Peppermill Casino, Inc., 1202 (1998)

Peppermill Casino, Inc., d/b/a Peppermill Hotel Casino and Rainbow Casino and Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO. Cases 32- CA-16144, 32-CA-16214, and 32-RC-4285

July 29, 1998

DECISION, ORDER, AND DIRECTION

BY MEMBERS FOX, HURTGEN, AND BRAME

On May 5, 1998, Administrative Law Judge James

M. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order2 as

modified.3

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Peppermill Casino, Inc., d/b/a Peppermill Hotel Casino and Rainbow Casino, Wendover, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 2(b).

''(b) Within 14 days after service by the Region, post at its Wendover, Nevada facility copies of the attached notice marked 'Appendix.'5 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 12, 1997.''

2. Substitute the attached notice for that of the administrative law judge.

IT IS FURTHER ORDERED that Case 32-RC-4285 is severed from Cases 32-CA-16144 and 32-CA-16314, and that it is remanded to the Regional Director for Region 32 for action consistent with the Direction below.

[Direction of second election omitted from publication.]

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected concerted activities.

WE WILL NOT interrogate our employees about their union activities, the union activities of other employees, or how employees intend to vote in a representation election.

WE WILL NOT create the impression that the union activity of our employees is under surveil-lance.

WE WILL NOT threaten employees with discharge if they engage in union organizing activity.

1 In finding that the Respondent's director of maintenance, Carl Ahaus, violated Sec. 8(a)(3) by issuing a negative evaluation to employee Reggie Martin, the judge noted a number of inconsistencies in Ahaus' testimony concerning his stated basis for the poor evaluation. In addition to those cited by the judge, we note the following: According to Ahaus, Martin's alleged reluctance to talk to Ahaus on the job was the basis for prescribing improvement by Martin in the evaluation elements of ''supervisory relationship,'' ''ability to communicate,'' and ''attitude.'' Although Ahaus testified that the reluctance to talk commenced in April or May 1997, he later testified that it became a frequent occurrence only after the close of the evaluation period. Thus, as with other postevaluation matters to which Ahaus testified and which the judge addressed, this reason does not withstand scrutiny as the actual basis for the negative evaluation.

2 In recommending the direction of a new election, the judge noted a ''likelihood'' that the unlawful conduct directed at employees Martin and Omura had been disseminated to other voters in the election. Contrary to the judge, we do not presume that evidence of objectionable conduct of the type involved in this case was disseminated. See Sears Roebuck de Puerto Rico, 284 NLRB 258, 259 fn. 13 (1987). As the judge notes, the outcome of the election, a tie, could have been influenced by a change in either Martin's or Omura's vote alone.

3 We have modified the administrative law judge's recommended Order to reflect the date on which the first unfair labor practice occurred. Excel Container, 325 NLRB No. 14 (Nov. 7, 1997).

The judge inadvertently omitted from his notice the expunction remedy.

VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 01202 Fmt 0610 Sfmt 0610 D:\NLRB\325.177 APPS10 PsN: APPS10

WE WILL NOT offer benefits to employees in the form of better jobs or increased pay for voting against union representation.

WE WILL NOT issue negative annual personnel evaluations to any employee because he has engaged in the protected activity of organizing on behalf of a labor organization such as Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act.

WE WILL, within 14 days from the date of this Order, remove from our files the unlawfully promulgated annual personnel appraisal of Reggie Martin dated June 19, 1997, and within 3 days thereafter notify him in writing that this has been done and that the personnel appraisal will not be used against him in any way.

PEPPERMILL CASINO, INC., D/B/A

PEPPERMILL HOTEL CASINO AND RAINBOW CASINO

Sharon Chabon, Esq., for the General Counsel.

James T. Winkler, Esq. (Hicks & Walt), of Las Vegas, Nevada, for the Respondent.

Timothy Sears, of Alameda, California, for the Charging

Party.

DECISION

STATEMENT OF THE CASE

JAMES M. KENNEDY, Administrative Law Judge. This case was tried in Reno, Nevada, on October 23, 1997,1 based on a consolidated complaint issued by the Regional Director for Region 32 of the National Labor Relations Board. It is based on unfair labor practice charges filed on June 11 and July 10 by Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO (the Union). The complaint alleges that Peppermill Casino, Inc., d/b/a Peppermill Hotel Casino and Rainbow Casino (Respondent) has committed certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act. In addition, the Regional Director has ordered a hearing on two objections to the outcome of a representation election, Case 32-RC-4285, and has consolidated them with the unfair labor practice complaint. They track two of the allegations of the complaint.

The issues

The Union's election petition was filed on April 17. According to the complaint, prior to that filing, Respondent interrogated an employee about his union activity and the union activity of others, created the impression of surveil-lance of employees' union activities, and threatened an em-

ployee with discharge for engaging in union activity. Pursuant to a stipulated election agreement approved on May 8, a representation election was held on May 30. It resulted in a tie vote.2 According to the complaint, shortly before the election, Respondent interrogated two employees regarding how they intended to vote and impliedly promised improved benefits if the employees voted against union representation. Finally, the complaint asserts that 2 weeks after the election, Respondent issued an unsatisfactory work appraisal to an employee because he had supported the Union.

The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to orally argue, and to file briefs. All parties have filed briefs which have been carefully considered. Based on the entire record of the case, as well as my observation of the witnesses and their demeanor, I make the following

FINDINGS OF FACT

  1. JURISDICTION AND LABOR ORGANIZATION

    Respondent admits it is a Nevada corporation which operates a hotel, several restaurants, and two gaming casinos in Wendover, Nevada. It further admits that its annual gross volume of business exceeds $500,000 and that it annually purchases and receives goods and/or services from outside Nevada valued in excess of $5000. Based on those facts, it admits it is an employer within the meaning of Section 2(2),

    (3), and (6) of the Act. Likewise it admits that the Union is a labor organization within the meaning of Section 2(5) of the Act.

  2. THE UNFAIR LABOR PRACTICE ALLEGATIONS

    A. Background

    Respondent's businesses are located in Wendover, Nevada, a small and remote community located in the desert of the Great Basin on the Nevada-Utah border. It is accessible by Interstate 80, the highway between Reno, 400 miles to the west (on the western side of Nevada), and Salt Lake City, 125 miles to the east. The town has no room for growth because the land surrounding it is publicly owned. It is 2-1/2 miles long and 1/2 mile wide. It is home to five casinos, four small mining companies, and a few small motels. Most of the housing is owned by the casinos and are rental units for their employees.

    Four individuals own Respondent, including Albert Seeno of Pittsburg, California. They do not appear to be active in operating the businesses. Daily operations are conducted by the two general managers of each of the properties. They are Gary Lewis...

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