Mountain Shadows Golf Resort

National Labor Relations Board - Board Decisions

Apr 17, 2000

330 N.L.R.B. 1238 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
American Golf Corporation, d/b/a Mountain Shad-
ows Golf Resort and Laborers’ Local Union No.
139 Laborers’ International Union of North
America, AFL–CIO and Eli Jensen. Cases 20–
CA–26942, 20–CA–27175, 20–CA–27207, and
20–CA–27472
April 17, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 2, 1998, Administrative Law Judge William L.
Schmidt issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief that the Charging Party
joined, and the Respondent filed a brief in reply to the
General Counsel’s answering 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 briefs1 and has decided to
adopt the judge’s rulings, findings,2 and conclusions as
modified and to adopt the recommended order as modi-
fied and set forth in full below.
For the reasons stated by the judge, we affirm his find-
ing that the Respondent unlawfully issued written warn-
ings to employee Eli Jensen in the first months following
his return from layoff in August 1995. We also affirm the
judge’s finding that Jensen was engaged in protected
activity on March 4, 1996, when he placed a call to a
competitor of the Respondent urging him to attend a city
council meeting scheduled for the following day. How-
ever, contrary to the judge, we find that Jensen’s
distribution of a handbill outside the city council
chambers on March 5, 1996, was unprotected under the
principles set out in Jefferson Standard Broadcasting
Co.3 Accordingly, we remand the case to the judge for a
finding as to whether the Respondent has established its
asserted defense under Wright Line4 that it would have
suspended and discharged Jensen for his unprotected
distribution of the handbill even if he had not made the
protected March 4 phone call.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 NLRB v. Electrical Workers UE Local 1229 (Jefferson Standard),
346 U.S. 464 (1953).
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
Facts
As recounted in the judge’s decision, during the period
from October 1995 through January 1996, Jensen com-
municated extensively with Rohnert Park city officials
and members of the city council with regard to his ongo-
ing disagreement with the Respondent over the treatment
of maintenance employees at the city-owned public golf
course which the Respondent managed. As detailed in
the decision, these communications ranged from com-
plaints about the slow progress of contract negotiations
to protests about the impact of the Respondent’s mainte-
nance practices on the availability of work for the main-
tenance employees. Jensen and other employees also
distributed materials to Rohnert Park residents soliciting
their support. There is no dispute that these communica-
tions had a nexus with terms and conditions of employ-
ment for the maintenance employees and were protected
under Section 7 of the Act, and there is no contention
that the Respondent made any attempt to discipline Jen-
sen or any other employee for these activities.
On March 2 and 3, 1996, Jensen prepared and distrib-
uted to area residents a handbill urging residents to at-
tend an upcoming Rohnert Park city council meeting on
March 5. The handbill, quoted in full in the judge’s deci-
sion, complained about alleged bad-faith bargaining by
the Respondent and the city council’s failure to intervene
and urged residents to attend the meeting and support the
maintenance employees.
On March 4, Jensen also tried to speak with the owner
of one of the Respondent’s competitors, Tom Isaak of
Courseco. Jensen, however, was able only to leave a
message with Isaak’s administrative assistant. According
to Jensen’s credited testimony, he informed the assistant
that he was calling to invite Isaak to the March 5 city
council meeting, that Mountain Shadows’ maintenance
employees were having “union problems” with the Re-
spondent and that they were having trouble negotiating
with the Respondent. Jensen never did speak directly to
Isaak. Isaak did, however, report Jensen’s attempted
communication to the Respondent’s regional operations
manager, Dave Pillsbury.
On March 5, Jensen went to the city council meeting.
Because he did not see any representative from the Re-
spondent in attendance, he decided to leave and thus did
not participate in any formal way with the meeting of the
city council. As he was departing, however, he deposited
on a table outside of the city council chamber about 24
copies of a flyer he had previously prepared for the meet-
ing. This document stated:
Rohnert Park Residents,

Does American Golf retain a greater percentage
of profits from the clubhouse facilities (as compared
to green fees)? There’s no money budgeted for
needed course upgrades, but a capital cost, non-
budgeted item like the restaurant addition can be
330 NLRB No. 172
MOUNTAIN SHADOWS GOLF RESORT 1239
funded. (We can have a couple of drinks while we
watch the course dry out.) Since I’m familiar with
neither their business model (vague) nor revenue
derivation, I can only guess as to the intent of ex-
penditures.
That non revenue-generating items like installing
a drainage system where none exists or installing a
second sprinkler system around the sandtraps (both
capital costs), don’t get done because they weren’t
budgeted, is typical of “operating statement” think-
ing. If such course upgrading does not have an easy,
immediately calculable payback, it is not done. The
money goes into areas where American Golf realizes
a greater profit. (i.e. banquet/tournament facilities.)
While Mountain Shadows is a community facil-
ity, it is also a business. In order for a business like
this to thrive, they must employ “balance sheet”
thinking (but let’s include the golf course). The
clubhouse was a significant investment. American
Golf will focus on this area for now since it’s not
getting the desired returns from the golf course
(resident rates?) “getting by,” “it’s an ongoing proc-
ess” or “next year we’ll budget for it,” are not ac-
ceptable responses! The condition of the courses
does not put Mountain Shadows first on anyone’s
list, even subsidized residents. If the facility was up
to par, it wouldn’t have to be “sold” to anyone.
While it would be great to have a tour calibre course,
greens fees wouldn’t be this side of a hundred dol-
lars. Obviously, benchmarks have to be established
objectively. It would seem however, that American
Golf would rather have a mediocre business proposi-
tion than a good product. That is a business decision,
and not necessarily good for the community.
Dollar for dollar, Mountain Shadows has the po-
tential to be the best buy in the area. For too many
years, proper maintenance has been ignored. If
American Golf isn’t prepared to look after the facil-
ity, perhaps it’s time the city found a new partner?
Maybe Courseco in Petaluma or the Arnold Palmer
Management Company in Orlando?

Poor Management*Poor Business & Marketing Prac-
tices*Poor Maintenance

*Is Rohnert Park Getting the Best Deal?*
The Respondent obtained a copy of the flyer from the
Rohnert Park city manager. The Respondent thereafter ap-
proached Jensen on March 12, the next day that Jensen was
at work,5 and stated to him that the company had questions
about his loyalty, and inquired whether he had been in-
volved in contacting a competitor or drafting the document
left at the city council meeting. Jensen requested the assis-

5 Jensen was on disability leave from the date of the city council
meeting until March 11, but did not return to work until March 12 due
to weather conditions.
tance of his lawyer as a condition of responding further. The
Respondent acknowledged Jensen’s right to have an attor-
ney, but notified him that he would be suspended until he
responded to the Respondent’s inquiries.

The superintendent of the Respondent, Mike Higuera,
thereafter sent Jensen a letter, dated March 14, stating:

As you know, on March 12, 1996, you met with
myself and Mike McCraw at the golf course. At that
meeting, we asked you about recent information we
had received that indicated that you (1) had con-
tacted Tom Isaak, the owner of Courseco, a competi-
tor company, to solicit his company’s interest in the
management of the Mountain Shadows Golf Course,
and (2) had been involved in drafting and/or circulat-
ing a memorandum that is extremely critical of
American Golf’s management of Mountain Shadows
and of its business practices. The only conceivable
objective of such conduct would be to interfere with
American Golf’s relationship with its landlord, the
City of Rohnert Park, and perhaps to sever American
Golf’s relationship with Rohnert Park. If successful,
such efforts would result in serious damage to
American Golf business and revenue, and poten-
tially, American Golf employees would lose em-
ployment opportunities. When we asked you about
this, you refused to confirm or deny your involve-
ment in either of the above-mentioned activities.
Obviously, if you were involved in such activi-
ties, we have grave concerns about your loyalty to
the Company and your apparent willingness to un-
dermine American Golf’s relationship with its land-
lord. If you were not involved in such efforts, we
would have expected that you would have so advised
us at our March 12, 1996 meeting. We are now faced
with facts which appear to indicate serious disloyalty
on your part, and no facts from you to rebut that in-
ference.
After you refused to confirm or deny your in-
volvement in the above activities, you indicated that
you wanted to have your lawyer present before you
answered any other questions, even though your un-
ion representative was present at our March 12th
meeting. Although we normally speak with employ-
ees without lawyers being present, we are willing to
allow you to bring your lawyer to a meeting about
this matter if that is still your desire.
Accordingly, we would like to meet with you on
Friday, March 15, 1996, at 10:00 a.m. to resume
your discussion of this matter. If this time does not
work for you please call today with an alternate
time. It is imperative that if you have any informa-
tion which would allow us to reach a different con-
clusion regarding your involvement in these activi-
ties, we need to hear that. Please feel free to bring
your lawyer and/or union representative. In the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
meantime, and as we discussed with you on Tues-
day, we have taken you off duty.

Jensen did not thereafter speak to the Respondent re-
garding these matters, but the union attorney who be-
came active on Jensen’s behalf ultimately admitted to the
Respondent that Jensen had prepared the March 5 flyer
and had left copies at the city hall, and that he had con-
tacted Courseco. After it became clear that the Respon-
dent would not be permitted to speak directly to Jensen
on these matters, Director of Maintenance Mike McCraw
prepared the following letter, dated April 5, 1996:
Over the last few weeks we have met with you, your
union representative, and most recently with your at-
torney regarding (1) your contacting of Tom Isaak, the
owner of Courseco, a competitor company, to solicit
his company’s interest in the management of the
Mountain Shadows Golf Resort, and (2) your drafting
and/or circulating to the public a memorandum that
disparages American Golf Corporation and its man-
agement team and the quality of the golfing conditions
at Mountain Shadows. It was our desire to give you
every benefit of the doubt with respect to these matters
and to hear your side of the story. Unfortunately, de-
spite the several meetings mentioned above, you have
refused to respond to our questions regarding your in-
volvement in the above-mentioned activities.
At our April 1, 1996 meeting at your attorneys’
office, your attorney, Mr. Supton, confirmed that
you were involved in the above-mentioned matters,
but he refused to allow us to speak with you about
these matters, Thus, it appears very clear that you
were involved in these extremely disloyal acts, that
you do not deny involvement in this misconduct, and
that you will not even speak with us about this mat-
ter.
Based upon the above, we must regrettably in-
form you that your employment is being terminated.
We can see no legitimate reason for your attempts to
destroy the Company’s relationship with the resi-
dents of Rohnert Park and to solicit a competitor
company to attempt to take over the golf course. If
your actions were successful, it would most likely
result in the loss of jobs and a diminution of busi-
ness for the Company. Given the nature of your in-
appropriate actions and your failure to discuss them
with us, we do not believe that it serves anyone’s in-
terest to continue the employment relationship.

The Respondent delivered a copy of this letter to Jen-
sen on April 5.
Discussion
As the judge stated, there is no dispute that the reasons
for Jensen’s suspension and discharge are the two rea-
sons stated in the above-quoted correspondence: (1) his
contacting of the Respondent’s competitor on March 4
and (2) his drafting and distribution of the March 5 flyer
at the city council meeting. Thus, the threshold issue is
whether the judge correctly found that these actions were
protected under Section 7 of the Act.
Applicable Principles
In Jefferson Standard, the Supreme Court held that a
television station was justified in discharging certain of
its technician employees who had prepared and distrib-
uted to the public some 5000 copies of a handbill
strongly disparaging the quality of the station’s broad-
casting and suggesting that the community was being
treated as “second-class.” Although the technicians’ un-
ion was involved in a collective-bargaining dispute with
the employer, the employees were not on strike, the
handbill made no reference to the union or to any dispute
or issue relating to the technicians’ employment, and the
handbill did not purport to solicit support or sympathy
for the technicians. The Court agreed with the employer
that the handbill demonstrated such “detrimental disloy-
alty” as to provide cause for discharge.
In cases decided since Jefferson Standard, the Board
has held that employee communications to third parties
in an effort to obtain their support are protected where
the communication indicated it is related to an ongoing
dispute between the employees and the employers and
the communication is not so disloyal, reckless or mali-
ciously untrue as to lose the Act’s protection.6 Applying
those principles to the facts here, we find that Jensen’s
March 4 phone call to Respondent’s competitor was pro-
tected, but that his distribution of the March 5 flyer was
not.
1. The March 4 phone call
With respect to the first prong of the Jefferson Stan-
dard analysis, we note that Jensen’s call was expressly
related to the maintenance employees’ ongoing dispute
with the Respondent. Thus, according to Jensen’s cred-
ited testimony, he specifically advised the person who
answered the phone that the maintenance employees
were having “union problems” and that they were having
trouble negotiating with the Respondent. With respect to
the second prong of the Jefferson Standard test, nothing
said by Jensen in the course of the call was so flagrantly
disloyal, reckless or maliciously untrue as to cause him
to forfeit the Section 7 protection to which he otherwise
would have been entitled. Rather, the credited testimony
is that Jensen simply left a message inviting Issak to the
March 5 city council meeting. There is no evidence that
he solicited Isaak to try to take over management of the
golf course or to otherwise attempt to interfere with
American’s business relationship with the city.

6 See, e.g., Cincinnati Suburban Press, 289 NLRB 966, 967–968
(1988); Emarco, Inc., 284 NLRB 832, 833 (1987); Richboro Commu-
nity Mental Health Council, 242 NLRB 1267 (1979).
MOUNTAIN SHADOWS GOLF RESORT 1241
2. The March 5 handbill
Although we agree with the judge that the March 4
telephone call was protected, we find, contrary to the
judge, that Jensen’s distribution of the March 5 flyer is
the type of conduct that the Court found to be beyond the
protection of the Act in Jefferson Standard. Like the
handbill at issue in that case, Jensen’s March 5 flyer
“made no reference to a labor controversy or to collective
bargaining.” 346 U.S. at 468. Like the Jefferson Stan-
dard handbill, it made a “sharp, public, disparaging at-
tack upon the quality of the company’s product and its
business policies, in a manner reasonably calculated to
harm the company’s reputation and reduce its income.”
Id. at 471. And like the Jefferson Standard handbill, al-
though its ultimate purpose—to put pressure on the Re-
spondent with respect to negotiations with the Union—
was lawful, “[T]hat purpose . . . was undisclosed.” Id. at
972, quoting 94 NLRB at 1511. In contrast to other mate-
rials distributed by Jensen to enlist public support for the
maintenance workers, the March 5 flyer did not mention
the problems the employees’ union was having negotiat-
ing with the Respondent, and bore no indication that it
was written by or on behalf of any employee of the Re-
spondent. Rather, the matters addressed in the flyer re-
lated solely to the impact of the company’s capital in-
vestment and other business practices on the quality of
the service provided to customers. Although the flyer did
make a reference to proper maintenance having been
ignored—an issue with an actual nexus to the employ-
ment concerns of the maintenance workers—the refer-
ence occurred in the context of a suggestion that the City
consider turning over management of the facility to one
of the Respondent’s competitors, not as a way to change
labor practices at the golf course but to make the course a
better “buy” for area residents. There was no indication
that the maintenance issue was being raised as part of an
effort to enlist public or governmental sympathy or sup-
port for the maintenance employees’ collective bargain-
ing efforts. In the words of the Supreme Court, the flyer
was “not part of an appeal for support in the pending
dispute” but rather was a “separable attack purporting to
be made in the interest of the public rather than in that of
the employees.” Id. at 477.
The fact that Jensen circulated the flyer at a time when
he was otherwise actively engaged in protected activities
under the Act is no more pertinent here than it was in
Jefferson Standard. The Court stated in that case that:

The fortuity of the coexistence of a labor dispute af-
fords [the discharged handbillers] no substantial de-
fense. While they were also union men and leaders in
the labor controversy, they took pains to separate those
categories. In contrast to their claims on the picket line
as to the labor controversy, their handbill . . . omitted
all reference to it. The handbill diverted attention from
the labor controversy. It attacked public policies of the
company which had no discernible relation to that con-
troversy.

Id. at 476. Similarly here, in contrast to other handbills pre-
pared and distributed by Jensen in connection with the em-
ployees’ dispute with the Respondent, the March 5 flyer
omitted all reference to the labor controversy and attacked
policies of the Respondent with no discernible relation to it.
We find the instant case distinguishable from Emarco,
supra, and Cincinnati Suburban Press, supra, the deci-
sions relied on by the judge. In Emarco, two employees
who had recently been out on strike and who had not yet
been called back to work went to a jobsite where their
employer was a subcontractor to see if anyone was work-
ing for the employer at that location. While there, they
ran into the general contractor, and in response to his
query as to the cause of the strike, explained that the
strike had been precipitated by their employer’s 5- or 6-
month delinquency in payments to the employees’ health
and welfare fund. The judge credited as “an exaggerated
version of the actual statements” of the two employees
testimony that they also made remarks to the general
contractor to the effect that their employer didn’t pay his
bills, that the job was too big for him to finish and that he
was “no damn good” and a “son of a bitch.” In rejecting
the employer’s claim that the remarks were unprotected
under Jefferson Standard and that employees’ had
thereby forfeited their rights to reinstatement, the Board
noted that the remarks were in response to questions
about the cause of the strike and the reasons for the Re-
spondent’s delinquency and found that they “were made
in the context of and were expressly linked to the labor
dispute.” 284 NLRB at 834. Here, in contrast, nothing in
the flyers directly or indirectly linked the issues raised to
any labor dispute. Moreover, the flyers were left at a
public location for distribution to members of the public
who would not necessarily have any knowledge of the
existence of such a dispute.
In Cincinnati Suburban Press, a newspaper employee
who had been involved in an unsuccessful organizing
drive was terminated for publishing in a local magazine
and distributing to his fellow employees an account of
the organizing drive which discussed certain antiunion
acts purportedly engaged in by supervisors and employ-
ees during the course of the campaign. The Board found
that the employee’s conduct fell within his Section 7
rights and found merit in the contention that the article
was “inextricably intertwined” with the ongoing union
organizing effort. The article in that case consistently
referred to the union organizing drive, the response by
management, and the NLRB election process. In con-
trast, Jensen’s handbill made no mention of the labor
dispute, the Union, management’s treatment of the em-
ployees, or any issue having anything discernibly to do
with employees’ terms and conditions of employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
CONCLUSION
As explained above, we agree with the judge that Jen-
sen’s March 4 phone call constituted protected concerted
activity. Since there is no dispute that Respondent relied
on the phone call as one reason for suspending and dis-
charging Jensen, the General Counsel has therefore met
his initial burden of showing that protected activity was a
motivating factor in Jensen’s suspension and discharge.
As stated above, however, we have further found that
Jensen’s distribution of the March 5 flyer was not pro-
tected by the Act. Although the Respondent does not
dispute that it relied on both incidents as the basis for its
actions against Jensen, it argued at trial and in its excep-
tions to the judge’s decision that it would have dis-
charged Jensen for distributing the March 5 flyer even if
he had not made the March 4 phone call. Because the
judge concluded that both activities were protected, he
made no findings with regard to this contention. Accord-
ingly, we will sever the allegations concerning Jensen’s
discharge, and remand the case to the judge for a deter-
mination as to whether the Respondent has met its bur-
den under Wright Line of showing that it would have
taken the same action even in the absence of the pro-
tected March 4 phone call.
ORDER
The Respondent, American Golf Corporation, d/b/a
Mountain Shadows Golf Resort, Rohnert Park, Califor-
nia, its officers, agents, successors, and assigns, shall1
1. Cease and desist from
(a) Issuing written warnings or otherwise discriminat-
ing against any employee for supporting Laborers’ Local
Union No. 139, Laborers’ International Union of North
America, AFL–CIO, or any other union, or for giving
testimony under the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, re-
move from its files any reference to Eli Jensen’s August
16 and September 15, 1995 warnings, and within 3 days
thereafter notify him in writing that this has been done
and that these warnings will not be used against him in
any way.
(b) Within 14 days after service by the Region, post at
its Mountain Shadows Resort facility in Rohnert Park,
California, copies of the attached notice marked “Appen-
dix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 16,
1995.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations concerning
the discharge of Eli Jensen are severed, and this proceed-
ing is remanded to the administrative law judge for fur-
ther appropriate action consistent with this decision.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT issue written warnings or otherwise dis-
criminate against any employee for supporting Laborers’
Local Union No. 139, Laborers’ International Union of
North America, AFL–CIO, or any other union, or for
giving testimony under the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees for exercising rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Eli Jen-
sen’s August 16 and September 15, 1995, warnings, and
WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that these warnings will not
be used against him in any way.

AMERICAN GOLF CORPORATION, D/B/A
MOUNTAIN SHADOWS GOLF RESORT

Margaret M. Dietz and Jill Hawkin, Esqs., for the General
Counsel.
Daniel F. Fears and William A. Calhoun II, Esqs. (Payne &
Fears) of Irvine, California, for the Respondent.
Eli Jensen, pro se, of Santa Rosa, California.
MOUNTAIN SHADOWS GOLF RESORT 1243
Paul D. Supton and Theodore Franklin, Esqs. (Van Bourg,
Weinberg, Roger & Rosenfeld), of Oakland, California, for
Charging Party Local 139.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard the
above-captioned cases on May 13, 14, 15, and 16, 1997, at San
Francisco, California.1 The question to be resolved in this pro-
ceeding is whether American Golf Corporation, d/b/a Mountain
Shadows Golf Resort (Respondent or the Company) violated
Section 8(a)(1), (3), and (4) of the Act by issuing disciplinary
warnings, suspending, and discharging employee Eli Jensen in
1995 and 1996.2 Respondent’s timely answer denies the com-
mission of the alleged unfair labor practices.
After carefully considering the entire record in this matter,
the demeanor of the witnesses who testified, and the posthear-
ing briefs of the General Counsel, Respondent, and Charging
Party Jensen, I have concluded that Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act, as alleged, based on the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a California corporation, with an office and
place of business in Rohnert Park, California, operates golf
courses. In the 12 months preceding the issuance of the earliest
complaint in this matter, Respondent derived gross revenues in
excess of $500,000. During the same period, Respondent pur-
chased and received goods valued in excess of $5000 which
originated from points directly outside the State of California.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent further admits that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act and I so find.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Facts
1. Background
The Mountain Shadows Golf Resort is owned by the city of
Rohnert Park (the City) but has been operated by the American
Golf Corporation (American Golf) since 1979 pursuant to a
lease arrangement between the City and American Golf. In
1988, the City and American Golf entered into a new long-term

1 Obviously, the sheer number of charges filed in this overall labor
dispute reached confusing proportions. The transcript reflects 10 sepa-
rate charges but fails to reflect Case 20–CA–27175 filed by the Union
on March 22, 1996, alleging that Eli Jensen had been suspended and
terminated in violation of Sec. 8(a)(1) and (3). The transcript is cor-
rected to reflect that charge shown in the formal papers as G.C. Exh.
1(u). Cases 20–CA–26684, 20–CA–26909, 20–CA–27132, 20–CA–
27165, 20–CA–27249, and the 8(a)(1) and (5) allegations in 20-CA–
26942 were withdrawn on May 9, 1997. G.C. Exh. 2(hh). Cases 20–
CA–27009 and 20–CA–27114 were withdrawn and severed from this
proceeding on May 14, 1997. See Tr. 276. The pending cases are
reflected in the above caption.
2 Most of the relevant events in this case occurred between June
1995 and May 1996. All dates that do not reflect the calendar year fall
in that period.
lease arrangement that will expire in 2028. The Resort consists
of two 18–hole golf courses generally referred to as the north
course and the south course. Under the lease agreement,
American Golf is responsible for maintaining the golf courses.
Jensen, the alleged discriminatee in this case, was employed in
the department 40, the maintenance department responsible for
the upkeep of the golf courses.
At relevant times, the management and supervision of Moun-
tain Shadows and department 40 underwent considerable
changes for a variety of reasons, mostly related to a general
restructuring of American Golf’s operations. At the beginning
of August 1995 Mark Flowers served as the general manager of
Mountain Shadows and had an office in the resort’s clubhouse.
Dan Ross served as American Golf’s regional vice president
with responsibilities for 13 other area golf resorts managed by
that company. Ross’ office was also located at the Mountain
Shadows Resort. Sam Singh, the Mountain Shadows’ mainte-
nance superintendent at that time, was in charge of department
40 and supervised its employees. Dave Dutt, an individual long
employed at Mountain Shadows, served as the assistant main-
tenance superintendent in department 40.
Effective October 1, Ross relinquished his regional responsi-
bilities and became the Mountain Shadows’ general manager, a
position he had previously held, and Flowers left the employ of
American Golf. In November, Dutt ceased work somewhat
suddenly apparently due to poor health. Thereafter, Depak Lal,
a department 40 employee, served as the acting assistant main-
tenance superintendent and, in January or February 1996, he
was officially promoted to that position. In early January 1996,
Singh was reassigned to the maintenance superintendent’s posi-
tion at the Tilden Park Golf Course in Berkeley, California,
also managed by Respondent, and Mike Higuera became
Mountain Shadows’ maintenance superintendent. At all rele-
vant times, Mike McCraw served as Respondent’s regional
director of maintenance and maintained an office in Aptos,
California.
In late 1994, the Rohnert Park city council established a golf
course committee consisting of two council members and some
citizens at large to hear citizen complaints about Mountain
Shadows’ operations and provide oversight consistent with the
City’s interests. At the same time, the City’s parks department
was directed to conduct a regular review of golf course mainte-
nance. Since then, the city manager has periodically provided
the Company with a list of the maintenance work expected and
the Mountain Shadows’ general manager then prepares an ac-
tion plan to carry out this suggested work.
The Union commenced an organizing campaign seeking to
represent the department 40 employees at Mountain Shadows
in 1994. In connection with this campaign the Union filed an
NLRB representation petition that ultimately culminated in a
Board-conducted election on July 27, 1994, as well as a number
of unfair labor practice charges. The tally of ballots from that
election reflected that eight employees voted for representation,
eight against, and that there had been two challenged ballots,
those of Jensen and Maykeo Thirakoun. Following the elec-
tion, the Union filed objections to the election, claiming that the
Company’s alleged unfair labor practices interfered with the
conduct of the election. Subsequently, the objections and the
unfair labor practices matters were consolidated in a single
proceeding heard over the course of 7 days by my colleague,
Administrative Law Judge Jay R. Pollack.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
On June 27, 1995, Judge Pollack issued his decision finding
that Respondent violated Section 8(a)(1) and (3) of the Act and
that Respondent’s unfair labor practices constituted objection-
able conduct in the representation proceeding. Mountain Shad-
ows Resort, JD (SF)–74–95. Among other things, Judge Pollack
found that Respondent unlawfully reclassified employees
Maykeo Thirakoun and Jensen (later laid off consistent with
their unlawful reclassification) in order to affect the outcome of
the election, and engaged in numerous other unlawful activities
in the critical period prior to the representation election, also
designed to undermine the Union’s majority status among Re-
spondent’s maintenance employees. Judge Pollack recom-
mended that the Board instruct the Regional Director to open
and count the two challenged ballots and to certify the Union if
the revised tally reflected that the Union obtained a majority.
In the event the Union failed to demonstrate its majority status
by this means, Judge Pollack concluded that the Board should
set aside the results of the election and order Respondent to
bargain with the Union anyway. Judge Pollack made this alter-
native recommendation because he concluded that Respon-
dent’s unfair labor practices had undermined the Union’s pre-
vious majority standing as reflected by authorization cards it
obtained during the organizing campaign and that it was
unlikely that the Board’s traditional remedies would suffice to
erase the effects of Respondent’s unfair labor practices. In the
absence of exceptions, the Board adopted Judge Pollack’s rec-
ommended order as provided in its Rules and Regulations.
Thereafter, Respondent offered to reinstate Jensen and
Thirakoun. Both men returned to work by early August. On
September 5, their challenged ballots were opened and counted.
One ballot was declared void and the other ballot was counted
as a vote for representation so that the revised and final tally
reflected that nine employees voted for representation and eight
employees against. The Regional Director then certified the
Union as the employee representative on September 13. Jensen
claimed to have told a number of employees at the time of the
election and thereafter that he had voted for the Union.
2. Jensen’s undisputed protected activities
As reflected in Judge Pollack’s decision, Jensen testified in
that proceeding about matters relevant to his reclassification
and layoff as well as other matters pertaining to the allegations
in that case, including coercive statements by Maintenance
Superintendent Singh. In this proceeding, Jensen testified that
he was in attendance at the entire prior proceeding on all days
except one. Between the time of his reinstatement in early
August 1995 and his discharge in early April 1996, Jensen ac-
tively assisted the Union by a series of activities designed to
pressure Respondent in the course of its negotiations with the
Union, to aid in the organizing of other American Golf employ-
ees at both Mountain Shadows and other golf courses in North-
ern California, and to protest other actions taken at Mountain
Shadows. Thus, he drafted a notice dated August 21 and posted
copies at various locations around the course clubhouse and pro
shop inviting the employees of other departments to unionize.
Together with maintenance employee Dirk Russell, Jensen
compiled materials urging employees to organize and distrib-
uted them to employees at approximately five Northern Cali-
fornia golf courses operated by American Golf. As detailed
more fully below, he prepared and circulated a protest letter for
signature by the maintenance employees related to his August
16 warning notice. After bargaining commenced in October,
Jensen and other employees, at the suggestion of Union Agent
Bill Smith, attended Rohnert Park city council meetings where
they complained about the slow progress in negotiations and
protested short workweeks during the winter rainy season in
light of the amount of necessary maintenance work perceived
by them at Mountain Shadows. At one of those meetings,
maintenance employee Jose Campos made a presentation, with
pictures, in an effort to demonstrate certain alleged mainte-
nance problems at Mountain Shadows related to the existing
sprinkler and drainage systems. Concurrent with their activities
before the city council and its golf course committee, Jensen
and other employees distributed materials to Rohnert Park resi-
dents soliciting their support.
In January 1996, the appearances by the employees at the
city council meetings reached a zenith. In preparation for the
January 16 city council meeting, Jensen drafted a presentation
to be made by Russell. Apparently copies of Russell’s speech
were distributed at that meeting. Following the January 16 city
council meeting (attended by Union Agent David George and
some of the maintenance employees), Rohnert Park City Man-
ager Joseph Netter faxed a written copy of this presentation to
Ross. Ross, in turn, faxed it to the corporate human relations
department in Santa Monica, California, as was his practice
with all of the union-related materials which he received. Gen-
erally speaking, this missive accuses American Golf of “milk-
ing” Mountain Shadows and putting a “minimum back into
[the] facility.” It also charges the Company with “[r]ealizing
profits on the backs of underpaid employees and sub-standard
maintenance.” After listing a variety of alleged maintenance
problems at Mountain Shadows, the written presentation asserts
that “American Golf must learn to treat its employees with
dignity and to give us a decent living.” Further, this presenta-
tion invites the reader or hearer (presumably city council mem-
bers and others in attendance) to “help in getting your partner to
negotiate with us.” Asserting that the employees “genuinely
care about the condition of this facility,” the written presenta-
tion states: “It doesn’t matter to us who runs the facilty, [sic]
the City or some new partner.” Near the end the presentation
states: “If the courses are operating at only 55% capacity,
maybe a more grounded business approach is necessary? Poor
management, poor business and marketing practises [sic], poor
maintenance. Are we getting the best deal.”
As a result of the Union’s presentation on January 16, Ross
and Respondent’s vice president for human resources and cor-
porate counsel, Loretta Raftery, attended the city council meet-
ing on January 23 to present the Company’s side of the ongoing
labor dispute. Two days later, the Rohnert Park Mayor Ar-
mando Flores wrote to Ross stating the City’s expectation that
the Company comply with existing labor laws and expressing
its expectation for the Company’s “diligence in working to-
wards a resolution regarding employee negotiations.” At least
Jensen, if not others, felt this response by the City was tepid at
best.
At some point in late January or early February, the section
workers were not permitted to work due to a threat of rain.
Following this action, Jensen, Campos, and Esquivel made an
appointment with City Manager Netter to complain of Respon-
dent’s continuing practice of sending employees home early
notwithstanding the considerable amount of maintenance work
they felt they should be permitted to do even in inclement
weather.
Both Ross and Raftery concede that they were aware of vir-
tually all of Jensen’s union activities. Ross regularly faxed the
MOUNTAIN SHADOWS GOLF RESORT 1245
written materials pertaining to these union activities to the cor-
porate human relations department when he received them and
both Ross and Raftery acknowledged that they knew Jensen
had prepared many of them. The evidence further indicates that
City Manager Netter regularly faxed copies of materials, in-
cluding materials related to the labor dispute, which he ob-
tained in connection with the course operations to the Mountain
Shadows’ management.3 In addition, Jensen completed the
Company’s self-evaluation form in October 1995. In the por-
tion provided for the employee to state his goals and objectives
for the next 6 months, Jensen wrote:

To void American Golf’s contract with Rohnert Park. To re-
place Santok [Singh]. To unionize the cart barn & restaurant
employees. To make Mountain Shadows the excellent facil-
ity that it could be. To unionize six other American Golf op-
erations. To get a new pair of “Nikes” & “JUST DO IT!”

Although Respondent now uses this first phrase as a part of its
justification for Jensen’s discharge, no one discussed his re-
sponses with him at any time.
3. Jensen’s August 16 warning
Jensen returned to work in his former position as a section
person on August 3, and was assigned to maintain the “back
nine” portion of the south course. In Jensen’s view, his re-
placement had poorly maintained that portion of the course and
he set about to remedy maintenance deficiencies that he ob-
served. Among other things, Jensen claims without contradic-
tion that he cut down four dead trees between the time of his
reinstatement and August 14. On August 15, Jensen cut down
another dead tree described as a pine approximately 30 feet tall
in the rough area where several large trees divide the fairways
for the 10th and 18th holes on the south course. Jensen admit-
tedly did not seek authorization from any manager or supervi-
sor prior to removing these particular dead trees as he under-
stood that the section persons were supposed to cut down and
remove dead trees. Section workers Jose Esquivel and Manual
Garcia agreed that, up to that time, section persons were not
required to obtain management approval to remove dead trees.
They both testified about cutting down dead trees without any
prior authorization. Indeed, Garcia testified that a couple of
days after the election, even General Manager Flowers ob-
served him cutting down a dead tree and apparently said noth-
ing to him about it.
While removing the larger branches of the tree he felled on
August 15, a local resident who resides adjacent to the 13th
hole approached Jensen and asked him to stack some of the
wood adjacent to the fence dividing his property from the golf
course for use as firewood. Jensen agreed to do so and appar-
ently hauled at least part of the wood from the larger branches
to that area. Jensen explained that he did so in order to avoid
filling the Company’s commercial debris box with considerable
trimmings because Dutt had earlier asked the section persons to
do what they could to prevent that box from filling too fast.
Ross learned from Flowers that Jensen had cut down the tree
on August 15. According to Ross, Flowers contacted him in his

3 In my judgment however, it would be entirely unwarranted to infer
that Netter sided with one party or the other in this labor dispute be-
cause of this practice. Rather, the evidence shows that Netter and
American Golf officials perceived the City’s relationship to American
Golf as a partnership and that they conducted their affairs with each
other consistent with that concept.
nearby office after Dutt reported it to Flowers. Thereafter,
Ross, Flowers, and Dutt discussed, among other things,
whether any supervisor or manager had authorized Jensen to
cut the tree down. Having agreed that such authorization had
not been received from any of them, a telephone call was
placed to Singh, who was home ill that day. The two managers
learned from Singh that he had not authorized Jensen to remove
that particular tree. Ross and Flowers then rode out to the area
where Jensen was working on the tree, unaccompanied by Dutt,
Jensen’s immediate supervisor who purportedly raised the is-
sue. Flowers queried Jensen as to whether he had been author-
ized to cut the tree down and what he was doing with the wood.
Jensen admitted to Flowers that no one had authorized the tree
cutting and that he was dropping the wood off at a neighbor’s
house adjacent to the 13th fairway. Flowers instructed Jensen
on the spot that the wood should be stacked in the maintenance
area for use in the clubhouse rather than giving it away but did
not otherwise admonish him for cutting the tree down in the
first place. According to Ross, Flowers and him then returned
to their offices and decided, after some further discussion, that
Jensen should be given a written warning for cutting the tree
down and giving the wood away without authorization.
The following day, Flowers called Jensen to his office and,
in the presence of Singh, gave Jensen a written warning notice.
The notice advised Jensen not to “make a major change in the
golf course” or take wood to a homeowner without prior man-
agement authorization, and warned that a “repeat of any similar
circumstances or failure to exercise good judgment may result
in further disciplinary action up to & including termination.”
Neither Flowers nor Singh testified in this proceeding but Ross
testified that this particular tree was strategically located near
the 10th green so that it added to the playability of the hole.
Although Jensen, himself an avid golfer, agreed that trees in the
rough but still in bounds (as was this particular tree) can affect
the playability of holes, the pictures of the remaining stump
from this tree show that it was one of several trees in a row
between two fairways. In addition, Ross said that management
had concerns about potential liability problems that could arise
from having employees cut down such large trees alone but
there is no evidence that Flowers addressed this matter when he
spoke with Jensen.
In the next few days, 12 maintenance department employees,
including at least 2 employees who had, at least earlier, openly
refused to support the Union, signed a letter addressed to Flow-
ers asserting that the warning given to Jensen was “totally un-
necessary” and was “done to harass him.” The letter, drafted
and circulated by Jensen, goes on to state: “[I]t is a customary
duty of section persons to cut down dead trees, not only as a
safety precaution, but also as an aesthetic consideration.’’ The
protest letter further asserts that section persons had not previ-
ously been required to seek management authorization to cut
dead trees.
Jensen then gave the letter to Flowers. Flowers responded to
the protest letter by a memorandum dated August 22 addressed
to all of the maintenance workers. Flowers’ memorandum
notes initially that the employees’ “recent communication,” i.e.,
their protest letter, makes it appear “that there is a misunder-
standing as to our policy on course maintenance.” The memo
also states that while section persons were expected to “clear
away dead brush, fallen limbs and the like,” advance manage-
ment authorization was required for “any change that might
fundamentally alter the golf course, such as cutting down an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
entire tree.” The memo further reminded the employees that
similar authorization was required before “you give away de-
bris, firewood or anything else to the houses neighboring the
course.” A few days later, Jensen responded in writing to
Flowers’ memo. In his response, Jensen caustically noted that
Flowers had failed to mention that the tree involved was dead
and pointedly challenged Flowers to rescind the written warn-
ing in light of the acknowledged “misunderstanding” in order to
avoid the appearance of harassment. The warning was never
rescinded.
4. Jensen’s September 15 Warning
Subsequently, on September 15, Department Superintendent
Singh issued a “final written warning” to Jensen. This two-
page warning alludes to Jensen’s, (1) failure to properly clean a
restroom; (2) failure to properly place the cups and pins on the
greens; and (3) failure to complete his regular morning “set up”
duties in a reasonable period of time. It makes no mention of
the tree cutting incident. The warning recites that Singh spoke
to Jensen concerning these matters on August 24, September 2
and 8, respectively, and further states that Jensen would be
terminated unless there was “an immediate and sustained im-
provement in [his] performance and level of cooperation.”
Jensen acknowledged that Singh had verbally admonished
him about all three matters set out in the final warning but as-
serted that these matters represent a pattern of harassment by
Singh. More particularly, he testified that Singh told him that a
customer had complained about the course restroom. Jensen
accompanied Singh to the restroom for an inspection. Accord-
ing to Jensen, Singh told him at this time that he wanted the
restroom washed down inside and out everyday. Jensen told
Singh that he would need brushes and cleansers as well as a
hose, none of which had been previously provided, to perform
the work outlined by Singh. Jensen also told Singh that he
would need chemicals to treat the septic tank that was causing
the unpleasant odor about which Singh also complained. Sub-
sequently, Jensen was provided with the tools and cleansers
requested and he thereafter performed the restroom cleaning
tasks assigned by Singh, apparently without further complaint.
Later, either Singh or Dutt subsequently posted a notice con-
cerning the section duties that included an instruction to thor-
oughly wash down the course restrooms only once a week or as
needed.
Jensen further recalled that Singh had verbally admonished
him about a pin placement after a customer purportedly had
complained that one of the pins had been cut too close to the
apron surrounding one of the greens within Jensen’s scope of
responsibility. According to Jensen, Dutt had instructed him to
place the pins at least four to five paces from the edge of the
green and in this particular instance, he had, in effect, placed
the pin this minimum distance from the edge of the green.
However, when Singh spoke to him about the matter of pin
placements, he instructed Jensen to put the pins eight or nine
paces from the edge of the green and thus closer to the center of
the green as preferred by some golfers.4

4 Ross, formerly the Mountain Shadows golf pro, explained that
USGA rules require that the holes be cut at least four paces (about 12
feet) from the apron. However, he explained that on public courses
typically used by average golfers, it is generally more desirable to cut
the holes nearer to the center of the green as that general location per-
mits easier play.
Jensen also recalled that Singh complained about the length
of time he took to perform his morning setup duties. According
to Jensen, Singh told him that Garcia took only 3 hours to per-
form these tasks whereas Jensen required 4 to 4-1/2 hours.
Subsequently, Jensen learned from Garcia that Singh was accu-
rate about the amount of time Garcia took to complete this
work but that Depak Lal assisted him with some of his setup
duties. Garcia corroborated Jensen’s assertion that Lal had
been helping him through this period of time.
5. Jensen’s suspension and discharge
On March 2 and 3, Jensen prepared and distributed copies of
a notice urging Rohnert Park residents living near Mountain
Shadows to attend the city council meeting on March 5. This
notice, highlighted with graphics of monkeys, reads as follows:

Rohnert Park City Council doesn’t “see” that there is a
problem at Mountain Shadows, between employees and
American Golf. City Council doesn’t want to “hear” the
truth about violations of federal law or American Golf’s
refusal to bargain in good faith as ordered by an adminis-
trative law judge. City Council doesn’t want to “tell”
American golf to settle this dispute. “There’s nothing we
can do”, they say! American Golf violates city policy by
not dealing with its “employees in a fair manner.”
Please help support the maintenance workers of Moun-
tain Shadows by attending the City Council meeting on
Tuesday, March 5/96, at 6:30. “Tell” City Council you
support us. Maybe they’ll “hear” that!

On March 4, Jensen admittedly telephoned the office of Tom
Isaak, the owner of Respondent’s competitor Courseco, and
spoke with Isaak’s administrative assistant. Jensen testified
that he told Isaak’s administrative assistant, obviously after
identifying himself, that the Mountain Shadow’s maintenance
employees were having “union problems” and that they were
having trouble “negotiating with American Golf.” Jensen said
that he also told the administrative assistant that the City was
not pleased with American Golf’s maintenance work and that
he was calling to invite Isaak to the March 5 city council meet-
ing. All told, Jensen estimated that he spoke with the assistant
about 5 minutes. He further testified that he has never met
Isaak but he felt, in effect, that Isaak’s presence at the city
council meeting would serve to put added pressure on the
Company. Jensen denied that his call to Isaak was for the pur-
pose of soliciting his assistance to void American Golf’s con-
tract with the City. According to Raftery, the day after this call
by Jensen, Isaak telephoned Dave Pillsbury, Respondent’s re-
gional operations manager, to report Jensen’s contact with his
office.
In addition, Jensen prepared another document, made copies,
and went to the city council meeting on March 5. When he saw
that there were no representatives of American Golf at the city
council meeting, Jensen left. On his way out, however, he left
24 copies of his prepared statement on a table in the foyer im-
mediately outside the city council chamber. This statement,
which admittedly serves as one of the two reasons Jensen was
fired about a month later, reads as follows:

ROHNERT PARK RESIDENTS,

Does American Golf retain a greater percentage of
profits from the clubhouse facilities (as compared to green
fees)? There’s no money budgeted for needed course up-
grades, but a capital cost, non-budgeted item like the res-
MOUNTAIN SHADOWS GOLF RESORT 1247
taurant addition can be funded. (We can have a couple of
drinks while we watch the course dry out.) Since I’m fa-
miliar with neither their business model (vague) nor reve-
nue derivation, I can only guess as to the intent of
expenditures.
That non revenue-generating items like installing a
drainage system where none exists or installing a second
sprinkler system around the sandtraps (both capital costs),
don’t get done because they weren’t budgeted, is typical of
“operating statement” thinking. If such course upgrading
does not have an easy, immediately calculable payback, it
is not done. The money goes into areas where American
Golf realizes a greater profit. (i.e. banquet/tournament fa-
cilities.)
While Mountain Shadows is a community facility, it is
also a business. In order for a business like this to thrive,
they must employ “balance sheet” thinking (but let’s in-
clude the golf course). The clubhouse was a significant
investment. American Golf will focus on this area for now
since it’s not getting the desired returns from the golf
course (resident rates?) “getting by,” “it’s an ongoing
process” or “next year we’ll budget for it,” are not accept-
able responses! The condition of the courses does not put
mountain shadows first on anyone’s list, even subsidized
residents. If the facility was up to par, it wouldn’t have to
be “sold” to anyone. While it would be great to have a
tour calibre course, greens fees wouldn’t be this side of a
hundred dollars. Obviously, benchmarks have to be estab-
lished objectively. It would seem, however, that American
Golf would rather have a mediocre business proposition
than a good product. That is a business decision, and not
necessarily good for the community.
Dollar for dollar, mountain shadows has the potential
to be the best buy in the area. For too many years, proper
maintenance has been ignored. If american golf isn’t pre-
pared to look after the facility, perhaps it’s time the city
found a new partner? Maybe courseco in petaluma or the
arnold palmer management company in orlando?

POOR MANAGEMENT*POOR BUSINESS & MARKETING PRACTICES
* POOR MAINTENANCE

* IS ROHNERT PARK GETTING THE BEST DEAL? *

The Company learned about the March 5 flyer when the City
Manager Netter faxed a copy to Ross the following morning.
Ross in turn faxed it to Respondent’s human relations depart-
ment in Santa Monica, where it came to Raftery’s attention.
On March 11, Jensen returned to work from a disability
leave that commenced on February 15. However, he and the
other maintenance employees were sent home due to rain. On
the following day, Jensen worked for 4 hours and then was
called to a meeting conducted by McCraw in the general man-
ager’s office at Mountain Shadows. Maintenance Superinten-
dent Higuera and Union Representative David George were
also present. At this meeting, McCraw told Jensen that the
Company had questions concerning his loyalty and wanted to
know if he had been involved in contacting a competitor or
drafting the March 5 flyer. After giving Jensen a copy of the
March 5 flyer, McCraw informed Jensen that its legal depart-
ment was looking into action to take concerning the flyer. Jen-
sen then informed McCraw that, if that were the case, he would
be unwilling to say anything without his own lawyer present.
Although McCraw acknowledged Jensen’s right to have an
attorney, he told Jensen that unless he answered questions
about these matters, he would be suspended. After Jensen fur-
ther indicated his unwillingness to do so, McCraw suspended
him for 3 days, effective immediately.
McCraw held another abortive meeting with Jensen and the
same individuals on March 22. After Jensen again declined to
answer questions about contacting a competitor or the March 5
flyer at this meeting, McCraw suspended Jensen indefinitely.
In late March, Raftery provided Union Representative
George with specific information that the Company wanted to
speak to Jensen about and the documents involved. As a result,
a meeting was arranged at the Oakland office of Paul Supton,
the Union’s attorney. In addition to Supton, George, and Jen-
sen were present on the union side. Raftery attended with
Company Attorney Barrett. Supton, however, kept the two
sides separated in different rooms. Eventually, Supton admit-
ted to Raftery and Barrett that Jensen had contacted Courseco,
one of Respondent’s business competitors, and that he had
prepared the March 5 flyer and had left copies at city hall that
day but asserted that both actions were protected activity.
Following the April 1 meeting at Supton’s office, it became
clear to Raftery that the Company would not be permitted to
speak directly to Jensen so she proceeded to bring the matter to
a close. The following testimony by Raftery summarizes her
subsequent actions and the rationale behind them:

Q. BY MR. FEARS: Did you ever receive any commu-
nication from Mr. Jensen, David George, the union or Mr.
Supton that you could speak to Mr. Jensen directly about
these two subjects?
A. No.
Q. Mr. Supton made it clear at his offices that you
couldn't?
A. Yes.
Q. What was the next thing that happened leading to
the termination of Mr. Jensen?
A. I knew I needed to think about it for a while. I still
felt it didn't sound—I still didn't understand it. I felt we
were missing some pieces. I wrote a letter to Mr. Supton
confirming the conversation we had in his office just to
make sure I got it right. I think he wrote me a letter back.
He disputed something I said in my letter to him. I real-
ized I wasn't going to be get anymore information. I had
tried every source I could think of. At that point, I started
thinking about what we should do in terms of Mr. Jensen’s
employment.
Q. Were you involved in the actual decision to termi-
nate Mr. Jensen?
A. Yes.
Q. Did you do that in conjunction with Mr. McCraw,
the Director of Maintenance?
A. Yes.
Q. Why was Mr. McCraw involved in that decision?
A. My goal with Mountain Shadows was to make sure
that we did everything that we needed to do to both have a
productive working environment to comply with the bar-
gaining order and our obligations under the National La-
bor Relations Act, and to try to move our relationships
with our employees forward in a positive direction. To
that end, I had begun dealing with Mr. McCraw. He and I
were helping the management team there make sure they
managed that property correctly. Many of the decisions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
were being closely supervised by Mr. McCraw because of
all the trouble we had there.
Q. What did you and Mr. McCraw decide with respect
to Mr. Jensen after the April 1 meeting?
A. We talked about options about what to do about a
co-worker who is looking to ruin the company or our
business, and ultimately decided the only option that made
sense at the time and now was to terminate Mr. Jensen's
employment.
Q. How did you distinguish Mr. Jensen's activities
relative to Mr. Isaak and the March 5th memorandum
from other activities he engaged in?
A. To me, it was clearly different. I had seen so many
other memos and knew of visits to city hall, and all of
those were surrounded by the labor situation. They were
things that I could explain, as I did when I visited the city
council. That was something I was familiar with, yes it
existed. It wasn't great publicity for us.
We had some different views of it, but we had no
problems talking with our landlord, the constituents there
and our customers about our side of that story and the fact
there was a labor situation going on. By that point, it
really wasn't affecting me too much other than I was still
involved in the collective bargaining. These two acts
stuck out like a sore thumb to me. My reaction was that it
was outrageous. That an employee would be trying to so-
licit a competitor to get our contract. I was concerned that
we were in a situation here where we had someone who
had taken us on as a mission and his mission was to void
our contract with the city. Interpret that however you
want. I read it as this person want[s] to kill our relation-
ship with the city.
Q. With respect to your decision that you and Mr.
McCraw reached, did you consider Mr. Jensen's prior un-
ion activities?
A. Considered it with respect to the history that was
there. The history was there. I was well aware of that. It
had nothing to do with these two acts. I was somewhat
immune to the union activity at that point. It really was
fairly routine. It went neatly into a part of my daily life. It
was protected activity and very easy for me to see that.
This was not. It was a very different kind of activity.

On April 5 Jensen was at Mountain Shadows to golf.
McCraw approached him and handed him a termination letter.
That letter notes that Supton had confirmed that Jensen had
contacted Courseco’s owner, Tom Isaak, to solicit his com-
pany’s interest in managing Mountain Shadows and that Jensen
had drafted and circulated to the public a memorandum that
disparaged the Company, its management team and the quality
of the golfing conditions at Mountain Shadows. The letter
further characterizes these actions as “extremely disloyal acts
and advises that “[g]iven the nature of your inappropriate ac-
tions and your failure to discuss them with us, we do not be-
lieve that it serves anyone’s interest to continue the employ-
ment relationship.”
B. The Decisional Framework
The complaint alleges that the two warnings and Jensen’s
suspension and termination violate Section 8(a)(1), (3), and (4)
of the Act. Section 8(a)(1) of the Act prohibits employer inter-
ference, restraint, or coercion of employees for their exercise of
the fundamental rights guaranteed in Section 7 of the Act.
Those rights include “the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.”
Section 8(a)(3) prohibits employers from discriminating in
regard to an employee’s “tenure of employment . . . to encour-
age or discourage membership in any labor organization.” Sec-
tion 8(a)(4) prohibits employers from “discharg[ing] or other-
wise discriminat[ing] against an employee because he has filed
charges or given testimony under [the] Act.” An employer
violates Section 8(a)(3) by terminating employees for antiunion
motives. Equitable Resources, 307 NLRB 730, 731 (1992). An
employer violates Section 8(a)(4) by terminating employees
who furnish information to support unfair labor practice
charges in another case. Operating Engineers Local 302, 299
NLRB 245 (1990).
As 8(a)(3) and (4) cases generally turn on the question of
employer motivation, the Board and the courts employ a causa-
tion test to analyze the merits of such allegations. Wright Line,
251 NLRB 1083 (1980), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983); Sea-Land Service,
837 F.2d 1387 (5th Cir. 1988). The Wright Line test requires
the General Counsel to make a prima facie showing sufficient
to support an inference that the employee’s protected conduct
motivated the employer’s adverse action. Typically, the Gen-
eral Counsel meets this burden by presenting credible evidence
showing a reasonable proximity in time between the adverse
action in question and the employer’s knowledge of, and hostil-
ity toward, the employee’s protected activity. Best Plumbing
Supply, 310 NLRB 143 (1993). Although not conclusive, tim-
ing is usually a significant element in finding a prima facie case
of illegal termination. Equitable Resources, supra.
If the General Counsel establishes a prima facie case, the
employer must then shoulder the burden of persuading the trier
of fact by a preponderance of the evidence that the same ad-
verse action would have been taken even in the absence of the
employee’s protected activity. Best Plumbing Supply, supra.
To meet this burden “an employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984).
Finally, in reaching the conclusions set forth below, I have
generally credited Jensen’s testimony primarily for the follow-
ing reasons. First, on certain significant points, the General
Counsel elicited testimony of other witnesses or provided
documentary evidence corroborating Jensen’s account. Sec-
ond, Jensen’s testimony stands uncontradicted on other signifi-
cant points in circumstances showing that witnesses were avail-
able to Respondent that could have contradicted his testimony.
Third, Jensen readily admitted matters that were not in his in-
terest. And finally, nothing in Jensen’s demeanor while testify-
ing would warrant discrediting his uncontradicted testimony.
Although Jensen occasionally exhibited a certain degree of
testiness in response to repeated questioning about a few mat-
ters, I find that human response entirely understandable in his
particular circumstance.
MOUNTAIN SHADOWS GOLF RESORT 1249
C. Further Findings and Conclusions
1. The August 16 warning
The General Counsel argues that the Company issued the
August 16 warning to Jensen in retaliation for his testimony in
the prior case heard by Judge Pollack and in retaliation for his
union activity. Respondent argues, in effect, that Jensen de-
served the warning because he violated a longstanding com-
pany policy by cutting down a large tree without management
authorization.
I am satisfied that the General Counsel established a prime
facie case as to the August warning. The evidence shows that
Jensen had been reinstated to his position at Mountain Shadows
only 2 weeks prior to the August 15 warning pursuant to the
Board’s order in the prior case. It also shows that he attended
virtually all of the lengthy prior hearing and testified in contra-
diction to assertions made by Respondent at that earlier hear-
ing. Hence, the General Counsel clearly established the ele-
ments of activity and knowledge required in virtually all dis-
crimination cases. The warning itself establishes that Respon-
dent took adverse action against Jensen. Although the General
Counsel adduced no direct evidence that the warning resulted
from Respondent’s animosity against Jensen because of his
support for the Union and his testimony in the prior proceeding,
motive and animosity may be inferred from the circumstances.
Fluor Daniel, Inc., 304 NLRB 970 (1991). I find such infer-
ences warranted here. In a nutshell, the city of Rohnert Park’s
oversight reports to the Mountain Shadows’ manager regularly
called for the removal of dead trees. The consistent testimony
of the maintenance employees and the protest letter signed by
virtually all of the section workers shows that they had, in ef-
fect, long operated to remove dead trees sans prior management
authorization. Where, as here, Respondent’s written warning to
Jensen issued only shortly after his ordered reinstatement and
without any attempt to alert employees that its regular and
longstanding practice about cutting trees at this course had
changed, I find it would be reasonable to infer that Jensen’s
protected activity motivated this adverse action.
Respondent’s case is not persuasive. Apart from Flowers’
written assertions in the warning itself and his subsequent
memorandum, none of the three managers or supervisors em-
ployed at Mountain Shadows at the time testified about this
particular incident or the practices and policies in existence at
that time. Although the evidence shows that both Flowers and
Dutt left their employment with Respondent in 1995, it is ad-
mitted that Singh was still employed by the Company at the
time of the hearing at a nearby Bay Area golf course. Ross’
vague testimony that decisions about cutting dead trees are
never entrusted to section workers simply flies in the face of the
overwhelming evidence here. Flowers’ subsequent written
acknowledgement to the employees that there was a “misunder-
standing” with respect to the tree cutting policy is, in my judg-
ment, virtually tantamount to an admission regarding the regu-
lar practice in effect at Mountain Shadows when this incident
took place. Finally, Respondent failed to explain its refusal to
withdraw the warning as requested by Jensen even after ac-
knowledging a misunderstanding about its tree cutting policy.
In my judgment, Respondent failed to provide persuasive evi-
dence that it required management approval for the removal of
dead trees prior to this incident. Indeed, the evidence is over-
whelmingly otherwise. Accordingly, I have concluded that
Respondent, in effect, “changed horses in midstream” in order
to penalize Jensen, only recently reinstated to his job. Plainly,
this sudden warning is an obvious pretext that only serves to
taint Respondent’s motives in virtually all of its dealings with
Jensen after his reinstatement. I strongly suspect that the rea-
son Dutt kept, or was kept, entirely out of the direct discussions
with Jensen over this matter was because he also knew how
blatantly unfair it was.
I therefore conclude, in agreement with the General Counsel,
that Respondent issued the August 16 warning to Jensen in
retaliation for his assistance to the Union in the prior case, in-
cluding his testimony at that hearing, in violation of Section
8(a)(1), (3), and (4) of the Act.
2. The September 15 final warning
I am likewise satisfied that the General Counsel established a
prima facie case with respect to Jensen’s September 15 final
warning. The same evidence offered to show the elements of
activity and knowledge in connection with the August 16 warn-
ing apply here. In addition, this warning occurred only 2 days
after the Union was certified by the NLRB apparently on the
basis of Jensen’s vote albeit Respondent’s duty to bargain
would have accrued otherwise. Moreover, the General Counsel
adduced considerable evidence that Singh’s actions toward
Jensen amounted to harassment. Thus, Jensen claimed without
contradiction that Singh insisted that the restroom had to be
thoroughly cleaned every day but shortly thereafter Dutt told
Jensen he was cleaning the restroom too often. Only a month
after the written warning, posted instructions directed more
lenient restroom cleaning requirements. Furthermore, Singh’s
assertion in the warning that Garcia performed the morning
setup functions almost 50 percent faster than Jensen is disputed
by Garcia’s own account and Jensen’s claim, corroborated by
Garcia, that Lal assisted Garcia through the relevant period
with morning setup duties, is credible. Finally, contrary to the
claim in the warning, Jensen asserts that he moved the pin at
the 12th green in accord with Singh’s direction. These factors,
together with the pretextual character of the August 16 warn-
ing, strongly support the General Counsel’s assertion that this
warning too was motivated by unlawful reasons.
Respondent argues that the General Counsel failed to prove
any union animus on its part in connection with this warning. I
reject this contention especially in view of the finding above
that Jensen received what, in my judgment, amounted to an
unlawfully motivated warning over the tree incident. More-
over, Respondent’s argument that both the restroom problem
and the pin placement problem arose from customer complaints
fundamentally begs the question. Based on Jensen’s unrebutted
testimony that he took immediate corrective action as to these
relatively minor problems, Respondent’s case takes on an un-
persuasive luster as a result of its failure to secure Singh’s ra-
tionale for faulting an employee weeks later who complied with
his instructions. Respondent’s case is equally unpersuasive as
to the third matter mentioned in the September 15 warning. On
this point, Respondent claims that the big deal made by the
General Counsel over Jensen’s work pace came to naught with
its showing that Jensen eventually conformed to the standard
set by Garcia. In support, Respondent points only to Higuera’s
vague and unpersuasive response to a single leading question,
qualified and muddled by the Higuera’s subsequent response to
the next question asked.5 In essence, the General Counsel chal-

5 Specifically, the testimony of Higuera cited by Respondent is as
follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
lenged the veracity warning’s work pace assertions through the
testimony of Jensen and Garcia in a manner that called into
question the bona fide character of the entire warning. I simply
am unable to conclude that Respondent has met its burden of
persuasion in view of its failure to call Singh as a witness to
secure a credible rebuttal to that challenge.
Accordingly, I have concluded that Singh’s September 15 fi-
nal warning, like the August 16 warning, bears the indicia of an
overarching unlawful motive designed by Respondent’s agents
to rid itself of the union activist chiefly responsible for having
to bargain with the Union. I find that this warning violates
Section 8(a)(1), (3), and (4), as alleged.
3. Jensen’s suspensions and discharge
No issue exists as to the underlying motive for Jensen’s sus-
pension and discharge. The sole question involved on this issue
is whether or not Jensen’s admitted conduct in contacting Re-
spondent’s competitor and distributing the March 5 memo
lacked protection under Section 7 of the Act. Respondent ar-
gues that the Supreme Court’s rationale in NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953),
places this conduct by Jensen beyond the pale of protected
activity whereas the General Counsel, the Union, and Jensen all
claim his activity was protected. Under Wright Line, any con-
clusion that Jensen’s conduct lacked protection would mean
that the General Counsel failed to prove a prima facie case.
Respondent argues that Jefferson Standard “put clear limits
on employees’ right to disparage their employer.” In that case,
the union and certain technicians at that company’s television
station, without striking, engaged in informational picketing
and handbilling at the station for well over a month which
clearly advertised an existing labor dispute. Thereafter certain
of the technicians began a wide spread distribution of approxi-
mately 5000 handbills over the course of a ten-day period that,
according to the Supreme Court, “deliberately undertook to
alienate their employer’s customers by impugning the technical
quality of his product [without indicating] that they sought to
secure any benefit for themselves, as employees, by casting
discredit upon their employer.” These handbills made no men-
tion of the existing labor dispute. The company responded by
discharging 10 of the individuals it found responsible for dis-
tributing these disparaging handbills. The Board held that this
conduct was not protected and that the employees were dis-
charged lawfully. When the case reached the Supreme Court, it
agreed. In so doing, the Court stated:

Their attack related [in the 5000 handbills] related it-
self to no labor practice of the company. It made no refer-
ence to wages, hours or working conditions. The policies
attacked were those of finance and public relations for
which management, not technicians, must be responsible.
The attack asked for no public sympathy or support. It
was a continuing attack, initiated while off duty, upon the
very interests which the attackers were being paid to con-
serve and develop. Nothing could be further from the pur-

Q. BY MR. FEARS: Did you get along well with Mr. Jensen?
A. Fine.
Q. After you started working with him, did it appear that Mr.
Jensen sped up his work?
A. Yes. Mr. Jensen was cooperative.
Q. Did you ever come to the conclusion that he could work at
a faster pace.
A. Yes, no doubt.
pose of the Act than to require an employer to finance
such activities. Nothing would contribute less to the Act’s
declared purpose of promoting industrial peace and stabil-
ity.
The fortuity of the coexistence of a labor dispute af-
fords these technicians no substantial defense. While they
were also union men and leaders in the labor controversy,
they took pains to separate those categories. In contrast to
their claims on the picket line as to the labor controversy,
their handbill . . . omitted all reference to it. The handbill
diverted attention from the labor controversy. It attacked
public policies of the company which had no discernible
relation to that controversy. The only connection between
the handbill and the labor controversy was an ultimate and
undisclosed purpose or motive on the part of some of the
sponsors that, by the hoped-for financial pressure, the at-
tack might extract from the company some future conces-
sion. A disclosure of that motive might have lost more
public support for the employees than it would have
gained, for it would have given the handbill more the
character of coercion than of collective bargaining.

More recently, the Board characterized the holding in Jeffer-
son Standard as permitting employees to “engage in communi-
cations with third parties in circumstances where the communi-
cation is related to an ongoing labor dispute and when the
communication is not so disloyal, reckless or maliciously un-
true to lose the Act’s protection.” Emarco, Inc., 284 NLRB
832, 833 (1987). See also Cincinnati Suburban Press, 289
NLRB 966, 967 (1988).
Here, Respondent contends that Jensen’s March 5 flyer,
unlike earlier documents he authored and distributed, made no
reference to the labor dispute or any company labor practice,
made no reference to wages, hours and working conditions, and
asked for no public sympathy or support for a labor dispute.
Instead, Respondent charges, the flyer attacked policies related
to finance, marketing and administration for which manage-
ment alone was responsible. In addition, Respondent asserts
that the flyer constituted a continuing attack, initiated while off
duty, upon the very interests which Jensen was being paid to
conserve and develop.
Respondent also contends that it was justified in relying on
Jensen’s admitted March 4 phone call to Isaak, its competitor.
This action, Respondent argues, demonstrates further disloyalty
on Jensen’s part especially when considered in the context of
its ongoing problems with the City over its operation of Moun-
tain Shadows and Jensen’s expressed objective in October 1995
to “void” American Golf’s contract. Alternatively, Respondent
contends that even if it is found that the Isaak phone call was
protected, it established that Jensen would nonetheless have
been discharged because of the disparaging and unprotected
March 5 flyer.
The General Counsel claims that Jensen’s conduct in early
March cannot be severed from his earlier, admittedly protected
activities and, hence, his March conduct is protected. Overall,
the General Counsel argues that this case is factually distin-
guishable from the Jefferson Standard case. Thus, the General
Counsel asserts that as Jensen’s March conduct is limited and
isolated, that his March conduct posed no significant threat to
Respondent’s business, and that the content of the March 5
flyer is connected to matters raised in his earlier writings con-
cerning this dispute. For these reasons, the General Counsel
contends that the reasons advanced for suspending and dis-
MOUNTAIN SHADOWS GOLF RESORT 1251
charging Jensen are a pretext seized by Respondent to rid itself
of Jensen because of his protected activities.
In Emarco, supra, two employees of a subcontractor await-
ing reinstatement following a strike over their employer’s in-
ability to make timely contractual payments to their union’s
welfare and pension fund met with a contractor which utilized
their employer on a particular job. On this occasion, the em-
ployees told the general contractor that their employer “never
pay their bills,” “can’t finish the job,” “is no damn good,” and
was “a son of a bitch.” Nevertheless the Board held that these
disparaging remarks were protected because they “cannot be
considered in a vacuum” and were, in the overall context of the
labor dispute between the subcontractor and the union repre-
senting the employees, “an extension of a legitimate and ongo-
ing labor dispute.”
Cases of this nature require a factual determination as to
whether the conducted at issue is related to an extant labor dis-
pute. Jefferson Standard, supra; Emarco, supra. In light of that
required test, Respondent’s narrow reading of the March 5 flyer
without regard to the overall context of its labor dispute with
the Union fails. For reasons set forth below, I have concluded
that the activities which provoked Respondent to suspend and
later discharge Jensen clearly related to the ongoing labor dis-
pute and are protected.
First, Jensen’s uncontradicted account establishes that the
underlying labor dispute was prominently mentioned in the
course of his telephone conversation with Isaak’s administra-
tive assistant and no evidence shows that he explicitly solicited
Isaak to involve himself in attempting to interfere with Ameri-
can Golf’s business relationship with the City. Even if Jensen
mentioned that the City was dissatisfied with American Golf’s
maintenance of Mountain Shadows, I am unable to conclude
that this minimal disparagement rose to the level of a malicious
attack on Respondent’s services which would justify his dis-
charge even if considered separately. No evidence shows that
Isaak actually went to the March 5 meeting or otherwise initi-
ated any contact with any city official about the matter. That
being the case, and as the evidence shows that Isaak immedi-
ately called Pillsbury to alert Respondent to Jensen’s call, I find
it reasonable to conclude that Isaak treated Jensen’s solicitation
as little other than an annoyance about a matter that was of no
moment to him.
Second, the “monkey” flyer distributed to residents around
the Resort in advance of this particular city council meeting
unmistakably identified the labor dispute as the core problem.
To the extent that these citizens took it upon themselves to
attend the meeting as requested, they would have been well
aware of the underlying labor dispute context of Jensen’s
March 5 flyer. To the extent that other citizens attended the
March 5 meeting and happened upon one of the limited number
of flyers left by Jensen on this single occasion, it is highly
likely that they would have been in attendance at that meeting
for other reasons. In these circumstances, those few citizens as
yet unfamiliar with the overall dispute would not likely have a
significant interest in the matter.
Third, the city officials empowered to affect the Respon-
dent’s existing lease arrangement were, by March 5, well ac-
quainted with this labor dispute and the Union’s charges that
Respondent’s alleged maintenance deficiencies adversely af-
fected the represented maintenance workers’ economic well
being. Jensen’s specific reference in the March 5 flyer to the
supposed need for new sprinkler and drainage systems clearly
provided a nexus for city officials to connect the flyer to the
Union’s prior, repeated complaints. And unlike the situation in
the Jefferson Standard case, all of the evidence here suggests
that the City and American Golf had a long-term, legally bind-
ing relationship that would have required a complicated and
time consuming effort to sever.
Fourth, in view of the prior complaints by the Union and the
employees about Respondent’s alleged deferred maintenance
practices, the March 5 flyer’s references to these maintenance
issues provides a clear, though implicit, connection to the ongo-
ing labor dispute. Indeed, the sloganeering at the bottom of the
March 5 flyer, obviously lifted verbatim from the January 16
written presentation, provides a clear link to the past protected
activities. After admitting a lack of expertise, Jensen’s refer-
ences in the flyer to matters of finance are designed to illustrate
the adverse impact Respondent’s policy choices have on the
deferred maintenance question of concern to him. In this con-
text, his criticisms are far less authoritative than those found in
the Jefferson Standard case.
Having concluded that Jensen’s disputed activities were pro-
tected, I find that he was also privileged in his refusal to submit
to questioning as requested by Respondent’s supervisors and
agents. As Respondent admittedly suspended and then dis-
charged Jensen for protected activities, I find it thereby violated
Section 8(a)(1), (3), and (4) of the Act, as alleged. Emarco,
supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. By issuing written warnings, suspending, and then dis-
charging Eli Jensen, Respondent engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1),
(3), and (4) and Section 2(6) and (7) of the Act.
4. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having discriminatorily suspended and then discharged Eli
Jensen, Respondent must offer him reinstatement to his former
position and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of his suspen-
sion and discharge to date of a proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Respondent must further remove from any of its records any
reference to Jensen’s August 16 and September 15 warnings,
his March 12 and 22 suspensions, and his April 5 discharge,
and notify him in writing that such action has been taken and
that any evidence related to these warnings, suspensions and
discharge will not be considered in any future personnel action
affecting him. Sterling Sugars, Inc., 261 NLRB 472 (1982).
[Recommended Order omitted from publication.]