NLRB v. Harrah's Club

• Decision Date: 12 November 1968
• Docket Number: No. 21689.,21689.
• Citation: 403 F.2d 865
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRAH'S CLUB, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.2d 865 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRAH'S CLUB, Respondent.

No. 21689.

United States Court of Appeals Ninth Circuit.

November 12, 1968.

COPYRIGHT MATERIAL OMITTED

Solomon I. Hirsh (argued), Robert M. Lieber, Washington, D. C., Roy O. Hoffman, Director, N.L.R.B., San Francisco, Cal., Arnold Ordman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Washington, D. C., for appellant.

Nathan Berke (argued), of Severson, Werson, Berke & Bull, San Francisco, Cal., for appellees.

Before MERRILL and DUNIWAY, Circuit Judges, and CRARY, District Judge^*.

CRARY, District Judge:

The National Labor Relations Board seeks a decree enforcing its Order of May 10, 1966, against respondent, Harrah's Club, pursuant to section 10(e) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.). The Board's decision and Order are reported in 158 NLRB No. 67. The alleged unfair labor practices occurred in State Line, Nevada, on Lake Tahoe, where the respondent operates a gambling casino and restaurant.

There were twelve employees in the unit involved, which consisted of stage technicians, apprentice stage technicians, and a sound console operator, employed by Harrah's Club at Lake Tahoe.

On August 14, 1963, the Union filed a petition (Case 20-RC-5597) for a representative election among the above described stage technician group. The respondent and the Union stipulated for certification upon consent election. Election was held October 14, 1963. Twelve voted for the Union.

On October 18, respondent filed timely objection to alleged conduct of the Union affecting the result of the election. After an investigation of the objections, the Regional Director, on November 15, 1963, issued his report recommending dismissal of the objections.

Respondent excepted to the recommendations, and on February 27, 1964, the Board issued its Decision and Certificate of Representation adopting the findings and recommendations of the Regional Director dismissing the objections and certifying the Union as the exclusive bargaining agent of the unit employees.

The Union, on February 29, 1964, requested respondent to bargain collectively pursuant to the certification issued February 27, 1964. On March 1, 1964, the respondent refused, and charges were filed against respondent on March 12, 1964.

The hearing before the Trial Examiner was had in October, 1964, and April, 1965.

The Board, with few exceptions, approved and adopted the Findings of Fact of the Trial Examiner. His detailed findings outline supporting evidence and testimony introduced at the hearing before him. The Board found that respondent was engaged in commerce within the meaning of the Act and that it violated Section 8(a) (3) and (1) by laying off employees, Allan Cole (January 19, 1964), who had the least seniority among the stage technicians, and Bruce Lovelady (March 5, 1964), who had next to the least seniority, because of their Union activities. The Board further found that respondent violated Section 8(a) (1), (3) and (5) of the Act by unilaterally prohibiting unit employees from receiving gratuities (tokes) from performers and entertainers who appeared at Harrah's Club, and that it violated Section 8(a) (5) and (1) of the Act by refusing to recognize and bargain with the Union after its certification by the Board.

The respondent sets forth certain issues on appeal as follows:

I. Whether the Board should have reopened the record on respondent\'s motion following this court\'s decision in the prior case of NLRB v. Harrah\'s Club, 362 F.2d 425, (9 C.A.1966), to introduce evidence to establish substantial prejudice by the Board\'s assertion of jurisdiction.

II. Whether the Board should have granted respondent a hearing on its objections filed in the representation election proceedings.

III.A. Whether substantial evidence on the whole record is present to support the Board\'s findings that the layoffs of employees Cole and Lovelady were discriminatorily motivated and constituted violations of section 8(a) (1) and 8(a) (3) of the Act.

III.B. Whether findings of fact in the prior case of NLRB v. Harrah\'s Club, supra, were properly used as evidence to support the Board\'s findings and conclusions in the present case.

III.C. Whether respondent\'s offers of permanent full time employment to Cole and Lovelady on June 26 and July 1, 1964, were valid and made in good faith.

IV. Whether respondent\'s acts in discontinuing the practice of stage technicians receiving "tokes" from entertainers was the unilateral change of a condition of employment and remuneration in violation of section 8(a) (5) of the Act.

I. The Jurisdictional Issue

Respondent argues that the matter should be reopened before the Trial Examiner to allow respondent to offer evidence on the jurisdictional issue, that is, whether respondent has suffered substantial prejudice by reason of the Board's regulation of gaming whereas it does not similarly regulate race tracks. The decision of this court in NLRB v. Harrah's Club, 9 Cir., 362 F.2d 425, held that the Board had statutory jurisdiction over gaming subject to review only on the question of whether, in the circumstances, unjust discrimination will result. The court said:

"Assuming that the criteria applied by the Board in determining to exempt racetracks from regulation are equally applicable to gambling casinos in Nevada, this alone is not sufficient to establish that regulation of the gambling industry will result in unjust discrimination. It must also be shown that the gambling industry will be substantially prejudiced by Board regulation because racetracks are not similarly regulated. See N.L.R.B. v. Gene Compton\'s Corp., supra 262 F.2d 653." Page 427

The Union urges that although the decision of this court in NLRB v. Harrah's Club, supra, was not made until June 14, 1966, the respondent was bound to state with particularity the evidence it sought to introduce, preferably by affidavit of the proposed witnesses, and exactly what it expected to prove thereby in support of its "Motion to Remand to the Examiner and Reopen the Record," filed June 22, 1966. This was not done nor did respondent make a showing as to why it failed to produce the facts at the original hearing. Respondent contends it did state the evidence it sought to introduce but it appears it merely set forth how it expected to obtain the evidence it proposed to offer in support of its position without stating what the evidence would be.

No new principle of law was announced in the prior Harrah's Club case, supra, which might be said to excuse the respondent from stating the evidence it sought to introduce. NLRB v. Gene Compton's Corp., 262 F.2d 653, 655-656 (9 C.A.1959).

The court concludes the respondent's position is not well taken in the circumstances and the Board's Order denying the respondent's motion to remand for the purpose of offering evidence on the jurisdictional issue was proper. NLRB v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 241 (4 C.A.1958).

II. Respondent's Objections to Election Proceedings

In support of respondent's position that the Board should have granted a post-election hearing on its objections filed in the representation proceedings, it urges that the Union's certification was invalid because of interference in the election by the Union, in that the Union:

(1) Induced employees to vote for it by promising them

(a) back overtime pay alleged due;

(b) jobs in Las Vegas, Nevada, or in California;

(c) it would prevent respondent from cutting the stage crew to less than its present complement of twelve men.

(2) Threatened to blacklist employees and prevent them from obtaining employment elsewhere under Union jurisdiction if they did not vote for the Union; and

(3) Waived its rules with respect to taking tests, paying initiation fees and other requirements and issued membership cards in the union to the employees on the condition that they vote for the union.

The respondent would have been entitled to a hearing if substantial and material factual issues existed which could be resolved only after a hearing. NLRB v. Bata Shoe Company, Inc., 377 F.2d 821, 825-826 (4 C.A.1967). The court, in the Bata Shoe case, holds that no hearing is required in the absence of substantial and material issues crucial to determination of whether National Labor Relations Board election results are to be accepted for purposes of certification (page 826). In discussing the need for hearing, the court states:

"A hearing is unnecessary, therefore, where if all the facts contended for by the objecting party `were credited no ground is shown which would warrant setting aside the election.\' NLRB v. Air Control Prods. of St. Petersburg, Inc., supra, 335 F.2d 245 249; accord, NLRB v. Sun Drug Co., supra, 359 F.2d 408 at 414; NLRB v. Wilkening Mfg. Co., 207 F.2d 98, 100 (3d Cir.1953)." Page 826

It appears that the facts contended for by the respondent, if true, would warrant setting aside the election. However, there remains the question of the effect of the affidavits of certain of the stage technicians which refute the majority of the statements attributed to them, as set forth in affidavits offered by respondent of supervisory personnel and Paul E. Jordan, an employee of respondent but not a member of the stage technicians unit. The affidavit, which respondent relies on, set forth alleged statements made by various stage technicians of promises by the Union of benefits which would result to the stage technicians if the Union were voted in, and problems, including that of getting work, if the vote should be unfavorable to the Union.

The Regional Director made an ex parte investigation of respondent's objections and reported no evidence in support of the objections "other than purported conversations between rank and file employees which were reported to management officials." There was no...