Westward Ho Hotel

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1199 (N.L.R.B. 1980)

WESTW'ARD 1-10 HOTEL 1199
F & D Enterprises, Inc., d/b/a Westward Ho Hotel
and Michael W. Romano. Case 31-CA-844
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 31, 1980, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a brief in opposition to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings," and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted tt, 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Produc. Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings
z In adopting the Administrative Law Judge's Decision, we find that
Prestige was, at most, a special rather than a general agent and that Re-
spondent therefore is not liable for Prestige's unauthorized refusal to refer
Romano because of his union membership. Accordingly, we find it un-
necessary to pass on Respondent's alternative contention that no agency
relationship existed between it and Prestige at all.
DECISION
BURTON LITVACK, Administrative Law Judge: This
matter was heard before me in Las Vegas, Nevada, on
August 28 and 29, and October 25, 1979. On May 22,
1979, the Regional Director for Region 31 of the Nation-
al Labor Relations Board, herein called the Board, issued
a complaint, pursuant to a charge filed by Michael W.
Romano on October 16, 1 9 7 8 .1 The complaint alleges, in
substance, that F & D Enterprises, Inc., d/b/a Westward
Ho Hotel, 2 herein called Respondent, acting through its
I Unless otherwise stated, all dates herein are in 1978.
2 The name of Respondent was amended at the hearing.
251 NLRB No. 160
agents, Prestige Limited Personnel Services, herein
called Prestige, and Flo Jacqua, manager of Prestige,
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, herein called the Act, by re-
fusing to refer Romano to Respondent for work as a la-
borer and Section 8(a)(1) of the Act by compelling
Romano to fill out an application which required him to
disclose his union membership, by interrogating Romano
as to his union membership, and by informing Romano
that he could not be referred to Respondent because he
was a union member. Respondent filed an answer, deny-
ing the commission of any unfair labor practices. All par-
ties were afforded full opportunity to appear, to intro-
duce evidence, and to examine and cross-examine wit-
nesses. Extensive briefs were filed by counsel for the
General Counsel and by Respondent, and said briefs
have been carefully considered.
Based upon my examination of the entire record in this
case, upon the briefs filed on behalf of the parties, and
upon my observation of the demeanor of the witnesses, I
make the following:
STATEMENT OF THE CASIE
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation duly organized under, and
existing by virtue of, the laws of the State of Nevada and
has a principal place of business located in Las Vegas,
Nevada, where it is engaged in motel and gaming oper-
ations. Respondent, in the normal course and conduct of
its business operations, annually derives gross revenues in
excess of $500,000 and annually purchases and receives
goods or services valued in excess of $50,000 directly
from suppliers located outside the State of Nevada. Re-
spondent admits, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
1. LABOR ORGANIZATION
At the hearing, the parties stipulated, and I find, that
Laborers Local 872, Laborers International Union of
North America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
Ill. ISSUES
1. Whether, under the circumstances of this case, Re-
spondent may be held liable for the conduct of Prestige
and its manager, Jacqua?
2. Whether Prestige and its manager, Jacqua, on or
about September 25, refused to refer Romano to Re-
spondent because of his union membership?
3. Whether Respondent, acting through its agents
Prestige and Jacqua, violated Section 8(a)(1) and (3) of
the Act by failing and refusing to refer Romano for a la-
borer position with Respondent because of his union
membership?
4. Whether Respondent, acting through its agents
Prestige and Jacqua, violated Section 8(a)(1) of the Act
F & D Enterprises, Inc., d/h/a Westward Ho Hotel
W E S T W A R D ~~~ .f H O E 1
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by interrogating individuals regarding their union mem-
bership?
IV. THE AI.LEGED UNFAIR LABOR PRACTICES
A. The Agency Status of Prestige
1. The employment practices of Respondent
The record discloses that Respondent operates a motel
and gaming casino in Las Vegas, Nevada, and employs
approximately 500 individuals in all the standard hotel
and casino job classifications. At all times relevant
herein, Hans Dorweiler was the vice president and gen-
eral manager of Respondent, and Shirley Albury was the
director of personnel and responsible for the day-to-day
operations of Respondent's personnel department.3 The
record further discloses that Respondent has no current
collective-bargaining agreements with any labor organi-
zations and that, according to Dorweiler, Respondent
would prefer a "relationship with our employees that
does not require union representation . . . ."
Regarding the filling of job vacancies, Dorweiler, who
is responsible for the daily operations of the motel, testi-
fied that whenever employees are needed, department
heads send job requisitions to the personnel department,
which is responsible for obtaining qualified individuals to
fill the vacancies. Dorweiler further testified that when
job requisitions are received by the personnel depart-
ment, job openings are first published within the motel.
If a vacancy is not filled internally, applicants are sought
from outside the motel. These applicants are obtained
from files which are maintained in the personnel depart-
ment, from advertising in local newspapers, and from uti-
lization of outside personnel services. As to which
method of obtaining the names of applicants is preferred,
Dorweiler testified that "there is [no priority] that is set
by the Company." When applicants for available posi-
tions present themselves to the personnel department,
they fill out an application form and are interviewed by
the personnel department. If qualified, the applicant is
then interviewed by a department head, who makes the
ultimate decision whether or not to hire the individual.
Shirley Albury was responsible for the operations of
Respondent's personnel department. Her assistants were
Diana Thompson and Christine Maria Chasey. Accord-
ing to Albury, Respondent obtained outside applicants
by advertising in local newspapers and by utilizing out-
side employment agencies, government agencies, and
handicap programs. Albury testified that on an annual
basis, only approximately 5 percent of the available job
openings were filled by applicants who were referred
from outside employment agencies. These outside em-
ployment agencies were used mainly for the referral of
applicants for menial jobs, including that of laborer,
which positions involved constant turnover and which
paid low wages; for Respondent found that the outside
agencies could refer individuals quickly for these jobs.
According to Albury, Respondentutilized four personnel
3 The parties stipulated that Dorweiler and Albury were supervisors
within the meaning of the Act.
services-Prestige, United, Active, and Eastridge-on a
regular and an equal basis. 4
The record reveals that if outside agencies were to be
used, the job opening would usually be referred to two
or three of the aforementioned agencies. For the posi-
tions which were called frequently, Albury or her assis-
tants would not have to describe the duties and require-
ments; however, for infrequently called jobs, Albury or
her two assistants would describe to the personnel
agency the salary and raise potential for the job, a de-
scription of the duties, the days off and other benefits of
the job, and any specific qualifications necessary. Within
each agency, Respondent had certain "exclusive" people
with whom it dealt. According to Albury, over the years
Respondent used the individual within each agency who
"through a mutual trust . . . would find and refer and
screen the best possible applicant for me to choose
from." Utilizing these "exclusive" individuals was impor-
tant for Respondent, for it eliminated wasteful calls.
Within Prestige, Respondent utilized Flo Jacqua as its
"exclusive" contact inasmuch as Jacqua screened the in-
dividuals Respondent "did not want to see" and knew
the "caliber of employee" Respondent wanted. With
regard to how Jacqua or any other "exclusive" contact
screened applicants for Respondent, Albury testified that
she had no idea how such was done and that she had no
input into the referral procedure.
Albury expressed a rather cavalier attitude toward
these outside employment agencies. Thus, she professed
that Respondent had no time to call each outside agency
to stop referring applicants if a job was already filled.
According to Albury, the employment agency would
learn that a job was filled only when it called with po-
tential applicants. Furthermore, no priority was given to
any one agency in interviewing applicants for jobs. Re-
spondent's priority for interviewing was "whoever came
in the door first." Finally, Albury would, only as a
"courtesy," call an outside agency and inform it that an
applicant, who was referred by that agency, had been
hired for a job.
While Dorweiler candidly admitted that Respondent
would prefer not to have any labor organizations repre-
senting its employees, he testified that the motel does
hire union members and that union members are treated
no differently than other employees. There is no evi-
dence that Respondent maintains any records which
reveal the union membership of its employees; however,
Dorweiler testified that he is aware that Respondent em-
ploys many union members. He based this conclusion on
two factors. First, motel employees have personally in-
formed him of their union membership. Secondly, the
hotel and gaming industry in Las Vegas, Nevada, is, to a
great degree, unionized; Respondent employs employees
in the same job classifications as the union hotels; Re-
spondent hires in these classifications continually; there
has traditionally been a heavy turnover in the union rep-
resented classifications; and, according to Dorweiler,
4 While no employment figures swere available for earlier in 1978. the
record discloses that Respondent hired approximately 274 individuals
from September through the end of the year Of these, only three refer-
rals from Prestige were hired by Respondent.
WESTWARD HO HOTEL 1201
anyone in the hotel and gaming industry for at least 5
years probably worked at a union represented establish-
ment.
Shirley Albury testified that she was not aware of any
Respondent policy against the hiring of union members
and that she never instructed her assistants not to hire
union members or to inform employment agencies not to
refer union personnel. Furthermore, according to
Albury, she was personally aware that Respondent hired
numerous employees who formerly worked in union-rep-
resented hotels and in job classifications which were rep-
resented by labor organizations. Albury testified that she
based these conclusions upon the applicants' job applica-
tions which listed their former wages and former places
of employment. Thus, according to Albury, she never
had to inquire into applicants' union membership; rather,
according to Albury, it was common for applicants to
volunteer such information. Albury's assistant, Diana
Thompson, testified that she never received instructions
not to hire union members, that she never told employ-
ment agencies not to refer union members and that,
based upon applicants' former places of employment and
wages, she knew that Respondent did, in fact, hire union
members. 5
2. The operations and referral procedures of
Prestige
The record establishes that Flo Jacqua was, along with
her parents, a co-owner of Prestige and that she served
as its manager and secretary-treasurer. The record fur-
ther establishes that the business of Prestige is to place
individuals in positions of employment with other com-
panies. For this service, Prestige was paid a fee by the
individuals who eventually gain employment with these
other companies. Prestige received no monetary or other
compensation from these employers; rather, payment was
pursuant to a contract between Prestige and the individu-
al applicant. During normal operations, Prestige em-
ployed approximately 6 to 10 employment counselors
who were responsible for referring applicants to availa-
ble jobs. fhese counselors were hired by Jacqua and
paid $100 per week and a 25-percent commission for each
job placement. The commission was paid after the appli-
cant's fee was received by Prestige. Jacqua was paid on
a salary basis, which was paid out of company income
which, in turn, was derived solely from applicant fees.
According to Jacqua, the object of Prestige was to "sell
(the applicants] in the door."
The record discloses that there were two methods of
operation for Prestige. Under the first, an individual
would arrive at Prestige's office seeking employment in
the Las Vegas area. The applicant would first fill out an
application form which inquired into the applicant's per-
sonal and employment history, including his union mem-
5 The record discloses that in January 1978, Respondent hired Janic
Lou Perry as a cashier. Perry was referred to Respondent by Prestige.
Analysis of the application form, which Perry filled out for Respondent
reveals that on the reverse side of the form appears the word "union" in
print. Further, the printing does not appear to be that of Perry but rather
apparently that of the individual who interviewed Perry Despite this,
Perry was hired by Respondent.
bership 6 and then be interviewed by one of the counsel-
ors. During this interview, the employment counselor
would ask questions, pertaining to the questionnaire, spe-
cifically inquire into the individual's union membership if
that information was not included in the questionnaire,
review the individual's past employment record with
concentration on his past wage level, and his job prefer-
ences, and reach an understanding with the individual as
to what jobs the counselor would try to locate for him.
After the interview, the counselor would telephone var-
ious employers, attempting to place the applicant with
said employer.
Under Prestige's second method of operation, outside
employers would telephone Prestige with job orders for
specific, available positions. Under this procedure, an
employer would telephone the office with a particular
job and the qualifications for that job. For recording this
information, Prestige utilized small, pink job order forms,
which were filled out by the counselor who took the job
order. Because of the size of the forms, counselors would
often resort to shorthand or put the job qualifications in
their own words. Further, according to Jacqua, it was
"up to my discretion or the counselor's discretion" as to
what may be on an order form as to the type of individ-
ual to send. Several of these forms are in the record.
They contain small spaces for specific types of informa-
tion and larger spaces titled "requirements" and "com-
ments." Jacqua testified that under "requirements" the
counselor would write down what information was
given to her by the employer; however, the information
may not be "specifically asked for by the employer" and
could be in the writer's own words. Jacqua explained
that this space was filled out "as [the counselor] saw fit"
and that which appeared in that space was "not what the
employer tells you. He never knows what you write on
there. He hopes that you write down at least the skills
that are required, but the employer never sees those."
The "comments" space, according to Jacqua, was usually
a continuation of the prior section with no formal differ-
entiation. Jacqua testified that the "counselor could write
down even what she felt about the attitude of the em-
ployer, if what she felt would fit in about that employ-
er's office." Regarding these forms, Jacqua testified that
the employers "never saw these job orders."
At the time the employer initially called in the job
order, he was told that Prestige would advertise the job.
Normally, according to Jacqua, she advertised "any type
of jobs or openings I had" twice a week in the "Las
Vegas Review Journal." These advertisements corre-
6 Regarding the purpose for the union membership blank on the appli-
cation form, Jacqua's testimony was rather confusing Thus, she first tes-
tified that its purpose was to enable the counselor to "place that person at
the level or very near the lexel that he was used to being at before, so he
would be happy " Later, Jacqua testified that her counselors referred to
the application form in order to inform potential employers about an ap-
plicant's "skills and stability; how long they's been in town.. " Then.
when asked again about the purpose of the union membership question,
Jacqua replied. "Because . a lot of time when you are a union
member, they won't go into a nonunion house . They can get severe
fines." Finally, when once again asked for the purpose of the question,
Jacqua replied that the information was "vital only as to how much
money I make or any company makes because if they don't
stay, I don't get the fee"
WESTWARD HO HOTEL
1202 DECISIONS OF NATIONAl. LABOR RELATIONS 3BOARD
sponded to the job openings and job descriptions which
were submitted by the employers. Also, the advertise-
ments usually encompassed more job orders than one. In
this regard, according to Jacqua, she would only adver-
tise a single job for one employer if such was "a super.
good job." There is no evidence that Jacqua ever dis-
cussed the specifics of these advertisements with any em-
ployer; rather, employers were just notified at the time
the order was placed that advertisements would be
placed for said positions.
For available positions, Prestige would refer appli-
cants, whose names were already in Prestige's file or
who appeared in response to Prestige's advertisements.
Counselors would telephone the requesting employer and
notify it that applicants were available. Jacqua testified
that not all applicants were, in fact, referred, stating, "I
said if they were qualified, they would be referred."
Jacqua explained that she would not refer individuals to
available positions if she did not believe the individual
would stay on the job or take a lower salary. According
to Jacqua, if an applicant doesn't take a job or leaves a
job "then my counselor has wasted her time and the em-
ployer's time, my money, her money, because they are
not going to make any money on it." Accordingly,
Jacqua "used [her] own judgment" many times in decid-
ing whether or not to refer an applicant.
After an applicant was referred to a requesting em-
ployer, Prestige normally discovered whether he had
been hired only by telephoning that employer and
asking. Each employer reached its own decision as to
hiring an individual referred by Prestige, with no input
from Prestige. According to Jacqua, her main problem
was that employers filled as many positions off the
streets as they did through her office. Furthermore, if
job orders were filled by other means, there was no re-
quirement that an employer notify Prestige of that fact.
Often, according to Jacqua, Prestige would learn that
jobs were already filled only when counselors, who were
calling with potential referrals, were told the openings
no longer existed.
The record establishes that Prestige referred applicants
to approximately 500 employers, including Respondent,
in the Las Vegas, Nevada, area. According to Jacqua,
Prestige worked with many other employers in the hotel
and gaming industry and referrals to Respondent were
not any more revenue producing than those to other em-
ployers in the industry. Further, in terms of income, re-
ferrals to Respondent constituted only a small percentage
of Prestige's total income. Moreover, other than as an
employer to which Prestige referred applicants, there is
no record evidence of any relationship between Re-
spondent and Prestige. Thus, no person connected with
Prestige held any financial, managerial, or supervisorial
interest in Respondent. Likewise, no individual connect-
ed with Respondent held any financial, managerial, or
supervisorial interest in Prestige. There were no common
employees, and Respondent placed the same orders with
Prestige as it does with other employment services in the
Las Vegas, Nevada, area. As discussed above, Jacqua
was Respondent's "exclusive" contact at Prestige.7 Final-
ly, the interviewing procedures used by Prestige were
not reviewable by Respondent and had nothing to do
with Respondent's own interviewing procedures. For in-
stance, both required individuals to fill out application
forms which were not related but often sought the iden-
tical information.
Corroborating the testimony of Respondent's witnesses
Dorweiler, Albury, and Thompson, Jacqua specifically
denied that any representative of Respondent ever au-
thorized or gave her instructions not to refer union mem-
bers for positions of employment at the motel. Further-
more, Jacqua insisted that with Respondent as with any
other employer, an individiual's union affiliation was not
a determining-or even an important-factor in her ulti-
mate decision whether to refer said individual. Rather,
"the bottom of the application would have been my in-
fluence . . . where they have put their salaries and past
jobs, and what they had been used to making." Attempt-
ing to cast doubt upon the veracity of Jacqua's testimo-
ny, counsel for the General Counsel offered into evi-
dence a series of Prestige job order forms which were
identified by Jacqua as constituting telephonic job orders
from Respondent in her handwriting. Thus, General
Counsel's Exhibit 8 is a job order from Respondent dated
June 26, 1978. It contains the comment, "never a union
member." General Counsel's Exhibit II is another job
order from Respondent, containing a notation "non-
union." General Counsel's Exhibit 13 is a job order from
Respondent dated March 28, 1978, and it contains the
notation "never in union." Finally, General Counsel's
Exhibit 14, dated June 22, 1978, is another job order
from Respondent, and it contains the notation "no union
members."
While admitting that these job orders are in her hand-
writing, Jacqua maintained that Respondent never in-
structed her not to refer union members. Rather, she in-
sisted that the comments regarding union membership
were made on her own initiative "because . . . union
wages are so much higher than a nonunion house that
the parties sent out there are not going to be happy with
that, and they sort of take it until they can get something
else. When they do that, my counselor makes no money,
nor does my office. Secondly, there was always the pos-
sibility that they would get . . . into trouble . . . by
working in a nonunion house. So it was for the informa-
tion of my counselors." Elaborating on this last point,
Jacqua testified that she meant the union membership
comments as reminders "just to keep my counselors up-
make sure that they watched . . . the scale the people
' To Jacqua, the term "exclusive" refers to the "one specific counsel-
or" in an employment agency who receives calls from a particular em-
ployer or who telephones that particular employer with applicants for an
available position. Further, as was the case of Jacqua and Respondent,
the exclusive counselor in each employment agency is selected by the
employer and not by the employment agency Finally. while the counsel-
ors at Prestige were instructed to honor the exclusive relationship be-
tween a particular counselor and a particular employer, they also under-
stood that such was merely a courtesy to that employer Thus, Jacqua
testified that the exclusive counselor was required to submit to all other
counselors any job orders called by the employer, and although the ex-
clusive counselor would make the referral to the employer, the commis-
sion went to the coualselor whose applicant obtained the position.
-- - -- ----- ___ -- - -
WESTWARD H HOTEL 1203
had been used to making." This practice was necessary
to Jacqua "because my counselors weren't being obser-
vant.... It was losing me money from my ... office
to the point where we went bankrupt." Additionally.
while the aforementioned job order forms contained ref-
erences to union membership, the record is replete with
numerous other job orders by Respondent which con-
tained no reference at all to union membership. Jacqua
explained that her practice regarding the aforementioned
notations, extended to any employer with which she
dealt and which was nonunion. The bottom line, accord-
ing to Jacqua, was money. She did not believe that union
members would work at or remain working at a non-
union house, and "if they did not stay on the job, I got
no money." However, while denying receiving instruc-
tions in this regard from Respondent, Jacqua admitted
the following in her pretrial affidavit: "I have told
Albury that I had applicants who, in my judgment,
would not want a referral because they had formerly re-
ceived a . . . union wage, and for that reason would not
remain at any job at [Respondent] which paid less. On
those occasions Albury said 'okay."'
Renee Gonzales, who worked as an employment coun-
selor for Prestige from February 1978 until October
1978, testified that besides these occasional written com-
ments regarding the referral of union members to Re-
spondent, Jacqua continually orally emphasized a non-
union referral policy. According to Gonzales, on at least
10 occasions in individual and group discussions.
"[Jacqua] told me that if [applicants] belonged to a union
or ever had, that they would not be hired by [Respond-
ent]; that she would not send them. In addition, Gonzales
testified that Jacqua once told her "that Westward Ho
did not hire people that belonged to unions or ever had."
These comments, according to Gonzales, were always in
the aforementioned form, had nothing to do with the
salary of the applicant, nor were the comments remind-
ers to Gonzales to check on the salary of the applicant.
Gonzales understood Jacqua's comments as constituting
office policy and testified that she was instructed by
Jacqua to inform union members, who applied for posi-
tions at Respondent, that the jobs were already filled. On
cross-examination, Gonzales admitted that Jacqua's
instructions did not always refer to Respondent but
rather Jacqua "was referring to whatever job we had or
talking about at the time." Further, Gonzales admitted
that Jacqua mentioned to the counselors not to refer
higher paid people to lower paid jobs because said indi-
viduals would not remain and the counselors would
therefore receive no commission. Finally, Gonzales ad-
mitted that Jacqua usually made her comments in the fol-
lowing context: "If they are a union member, don't even
bother to send them to nonunion houses such as West-
ward Ho . . . because they are not going to stay, and
when they don't stay, you don't make any money. When
you don't make any money, I don't make any money."
Finally, Gonzales admitted that Jacqua never gave a
source for her assertions regarding Respondent's hiring
policy.
Jacqua did not deny giving oral instructions to her
counselors regarding the referral of union members.
However, she placed the comments in an entirely differ-
ent context. According to Jacqua, she told her counsel-
ors, "If you want to make money, do not send a client
that has been used to making $10, $12 an hour to a posi-
tion that is going to pay $3.50 an hour because if you do,
you are not going to make money off of them. Also . . .
if they have worked union, they would be in trouble if
they went to a nonunion house." Jacqua maintained that
her office policy was to place a person in as close a fi-
nancial level as he had been used to; therefore. she
would "advise" her counselors not to send union people
to a nonunion house. Jacqua maintained that the deter-
mining factor was economics; that she always tries to
match compatible wage rates; and that if there existed a
disparity between what an individual earned at a union
house and what a nonunion house paid "I did not send
them . . . because I was there to make money....
Donna Hannan, who was the assistant manager at Pres-
tige during 1978, corroborated Jacqua, testifying that the
latter always instructed the counselors not to refer appli-
cants to lower paying jobs and that Jacqua constantly re-
minded the counselors that inasmuch as union members
would not remain on a nonunion job, the counselors
would never collect a commission for such referrals.
Regarding the referral of union members to Respond-
ent, I am convinced that the record is more supportive
of the testimony of Gonzales than that of Jacqua. Ac-
cordingly, I credit the testimony of Gonzales in this
regard." While Jacqua asserted that union membership
was not a determining factor in her decisions to refer in-
dividuals to Respondent for job openings, I believe she
was not being candid on this point. Thus, I place great
emphasis upon the wording of Respondent job order
forms in the record as General Counsel's Exhibits 8, 11,
13, and 14: "no union members," "never in union," "non-
union," and "never a union member." What strikes me as
significant about Jacqua's admitted terminology is the in-
ordinately strong and emphatic language which she
used-language utterly inconsistent with her contention
that these notations constituted mere "reminders" to her
counselors. Moreover, I note that Jacqua placed great
emphasis upon having her counselors inquire into the
possible union affiliation of all applicants-a matter
which apparently was of no concern to her competitors.
These factors suggest to me that Jacqua's words accu-
rately and succinctly reflect her policy and that of Pres-
tige-not to refer union members to Respondent. Fur-
thermore, the emphatic nature of the aforementioned job
orders, I believe, supports the testimony of Gonzales that
on several occasions Jacqua orally informed and instruct-
ed her counselors that if applicants "belong to a union or
ever had, that they would not be hired by [Respondent];
s Respondent asserts that no weight can be given to the testimony of
Gonzales in view of her admission that she had been under medical treat-
ment for being a pathological liar, that her testimony demonstrated a bias
against Jacqua, and that her reputation in the community was that of a
liar. Initially, I found Gonzales' demeanor, while testifying, was that of
an honest and candid itness. As to her treatment for being a pathologi-
cal liar. I note that said medical treatment occurred approximately 7
years prior to the hearing, that such was voluntary and on an outpatient
basis, and that the medical treatment resulted from an internal family
problem between Gonzales and her mother. Furthermore, I do not be-
lieve that the record as a whole supports a conclusion that Gonzales ex-
hibited any sort of bias against Jacqua or Prestige
WESTWARD HO HOTEL
i - -
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she would not send them." Accordingly, I believe
that while an applicant's prior wage rates and desire to
remain on the job may well have been factors which
were considered by Jacqua in her referrals to other em-
ployers, union membership was the determining factor in
whether an individual was referred to Respondent for an
available position.
3. The referral practices of other employment
agencies in the Las Vegas, Nevada, area.
Gerri Killough, the owner of Active Employment
Service, testified that she has referred applicants for em-
ployment to Respondent either pursuant to solicitations
on the telephone by herself or pursuant to specific job
orders by Respondent. Regarding the latter, Killough
testified that it was her company's practice to record
these job orders on cards for future reference and that it
was office practice "to put anything they wanted on here
unless it was something that wasn't important." Accord-
ing to Killough, her counselors are instructed to get as
much information from an employer as they can regard-
ing the job duties, the benefits, and any necessary qualifi-
cations for the position. Several job order cards, which
represent job orders for Respondent, were identified by
Killough. A review of these documents reveals that on
none is there any notation regarding the nonreferral of
union members. Killough testified that she has never had
any conversation with any representative of Respondent
regarding unions and that she was never advised by any
representatives of Respondent not to send present or
former union members for jobs. Although no corroborat-
ing records were produced, Killough testified that she
has placed union members in positions of employment
with Respondent. Killough based this statement upon her
knowledge of the area and, in particular, which positions
are union positions at other hotels in Las Vegas. Finally,
according to Killough, whether an individual is a union
member is of no significance in her referral decisions:
"We don't ask if they are union or nonunion."
B. The Refusal To Refer Michael Romano
The record establishes that, in March and May, Re-
spondent placed telephonic job orders with Prestige for
general laborers. On or about August 3, a job requisition
was submitted to Respondent's personnel department for
three laborers, who were to perform whatever work was
"necessary pertaining to manual labor." Thereafter, job
orders were placed with three outside employment agen-
cies: Prestige, Active Employment Service, and United
Employment Agency. Gerri Killough identified Re-
spondent's Exhibit 13 as a job order she received from
Respondent on August 3, 1978, for various positions, in-
cluding laborers. Examination of the document reveals
that there is no reference to the referral of nonunion
members. As to Prestige, Jacqua identified General
Counsel's Exhibits 10 and 12 as being job orders from
Respondent for laborers. These are dated September
1978 and on neither is there reference to the referral of
nonunion workers. There are no job orders in the record
between August 3 and the dates on the latter exhibits.
Michael Romano testified that he visited the offices of
Prestige on three occasions in August and September
and that his first visit was in the first week of August, a
few days after he arrived in Las Vegas from Chicago
and after he became aware of the existence of Prestige
from advertisements in the local newspaper. According
to Romano, after his arrival at Prestige's office, he was
given an application form to fill out. Thereupon, he was
interviewed by Renee Gonzales who asked Romano
what type of work he wanted. Romano replied that he
wanted laborer's work, the same type of work as he
wrote on the application, and union wages. Gonzales
asked if Romano wanted the same type of work.
Romano replied, "Yes, I do. And I won't except nothing
else except laborer's work." On cross-examination, Ro-
mano's testimony regarding this conversation became
rather vague, confusing, and disjointed. Thus, he was
confronted with Respondent's Exhibit 3 which is a Pres-
tige application form and which bears Romano's signa-
ture. The document apparently bears several different
handwritings; Romano identified his own but could not
identify the remainder of the writings and had no knowl-
edge as to how or when said writing was placed on the
document. Romano specifically denied that the notations
on the document were made by Gonzales during his in-
terview, "Any of these notations she made. She didn't
make those while I was sitting there, no . . . she was
just sitting there and I was explaining to her my applica-
tion." In addition, Romano testified that he did not
answer the "union membership" blank on the application
form. Instead, Gonzales asked him if he belonged to a
union, and Romano replied that he belonged to Local
872. Romano then asserted that he did not know wheth-
er the aforementioned exhibit was the first or the second
application form which he filled out for Prestige. Ac-
cording to Romano, "That's where the other application
comes in. I know I put down that I was in the Union,
Local 872." Further, Romano denied telling Gonzales
how much he wanted to earn or that he would not take
less than $600. Finally, Romano steadfastly denied that
he made or received any telephone calls from Gonzales
after this initial conversation.
Gonzales, whose testimony regarding these events was
much clearer and more coherent than that of Romano,
contradicted Romano on several aspects of this initial
conversation. Initially, Gonzales placed the conversation
on August 11, remembering the date so precisely "be-
cause the application he filled out, I filled in likewise."
She testified that Donna Hannon and Flo Jacqua were
also in the office that day and that Romano was dressed
"neat and clean." According to Gonzales, when Romano
handed her his application form, she observed that much
of the requested information was left blank by Romano.
Therefore, contradicting Romano, Gonzales filled in the
vacant blanks while she talked to Romano. Further,
Gonzales admitted asking Romano whether he belonged
to a union and writing upon the application, "Laborers
Union." Gonzales then "asked him what kind of work
did he prefer. He says, 'whatever.' Then what he said is
he wanted to see whatever jobs I had available." As to
telephone conversations with Romano after this visit,
"'ESTVVARD HO HOTEL 1205
Gonzales further contradicted Romano, testifying that
she had at least two such conversations with him.
Romano testified that a couple of weeks after the first
interview, he again visited the Prestige office because he
had heard nothing about any jobs. When he arrived at
the office, he filled out another application form. Ac-
cording to Romano, he again spoke to Gonzales; she
looked at the application form and told Romano "that
when she got a job, she'd call me." Gonzales testified to
a different and more likely version of this second conver-
sation. According to Gonzales, prior to this conversa-
tion, she had spoken to Romano over the telephone re-
garding a truckloader's job. However, "when we talked
about . . . the . . . job, he was incoherent. I could not
understand him." Gonzales then noted on Romano's ap-
plication form that she had telephoned him regarding
such a position, and a few days later Romano appeared
at the Prestige office. According to Gonzales, Romano
had been given another application form; however, after
she compared that to his original application form, she
destroyed it because the information was redundant.
They then discussed the truckloader's job again. Romano
said that he might be interested in the job but when, in
Romano's presence she telephoned the employer.
Romano indicated that he had changed his mind and said
to forget it. The meeting ended at that point.
Romano testified that on September 24, he noticed a
Prestige advertisement in the "Review Journal" for a la-
borer position.9 Accordingly, early the next morning,
September 25, he telephoned the Prestige office and
spoke to Gonzales regarding the advertisement. He asked
if the job were still available, and Gonzales said that it
was and that he should come to the office. Romano
thereupon arrived at the Prestige office at approximately
9:30 a.m. and spoke to Gonzales. Romano testified that
Gonzales was reading from a "pink slip of paper," stat-
ing that "she needed a laborer for digging ditches and
moving furniture at $650 a month...." According to
Romano, Gonzales looked up and said that she could not
refer Romano to the job "because you are a union
member." At that point, Romano asked to speak to the
manager. Accordingly, Gonzales took him to Jacqua's
desk and handed the pink-slip and Romano's application
to Jacqua. Inasmuch as Gonzales' desk was located
"right next" to that of Jacqua, she was able to hear what
was said between Jacqua and Romano. Romano testified
that Jacqua examined the documents and said ". . . you
are a union member and the place that was looking for a
laborer did not want anything to do with the Union,
union members or anybody who was in the Union... ."
Romano asked who the employer was and Jacqua re-
plied that it was a hotel "on the strip" but said no more.
Romano asked why Jacqua would not sign him out, and
Jacqua replied, "If she did, she'd lose her client." On
cross-examination, Romano altered and contradicted his
testimony regarding these conversations. Thus, Romano
admitted that Jacqua "could have said something" about
Romano taking action to show he was going to stay in
9 Romano identified G.C Exh. 2 as the advertisement which he saw in
the 'Review Journal," Said advertisement reads as follovs: "Laborer,
Strong, Hard Worker, Salary Open Prestige Limited ABC Jobs, 953
East Sahara 732-2091"
Las Vegas; that Jacqua said she was going to send
Romano to a job as a laborer and asked if he would
leave if the Union offered a different job; that he told
Jacqua that he was a union member and that he was
looking for a union job in town; that he would leave if
offered a different job; that Jacqua said "something like"
she did not want to send Romano out on a job he
wouldn't stay at because she wouldn't be paid and did
not want to bother people with individuals who are not
interested in staying on a job; that Jacqua asked if he
was going to change his driver's license to a Nevada li-
cense; that Jacqua asked whether Romano realized that
the job only paid $650 a month; and that at the conclu-
sion of the conversation, he accused Jacqua of discrimi-
nating against him. Under questioning from counsel for
the General Counsel on redirect-examination, Romano
gave still another version of the Jacqua conversation:
"She looked over my application and she said she could
not refer me to the hotel because the hotel that needed a
laborer didn't want anything to do with union members,
or anything to do with the union. So she couldn't send
me. And if she did send me, should the Union call me
for a better job, would I go. And I told her yes."
Romano testified that he ended the conversation with
"'Isn't it illegal to discriminate?' She goes, 'That's all she
could do."' Finally, as to the order of the Jacqua conver-
sation, Romano admitted that Jacqua said that she could
not refer him after she asked if he would stay on the job
that paid less than a union wage.
Renee Gonzales, I believe, related a far more credible
account of the events of September 25 than did Romano.
She testified that Romano came to the office one day "in
September" in response to an advertisement which he
had seen in a local newspaper. Romano showed Gon-
zales the advertisement, and Gonzales pulled out Re-
spondent's job order and told Romano what the job en-
tailed. Romano stated that he could handle the job based
upon his experience. Having forgotten that Romano had
previously informed her that he was a union member,
Gonzales took Respondent's job order and Romano's ap-
plication to Jacqua. Jacqua examined the documents,
somehow indicated "No" to Gonzales, and told her to
tell Romano that the job was filled. Thereupon, Gon-
zales went back to Romano, and "I believe I told him, 'I
can't send you because of your union affiliations."' Then,
according to Gonzales, Romano accused her of discrimi-
nating against him and asked to see the manager. Gon-
zales then took Romano to Jacqua, gave Jacqua the ap-
plication form, and introduced Jacqua to Romano. Con-
tradicting the testimony of Romano, Gonzales testified
that she stood by Jacqua's desk while Romano and
Jacqua talked.
Gonzales testified that Romano gave Jacqua the adver-
tisement and stated that he wanted a job. Jacqua replied
that she could not send him. Romano asked why, and
Jacqua responded "Because you belong to a union."
Romano said that such would be discriminating, and
Jacqua replied, "It would not be fair for me to send you
to a company because you belong to a union making
very much money, and if I send you to a company that
is paying less, you would just turn around and then leave
WESTWARD HO HOTEL
1206 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
as soon as you got a better job." At that point, according
to Gonzales, Romano raised his voice, shouting that
Jacqua did not know that he would leave the job. Jacqua
did not respond, and Romano asked her for her name.
Jacqua handed Romano a business card; Romano replied
that he was going to the "Labor Board" and walked out
of the office. During cross-examination, Gonzales ad-
mitted that Jacqua "brought to [Romano's] attention
many points in regard to his staying at a job; staying in
Nevada." She also admitted that Romano responded to
Jacqua's question whether he would leave for a higher
paying job, "Nobody is that loyal." Finally, Gonzales
denied that Romano was wearing cutoffs and sandals
during this conversation.
Flo Jacqua, who asserted that she personally observed
all individuals who entered Prestige's office, testified that
she saw Romano in the office on just one occasion-on
August 12 when he filled out his application form and
when he spoke to her.10 On that date, according to
Jacqua, Gonzales brought Romano's application over to
her and asked if she (Jacqua) would send Romano to the
Westward Ho laborer's position which was open. Jacqua
replied, "Renee, don't be ridiculous. Look at this. It has
a note there that says he can't work for much less than
$600 a week. It pays $650 a month. If he stayed there 20
years, he wouldn't make $600 a week." Gonzales asked
what should she do with Romano, and, according to
Jacqua, she told Gonzales to bring him over to her. A
few moments later, according to Jacqua, Romano came
over to her desk. 2 Jacqua began by pointing out to
Romano that he had been in Las Vegas for only a couple
of days and still had an Illinois driver's license. Jacqua
then pointed out to Romano that the first thing a pros-
pective employer would ask him would concern his
plans for staying in Las Vegas and why he had not yet
changed his driver's license. Jacqua said, "I'm just telling
you this because it will help your chances in getting a
job." Romano replied that he was not sure whether he
was going to stay. According to Jacqua, she next asked,
"You belong to the Union?" Romano replied that he be-
longed to the Laborers union. After asking whether
Romano had been to the union hall, she asked him if he
came in for a specific job. He said he came in for the
laborer's position that I had advertised in the paper.
Jacqua then asked whether Romano understood that the
position paid $650 a month and asked, "Do you mean to
tell me that you would stay on the job? How long would
you stay on the job for $650 a month when you have-
when I have a note here that says you had made $600 a
week and you can't accept much less?" Romano replied
that he might stay on the job, and Jacqua replied, "If I
place you on this job, if I called and made an appoint-
'o Jacqua based this testimony on two factors. First, she personally ob-
served all individuals who entered the Prestige office. Second. she re-
called that she spoke to an agent of the National Labor Relations Board I
month after her conversation with Romano-in September.
" Jacqua specifically denied that Gonzales pointed out to her that
Romano was a union member, that she told Gonzales not to refer
Romano. or that she told Gonzales to tell Romano that the job was filled.
12 Jacqua testified that Gonzales was not present during her conersa-
tion with Romano Donna Hannan, coroborated Jacqua, testifying that
Jacqua and Romano were alone while they spoke and that Gonzales was
at her desk during said conversation, 50 feet from Romano and Jacqua
ment and you got this job, suppose that your boy friend
came over . . . and said, 'I've got you a job making $7
an hour.' Now, all you have to do is show up tomorrow
. . . what would you do?" Romano replied that he
would take the job and asked Jacqua what she would do.
Jacqua replied that everything would depend upon how
much loyalty she felt toward the job. Romano replied
"that nobody had that much loyalty; that if his buddy of-
fered him a job that he could bid on, he would go."
Next, Jacqua asked if he wanted a nonunion job, and
Romano replied that he did not. According to Jacqua,
"That's when I said to him, 'This is a nonunion house.
This is a nonunion job.' I even questioned him as to
whether or not he would get in trouble by working a
nonunion job when he carried a union card. Again, he
told me that he would only work it until he found some-
thing else." At that point, according to Jacqua, "I told
him I wasn't going to send him on the job. I refused to
send him on the job. I'm the first to admit it." Romano
replied that he was going to report her to the National
Labor Relations Board, and he left the office.
v. ANAI.YSIS
A. The Agency Status of Prestige
Counsel for the General Counsel essentially argues
that at all times material herein, Prestige and its co-
owner Jacqua acted as agents for, and on behalf of, Re-
spondent and that pursuant to the established law of
agency, Respondent was therefore liable for the actions
of its agents Prestige and Jacqua. Counsel for the Gener-
al Counsel further argues that if Jacqua was discrimina-
torily motivated in refusing to refer Michael Romano for
an available position with Respondent, under the afore-
mentioned principles, Respondent was liable for the con-
duct of Jacqua and, thus, acted in violation of Section
8(a)(l) and (3) of the Act. More specifically regarding
the alleged agency relationship between Respondent and
Prestige, counsel for the General Counsel argues that
Prestige was authorized by Respondent to act on the lat-
ter's behalf and Respondent was liable for all actions of
Prestige within the scope of Prestige's general authority,
that Prestige was specifically authorized and/or instruct-
ed by Respondent not to refer union members for availa-
ble positions, that if no such express authorization exist-
ed, Respondent conferred "apparent autority" upon Pres-
tige to so act in its behalf, and that if no such express or
apparent authority existed, Respondent expressly ratified
Jacqua's policy of not referring union members to Re-
spondent. Contrary to the General Counsel, Respondent
argues that no agency relationship existed between Re-
spondent and Prestige, that Respondent had no right to
control or direct the conduct of Prestige, that Respond-
ent gave no express or apparent authority to Prestige to
act as the agent for, and on behalf of, Respondent, and
that Respondent never expressly ratified the conduct of
Prestige.
In analyzing whatever relationship existed between
Respondent and Prestige, one must initially turn to Sec-
tion 2(2) of the Act which states that "The term 'em-
ployer' includes any person acting as an agent of an em-
WESTW'ARD HO HOTEL 1207
ployer, directly or indirectly . . ." and to Section 2(13)
of the Act, which states: "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 ques-
tion of whether the specific acts performed were actually
authorized or subsequently ratified shall not be control-
ling." Analysis of the legislative history behind these
provisions establishes that "the ordinary rules of the law
of agency shall apply in determining the responsibility of
any person for the actions of another person." H.R. 245,
80th Cong., Ist Sess. 11 (1947); Perry Norvell Company,
80 NLRB 225 (1948). Accordingly, the common law de-
scribes the agency relationship as "the fiduciary relation
which results from the manifestation of consent by one
person to another that the other shall act on his behalf
and subject to his control, and consent by the other so to
act." Restatement (Second), Agency, §1 (1958). However,
despite ostensible deference to the aforementioned defini-
tion, the Board has apparently defined the agency rela-
tionship as something less than the common law defini-
tion. Thus, in International Longshoremen's and Whare-
housemen's Union. CIO (Sunset Line and Twine Compa-
ny), 79 NLRB 1487, The Board stated: "Agency is a con-
tractual relationship, deriving from the mutual consent of
principal and agent that the agent shall act for the princi-
pal. But the principal's consent . . . may be manifested in
conduct . . . as well as by words. Authority to act as an
agent in any given manner will be implied whenever the
conduct of the principal is such as to show that he actu-
ally intended to confer that authority." 79 NLRB 1487 at
1508.
At the outset, Respondent argues that no agency rela-
tionship may be found herein between Respondent and
Prestige inasmuch as Respondent possesses no right to
control the operations or conduct of Prestige. Thus, Re-
spondent argues that there is no evidence that Respond-
ent may prescribe what Prestige shall or shall not do
before the latter acts. Restatement (Second), Agency, §14
(1958). Respondent further contends that there is no evi-
dence that it controls Prestige's application, interviewing,
or referral procedures. However, contrary to Respond-
ent, I do not believe that the existence of a right to con-
trol, or a lack thereof, is of paramount importance to the
Board's determination of an agency relationship. Thus, in
the definition set forth in Sunset Line and Twine Compa-
ny, there is no mention of the concept of right to control.
Moreover, analysis of later Board decisions, involving
agency questions and the Sunset Line and Twine Compa-
ny definition, establishes that right to control has not
been utilized by the Board as a factor in determining
whether or not an agency relationship exists and, in fact,
is rarely discussed by the Board. Montgomery Ward &
Co., Incorporated, 228 NLRB 750 (1977); Hyster Compa-
ny, 198 NLRB 192 (1972); John Oster Service Company,
173 NLRB 673 (1968); Mid-South Manufacturing Compa-
ny, Inc., 120 NLRB 230 (1958): National Paper Company,
102 NLRB 1569 (1953).i ' Rather. it appears that the
1 Examination of the relevant Board cases establishes that in only one
agency area does the Board concern itself with whether the alleged agent
is under the control of the alleged principal These cases insolve "outsid-
ers," such as local citizens or local public officials, who allegedly speak
or act on behalf of an employer during an antiunion campaign As to
Board is concerned with this concept only in determin-
ing whether an employment or an independent contrac-
tor relationship exists. R & H Diesel and Trailer Service,
Inc., 238 NLRB 1432 (1978); Portage Transfer Companv,
Inc., 204 NLRB 787 (1973).
The crucial and determining factor in the establish-
ment of an agency relationship within the meaning of
Sunset Line and Twine Company concerns the authority
of the alleged agent to act as an agent in a given manner
for the alleged principal. If such authority exists, I be-
lieve the Board will find the existence of an agency rela-
tionship. Herein, Respondent's representatives Dorweiler,
Albury, and Thompson testified that outside employment
services were utilized by Respondent for the referral of
workers. Moreover, Albury and Thompson testified that
Prestige was one of the outside employment agencies uti-
lized by Respondent, that outside agencies were used
mainly for the referral of individuals to fill menial jobs,
that Jacqua was Respondent's "exclusive" contact at
Prestige, and that Respondent trusted Jacqua as an indi-
vidual who "through a mutual trust . . . would find and
refer and screen the best possible applicant for Respond-
ent to chose from." Thus, I believe the record supports a
finding that Prestige was authorized by Respondent gen-
erally to recruit, interview, and perform all other actions
necessary to refer individuals to Respondent for possible
hire. Accordingly, under these circumstances, I believe
that Prestige did, indeed, act as an agent for Respondent.
However, such a conclusion is not dispositive of the
issues presented herein. I believe that the crux of this
case involves not whether Prestige was authorized to
refer applicants to Respondent but rather the type of
agency created herein, the extent of Prestige's authority
in the referral process, and whether Respondent was
bound by actions of Prestige patently beyond the scope
of its authority. Counsel for the General Counsel, citing
Sunset Line and Twine Company argues that Respondent
was responsible for any actions of Prestige within the
scope of the latter's general authority. Therein, the
Board stated: "A principal may be responsible for the act
of his agent (within the scope of the agent's general au-
thority) . . . even though the principal has not specifical-
ly authorized or indeed may have specifically forbidden
the act in question. It is enough if the principal actually
empowered the agent to represent him in the general
area in which the agent acted." Sunset Line and Twine
Company, supra at 1508-09. Analysis of this quotation,
the facts of the case in which it appears, and subsequent
Board Decisions involving similar issues reveals that the
Board, by the aforementioned language, merely adopted
the traditional common law principle of "general
such individuals, the Board finds, "The responsibility for an emploer for
the conduct of an outsider is established only s hen agency is estahlished
The outsider must be acting under the direction or control of the crm-
ployer, or. if the conduct is originally unauthorized, it must be ratified
expressly or impliedly. It is not sufficient to shoe that the eilphloer
enjoys the benefits of the outsider's actions" yrds .Manufacturing (orp.,
140 NLRB 147. 155 (1962). Genral .Metal Product (Company, 164 Ni RH
64 (1967) (citizenls of the coinunit); Otternhimr and (oon patl .
144 NLRB 38 (1968) (school superintendentl .Mid-Sourh .Manujaucturin
Company. Inc., supra (funeral director): Eastman Corron Mdll. 6Q) NlRB
31 ( 11950 (local hanker)
WESTWARD HO HOTEL
1208 I). CISIO()NS IOF NATIONAL L.ABOR RELATIONS BOARD
agency." Thus, the Restatement defines a general agent
as one "authorized to conduct a series of transactions in-
volving a continuity of service" and states that when
acting in said capacity, the general agent for a partially
disclosed principal, such as Respondent herein,'
4 sub-
jects said principal to liability for all conduct-author-
ized and unauthorized. This latter principle is premised
upon the rationale that the general agent is very much a
part of the principal's business organization and is "con-
tinually dealing solely with the employer's business." Re-
statement (Second), Agency, §§3 and 161 (1958). The
aforementioned sections of the Restatement give as ex-
amples of general agents managers of businesses, sales
clerks, and any person of that type. In Sunset Line and
Twine Company supra, (union officer); Hampton Mer-
chants Association, et al., 151 NLRB 1307 (1965) (union
business agent); LTV Electro Systems, Inc., 169 NLRB
532 (1968) (personnel department interviewer); and
Broad Street Hospital and Medical Center, 182 NLRB 302
(1970) (hospital administrator), the Board found that said
individuals bound their respective employers for actions
arguably outside the scope of their authority. Although
unstated by the Board, I believe the common characteris-
tic linking these cases is the alleged agents' continuity of
service for their respective employers. Each individual
was clearly a part of his principal's business organization
and acted in such a capacity. Thus, I believe Sunset Line
and Twine Company and its progeny illustrate the
common law principle of general agency, and the Board
acted within clearly established common law guidelines
in finding that the aforementioned individuals bound
their respective employers for conduct which may have
been beyond their stated authority. Restatement
(Second), Agency, §4 (1958).
Herein, this central factor of a continuity of employ-
ment is lacking. Rather, the record discloses that Re-
spondent normally located applicants for available posi-
tions by either internally advertising available jobs or by
advertising in local newspapers; that Prestige and other
outside employment services were utilized by Respond-
ent only for the referral of applicants for menial posi-
tions; that only approximately 5 percent of all available
jobs were filled by applicants from outside employment
agencies; and that, of these, only approximately I per-
cent of said job openings were filled by job applicants
from Prestige. Moreover, there is no evidence of any fi-
nancial or other connection between Respondent and
Prestige. Thus, it cannot be said that Prestige was in any
manner part of Respondent's business organization or
that it performed a "continuity of service" for Respond-
ent, or that Prestige acted as the "general agent" of Re-
spondent.
Rather, it appears that the agency status of Prestige
was that of a special agent or one "authorized to con-
duct . . . a series of transactions not involving continuity
of service." Restatement (Second), Agency, §3 (1958).
The distinction between general and special agency is
important inasmuch as a special agent for a partially dis-
closed principal, such as Respondent, has no power to
" A principal is partially disclosed when a third party knows an agent
is acting for a principal but has no notice of the identity of said principal.
Restatement (Second), .4genlv, §4 (1958).
bind its principal for unauthorized acts. Restatement
(Second), Agency, §161(a) (1958). The rationale for this
distinction is: "A special agent is not . . . in any sense a
part of the business organization of the principal, since
he is one empowered only to conduct individually dis-
tinct transactions, and hence it is not proper to cause the
principal to be responsible for [acts] which are not au-
thorized. . . ."15 While never expressly stating that it
adheres to the principal of special agency, inasmuch as
the Board adheres to traditional agency precepts, I find
no reason to doubt that special agency principles apply
to this case. Accordingly, contrary to the position of the
General Counsel, I believe that close examination of the
extent of Prestige's authority is necessary herein; for as
stated by the Board, "It is well established that an agent
may act for its principal only to the extent that such
principal has conferred authority on his agent, real or ap-
parent. Wometco-Lathrop Company, 225 NLRB 686, 687
(1976).
The core question, then, is whether Respondent ex-
pressly requested or authorized Prestige not to refer
union members to it. Counsel for the General Counsel
argues that the record supports such a finding. However,
I credit the testimony of Respondent's witnesses Dor-
weiler, Albury, and Thompson that Respondent neither
maintained a policy against the hiring of past or present
union members nor instructed or authorized any outside
employment service, including Prestige, not to refer
union members to it for available positions. While recog-
nizing the self-serving nature of these denials, I found
Dorweiler, Albury, and Thompson to be truthful and
candid witnesses.'6 Furthermore, I credit their testimony
' I recognize that Restatement (Second). Agency §161(a) sets forth, as
a limited exception. that a partially disclosed principal will be bound by
the unauthorized acts of his agent if the agent's only departure from his
authority is "having an improper motive." While not explicated, I believe
the Restatement is referring to the agent's motive either in representing
his principal or departing from his authority. Such is not the issue before
me. Rather, we are concerned herein with the extent of the agent's au-
thority and whether the alleged agent exceeded same by acting in an al-
legedly unlawful manner
in Counsel for the General Counsel argues that I should not credit the
testimony of Dorweiler, Albury, and Thompson inasmuch as Dorweiler
did not comply with a subpeona duces tecum to produce certain records.
Counsel for the General Counsel further argues, citing Marvex Processing
& Finishing Corp., 229 NLRB 1285 (1977). that an adverse inference can
he drawn from its noncompliance that Respondent indeed maintained a
policy against the hiring of union members Initially, I found Dorweiler.
Albury, and Thompson to be honest and candid witnesses. Moreover,
there is no evidence in the record to controvert their testimony that Re-
spondent did not maintain such a policy Finally, the record cannot sup-
port a finding that Respondent did not reply with said subpeona duces
tecum. Thus. while offering the subpeona into the record. Counsel for the
General Counsel specifically stated that she had no intention of seeking
enforcement of said subpeona. Further, Dorweiler testified that he had no
control over the documents sought and that he gave the subpoena to Re-
spondent's personnel director, who did have control over the documents.
Also, counsel for Respondent indicated that files were available for coun-
sel for the General Counsel to examine. Evidently, she did not comply
with said offer Finally, the record dicloses that a letter was sent by Re-
spondent's counsel to counsel for the General Counsel prior to the start
of the hearing, regarding compliance with the above subpena. Counsel
for the General Counsel declitred to read the contents of said letter into
the record. In these circumstances. I do not believe that the record
would support a finding that Respondent wrongly refused to comply
with the General Counsel's ubpoena dures recurnm Accordingly, I will
Continued
WESTWARD HO HOTEL 120o
that, based upon their respective knowledge of the hotel
and gaming industry in the Las Vegas, Nevada, area,
they were aware that Respondent hires former and pres-
ent union members. In this regard, the record supports a
finding that employment in the Las Vegas area is rather
transient and that it would be difficult for Respondent
not to hire individuals who have worked at other hotels
in positions which are covered under existing collective-
bargaining agreements. In support of her position, coun-
sel for the General Counsel points to the Prestige job
order forms which memorialize telephonic job orders
from Respondent and which contain, in Jacqua's hand-
writing, entries "never in union," "no union members,"
and "nonunion" and argues that Prestige maintained an
"established procedure" that counselors copy verbatim
the job requirements listed by an employer.
Regarding these notations, I credit the testimony of
Jacqua that the impetus for such language was her own
and that Respondent was neither aware of nor author-
ized the setting forth of such instructions. 7 Further-
more, as to the verbatim listing of an employer's job re-
quirements, contrary to the position of counsel for the
General Counsel, Jacqua credibly testified, "A counselor
could write down even what she felt about the attitude
of the employer or what she felt would fit in about that
employer's office. .... That's where the counselor
could-we'll say-do her thing." Moreover, of the ap-
proximately II Prestige job order forms in the record
which memorialize telephonic job orders from Respond-
ent, only 4 of these contain references to the referral of
nonunion members. If Respondent maintained a non-
union referral policy, would it not have reminded Jacqua
of this policy on each occasion it gave job orders to
Prestige? Further, it is likely that if Respondent main-
tained such a policy, it would have given its nonunion
referral instructions to other outside employment serv-
ices. Yet, examination of the Active Employment job
order forms reveals that there is no reference on any to
the referral of nonunion members. Inasmuch as these
documents were kept in the ordinary course of business
and as Killough testified that her counselors were in-
structed to list all instructions from an employer, the
nonexistence of the aforementioned instructions is highly
significant. Also, while Gonzales attributed to Jacqua
comments such as "[Respondent] did not hire people that
belonged to unions . . ." she admitted that Jacqua never
advanced a source for these assertions, and I note the
hearsay nature of the comments. Accordingly, I do not
believe the record supports a finding that Respondent
ever expressly authorized Prestige to not refer union
members to it for available positions. Rather, as I have
previously found, I believe that Jacqua, for whatever
reason, maintained such a policy on her own and, thus,
draw no adverse inference regarding Respondent's testimony at the hear-
ing.
II While have discredited portions of her testimony, the crediting of
portions of Jacqua's testimony is required under the circumstances of this
case, and the discrediting of other portions does not require rejection of
Jacqua's entire testimony Carolina Canners, Inc., 213 NLRB 37 (1974)
"Nothing is more common than to believe some and not all of what a
witness says" Edward, ransportarion Company, 187 NLRB 3 4 (197)),
enfd. 37 F.2d 502 (5th Cir 1971)
acted well beyond her general authority to refer quali-
fied individuals.
When viewed in this light, this case is strikingly simi-
lar to-and controlled by-Albritrton Engineering Corpora-
tion, 138 NLRB 940 (1962). In Albritton, the employer
used the Texas Unemployment Commission to refer ap-
plicants to it for available positions. The General Coun-
sel alleged that the governmental entity acted as the
agent of the employer when it refused to refer individ-
uals to the employer, allegedly following a discriminato-
ry hiring policy of the employer. While not specifically
finding an agency relationship between the employer and
the governmental entity, the Board did not hold the em-
ployer liable for the actions of the Commission until spe-
cific instructions were given to the Commission by the
employer to follow the employer's discriminatory hiring
policy. During the period prior to said instructions, the
Board concluded: "In the absence of definite proof of
such instructions it would be unfair to impute to Re-
spondent responsibility for the Commission's failure to
refer strikers, for such action might have been taken by
the Commission upon its own initiative, and for all the
Commission knew, contrary to Respondent's position in
the matter." 138 NLRB 940 at 959. Such, I believe, is the
situation herein.
Counsel for the General Counsel next argues that if
Respondent did not expressly authorize Prestige to refer
only nonunion applicants, Respondent remains liable for
Prestige's conduct on the theory that Respondent con-
ferred "apparent authority" upon Prestige to act in its
behalf. Counsel for Respondent denies the existence of
any apparent authority herein and argues that there is no
evidence that Respondent conducted itself such as to
support a conclusion by Romano that Prestige spoke for
Respondent. Under the common law agency concept of
apparent authority, "If the principal places an agent in
such a situation that a person of ordinary prudence and
discretion is justified in assuming that an agent is author-
ized to perform in behalf of his principal, the particular
act in question, and such act has been performed, the
principal is bound by what his agent did." Ferro Concrete
Construction Co. v. United States, 112 F.2d 488, 491 (Ist
Cir. 1940). Also, the "rule is that it is the conduct of the
principal and not that of the agent that must be looked to
in determining whether apparent authority exists." Ferro
Concrete Construction Co.. supra at 492. Finally, "It is ele-
mentary that an agent cannot create his own authority,
real or apparent." Wometco-Lathrop Company, supra at
789.
Herein, the advertisement, pursuant to which Romano
visited the Prestige office on September 25, was placed
in the local Las Vegas newspaper by Prestige and not by
Respondent. Further, careful analysis of the record estab-
lished that Romano had no specific knowledge that an
employer had telephoned to Respondent a job order for
18 While it would not be proper-or necessary-to indulge in undue
speculation, I note that Jacqua was ell aare of Respondent's nonunion
status. tiasmuch as the income of Prestige was dependent upon the hiring
of her referrals, t is entirely) possible that Jacqua beliesed. with regard to
Respondent or, indeed, any nonunion empiloer. it s ould be easier
place an applicant Aho s.as inot t ulion member
WESTWARD HO HOTEL 
1210 DECISIONS OF NAI'IONAl. LABOR RELATIONS BO()AR
a laborer. Thus, neither Gonzales nor Jacqua specifically
informed Romano that an employer had placed a job
order with Prestige for a laborer applicant. Rather, he
was only told that an employer needed a laborer. Inas-
much as on his second visit to Prestige, Gonzales had
telephoned an employer regarding a truckloader's posi-
tion, it would have been just as logical for Romano to
have assumed that Prestige located the job on its own
initiative. Moreover, after three short visits to Prestige, it
could hardly be said that Romano was knowledgeable as
to how l'Prestige received or obtained job orders. Ac-
cordingly, I do not believe that Romano could reason-
ably have concluded that Respondent, or any other em-
ployer, authorized Prestige to act as it did on September
25. Finally, the extent of Romano's knowledge of Pres-
tige's authority came not from Respondent but fiom
Gonzales and Jacqua, and, as stated above, "An agent
cannot create his own authority, real or apparent."
In her post-hearing brief, Counsel for the General
Counsel cited two Board Decisions in support of her ar-
gument that Prestige possessed apparent authority in the
instant case-Montgomery Ward & Co., Incorporated. 228
NLRB 750 (1977), and Sterling Faucet Company. Texas
Division, a Subsidiary of Rockwell Manufacturing Compa-
ny, 203 NLRB 1031 (1973). In Montgomery Ward & Co.,
the employer, with the knowledge and consent of its em-
ployees, permitted an outside placement specialist to
enter its warehouse and speak to former patients. In Ster-
ling Faucet Company the employer used a psychological
testing firm to conduct a long-term attitude survey
amongst its employees. Employees were interviewed on
company time and on the company premises. In both
cases, the Board held that the respective employers had
"held out" the outside individuals as agents. I find these
cases inapposite. Herein, unlike the above cases, Romano
neither had knowledge of the existence of Respondent
nor had knowledge that Prestige was acting pursuant to
Respondent's job order. In fact, Romano could not have
reasonably known of any relationship at all between Re-
spondent and Prestige. Thus, what is lacking herein is
the central ingredient in the creation of apparent authori-
ty evidence that Respondent ever led Romano to have
reasonably believed that Prestige possessed authority to
act in Respondent's behalf. Wometco-Lathrop Company,
supra. Accordingly, I do not believe that Prestige pos-
sessed apparent authority to deny referral to union mem-
bers.
Next, counsel for the General Counsel argues that Re-
spondent somehow ratified Jacqua's policy of not refer-
ring union members to Respondent and, thus, became
liable for such conduct. Counsel for the General Counsel
elicited the following admission from Jacqua: "I have
told Albury that I had applicants who, in my judgment
would not want a referral because they had formerly re-
ceived . . . a union wage, and for that reason would not
remain at any job at [Respondent] which paid less. On
those occasions Albury said 'Okay."' Analysis of this
quotation reveals that neither did Jacqua inform Albury
that she was refusing to refer individuals because of their
union membership nor did Albury ratify nor condone
such a practice. In fact, this statement appears in a para-
graph of Jacqua's pretrial affidavit. The very next sen-
tence reads "I don't recall specifically when these con-
versations occurred or whether or not the applicants
were then referred to Westward Hlo." Moreover, Al-
bury's reply was ambiguous, and it is unclear whether
Albury referred to the applicants' union membership or
to the fact that said individuals would not remain on a
lower paying job. Accordingly. in view of the nature of
Jacqua's comment to Albury and the ambiguity sur-
rounding Albury's response, I do not believe that such
constitutes ratification of Prestige's internal policy of not
referring union members to Respondent.
Based upon the foregoing and the record as a whole,
inasmuch as Prestige acted as a special agent for Re-
spondent in the referral of workers to jobs such as the
laborer position herein and as I do not believe that Pres-
tige was authorized, expressly or through apparent au-
thority, to refuse to refer union members to Respondent
but rather flagrantly violated the extent of its authority, I
conclude that Respondent cannot be held liable for the
conduct of Prestige in refusing to refer Romano to Re-
spondent. Wometco Lathrop Company. supra, Abritton
Engineering Corporation, supra. Accordingly, I shall rec-
ommend that the complaint herein be dismissed. "3
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. It has not been established by a preponderance of
the evidence that Respondent engaged in acts and con-
duct in violation of Section 8(a)(l) and (3) of the Act as
alleged in the complaint.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record herein, and pursuant
to Section 10(c) of the Act, I recommend the issuance of
the following:
ORDER 20
The complaint shall be, and is, dismissed in its entirety.
12 In view of imy conclusions herein and the lack f .anly allegation that
Prestige itself iolated the Act by its conduct herein, I need make no
findings concerning the validity of the refusal of Prestige -and Jacqua
to refer Romano to Respondent. However, were I required to do so I
would credit the testimony of Gonzales over that of Jacqua with regard
to the number of times Romano visited the Prestige office. the date of
Romalo's last visit to the office. on or about September 25. and the con
versations on that date between Jacqua and Gonzales and Jacqua and
Romano
20 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules anid Regulatiols of the National Labor Relations HBoard. the
finddigs, ctclusions, and recommended Order herein shall. as provided
in Sec 102 4 of the Rules and Regulations, be adopted by the Board aid
become its findings, cnclusion., anid (hder and all objectioins thereto
shall be deemed aived for all purposes