Appendix — Tahoe Nugget, Inc. v. National Labor Relations Board

Pine. |

6 1979

In the Supreme Court bREo04x JR., CLERK

United States

Ocroser Txrm, 1978

No. 78-1379

Docketed March 9, 1979

Tanore Nuacet, Inc. d/b/a Jm Ke.ey’s

TaHoE NvGGET, .

Petitioner,

vB.

NationaL Lasor Reiations Boarp,

Respondent.

Nevapa Lopaz,

Petitioner,

vs.

NationaL Lasor Reiations Boarp,

Respondent.

Supplemental Appendix to Petition for a Writ of

Certiorari to the United States Court of Appeals

for the Ninth Circuit

Nartuan R. Berke

25th Floor

One Embarcadero Center

San Francisco, California 94111

Counsel for Petitioners

Of Cownsel:

Severson, Werson, Berke & MELCHIOR

25th Floor

One Embarcadero Center

San Francisco, California 94111 “3

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

Appendix C(1)

227 NLRB No. 72

MFJPW

D—1508

_ Crystal Bay, Nev.

United States of America

Before the National Labor Relations Board

Tahoe Nugget, Inc. d/b/a

Jim Kelley’s Tahoe Nugget

and Case 20—CA—9738

Hotel-Motel-Restaurant Employees

& Bartenders Union, Local 86,

Hotel & Restaurant Employees &

Bartenders International Union, AFL CIO

DECISION AND ORDER

On January 28, 1976, Administrative Law Judge Richard

D. Taplitz issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief, General Counsel and the Charging Party filed briefs _

in opposition to the exceptions.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs' and has

decided to affirm the rulings, findings, and conclusions of the

Administrative Law Judge and to adopt his recommended

1. Respondent’s request for oral argument is hereby denied, as

the record and the briefs adequately present the issues and the po-

sitions of the parties.

2 Appendix

Order, but for the reasons set forth below rather than for

the reasons set forth in his Decision.

On August 3, 1959, the Reno Employers Council, a volun-

tary association of employers engaged in the casino, restau-

rant, and other industries, recognized and entered into a

contract with Local 86 on behalf of its member-employers in

the Lake Tahoe area, Respondent, Tahoe Nugget, thereafter

in 1962 joined the Council and becaine a party to the 3-year

multiemployer contract then existing between the Council

and Local 86, Respondent continued to be a party to succes-

sive contracts between the Council and Local 86, including

one that was due to expire on November 30, 1974.

On September 18, 1974, Respondent timely withdrew from

the multiemployer arrangement and subsequently refused

to bargain with Local 86, claiming that it had a reasonably

grounded doubt as to Local 86’s majority status among its

own employees.

We agree with the Administrative Law Judge that the

presumption of majority arising from the Respondent’s

voluntary recognition of a labor organization as the exclu-

sive collective-bargaining representative of its employees

continued after its withdrawal from a multiemployer unit

and reversion to its original status. We nevertheless take

this opportunity to clarify and precisely define our rationale

for so joining in the Administrative Law Judge’s conclusion.

Unless a majority of an employer’s employees desire rep-

resentation by a union, an employer cannot lawfully force

representation on them by joining a multiemployer bargain-

ing unit.? Respondent would thus have violated the Act

when it became a party to its multiemployer contract if a

2. Mohawk Business Machines Corporation, 116 NLRB 248

(1956); Dancker & Sellew, Inc., 140 NLRB 824 (1963), enfd. 330

F.2d 46 (C.A. 2, 1964).

ee ore

Appendix 3

majority of its employees had not desired representation by

Local 86.

The Board has held, in light of the Supreme Court’s

decision in Bryan Manufacturing Co.} that a respondent

may not defend against a refusal-to-bargain allegation on

the ground that original recognition, occurring more than 6

months before charges had been filed in the proceeding

raising the issue, was unlawful.* Any such defense is barred

by Section 10(b) of the Act, which, as the Court explained

in Bryan, was specifically intended by Congress to apply

to agreements with minority unions in order to stabilize

bargaining relationships. That means that the Respondent

cannot now attack the Union’s majority status among its

employees in the single-employer unit when recognition was

originally extended and that we must accept as a fact that

the Union represented a majority in that unit at that time.

The Board has consistently presumed that a voluntarily

recognized union continues to be the majority representa-

tive of the unit employees.® This presumption is carried

throughout the life of the collective-bargaining contract and

thereafter. We do not think that a different result should

obtain in this case.®

3. Local Lodge No. 1424, International Association of Machin-

ists, AFL-CIO [Bryan Manufacturing Co.| v. N.L.R.B. 362 US.

411 (1960).

4. North Bros. Ford, Inc., 220 NLRB No. 154 (1975), and cases

cited therein.

5. Shamrock Dairy, Inc., Shamrock Dairy of Phoeniz, Inc., and

Shamrock Milk Transport Co., 119 NLRB 998 (1957), and 124

NLRB 494 (1959), enfd. 280 F.2d 665 (C.A.D.C., 1960), cert. de-

nied 364 U.S. 892 (1960); Bartenders, Hotel, Motel and Restau-

rant Employers Bargaining Association of Pocatello, Idaho and its

Employer-Members, 218 NLRB 651 (1974) (Member Kennedy dis-

senting).

6. We think our dissenting colleague reads too much into Sher-

idan Creations, Inc., 148 NLRB 1503 (1964), and Mor Paskesz, 171

ed

4 Appendix

To rebut the presumption of continued majority status

properly, the employer must show either that the union in

fact no longer enjoys majority status or that its refusal to

bargain was predicated on a reasonably grounded doubt

as to the union’s continued majority status.’ If the employer

desires to challenge the union’s majority status, it may file

a petition with the Board seeking an election. To hold other-

wise, as does our dissenting colleague, would mean that

formation or dissolution of, or any entry into or departure

from, a multiemployer unit would, standing alone, establish

objective and substantial reason to doubt the previously

existing majority. But the dissent sets forth neither facts

nor reasons why this should be the result. Such result would

permit the questioning of majority on every change in the

composition of the multiemployer unit, would deter the

‘NLRB 116 (1968), which involved the lawfulness of the employers’

withdrawal from multiemployer bargaining units. There the Board

held that, until the employers timely withdrew from the multiem-

ployer unit, their bargaining obligations were based on the majority

status of the union representing all the employees in the unit. This

holding was grounded on the principle that the multiemployer unit,

once established, remains the appropriate unit for all the employees

and employers until lawfully disestablished or modified. These cases,

therefore, say nothing about the presumption of majority status

existing originally among the employees of each employer. Once an

employer lawfully withdraws from the unit, of course, it is free to

justify a withdrawal of recognition by successfully rebutting the

presumption.

7. See Celanese Corporation of America, 95 NLRB 664 (1951);

Laystrom Manufacturing Co., 151 NLRB 1482 (1965), enforcement

denied on other grounds 359 F.2d 799 (C.A. 7, 1966); Terrell Ma-

chine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C.A.

4, 1970), cert. denied 398 U.S. 929 (1970); Barrington Plaza and

Tragniew, Inc., 185 NLRB 962 (1970); Automated Business Sys-

tems, a Division of Litton Business Systems, Inc., a Subsidiary of

Litton Industries, Inc., 205 NLRB 532 (1973), enforcement denied

497 F.2d 262 (C.A. 6, 1974); Walter E. Heyman d/b/a Stanwood

Thriftmart, 216 NLRB No. 154 (1975); James W. Whitfield d/b/a

Cutten Supermarket, 220 NLRB No. 64 (1975).

Appendix 5

formation of such units, and would inhibit stability in

bargaining. Before we depart from precedent to venture

in this direction, far more cogent reasons are required than

we perceive here.®

Since we are in agreement with the Administrative Law

Judge that Respondent has failed to prove that Local 86

no longer in fact enjoys majority status or that Respondent’s

refusal to bargain was predicated on a reasonably grounded

doubt as to Local 46’s majority status, we find that Respond-

ent has violated Section 8(a)(5) and 8(a)(1) of the Act

by refusing to recognize and bargain with the Union.

ORDER

Pursuant to Section 10(¢) of the National Labor Relations

Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Admin-

istrative Law Judge and hereby orders that the Respondent,

Tahoe Nugget, Inc. d/b/a Jim Kelley’s Tahoe Nugget,

Crystal Bay, Nevada, its officers, agents, successors, and

assigns, shall take the action set forth in the said recom-

mended Order.

8. The presumption that a bargaining relationship, lawfully

established, lawfully continues is embedded in the statute and

precedent. Unrepresented and represented employees are both pre-

sumed to desire continuation of the existing status in the absence

of proof to the contrary. Were there objective evidence here suffi-

cient to raise a reasonable doubt of the Union’s continuing majority,

there would be no need to consider the propriety of any presump-

tion. Although, as our colleague argues, had the Union lost its

majority among the employees of any single employer it could none-

theless have compelled bargaining in the multiemployer unit, he

suggests no reason to believe that it had lost that majority. At best,

his argument begs the question, and replaces the common expecta-

tion of continuity with one of change.

AO EN RR re ———

eS LS eee

6 Appendix

Dated, Washington, D.C. December 16, 1976

Rel

John H. Fanning, Member

Howard Jenkins, Jr., Member

John A. Penello, Member

National Labor Relations Board

(SEAL)

Member Walther, dissenting:

I take issue with my colleagues’ conclusion that the pre-

| sumption of majority status flowing from the contract in

the multiemployer unit survives Respondent’s timely with-

drawal from that unit. By a process resembling alchemy,

my colleagues have concocted the existence of majority

status with only the thinnest support in legal reason and

have, in complementary fashion, ignored valid distinctions

between the presumptions applicable to single-employer

and multiemployer units.

It was some 14 years ago that the Respondent in 1962

voluntarily joined a multiemployer bargaining ‘unit and

recognized Local 86 to be the representative of its em-

ployees. No election has ever been held either in the multi-

employer unit or in a unit of Respondent’s own employees,

nor has Respondent ever recognized or bargained with

Local 86 on a single-employer basis. Thus, at no time dur-

ing the course of Respondent’s 14-year bargaining rela-

tionship has there been any attempt to ascertain the

Appendiz 7

majority sentiments of Respondent’s employees. I cannot

accept my colleagues’ assertion that in these circumstances

Local 86 should be presumed to be the majority representa-

tive of Respondent’s employees once Respondent secedes

from the multiemployer unit.

My colleagues argue that unless a majority of Respond-

ent’s employees in 1962 desired representation by Local 86

Respondent could not lawfully have forced representation

on them by joining the multiemployer unit. They further

note that Respondent cannot now attack Local 86’s major-

ity status among its own employees at the time of original

recognition because of Section 10(b). From this my col-

leagues, citing cases which deal with the presumption of

majority status in single-employer units, construct two

entirely distinct and severable presumptions which in turn

give birth to yet a third presumption. Starting with (1) a

valid presumption of majority status in the multiemployer

relationship, they turn back, and (2) interweave a second

presumption of former majority status in the single-

employer unit based upon the 10(b) prohibition against

finding conduct which occurred years ago to be unlawful.

From the interweaving of these two presumptions the ma-

jority manages to cenceive yet a third presumption of cur-

rent majority status in the single-employer unit which

otherwise has no basis in fact or in logic. While I do believe

that the Board can and should base violations of Section

8(a)(5) upon legitimate legal presumptions, a violation

predicated upon a presumption arising not out of fact but

out of the intermarriage of two other presumptions is, in

my view, not a proper basis upon which to establish a vio-

lation. It must never be forgotten that an 8(a)(5) finding

effectively prevents employees from exercising their right

to a free choice in the selection of a collective-bargaining

8 Appendix

representative—a right these employees have never had

an opportunity to exercise.

My colleagues’ argument conveniently ignores the criti-

cal fact that, contrary to the situation in a single-employer

unit, the relevant majority in a multiemployer unit is the

majority of employees within the entire multiemployer

unit. Thus, notwithstanding the constraints imposed on

the employer at the point of initial recognition (constraints

which may perhaps support a presumption that the union

was majority representative of the employer’s employees

at the time of original recognition), once the employer

joins the multiemployer unit, it does not in theory violate

the law by continuing to bargain with a union which does

not have majority status among its own employees. Indeed,

unless the employer has timely withdrawn from the multi-

employer unit, it is required to bargain with any union

representing a majority of employees within that multi-

employer unit, regardless of the union’s standing among

the employer’s own employees.’® Consequently, the pre-

sumption of continued majority in the multiemployer situa-

tion provides no basis in fact or in law for a presumption

of majority in the single-emplover unit, since the former

presumption exists regardless of, or even contrary to,

actual majority status on a single-employer basis.

It should be recognized that the presumption of continued

majority status is in fact nothing more than a convenient

legal fiction employed by the Board to insure the stability

of the collective-bargaining relationship by preventing

frivolous and unnecessary interruptions of that relation-

9. Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357

F.2d 245 (C.A. 2, 1966), cert. denied 385 U.S. 1005 (1967); Mor

Paskesz, 171 NLRB 116 (1968).

10. See Sheridan Creations, Inc., supra.

Appendiz 9

ship. As stated by the Board in Terrell Machine Company,

“(t]his presumption is designed to promote stability in

collective-bargaining relationships, without impairing the

free choice of employees.”™

Since they are essentially legal fictions, however, pre-

sumptions should not be employed where they fail utterly

to mirror reality (as when the probability of the fact pre-

sumed to be in existence diminishes to nothingness) or

when their use comes up against some important counter-

vailing policy consideration (such as employee free choice).

In my opinion, the majority has here extended an accept-

able and useful fiction (the presumption of continued ma-

jority status) to the point where it no longer reflects prob-

able reality and, instead of promoting bargaining stability,

works to the detriment of employee free choice.

While Respondent did not engage in any potentially im-

proper interrogation of its employees, it did place in the

record the evidence available to it supporting its position

that there is a doubt as to the Union’s majority status.

This included: (1) evidence of Local 86’s poor financial

picture, (2) associationwide figures concerning Local 86

membership, (3) newspaper reports that Local 86 was re-

organizing, (4) evidence of a high employee turnover rate,

(5) reports of employee dissatisfaction with Local 86, and

(6) reports of Local 86’s inactivity. Clearly the record does

not support any finding of bad faith on the part of Re-

spondent in doubting Local 86’s majority status.

I would accordingly refuse to presume that Local 86 con-

tinues to be majority representative of Respondent’s em-

ployees and would require Local 86 to come forward with

its own evidence of majority. As Local 86 has not done so,

I would dismiss the complaint, thereby leaving the parties

11. 173 NLRB 1480, 1481 (1969).

10 Appendiz

and, most importantly, the employees to the Board’s rep-

resentation procedures if there exists a question concerning

representation in the single-employer unit.

Dated, Washington, D.C. December 16, 1976

Peter D. Walther, Member

National Labor Relations Board

Appendix 11

Appendix C(2)

JD-(SF)-19-76

Crystal Bay, Nev.

United States of America

Before the National Labor Relations Board

_ Division of Judges

Branch Office

San Francisco, California

Tahoe Nuggett, Inc. d/b/a

Jim Kelley’s Tahoe Nugget

and Case No. 20-CA-9738

Hotel-Motel-Restaurant Employees &

Bartenders Union, Local 86, Hotel &

Restaurant Employees & Bartenders

International Union, AFL-CIO

Stuart R. Dvorin and Eileen H,. Hamamura,

Attorneys, of San Francisco, Calif.,

for the General Counsel.

Severson, Werson, Berke & Melchior by

William W. Wertz, Attorney,

of San Francisco, Calif., for Respondent.

Davis, Cowell & Bowe by Richard G. McCracken,

Attorney, of San Francisco, Calif,

for the Charging Party.

DECISION

Statement of the Case

Richard D. Taplitz, Administrative Law Judge: This

case was tried in South Lake Tahoe, California, on Sep-

>

12 Appendix

tember 23, 24 and 25, 1975. The charge was filed on Novem-

ber 19, 1974, by Hotel-Motel-Restaurant Employees &

Bartenders Union, Local 86, Hotel & Restaurant Employees

& Bartenders International Union, AFL-CIO, herein called

the Union. The complaint issued on August 13, 1975, and

alleges that Tahoe Nuggett, Inc. d/b/a Jim Kelley’s Tahoe

Nugget, herein called Respondent, violated Sections 8(a)

(5) and (1) of the National Labor Relations Act, as

amended.

Issues

The ultimate issue is whether Respondent violated See-

tions 8(a)(5) and (1) of the Act by withdrawing recogni-

tion from and refusing to bargain with the Union as the

collective-bargaining representative of its bar and culinary

employees. The subsidiary issues are:

1. Whether the rebuttable presumption of the Union’s

‘continued majority status which flowed from a contract in

a multi-employer bargaining unit-survived Respondent’s

timely withdrawal from that unit and was applicable to a

single employer bargaining unit.

2. If the presumption did apply, whether Respondent

has rebutted that presumption by affirmatively establishing

that the Union had, in fact, lost its majority or by showing

that Respondent had sufficient objective hasis for reason-

ably doubting the Union’s continued majority.

All parties were given full opportunity to participate,

to introduce relevant evidence, to examine and cross-

examine witnesses, to argue orally and to file briefs. Briefs,

which have been carefully considered, were filed on behalf

of the General Counsel, Respondent and the Charging

Party.

Upon the entire record of the case and from mv observa-

tion of the witnesses and their demeanor, I make the

following:

Appendix 13

Findings of Fact

I. The Business of Respondent

Respondent is a corporation engaged in the operation of

a gaming casino at Crystal Bay, Nevada. During the year

immediately preceding issuance of complaint, Respondent’s

gross revenue were in excess of $500,000, and during that

same year, Respondent purchased and received goods and

materials valued in excess of $10,000, which directly origi-

nated outside of Nevada. In addition to employing gaming

control personnel, Respondent in its busy season employs

about 52 employees in its bar and culinary operation. In its

low season, Respondent employs about 35 or 40 employees

in that group. The culinary classifications include cooks,

waitresses, busboys, bartenders and porters, Thus, it ap-

pears that Respondent, in addition to operating a gaming

casino, has bar and restaurant facilities.’

Respondent is an employer engaged in commerce and in

a business affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the Act, and will effectuate the policies

of the Act for the Board to assert jurisdiction. See The

Anthony Company d/b/a El Dorado Club, 220 NLRB No.

152 and cases cited therein.

Il. The Labor Organization Involved

The Union is a labor organization within the meaning of

Section 2(5) of the Act.

Ill. The Alleged Unfair Labor Practices

A. The Background

The Reno Employers Council, herein called the Associa-

tion, is a Nevada corporation with an office in Reno, Nevada.

1. Ina petition for an election filed by Respondent, it describes

its type of establishment as “food service and gaming casino”.

reenter

14 Appendix

It is a voluntary association of employers engaged in the

casino, restaurant and other industries. The Association

exists, in part, for the purpose of representing its member-

employers in collective bargaining and administering col-

lective-bargaining agreements with various labor organiza-

tions including the Union. The Union and the Association

entered into a multi-employer collective-bargaining contract

on August 3, 1959, The Association agreed to the contract

on behalf of employers it represented in the Lake Tahoe

area. Succeeding contracts followed,” with the last effective

from December 1, 1971, through November 30, 1974. That

contract was between the Union and the Association on

behalf of the individual members thereof signatory thereto.

Five employers were signatory to the contract, including

Respondent.* Employees covered by that contract were

those in the employers’ bar and culinary operations at Lake

Tahoe.

Respondent opened for business on July 2, 1962. Re-

spondent joined the Association and became a party to

tLe multi-employer bargaining agreement between the Asso-

ciation and the Union that was effective from November 30,

1962, through November 30, 1965. Respondent continued to

be a party to the successive contracts through the one that

expired on November 30, 1974.

On September 18, 1974, Respondent timely withdrew its

membership from the Association.* On October 23, 1974,

2. In some of these contracts new employer-members of the As-

sociation were added and other employers were deleted.

3. Nevada is a right to work state and none of the contracts

contain a union-security clause.

4. The signatory employers were Barney’s Club, Harvey’s Re-

sort Hotel, Nevada Lodge, Sahara-Tahoe and Respondent.

5. The General Counsel concedes in its complaint that the with-

drawal was timely. a

Appendix 15

Respondent refused to bargain with the Union, and Re-

spondent has withdrawn recognition from the Union. On

July 25, 1975 Respondent filed a petition for an election

with the Board. That petition seeks an election among

Respondent’s culinary and bartender employees in a single-

employer unit. The complaint alleges a refusal to bargain in

that single-employer unit. The complaint alleges, the answer

admits, and I find that the appropriate bargaining unit is:

All employees employed by the Respondent in its bar

and culinary operations at its Crystal Bay, Nevada

operations, excluding all other employees, guards and

supervisors as defined in the Act.

B. The Testimony

1. The testimony of Staff and the LM-2 forms

Alfred EK. Staff is the bar manager for the Overland

Hotel in Reno. From early July 1973 to June 7, 1974, when

a trusteeship was imposed on the Union, Staff was presider

of the Union.* During that time, Staff, in addition to being

Union President, was a full-time bartender. The only full-

time paid union officer was Secretary-Treasurer and Busi-

ness Manager E. W. Tucker. Staff testified that a number of

events occurred during the summer of 1974. However, it is

apparent that these events took place before the trusteeship

was imposed, and the sequence of events set forth below is

keyed to the June 7 imposition of the trusteeship. Other-

wise, the following findings are based on Staff’s credited

testimony. In June 1974, the Union had about $11,000 in

its treasury, and that amount was decreasing, However,

6. Staff was unsure on his dates. He averred that he believed

the trusteeship was imposed in August, but that it might have been

in June. Howard Lawrence, a business representative who is the

chief executive officer of the Union in the Lake Tahoe area, testified

that the trusteeship was imposed on June 7, 1974. I credit Law-

rence.

POI tS De -—+- 7

SUL ee Ses CPO

etnias

I em im ee ima tet ttt iii

16 Appendix

the Union’s liabilities did not exceed its assets. About that

time, the Union had approximately 1,000 members, of whom

between 700 and 800 were paid up in their dues.? Sometime

before the trusteeship was imposed, the Union sent Business

Manager Tucker to the headquarters of the International

in Cincinnati to see if he could obtain some money to help

the Union organize. The executive committee had discussed

the need to obtain more members and to build the member-

ship up to a point where the Union could have some strength

when it met with the employers to negotiate the next con-

tract. Tucker went to Cincinnati and discussed the matter

with representatives of the International. He then returned

and reported to the executive committee that the Inter-

national would give the Union money to organize if the

officers resigned, the Union went into a trusteeship, and the

International administered the Union. The executive com-

‘mittee decided to let the International take over. The matter

was brought up at the next regular meeting of the Union,

and a majority of the membership voted to accept the

trusteeship. The officers resigned, and on June 7 1974, the

trusteeship was imposed, Al Bramlet was appointed inter-

national trustee and former Business Manager Tucker

became his assistant.

During the time that he was president, Staff spoke to

some Union bartenders that he worked with at the Overland

Hotel, and he received comments from them to the effect

that they were discouraged with the Union, that the Union

didn’t do anything for them, and that they did not like the

way the Union was being run, Some bartenders said, “when

is the Union going to be able to do anything for us,” “they

never do nothing for us,” “what’s the sense of joining a

7. The highest number of members during Staff’s term of office

was about 1,200.

Appendix 17

union.” He never received any compliments on the per-

formance of the Union. In addition to talking to bartenders

at the Overland Hotel, he spoke to some culinary workers at

various clubs in the Reno area in an attempt to organize

them. However, there is no evidence in the record that any

employees of Respondent expressed dissatisfaction with the

Union to Staff.

At the end of the trial, Respondent offered in evidence

certain LM-2 forms for the years 1972 through 1974 which

the Union had filed with the Department of Labor. Those

exhibits were received in evidence. No testimony was offered

to explain or interpret the exhibits. The report for 1974

states that the Union was placed under an international

trusteeship on June 7, 1974, and that Bramlet was appointed

international trustee. The reports show that the Union

received $84,891 in dues in 1974; $74,142 in 1973 ; and $77,117

in 1972,

There is no evidence in the record that Respondent knew

of the existence of the LM-2 forms at a time when it decided

to withdraw recognition from the Union. In a similar vein,

there is no indication in the record that Respondent knew of

the substance of the matters testified to by Staff at that

time. Respondent did not rely on those matters in deciding to

withdraw recognition from the Union, and apparently Re-

spondent is relying on them solely for the purpose of

attempting to prove that the Union, in fact, did not have

majority status.* With regard to the matters set forth below,

Respondent contends that it did have a reasonably based

8. As the Board held in Bartenders, Hotel, Motel and Restau-

rant Employers Bargaining Association of Pocatello, Idaho, and

its Employer-Members, 213 NLRB No. 74, an employer’s reasonably

based doubt of a-union’s majority status must be predicated on

information it had at the time of its refusal to bargain. See also,

Orion Corp., 210 NLRB 633, enf. 515 F.2d 81 (C.A. 7, fa

-

ee

Riera

18 Appendiz

doubt as to the Union’s majority, upon which it acted in

withdrawing recognition.

2. The remarks by employees of Respondent

and the newspaper articles

Dale McHatton is Respondent’s manager.’ In early Sep-

tember 1974, MecHatton overheard Dave Wilmurth, who

at the time was employed by Respondent as a cook, speaking

to Union Representative Hart. Wilmurth told Hart that

he was making over scale without paying dues and he asked

Hart what the Union could do for him. Wilmurth then said

to McHatton, “if I don’t have to pay any dues and I’m

making over scale now, what good are they going to do, isn’t

that right, Dale.” McHatton replied that it was Wilmurth’s

problem.’” The same day, McHatton reported the incident

to Respondent’s Secretary-Treasurer and Comptroller

Francis R. Cannon.

About the same date, McHatton overheard waitress Pat

Tucker talking to another waitress. He heard Tucker say,

“I’m not going to join until I find out if they can do more

than what the employer is doing for me now.” McHatton also

reported that incident to Cannon, who replied that Tucker

had made similar remarks to him. In July or August 1974,

Tucker had told Cannon that she had never belonged to the

Union and that she couldn’t see where the Union could do

anything.

During the period between July and October 1974, McHat-

ton overheard bits and pieces of other conversations between

9, The complaint alleges, the answer admits and I find that

McHatton is a supervisor within the meaning of the Act.

10. This finding has been based on the eredited and uncontra-

dicted testimony of MeHatton. The Union’s records show that Wil-

murth applied for membership in the Union and paid initiation

fees and dues on September 20, 1975. However, that fact does not

refute McHatton’s assertion that Wilmurth made the remarks set

forth above.

Appendix 19

employees about the status of the Union and how many

people the Union had. He testified that he could recall con-

versations but not the people involved, He averred that they

talked about the Union going broke, the Union not having

enough organized people, and their feeling that the Union

could not do anything for them. He reported those bits and

pieces of conversations to management officials.

Howard Schlegel was swing-shift manager for Respondent

from May through December 1974." In mid-September 1974,

he overheard a conversation between two women in a

restaurant booth at the club. One of them was Evelyn Drew,

one of Respondent’s casino cashiers. He heard Drew say

that she didn’t care for union activities and she couldn’t

understand what they would do for her. As a casino cashier,

Drew was not within the bar and culinary employees bar-

gaining unit. Schlegel reported the incident to Cannon.

Schlegel testified that he overheard other conversations by

employees in September but that he didn’t recall any specific

statements or any particular persons,

All of the incidents that were reported to Cannon were,

in turn, reported by Cannon to Respondent’s General

Manager Miltonberger and Respondent’s President Kelley.

Cannon credibly testified that sometime after July 22,

1974, ine read articles in the Reno Journal and in the Gazette

which reported that the Union was reorganizing and had

brought in organizers.

3. The conversations between Respondent’s supervisors

and the decision to withdraw recognition

Cannon, in his testimony, was very vague on dates. He

averred that he had had a number of conversations with

McHatton and Schlegel between the end of July and the

early part of October 1974, but that he didn’t remember

11. Schlegel was a supervisor within the meaning of the Act.

US DS pe PS Fe SO a

20 Appendix

dates. On one occasion he asked McHatton if there had been

any union activity around, and McHatton said that there had

been people in there.* Cannon asked McHatton if McHatton

heard any information from the employees about the Union.

McHatton replied that there had been some discussion with

people and remarks were made to the effect that they

couldn’t see what the Union could do for them, Cannon had

a similar discussion with Schlegel.

After expressing considerable ambiguity on the dates,

Cannon averred that he had a discussion with Respondent

President Kelley and General Manager Miltonberger during

the first part of August 1974. Kelley asked Cannon whether

there ever had been any grievances filed, and Cannon replied

that to his knowledge there had been none.” They also dis-

cussed the amount of turnover among Respondent’s em-

- ployees. The turnover ratio was about 4 to 1 a year, with

four employees being hired for every one that remained

per year.’ Kelley asked Cannon whether Cannon thought

12. McHatton testified that he couldn’t “recollect’’ whether he

had seen Union business agents on the premises for business pur-

poses during the 13 years he was day-shift manager before Sep-

tember 1974. Schlegel testified that during the time he worked on

the premises between May and December 1974, he saw one union

representative in September, and that was Bob Hart. Business Rep-

resentative Lawrence testified that he had several conversations with

Schlegel on the premises between June and September 1974, as well

as two or three such conversations after September. I eredit Law-

rence.

13. Cannon testified that he didn’t recall anything being filed

showing violations, that he was not aware of any contract violations,

and that it was Respondent’s policy to abide by the contract.

14. Though the turnover ratio varied considerably with differ-

ent groups of employees, it was approximately 4 to 1 among the

culinary employees as well as the average for the employees as a

whole. The turnover for cashiers was small, but for dishwashers it

ran about 10 to 1, for bus personnel, 6 or 8 to 1, for porters, 8 to 1,

and for cooks, 4 to 1. A compilation from Respondent’s records,

Appendiz 21

the Union had sufficient membership in the operation at the

lake. Cannon replied that he didn’t think the Union had

controlling membership because of the amount of personnel

turnover. He also told Kelley that he had been informed by

McHatton and Schlegel that they had been told that the

Union couldn’t do anything for the employees. In addition,

he said that the rumor was that the Union had about 800

to 1,000 members in the entire area. Cannon also told

Kelley that they had never had any correspondence as far

as an election was concerned,

On September 10 or 12, 1974, Cannon, Kelley and Milton-

berger had another meeting. At that meeting Kelley asked

Cannon whether they should withdraw from the Association.

Cannon replied that management felt that the Union didn’t

have enough employees to win an election, and he recom-

mended to Kelley that they withdraw recognition from the

Union. He also said that the Association should be notified

that they were withdrawing. He told Kelley that the rumor

was that the Union was financially in trouble and that the

Union was trying to organize and obtain funds from out of

state in order to continue, their organizing. Miltonberger

said that he felt the same as C@#mon, and that the Union

did not represent the majority of the employees at that time.

Cannon, Miltonberger and Kelley met again on September

16, 1974. Cannon said that he didn’t think that the Union

represented the employees and that based on the informa-

tion he had received, both directly and indirectly, they should

challenge the Union as far as an election was concerned, He

which was prepared shortly before trial, showed that of approx-

imately 102 culinary employees who were on Respondent’s payroll

sometime in 1974, 21 had been employed at some point in 1973, and

10 had been employed at some point in 1972. Respondent’s average

employed complement in its peak season was about 87, and in its

low season about 55, with the high in the culinary unit about 52

and the low about 35 or 40.

22 Appendix

said that the turnover was so great that he could not see

how the employees would bring in a vote for the Union. At

that meeting, the three of them made the decision that the

Union’s majority status should be challenged.

4. The Union’s demand for negotiations

and Respondent’s refusal

The last contract expired by its terms on November 30,

1974. By letter dated July 22, 1974, Union International

Trustee Al Bramlet notified Respondent of his desire to

change and modify the contract and sought to arrange for

collective-bargaining negotiations. By letter dated Septem-

ber 18, 1974, to the Association, Respondent resigned its

membership in the Association and withdrew its authori-

zation for the Association to represent it in connection with

collective bargaining or labor relations. A copy of that letter

was sent to the Union with a covering letter dated Septem-

ber 18, 1974, notifying the Union that the outstanding con-

tract was terminated effective as of the term thereof. By

letter dated September 27, 1974, Phillip Bowe, the Union’s

attorney, acknowledged Respondent’s September 18, 1974,

letter withdrawing from the Association and requested

Respondent to contact Bramlet to discuss a convenient time

for negotiations. By letter dated October 11, 1974, Respond-

ent informed the Union that it had never dealt with either

Bowe or Bramlet, that it understood that Bramlet repre-

sented a local in Las Vegas, and that it did not understand

the Union’s request. Bowe responded by letter dated October

15, 1974 in which he told Respondent that Bramlet had

been appointed international trustee and that Tucker was

Bramlet’s assistant. On October 18, 1974, Bowe once again

wrote to Respondent demanding that negotiations begin. By

letter dated October 23, 1974, Respondent’s attorney, Berke,

Appendiz 23

reminded the Union that Respondent had previously with-

drawn from the multi-employer unit and notified the Union

that if its demand for bargaining was a request to bargain

in a single-employer unit: “then at the instructions of our

client, we inform you that our client has a genuine doubt

that your local represents an uncoerced majority of its

employees in an appropriate unit.” The letter went on to

state that Respondent would fulfill whatever legal obliga-

tions it had if the Union won a Board-conducted election.

The Union filed the unfair labor practice charge on

November 19, 1974, in which it alleged that Respondent

unlawfully refused to recognize and bargain with it.

Respondent admits that commencing on or about October

23, 1974, it has refused and continues to refuse to bargain

collectively with the Union and has withdrawn recognition

from the Union.

On July 25, 1975, which was about 9 months after the

refusal to bargain and about 8 monthstgfter the filing of

the charge, Respondent filed a petition for an election with

the Board.”

C. Analysis and Conclusions*®

1. The presumption of majority

As the Board held in Walter E. Heyman d/b/a Stanwood

Thriftmart, 216 NLRB No, 154:

A contract, lawful on its face, raises a presumption

that the contracting union was the majority represent-

15. That petition mistakenly shows the contract expiration date

as February 15, 1975. In fact, the contract expired on November 30,

1974.

16. Much of the legal analysis set forth below is the same as that

which is contained in my Decision in Sahara-Tahoe Corporation,

d/b/a Sahara Tahoe Hotel, JD-(SF)-9-76 (issued Jan. 21, 1976), a

case that involved many of the same legal principles.

24 Appendix

ative at the time the contract was executed, during the

life of the contract, and thereafter.’

2. Shamrock Diary, Inc., 119 NLRB 998, 1002 (1957),

and 124 NLRB 494, 495-496 (1959), enfd. 280 F.2d 665

(C.A.D.C.), cert. denied 364 U.S. 892 (1960).

The legality of the Union’s initial recognition by Respond-

ent is not subject to attack in this case. In Stanwood Thrift-

mart, the Board said:

The Board has held that events time-barred by the

limitations provision of Section 10(b) of the Act may

not be used to overcome the presumption of majority

status raised by a contract valid on its face. The con-

tract contains a clause which recognized the Union as

majority representative and a lawful union-security

clause. The legality of the Union’s initial recognition

by Respondent was precluded by Section 10(b) of the

Act from being attached [sic] at the time of Respon-

dent’s termination of the contract and withdrawal of

recognition from the Union. Therefore, we find that Re-

spondent may not defend its refusal to continue to

recognize and bargain with the Union by an attack on

its initial recognition of the Union. [Footnote omitted. ]

In the instant case, the presumption of continued major-

ity status is based on a contract in a multi-employer bar-

gaining unit. The complaint alleges a refusal to bargain in

a single-employer bargaining unit. A serious question is

presented whether the presumption of continued majority

which flowed from the existence of the multi-employer con-

tract survived the withdrawal of Respondent from the

multi-employer unit and can be applied to the newly-created

single-employer unit. There has never been any contract

between Respondent and the Union in the single-employer

unit and, therefore, any presumption of majority must flow

Appendix 25

from Respondent’s inclusion in the multi-employer contract

that expired on November 30, 1974.

In Downtown Bakery Corp., 139 NLRB 1352, enf. den. in

pert. part 330 F.2d 921 (C.A. 6, 1964), a successor employer

refused to bargain with a union where that union was the

Board-certified representative of the employees in a multi-

employer bargaining unit which included a predecessor

employer. In that case the predecessor employer had signed

a separate collective-bargaining agreement with the union.

Relying on a presumption of continued majority, the Board

found that the successor employer violated Section 8(a) (5)

of the Act by refusing to bargain with the union in the

single-employer unit. The Sixth Circuit Court of Appeals

refused to enforce the Board’s bargaining order, holding

in part that there was not sufficient evidence in the record

to support a finding of majority status of the union.

In The Richard W. Kaase Company, 141 NLRB 245, enf.

den. in pert. part 346 F.2d 24 (C.A. 6, 1965), a similar fac-

tual pattern was presented, and the Board followed its

Downtown Bakery Corp. precedent. In The Richard W.

Kaase Company case, a union was certified as the collective-

bargaining agent of the employees of employers in a multi-

employer bargaining unit which included a predecessor

employer. That employer executed a separate collective-

bargaining agreement. Thereafter, a successor employer

continued to recognize the predecessor’s contract but later

withdrew recognition. The Board found that the successor

violated Section 8(a)(5) of the Act. The Sixth Circuit

Court of Appeals once again refused to enforce the Board’s

order, holding: “the ambiguity inherent in the multi-

employer election here relied on vitiates its efficacy to

prove a majority as to any single employer.”

26 Appendix

The Board law established by the Downtown Bakery and

Richard W. Kaase Company cases is not directly applicable

to the instant situation. In each of those cases, the indi-

vidual employer had signed separate collective-bargaining

contracts with the union and the presumption of continued

majority could flow from those contracts rather than from

the multi-employer certification. In the instant case, the

initial collective-bargaining relationship was in a multi-

employer bargaining unit and the contracts to which Re-

spondent was a party were multi-employer bargaining

contracts.'* However, I believe that the presumption of

continued majority flowing from the multi-employer con-

tracts requires a derivative presumption of the Union’s

majority status which is applicable to each of the employer-

members of the multi-employer bargaining unit separately.

Unless a majority of an employer’s employees desire rep-

- resentation by a union, that employer may not lawfully

force representation on them by joining a multi-employer

bargaining arrangement. Mohawk Busimess Machines Cor-

poration, 116 NLRB 248; Dancker d& Sellew, Inc., 140

NLRB 824, enf. 330 F.2d 46 (C.A. 2, 1964). Thus, Respond-

ent would have violated the Act in 1962 when it became

party to the multi-employer collective-bargaining agree-

ment if a majority of its employees did not desire repre-

sentation. Any unfair labor practice charge relating to such

a violation would have had to have been filed within 6

months from that time. Respondent may not now either

attack the initial bargaining relation or use it to establish

a defense to a refusal to bargain complaint. As the Board

held in North Bros. Ford, Inc., 220 NLRB No. 154:"8

17. It is also noted that, unlike the instant situation, both those

eases involved conflicting representational claims by rival unions.

18.. See also Walter FE. Heyman d/b/a Stanwood Thriftmart,

supra.

Appendix 27

Section 10(b) of the Act confines the issuance of

unfair labor practice complaints to events occurring

during the 6 months immediately preceding the filing

of a charge and has been interpreted by the Supreme

Court to bar finding any unfair labor practice, even

though committed within that period, which turns on

whether or not events outside that period violated the

Act. Bryan Manufacturing Co The Court, holding

that maintenance and enforcement of a contract more

than 6 months after recognition of a minority union

did not violate the Act, relied in part on the legislative

history indicating that Congress specifically intended

Section 10(b) to apply to agreements with minority

unions in order to stabilize bargaining relations. Not-

ing that labor legislation traditionally entails com-

promise, the Court observed

that the interest in employee freedom of choice is

one of those given large recognition by the Act as

amended. But neither can one disregard the interest

in “industrial peace whi¢dh it is the overall purpose

of the Act to secure.™ -

The Board, in light of Bryan, has since held that Sec-

tion 10(b) is applicable to a refusal-to-bargain defense

that the bargaining relation was unlawfully estab-

lished.

3. Local Lodge No. 1424, IAM, AFL-CIO [Bryan Manu-

facturing Co.| v. N.L.R.B., 362 U.S. 411 (1960).

4. Id. at 428, citations omitted.

5. Barrington Plaza and Tragniew, Inc., 185 NLRB 962

(1970), enforcement denied on other grounds sub nom, Trag-

niew, Inc., and Consolidated Hotels of California v. N.L.R.B.,

470 F.2d 669 (C.A. 9, 1972); Roman Stone Construction Com-

pany, ane i Concrete Products, Inc., 153 NLRB 659,

fn. 3 (1965).

.

Fs

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a

1

t

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iy 5

4

f ;

28 Appendix

Respondent may not, at this late date, attack either the

initial recognition of the Union by Respondent or the initial

contract. It cannot defend against the refusal to bargain

complaint on the ground that the original contract was

entered into at a time when the Union did not represent a

majority of the employees of Respondent. Nor can it defend

on the ground that the Union did not represent a majority

of the employees in the overall multi-employer bargaining

unit. That contract must be considered valid on both those

grounds. The presumption of majority status which con-

tinued over the years based on successive contracts applies

both as to the employees of Respondent and to the employ-

ees in the multi-employer unit. I therefore find that the

General Counsel has properly relied on that presumption

to establish the Union’s majority in the unit in question.

_ It remains to be considered whether Respondent has suc-

cessfully rebutted that presumption.

2. The attempt to rebut the presumption

a. The background law

In James W. Whitfield d/b/a Cutten Supermarket, 220

NLRB No, 64, the Board summarized the existing law,

holding:

It is well settled that Section 8(a)(5) and Section

8(d) of the Act require an employer to recognize and

bargain in good faith with the bargaining representa-

tive selected by a majority of its employees. That

recognition establishes a presumption of majority

status which, in circumstances such as this, may be

rebutted.* The employer may lawfuly refuse to bargain

with the union if it rebuts the presumption by affirma-

tively establishing that the union has in fact lost its

majority status, or shows that it has sufficient objective

bases for reasonably doubting the union’s continued

Appendix 29

_Iajority status.’ To establish sufficient objective bases,

however, requires more than the mere assertion thereof

based upon the employer’s subjective frame of mind.®

Furthermore, the employer must not have engaged in

any conduct tending to encourage employee disaffec-

tion from the union.®

6. Cf. N.L.R.B. v. Frick Company, 423 F.2d 1327 (C.A. 3,

1970); Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).

7. Celanese Corporation of America, 95 NLRB 664, 672

(1951); Peoples Gas System, Inc., 214 NLRB No. 141 (1974).

8. Laystrom Manufacturing Co., 151 NLRB 1482 (1965),

enforcement denied 359 F.2d 799 (C.A. 7, 1966); Automated

Business Systems, Inc., a Division of Litton Business Systems,

gt iy NLRB 532 (1973), enf. denied 497 F.2d 262 (C.A.

9. Peoples Gas System, Inc., supra.

In Bartenders, Hotel, Motel and Restaurant Employers

Bargaining Association of Pocatello, Idaho and its Em-

ployer-Members, 213 NLRB No. 74, the Board held that

these principles are equally applicable whether the union

was certified by the Board or was recognized without Board

certification. In that case, the Board held that the existence

of a prior contract, lawful on its face, raised a presumption

that the union was the majority representative at the time

the contract was executed and also raised the presumption

that the union’s majority continued at least through the

life of the contract, The Board held that “Following the

expiration of the contract . .. the presumption continues

and, though rebuttable, the burden of rebutting it rests on

the party who would do so... .”

The complaint does not allege that Respondent engaged

in any unfair labor practice other than the refusal to ba:

gain. There is no contention that Respondent engaged in

any other conduct tending to encourage employee dis-

affection from the Union.

+

I

APSR l ee LP eye stele

30 Appendix

b. The alleged actual loss of majority

For the reasons set forth above, the presumption of

continued majority which flowed from the contract, survived

the change in the bargaining unit and applied to the single

employer unit. It follows that the change in the unit is

not in itself proof that the Union no longer represented a

majority of Respondent’s employees. |

In June 1974 the Union had about $11,000 in its treasury

and that amount was decreasing. However, the Union’s

liabilities did not exceed its assets, and even if they did the

Union’s financial condition would not indicate how many

employees the Union actually represented.

About that time the Union had approximately 1,000 mem-

bers, of whom between 700 and 800 were paid up in their

dues. Those are industry-wide figures and there is no way

. to tell from them how many of Respondent’s employees were

union members. Even if Respondent had established that a

majority of its employees were not members of the Union,

such a showing would not be the equivalent of establishing

a lack of desire of those employees for union representa-

tion. Employees may desire representation without wanting

to join a union or pay dues, Orion Corp., 210 NLRB 633,

enf. 515 F.2d 81 (C.A. 7, 1975). As the Board stated in

Wald Transfer & Storage Co., 218 NLRB No. 73:

It has been clearly established that a distinction exists

between union membership and union support, fore-

closing relying upon one as evidence of the other. Here,

union membership being voluntary in this right-to-work

State emphasizes that distinction. Many employees

while approving of the Union may not choose to give

it their financial support or participate as members.®

3. See Terrell Machine Company, 173 NLRB 1480 (1969),

enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929;

N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 592

(C.A. 5, 1966).

Appendix 31

The Union sought funds from the International to organ-

ize employees in the industry and to build up its membership

so that it would have strength in negotiating the next con-

tract. The Union also accepted International trusteeship.

Those facts, however, do not indicate whether or not

Respondent represented a majority of Respondent’s em-

ployees. The Union wanted to obtain more members in the

industry and it engaged in some internal revisions, but it

would be sheer speculation to make an evaluation based on

those facts as to the number of Respondent’s employees the

Union actually represented.

Some of the bartenders at the Overland Hotel in Reno

told Staff, in substance, that they were dissatisfied with the

Union. There is no evidence in the redéord that any of the

employees of Respondent ever expresed dissatisfaction with

the Union to Staff.

There is nothing in the LM-2 forms filed by the Union

that can be read to indicate that a majority of Respondent’s

employees did not want representation by the Union.

The above matters in themselves and when considered

in connection with the matters set forth below relating to

Respondent’s claimed reasonable doubt as to the Union’s

majority, fall short of establishing that the Union in fact

did not represent a majority of Respondent’s employees.

C. The alleged reasonably based doubt

of the Union’s majority status

Respondent made its decision to question the Union’s

majority status on September 16, 1974, That decision was

made while Respondent was still part of the multi-employer

bargaining unit and still bound by the multi-employer con-

tract. At the same time that it decided to question the

Union’s majority, Respondent also decided to withdraw

32 Appendix

from the Association. The withdrawal from the Association

took place 2 days later on September 18, 1974, and both

Respondent and the Union were notified. However, Re-

spondent did not notify the Union that it questioned the

Union’s majority status until October 23, 1974. Respondent

did not file a petition for an election until July 25, 1975.

The Board has long held that questions relating to an

employer’s reasonably based doubt as to a union’s continued

majority cannot be resolved by the application of any

mechanical formulas and can only be answered “in the

light of the totality of all circumstances involved in a partic-

ular case.” Celanese Corporation of America, 95 NLRB 664.

In the instant case Respondent has raised a number of

matters on which it claims to have based a reasonable

doubt as to the Union’s majority. These matters must be

_ considered in the context of the major disruption in the

bargaining unit which occurred when Respondent withdrew

from the Association and the filing by Respondent of a

petition for an election, Also to be considered, however,

is the fact that Respondent made the decision to question

the Union’s majority before it withdrew from the multi-

employer bargaining unit and the fact that Respondent did

not see fit to file a petition for an election until some 10

months after it decided to question the Union’s majority.

At a meeting during the first part of August 1974, Re-

spondent’s Secretary-Treasurer and Comptroller Cannon

told General Manager Miltonberger and President Kelley

that the rumor was that the Union had about 800 to 1,000

members in the entire area. Membership in the Union is

one factor to be considered. People’s Gas System, Inc., 214

NLRB No. 141: Convair Division of General Dynamics,

169 NLRB 131. However, Cannon’s remarks were not only

based on rumor but were keyed to union membership in the

Appendix 33

industry as a whole rather than to membership among

Respondent’s employees, In addition, as is set forth in more

detail above, a lack of employee membership cannot be

equated to a lack of desire of employees for union repre-

sentation. Orion Corp., supra; Wald Transfer & Storage

Co., supra.

Sometime after July 22, 1974, Cannon read articles in

local newspapers which reported that the Union was reor-

ganized and had brought in organizers, Cannon’s testimony

with regard to those newspaper articles gives little support

for his contention that he reasonably doubted the Union’s

majority status.

At a meeting on September 10 or 12, 1974, Cannon re-

ported to the other Company officials that the rumor was

that the Union was financially in trouble, and that the Union

was trying to organize and obtain funds from out of state.

Rumors are not objective criteria. In any event a union

may have financial difficulties whether or not it represents

a majority, and organizational activity only indicates that

a union desires more members than it has.

At the meeting in the first part of August 1974, Cannon

told the other officials of Respondent that, to his knowledge,

no grievances had ever been filed by the Union.”® A union’s

lack of activity is one factor that must be evaluated in

determining whether a company has a reasonably based

doubt of a union’s majority. Taft Broadcasting, 201 NLRB

801. However, in the instant case there is no showing that

the filing of grievances was warranted, and there is no

showing that the Union failed to actively represent the

employees in the past. Cannon testified that sometime be-

19. Cannon also said that there never had been any correspond-

ence as far as an election was concerned. As is set forth above, the

presumption of majority can be based on either certification or

voluntary recognition.

34 Appendix

tween the end oi July and early October 1974, he asked

Supervisors McHatton and Schlegel if there had been any

union activity around and McHatton told him there had

been people in there. Apart from that testimony and Can-

non’s assertion that no grievances had been filed, there is no

evidence that Cannon believed that the Union had been

inactive in the past or that the Union’s activity during the

summer of 1974 was substantially different than it had

been before.”

In the first part of August 1974, Cannon spoke to Kelley

and Miltonberger about the turnover rate of its employees.

The rate was about 4 to 1 a year, with founemployees being

hired for every one that remained per year. Cannon said

that he didn’t think the Union had a controlling member-

ship because of the amount of personnel turnover. At the

meeting of September 16, 1974, at which the decision to

question the Union’s majority was made, Cannon told the

other officials of Respondent that the turnover was so great

that he could not see how the employees would bring in a

vote for the Union. High turnover is one circumstance

among others that must be considered. People’s Gas System,

Inc., supra; Convair Division of General Dynamics, supra;

Kentucky News, Inc., 165 NLRB 777. However, high em-

ployee turnover in itself is insufficient to establish a reason-

able doubt as to a union’s majority, and the Board has

repeatedly held that new employees will be presumed to

support the Union in the same ratio as those they may

replace. Strange and Lindsey, Inc., 219 NLRB No. 190;

20. McHatton testified that he couldn’t “recollect” whether he

had seen Union business agents on the premises for business pur-

poses before September 1974. Schlegel testified that when he worked

at Respondent’s premises between May and December 1974, he saw

one union representative in September. That testimony does not

establish a lack of union activity. In addition, there is no evidence

that those supervisors communicated such information to Cannon.

Appendix 35

King Radio Corporation, 208 NLRB 578, enf. 510 F.2d 1154

(C.A. 10, 1975).

Cannon knew that some of the employees were dissatisfied

with the Union. Waitress Tucker told Cannon that she had

never belonged to the Union and that she couldn’t see where

the Union could do anything. Tucker made a similar remark

to McHatton which was passed on to Cannon. McHatton

also passed on to Cannon the remark by employee Wilmurth

that Wilmurth didn’t see what good the Union was going

to do.** In addition, McHatton told mangement officials

about bits and pieces of conversations he heard from other

employees, the names of whom he could not recall, con-

cerning the Union going broke, the Union not having enough

organized people and their feeling that the Union could not

do anything for them. Schlegel told Cannon that he over-

heard casino cashier Drew say that she didn’t care for

union activities and she couldn’t understand what the Union

could do for her. Drew was not within the bar and culinary

employees bargaining unit. Respondent’s evidence thus

establishes that Cannon had reason to believe that three

named employees, one of whom was not a member of the

bargaining unit in question, had expressed disapproval of

the Union. In addition, he was informed that bits and pieces

of overheard conversations by an undisclosed number of

other employees, also indicated dissatisfaction. There were

between 35 and 52 employees in the bar and culinary em-

ployees unit. The evidence adduced by Respondent falls

far short of establishing that a majority of the employees

in the bargaining unit expressed displeasure with the

Union. The number of employees who expressed displeasure

with the Union was insubstantial with relation to the overall

21. If is noted that Wilmurth we for membership in the

Union and paid his initiation fees and dues.

0 ET Se

i 5

*

a |

4

Ae

36 Appendix

employee complement in the unit and Respondent could not

base a reasonable doubt of majority on such a limited num-

ber of remarks. Cf. Strange and Lindsey Beverages, Inc.,

supra. .

In United Supermarkets, Inc., 214 NLRB No. 142, the

Board held that an employer did not have a reasonable

doubt based on objective facts as to the Union’s continuing

majority status. The Board held:

A showing of such doubt requires more than an em-

ployer’s mere assertion of it, and more than proof of

the employer’s subjective frame of mind. The assertion

must be supported by objective considerations, that is,

some substantial and reasonable grounds for believing

the Union has lost its majority status. [Footnotes

omitted. |

_After considering all of the factors set forth above, I con-

clude that Respondent did not have substantial and reason-

able grounds for believing the Union had lost its majority

status. Respondent’s assertion in that regard was based on

subjective rather than objective considerations.” In sum, I

find that the presumption of continued majority has not

been rebutted either by a showing that the Union in fact

lost its majority status or by a showing that Respondent

had a sufficient objective basis for reasonably doubting the

Union’s continued majority. I find that Respondent violated

Section 8(a)(5) and (1) of the Act as alleged in the com-

plaint.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent, set forth in Section ITI,

above, occurring in connection with the operations of Re-

22. Cannon’s remark that turnover was so great that he could

not see how the employees would bring in a vote for the Union was

merely one example of Respondent’s subjective approach.

Appendix . 37

spondent described in Section I above, have a close, intimate

and substantial relation to trade, traffic and commerce

among the several states and tend to lead to labor disputes

burdening and obstructing commerce and the free flow of

commerce.

V. The Remedy

Having found that Respondent has engaged in unfair

labor practices, I shall recommend that it be ordered to

cease and desist therefrom and to take certain affirmative

action designed to effectuate the policies of the Act.

Having found that Respondent violated Sections 8(a) (5)

and (1) of the Act by unlawfully withdrawing recognition

from the Union and by refusing to bargain with the Union

as the exclusive representative of its employees in the afore-

said appropriate unit, I recommend that Respondent be

ordered to recognize and, upon request, to bargain in good

faith with the Union as the exclusive representative of its

employees in that unit. ;

Conclusions of Law

1. Respondent is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act, and

it will effectuate the policies of the Act for the Board to

assert jurisdiction.

2. The Union is a labor organization within the meaning

of Section 2(5) of the Act.

3. All employees employed by the Respondent in its

bar and culinary operations at its Crystal Bay, Nevada,

operations, excluding all other employees, guards and super-

visors as defined in the Act, constitute a unit appropriate

for the purposes of collective bargaining within the meaning

of Section 9(b) of the Act.

“ia ere ae, ee ee eS rea ae titel

ST OOS EEL PTS ENP toe oe eye oh”

PROCES MRE « Qecatag aren re om . a

om

38 Appendix x

4, At all times material herein, the Union has been the

exclusive bargaining representative of the employees in

the aforesaid appropriate unit within the meaning of Sec-

tion 9(a) of the Act.

5. By withdrawing recognition from the Union and by

refusing to bargain with the Union, Respondent has en-

gaged in unfair labor practices within with meaning of

Section 8(a)(5) of the Act.

6. By the foregoing conduct, Respondent has interfered

with, restrained and coerced employees in the exercise of

rights guaranteed in Section 7 of the Act, thereby engaging

in unfair labor practices within the meaning of Section

8(a)(1) of the Act.

7. The aforesaid unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

Upon the foregoing findings of fact, conclusions of law,

7 and upon the entire record, and pursuant to Section 10(ce)

of the Act, I hereby issue the following recommended :*

ORDER

Respondent, Tahoe Nuggett, Inc. d/b/a Jim Kelley’s

Tahoe Nugget, its officers, agents, successors and assigns,

shall: 3

1. Cease and desist from:

(a) Refusing to recognize and bargain in good faith with

Hotel-Motel-Restaurant Employees & Bartenders Union,

Local 86, Hotel & Restaurant Employees & Bartenders

23. In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions and recommended Order

herein shall, as provided, in Section 102.48 of the Rules and Reg-

ulations, be adopted by the Board and become its findings, conelu-

sions and Order, and all objections thereto shall be deemed waived -

for all purposes.

Appendiz 39

International Union, AFL-CIO, as the exclusive represent-

ative of its employees in the following bargaining unit:

All employees employed by it in its bar and culinary

operations at its Crystal Bay, Nevada, operations, ex-

cluding all other employees, guards and supervisors

as defined in the Act.

(b) In any like or related manner, interfering with, re-

straining or coercing employees in the exercise of their

rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action which is neces-

sary to effectuate the policies of the Act:

(a) Recognize and, upon request, bargain in good faith

with Hotel-Motel-Restaurant Employees & Bartenders

Union, Local 86, Hotel & Restaurant Employees & Bar-

tenders International Union, AFL-CIO, as the exclusive

representative of its employees in the unit described above.

(b) Post at its Crystal Bay, Nevada, facility copies of

the attached notice marked, “Appendix.’™ Copies of the-

notice on forms provided by the Regional Director for

Region 20, after being duly signed by its authorized repre-

sentative, shall be posted by it immediately upon receipt

thereof, and be maintained by it for 60 (sixty) consecutive

days thereafter in conspicuous places, including all places

where notices to employees are customaril? posted. Reason-

able steps shall be taken by it to insure that said notices

are not altered, defaced or covered by any other material.

(c) Notify the Regional Director for Region 20, in writ-

24. In the event the Board’s Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD,” shall be changed to:read “POSTED PURSUANT

TO A JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

| ~ -~~naaanenstans BD a i ee

De

40 Appendiz

ing, within 20 (twenty) days from the date of this Order

what steps it has taken to comply herewith. 3

Dated: January 28, 1976.

Richard D. Taplitz

Administrative Law Judge

Appendix 41

Appendix

Form NLRB-4727

(9-69)

NOTICE TO EMPLOYEES

PostTep BY ORDER OF THE

Nationau Lasor Retations Boarp

An Agency of the United States Government

We hereby notify you that:

WE WILL NOT refuse to recognize and bargain in good

faith with Hotel-Motel-Restaurant Employees & Bartend-

ers Union, Local 86, Hotel & Restaurant Employees & Bar-

tenders International Union, AFL-CIO, as the exclusive

representative of our employees in the following bargain-

ing unit:

All employees employed by us in our bar and culinary

operations at our Crystal Bay, Nevada, operations, ex-

cluding all other employees, guards and supervisors

as defined in the Act.

WE WILL NOT in any like or related manner interfere

with, restrain or coerce employees in the exercise of their

rights guaranteed by Section 7 of the Act.

WE WILL recognize and, upon request, bargain in good

faith with said Union as the exclusive representative of our

employees in that unit.

Tahoe Nuggett, Inc. d/b/a

Jim Kelley’s Tahoe Nugget

(Employer)

IE aivaisscteseatcaen TOP... sccontitibasnipanhaaneseinnionsciedaienamantbion

(Representative) (Title)

42 Appendiz

This Is an Official Notice and Must Not Be Defaced

by Anyone

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. Any questions concerning

this notice or compliance with its provisions may be di-

rected to the Board’s Office, 13018 Federal Building Box

36047, 450 Golden Gate Avenue, San Francisco, California,

94102. Telephone Number: (415) 556-6721.

Appendix 43

Appendix D(1)

227 NLRB No. 73

MJ W

D—1504 si

Crystal Bay, Nev.

United States of America

Before the National Labor Relations Board

Nevada Lodge

and

Hotel-Motel-Restaurant

Employees & Bartenders Union, Local 86,

Hotel & Restaurant Employees & Bartenders

International Union, AFL-CIO

Received Dec 20 1976

Severson, Werson, Berke & Melchior

Cases 20—CA—9648 and

20—C A—9847

DECISION AND ORDER —

On March 8, 1976, Administrative Law Judge Richard D.

Taplitz issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief. General Counsel and the Charging Party filed briefs

in support of the Decision.

The Board has considered the record and the attached |

Decision in light of the exceptions apd briefs’ and has de- |

cided to affirm the rulings, findings,’ and conclusions* of

the Administrative Law Judge and to adopt his recom-

mended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

SO OO ee ee es ee

44 Appendiz

adopts as its Order the recommended Order of the Adminis-

trative Law Judge and hereby orders that the Respondent,

Nevada Lodge, Crystal Bay, Nevada, its officers, agents,

" successors, and assigns, shall take the action set forth in the

said recommended Order.

Dated, Washington, D.C. December 16, 1976

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member

National Labor Relations Board

(Seal)

1. Respondent’s request for oral argument is hereby denied, as

the record and the briefs adequately present the issues and the

positions of the parties.

Respondent has moved to strike the Charging Party’s brief on

the ground that the brief makes certain assertions which are mis-

leading and unfounded in fact. We consider Respondent’s motion

_ to be without merit and hereby deny it.

2. The Respondent has excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board’s estab-

lished policy not to overrule an Administrative Law Judge’s res-

olutions with respect to credibility unless the clear preponderance

of all of the relevant evidence convinces us that the resolutions are

incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950),

enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the

record and find no basis for reversing his findings.

3. For the reasons enunciated in our decision in Tahoe Nugget,

Inc., 227 NLRB No. 72 (1976) we agree with the Administrative

Law Judge that the presumption of majority status flowing from

the contract in the multiemployer unit survives Respondent’s time-

ly withdrawal from that unit and carries over to the newly created

single-employer unit.

Respondent has excépted to the Board’s asserting jurisdiction in

this proceeding. It argues that the Board’s assertion of jurisdiction

over the gaming industry is arbitrary and capricious when com-

pared to the Board’s refusal to assert jurisdiction over the horse-

racing and dogracing industries. The Board has in previous cases

considered and rejected arguments identical to those now raised by

Respondent. El Dorado Inc. d/b/a El Dorado Club, 151 NLRB 579

(1965) ; The Anthony Company d/b/a El Dorado Club, 220 NLRB

No. 152 (1975). We adhere to our approach in those eases and ac-

cordingly affirm the Administrative Law Judge’s decision asserting

jurisdiction over Respondent.

Appendix 45

Member Walther, dissenting:

For the reasons enunciated by me in my dissenting opin-

ion in Tahoe Nugget, Inc., 225 NLRB No. 112 [sic], I dissent

from my colleague’s conclusion that the presumption of

majority status flowing from the contract in the multiem-

ployer unit survives Respondent’s timely withdrawal from

that unit and carries over to the newly created single-

employer unit. Accordingly, in the absence of proof of

majority standing, I would dismiss the complaint.

Dated, Washington, D.C. December 16, 1976

Peter D. Walther, Member

National Labor Relations Board

re ee

=e or ee Pea eee

aad

46 Appendix

Appendix D(2)

JD-(SF)-56-76

Crystal Bay, Nev.

United States of America

Before the National Labor Relations Board

Division of Judges

Branch Office

San Francisco, California

Cases Nos. 20-CA-9648

20-C A-9847

Nevada Lodge

and

Hotel-Motel-Restaurant Employees &

Bartenders Union, Local 86,

Hotel & Restaurant Employees & Bartenders

International Union, AFL-CIO

Stuart R. Dvorin and Eileen H. Hamamura, Attys.,

of San Francisco, Calit., fur the General Counsel.

Severson, Werson, Berke & Melchior

by William W. Wertz, Ally., of San Francisco, Calif.,

for Respondent.

Davis, Cowell € Bowe by Richard G. McCracken, Atty.,

of San Francisco, Calif., for the Charging Party.

DECISION

Statement of the Case

Richard D. Taplitz, Administrative Law Judge: This

case was tried in South Lake Tahoe, California, on October

21 and 22, 1975. The charge, and the first, second, third,

fourth and fifth amended charges in Case No. 20-CA-9648

were filed on October 16, November 13 and 18, December 26,

Appendix 47

1974, February 27 and June 2, 1975, respectively, by Hotel-

Motel-Restaurant Employees & Bartenders Union, Local

86, Hotel & Restaurant Employees & Bartenders Interna-

tional Union, AFL-CIO, herein called the Union. The

charge in Case No, 20-CA-9847 was filed by the Union on

January 9, 1975. The complaint, which issued on August 13,

1975 and was amended at the hearing, alleges that Nevada

Lodge, herein called Respondent, violated Sections 8(a) (1)

and (5) of the National Labor Relations Act, as amended.

Issues

The primary issues are:

1. Whether Respondent violated Section 8(a)(1) of the

Act by announcing and granting increases in pay and em-

ployee benefits in order to induce employees to abandon

their support for the Union.

2. Whether Respondent violated Section 8(a)(5) and

(1) of the Act by withdrawing recognition from and refus-

ing to bargain with the Union as the collective-bargaining

representative of its bar and culinary employees. Subsid-

iary issues with regard to that allegation are:

(a) Whether the rebuttable presumption of the Union’s

continued majority status which flowed from a contract in

a multiemployer bargaining unit survived Respondent’s

timely withdrawal from that unit and was applicable to a

single-employer bargaining unit.

(b) If the presumption did apply, whether Respondent

has rebutted that presumption by affirmatively establishing

that the Union had, in fact, lost its majority or by showing

that Respondent had sufficient objective bases for reason-

ably doubting the Union’s continued majority.

A further issue is whether the Respondent has engaged

in any conduct tending to encourage employee disaffection

from the Union.

48 Appendix

3. Whether Respondent violated Section 8(a)(5) and

(1) of the Act by unilaterally instituting a dental insurance

plan without prior notification to or consultation with the

Union.

All parties were given full opportunity to participate, to

introduce relevant evidence, to examine and cross-examine

witnesses, to argue orally and to file briefs. Briefs, which

have been carefully considered, were filed on behalf of the

General Counsel, Respondent and the Charging Party.

Upon the entire record of the case and my observation

of the witnesses and their demeanor, I make the following:

Findings of Fact

I. The Business of Respondent

Respondent is a corporation engaged in the operation of

a restaurant, hotel and gaming casino at Crystal Bay,

‘Nevada. During the past calendar year Respondent’s gross

revenues were in excess of $500,000, and during that year

Respondent purchased and received goods valued in excess

of $10,000 which-originated outside of Nevada.

Respondent is an employer engaged in commerce and in

a business affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the Act, and it will effectuate the poli-

cies of the Act for the Board to assert jurisdiction. See

The Anthony Company d/b/a El Dorado Club, 220 NLRB

No. 152 and cases cited therein.

II. The Labor Organization Involved

The Union is a labor organization within the meaning of

Section 2(5) of the Act.

Ill. The Alleged Unfair Labor Practices

; A. The Background-

The Reno Employers Council, herein called the Asso-

ciation, is a Nevada corporation with an office in Reno,

Appendix 49

Nevada. It is a voluntary association of employers engaged

in the casino, restaurant and other industries. The Associa-

tion exists, in part, for the purpose of representing its

member-employers in collective bargaining and in admin-

istering collective-bargaining agreements with various

labor organzations, including the Union. The Union and the

Association entered into a multiemployer collective-bar-

gaining contract on August 3, 1959. The Association agreed

to the contract on behalf of employers it represented in the

Lake Tahoe area.’ Succeeding contracts followed,? with the

last effective from December 1, 1971 through November 30,

1974.2 That contract was between the Union and the Asso-

ciation on behalf of the individual members thereof signa-

tory thereto, Five employers were signatory to the contract,

including Respondent.* The employees covered by that con-

tract were those in the employers’ bar and culinary opera-

tions at Lake Tahoe.

Respondent purchased its facility, which had formerly -

been operated as the Tahoe Biltmore, in November 1957.

The establishment was then closed for substantial recon-

struction. It opened in July 1958 with all new employees.

The Tahoe Biltmore had a single-employer collective-

bargaining agreement with the Union that was effective by

its terms until September 4, 1957. That contract covered

1. Loeal 45, Hotel. & Restaurant Employees & Bartenders In-

ternational Union, AFL-CIO was also party to that contract. Sub-

sequently, Local 45 merged into Local 86, the Union herein.

2. In some of those contracts new member-employers of the As-

sociation were added and other employers were deleted.

3. Nevada is a right-to-work state and none of the contracts

contained a union-secunity clause.

4. The signatory employers were Barney’s Club, Harvey's Re-

sort Hotel, Respondent, Sahara-Tahoe and Tahoe Nugget.

|

50 Appendix

employees of the Tahoe Biltmore who came under the juris-

diction of the Union. The complaint does not allege nor did

the General Counsel prove that Respondent is a successor-

employer who would be bound by the Tahoe Biltmore’s

collective-bargaining relationship with the Union, However,

Respondent joined the Association and became a party to

the multiemployer bargaining agreement that was executed

on’ December 4, 1960.5 Respondent continued to be a party

to the successive contracts through the one that expired on

November 30, 1974.

On September 17, 1974, Respondent timely withdrew its

membership from the Association.*? On October 25, 1974,

Respondent refused to bargain with the Union, and Re-

spondent has withdrawn recognition from the Union. On

July 25, 1975, Respondent filed a petition for an election

with the Board. That petition sought an election among

Respondent's culinary and bartender employees in a single-

employer unit. The complaint alleges a refusal to bargain

in that single-employer unit. The complaint alleges, the

answer admits, and I find that the appropriate bargaining

unit is:

All employees employed by the Respondent in its bar

and culinary operations at its Crystal Bay, Nevada

operations, excluding all other employees, guards and

supervisors as defined in the Act.

In September 1974 Respondent announced and granted

across-the-board wage increases for its cooks, waitresses

5. Respondent’s General Manager Carlton Konarske testified

that to his knowledge there was no contract when Respondent

opened in 1958. He also testified that shortly after the opening

Respondent agreed to recognize the Union, but that he did not know

whether that was before or after Respondent joined the Association.

6. The General Counsel concedes in its complaint that the with-

drawal was timely.

Appendix 51

and busboys, all of whom were employed in the bargaining

unit, The wage increases were announced and granted with-

out prior notification to or consultation with the Union.

Respondent contends that the increases were lawful pur-

suant to the then outstanding collective-bargaining contract

which stated in part:

Article I, Section 6. Employer May Increase Benefits,

Privileges and Wages Without Prejudice.

The employer is granted the right to increase any

privileges, benefits or wages provided for by this Agree-

ment, In the event the Employer does increase any

such benefits, wages or privileges he may, without

prejudice, reduce said benefits, wages or privileges at

any time he may choose to do so, provided that, under —

no circumstances, will any employee covered there-

under be paid, or given less than the minimum benefits,

wages and privileges provided for herein.

The complaint does not allege nor does the General Coun-

sel contend that the increase in wages violated Section 8(a)

(5) of the Act. It is contended, however, that the increase

was unlawful in that it was announced and granted in order

to induce employees to abandon their support for the Union.

After the Respondent withdrew recognition from the Union

and after the contract expired, Respondent announced and

granted a number of employee benefits, which are set forth

in detail below, The General Counsel contends that all of

those benefits were intended to undermine the Union in viola-

tion of Section @(a)(1) of the Act, Also, after the expiration

of the contract, Respondent instituted a dental insurance

plan without notification to or consultation with the Union.

The General Counsel alleges that that action violated Section

8(a) (5) of the Act.

52 Appendix

B. The Refusal to Bargain

1. The facts

a. The testimony of Staff

Alfred E, Staff is the bar manager for the Overland Hotel

in Reno. From early July 1973 to June 7, 1974, when the

Union was placed under trusteeship, Staff was president of

the Union.’ During that time Staff, in addition to being union

president, was a full-time bartender, The only full-time paid

union officer was Secretary-Treasurer and Business Mana-_

ger E. W. Tucker. Staff testified that a number of events

occurred during the summer of 1974. However, it is ap-

parent that those events took place before the trusteeship

and the sequence of events set forth below is keyed to the

June 7 trusteeship date. Otherwise, the following findings

are based on Staff’s credited testimony.

In June 1974, the Union had about $11,000 in its treasury

and that amount was decreasing. However, the Union’s

liabilities did not exceed its assets. The Union had approxi-

mately 1,000 members, of whom between 700 and 800 were

paid up in their dues.* In the spring of 1974, the Union sent

Business Manager Tucker to the headquarters of the Inter-

national in Cincinnati to see if he could obtain money to

help the Union organize. The executive committee of the

Union had discussed the need to obtain more members and

to build the membership up to a point where the Union could

have some strength when it met with the employers to nego-

7. Staff was unsure on his dates, He averred that he believed

the trusteeship was imposed in August, but that it might have been

in June. Howard Lawrence, a business representative who is the

chief executive officer of the Union in the Lake Tahoe area, testified

that the trusteeship was imposed on June 7, 1974. I credit Lawrence.

8. At another point in his testimony, Staff averred that there

were about 700 to 750 paid up members and in addition there were

about 150 other people who were on the membership rolls who were

not paid up, but who were not suspended. The highest number of

members during Staff’s term of office was about 1200.

_

Appendix 53

tiate the nex. contract. Tucker went to Cincinnati and dis-

cussed the matter with representatives of the International.

He then returned and reported to the executive committee

that the International would give the Union money to organ-

ize if the officers resigned, the Union went into trusteeship,

and the International administered the Union, The execu-

tive committee decided to let the International take over.

The matter was brought up at the next regular meeting of

the Union, and a inajority of the membership voted to

accept the trusteeship. The officers resigned and the trustee-

ship was imposed on June 7, 1974. Al Bramlet was appointed

International trustee. 7

During the summer of 1974, Tucker told Staff that there

were about 30,000 employees in the Lake Tahoe and Reno

areas who were employed in categories over which the

Union had jurisdiction.

Conversations with Tucker and Staff’s review of member-

ship records led Staff to believe that of the approximately

900 or 1,000 union members in May 1974, about 20 percent

of them were in the Lake Tahoe area and the balance were

in Reno, Staff appeared confused in his testimony with

regard to the distinction between union members and em-

ployees represented by the Union. His testimony read as a

whole clearly indicates that when he was referring to the

approximately 900 or 1,000 employees and to the 20 percent

figure, he was referring to members and not to all em-

ployees who were represented through coverage by out-

standing contracts.

In the spring of 1974, the Union placed announcements in

loca] newspapers stating that the Union would hold a

meeting to discuss with employees what it would ask in

contract negotiations and to see if it could get more people

interested in an expansion of the Union, The employees

54 Appendix

invited were those in the Lake Tahoe area. No employees

showed up for the scheduled meeting and it was not held.

During the time that he was president, Staff spoke to

some union bartenders that he worked with at the Overland

Hotel in ‘Reno and he received comments from them to the

effect that they were discouraged with the Union, that the

Union didn’t do anything for them, and that they did not

like the way the Union was being run. Some bartenders

said: “When is the Union going to be able to do anything

for us,” “They never do nothing for us,” “What’s the sense

of joining a Union.” He never received any compliments

on the performance of the Union. In addition to talking to

bartenders at the Overland Hotel, he spoke to some culinary

workers at various clubs in the Reno area in an attempt to

organize them, However, there is no evidence in the record

that any employee of Respondent expressed dissatisfaction

with the Union to Staff.

Staff did not communicate any of the matters related

above to Respondent and there is no indication in the

record that Respondent knew of the substance of those

matters at the time that it refused to bargain with the Union.

Apparently Respondent is relying on Staff’s testimony

solely for the purpose of attempting to prove that the

Union, in fact, did not have majority status. With regard

to the matters set forth below, Respondent contends that

it did have a reasonably based doubt as to the Union’s

majority, upon which it acted in withdrawing recognition.

9. As the Board held in Bartenders, Hotel, Motel and Restau-

rant Employers Bargaining Association of Pocatello, Idaho, and

its Employer-Members, 213 NLRB No. 74, an employer’s reasonably

based doubt of a union’s majority status must be predicated on

information it had at the time of its refusal to bargain. See, also,

Orion Corp., 210 NLRB 633, enfd. 515 F.2d 81 (C.A. 7, 1975).

Appendix 55

b. Remarks by employees of Respondent, conversations

between supervisors, and the newspaper articles

In early September 1974, when Respondent was review-

ing its turnover rates with a view toward questioning the

Union’s majority status, Respondent employed 165 or.

more” employees in the bar and culinary unit. The decision

to question the Union’s majority status was made by Re-

spondent’s General Manager Carlton K. Konarske. Kon-

arske received certain direct and indirect reports concern-

ing the attitude of some of the employees in that unit

toward the Union.

In early August 1974, waitress Leona Gau told Konarske

that she had no interest in the Union and that most of the

girls were not interested in belonging to the Union. In a

second conversation a short time later, Gau told Konarske

that there was going to be a union meeting and that, though

she was not interested in going, she was curious. Within

the next week or two, Konarske saw three or four employ-

ees wearing union pins. About that time Gau told Konarske

that she objected to the Union’s forcing the pins on em-

ployees and that she objected to the Union’s trying to in-

duce busboys to join the Union because the busboys were

going to college and wouldn’t be there very long. She also

told Konarske that she had no intention of supporting the

Union.™

10. At one point in his testimony Konarske testified that there

were about 165 culinary workers and 26 or 27 cocktail waitresses,

barboys or bartenders. Later he indicated that there were about 165

employees in the entire unit.

11. These findings are based on the uncontradicted testimony of

Konarske. Union records show that Gau joined the Union on Sep-

tember 9, 1974, and paid her dues for October. They also show that

she paid $3.50 on September 14, 1974, for a union pin. However,

those facts do not warrant the discrediting of Konarske. Gau did

not testify and it may well be that Gau told Konarske what she

thought Konarske wanted to hear even though she was in favor of

the Union.

ee ee

eb ate i ae Bn

2 eet Vea Oo CRE” yp™

56 Appendix

In late August or early September, pantryman Louis

Ronzo told Konarske that the Company should not be con-

cerned about the Union because the Union got little support

from the cooks. He also told Konarske that he (Ronzo) had

no respect for the Union, that the Union didn’t do the cooks

any good, and that they were satisfied and pleased with

working conditions as established by management.” -

In August 1974, cocktail waitress Ellen Dungan told

Konarske that he did not have to worry about the cocktail

waitresses and busboys because, with one exception, none

of them were concerned about the Union. She said that they

didn’t feel that the Union was necessary for their welfare

and that she did not want to pay dues to the Union.

Konarske testified that in late August 1974 he spoke to

bartender Max DeCaminada, who told him that he was not

interested in the Union and was not going to join. At the

time of the trial DeCaminada was still working for Re-

spondent. DeCaminada paid a reinstatement fee of $35 to

the Union on June 27, 1974, and continued to pay his dues

through January 1975. DeCaminada testified that he had

no conversation with Konarske concerning the Union in

1974. DeCaminada, while he was testifying, impressed me

as a fully credible witness. His testimony was consistent

with the fact that he was a dues paying member of the

Union. As between Konarske and DeCaminada I credit

DeCaminada.

On September 21, 1974, Konarske received a report that

a union representative was in the kitchen. He went to the

12. These findings are based on the credited testimony of Ko-

narske. Union records establish that Ronzo was a union member

and paid his dues from 1970 until he died in October 1974. While

the matters in those records shed some doub on Konarske’s ered-

ibility, once again this may be a situation where an employee was

attempting to eurry favor with his emplover.

ee rend ww

Appendix 57

kitchen and asked Union Representative Bob Hart what he

was doing there. Hart replied that he had been speaking to

baker William Schu. Konarske told Hart that Hart was not

allowed in that area without permission and Hart left.

Konarske then spoke to Schu in the presence of another

baker, Paul Harbaugh. Schu told Konarske that the Union

had no right to come back there and that he wished the

Company would keep “these pests” out of there. Schu also

said that he was not interested in the Union and he was

getting fed up with them. Harbaugh said that he was satis-

fied with every condition there and he did not want the

Union back there bothering his department. Harbaugh also

said that there was no advantage to belonging to the

Union.”

Near the end of September 1974, cook Jim Curreo told

Konarske that the Company did not have to worry about

the cooks supporting the Union and that almost everybody

was against the Union. He also told Konarske that they

were satisfied with management’s working conditions.

In addition to receiving reports from the employees

mentioned above, Konarske had conversations with two

supervisors concerning the Union. They were Bar Manager

Dutch Connor and Hotel and Food Manager Ross Hender-

son."

13. These findings are based on the credited uncontradicted tes-

timony of Konarske. Neither Schu nor Harbaugh testified. Union

records show that Harbaugh joined the Union on June 26, 1974,

and paid his dues for July through October 1974. He was suspended

in December 1974. For the reasons set forth above, I do not believe

that the matters set forth in the union records warrant the discred-

iting of Konarske.

14. At all times material herein Henderson was hotel manager.

Henderson testified that he was given the additional title of food

manager in September 1974. Konarske testified that the additional

title was given October 1, 1974.

ee

58 Appendix

In August 1974, Konarske asked Connor what the status

was of the employees under his jurisdiction at the bar.

Connor replied that there was no problem among the cock-

tail waitresses or busboys, but that he was uncertain

whether or not. the bartenders would support the Union.

In mid-September 1974, Konarske asked Henderson

whether Henderson knew about the Union and the help

downstairs. Henderson replied that he didn’t think they

had a thing to worry about and that the girls were not

supporting the Union at all. Henderson reported to Kon-

arske a conversation that he (Henderson) had with Execu-

- tive Chef Dave Rightman™ in which Rightman said that

there would be no problem with the Union with relation to

the girls and busboys and that there would be no support

for the Union from them.’* Henderson had several conver-

_ sations with Konarske in which he (Henderson) said that

it was his opinion that the Union lacked support in the

culinary workers unit and that there was a lack of interest

in the Union.

In early July 1974, Konarske read an article in the

Nevada State Journal or the Reno Gazette which indicated

that the Union was having financial difficulties, that it was

undergoing a trusteeship and that Al Bramlet was being

put in charge. Sometime in the summer of 1974, he read

another article in a Reno paper concerning the Union re-

organizing. In July 1974, he heard a report on the radio

15. Rightman had authority to hire and fire employees and he

was a supervisor within the meaning of the Act.

16. These findings are based on the credited testimony of Kon-

arske, Henderson credibly testified that Rightman told him that

there was very little interest shown in union activity and that a

flyer had come around advertising a union meeting, which had

ended up in the wastebasket. Henderson did not mention the flyer

to Konarske. Rightman has nothing to do with the bar and he was

speaking to Henderson only about coffeeshop employees.

Appendiz 59

to the effect that the Union was having financial difficulties,

that it was going to be placed into trusteeship by the Inter-

national and that Al Bramlet was going to be the trustee."

c. The decision to withdraw recognition

Respondent acknowledges that on or about October 25,

1974, it refused to bargain with the Union and that it has

withdrawn recognition from the Union. Respondent con-

tends that at the time it refused to bargain it had sufficient

objective basis for reasonably doubting the Union’s con-

tinued majority.

The remarks of certain employees concerning their atti-

tude toward the Union and various conversations between

supervisors relating to the employees’ attitudes are dis-

cussed above. Also, as indicated above, Konarske obtained

information concerning the Union’s trusteeship and the

financial difficulties of the Union. In addition, Konarske

knew that Nevada is a right-to-work state. He also knew

that an election had never been held in the bar and culinary

unit,

Konarske testified that in early September 1974 he re-

viewed the Company’s turnover rate for employees in the

bar and culinary unit and came to the conclusion that the

rate was about 100 percent per year. He averred that that

was an educated guess and that later he was of the opinion

that the rate was even higher, At the time there were 165

or more employees in the unit. He testified that the per-

centage of turnover was less in the bar area, which was

17. Union Executive Officer Howard Lawrence credibly testified

that the Union was solvent and able to pay its bills, that the Inter-

national felt that additional organizing efforts had to be made, that

additional sums of money had to be put in, that the money would

come from the International, that the International wished to retain

control of that money, and that the money was given on condition

that there be a trusteeship.

SOS PE nn ee

60 Appendix

more stable. Konarske was very vague with regard to the

method he used to evaluate the turnover rate, but I credit

his assertion that the turnover rate was very substantial.

Konarske credibly testified that to his knowledge there

had been no grievances filed from 1958, when Respondent

opened the premises, until after October 25, 1974, when

Respondent refused to bargain, and that he never received

any oral grievances. He also credibly testified that he was

familiar with the collective-bargaining contracts, that he

operated the business in conformity with those contracts,

and that he never consciously violated them. He also

averred that no violations were ever brought to his atten-

tion.

In mid-June 1974, Howard Lawrence, the Union’s execu-

tive officer for the Lake Tahoe area, visited Respondent’s

_ premises and spoke to employees. He was told that seven

employees were scheduled to be terminated because of a

company rule that prohibited relatives from working to-

gether. The following day he held a meeting with 15 or 18

employees at the Carpenters Hall in Kings Beach and the

proposed terminations were discussed, On June 18 or 19,

1974, he met with Executive Chef Dave Rightman at Re-

spondent’s premises and he protested the discharges.

Rightman made a phone call and then agreed to rehire five

of the seven employees.

During Lawrence’s meeting with the employees there

were complaints from employees that the 10-minute breaks

and half-hour lunches were not being provided. Lawrence

gave them a grievance form which was signed by employees.

The grievance form was sent to the Nevada Labor Com-

mission and the matter was later resolved.

The only written grievance filed by the Union related to

the discharge of two employees, Alicia Faulkner and Brenda

Randall. That grievance was filed on November 15, 1974.

Lawrence discussed the matter with Konarske. Later Law-

Appendix 61

rence received:a letter dated November 23, 1974, from Re-

spondent’s Hotel Manager Henderson, advising him that

Clinton Knoll of the Association would contact him with

regard to a board of adjustment hearing.

It appears that the Union did not process any formal or

informal grievances from the time Respondent opened the

premises in 1958 until about June 18 or 19, when Lawrence

contacted Executive Chef Dave Rightman concerning the

seven discharges. However, there is no evidence that the

Union abandoned the bargaining unit or failed to represent

the unit employees during that period. Konarske knew of

the outstanding collective-bargaining contracts and was un-

aware of any violations. There is no indication that the

Union was aware of any company practices that violated

the contract. Konarske credibly testified that through the

years he met several business agents at Respondent’s

premises. Though he also testified he did not meet them

very often, they were apparently there at times. In June

1974, Lawrence was at the premises speaking to employees

and later in the month he was there protesting certain dis-

charges to Respondent’s Executive Chef Rightman. On

September 21, 1974, Konarske saw Union Representative

Bob Hart on the premises. At all times through November

30, 1974, the collective-bargaining contract was in effect.

Respondent withdrew from the Association on September

17, 1974. Konarske testified that Respondent became a

single employer rather than remain in the multiemployer

bargaining unit because he did not believe the Union con-

tinued to represent a majority of Respondent’s employees

and if Respondent continued in the Association, there might

18. The letter was dated November 23, 1974. It is noted that

Respondent withdrew from the Association on or about September

17, 1974.

62 Appendix

be some groups that would sustain the Union’s majority.

He further averred that it would not be to Respondent’s

advantage to stay in the Association. Shortly before or

after September 17, 1974, Respondent retained an attorney

and, according to the testimony of Konarske, the attorney

“was to use any necessary method to get us disassociated

with the Union.”

d. The Union’s demand for negotiations, Respondent’s

refusal and the petition for an election

The last contract expired by its terms on November 30,

1974. By letter dated July 22, 1974, Union International

Trustee Al Bramlet notified Respondent of his desire to

modify and change the ecntract and sought to arrange for

collective-bargaining negotiations. On September 17, 1974,

Respondent withdrew from the Association and on the same

' date Meta K. Fitzgerald, one of the owners of Respondent,

wrote to the Union enclosing a copy of a letter it had sent

to the Association and notifying the Union that Respondent

terminated the collective-bargaining agreement as of the

end of the term thereof. On September 27, 1974, Philip

Bowe, the Union’s attorney, wrote to Respondent acknowl-

edging receipt of the September 17, 1974 letter (which

notified the Union of Respondent’s withdrawal from the

Association) and requesting that Respondent immediately

contact Bramlet to discuss a convenient time and place for

negotiations. By a letter to the Union dated October 10,

1974, Respondent, through Meta Fitzgerald, stated that

Respondent had never dealt with Bowe or Bramlet and

asked what Bramlet’s relation to the Union was. By letter

dated October 15, 1974, Bowe explained to Respondent that

Bramlet was the International trustee and that Tucker,

who had been secretary-treasurer of the Union, was now

an 2

Appendix 63

‘Bramlet’s assistant. By letter dated October 18, 1974, Bowe

demanded that Respondent begin negotiations. By letter

dated October 25, 1974, Respondent’s Attorney Nathan

Berke reminded the Union that Respondent had timely

withdrawn from the multiemployer unit and was handling

its own collective bargaining. The letter went on to state:

If the ambiguity in Mr. Bowe’s letter is considered

a request to bargain in a single employer unit, then at

the instructions of our client, we inform you that our

client has a genuine doubt that your Local represents

an uncoerced majority of its employees in an appropri-

ate unit. If following a validly conducted election in an

appropriate unit under the aegis of the National Labor

Relations Board, your Local should be selected as the

bargaining agent, our client will at such time fulfill

whatever legal obligation it may then have.

Should you file a petition with the Board for an

election, our client will cooperate looking toward an

election in accordance with the Labor-Management Re-

lations Act, as amended and the Board’s applicable

rules and regulations.

The Union filed a first amended unfair labor practice

charge on November 13, 1974, in which it alleged that Re-

spondent unlawfully refused to bargain with it.

Respondent admits that commencing on or about October

25, 1974, it has refused to bargain collectively with the Union

and has withdrawn recognition from the Union.

On July 25, 1975, which was about 9 months after the

refusal to bargain and about 8 months after the filing of

the refusal to bargain charge, Respondent filed a petition

for an election with the Board. The petition was blocked by

the unfair labor practice charge and was thereafter dis-

missed.

a

64 Appendix

2. Analysis and conclusions with regard to

the refusal to bargain”

a. The presumption of majority

As the Board held in Walter E. Heyman d/b/a Stanwood

Thriftmart, 216 NLRB No. 154:

A contract, lawful on its face, raises a presumption

that the contracting union was the majority represent-

ative at the time the contract was executed, during the

life of the contract, and thereafter.’

2. Shamrock Dairy, Inc., 119 NLRB 998, 1002 (1957),

and 124 NLRB 494, 495-496 (1959), enfd. 280 F.2d 665

(C.A.D.C), cert. denied 364 U.S. 892 (1960).

In the instant case, the presumption of continued major-

ity status is based on a contract in a multiemployer bar-

gaining unit. The complaint alleges a refusal to bargain in

a single-employer bargaining unit. A serious question is

presented whether the presumption of continued majority

which flowed from the existence of the multiemployer con-

tract survived the withdrawal of Respondent from the mul-

tiemployer unit and can be applied to the newly created

single-employer unit. There has never been any contract

between Respondent and the Union in the single-employer

unit and, therefore, any presumption of majority must flow

from Respondent’s inclusion in the multiemployer contract

that expired on November 30, 1974.

In Downtown Bakery Corp., 139 NLRB 1352, enf. den. in

pert. part 330 F.2d 921 (C.A. 6, 1964), a suecessor employer

19. Much of the legal analysis set forth below is the same as that

which is contained in my decisions in Sahara-Tahoe Corporation,

d/b/a Sahara-Tahoe Hotel, JI)-(SF)-9-76 (issued January 21,

1976), Tahoe Nugget, Inc., d/b/a Jim Kelley’s Tahoe Nugget, JD-

(SF)-19-76 (issued January 28, 1976), and Barney’s Club, Incor-

porated, JD-(SF)-35-76 (issued February 20, 1976), cases that in-

volved many of the same legal principles.

Appendix 65

refused to bargain with a union where that union was the

Board-certified representative of the employees in a multi-

employer bargaining unit which included a predecessor

employer. In that case the predecessor employer had signed

a separate collective-bargaining agreement with the union.

Relying on a presumption of continued majority, the Board

found that the successor employer violated Section 8(a) (5)

of the Act by refusing to bargain with the union in the

single-employer unit, The Sixth Cireuit Court of Appeals

refused to enforce the Board’s bargaining order, holding

in part that there was not sufficient evidence in the record

to support a finding of majority status of the union.

In The Richard W. Kaase Company, 141 NLRB 245, enf.

den. in pert. part 346 F.2d 24 (C.A. 6, 1965), a similar fae-

tual pattern was presented, and the Board followed its

Downtown Bakery Cery. precedent. In The Richard W.

Kaase Company ease, a union was certified as the collective-

bargaining agent of the employees of employers in a

multi-employer bargaining unit which included a prede-

cessor employer. That employer executed a separate

collective-bargaining agreement. Thereafter, a successor

employer continued to recognize the predecessor’s contract

but later withdrew recognition. The Board found that the

successor violated Section 8(a)(5) of the Act. The Sixth

Cireuit Court of Appeals once again refused to enforce the

Board’s order, holding: “the ambiguity inherent in the

multiemployer election here relied on vitiates its efficacy to

prove a majority as to any single employer.”

The Board law established by the Downtown Bakery and

Richard W. Kaase Company cases is not directly applicable

to the instant situation. In each of those cases, the individ-

ual emplover had signed separate collective-bargaining con-

tracts with the union, and the presumption of continued

66 Appendix

majority could flow from those contracts rather than from

the multiemployer certification. In the instant case, the ini-

tial collective-bargaining contract was in a multiemployer

bargaining unit and the succeeding contracts to which Re-

spondent was a party were multiemployer bargaining con-

tracts.?° However, I believe that the presumption of contin-

ued majority flowing from the multiemployer contracts

requires a derivative presumption of the Union’s majority

status which is applicable to each of the emplover-members

of the multiemployer bargaining unit separately. Unless a

majority of an employer’s employees desire representation

by a union, that employer may not lawfully force repre-

sentation on them by joining a multiemployer bargaining

arrangement. Mowhawk Business Machines Corporation,

116 NLRB 248; Dancker & Sellew, Inc., 140 NLRB 824, enf.

_ 830 F.2d 46 (C.A. 2, 1964). Thus, Respondent would have

violated the Act in 1960 when it became party to the multi-

employer collective-bargaining agreement if a majority of

its employees did not desire representation. Any unfair

labor practice charge relating to such a violation would

have had to have been filed within 6 months from that time.

Respondent may not now either attack the initial bargain-

ing relation or use it to establish a defense to a refusal to

bargain complaint. As the Board held in North Bros. Ford,

Inc., 220 NLRB No. 154:

Section 10(b) of the Act confines the issuance of

unfair labor practice complaints to events occurring

during the 6 months immediately preceding the filing

of a charge and has been interpreted by the Supreme

20. It is also noted that, unlike the instant situation, both those

eases involved conflicting representational claims by rival unions.

21. See also Walter E. Heyman d/b/a Stanwood Thriftmart,

supra.

—

Appendix 67

Court to bar finding any unfair labor practice, even

though committed within that period, which turns on

whether or not events outside that period violated the -

Act. Bryan Manufacturing Co The Court, holding

that maintenance and enforcement of a contract more

than 6 months after recognition of a minority union

did not violate the Act, relied in part on the legislative

history indicating that Congress specifically intended

Section 10(b) to apply to agreements with minority

unions in order to stabilize bargaining relations. Not-

ing that labor legislation traditionally entails com-

promise, the Court observed

that the interest in employee freedom of choice is

one of those given large recognition by the Act as

amended. But neither can one disregard the interest

in “industrial peace which it is the overall purpose

of the Act to secure.”

The Board, in light of Bryan, has since held that Sec-

tion 10(b) is applicable to a refusal-to-bargain defense

that the bargaining relation was unlawfully estab-

lished.® ¢

8. Local Lodge No, 1424, IAM, AFL-CIO | Bryan Manu-

facturing Co.] v. N.L.R.B., 362 U.S. 411 (1960).

4. Id. at 428, citations omitted.

5. Barrington Plaza and Tragniew, Inc., 185 NLRB 962

(1970), enforcement denied on other grounds sub nom., Trag-

niew, Inc., and Consolidated Hotels of California v. N.L.R.B.,

470 F.2d 669 (C.4 9, 1972) ; Roman Stone Construction Com-

pany, and Kindred Concrete Products, Inc., 153 NLRB 659,

footnote 3 (1965).

Respondent may not, at this late date, attack either the

initial recognition of the Union by Respondent or the initial

contract. It cannot defend against the refusal-to-bargain

ney

S

68 Appendia

complaint on the ground that the original contract was

entered into at a time when the Union did not represent a

majority of the employees of Respondent. Nor can it defend

on the ground that the Union did not represent a majority

of the employees in the overall multiemployer bargaining

unit. That contract must be considered valid on both those

grounds. The presumption of majority status which con-

tinued over the years based on successive contracts applies

both as to the employees of Respondent and to the employ-

ees in the multiemployer unit. I therefore find that the Gen-

eral Counsel has properly relied on that presumption to

establish the Union’s majority in the unit in question. It

remains to be considered whether Respondent has success-

fully rebutted that presumption.

b. The attempt to rebut the presumption

(1) The background law

In James W. Whitfield d/b/a Cutten Supermarket, 220

NLRB No. 64, the Board summarized the existing law,

holding :

It is well settled that Section 8(a)(5) and Section

8(d) of the Act require an employer to recognize and

bargain in good faith with the bargaining representa-

tive selected by a majority of its employees. That rec-

ognition establishes a presumption of majority status

which, in circumstances such as this, may be rebut-

ted.* The employer may lawfully refuse to bargain

with the union if it rebuts the presumption by affirma-

tively establishing that the union has in fact lost its

majority status, or shows that it has sufficient objec-

tive bases for reasonably doubting the union’s contin-

6. Cf. N.L.R.B. v. Prick Company, 423 F.2d 1327 (C.A. 3,

1970) ; Keller Plastics Eastern, Inc., 157 NURB 583 (1966).

Appendix 69

ued majority status.’ To establish sufficient objective

bases, however, requires more than the mere assertion

thereof hased upon the employer’s subjective frame of

mind.® Furthermore, the employer must not have en-

gaged in any conduct tending to encourage employee

disaffection from the union.’

7. Celanese Corporation of America, 95 NLRB ‘664, 672

(1951); Peoples Gas System, Inc., 214 NLRB No. 141 (1974).

8. Laystrom Manufacturing Co., 151 NLRB 1482 (1965),

enforcement denied 359 F.2d 799 (C.A. 7, 1966); Automated

Business Systems, Inc., a Division of Litton Business Systems,

ry 205 NLRB 532 (1973), enf. denied 497 F.2d 262 (C.A.

6, 1974).

9. Peoples Gas System, Inc., supra.

In Bartenders, Hotel, Motel and Restaurant Employers

Bargaining Association of Pocatello, Idaho and its Em-

ployer-Members, 213 NLRB No. 74, the Board held that

these principles are equally applicable whether the union

was certified by the Board or was recognized without Board

certification. In that case, the Board held that the existence

of a prior contract, lawful on its face, raised a presumption

that the union was the majority representative at the time

the contract was executed and also raised the presumption

that the union’s majority continued at least through the life

of the contract. The Board held that “Following the expi-

ration of the contract ... the presumption continues and,

though rebuttable, the burden of rebutting it rests on the

party who would do so... .”

(2) The alleged actual loss of majority

For the reasons set forth above, the presumption of con-

tinued majority which flowed from the contract survived

the change in the bargaining unit and applied to the single-

employer unit. It follows that the change in the unit is not

in itself proof that the Union no longer represented a ma-

jority of Respondent’s employees.

70 Appendix

In June 1974, the Union had about $11,000 in its treasury

and that amount was decreasing. However, the Union’s lia-

bilities did not exceed its assets, and even if they did, the

Union’s finaneial condition would not indicate how many

employees the Union actually represented. Even if Staff

were correct in his estimate that there were about 30,000

employees in the Lake Tahoe and Reno areas who were

employed in categories over which the Union had jurisdic-

tion, that figure would not give any insight into how many

employees the Union in fact did represent.

About that time the Union had approximately 900 or

1,000 members, of whom perhaps 20 percent were from the

Lake Tahoe area. Between 700 and 800 were ‘paid up in

their dues. Those are industry-wide figures and there is no

way to tell from them how many of Respondent’s employees

were union members. Even if Respondent had established

that a majority of its employees were not members of the

Union, such a showing would not be the equivalent of estab-

lishing a lack of desire of those employees for union repre-

sentation. Employees may desire representation without

wanting to join a union or pay dues. Orion Corp., 210 NLRB

633, enf. 515 F.2d 81 (C.A. 7, 1975). As the Board stated in

Wald Transfer & Storage Co., 218 NLRB No. 73:

It has been clearly established that a distinction exists

between union membership and union support, fore-

closing relying upon one as evidence of the other. Here,

union membership being voluntary in this right-to-

work State emphasizes that distinction. Many em-

ployees while approving of the Union may not choose

to give it their financial support or participate as mem-

bers.*

3. See Terrell Machine Company, 173 NLRB 1480 (1969),

enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929;

N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 592

(C.A. 5, 1966). om

|

|

:

\

:

|

Appendix 71

The fact that employees in the industry at the Lake did

not attend a union meeting after announcements were

placed in newspapers may indicate some apathy on the

part of employees who happened to see the announcements.

It does not indicate that a majority of Respondent’s em-

ployees no longer desired to be represented by the Union.

The Union sought funds from the International ic organ-

ize employees in the industry and to build up its menaber-

ship so that it would have strength in negotiating the next

contract. The Union also accepted International trusteesl ip.

Those facts, however, do not indicate whether or not the

Union represented a majority of Respondent’s employees.

The Union wanted to obtain more members in the industry ~

and it engaged in some internal revisions, but it would be

sheer speculation to make an evaluation based on those

facts as to the number of Respondent’s employees the Union

actually represented.

Some of the bartenders at the Overland Hotel in Reno

told Staff, in substance, that they were dissatisfied with

the Union. There is no evidence in the record that any of

the employees of Respondent ever expressed dissatisfaction

with the Union to Staff.

The above matters in themselves, and when considered

in connection with the matters set forth below relating to

Respondent’s claimed reasonable doubt as to the Union’s

majority, fall short of establishing that the Union in fact

did not represent a majority of Kespondent’s employees.

(3) The alleged reasonably based doubt

of the Union’s majority status

The Board has long held that questions relating to an

employer’s reasonably based doubt as to a Union’s con-

tinued majority cannot be resolved by the application of

72 ; Appendix

any mechanical formulas and can only be answered “in the

light of the totality of all circumstances involved in a par-

ticular case.” Celanese Corporation of America, 95 NLRB

664. In the instant case Respondent has raised a number

of matters on which it claims to have based a reasonable

doubt as to the Union’s majority. These matters must be

considered in the context of the major disruption in the

bargaining unit which occurred when Respondent withdrew

from the Association, and also in the context of the filing-

by Respondent of a petition for an election. Respondent

withdrew from the Association more than a month before

it refused to bargain with the Union in the single-employer

unit. Respondent contends that at the time of the with-

drawal from the Association it doubted the Union’s ma-

jority in the single-employer unit and disassociated itself

_from the Association because it thought that there might

be some groups in the multiemployer unit that would sus-

tain the Union’s majority. Respondent’s General. Manager

Konarske believed that it would not be to Respondent’s

advantage to stay in the Association. About the time of the

withdrawal from the Association, Respondent’s attorney,

according to Konarske, “was to use any necessary method

to get us disassociated from the Union.” Respondent did

not see fit to file a petition for an election until some 9

months after it refused to bargain with the Union.

Konarske, the official who made the decision to refuse

to bargain with the Union, knew that Nevada was a right-

to-work state. However, no inference can be drawn from

that concerning whether or not the Union represented a

majority of. Respondent’s employees. Cf. Wald Transfer

€ Storage Co., 218 NLRB No. 73. Konarske also knew that

no election had ever been held among its employees. How-

ever, the presumption of majority can be based on either

Appendix 73

vertification or voluntary recognition, and where an em-

ployer voluntarily recognizes a union, it cannot use that

fact as a basis for doubting the union’s majority. Cf. Bar-

tenders, Hotel, Motel and Restaurant Employers Bargain-

ing Association of Pocatello, Idaho, and its Employer-

Members, supra.

Konarske read in the newspapers and heard on the radio

that the Union was in trusteeship and that the Union had

financial difficulties. He could also gather from his conver-

sations with supervisors and employees and from his ob-

servation of employees’ union pins that the Union was

engaging in organizational activities during the summer of

1974. The fact that the Union was undergoing internal re- —

visions does not indicate whether or not it continued to

represent a majority of Respondent’s employees. A union

may have financial difficulties whether or not it represents

a majority, and organizational activity only indicates that

a union desires more members than it has.

Konarske knew that there was a very substantial turn-

over among the bar and cutinary employees. At first, he

estimated that turnover at about 100 percent a year and

later he concluded that it was even higher. High turnover

is one circumstance, among others, that must be considered

in determining whether an employer has a reasonably based

doubt as to a union’s majority status. People’s Gas System,

Inc., 214 NLRB No. 141; Convair Division of General Dy-

namics, 169 NLRB 131; Kentucky News, Inc., 165 NLRB

777. However, high employee turnover in itself is insufficient

to establish a reasonable doubt as to a union’s majority,

and the Board has repeatedly held that new employees

will be presumed to support a union in the same ratio as

those they may replace. Strange and Lindsey, Inc., 219

NLRB No. 190; King Radio Corporation, 208 NLRB 578,

enf. 510 F.2d 1154 (C.A. 10, 1975).

ELLE EE I DLO a

’

74 Appendix

Konarske knew that some of the employees were dissatis-

fied with the Union. Employee Gau told Konarske that she

had no interest in the Union and that she had no intention

of supporting the Union. Employee Ronzo told Konsarke

that he (Ronzo) had no respect for the Union. Employee

Dungan told Konarske that she did not feel that the Union

was necessary and that she did not want to pay dues to

the Union. Employee Schu told Koranske that he (Schu)

was not interested in the Union and was getting fed up

with them. Employee Harbaugh told Konarske that he

(Harbaugh) was satisfied with conditions and that there

was no advantage to belonging to the Union. Employee

Curreo told Konarske that they were satisfied with manage-

ment’s working conditions.

In all, there were six employees who expressed some dis-

_ satisfaction with the Union to Konarske. Four of those

employees also told Konarske that other employees were

dissatisfied. Gau told him that most of the girls were not

interested in belonging to the Union. Ronzo told him that

the Company should not be concerned about the Union

because the Union got little support from the cooks and

they were satisfied and pleased with working conditions as

established by management. Dungan told him that he did

not have to worry about the cocktail waitresses and barboys

because, with one exception, none of them were concerned

about the Union and that they didn’t feel the Union was

necessary for their welfare. Curreo told him that the Com-

pany did not have to worry about the cooks supporting the

Union and that almost everybody was against the Union.

Respondent contends that it had reasonable basis for

doubting the Union’s continued majority. It cannot success-

fully support that contention through the testimony of

Konarske that four employees told him that unnamed other

a a

a iaeiinsien a ™

Appendix 75

employees were displeased wit the Union. Under the cir-

cumstances, Konarske could have had no way of evaluating

whether those four employees were basing their opinion as

as to the other unnamed employees on fact, conjecture or

rumor.

Six named employees did express some displeasure with

the Union to Konarske. Even if those expressions of dis-

pleasure can be equated with a desire on behalf of those

employees not to be represented by the Union,” Respondent

has fallen far short of establishing that a majority of the

employees in the bargaining unit did not want the Union

to represent them. Six out of the 165 or more employees

in the bar and culinary unit expressed displeasure with the

Union to Konarske. The number that had expressed dis-

pleasure was insubstantial with relation to the overall

employee complement in the unit and Respondent could not

base a reasonable doubt of majority on such a limited

number of remarks. Cf. Strange and Lindsey Beverages,

Inc., supra; Cornell of California, Inc., 222 NLRB No. 38.

Konarske also spoke to supervisors concerning the status

of the Union. Bar Manager Connor told Konarske that

there was no problem among the cocktail waitresses or

busboys, but that he was uncertain whether or not the

bartenders would support the Union. Hotel and Food Mana-

ger Henderson told Konarske that they didn’t have a thing

to worry about and that the girls were not supporting the

Union. Henderson reported to Konarske a remark made

by Supervisor Rightman to the effect that there would be

no problem with the Union with relation to the girls and

29. See Strange and Lindsey Beverages, Inc., supra, in which

the Board held that statements by employees that they did not want

to pay money to the union or that they did not want to get involved

did not indicate that those employees no longer wanted to be rep-

resented by the union.

AME GO oo ee

Fe a OS

A te oe enone ~ are

ee a ee ee, ee ae

76 Appendix

busboys and that there would be no support for the Union

from them. In addition, Henderson told Konarske that in

his (Henderson’s) opinion the Union lacked support in the

culinary workers unit and that there.was a lack of interest

in the Union. However, the subjective evaluations of super-

visors cannot be used as a basis for reasonably doubting a

union’s majority. As the Board held in Terrell Machine

Company, 173 NLRB 1480, enf. 427 F.2d 1088 (C.A. 4,

1970), cert. denied 398 U.S. 929 (1970) :**

To be of any significance, the evidence of dissatisfac-

tion with a validly recognized incumbent Union must

come from the employees themselves, not from the

employer on their behalf.

. The Union did not process any formal or informal griev-

_ ances from the time Respondent opened in 1958 until about

June 18 or 19, 1974, when Union Representative Lawrence

contacted Supervisor Rightman concerning certain dis-

charges. However, there is no showing that there were any

contract violations calling for grievances or that the Union

was inactive in representing the employees in the unit at

any time. Lack of activity by a union is one factor to be

considered in evaluating whether a company has a reason-

able doubt of the union’s majority. Taft Broadcasting, 201

NLRB 801. However, other than the lack of grievances,

Respondent has not established such a lack of activity.

Union agents were on the premises throughout the years

and successive contracts were in effect until Respondent

refused to bargain. There is no showing that the Union

failed in its responsibility to represent the employees.

23. In finding a violation in the Terrell case, the Board noted:

“That the Respondent could have filed a petition for an election, or

asked that the Union do so, in order to resolve its alleged doubt, but

it took no such steps.”

Appendix 17

In United Supermarkets, Inc., 214 NLRB No. 142, the

Board found that an employer did not have a reasonable

doubt based on objective facts as to the union’s continued

majority status. The Board held:

A showing of such doubt requires more than an em-

ployer’s mere assertion of it, and more than proof of

an employer’s subjective frame of mind, The assertion

must be supported by objective considerations, that is,

some substantial and reasonable grounds for believing

the union has lost its majority status. [Footnotes

omitted. ]

After considering all the factors set forth above, I conclude

that Respondent did not have substantial and reasonable

grounds for believing that the Union has lost its majority

status. Respondent’s assertion in that regard was based on

subjective rather than objective considerations. In sum, I

find that the presumption of continued majority has not

been rebutted either by a showing that the Union, in fact,

lost its majority status or by a showing that Respondent

had a sufficient objective basis for reasonably doubting the

Union’s continued majority.* In addition, as found below,

Respondent violated Section 8(a)(1) of the Act by an-

nouncing and granting across-the-board wage increases for

its cooks, waitresses and busboys in September 1974 in

order to induce employees to abandon their support for the

Union. Thus, at the time of the refusal to bargain, Respond-

ent was engaging in conduct tending to encourage em-

ployee disaffection from the Union.** Cf. James W. Whit-

24. Cf. N.L.R.B. v. Thompson, Inc., .....- F.2d ...... (C.A. 5,

1976), 91 LRRM 2137. :

25. The other violations of the Act found below occurred after

October 25, 1975, when Respondent claimed to doubt the Union’s

majority status and refused to bargain.

78 Appendix

field d/b/a Cutten Supermarket, 220 NLRB No, 64. I find

that Respondent refused to bargain with and withdrew

recognition from the Union in violation of Section 8(a) (5)

and (1) of the Act as alleged in the complaint.

C. The Other Violations Alleged in the Complaint

1. The alleged independent Section 8(a) (1) violations

The parties stipulated, and I find, that on an unknown

date-in September 1974, Respondent announced and granted

across-the-board wage increases for its cooks, waitresses

and busboys. The contract that was in effect at that time

provided in part :** “The Employer is granted the right to

increase any privileges, benefits or wages provided for by

this Agreement.” The General Counsel does not contend

that the increase constituted a violation of the contract or a

_ refusal to bargain with the Union. He does contend, how-

ever, that the increase violated Section 8(a)(1) of the Act

in that it was announced and granted to induce employees

to abandon their support for the Union, Respondent did not

give prior notification to or consult with the Union prior to

the increase, Respondent’s General Manager Konarske tes-

tified that the increase was granted on about September 17,

1974, because a competitor, the North Shore Club, had

opened near Respondent, that club had attracted some of

Respondent’s kitchen employees and waitresses, and Re-

spondent had to do something to counteract the competition.

Konarske also testified that article I, section 6 of the con-

tract permitted Respondent to do so.

26. The full text of article I, section 6 of the contract is set

forth above.

~ endl

Appendix 79

The parties stipulated and I find that on an unknown date

in December 1974, Respondent announced, and later on or

about January 1, 1975 put into effect, certain employee

service recognition pay, holiday pay and birthday pay pro-

grams. The announcement of the recognition pay program

indicated that a recognition program had previously been

in effect which paid service pay each Christmas and that

the new program changed the time of payment to the em-

ployees’ anniversary date as well as extending the program

to provide for employees who worked for 30 or more years.

Another announcement related to holiday and birthday

pay. That provided that a new benefit was to be effective

January 1, 1975, that granted time and a half pay to em-

ployees who worked on seven named holidays. It also pro-

vided that in addition to the holiday pay all employees

would receive as a birthday bonus either double time pay

for their birthday if their birthday fell on a regular work-

day and they had to work, or straight-time pey if their

birthday fell on their normal day off and they did not

work, All these benefits were granted without prior notifica-

tion to or consultation with the Union. Respondent offered

no evidence with regard to the reason for granting those

benefits,

The parties stipulated and I find that on an unknown

date in January 1975 Respondent announced and granted

to employees in the bargaining unit time and a half pay for

a 6th consecutive day worked, whereas prior to that the

employees in the unit had received straight time for having

worked an additional 6th day. The increase was announced

and granted without prior notification to or consultation

with the Union. Respondent offered no evidence concerning

the reason for the increase.

80 Appendix

The parties stipulated and I find that on an unknown

date in February 1975 Respondent announced, and on

February 15, 1975 Respondent instituted, a dental insur-

ance plan covering its employees, including those employees

in the bargaining unit. The plan was announced and insti-

tuted without prior notification to or consultation with the

Union, Respondent offered no evidence with regard to the

reason for the institution of the plan.

Whether or not the Union waived its right to bargain

about increases in employee benefits during the term of

the contract, Respondent was still subject to the provisions

of Section 8(a)(1) of the Act. It could not lawfully grant

benefits in order to induce employees to abandon their sup-

port for the Union.

Respondent granted the across-the-board wage increases

_ for its cooks, waitresses and busboys on about September

17, 1974. It was on September 17, 1974, that Respondent

withdrew from the Association. Respondent believed that it

would not be to its advantage to stay in the Association

and Respondent’s General Manager Konarske acknowl-

edged that Respondefit’s attorney “was to use any neces-

sary method to get us disassociated from the Union.” Kon-

arske’s own choice of language clearly establishes that he

was strongly motivated to avoid continued unionization.

That animus was manifested at about the same time that

Respondent granted the across-the-board wage increases

for its cooks, waitresses and busboys. Konarske’s bare as-

sertion that Respondent had to meet competition from an-

other club was unconvincing. There is no evidence in the

record concerning the competitor’s wage structure, nor is

there enough detail in Konarske’s testimony with regard to

Respondent’s competitive position to give that testimony

meaningful weight. Respondent introduced no testimony to

a

Appendiz 81

shed light on its past practices or established procedures

with regard to wage increases,

In December 1974, Respondent changed and improved

its service recognition pay program and provided holiday

pay and birthday pay. In January 1975, Respondent im-

proved the pay for 6th consecutive day worked, In Febru-

ary 1975, Respondent instituted a dental insurance plan.

Respondent introduced no evidence with regard to the rea-

son for those changes. Nor did Respondent introduce any

testimony to shed light on past practices or established

procedures with regard to improvements in benefits.

Under all these circumstances, I find that Respondent

announced and granted the wage increases and the employ-

ment benefits described above in order to induce employees

to abandon their support for the Union, thereby violating

Section 8(a) (1) of the Act.

2. The alleged unilateral change violation of

Section 8(a) (5) of the Act

The complaint also alleges that Respondent refused to

bargain in violation of Section 8(a)(5) of the Act by

unilaterally instituting the dental insurance plan described

above.

As is set forth above, article I, section 6 of the contract

that expired on November 30, 1974, provided that the em-

plover was granted the right to increase any privileges,

benefits or wages provided for by the. agreement, In addi-

tion, article IT, section 4 A of that contract provided:

The Employer agrees that all employees covered by

this Agreement shall be entitled to and shall receive

the same insurance benefits provided for the other

employees of the Employer working at the establish-

ments and/or locations referred to herein.

82 Appendix

The General Counsel argues that article I, section 6 of

the contract has no application to Respondent’s institution

of a dental insurance plan because that benefit was newly

created and was not an increase in “benefits . . . provided

for by this agreement.” I believe that the General Counsel’s

reading of the contract is unduly restrictive. The contract

provides for a number of benefits. Anything additional

granted to employees is an increase in those benefits. For

example, if two benefits are provided in a contract, a third

benefit, even if it is entirely new, is an increase in the

benefits already provided for by the contract, As the head-

ing of article I, section 6 states: “Employer May Increase

Benefits, Privileges and Wages Without Prejudice.” I do

not believe that the contract can be fairly read to mean

that the employer could freely raise wages in any amount

but was narrowly restricted in the type of benefits it could

add. In addition, the institution of the dental insurance plan

was permitted by another section of the contract. Article

IT, section 4 A, which is set forth above, provides that all

employees covered by the agreement shall be entitled to and

receive the same insurance benefits provided for the other

employees of the employer working at the establishment.

It was stipulated that the dental insurance plan covered

Respondent’s employees, including those employees in the

unit, Thus, it appears that nonunit employees also received

the dental insurance benefits. The contract, therefore, not

. only allowed Respondent to grant the same insurance bene-

fits to the unit employees but required that it be granted.

However, the Union’s contractual waiver of its right to

bargain about the dental insurance plan was not in effect

in February 1975 when the plan was announced and insti-

tuted. The contract expired on November 30, 1974, and the

contractual waivers contained in article I, section 6 and

article IT, section 4 A of the contract also expired at that

Appendix 83

time. As found above Respondent unlawfully refused to

bargain with the Union on October 25, 1974. Respondent’s

obligation to bargain in good faith with the Union is a

continuing one and was in effect after November 30, 1974,

when the contract expired. Once the contract expired, Re-

spondent had the obligation to maintain existing wages and

benefits while bargaining in good faith with the Union con-

cerning any changes. There was no contract outstanding

and therefore Respondent could not rely on any contractual

right to make unilateral changes, Even if the waiver pro-

visions could be considered part of the wage and bene-

fit package that had to remain unchanged and subject to

bargaining after the expiration of the contract, Respondent

could not use those provisions to justify a unilateral change

while unlawfully refusing to recognize and bargain with

the Union. In addition, that change in benefits was one of

many changes that were unlawfully made to induce em-

ployees to abandon their support for the Union. In the

circumstances described above, Respondent unilaterally

and without prior notification to or consultation with the

Union instituted the dental insurance plan.” By doing so,

Respondent violated Section 8(a)(5) and (1) of the Act.”*

TV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent, as set forth in Section ITI,

above, occurring in connection with the operations of Re-

27. The complaint does not allege nor does the General Counsel

urge a finding that the other wage and benefit changes were in

violation of Section 8(a) (5) of the Act. Therefore, no findings are

made in that regard.

28. Cf. Guerdon Industries, Inc., Armour Mobile Homes Divi-

sion, 218 NLRB No. 69; N.L.R.B. v. Benne Katz, d/b/a Williams-

burg Steel Products Co., 369 U.S. 736 (1962); Mosher Steel Com-

pany, 220 NLRB No. 47.

84 Appendiz

spondent described in Section I, above, have a close, inti-

mate and substantial relation to trade, traffic and commerce

among the several states and tend to lead to labor disputes

burdening and obstructing commerce and the free flow of

commerce.

V. The Remedy

Having found that Respondent is engaged in unfair labor

practices, I shall recommend that it be ordered to cease and

desist therefrom and to take certain affirmative action

designed to effectuate the policies of the Act. Nothing con-

tained in the recommended Order will require or permit

Respondent to withdraw or discontinue any wage increase

or other employee benefit already granted,

Having found that Respondent violated Section 8(a) (5)

_ and (1) of the Act by unlawfully withdrawing recognition

from the Union and by refusing to bargain with the Union

as the exclusive representative of its employees in the

aforesaid appropriate unit, I recommend that Respondent

be ordered to recognize and, upon request, bargain in good

faith with the Union as the exclusive representative of its

employees in that unit.

Conclusions of Law

1. Respondent is an employer engaged in commerce with-

in the meaning of Section 2(6) and (7) of the Act, and it

will effectuate the policies of the Act for the Board to

assert jurisdiction,

2. The Union is a labor organization within the meaning

of Section 2(5) of the Act.

3. By announcing and granting wage increases, by an-

nouncing and granting improved pay for service recogni-

SEIN,

Appendix 85

tion, holidays, birthdays and a 6th consecutive day worked,

and by instituting a dental insurance plan, all to induce

employees to abandon their support for the Union, Respond-

ent has engaged in unfair labor practices within the mean-

ing of Section 8(a) (1) of the Act.

4. All employees employed by. the Respondent in its bar

and culinary operations at its Crystal Bay, Nevada opera-

tions, excluding all other employees, guards and super-

visors as defined in the Act, constitute a unit appropriate

for the purposes of collective bargaining within the mean-

ing of Section 9(b) of the Act.

5. At all times material herein, the Union has been the

exclusive bargaining representative of the employees in

the aforesaid appropriate unit within the meaning of

Section 9(a) of the Act.

6. By withdrawing recognition from the Union and by

refusing to bargain with the Union, Respondent has en-

gaged in unfair labor practices within the meaning of

Section 8(a) (5) of the Act.

7. By unilaterally instituting a dental insurance plan

without notification to or consultation with the Union, Re-

spondent has engaged in an unfair labor practice within the

meaning of Section 8(a) (5) of the Act. :

8. By the foregoing conduct, Respondent has interfered

with, restrained and coerced employees in the exercise of

rights guaranteed by Section 7 of the Act, thereby en-

gaging in unfair labor practices within the meaning of

Seetion 8(a)(1) of the Act. —

9. The aforesaid unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

86 Appendix

Upon the foregoing findings of fact, conclusions of law,

and upon the entire record, and pursuant to Section 10(c)

of the Act, I hereby issue the following recommended :”

ORDER

Respondent, Nevada Lodge, its officers, agents, successors

and assigns, shall:

1. Cease and desist from:

(a) Announcing or granting any wage increase or em-

ployee benefit to induce employees to abandon their support

for the Hotel-Motel-Restaurant Employees & Bartenders

Union, Local 86, Hotel & Restaurant Employees & Bar-

tenders International Union, AFL-CIO. Nothing contained

in this Order will require or permit Respondent to with-

draw or discontinue any wage increase or other employee

_ benefit already granted.

(b) Refusing to recognize and bargain in good faith with

Hotel-Motel-Restaurant Employees & Bartenders Union,

Local 86, Hotel & Restaurant Employees & Bartenders In-

ternational Union, AFL-CIO, as the exclusive representa-

tive of its emplo: »»s in the following bargaining unit:

All employees employed by it in its bar and culinary

operations at its Crystal Bay, Nevada operations, ex-

cluding all other employees, guards and supervisors as

defined in the Act.

(ec) Unilaterally instituting any employee benefit with-

out bargaining in good faith with said Union.

29. In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions and recommended Order here-

in shall, as provided in Section 102.48 of the Rules and Regulations,

be adopted by the Board and become its findings, conclusions and

Order, and all objections thereto shall be deemed waived for all

purposes.

_ eee ee eee

Appendix 87

(d) In any like or related manner interfering with,

restraining or coercing employees in the exercise of their

rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action which is neces-

sary to effectuate the policies of the Act:

(a) Recognize and, upon request, bargain in good faith

with Hotel-Motel-Restaurant Employees & Bartenders

Union, Local 86, Hotel & Restaurant Employees & Bar-

tenders International Union, AFL-CIO, as the exclusive

representative of its employees in the unit described above.

(hb) Post at its Crystal Bay, Nevada facility copies of

the attached notice marked “Appendix.’”* Copies of said

notice on forms provided by the Regional Director for

Region 20, after being duly signed by its authorized repre-

sentative, shall be posted by it immediately upon receipt

thereof, and be maintained by it for sixty (60) consecutive

days thereafter in conspicuous places, including all places

where notices to employees are customarily posted. Reason-

able steps shall be taken by it to insure that said notices

are not altered, defaced or covered by any other material.

(ec) Notify the Regional Director for Region 20, in

writing, within twenty (20) days from the date of this

Order what steps it has taken to comply herewith.

Dated: March 8, 1976

Ricwarp D. Tapiitz

Richard D. Taplitz

Administrative Law Judge

80. Tn the event that the Board’s Order is enforeed by a Judg-

ment of a United States Court of Appeals, the words in the notice

reading “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read “POSTED PUR-

SUANT TO A JUDGMENT OF THE UNITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

88 Appendix

Appendix C

FORM NLRB—4727

(9-69)

NOTICE TO

EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE

UNITED STATES GOVERNMENT

We hereby notify you that:

WE WILL NOT announce or grant any wage increase or

employee benefit to induce employees to abandon their sup-

_ port for the Hotel-Motel-Restaurant Employees & Bar-

tenders Union, Local 86, Hotel & Restaurant Employees &

Bartenders International Union, AFL-CIO. Nothing con-

tained herein will require or permit us to withdraw or dis-

continue any wage increase or employee benefit already

granted.

WE WILL NOT refuse to recognize and bargain in good

faith with Hotel-Motel-Restaurant Employees & Bartenders

Union, Local 86, Hotel & Restaurant Employees & Bar-

tenders International Union, AFL-CIO, as the exclusive

representative of our employees in the following bargaining

unit:

All employees employed by us in our bar and culinary

operations at our Crystal Bay, Nevada operations, ex-

cluding all other employees, guards and supervisors as

defined in the Act.

|

Fy

Appendix *89

WE WILL NOT unilaterally institute any employee benefit

without bargaining in good faith with said Union.

WE WILL NOT in any like or related manner interfere

with, restrain or coerce employees in the exercise of their

rights guaranteed by Section 7 of the Act.

WE WILL recognize and, upon request, bargain in good

faith with said Union as the exclusive representative of our

employees in that unit.

NEVADA LODGE

(Employer)

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND

MUST NOT BE DERACED BY ANYONE

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. Any questions concerning

this notice or compliance with its provisions may be di-

rected to the Board’s Office, 13018 Federal Building, 450

Golden Gate Avenue, Box 36047, San Francisco, California

94102, Telephone Number: (415) 556-0335.