Calabasas Park Co.

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 968 (N.L.R.B. 1975)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calabasas Park Co . and Dan F . Cotter. Case 31-
CA-11808
observation of the witnesses as they testified , I make the
following:
August 5, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On April 11, 1975, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Calabasas Park Co., Calaba-
sas Park, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT , Administrative Law Judge: Based on a
charge filed by Dan F. Cotter on October 15, 1974, the
complaint herein was issued on December 18, 1974. The
complaint alleges that Calabasas Park Co., hereinafter re-
ferred to as the Respondent or Company, violated Section
8(a)(1) of the Act on two occasions . Respondent by its
answer denies that it engaged in conduct violative of the
Act as alleged.
Pursuant to notice , a hearing was held in Los Angeles,
California, on February 4, 1975. Appearances were entered
on behalf of General Counsel and Respondent and briefs
were timely filed by said parties.
Based upon the entire record in this proceeding I and my
1 The motion of the General Counsel to correct the transcript of the pro-
ceeding is hereby granted.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now , and has been at all times material
herein , a partnership of Bechtel Corporation and Associat-
ed Southern Investment Company, engaged in the business
of land development and the operation of a country club at
Calabasas Park , California. Respondent , in the normal
course and conduct of its business operations , annually re-
ceives gross revenues in excess of $500 ,000 and annually
purchases and receives goods and supplies valued in excess
of $50,000 from firms which, in turn , purchased and re-
ceived said goods in substantially the same form directly
from suppliers located outside the State of California.
As is admitted by Respondent , it is now, and has been at
all times material herein , an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, Southern California Dis-
trict Council of Labors and its affiliated Local Union No.
300, both affiliated with the Laborers' International Union
of North America , AFL-CIO , hereinafter collectively re-
ferred to as the Union, are now, and at all times material
have been, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The employees involved in this proceeding are the bag
and cart room employees at the aforementioned country
club. Prior to the latter part of 1973, said employees were
employees of Mike Dowaliby , the golf professional who
independently operated the shop and other services for the
members of the club, particularly the bag and cart room
facilities . This arrangement was terminated in the latter
part of 1973 when Dowaliby and the employees of the fa-
cilities he had operated became employees of Respondent.
Respondent has had , for more than the 6 years preced-
ing the hearing , two collective-bargaining agreements with
the Union , one covering the culinary workers under an
agreement referred to as the culinary agreement , and the
other covering the maintenance employees referred to as
the maintenance agreement. In late 1973 or early 1974, a
representative of the Union approached Respondent and
requested that the bag and cart room employees be includ-
ed among Respondent's employees represented by the
Union. According to Harold LaVon, the property opera-
tions manager and an admitted supervisor within the
meaning of the Act, there were two problems raised by this
request ; first, whether said employees should be repre-
sented by the Union , and, second , under what classifica-
tion they were to be represented, that is, whether they
219 NLRB No. 112
CALABASAS PARK CO. 969
should be covered under the culinary agreement or the
maintenance agreement.
No action was taken with respect to the matter of the
representative by the Union of the bag and cart room em-
ployees until some time in late May or early June 1974. It
appears that the delay was caused by the severe illness of
the union representative. In late May or early June 1974,
the Union and Respondent commenced negotiations with
respect to the representation of said employees. It appears
that just prior to the commencement of said negotiations,
Cotter wrote a letter, dated May 26, 1974, to the Union in
which he urged the Union to assume the representation of
said employees. In said letter he enumerated some of the
"inequities" which he claimed said employees suffered,
such as lack of holidays, lack of payment of time and a half
for overtime work, poor fringe benefits, and a lower rate of
pay than they should be receiving. He concluded with the
following two paragraphs:
There are other working conditions which are sadly in
need of a Union's contractual surveillance.
We hope that you will do your utmost to see that the
true picture is presented during negotiations for our
union representation.
It appears that at the first negotiating session, in the latter
part of May or early part of June 1974, the aforementioned
letter was read to LaVon by a representative of the Union
but the name of its author was not revealed.
About June 1, Cotter went to LaVon's office to discuss a
problem with respect to the failure of some members to
pay certain fees concerning the bag and cart room services.
After LaVon gave Cotter instructions as to what to do with
respect to the problem, LaVon asked Cotter to remain in
his office. According to the testimony of both Cotter and
LaVon, LaVon stated that a union representative had read
a letter to him requesting, on behalf of the bag and cart
room employees, union representation and complaining
about certain working conditions. It appears that LaVon
asked Cotter if he wrote the letter, to which Cotter re-
sponded in the affirmative.2 According to Cotter's credited
testimony, LaVon asked him why he had stabbed him in
the back and, according to LaVon's credited testimony,
LaVon asked Cotter why he had not discussed the matter
with him, ostensibly instead of writing the letter to the
Union. According to the credited testimony of LaVon,
Cotter said that he felt he was justified in writing the letter
and LaVon responded that, while he did have a right to
contact the Union, he was greatly disappointed in the fact
that he had done so. It appears from the testimony of both
that the conversation was concluded by LaVon's assuring
Cotter that the bag and cart room employees would be
represented by the Union. The parties stipulated that on
June 25, 1974, the said employees were included in the
maintenance unit which, as above stated, the Union repre-
sented under the maintenance agreement.
On September 4, 1974, LaVon held a meeting with four
of the five bag and cart room employees present. Also pre-
2 There is nothing in the record to indicate that Cotter was given any
assurance that no reprisal would be taken against him or that there was any
legitimate reason for establishing the identity of the letter 's author.
sent was Dowaliby, who is an admitted supervisor within
the meaning of the Act. Several of General Counsel's wit-
nesses , consisting of Cotter and two of his fellow employ-
ees, as well as LaVon and Dowaliby, testified with respect
to what occurred at said meeting. Based upon the credited
portions of the testimony of the various witnesses, it is
found that LaVon started the meeting by stating that he
assumed that none of the employees had ever been repre-
sented by a union before and apparently indicated that he
wished to talk about the relationship between the employ-
ees, management , and the Union. LaVon stated that condi-
tions were unsatisfactory with respect to the bag and cart
room operations and that he had "records" of unsatisfac-
tory work performance of the employees. LaVon further
stated that he was aware of complaints that had been made
by employees to the Union about management and clearly
indicated that he was angered by their having gone to the
Union without first consulting management about their
complaints. It appears that LaVon indicated he knew the
identity of at least one of the employees who had done so.
LaVon further stated that, under the agreement between
the Company and the Union, the Company had certain
rights as well as the employees, that warning notices for
unsatisfactory work preformance by employees were pro-
vided for under the agreement and that under the agree-
ment an employee could be discharged after receiving two
warning notices. LaVon enumerated some of the com-
plaints he had with respect to the lack of cooperation by
the bag and cart room employees, such as their complain-
ing to the Union about the use of an employee not repre-
sented by the Union helping out in the bag and cart room
and the unwillingness of two employees to work split shifts.
It is inferred from the credited testimony that LaVon
clearly implied to the employees that, if they did not cease
complaining to the Union without first attempting to re-
solve their problems with management, he would make use
of the warning notices with respect to failures to perform
their work satisfactorily, of which he had records from the
past or which would be recorded in the future. It appears
that he concluded the meeting by stating to the employees
that they should shake hands and all start afresh.
Concluding Findings
It is alleged in the complaint and contended by General
Counsel that Respondent, by the conduct of LaVon, un-
lawfully interrogated Cotter on June 1 , 1974, in violation of
Section 8(a)(l) and unlawfully threatened employees dur-
ing the meeting-of September 4, 1974, in further violation
of Section 8(a)(l). Respondent contends that the interroga-
tion was not coercive and was isolated and should not be
found to be violative of Section 8(a)(1) and that the state-
ments made by LaVon during the meeting of September 4
were statements protected under Section 8(c) of the Na-
tional Labor Relations Act.
While it is true that there was only one instance of inter-
rogation and that it occurred several months prior to the
second allegation of an unfair labor practice by the Re-
spondent, it does not appear that the incident on June 1
can be considered isolated, since it concerned the. same
subject matter (that of complaining to the Union without
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first consulting management) as that of the September 4
meeting . Consequently, it is deemed not to be an isolated
incident which should be dismissed.
Considering the two incidents, it is concluded that on
both occasions Respondent restrained, coerced, and inter-
fered with employees' protected rights to communicate
with the Union. It is found that Respondent in the Septem-
ber 4 meeting threatened employees with the use of warn-
ing notices for poor work performance with the ultimate
possibility of discharge, if they persisted in complaining to
the Union about their problems with management without
first consulting with management. This threat of Septem-
ber 4 could reasonably be interpreted by Cotter as refer-
ring also to his action in writing the letter about which he
was interrogated on June 1.
Therefore, it is concluded that Respondent unlawfully
interrogated Cotter on June 1 in violation of Section
8(a)(l) of the Act, and threatened employees with econom-
ic reprisals for engaging in the protected activity of com-
plaining to the Union about their problems with manage-
ment, also in violation of Section 8(a)(l).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth 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
thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
ORDER3
Respondent, Calabasas Park Co., Calabasas Park, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist froth:
(a) Unlawfully interrogating employees with respect to
their communications with Southern California District
Council of Labors and its affiliated Local Union No. 300,
both affiliated with the Laborers' International Union of
North America, AFL-CIO, collectively referred to herein
as the Union.
(b) Unlawfully threatening to issue warning notices
about their work performance to employees because of
their complaints to the aforesiad Union about management
without prior consultation with management.
(c) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Calabasas Park, Cali-
fornia, copies of the attached notice marked "Appendix." 4
Copies of said notice on forms to be furnished by the Re-
gional Director for Region 31, after being duly signed by
an authorized representative of Respondent, shall be post-
ed by Respondent immediately upon receipt thereof and
maintained by it for a period of at least 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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
4In 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 Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. On June 1, 1974, Respondent, by the conduct of La-
Von, unlawfully interrogated employee Cotter with respect
to his communication to the Union.
4. On September 4, 1974, Respondent, through the con-
duct of LaVon, unlawfully threatened employees to issue
warning notices to them about their work performance if
they persist in making complaints about management to
the Union without prior consultation with management.
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:
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees with
respect to their communications to Southern Califor-
nia District Council of Labor and its affiliated Local
Union No. 300, both affiliated with the Laborers' In-
ternational Union of North America , AFL-CIO, col-
lectively referred to herein as the Union.
WE WILL NOT unlawfully threaten to issue warning
CALABASAS PARK CO. 971
notices about their work performance to employees restrain, coerce, or interfere with employees in the ex-
because of their complaints to the aforesaid Union ercise of their rights under Section 7 of the National
about management without prior consultation with Labor Relations Act.
management.
WE WILL NOT in any other like or related manner CALABASAS PARK CO.