Vail Associates, Inc.

VAIL ASSOCIATES, INC. 139 Vail Associates, Inc. and Lawrence L. Benway, Jr. Case 27-CA-2866 October 28, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 18, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. The Respondent and the General Counsel filed exceptions and briefs in support. The Respondent also filed an answer to the General Counsel's exceptions and attached the brief it had filed with the Trial Examiner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, the answer to exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations as amplified herein.' It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. violation of Section 8(a)(3). The General Counsel on February 27, 1970, issued a complaint against Respondent, alleging the same matter, naming the Union as Internation- al Union of Operating Engineers, Local No. 9 (hereinafter called the Union). Respondent, by its timely filed answer, admitted the jurisdictional facts and that the Union was a labor organization but denied the commission of any unfair labor practices. On the issues thus joined, a hearing was held before me on May 5, 1970. Respondent and the General Counsel were represented by counsel, the Charging Party appeared but Ididl not !state aIformal!appearance on the record. All parties had an opportunity to appear, to adduce evidence, to call witnesses, to examine and cross- examine them, to argue on the record at the end of the hearing, and to file briefs. Briefs were filed by the General Counsel and by Respondent. At the close of the General Counsel's case-in-chief, Respondent moved to dismiss the complaint which motion was denied. Thereafter at the close of the hearing Respondent renewed its motion and I took it under advisement. It is dealt with below. Upon the entire record, from my observation of the witnesses and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Colorado corporation, maintaining, at Vail, Colorado, the operation of skiing facilities including lodging places, hotels, eating and drinking places, chair lifts, rest and recreation quarters, and all of the appurte- nances thereto. In the course and operation of its business, Respondent annually receives revenue in excess of $500,000 and annually imports into the State of Colorado goods, supplies, and materials valued in excess of $50,000 from points outside the State of Colorado. Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 1 The Trial Examiner, in concluding that Supervisor Benway's discharge was partially due to his union activities, inferred knowledge of such activities by the Respondent noting that Benway's union activities constituted the only element of change occurring between the March 4 incident which management construed as showing the disloyalty of Benway and the April 13 discharge of Benway. We, in addition, rely upon specific evidence of knowledge not mentioned by the Trial Examiner. Supervisor Almond admitted that he knew Benway was attending union meetings at the time they were being held, and that he considered this attendance at union meetings to be another step in Benway's activities adverse to management. Inadvertently the Trial Examiner referred to Benway having attended three union meetings, whereas his testimony was that he attended only two of them, one shortly after March 4 and one about April 10. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: Lawrence L. Benway, Jr., an individual, hereinafter called Benway, filed a charge on January 9, 1970, 1 againstl Vail Associates, 'Inc.,; hereinafter called Respondent, alleging that Respondent had refused him employment because he engaged in union activities, in It. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background The Charging Party, Benway, was employed by Respon- dent in the fall; of ;1963 1 as a ski patrolman and worked in that capacity until the fall of 1966 when he was promoted to the job of assistant patrol director, which he held until he was discharged effective April 21, 1969. He was unques- tionably a supervisor as assistant ski patrol director, administering the duties of the ski patrolmen, giving out daily work assignments, and he had the power to fire although not to hire employees. The record is quite clear that Benway performed adequately as a ski patrolman and as a supervisor except that he did not, in the opinion of the Respondent, successfully make the change from a rank- and-file employee to supervisory status in that he did not 186 NLRB No. 23 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with management in some of its decisions relating to the employment and personal supervision of the employees under his direction. In February 1968 two ski patrol employees, Britton and Garton, while off duty, became intoxicated and using the Employer's equipment went to the top of one of the ski runs in the gondola operated by the Employer. They apparently had a picnic with their wives at the top of the mountain during the course of which they at least remained intoxicated. Later they were observed by Benway riding back down the mountain on the chair lift, which apparently connects the end of the gondola cable line to the top of the mountain. Then the two men, continuing downhill in the gondola, engaged in scuffling during the course of which they knocked almost all of the plexiglass windows out of the gondola. Benway had the men returned to him at the top of the gondola cable line, arranged for them to be sent home and arranged for ski patrolmen on duty to ski down the slope and collect the plexiglass windows, which had been "popped" out of the gondola. The next day he met with Welin, ski patrol director, and Don Almond, the mountain manager. Benway argued for the men that inasmuch as they were off duty they should not be terminated for their conduct and recommended that they be suspended. Welin agreed with Benway at this time but Almond overruled both of them and decided to discharge both Britton and Garton. This was not the first occasion when an issue had arisen between Benway and higher supervision with regard to the Employer's. attempt to police the off-duty conduct of its ski patrolmen, Benway always taking the position that Respondent had no right or duty to do so. When Benway found himself overriden and after Almond had departed, Benway told Welin that he should find a replacement for him because he was resigning as assistant ski patrol director. He apparently had in mind reverting to his position as ski patrolman. Welin made no comment at that time and, other than interviewing one or two other ski patrolmen at sometime thereafter prior to the end of the season on April 21, made no attempt to find a new assistant ski patrol director. Accordingly, Benway continued in his duties in setting up the schedules and leading the ski patrolmen although he was not thereafter invited to management consultations with Welin or Almond. When Benway left Welin after stating his resignation, he went back up the mountain to the patrol headquarters and informed the patrolmen present, apparently a majority of those on duty at the time, that he had resigned, that Britton and Garton were discharged, and whatever they did to help themselves they had to do as a result of their own efforts. At the time of Benway's resignation the employees were engaged in organizing and seeking representation by the Union. After his purported resignation Benway attended three meetings held on March 10, April 10 and April 12. He participated in each of these meetings and was not introduced as a supervisor or a member of management. On or about April 13, Welin informed Benway that he was not being rehired the next ski season. Benway asked if he could be rehired as a regular patrolman and was answered that he had been an unfaithful employee. On April 19, Benway addressed a memorandum or letter to Peter Seibert, a vice president of Respondent, Don Almond and Channing Welin. Two portions of the document are particularly relevant to the problem herein. The first states: My resignation has historical implications. During my tenure as Assistant Director I had had many differences of opinion both with Mr. Almond and Mr. Welin. These differences of opinion lay mostly in the area of off-duty personnel or unemployed-seasonal personnel and their subsequent activities. It was my contention that the employer was not entitled to legislate the morality of its off-duty or unemployed-seasonal personnel. I held that if the men did the job competently their subsequent behavior off the job was not a matter which could determine their continued or discontinued employment. The second relevant portion of the letter states as follows: It must be noted here that following my resignation I was never considered by management as being in their camp. It was my intention to rejoin the men and it must have also been the design of management for I was never asked to participate with management as evidenced by my exclusion from their subsequent meetings. In fairness to the fact at hand it must be noted that I did carry out the "on-the-hill" functions of Assistant Director. This happened because I had not been replaced and "somebody" had to assume direction of the unit from time to time when Mr. Welin was absent. Benway was terminated on April 21. The termination record kept by the Employer and filled out by Welin states the reason "lack of loyalty to company." THE ALLEGED VIOLATION In September 1968 Benway applied to Respondent for a job as ski patrolman. He received therefrom a letter thanking him for his application and stating that all positions were filled and no jobs were available. In the fall of 1969, Benway went to one Parker, a vice president of the Respondent, and asked his assistance in getting a job with Respondent as a ski instructor. It appears that during the 1968 season he had been employed as an apprentice ski instructor by a competing concern. Parker told him that he appeared to be qualified and said that he would do what he could for him but first Benway would have to secure the approval of Almond, from whose department Benway had been discharged in the past. Benway called on Almond and attempted to secure his approval to Benway's rehire as a ski instructor. According to Benway's testimony Almond answered that unfortunately he had made the wrong decision at the wrong time and backed the men in a very unpopular cause. With regard to his employment as a ski instructor Almond answered "that's not possible" and Almond went on to state if Benway wanted to ski professionally he would have to leave the Vail Valley and even then he couldn't be assured of a job because employers would always seek a recommendation from Respondent. Almond's version of the incident was sketchy, other than that he believes that he told Benway that possibilities of his being rehired were limited and he did not recall giving him a specific reason but that if he had it would have been disloyalty to the Company. It is this refusal on the part of Respondent to even consider Benway VAIL ASSOCIATES, INC. 141 for rehire that is the basis of the allegation of discrimina- tion. DISCUSSION General Counsel contends first that Benway's purported resignation on March 4 was effective and that thereafter he was a rank-and-file employee although he continued to do the ministerial duties of the supervisory position he had theretofore held. Accordingly, then General Counsel contends that Benway's activities on behalf of the Union which consisted of not only his attendance at the three meetings but, after his discharge, of his participation with the Union in the negotiation of a contract with the Respondent, all were activities of an employee and accordingly protected by Section 7 of the Act. With regard to refusal to hire, General Counsel contends that the real reason or a reason for the refusal to hire was in fact the union activity of Benway, as an employee and that therefore Respondent violated Section 8(a)(3) and (1) of the Act in its refusal to consider him for hire. Respondent, on the other hand, contends that Benway's union activities were unknown to them until he appeared with the Union in the negotiation of the contract long after his termination. Respondent contends that Benway contin- ued as a supervisor until the close of the season, April 2 1, and that his discharge, which was effective April 21 but of which Benway was informed April 13, resulted from the Britton-Garton incident and from their general belief that he had failed to successfully make a transition from rank- and-file to supervisory status. Respondent contends that the charge of disloyalty leveled at Benway resulted from the Britton-Garton incident and from the fact that after the incident against the expressed wishes of Welin he proceeded up the mountain and told the employees before Welin had a chance to do so. I find that Benway's attempted resignation was ineffectu- al. That Welin heard it and that he transmitted it to Almond I have no doubt. But the fact is he was not replaced, he continued in his duties as he admitted in his letter quoted above and he continued in all respects to occupy exactly the same position except that he was not invited to managerial discussions after the Britton-Garton incident. His discharge took place on April 13, effective the 21st of April. By that time he had been in attendance at three union meetings in which he had participated. I believe and I find that it is this which precipitated his discharge. As a supervisor he had for 2 years regularly clashed with upper management with regard to the issue of the policing of ski patrolmen's off-duty time. This was no new thing. Other facets of dissatisfaction by upper management appeared to have existed most, if not all, the time that he was a supervisor. No move was made to remove him from that job. This Britton-Garton incident was one more example of the same except that it led to his attempted resignation. Whether it would have resulted in the refusal by Respondent to continue him as a supervisor thereafter but retain him as a ski patrolman is impossible to determine from the record. I believe and I find that it was his activities with the Union that lead to Respondent's final disillusion- ment in him, to his discharge and their refusal to reinstate him as a rank-and-file employee. I find support in this conclusion from two factors. (1) The Union won a Labor Board election among the ski patrolmen on April 12, 1968, the day before the termination interview between Welin and Benway, at which Welin told Benway he would not be rehired because he was considered a disloyal employee. (2) Also in the last preceding paycheck Benway had received a notice or form to return to the Employer to indicate whether he intended to return the following year. Welin told him that he had been given that by mistake. I conclude from this fact that the decision to discharge Benway had been made after the issuance of the last preceding paycheck which I assume was within 1 or 2 weeks of the discharge interview. The only element in the entire equation that had changed between March 4 and that decision was the union activity of Benway and the fact that the Union won the election. Accordingly, I find that the factual situation, against which the refusal to consider Benway for rehire in 1969 must be considered, was that he was a supervisor discharged for disloyalty, in part resulting from his activities on behalf of the Union, and it was for this reason that Respondent refused to consider him. Some support for this conclusion may be found in the testimony of Richard Dixon, an employee who circulated an antiunion petition, that in an interview with Almond in January of 1970 he asked Almond if there was any way to get Benway reinstated and Almond replied that there was not because Mr. Seibert didn't want anything to do with anybody who had anything to do with the Union.' Respondent in moving to dismiss the complaint relies on the decisions of the Ninth Circuit in Texas Company v. N. L. R.B.,2 and of the Fifth Circuit in N. L. R. B. v. Columbus Iron Works Co.3 The former case holds that a foreman who had been discharged for union activity could be refused employment as a rank-and-file worker for the same reason and in the latter case the court found that even if a supervisor had not been discharged for union activity the employer could deny employment to him as a rank-and-file worker because of his prior active disloyalty while he was a foreman. The court in that case said "It is the inherent prerogative of management to operate its business efficient- ly, and one means of doing this is to decide whom it shall hire. A person who has been disloyal in one capacity may be disloyal in another." In the Board decision in Columbus Iron Works the Board stated "the Board is not to be considered as in any way departing from or disagreeing with the circuit court decision in the Texas Company case," but distinguished the latter case, Columbus Iron Works, on the basis that a supervisor therein was laid off from his supervisory position for economic reasons and not because of his union activity. In Gibbs Automatic Division, Pierce Industries, Inc.,4 the Board stated, "As we find that Higgs was in fact discharged for his union activity carried on while he was a supervisor, and that the Respondent would I Of course I note that this testimony equally supports the conclusion Welin clearly told Benway that he would not be rehired by Respondent. that Seibert had reference to the union activity of Benway during the 2 198 F.2d 540, reversing 93 NLRB 1358. contract negotiations which took place after his discharge. However, it 3 217 F.2d 208, reversing 107 NLRB 1354. must be remembered that at the discharge interview of April 13, 1968, 4 129 NLRB 196. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been justified in discharging him for this reason before he was demoted to an employee , we conclude, in the absence of contrary evidence, that Higgs was lawfully discharged for prior acts of unprotected conduct." (Citing the decision of the Fifth Circuit in N.L.R.B. v. Columbus Iron Works Company, supra.) In Leonard Niederriter Company, Inc., 130 NLRB 113, the Board found that the discharge of a rank-and-file employee because of union activities he undertook while he was a supervisor was not violative of the Act. (Citing Gibbs Automatic Division, Pierce Industries, supra.). It would appear that the Gibbs and the Niederriter cases as well as the Board decision in Columbus Iron Works indicate that the Board has accepted the rule as promulgat- ed by the circuits in the Texas Company case and the Columbus Iron Works case and it is therefore binding on me as a Trial Examiner. RECOMMENDED ORDER As I have found that Respondent did not violate the Act as alleged in the complaint, I hereby recommend that the complaint be dismissed in its entirety.