Heavenly Valley Ski Area

HEAVENLY VALLEY SKI AREA 359 Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Pt,,rtnership and Laborers International Local 1276, affiliated with Laborers International Union of North America, AFL-CIO. Case 20-CA-8836 December 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 8, 1974, Administrative Law Judge Mar- tin S. Bennett issued the attached Decision in this pro- ceeding. Thereafter, Respondent, Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Partnership, filed exceptions and a supporting brief. In addition, counsel for the General Counsel filed a limited cross-exception and a supporting brief to the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Partnership, Scdth Lake Tahoe, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inr., ,1 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings (tonal Union of North America, AFL-CIO, herein the Un- ion, alleges that Respondent, Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Partnership, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Briefs have been duly submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Heavenly Valley Ski Area, a California corporation, oper- ates a tramway and food and beverage concession at Heav- enly Valley, California. Heavenly Valley, a Partnership af- filiated with the former, with its principal offices located in California, operates a ski resort located between South Lake Tahoe, California, and Stateline, Nevada. Heavenly Valley Ski Area and Heavenly Valley constitute a single integrated enterprise. During the past calendar year, Heavenly Valley Ski Area enjoyed gross revenues in excess of $500,000 and purchased goods valued in excess of $5,000 directly from points outside the state of California. During the same period. Heavenly Valley Ski Area sold ski-lift tickets valued in excess of $1 million of which 5 percent was sold in the State of Nevada. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Laborers International Local 1276, affiliated with Labor- ers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction-The Issue This case involves one narrow issue. Namely, did the presi- dent of Respondent, Hugh Killebrew, physically maneuver a representative of the Union to the head of a staircase and then fling him down the stairs. It would seem, in reference to the Act, that an employer may do this, except for the fact that when rank-and-file employees are present and see this, or learn thereof, they may reasonably conclude that a similar fate may befall them because of their union activities. I do not pass upon the ostensible assault and battery charges within the meaning of the criminal code of the State of California. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This mat- ter was heard at South Lake Tahoe, California, on May 29 and 30, 1974. The complaint, issued February 22, 1974, and based on a charge filed December 18, 1973, by Laborers International Local 1276, affiliated with Laborers Interna- B. Sequence of Events William Damerell worked for Respondent's ski lift during the 1970-71 and 1971-72 winter seasons. He did not during 1973, at which time he was hired by the Union as an organ- izer. The record discloses that during his employment with Respondent he attempted to organize the ski-lift attendants, allegedly during their working hours, and became an ana- thema to Respondent. 215 NLRB No. 63 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Late in November 1973, he attempted to purchase a season ski pass. While he was in the pr.:)cess of paying therefor, Henry Griffin, Respondent's personnel director and office manager, came upon the scene. Griffin intervened and refused to sell him the pass and Griffin added, as he testified, that Damerell was undesirable at the premises of Respondent for sufficient cause. This refers both to his prior union activi- ties as well as his allegedly filing a baseless charge of unfair labor practices involving him with the Board; the details of this earlier case are not before me. Respondent has a list of so-called undesirables, to whom it will not sell tickets for various reasons not disclosed herein and Damerell has been added thereto. The crucial incident herein took place on Sunday, Decem- ber 16, 1973, at approximately 5 p.m. when Damerell visited a bar of Respondent's which serves patrons of the resort, as well as outsiders and employees. The bar is on private prop- erty, although the ski lifts are on leased Federal property. The bar presumably operates under a California license from the state. Damerell seated himself at a bar stool in the corner of the L-shaped bar and ultimately engaged in a conversation with a young lady on his right, as well as the gentleman on her right. The lady, by pure coincidence, turned out to be Ann Killebrew, the daughter of President Hugh Killebrew, and the young man was her cousin, James Mills; neither is an employee of Respondent. The conduct of Damerell was exemplary; he was not intox- icated; and the group discussed the merits of unionization of ski resorts after he identified himself. Indeed, Miss Killebrew, a witness for Respondent, testified that his conduct was fully in order. In fact, her father observed the man briefly and admitted that he found no fault with his behaviour. I so find. Moreover, Miss Killebrew conceded herein her surprise, and she so stated, how Damerell under the circumstances could be removed from a public establishment. Perhaps it may be noted that Miss Killebrew is a most attractive young lady in her twenties. One can only speculate that Killebrew's violent reaction to Damerell's presence, de- scribed below, he being someone already repugnant to Re- spondent, may have been augmented by his proximity to and conversation with the daughter of Killebrew. As stated, this case involves solely one alleged physical assault on Union Business Agent William Damerell by Presi- dent Hugh Killebrew. It may be noted initially that Kille- brew, who is 6 foot 3 inches tall and weighs over 200 pounds, is substantially larger than the object of his intentions, namely, Damerell. A number of witnesses for the General Counsel testified that Killebrew threw Damerell down a flight of stairs, ap- proximately 18 in number A number of witnesses for Re- spondent, with one significant'txception, supported Kille- brew that after-Killebrew marched Damerell to the head of the stairs, a distance of some 35 or 38 feet from the barstool on which Damerell was sitting, Damerell wrenched loose from Killebrew's grasp and fell down the stairs. Turning to the immediate incident, Damerell was sitting at the bar and was recognized as persona non grata. Shortly thereafter, he was approached by Griffin, Security Guard Pat Lunny who is no longer in the area, and Eugene Schweizer, director of food and beverages for'Respondent. Griffin told Damerell that he was trespassing and asked him to leave; Damerell refused. There is a conflict whether Griffin re- sponded that he would call the sheriff or whether Damerell :epponded that Griffin would have to call the sheriff. I deem this unnecessary to resolve. It would appear that Respondent made some attempt to contact the sheriff and that the latter was at best otherwise occupied. As stated, Ann Killebrew, the daughter of Hugh Killebrew, testified as to Damerell's proper deportment on this occasion, and she did not materially contradict Dame- rell's version of the incident, to the limited extent she ob- served it. According to Damerell, in my observation an objective and nonemotional witness, soon thereafter Hugh Killebrew ap- peared on the scene. Killebrew grasped him from the rear by the biceps of both arms, removed him from the barstool, and marched him to the staircase; at this point, it was necessary to make a 90-degree turn to the right to proceed down the stairs. Damerell testified he did not attempt to break loose from the grasp of Kellebrew and Killebrew proceeded to fling him down the stairs. He landed at least once on the way down, and suffered a sprained ankle; his testimony is undis- puted that he received medical treatment for this ailment that evening.' It is undisputed that Damerell was not organizing employees of Respondent at the time, except to the extent that he was discussing the merits or demerits of union organi- zation with Ann Killebrew, a nonemployee. There is a conflict between Damerell and Hugh Killebrew as to any incident during his forced egress from the ski lodge. They differ as to whether one or the other threatened to smash in the other's nose. Whereas Damerell was not intox- icated and was in the midst of Respondent's personnel, Damerell's denial of the threat and his testimony that it was Killebrew who uttered the threat impresses me as more relia- ble than Killebrew's claim that Damerell advanced the initial threat. I deem this not necessary for resolution herein because it is extraneous to the sole issue litigated herein. Damerell was corroborated by John Sundeen, a lift opera- tor at the time. He in essence adopted Damerell's version of the incident, testifying that he observed Killebrew move Damerell to the head of the stairs and then fling him down. He rejected Killebrew's thesis that Damerell attempted to break loose. Although not knowing Damerell at the time, shortly thereafter he encountered him at union meetings and learned of his status as a union organizer. I so find. There is evidence of criminal complaints filed by both sides. According to a police report, Sundeen advised an of- ficer over the telephone that all he knew was hearsay. He testified herein, and I believe his version upon his sincere demeanor, that he appreciated the fact that he was working for Respondent at the time and gave the version that he did because he feared that he might become involved in an inci- dent which would affect him adversely. I There is some testimony which I deem unnecessary to set forth as to how Respondent's officials, including Killebrew, then raced down the stairs and that Killebrew again grasped Damerell and marched him in similar fashion through other facilities of Respondent and ultimately via the parking lot to his parked vehicle I also deem it unnecessary to conclude whether Hugh Killebrew kicked Damerell during this excursion through the parking lot, the testimony being in conflict as to this HEAVENLY VALLEY SKI AREA 361 Some interesting testimony evolved from the next witness for the General Counsel, Patricia Bedell, a young lady whose testimony was most impressive, particularly so in view of her business connections. Bedell was on the premises as a cus- tomer and skier on this particular weekend. What I deem significant is the fact that she is a bookkeeper for a large and prominent San Francisco law firm which represents Re- spondent, although not in labor relations matters. She testi- fied that she observed the incident from her seat at the bar and saw Killebrew throw Damerell down the flight of stairs.' She testified further, and I so find, that Damerell did not attempt to pivot loose from the grasp of Killebrew and again that she. saw Killebrew, with both hands on his arms from the rear, shove Damerell down the stairs. Respondent has introduced evidence as to the substantial patronage of this bar on this occasion and I concur. The thrust of this is that the witness could not have fully seen the incident from her post. What impresses me is the fact that she encountered Damerell, unknown to her, directly after the incident at a nearby restaurant and informed him of what she had seen. Even more so, she spoke to one of the attorneys with her law firm, knowing of the attorney-client relationship between the firm and Respondent, and solicited his advice. She uncontrovertedly testified, as I so find, that he instructed her to testify herein and.tell the truth. In my judgment, she did precisely that. Thomas Gallagher, an employee of Respondent during the previous ski season and at the time of the incident a partron of the establishment, testified that he was standing with his roommate and coworker, named herein both as Carl or Brad George, some 10 or 15 feet from the top of the staircase. He observed the initial contact of Damerell by Griffin and then the approach by Hugh Killebrew. He flatly testified that Killebrew grabbed Damerell by the arms, moved him off the barstool, marched him to the stairs, and then deliberately pushed him down the stairs. He did not know Damerell's identity at the time, but he now does. Here again, I deem it unneccesary to treat with what did or did not take place after the initial flight of Damerell down the stairs, there being a conflict as to whether Gallagher followed the management entourage out to the parking lot.' While Respondent's witnesses, all management personnel, corroborated the testimony of Killebrew that Damerell broke loose and fell down the stairs, Killebrew was in effect substan- tially and perhaps inadvertently rebutted by Eugene Schwe- izer, director of food and beverage for Respondent. Killebrew testified that, as they neared the head of the stairs, the much smaller Damerell broke Killebrew's hold and then he, Killebrew, stepped back with his hands outstretched in what was in essence a defensive fighting position, consist- ent with Killebrew's admitted experience as a fighter. But, according to Schweizer, Killebrew's hands were in the same position holding Damerell throughout the incident As noted, a number of employees were on the scene, at least five of whom were in the rank-and-file category as identified by Griffin. Killebrew also testified that he did not recall seeing John Sundeen on the scene, although he claimed that he bought employees George and several others a beer on this occasion, upon their solicitation, and he introduced a chit without names to support this claim. Brad George, then a lift operator for Respondent, testified as a rebuttal witness for the General Counsel, that he saw the incident and that Killebrew shoved Damerell down the stairs. He flatly denied that Killebrew purchased him a beer on this or any other occasion. To sum up, the evidence preponderates that Respondent's president, Hugh Killebrew, flung the union business agent, Damerell, down a flight of stairs in the observation of em- ployees who either knew or later learned of Damerell's status as a union representative It would seem a logical inference that the employees justifiably could conclude that a similar fate might befall them because of adherence to the Union. I find that this perforce would tend to interfere with, restrain, and coerce the employees in the exercise of their rights under Section 7 of the Act and that Respondent has thereby en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following. CONCLUSION OF LAW 1. Heavenly Valley Ski Area, a California corporation, and Heavenly Valley, a Partnership, is an employer within the meaning of Section 2(2) of the Act. 2. Laborers International Local 1276, affiliated with La- borers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By physically assaulting a union representative or agent in the presence of employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain un- fair labor, practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 Respondent, Heavenly Valley Ski Area, a California corpo- ration, and Heavenly Valley, a Partnership, Heavenly Valley 2 On cross-examination, Bedell admitted having one drink She wears corrective glasses for reading and did not wear them on this occasion I fail to see how this assists Respondent in attacking her testimony 3 Although Gallagher is strongly confirmed by George, an impressive rebuttal witness for the General counsel, that Gallagher did so 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ski Area, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Physically assaulting union agents or representatives, or threatening to do so, in the presence of employees. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights gua- ranteed under Section 7 of the National Labor Relations Act. 2. Take the following action which is deemed necessary to effectuate the policies of the Act: (a) Post at its place of business at Heavenly Valley Ski Area, California, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by a representative of Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT physically assault union agents or re- presentatives, or threaten to do so, in the presence of employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. All our employees are free to join, or refrain from joining, Laborers International Local 1276, affiliated with Laborers International Union of North America, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a)(3) of the Act. HEAVENLY VALLEY SKI AREA A CALIFORNIA CORPORATION AND HEAVENLY VALLEY A PARTNERSHIP 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "