authorization cards by a union official
and requested to contract the other four guards at the Thunderbird Hotel in order to
solicit them to sign these cards.
The following day, December 3, 1962, Hall C Feeney, president of the Independent
Guards Union, went to the office of Sheriff Ralph Lamb, a Respondent herein, but he
was not in at the time so Feeney spoke with Lieutenant Hiram L Powell who has
been in charge of personnel for the sheriff's office since December 1, 1962 Feeney
told Powell he was president of the Independent Guards Association of Nevada
which had been requested to organize a union by the guards employed at a Las Vegas
hotels
As mentioned above, an applicant for a guard's job at a hotel or gambling casino
is required by most of the hotels to obtain a "special" deputy's commission from the
sheriff of Clark County, although the law does not require this. As these commissions
could be revoked at any time and for any reason, the guards were concerned, Feeney
told Lt. Powell, of the lack of job security they had and his purpose in coming to the
sheriff's office was to ask his "cooperation" in the Union's efforts to organize the
approximately 200 guards employed at the various hotels and gambling casinos in
the Las Vegas area because, testified Feeney, "We were interested in wages and con-
ditions of these men out there " In response to Feeney's request asking for the
cooperation of the sheriff's office, Lt. Powell told Feeney that he questioned the
legality of these guards belonging to a union not only because they were deputized by
the sheriff, but also the sheriff did not want to be placed in the position whenever he
wanted to revoke these special deputy's commissions of having to consult first with
the Union. Lt. Powell also testified that if there were a picket line at any of these
hotels because of labor trouble that unionized guards would be unable to discharge
their duties as they might refuse to enter the hotel if it meant crossing the picket line.
On December 7, Feeney, accompanied by Ronnow, another union official, met with
Sheriff Lamb at his office. Lamb told them he was opposed to a guard's union not
only because he believed it to be illegal for anyone holding a special deputy's commis-
sion to belong to a union, but he also opposed it because the control he had over these
hotel and gambling casino guards in granting and revoking their special deputy's com-
missions would be infringed upon and jeopardized if he had to consult first with the
Union whenever he proposed to grant or revoke a guard's commission Moreover,
contended the sheriff, none of his special deputies "could serve two masters", i.e., the
Union and the sheriff, as this would interfere with the discharge of the hotel guards
official responsibility to the sheriff. If he were loyal to the Union, claimed the sheriff,
the guard would be unqualified to serve as a special deputy because his first loyalty
is not only to the sheriff but such divided loyalty is incompatible with discharging his
duties as a special deputy. Sheriff Lamb told the union officials he would discuss the
matter with his attorney and then meet with them again on December 14.
On December 10, 3 days after the sheriff had met with the union officials, and
before Cranford's discharge, Sheriff Lamb called a meeting of all the chief security
guards employed at hotels and gambling casinos located on the "strip." At this meet-
ing, which was held at the sheriff's office and at which Chief Guard Bellis of the
Thunderbird Hotel was present,? Sheriff Lamb asked the chief guards how they felt
about the guards under their supervision belonging to a union All the chief guards
opposed it.
'Although the hotels and gambling casinos, located on what is called "the strip," are
usually referred to as being located in Las Vegas, actually, they are located in the un-
incorporated town of Winchester, Clark County, Nevada The city limits of Las Vegas
are adjacent and contiguous to Winchester where "the strip" is located.
7I was not impressed with much of Bellis' testimony Typical was his lack
of candor, his unresponsive, equivocal, and evasive answers to questions, and his tend-
ency to fence with counsel For example, his testimony that he could not recall at-
tending this meeting in the face of Sheriff Lamb's affidavit (Respondent Lamb's Exhibit
No 3) which states that Bellis was present at this meeting of all the hotels' chief
security guards
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 11, the day following Sheriff Lamb's meeting with the "strip" hotels'
chief security guards, Cranford received a telephone call from Lt Powell of the
sheriff's office, asking him to come to the office as soon as possible When Cranford
arrived at the sheriff's office, Powell asked him what he knew about a union meeting
that was held on December 2, whether he was present at it, and whether he had been
soliciting the hotel's special deputies to join a union When Cranford acknowledged
he was present at such a meeting, Powell then asked him who had attended the union
meeting and, when Cranford refused to tell him, Powell informed Cranford that
because of his disloyalty to the sheriff and his chief guard (Toni Bellis) in not report-
ing his union activities and refusing to name who was present at the union meeting, he
was revoking his special deputy's commission on orders from Sheriff Lamb.
The same day, December 11, Cranford advised his immediate superior at the
Thunderbird, Chief Security Guard Tom Bellis, that Powell had revoked his special
deputy's commission. Bellis then told Cranford he could not continue to work at
the Thunderbird as a guard if he did not have a special deputy's commission, where-
upon Cranford's employment was terminated by the Thunderbird Hotel as of Decem-
ber 11, 1962.
When Cranford advised the Union that the Respondent Hotel had terminated him,
Feeney, the president of the Charging Union, telephoned Sheriff Lamb on Decem-
ber 12, 13, and 14 but Feeney was unable to speak to him, as he was told the sheriff
was "busy and not available," whereupon he spoke to Lt. Powell on December 14.
Feeney told Powell that the sheriffs office was in violation of the law in firing Cranford
"for going to a union meeting." Powell replied that Cranford was not fired for going
to a union meeting but "for disloyalty" to the sheriff. When Feeney asked in what
way Cranford was disloyal, Powell answered, "I asked Cranford what other men were
at that meeting and he refused to tell me, so he violated his oath he took when he
became a special deputy sheriff." 8 When Feeney suggested to Powell that he rein-
state Cranford, Powell said no one was "going to tell him how to run" the sheriff's
office.
In a letter dated December 20, 1962, the Union's counsel requested a meeting with
Respondent Lamb to discuss the withdrawal of Cranford's commission. Sheriff
Lamb replied in a letter dated December 26, 1962, which states in part:
Please be advised that Mr. Tom Cranford's commission was not revoked
because of any affiliation with any union. The commission was revoked because
of his disloyalty to his security chief at the Thunderbird Hotel and also to Sheriff
Ralph Lamb.
By Mr. Cranford's own admission he did not notify his Security Chief of the
secret meeting he attended with Union officials, nor did he notify his Chief of
his efforts to organize the security guards of the Strip hotels or any member of
this department Therefore, I do not feel it would be necessary to have a meet-
ing with you or any members of the Union to discuss this matter any further')
The Union filed a representation petition with the National Labor Relations Board
on January 15, 1963, seeking a unit of security guards employed at the Thunderbird.
Following the Board's Decision and Direction of Election, the Union was certified by
the Board on October 16, 1963, as bargaining representative for a unit of security
guards and timekeepers employed at the Thunderbird Hotel.
B. Contentions
The General Counsel contends that Cranford, the alleged discriminatee in this case,
is an employee of the Respondent Thunderbird Hotel; that Chief Security Guard
Bellis was a supervisor employed by the Respondent Hotel; and that when the sheriff
rescinded Cranford's special deputy's commission, which the General Counsel claims
was done at the behest of the hotel, the sheriff was acting as agent for the hotel.70
The sheriff denies this, arguing that the hotel's guards and Chief Security Guard
Bellis are employees of the sheriff's office and beyond the reach of the Act and as
Section 2(2) of the Act excludes States or its political subdivisions from the definition
8 When Powell was asked at the hearing if he knows of any law that required Cranford
to report his union activities to the sheriff, he answered in the negative.
8 Thereafter, the Union tried unsuccessfully to obtain in the Nevada State District
Court a writ of mandamus ordering Respondent Lamb to reinstate Cranford's commission
10 Section 2(3) provides that: "In determining whether any person is acting as an
`agent' of another person so as to make such other person responsible for his acts. the
question of whether the specific acts performed were actually authorized or subsequently
ratified shall not be controlling "
THUNDERBIRD HOTEL COMPANY 1421
of "employer," 11 the Board has no jurisdiction over the sheriff's "employees." More-
over, the sheriff contends, he was legally justified in revoking Cranford's special
deputy's commission because of his disloyalty in refusing to report his union activities
to the sheriff as he was required to do since union membership on the part of a special
deputy conflicts with and is inconsistent with his loyalty and duty to the sheriff's office
from which he obtains his commission
Furthermore, argues the Respondent Hotel, it was not responsible for the actions of
the sheriff as it neither instituted nor authorized the sheriff to revoke Cranford's
special deputy's commission nor knew the reasons therefor until after it occurred.
C. Discussion
As to the Respondent's contention that both Cranford and his immediate supervisor,
Chief Security Officer Bellis, are employees of the sheriff and not the Thunderbird
Hotel, this matter was settled in a Decision and Direction of Election dated August 20,
1963, 144 NLRB 84, involving the same parties, in which the Board held to the
contrary.12 The Board in the above-cited Decision determined that Chief Security
Guard Bellis "is at least an agent of the employer, f not a supervisor, employed by
[Respondent Thunderbird]," and that the security guards also are employees of the
Respondent Thunderbird Hotel. The Respondent hotel contends, however, that the
Trial Examiner is not bound in this complaint proceeding by the Board's findings in
the representation case.
Ordinarily, the appropriate time to raise objections to an election is before certifica-
tion Accordingly, the Respondents are not entitled as a matter of right to relitigate
in this proceeding the issues that were part of the earlier proceeding. Section 10 of
the Act, of course, requires a hearing on an unfair labor practice complaint, but Sec-
tion 9(d) makes it plain that no retrial of the facts certified following an investigation
pursuant to Section 9(c) is contemplated. On the contrary, the representation pro-
ceeding and the unfair labor practice proceeding are really one.la The provision in
Section 9(d) for judicial review of the representation record affords Respondents a
complete guaranty against arbitrary action; and this provision would obviously be
superfluous if a hearing de novo on the previously decided representation issues were
required in the unfair labor practice proceeding.
Accordingly, the Board's findings and conclusions in a prior representation case
existing at the time of such decision are binding on the Trial Examiner and cannot be
relitigated in a subsequent unfair labor practice proceeding absent special circum-
stances or evidence which was newly discovered or unavailable to the Respondent at
the time of the representation hearing.14 It is found therefore, in accordance with the
Board's decision, supra, that Bellis "is at least an agent of the employer, if not a super-
visor" in the employ of Respondent Thunderbird and that Cranford also was an
employee of the Thunderbird Hotel.
However, the Board in Leonard Niederriter Company, Inc., 130 NLRB 113, foot-
note 2, page 115, where the issue was whether an alleged 8(a) (3) discrimmatee was
a supervisor within the meaning of the Act at the time of his discharge, held that the
Trial Examiner was not bound by the Board's holding in an earlier representation
case that the alleged discrimmatee was a supervisor. The Board, citing Southern
Airways Company, 124 NLRB 749 (footnote 2, of the Niederriter case), stated that
the finding in the representation case "did not finally and conclusively resolve that
issue [of whether the alleged 8(a) (3) discriminatee was a supervisor] for the purposes
of this case involving alleged violation of Section 8(a) (3) and (1) of the Act."
11 Section 2(2) provides that: "The term employer includes any person acting as an
agent of an employer, directly or indirectly, but shall not include . . any State or
11political subdivision thereof . . . .
12 Subsequently, the Board conducted an election among the Thunderbird Hotel's security
guards and certified the Union as their bargaining representative (Case No 20-RC-5294)
15 Pittsburgh Prate Glass Company v N L R B , 313 U S 146, 158. 162.
14 Worcester Woolen Mills Corporation, 74 NLRB 1071, enfd 170 F. 2d 13, 16 (C A. 1),
cert denied 336 U.S 903 See Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S
146, 157-158; N.L.R B. v. O.E. Van & Storage, Inc., 297 F. 2d 74 (C.A 5), enfg 127
NLRB 1537, 1540, N.L R.B. v. American Steel Buck Corp, 227 F. 2d 927, 929 (C A 2) ;
Pacific Greyhound Lines, 22 NLRB 111; Swift & Company, 63 NLRB ; 718, the Midland
Steel Products Company, 71 NLRB 1379; Grede Foundries, Inc, Iron Mountain Division,
83 NLRB 201; Clark Shoe Company, 88 NLRB 989; American Finishing Company, 90
NLRB 1786: Kearney & Trecker Corporation, 101 NLRB 1577; Baker and Taylor Co ,
109 NLRB 245; National Carbon Company, a Division of Union Carbide and Carbon
Corporation (Edgewater Works), 110 NLRB 2184, 2185; Jackson Daily News, 103 NLRB
207; Myea Products, Division of the Kane Company, 145 NLRB 1068.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event , and regardless of whether the Trial Examiner is bound by the Board's
Decision , it is found independently on the evidence in this proceeding that both Bellis
and Cranford are employees of the hotel and that Bellis is a supervisor within the
meaning of Section 2 ( 11) of the Act for the following reasons 15 In determining
the relationship of the deputized guards to the hotel and sheriff , the trier of the facts
must look beyond the surface arrangements which have been made by the Hotel and
sheriff to the underlying factual situation actually governing the labor relations of the
guards The record in this case shows the guards' salaries are paid by the hotel,
whose premises they guard exclusively , that the hotel also gives them paid vacations
and hospitalization insurance , their uniforms are furnished by the hotel which with-
holds their Federal income tax , social security payments , and hospital insurance pay-
ments, and it is the hotel which first interviews applicants for lobs as security guards.'(;
The clearance required by the sheriff is limited generally to determining the appli-
cant 's fitness to he a security guard from the standpoint of whether he has a criminal
record After the guard applicant is selected for hire by the hotel, he goes to the
sheriff's office in order to receive the above-described clearance .1 7 Moreover, the
hiring and discharge of these guards , the hours they worked , and their working condi-
tions were under the control and direction of the Thunderbird Hotel which , in turn,
delegated these powers to Chief Security Guard Bellis . Except for the security
clearance described above, the hotel or its chief guard did not require any other
approval or consent from the sheriff 's office in supervising the guards under their
control It is found accordingly , that the security guards are employees of the
Respondent Thunderbird Hotel . 18 See Tampa Shiobuilding Company , Incorporated,
62 NLRB 954; Monsanto Chemical Company , Clinton Laboratories, Oak Ridge,
Tennessee , 76 NLRB 767. See also the Senate Report on the Wagner Act (S. Rept.
No. 573, 74th Congress , 1st Sess., p . 6, 2 Leg. Hist . of the NLRA , 1935, p. 2305)
As for Bellis, the credited testimony shows and it is found that he is employed by
the Respondent hotel and not the sheriff 's office as the Respondents contend') In
his affidavit ( General Counsel's Exhibit No . 7), given to a Board investigator, Bellis
not only stated that his immediate supervisor was Walsh, general manager of the
Respondent Thunderbird Hotel , but the record also shows that his wages were paid
and his uniform furnished him by the hotel ; the guards were under his supervision;
and his recommendations to the hotel officials regarding the guards ' wages, vacation
pay, shifts , hours to be worked, promotions , hirings, firings , and increases and
decreases in the number of guards employed were followed by the hotel . In addition,
he interviewed job applicants , made job assignments , and directed the security guards
in all respects. It is found , therefore , that Chief Security Guard Bellis is a supervisor
employed by the Respondent hotel.20
It should be pointed out also that the guards' jurisdiction extends only to the
premises of the various hotels and gambling casinos they protect and that they are
hired , fired, and paid by the hotels and under the hotel's direction , control , and super-
vision unlike the "patrol" deputy sheriffs whose jurisdiction cover the entire county
and who are directly employed by the sheriff under his direct control and supervision
and paid by Clark County . Moreover, "Patrol " deputy sheriff 's can , unlike hotel
security guards, enter any hotel and gambling casino in Clark County in order to
maintain law and order.
15 Section 2(11) of the Act provides, " The term `supervisor ' means any individual hav-
ing authority , in the interest of the employer , to lire, transfer, suspend , lay off , recall,
promote , discharge , assign , reward, or discipline other employees , or responsibly to direct
them , or to adjust their grievances, or effectively to recommend such action , if in con-
nection with the foregoing the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment "
1e The fringe benefits accorded security guards are the same as the other employees
(waiters, waitresses, etc ) at the Respondent hotel
7 De Saro testified that when he was hired by the Thunderbird as a security guard
around February 1962 , Chief Guard Bellis handed him a "letter " and when he went to
the sheriff 's office, the secretary of the sheriff perfunctorily issued him his special deputy's
commission . See footnote 4, supra
18 De Saro , whose testimony is credited, stated that his immediate superior at the seven
gambling casinos at which he has been employed for the past 10 years, has been the chief
guard and not the sheriff
is Bellis left the hotel ' s employ on March 1, 1963 , and is now bailiff in the State
district court.
211t is interesting to note that Bellis also supervised the cloclsinen and tiniekeepers,
employees of the hotel , who were not deputised by the sheriff
THUNDERBIRD HOTEL COMPANY 1423
The Respondents also contend that as the sheriff's office is a political subdivision
of the State of Nevada, it is exempt from the Board s jurisdiction, as Section 2(2) of
the Act in defining the term "employer" states it shall not include "any State or
political subdivision thereof." This argument, however, is predicated on the sheriff
being the employer of the hotel guards, which is contrary to the conclusion reached
above, where it was found that it is the Thunderbird Hotel which is the guards'
employer as it hires, fires, supervises, controls, and directs them in the discharge
of their duties 21
Furthermore, argues Respondent hotel, there is insufficient evidence to show that
it discriminatorily discharged Cranford Cranford's employment, it contends, was
necessarily terminated by the hotel when the sheriff revoked his special deputy's
commission, as it is the policy of the hotel not to employ guards who do not have a
special deputy's commission. And, finally, contends the hotel, there is nothing in the
record to show that when the sheriff withdrew Cranford's special deputy's commission
he was acting at the behest of the hotel and as its duly authorized agent The evidence,
however, does not substantiate these contentions.
The facts establish that at the inception of organizing activities, Cranford was the
leading and only protagonist for the Union, initiating the union movement at the
Thunderbird Hotel in the middle of Novembei, inviting all the guards at the hotel to
the December 2 union meeting and soliciting them to join the Union. The facts
further establish, and it is uncontradicted, that the sheriff, through Lt. Powell, his
immediate subordinate in charge of personnel, revoked Cranford's special deputy's
commission on December 11, 1962, for his failure to disclose to the sheriffs' office
that he was engaged in union activities.2Furthermore, it is uncontradicted that
Sheriff Lamb and Lt. Powell were opposed to the unionization of the security guards
employed by the various hotels located on the "sti ip." Also, it is uncontroverted
that De Saro, whose testimony is credited, was approached by Sheriff Lamb "in the
early part of December" before Cranford was discharged, and while De Saro was at
work at the Thunderbird as a guard, and asked by the sheriff if he knew "anything
about Cranford instigating a union out here." Lending credence to this incident
having occurred, as testified to by De Saro, a disinterested witness, is Cranford's uncon-
tradicted testimony that he saw Sheriff Lamb at the hotel speaking to Bellis, the chief
guard. on Friday, December 7
Based on these undisputed facts, it is not unreasonable to infer that the meeting
called by Sheriff Lamb of all the chief guards on Monday, December 10 23 (after
Lamb spoke to De Saro and Bellis at the hotel the previous Friday night), was for
the purpose of alerting all the hotel's chief guards that an attempt was being made to
unionize the guards under their supervision. Nor is it illogical to conclude that Bellis
already knew or was informed by the sheriff at this December 10 meeting of the chief
guards, which he attended, that Cranford was actively engaged in soliciting guards to
join the Union. Corroborative of this conclusion is Belles' admission that on or about
December 10, he had asked the guards under his supervision what they knew about
union activity at the hotel. Bellis also testified that he told one of the guards. "I
would have respected you if you would have come and told me what was going on
[about the Union] instead of holding it away from me " Then, too, Bellis tacitly
acknowledged that he knew union activity was going on at the hotel before Decem-
ber 11 (the day Cranford was fired), when he testified that in a telephone conversa-
tion that same day with Lt. Powell regarding the Union that he thinks Powell "knew I
knew" the facts surrounding the revocation of Cranford's special deputy's commis-
sion.24 Significant also is Bellis requesting the sheriff to reinstate Smith's commission
21Cf. N.LR.B. v Howard Johnson Company, 317 F. 2d 1 (CA 3), enfg 135 NLRB
1260, cert. denied 375 US 920; Monsanto Chemical Company, Clinton Laboratories, Oak
Ridge, Tennessee , 76 NLRB 767.
22 Gene Smith, who also was a guard at the Thunderbird Hotel, had his commission
revoked for union activities on December 11, 1962, at the same time as Crantord and was
then discharged by the hotel Lt Powell immediately investigated Sinitli's discharge
when he was told Smith was not involved in union activities When he found this to
be true, he reinstated Smith's commission a few days later, whereupon he was reemployed
as a guard by the hotel When Powell testified on October 31, 1963, in this proceeding,
he was asked who it was that informed him Smith was not engaged in union activities
and he testified he could not remember. Testimony such as this strains one's credulity,
as it is unbelievable that Powell would not remember such an important and fairly recent
incident as to who it was that had informed bun Smith was not involved with the Union
23 See supra.
24 This is inconsistent with Bellis' testimony at another point in the record, which ii
not credited, that he knew nothing about the circumstances surrounding the sheriff revok-
ing Cranford's commission before he was so notified by Powell on December 11
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but not requesting the same for Cranford.2It is found, therefore, that when Powell
revoked Cranford's commission, Bellis knew, contrary to his equivocal denial, that
Cranford was going to have his commission revoked by the sheriff's office because of
his union activities. Consequently, as Bellis was a supervisor 26 such knowledge is
imputed to his employer, the Respondent Thunderbird Hotel.
While it may be contended that there is no direct evidence the Respondent author-
ized or caused the sheriff to revoke Cranford's special deputy's commission, it is
well settled that "a finding of the Board need not be supported by direct evidence,"
and that the Board "has the right to consider circumstantial evidence and draw
inferences therefrom as direct evidence is not always obtainable " 27 Recourse may
be had and reliance made upon circumstantial evidence which is relevant to resolv-
ing the issues 28 And since motivation is largely a question of intent, it is primarily
an issue of fact.29
Assuming arguendo or even conceding there is no direct evidence that the hotel
authorized or knew at the time the reason for Cranford's commission being revoked
by the sheriff, the circumstantial evidence is strong enough to show such authoriza-
tion as the evidentiary incidents when considered in their totality (and not in iso-
lation) show a pattern or design of conduct from which an inference may reason-
ably be drawn that the sheriff and hotel were acting in concert when Cranford's com-
mission was revoked by the sheriff which eventuated in his discharge by the hotel.
It is therefore appropriate to examine the evidence upon which this conclusion is
based.
D. Conclusions
Whether the evidence discloses that the sheriff had actual authority from the
Respondent hotel to revoke Cranford's special deputy's commission which ulti-
mately resulted in his discharge begs the issue, as such actual authority has been
proven circumstantially from the facts and circumstances detailed above which
attended Cranford's termination by the Respondent hotel. Moreover, the record in
the instant proceeding is replete with evidence which establishes that the relationship
between the sheriff and the hotel constituted an arrangement to which the law
attaches agency And the hotel is estopped to deny this relationship as logic sug-
gests that when the hotel agreed to have its guards receive security clearance from
the sheriff's office (although the law did not require it to do so), that this was an
unequivocal expression of intent to be bound by and liable for such action by the
sheriff which would result from the latter revoking a guard's special deputy's com-
mission. Furthermore, judging from appearances, it is reasonable to infer that real
authority must have been given to the sheriff by the Respondent hotel to revoke
Cranford's commission because based on the hotel's knowledge and conduct prior to
and subsequent to Cranford's special deputy's commission being revoked, as detailed
above and below, it assented or ratified the act by its silence as it would appear
silence gives consent under the circumstances here disclosed.
As stated above, although the law of Nevada does not require hotels to have its
guards deputized, the Thunderbird voluntarily agreed to have its guards issued a
deputy's commission by the sheriff. Consequently, the sheriff's revocation of Cran-
ford's commission was within the general area in which he had been authorized to act
by the hotel. Also, the hotel made it reasonably appear to its guards that the sheriff
was acting with its tacit approval and consent when the sheriff revoked Cranford's
special deputy's commission because of his union activities which resulted in the
hotel discharging Cranford when he no longer had his commission thereby render-
ing the hotel responsible for Cranford losing his job. By discharging Cranford, the
25 See footnote 22, supra.
26 See supra.
V IV L R B. v Putman Tool Company, 290 F. 2d 663, 665 (C A 6) ; N L R.B. v Link
Belt Company, 311 U.S. 584, 602, N.L.R B. v Lovvorn, d/b/a Georgia Twine & Cordage
Company, 172 F 2d 293, 294 (C.A. 5) ; NL.R.B v. L. C. Ferguson and E. F. Von Seggern
d/b/a Shovel Supply Company, 257 F 2d 88 (C.A 5) ; Kramer Bros Freight Lines, Inc,
121 NLRB 1461
Is Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A 4) ; N L R.B. v. Pied-
mont Wagon and Manufacturing Company, Company, 176 F 2d 695 (C A 4)
29 U.S. v. Minker, 312 F. 2d 632. 634 (CA. 3), cert. denied 372 U.S. 953; Schlauffer v.
Journeyman, at at, 230 F. 2d 572, 576 (CA. 3), cert. denied 352 U.S 825
THUNDERBIRD HOTEL COMPANY 1425
hotel reasonably permitted its other guards to infer when the hotel acquiesced in
and implemented the sheriff 's revocation of his commission by discharging Cranford
that they too would lose their jobs if they engaged in union activities.
Furthermore , assuming , arguendo, that there was no formal relationship of
employer and employee existing between the hotel and Cranford , which is contrary
to the finding made herein , the hotel still would be liable for the discrimination
practiced against Cranford by the sheriff . Authority for this conclusion is two of
the Board Members' holding in Northern California Chapter, The Associated Gen-
eral Contractors of America , Inc., et al, 119 NLRB 1026, where it is stated , begin-
ning at page 1030:
As the Board stated in the Austin case: 30
the statute , read literally precludes any employer from discriminating
with respect to any employee , for Section 8(a)(3) does not limit its pro-
hibitions to acts of an employer vis-a-vis his own employees.
In that case, the Board noted that other sections of the Act do limit their cov-
erage to employees of a particular employer. The statute expressly provides in
Section 2(3) and ( 9) that the "employees " embraced within its protection are
not "limited to the employees of a particular employer , unless the Act explicitly
states otherwise" and that a labor dispute can arise "regardless of whether the
disputants stand in the proximate relation of employer and employee." [Empha-
sis supplied .] Similarly Section 8 (a) (1) makes it an unfair labor practice for
"an employer" "to interfere with, restrain , or coerce employees in the exercise
of [their] rights ...... [Emphasis supplied ] Other provisions of the Act, e.g.,
Section 8(a) (5), 8 (b) (3 ), 8(b ) ( 4) (B) and 8 ( b) (4) (C), expresses a prohibition
in the explicit terms of "his employees ." Section 8 ( a)(3) contains nothing
which limits the scope of the section to employees of the employer guilty of the
discrimination....
Indeed , the Supreme Court , in the Phelps Dodge case ,31 recognized this prin-
ciple in concluding that an employer violates Section 8 ( a)(3) of the Act in
refusing employment to a prospective employee because of his union affiliation.
Thus the Court stated ( at 191 and 192) :
To circumscribe the general class "employees ," we must find authority
either in the policy of the Act or in some specific delineating provision of
it. . . . The broad definition of "employee ," unless the Act explicitly states
otherwise ... expressed the conviction of Congress that disputes may arise
regardless of whether disputants stand in the proximate relation of employer
and employee ....
We find no authority , either in the policy of the Act or in any delineating pro-
vision of it, for holding that legal responsibility for a discrimination tending to
encourage union membership is to be determined by the relationship actual or
prospective between the employers involved.
As we see it, the question of legal responsibility for such discrimination does
not, and cannot be made to, depend upon whether an employer has, by reason
of his business relationship with another employer, such "contractual control"
over the employees involved as to render them his own , for all practical pur-
poses. To us, the relevant questions are whether an employer had the power
to effectuate the removal of employees , whether he proceeded to do so, and
thus, as a result , whether he thereby caused a discrimination with respect to
their tenure of employment because of their union activities or lack thereof.
It is sufficient for a finding of a violation of Section 8(a)(3) and ( 1) that an
employer, who meets the Act's definition of an employer, has accomplished an
act [which ] results in a discrimination with respect to the "tenure of employ-
ment" of employees who meet the Act's definition of employees . It is the dis-
crimination that encourages or discourages union membership that is of primary
concern for determining the issue and not the specific relationship between the
discriminating "employer " and the discriminated against "employees." It is
sufficient that the discriminatee be a member of the working class in general
30 Austin Company, 101 NLRB 1257, 1259.
31 Phelps Dodge Corp. v. N L.R.B., 313 U.S. 177 (1941).
789-730-66-vol . 152-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the "employer" be any employer who has any intereest , direct or indi-
rect, in the conditions of employment of the discriminatee or has any control,
direct or indirect, over the terms of his employment.
As the Board said in the Carrier case • 32
The test is not whether the pressure is direct or indirect, but whether it
was intended to cause a violation of Section 8 ( a)(3) and whether it was
reasonably calculated to bring about that result.
Under classical principles an agency to act or speak on behalf of another may
arise not only by express authority openly bestowed , but by implication , circum-
stantially, by operation of law, or by failure of the principal to disavow acts or
words when the circumstances call for disavowal .33 The Act itself explicitly provides
that "In determining whether the specific acts performed were actually authorized or
subsequently ratified shall not be controlling." 34
Moreover , contrary to the Respondent hotel 's contention that it did not know why
the sheriff revoked Cranford 's commission , it is found , for the following reasons, that
the hotel was well aware when the sheriff revoked Cranford's commission that the
reason therefor was Cranford' s union activities . To resolve the issue as to whether
the Respondent hotel knew the sheriff's reasons for revoking Cranford' s special
deputy's commission , consideration must be given to circumstantial evidence as well
as what is direct. Howevei, it is well recognized that a finding of knowledge must
frequently rest on inference , since direct evidence of intentions to violate the Act is
rarely obtainable . "Courts and other triers of facts, in a multitude of cases, must
rely upon such evidence , i.e., inferences from testimony as to attitudes , acts and
deeds; where such matters as purpose, plans , designs, motives, intent or similar
matters are involved, the use of such inferences is often indispensible ." 35 Then too,
events ambiguous when viewed in isolation often become clear when considered in
relation to other events.
Furthermore , it is well established that relief should not be denied because of the
absence of direct evidence , but recourse may be had and reliance made upon circum-
stantial evidence , as well as from the context of preceeding and attendant circum-
stances, which is relevant to resolving the issues . 36 What then are the factors to be
considered in determining whether the hotel at the time it discharged Cranford
knew not only the reasons for the sheriff revoking his commission but also that such
action was contemplated by the sheriff?
First , it is not unreasonable to infer that Bellis, the hotel 's chief guard , learned at
the meeting of all the chief guards of hotels located on the "strip ," called by the
sheriff on December 10 before Cranford was discharged , that the sheriff was going
32 United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, et at (Carrier Corporation), 112 NLRB
1385, 1387.
ss Restatement (Second) Agency, sections 26-27, 34-37, 43, 82, 94 (incl reporter's
notes in appendix), 98-99, 103. "It is true of a union as of an employer that it may be
responsible for acts which it has not expressly authorized or which might not be attributa-
ble to it on strict application of the rules of respondent superior. International Associa-
tion of Machinists v. Labor Board, 311 U.S 72, 80, 61 S. Ct. 83, 85 L Ed. 50; Heinz
Co v. Labor Board, 311 U S 514, 61 S Ct 320, 85 L. Ed 309." Milk Wagon Drivers
Union v. Meadowmoor Dairies, 312 U S 287, 295. Cf. International Association of Ma-
chinists, Tool and Die Makers Lodge No 35 (Serrick Corp ) v. N.L R.B , 311 U S 72,
79-80, affg. 110 F. 2d 29, 44-45 (CA D.C) ; N.L.R B v Solo Cup Company, 237 F 2d
521, 523-524 (C A. 8) On the same principle, unions have regularly been held respon-
sible for "unauthorized" actions and words not only of rank-and-file members, but even
of outsiders and strangers, when in furtherance of union interests and in the presence of
a union official failing to disavow or disassociate the union therefrom. See: United Mine
Workers v Meadow Creek Coal Co. 263 F. 2d 52, 63 (CA. 6) , Selby-Battersby and Com-
pany v. N.L.R.B, 259 F. 2d 151, 157-158 (CA 4) , Local 5881, United Mine Workers of
America (Grundy Miring Company), 130 NLRB 1181, 1182 Such liability may even
extend to acts in pursuance of the principal's interests even though expressly forbidden by
him Restatement (Second) Agency, sections 228-230, 233-235, NL.R.B. v. United Mine
Workers of America, District 31 (Bitner Fuel Co.), 190 F. 2d 251, 252 (C.A. 4) , N.L.R.B.
v. Acme Mattress Co , Inc , 192 F 2d 524, 527 (C.A. 7).
34 Act, Section 2(13).
35 F. W Woolworth Company v N L R B, 121 F 2d 658, 660 (C A 2)
se Hartsell Mills Company v. N L R B., 111 F. 2d 291, 293 (C.A 4) , DT.L R B v Pied-
mont Wagon and Manufacturing Company, 176 F 2d 695 (CA. 4).
THUNDERBIRD HOTEL COMPANY 1427
to revoke Cranford's commission because of his union activities. Nor is it illogical
to conclude inasmuch as this meeting was called by the sheriff to discuss the Union's
organizational campaign that Crantord who was the only guard soliciting guards to
join the Union, was discussed at this meeting and that Bellis learned at that time that
the sheriff was going to revoke Cranford's commission because of his union activities.
Moreover, it not only strains but it shatters one's credulity to believe Bellis' testimony
that when Lt. Powell telephoned him the day Cranford's commission was revoked
and asked Bellis if he knew that the guards at the Thunderbird were organizing a
union and that Cranford's commission had been revoked that he (Bellis) was not
told by Powell the reason for the sheriff's action Corroborative of this conclusion, is
Bellis admitting that when Powell told him Cranford was relieved of his special
deputy's commission by the Sheriff's office for "disloyalty" and Bellis was asked at
the hearing if Powell told him the reason, he testified "I think Powell knew I knew
what he meant when he told me about Cranford and disloyalty . ... I think he
thought I knew about the Union deal." 37
Also, Bellis' denial that he knew union activity was going on at the hotel until he
was told about it on December 10 by Powell is not credited because he inconsistently
admitted he spoke about it earlier to the guards tinder his supervision. Finally,
after much verbal fencing with counsel, Belles tacitly admitted that he knew about
Cranford being involved in union activity and that he knew Smith, another Thunder-
bird guard, had his commission revoked for union activity.38 Under these circum-
stances, it is found that the sheriff's reason for terminating Cranford's commission
could not have failed to come to the attention of the hotel's officials who did not
disavow, repudiate, or otherwise disassociate themselves from the course of conduct
which the sheriff was known to have undertaken; and by the acceptance of benefits
derived from that course of conduct thereby ratifying what the sheriff had done.39
Further indication that the hotel knew at the time that Cranford's commission was
revoked the reason therefor, is the uncontradicted testimony of De Saro, a disinter-
ested witness whose testimony is credited, that "early in December" while working
as a guard at the Respondent Thunderbird Hotel, Sheriff Lamb asked him• "Do you
know anything about Cranford instigating a union out here?" 40 When De Saro was
asked by counsel for Respondent sheriff, on cross-examination, if this questioning of
him by the sheriff "could ... have been around December 7," De Saro answered:
"It might have been." This, in turn, ties in with Cranford's testimony that he saw
Bellis talking to Sheriff Lamb at the Thunderbird on December Tai
The hiring arrangement described above, entered into by both the hotel and sheriff,
whereby the hotel voluntarily agreed the sheriff should issue commissions to its guards
which was implemented by the sheriff's issuance of a special deputy's commission to
all qualified applicants for guard's positions at the Respondent hotel, coupled with the
hotel's awareness of the proscribed grounds under which the sheriff revoked Cran-
ford's commission, resulting in his discharge by the hotel, indicates recognition that
the hotel agreed the sheriff would be acting as the hotel's agent and on its behalf.
Thus, under the terms of this arrangement itself, which shows an interrelation and
dovetailing of purpose, as well as a delegation of control by the hotel to the sheriff
over a condition of employment, the revoking of a special deputies commission was
under the exclusive authority of the sheriff and when he revoked Cranford's commis-
sion , and the hotel implemented the arrangement by discharging Cranford, the hotel
thereby adopted and ratified the sheriff's action thus making the hotel liable for Cran-
ford's illegally motivated discharge. It should be noted that the hotel at no time
questioned the sheriff's reasons for revoking Cranford's commissions, which, as found
above, it knew, thereby ratifying the illegally motivated grounds for Cranford's com-
mission being revoked. Under these circumstances, it is concluded that the hotel
having placed the sheriff in the position of carrying out this illegal objective vis-a-vis,
Cranford should not be permitted to escape responsibility for the unlawful action
'"Bellis admitted he asked Powell the reason for Smith's commission being revoked at
the same time as Cranford's and that Powell told him it was because of Smith's union
activities but he incredibly equivocated, when he was asked if he knew at the time the
reason Cranford's commission was revoked by the sheriff Moreover, the hotel's rehiring
Smith when lie was absolved makes it logical to conclude that the hotel officials knew
that Smith's commission was revoked by the sheriff for his purported union activities
38 See footnote 22, supra.
90 See The Russell Manarfacturinq Co , Incorporated, et al , 82 NLRB 1081, 1130-1132
'0 At two other points in his testimony, De Saro testified consistently the same except
instead of using the word "instigating," he stated that the sheriff asked him, "Do you
know anything about Cranford staitiiu/ a union down here)" [Emphasis supplied,]
41 See supra
1428 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
taken by the sheriff, particularly when it is considered the hotel failed to take any steps
to disavow the sheriff's action. Accordingly, it is found that when the hotel estab-
lished the sheriff as its agent for this incident, if not expressly by specific delegation
of this function then impliedly, that the sheriff acted within the scope of his authority,
thereby rendering the hotel liable for his conduct 4`'
Furthermore, it is found that the Respondent hotel is responsible for Cranford's
discharge on the ground of ratification. The hotel made it clear and knowing the
reason therefor that it was in full agreement with the sheriff revoking Cranford's com-
mission when it implemented the sheriff's action by discharging Cranford. This is
shown by the hotel not disavowing the sheriff's action but ratifying it by its imple-
mentation in voluntarily firing Cranford as it could have continued Cranford in its
employ irrespective, of whether or not he held a special deputy's commission from the
sheriff, as the law of Nevada does not require a guard to be deputized.
A realistic appraisal of the motives of the Respondent sheriff and Respondent hotel
in relation to their respective objectives is a relevant consideration in determining the
responsibility of the conduct involved by the participation of the hotel in Cranford's
termination . It is undisputed that the sheriff was opposed to what he considered
union interference to his untrammeled authority to issue and revoke special deputy's
commissions while the hotel, it is reasonable to conclude, for obvious reasons, opposed
unionization of its security guards. This is evidenced by the chief guards of all the
"strip" hotels, including Bellis, expressing such opposition at the meetings called by
the sheriff on December 104.3 It is apparent that such an appraisal discloses a unity
of purpose and a community of interest, common to both the sheriff and Thunderbird
Hotel. And the final link in the chain of circumstances was the hotel sanctioning the
sheriff's revocation of Cranford's commission by firing him in a concerted effort to
attain their common objective which clearly identified the hotel with the revocation
and the subsequent implementation of such action by Cranford's discharge in the
interest of the hotel respondents.
Moreover, the hotel at no time repudiated Cranford's commission being revoked
although it knew at the time that it was due to Cranford' s union activities. And when
the hotel did nothing to oppose it, under the circumstances revealed in this proceed-
ing, it thereby sanctioned the sheriff's actions and thereby provided a pretext for
Cranford's discharge. The hotel cannot have it both ways: it invoked the name,
weight, and prestige of the sheriffs office in voluntarily requesting the sheriff to
deputize its security guards so that it cannot be heard now to complaint and disavow
the sheriff's illegally motivated revocation of Cranford's special deputy' s commission.
It is found , accordingly, that the Respondents sheriff and hotel were engaged in a
joint venture relationship in the obtaining and more specifically, in the revocation of
Cranford's commission which was implemented by termination of Cranford's security
guard job. In pursuit of the common venture, the sheriff was an agent of the hotel
thereby establishing the requisite agency relationship and rendering the latter respon-
sible for the sheriff's revocation of Cranford's commission for proscribed reasons.44
Accordingly, on the entire record, and particularly the foregoing grounds, it is found
that the sheriff, acting as the hotel's agent, discharged Cranford for proscribed
reasons, thereby making the hotel answerable for the discrimination against him 45
E. The alleged violations of Section 8(a)(1)
The complaint alleges that Respondent Sheriff Lamb, Lieutenant Hiram Powell,
and Thomas R. Bellis, chief guard at the Respondent Thunderbird Hotel, coercively
interrogated employees concerning their union activities, membership, and sympa-
thies. The evidence reveals that in December 1962 Powell questioned Cranford
about a union meeting he had attended, his union activities, and who had attended the
42 Owens-Corning Fiberglas Corporation, 146 NLRB 1492, which held a corporate re-
spondent chargeable with its agent's knowledge.
43 See supra
44 See The Russell Manufacturing Co., Incorporated, et W, 82 NLRB 1081; Southland
Manufacturing Company, 94 NLRB 813
45 See Babcock & Wilcox Company, 108 NLRB 1622, where the employer had requested
the local chief of police to interview and check the moral character of prospective em-
ployees. In performing this function, the police chief took it upon himself to warn
applicants against union membership and to ask them to report to him if their membership
was solicited. In attributing this conduct to the corporate employer, the Board held
that it was so closely related to the authorized conduct of the chief of police that it
could not be regarded as outside his apparent authority. See also Armco Drainage d
Metal Products, Inc., et at., 106 NLRB 725, 748-749.
THUNDERBIRD HOTEL COMPANY 1429
meeting.46 Powell also acknowledged that in December 1962 he questioned Gene
Smith, a guard at the Thunderbird, as to whether he had a part in organizing a
guards' union and if he had attended a union meeting. De Saro, while acting as a
security guard at the Thunderbird Hotel, was asked by Sheriff Lamb in December
1962, if he knew anything about Cranford, the alleged discriminatee, organizing a
union at the Thunderbird 4i Contrary to Bellis' denial, the record evidence reveals
and it is so found that Belles, on or about December 10, 1962, asked some of the
Thunderbird guards under his supervision what they knew about union activity at
the hotel.
Respondent sheriff, however, contends there was no interrogation of employees
within the meaning of Section 8(a)(1), as such questioning was not accompanied by
threats and was, in fact, a legitimate inquiry by the sheriff concerning his subordinates,
because they are required, as law enforcement officers, to disclose fully to the sheriff
any and all activities on their part.
These are not valid defenses. To begin with, the sheriff is not the "employer" of
the security guards. Moreover, the test to determine if there has been a violation of
Section 8(a)(1) 48 is not the intent or motive of the one doing the questioning but
whether the conduct is reasonably calculated, or tends to, interfere with the free
exercise of the rights guaranteed employees by the Act 49 An overall perspective of
the factual situation (including Cranford's unlawful discharge) discloses the inter-
rogation was conducted under such circumstances and in such a manner as restrained,
interfered with, or coerced employees in the exercise of their rights and is a violation
of the Act within the meaning of Section 8(a) (1). Furthermore, it was not a part of
the official duties of the sheriff to interfere with the concerted activities of the guards
on behalf of the Union in the exercise of their rights to self-organization as guaranteed
by Section 7 of the Act. It is so found.50
The excellent briefs of the Respondents and the authorities cited therein have been
fully considered. However, I find no occasion for lengthening this Decision by citing,
distinguishing, or discussing them, as it is believed that the controlling reasons for
this Decision have been sufficiently discussed. Moreover, Respondents' counsels'
contentions are based on an interpretation of the facts which are not shared by me.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of Respondents described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the corporate and partnership Respondents and the Respondent
sheriff have engaged in unfair labor practices, it will be recommended that each of
said Respondents be required to cease and desist from such unfair labor practices
and take such affirmative action as appears necessary to effectuate the policies of the
Act. In view of the finding that said Respondents not only engaged in several acts of
interference, restraint, and coercion to defeat the statutory rights of the guards to
achieve self-organization, but also discriminatorily discharged employee Thomas
Cranford because of his union activity, it shall be recommended that a broad cease-
46 See supra.
47 See supra.
+s The pertinent provisions of the National Labor Relations Act, as amended (61 Stat.
136, 29 U.S.C. 151, et seq. ) are as follows:
Sec. 8 (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ;
Sec. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized In section 8(a) (3).
'N.L.R.B. V. Illinois Tool Works, 153 F. 2d 811, 814 (C.A. 7). See also N.L.R.B. v.
Popeil Brothers, Inc., 216 F. 2d 66, 68 (C.A. 7).
50 Blue Flash Express, Inc., 109 NLRB 591.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and-desist order issue against any interference with, coercion, or restraint of employees
in the exercise of their protected activities because of the Respondent's underlying
attitude of opposition to the objectives of the Act. It shall be recommended that
Respondent Thunderbird Hotel, Inc., and Joe Wells, James Schuyler and William Deer,
Co-partners, d/b/a Thunderbird Hotel Company, offer Thomas B. Cranford immedi-
ate and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and make him whole for any
loss of pay he suffered by reason of the discrimination against him, as provided in
F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum,
as provided in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondents corporation and partnership are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and Independent Guards Association of
Nevada, Local No. 1, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interrogating employees with respect to union activity, Respondents hotel,
partnership, and Ralph Lamb, sheriff, Clark County, Nevada, engaged in conduct that
interferes with, coerces, and restrains employees in the exercise of rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
3. By discharging employee Thomas B. Cranford and failing to reinstate him
because of his union activity, Respondents hotel and partnership discriminated against
employees in regard to hire or tenure of employment and terms or conditions of
employment, to discourage membership in the above Union, or in any labor organiza-
tion, and the selection of the above Union or any labor organization as collective-
bargaining representative, in violation of Section 8(a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and pursuant to Section
10(c) of the Act, as amended, I hereby recommend that the Respondent:
A. Thunderbird Hotel, Inc.; Joe Wells, James Schuyler and William Deer, Co-
partners, d/b/a Thunderbird Hotel Company, and their officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in independent Guards Association of Nevada, Local
No. 1, or any other labor organization of their employees, by discriminatorily dis-
charging, demoting, or refusing to reinstate any of their employees, by discriminatorily
refusing to hire applicants for employment, or in any other manner by discriminating
against them in regard to their hire or tenure of employment or any term or condition
,of employment.
(b) Interrogating or questioning employees or prospective employees with respect
to union activity, sympathies, or other concerted activity in a manner constituting
interference with, coercion, or restraint of employees in violation of Section 8(a)(1)
of the Act.
(c) In any other manner interfering with, restraining, or coercing employees in the
exercise of their rights to self-organization, to join or assist the Union herein, or any
other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Thomas B. Cranford immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against him, together with interest
at the rate of 6 percent per annum, in the manner set forth in the section herein
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay and interest under the terms of this Recommended
Order.
THUNDERBIRD HOTEL COMPANY 1431
(c) Post at its place of business in Winchester , Nevada, copies of the attached
notice marked "Appendix A." 51 Copies of said notice , to be furnished by the Regional
Director for Region 20, shall , after being duly signed by the Respondents ' representa-
tive, be posted by the Respondents hotel and partnership immediately upon receipt
thereof, and be maintained by them for a period of 60 consecutive days thereafter, in
conspicuous places , including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure that said notice
is not altered , defaced, or covered by any other material.
(d) Notify the said Regional Director , in writing , within 20 days from the receipt
of this Trial Examiner 's Decision and Recommended Order, what steps Respondents
have taken to comply with the foregoing Recommended Order.52
It is further recommended that unless on or before 20 days from the date of the
receipt of this Trial Examiner 's Decision and Recommended Order, the Respondents
notify the said Regional Director , in writing , that they will comply with the foregoing
Recommended Order, the National Labor Relations Board issue an order requiring the
Respondents to take the aforesaid action
B. Ralph Lamb , in his capacity as sheriff of Clark County , Nevada, or any law
enforcement officer under his command, acting directly or indirectly , as agents of the
corporate and partnership Respondents, shall
1. Cease and desist from:
(a) Interfering with, restraining , or coercing employees of the Thunderbird Hotel
or employees of any other hotel or gambling casino located in Clark County , Nevada,
by coercively interrogating or questioning employees or prospective employees con-
cerning their union membership , activities , and sympathies.
(b) In any other manner interfering with, restraining , or coercing employees in the
exercise of their right to self-organization , to form labor organizations , to join or
assist the Union herein , or any other labor organization , to bargain collectively through
agents of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid and protection as guaranteed in Section 7
of the Act , or to refrain from any or all of such activities.
2. Take the following affirmative action in his capacity as sheriff of Clark County,
Nevada:
(a) Post in the sheriff 's offices in Clark County , Nevada, copies of the attached
notice marked "Appendix B." 53 In addition , copies of the said notice , shall be fur-
nished by the Regional Director of Region 20, as agent of the Board , after being duly
signed by Sheriff Lamb , shall be submitted to the corporate and partnership Respond-
ents for posting immediately upon receipt thereof, such posting to be maintained for
60 consecutive days thereafter , in conspicuous places, including all places where
notices to its hotel and gambling casino employeees are customarily posted. Reason-
able steps shall be taken by the corporate and partnership Respondents to insure that
said notices are not altered , defaced , or covered by any other material.54
(b) File with the said Regional Director within 20 days, in writing , from receipt
of this Trial Examiner's Decision , what action said Ralph Lamb, in his capacity as
sheriff, has taken to comply with the foregoing Recommended Order.
ci If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Tual Examiner"
in the notice In the further event that the Board ' s Order be enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order"
52 In the event that this Recommended Order is adopted by the Board , paragraph 2(d)
thereof shall be modified to read "Notify said Regional Director, in writing , within
10 days from the date of this Order , what steps Respondent has taken to comply therewith."
ca See footnote 51, supra.
'"As to whether the facts establish that Appendix B should be published by the sheriff
in a local newspaper is a policy matter more properly to be decided initially by the Board
itself. See the Russell Manufactui ing Co , Incoi poi ated , et al , 82 NLRB 1081, 1088.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that
WE WILL NOT discourage membership in Independent Guards Association of
Nevada, Local No. 1, or any other labor organization of our employees , by dis-
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging employees, or refusing to reinstate them, or in any other manner
discriminating against them in regard to their hire or tenure of employment, or
any term or condition of employment because they are members of or support a
union.
WE WILL NOT question employees or prospective employees with respect to
their union activity, sympathies, or other concerted activity, in a manner con-
stituting interference with, coercion, or restraint of employees in violation of
Section 8(a)(1) of the National Labor Relations Act, as amended.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to join or assist the
above-named Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the National Labor Relations Act, as amended.
WE WILL offer Thomas B. Cranford immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and give him whatever backpay he lost as a result of
our having discharged him.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of Independent Guards Association of Nevada, Local No. 1, or
any other labor organization of their own choosing.
THUNDERBIRD HOTEL COMPANY, A PARTNERSHIP,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
THUNDERBIRD HOTEL INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830 Market
Street, San Francisco, California, Telephone No. 556-1568, if they have any ques-
tions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL GUARDS EMPLOYED BY HOTELS AND
GAMBLING CASINOS IN CLARK COUNTY, NEVADA
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, I hereby notify all security guards employed by hotels and
gambling casinos in Clark County, Nevada, that:
I, nor any employee of the sheriff's office, will not question security guards
employed by hotels and gambling casinos located in Clark County, Nevada, or
applicants for such jobs with respect to union activity, sympathies, or other con-
certed activity, in a manner constituting interference with, coercion, or restraint
of employees in violation of Section 8(a)(1) of the National Labor Relations
Act, as amended.
I, nor any employee of the sheriff's office, will not in any other manner inter-
fere with, restrain, or coerce employees in the exercise of their rights to self-
organization , to join or assist the Independent Guards Association of Nevada,
Local No. 1, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities,
for the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the National Labor Relations Act, as amended.
RALPH LAMB,
Sheriff, Clark County, Nevada.
Dated------------------- By-------------------------------------------
(Representative) (Title)
AL ORTALE RAMBLER 1433
Interested parties may communicate directly with the Board's Regional Office,
830 Market Street, San Francisco, California, Telephone No. 556-1568, if they have
any questions concerning this notice or compliance with its provisions.
Dwight-Eubank Rambler, Inc., d/b/a Al Ortale Rambler and In-
ternational Association of Machinists (AFL-CIO). Case No.
21-CA-5654. June 11, 1965
DECISION AND ORDER
On January 26, 1965, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
an answering brief to the Respondent's exceptions together with cross-
exceptions to the Trial Examiner's Decision and a supporting brief for
the cross-exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing. Respondent excepts to the Trial Examiner's failure to
grant its motion to strike the testimony of witnesses Paradis, Friesner,
Shepherd, Reynolds, Sloan, Buell, and Edwards because their original
pretrial affidavits were not produced for Respondent's inspection upon
the completion of their direct examination by the General Counsel.
The record reflects that the original affidavits had been in a Board file
which was lost in transit to Washington, D.C., prior to issuance of the
complaint. When Respondent demanded the affidavits of Paradis,
Friesner, Shepherd, Reynolds, Sloan and Buell, the General Counsel
produced what he represented to be carbon copies of those affidavits,
explaining that the originals were part of the lost files and therefore
unavailable. As to a second affidavit of Buell and an affidavit of
Edwards taken on November 22, 1963, for which no copies were avail-
able, the General Counsel produced original affidavits taken on
March 10 and 13,1964, respectively.
Respondent contends that, as it was deprived of its right to review
the originals of the affidavits for purposes of cross-examination, it was
denied due process, relying upon Harvey Aluminum (Ine.), General
Engineering, Inc., and Wallace A. Unmiel, d/b/a Wallace Detective
152 NLRB No. 142.