Aspen Skiing Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1972

194 N.L.R.B. 1016 (N.L.R.B. 1972)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aspen Skiing Corporation and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Local Union No. 961. Case
27-CA-3167
January 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 8, 1971, Trial Examiner James R.
Hemingway issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief. Respondent
then filed a brief in answer to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Aspen Skiing Corporation, Aspen,
Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGwAY, Trial Examiner: This is a
proceeding under Section 10(b) of the Act which was
initiated by a charge filed on February 9, 1971, by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
961, herein called the Union, against Aspen Skiing
Corporation, herein called the Respondent. Upon this
charge a complaint was issued on March 26, 1971, alleging
violations of Section 8(a)(l), (3), and (5) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
1 Certain errors in the Transcript, detected by comparison with a tape
recording of the proceedings, are corrected. In his brief, the General
Counsel moved for a correction in the testimony of Howard Mayer, where
the Transcript shows Mayer as naming Chuck Maddalone , whereas the
General Counsel contends that Mayer named Chuck Hasslock. I have
checked said tape made of the testimony at the hearing and find that the
seq. The Respondent filed an answer on April 6, 1971, in
which it denied the allegation of unfair labor practices in
the complaint.
Pursuant to notice, a hearing was conducted at Aspen,
Colorado, between June 16 and 18, 1971. At the
commencement of the hearing, the General Counsel moved
to amend the complaint to add a number of allegations of
alleged violation of Section 8(a)(1) of the Act. The motion
was granted. The Respondent denied the commission of
these unfair labor practices. At the conclusion of the
hearing, the parties requested time in which to file briefs,
and time was granted and later extended. Within the
extended time briefs were received from the General
Counsel and from the Respondent, and these briefs have
been considered.'
From my observation of the witnesses, and upon the
entire record, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
The complaint alleges and the answer admits that
Respondent is now and at all times material herein has been
a corporation duly organized under, and existing by virtue
of, the laws of the State of Colorado, maintaining its
principal office and place of business at Aspen, Colorado,
where the Respondent is engaged in the operation of skiing
facilities. In the course and conduct of its business
operations during the fiscal year preceding the issuance of
the complaint, the Respondent had a gross income in excess
of $5,000,000, and its purchases from directly out of the
state amounted to more than $10,000.2 I find that the
Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to
assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization , within the meaning of
the Act, representing a unit composed of all Respondent's
ski patrol employees and trail crew employees employed by
the Respondent on Aspen Mountain3 ; excluding all office
clerical employees, casual packers , ski instructors, lift
operators, catskinners , ticket sales employees, mechanics,
parking lot attendants, guards , and supervisors as defined
in the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The Respondent's operations
The Respondent is both an operating company and a
General Counsel is correct. I therefore grant the General Counsel' s motion.
2 According to an exhibit in evidence , Respondent's gross operating
income was $5,500,000. For a more complete recital of Respondent's
business, see Aspen Skiing Corporation, 143 NLRB 707.
3 It also represents a unit on Snowmass Mountain , but that unit is not
involved in the issues here presented.
194 NLRB No. 162
ASPEN SKIING CORP.
holding company. As an operating company, it operates the
ski facilities at Aspen Mountain4 near Aspen, Colorado. As
a holding company, it controls corporations operating
skiing facilities at Buttermilk and Snowmass Mountains
near Aspen, and the Breckenridge Ski Corporation, 75 air
miles east of Aspen. The several corporations are a single
integrated enterprise. Among the numerous functions
performed by the corporation is the preparation of the ski
slopes after the snow starts in the fall. This includes the use
of caterpillar-type snow packers (called snow cats), trail
crews, and ski patrols. During the skiing season, the
primary duty of the ski patrol is to look after the safety of
skiers, to aid any injured skiers, to reduce avalanche or
other hazards, to clear the mountains of skiers (called
sweeping the mountain) at the end of the day, and on
special occasions to assist in the maintenance of the trails.
The trail crew's primary duty was the maintenance of
slopes and the trails. This consisted of packing the snow
with their skis, cutting down moguls (mounds made by
swerving skiers), marking hazards, picking up rocks and
litter, helping to reduce avalance hazards, helping to clear
skiers off the mountain in the evenings, and, as needed,
assisting the ski patrol.
In July 1970, the Respondent purchased six new snow
cats at a cost of $14,480 each for grooming and packing the
snow on the slopes capable of being reached by them. The
new snow cats were designed to take steeper slopes than
were the machines that the Respondent had previously
used5 and were capable of performing much faster than the
old ones. When Vice President Thomas Richardson had
watched a demonstration of this type of snow cat in
February 1970, he commented to Mountain Manager
Charles Maddalone that, with such machines, the Respon-
dent could eliminate the trail crew. Maddalone said it
would have to be proved to him. Richardson broached the
same subject to Maddalone again in the fall, but
Maddalone would not agree without seeing how the new
snow cats would perform and what their maintenance costs
would be.
The trail crew was hired (by Trail Crew Leader Ken
Lindsay) in November 1970, as usual, and preparation of
the mountains for the skiers commenced in that month. The
skiing season on Aspen Mountain opened about Thanks-
giving Day. Both before and after the public began to use
the mountain, the snow cats, the trail crew, and (principally
before the season opened) the ski patrol all combined to
pack the snow on the mountain. During the season, the
Respondent also employed casual workers during the
morning to help pack the snow when the trail crew needed
extra help. These casual workers were called ticket packers
because they were paid only by a ticket or free pass for
skiing on the one day when they worked.6 Because they
were untrained, the ticket packers were harder to manage
than the trail' crew, and the trail crew leader did not
4 Also known as Ajax Mountain
5 The new ones could climb a 30-degree slope, whereas the old ones
could climb only 18-24-degree slopes.
6 The price of a day's ticket in the 1970-71 season was $8.50, up 50 cents
from the year before.
7 Ted Bachle, Thomas Canning, Gary Krubsack, George Milnor,
Robert Sullivan, and Anthony Vagneur
1017
normally employ more than 15 ticket packers at a time. At
the beginning of the season on Aspen Mountain, there were
22 ski patrolmen and 6 men on the trail crew,7 exclusive of
their supervisor.
2. Union Representation claims
On December 2, 1970, the director of region 19 of the
AFL-CIO wrote to the Respondent claiming that a
majority of Respondent's ski patrolmen and trail crew
employees had designated it as a collective-bargaining
agent and requested a meeting. At the same time, that
union petitioned for an elections The Respondent replied
by letter dated December 4, 1970, that it entertained a
good-faith doubt that AFL-CIO represented an uncoerced
majority of its employees. On December 17, 1970, the
Union wrote to the Respondent, also claiming to represent
the ski patrol and trail crew employees on Aspen,
Snowmass, and Buttermilk Mountains, and it requested a
contract negotiating meeting. On the same day, it filed a
petition for an election. A representation hearing was held
on the petition of Region 19 (for whom the Communication
Workers had meanwhile been substituted) on December 18,'
and the Union was an intervenor therein. On December 21,
1970, the Respondent sent a reply to the Union's letter of
December 17 in language identical to that of its reply to the
letter of Region 19 of the AFL-CIO. On December 28,
1970, an election agreement was signed and the Respon-
dent and the two unions agreed to three separate elections,
one on Aspen Mountain, one on Buttermilk Mountain, and
one on Snowmass Mountain. The election was scheduled to
be held about January 22, 1971,9 under the auspices of the
Board.
B. The Unfair Labor Practices
1. Interference, restraint, and coercion
a. Antiunion disposition of Respondent
On or about December 17 or 18, 1970,10 the Respondent
reached a decision to terminate the entire trail crew.
However, upon the advice of its labor relations consultant,
Philip Richard Moore of the Mountain States Employers
Council, it decided to defer the layoff until after the date of
the election in order to avoid the appearance of an unfair
labor practice.
Respondent's president, D.A.R.C. Brown, testified that,
during the past season (1970-71), the Respondent had
needed additional patrolmen at Breckenridge "to help
scout out Peak 9 area" and he informed those patrolmen
that they could work only if they were willing to cross a
picket line in the event of a strike and that, in the event of a
8 Later the petition was amended and the Communication Workers of
America was substituted for Region 19.
9 At places in the record, the date is given as January 21.
10 The date is fixed on the basis of the testimony of Philip Richard
Moore, a representative of the Mountain States Employers Council, that he
was consulted by the Respondent about such a layoff just before the Board
conducted a representation hearing in Aspen on December 18, 1970.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike at Aspen Mountain, he would expect to move them
from Breckenridge to Aspen to work.1' The exact date of
the hiring of the additional patrolmen at Breckenridge was
not shown, but I conclude that it was after one or both of
the labor organizations had claimed to represent the trail
crew and ski patrol employees, since otherwise there would
have been no reason to anticipate a strike. Brown testified
that he did not discuss training those additional patrolmen
with Vice President Richardson. Richardson testified that
the Respondent was training ski patrolmen at Aspen
Highlands as possible replacements for men at Aspen
Mountain. Brown did not testify concerning this; so it is
not clear whether Brown and Richardson were acting
independently and without knowledge of each other's
actions or whether the decision to hire and train ski
patrolmen at Aspen Highlands was a joint decision.
In early January 1971,12 the Respondent issued a "Memo
to Ski Patrolmen and Trail Crew," instructing them how- to
vote if they wished to remain nonunion, and answering
purported "Questions Asked by Employees of Aspen Ski
Corp. Regarding the Union," with information designed to
discourage interest in a union, and explaining why the
Respondent did not want a union. Among other questions
asked therein is the following: "I have been told that if a
union gets in here the Ski Corporation can't lay off any
patrolmen. Is this true?" The answer reads: "Whether or
not an employee is laid off depends upon the economic
condition of the Company, and whether the Company is
legitimately seeking to reduce costs. For that reason, even
under union contracts, companies retain the right to lay off
for a number of economic considerations, such as
automation, motorization, lack of work, etc." Another
question and answer dealt with replacement of employees
in the event of a strike. This memorandum was prepared by
the Respondent with the assistance of the Mountain States
Employers Council. It is not contended that the distribu-
tion of these memoranda to the unit employees on the three
mountains near Aspen constituted an unfair labor practice,
but the facts are related to show the Respondent's lack of
neutrality and its laying of the groundwork for a
termination of the trail crew.
b. Antiunion statements
Early in January, ski patrolman Stephen Stratford was
riding the number 5 chairlift on Aspen Mountain with
Mountain Manager Charles (Chuck) Maddalone. Maddal-
one asked Stratford how he felt about the Union. Stratford
answered that he thought a union was needed because there
was a communication gap between labor and management.
Maddalone said that if there had been any problems, the
employees in the unit could have brought them to him.
Stratford replied that they had tried that in the past and had
never been successful. Maddalone told Stratford that they
would not win anything by "doing this" and began to sing a
song entitled "Born to Lose." Maddalone continued to sing
the same song for several days thereafter until the time of
11 There is no indication that the same precaution was taken regarding
Snowmass Mountain or Buttermilk Mountain.
12 Hereinafter all dates will be in 1971 unless the year is otherwise given.
13 Hicks Ponder Co, 174 NLRB No. 12
14 Findings as to Lindsay 's statements are based on the testimony of
the election. I find that by Maddalone's questioning of
Stratford about the Union, accompanied by a prediction
that the Union could not win anything, meaning that the
Respondent would not yield anything in bargaining with
the Union, the Respondent interfered with, restrained, and
coerced its employees in their exercise of the rights
guaranteed in Section 7 of the Act. 13
Ski patrolman Patrick Fox testified without contradic-
tion, and I find, that about a week prior to the election,
Trail Crew Leader Ken Lindsay (stipulated to be a
supervisor within the meaning of the Act), approached Fox
in the ski repair shop and commented that he (Lindsay) was
upset and furious because he had just gotten word from
management that if his men voted "yes" in the election that
they were all going to be laid off, and that this had really
upset him because he thought that they were all going to
vote "yes." Fox quoted Lindsay as saying that Maddalone
had given him this information. Fox was in the collective-
bargaining unit. I find that the information passed on by
Lindsay would have a natural tendency to discourage union
preference even by those not then marked for layoff. By
Lindsay's statement, I find the Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
About a week before the date of the election, Trail Crew
Leader Lindsay led his crew down from the top of the
mountain to a remote area and told them that he was taking
them to this spot to talk to them because he had been
instructed by Maddalone to talk with them only individual-
ly, but he felt that they were good enough friends so that he
could tell them all together. Lindsay then told them that if
they went union they would be laid off. Lindsay said that
they were crazy to vote for the Union, because they would
lose their jobs, but he added that if he was in their position
he would probably do the same thing.14 Upon receipt of
this information, the employees present took an informal
poll and decided that they would all vote for the Union.
The fact that the coercive statement did not produce the
desired result does not purge the statement of its illegality,
for the statement would be remembered after the layoff and
would have a continuing tendency to discourage employees
in the exercise of their rights. Hence, I find that by
Lindsay's statements, Respondent interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Trail crew member Anthony Vagneur testified without
contradiction, and I find, that about a week before the
election, he had a conversation with Mountain Manager
Maddalone at the Sundeck Restaurant on the top of Aspen
Mountain about lunch time, during which Maddalone had
stated, "I hope you guys don't unionize because there will
be some drastic changes. I am afraid the good guys will get
hurt." I find this to be a threat of deleterious action. By
such statement, I find, 'Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
A few days thereafter, still before the election, Vagneur
trail crew members. Lindsay was not called as a witness by either side. The
Respondent indicated that it had attempted to get Lindsay as a witness and
had not succeeded. When the Trial Examiner offered to issue a subpoena
for Lindsay, the Respondent declined and explained that it believed that
Lindsay would be a hostile witness.
ASPEN SKIING CORP: 1019
and Maddalone • were riding in the chairlift together.
Vagneur and Maddalone gave slightly different versions of
a conversation which they had while they were riding on the
chairlift. Vagneur testified that Maddalone had asked him
what he thought about the Union, and Vagneur had
avoided answering. Maddalone then said that he hoped
they would not unionize because there would be some
changes, and that if they unionized they would have to deal
with Mr. Moore (Philip Richard Moore, who was on the
staff of the Mountain States Employers Council), who,
Maddalone said, would be a "tough son-of-a-bitch."
Maddalone, who testified that he had known Vagneur and
his family most of his life, gave the following account of this
conversation:
Well, it is a short lift. No. 6 is a short lift. It is about a
four-minute ride. I jumped on it with Tony, we were
riding up, and it seemed to me the cats that morning
had groomed F.I.S. and Tony leaned over and said, "It
looks like those cats are going to get our jobs" and I
says, "It is very possible." And he asked me if I thought
they were going to be laid off and I said, "Between the
business, the way the business is situated and the cats, it
is possibly a fact."
Maddalone's description of his lengthy acquaintanceship
with Vagneur suggests that a confidential relationship
existed between them and that he was likely to speak openly
to him. From my observation of the witnesses, I credit
Vagneur's testimony. The Respondent argues that Maddal-
one's conversation with Vagneur was casual and that it was
mere speculation on Maddalone's part rather than a threat.
However, his intimation of undesired changes if the
employees unionized was more than speculation, especially
since Maddalone had previously told Vagneur on the
sundeck that there would be drastic changes if the
employees unionized. Considering the two conversations
together, I find that by Maddalone' s statements to
Vagneur, the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Acts contended to constitute refusal to bargain
and discrimination
On January 22,15 an election was held on each of the
three mountains near Aspen. The Union won on Aspen and
Snowmass Mountains, but not at Buttermilk Mountain.
The Union was certified by the Board on February 1.
However, on January 25, before the Union had made any
request for bargaining, Moore wrote Charles Hasslock, the
Union's representative, the following letter:
The Aspen Skiing Corporation is looking forward to
commencing negotiations with your union as soon as
possible since there are several pressing items to be
discussed at our first meeting.
In regard to Aspen Mountain, business is down
approximately 14 percent this year. The corporation has
also purchased two new wide-track snow cats which can
effectively pack faster as well as packing steeper slopes
than the old cats. In view of this, we are contemplating
using the same practice that we do at Buttermilk, that is,
packing by machine.16
Before we reach a decision on this matter we request
an opportunity to discuss this with you as well as
discussing the effects thereof. We expect to make our
decision by February 8 and would welcome meeting
with you at any time prior to that date.
As a result of this letter and a reply from Hasslock dated
January 28, a meeting was held at Aspen Institute in Aspen,
Colorado, on February 5.17 Hasslock, accompanied by one
ski patrolman, Howard Mayer, and by one trail crewman,
George Milnor, represented the Union. The Respondent
was represented by D.A.R.C. Brown, its president, Thomas
Richardson, its vice president and general manager, and
Jim Moran, a local attorney.18 Hasslock handed the
Respondent's representatives a letter requesting certain
information. Moran looked at it and told Brown that he
should give the requested information. After agreeing that
negotiations should cover both units represented by the
Union, the Respondent raised the subject of elimination of
the trail crew, advancing the reason that the new snow cats
were able to do so much more than the old machines that
they no longer needed a trail crew. Patrolman Mayer
argued that the snow cats could not do everything that the
trail crew had been doing, such as shoveling moguls (banks
of snow built up by a change of course by skiers), grooming
and packing the steeper grades which were too steep for the
snow cats, assisting with avalanche control, and helping the
ski patrol sweep the mountain at the end of the day. Mayer
would have gone on at length, but Brown cut him off
without discussing any of Mayer's arguments. Richardson
said that it was a management decision and that
management would make it. Moran, who had once been a
ski patrolman himself, began to suggest the possibility of
replacing injured ski patrolmen with members of the laid
off trail crew, but Richardson interrupted and said that the
Respondent was considering holding the number on the ski
patrol to 16 (which is what it then was) and, if a senior
patrolman returned after an injury, the returning patrolman
would replace the patrolman having the least seniority. The
effect of this would be a reduction of the original number of
ski patrolmen from 22 to 16.19 Brown said that he would
consult with his management about the trail crew and
would reach a decision on February 8. The meeting ended
with the setting of a date for another meeting.
15 The record sometimes uses the date of January 21 as the day of the
election. Since there were elections on each of three mountains , they may
have been held on different days.
16 Buttermilk is a mountain with gentle slopes used mostly by unskilled
skiers, whereas Aspen Mountain has very steep slopes and is used
predominantly by, expert skiers; so they are not equally as easy to maintain
by snow cats.
17 According to Vice President Richardson, he met with Mountain
Manager Maddalone, Bud Law, chief of patrol, and others on February 3
and asked each if they could get along without the packing (trail) crew.
They answered that they could but that it would make their jobs more
difficult
19 Moore's plane was unable to leave Denver because the Aspen airport
was closed by weather conditions.
19 There was also a discussion of applying the same plan to Snowmass
Mountain . The Respondent, in this connection , clauned that it was
planning to "go public" and needed to make a good profit showing and so
had to reduce expenses In a letter from Richardson to a Board Field
Examiner dated February 26, Richardson gave the number of patrolmen
on Aspen Mountain in February as 21, including supervisors (of which
there were two).
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Saturday, February 6, the ski patrol requested a
meeting with management. The request was granted and
the meeting was held at a warehouse at the bottom of the
number 4 lift. It was attended by most of the ski patrol and
trail crew members. Richardson and some of the lesser
supervisors were there for the Respondent. Again there was
talk about the need for the trail crew members. Mayer
conceded that there were times when there were more than
enough men and other times when there were too few.
Richardson said that a ski season could not be based on the
9 or 10 days when more were needed. (The accuracy of
Richardson's estimation of the number of days when trail
crew members would be needed was not established.
Judging by the number of casual workers employed by the
Respondent in the 35 days following February 12, I find
Richardson's estimate to be grossly inaccurate.) He said
that, if they were shorthanded, they would have to run the
men back up.20 The ski patrolmen and trail crew members
argued that the snow cats could not do all that the trail crew
could, but Richardson was not moved, and it was evident
what would be decided by the Respondent.
On Monday morning, February 8, if Brown's testimony
be credited,21 Brown and Richardson met and "decided"
that the trail crew should be laid off on February 12. Brown
testified that he passed the word down the chain of
command. Some time that morning, Moore telephoned
Hasslock to inform him of the Respondent's decision to lay
off the trail crew. At the hearing, the Respondent elicited
testimony that the Union had not, at the meeting of
February 5, claimed that the layoff was a violation of the
Act. However, it is to be noticed that the Union filed its
charge in this case on February 9. Its failure to raise the
contention at the meeting I regard as of no significance.
On February 8, before they had received official notice,
some of the trail crew members learned of their impending
layoff when they heard a radio program on which
Richardson was being interviewed and on which he
announced the termination of the trail crew as of February
12. Richardson, on this program, gave the reason for the
layoff as technological-that the Respondent had now
determined it could maintain the runs satisfactorily with
machines. Although business in January was off around 14
percent from the year before, Richardson (unlike Moore in
his letter to the Union) denied on the radio program that
this was a reason for the layoffs.22 The trail crew was
officially notified of the intended layoff about 11:30 a.m.
on February 8 by Ken Lindsay, their supervisor.
On or about February 11, Lindsay told George Milnor, a
trail crew member, that it was too bad that the trail crew
was going to be laid off (the next day) and that it probably
20 The meaning of this is not clear. It might have referred to running the
ticket packers back up in the afternoon, whereas they had previously used
them only for 3 hours in the morning.
21 Although Brown could have met with Richardson that morning, there
is evidence that suggests that Brown might have been out of town that
morning Brown testified that he met with Richardson at 7:30 a.m. on
Monday and that they reached their decision at that time to lay off the trail
crew. The record reveals that Brown was out of town on Saturday,
February 6, and for that reason was unable to meet with the trail crew and
ski patrol that morning The record also reveals that Richardson made the
announcement of the layoff on a radio program on Monday instead of
Brown because Brown had been called out of town. The record does not
show how long Brown was reputedly away on Saturday and Monday, that
would not have happened if they had not voted for the
Union. The Respondent argued that Lindsay was a minor
supervisor who was not involved in Respondent's manage-
ment decisions. However, so far as his subordinates were
concerned, Lindsay, who had authority to hire his crew,
was part of management and could be supposed to speak
for management.23 Lindsay's statement was one that would
have a natural tendency to discourage employees' union
sympathy or membership. Although Lindsay used the word
"probably," I find that this was not a sufficient qualifica-
tion to remove the coercive effect of the statement,
particularly since he had warned the employees before the
election that the probable consequence of their voting for
the Union would be loss of their jobs. I find that, by
Lindsay's statement to Milnor on February 11, the
Respondent violated Section 8(a)(1) of the Act.
Pursuant to its announced intent, the Respondent laid off
the trail crew at the end of the day on Friday, February 12.
When the other employees arrived for work the next
morning, February 13, they discovered that the lifts were
not operating. A cat skinner had discovered that a
meterbox had been sabotaged. Later other damage was
discovered. The Respondent called out a repair crew, and
law enforcement representatives came to make an inspec-
tion. Meanwhile, most of the employees stood around,
uncertain as to what to do. The ski patrolmen stood around
with the other employees until approximately 8:20 a.m.,
when Bud Law, leader of the ski patrol (a supervisor), after
consulting with Richardson, told the ski patrolmen to take
off until 11 a.m. since the lifts were not expected to be
operating until then. None of the other employees were told
to take off. The Respondent explained this by testimony
that the ticket sellers continued to sell tickets, that the lift
operators were used to inspect the wires, since the
Respondent wished to make sure that the sabotage went no
further than the meter boxes, and that the cat skinners
operated their snow cats as personnel carriers. Ski
patrolmen testified that they saw other employees standing
around doing nothing until at least 8:30 a.m., when they
ceased to watch. By 9:30 a.m., the number 4 lift was
operating and was carrying the public. This was, however, a
short lift, not going to the top of the mountain. Patrol duties
at this spot were performed by supervisory personnel. By 10
a.m. all lifts were operating, according to Richardson, but
then the lift operators made a safety check. At 10:30 a.m.
Law told the patrolmen, who had spent their time over
coffee at a restaurant at the bottom of number 4 lift, to go
to work, and they did.
When Mayer discovered on the succeeding payday that
he had not been paid for the 2-1/2 hours between 8 and
is, whether he was in and out of town twice or whether he was out of town
on only one trip covering both days
22 Although attendance at Aspen Mountain was , in fact, down in
January as compared to the two preceding years , it is also a fact that
Aspen Mountain had less than the usual amount of snowfall in January. It
did not become heavier until almost mid-February . Presumably, the light
snowfall in January could have been a material factor in the lower revenue
for that month on Aspen Mountain although economic conditions in the
country generally could also have contributed to a smaller attendance.
Attendance at Snowmass Mountain in 1970-71 ran ahead of the previous
year until the week ending February 28 From that time on, attendance
was poorer than the year before
23 See Webb Tractor & Equipment Company, 167 NLRB 383.
ASPEN SKIING CORP. 1021
10:30 a.m. on February 13, he asked Law about it. Law told
him that he would check the matter with Richardson. Law
later told Mayer that Richardson had said for Mayer to see
Hasslock, the Union's representative, to see if he could
recover the 2-1/2 hours' pay for him. This is the first time
the ski patrol had' not been paid for time during which the
lifts were temporarily not operating. Previously, the men
had been paid for time spent on location during temporary
shutdowns. When the shutdown was expected to last the
rest of the day, the men were sent home and then they were
not paid, unless they had already been on duty for
something over half a day. One day they had been sent
home at 2:30 p.m., but they had been paid for the full day.
Richardson consulted with Moore before withholding
wages for the ski patrol, telling Moore that this was a case
without precedent. On that basis, Moore, without consider-
ing shutdowns because of wind or occasional mechanical
failure, told Richardson he did not have to pay the
patrolmen for time they did not work that day.
On February 22, two ski patrolmen, Michael Schaller and
Howard Mayer, who had just eaten their lunch were
passing through the ski waxing room at the top of the
mountain where two cat skinners (snow cat operators) were
having their lunch.24 Schaller and Mayer got into a
conversation with the cat skinners about the Union which
lasted for about 15 minutes. Maddalone had been in the
sleeping quarters over the waxing room, using a telephone.
On his way down the stairs, he testified, he heard Schaller
and Mayer talking and listened to them for awhile. Then he
came down and spoke to Schaller and Mayer. Schaller
testified that Maddalone "came storming down the stairs
and said he was `sick and tired of this union talk and you
fellows are trying to opinionate these fellows' " (referring
to the cat skinners). Mayer gave a somewhat similar
account. Maddalone testified that he had told Mayer that
he "got tired of listening to his union malarkey on our
time." The last three words of this quotation sounded as if
they had been appended following coaching by counsel, but
even if those words had been used, I would not find that
Maddalone's statement constituted a violation of the Act in
view of the length of time already wasted by the patrolmen
and the fact that Maddalone's termination of the conversa-
tion was based on the length of it, since he had not
terminated it before. Although Maddalone expressed
distaste for Mayer's and Schaller's attempt to "opimonate"
the cat skinners, I find that, in view of the fact that
Maddalone had already permitted the conversation to run
on for 15 minutes, he was not actually prohibiting union
talk, although I find that it demonstrated an antiumon
attitude.
Following the layoff of the trail crew, the Respondent
used ticket packers to do some work that they had not been
used for before, such as, among other things, shoveling
moguls. Although the ticket packers had previously been
used only for a few hours in the morning, following the
layoff of the trail crew, they were used on at least one
occasion in the afternoon as well. The number used varied
24 Maddalone testified that it was 2-30 p in , and that it was not lunch
time. He conceded, however, that there was no fixed time for the
patrolmen to eat
25 Brown did not explain what he meant by "going public" The
from day to day, but they were used most of the week of
February 15, the number ranging from 2 to 17. On March 7,
there were 23 ticket packers. Patrick Fox, a ski patrolman,
testified credibly that, after the layoff, there were changes
made in clearing procedure, in maximum and minimum
avalanche prevention, and in the amount of time the
patrolmen had to spend on duties formerly performed by
the trail crew. At times, he testified, there would be too few
patrolmen at the top of the mountain to take care of more
than a couple of injured skiers, although there was a chance
that more accidents could occur within a short space of
time. There was an average of three accidents a day on
Aspen Mountain, so I infer that on some days there were
less than three and on some days more than three accidents.
On February 25, when he reached the top of the
mountain where the assignments were given, Fox testified
and I find, Tom Taylor, assistant patrolleader, told the
patrol that management had passed down a new
policy-that three patrolmen were going to have to pack all
day. Previously, during the season, the patrolmen had not
packed more than a few hours in the morning, usually
before 10:30 a.m. when the accidents often commenced,
although before the season opened they had packed all day.
That morning (February 25), three of the patrolmen went
out with Trail Crew Leader Lindsay and about 13 ticket
packers. The three patrolmen continued packing until
about 3:30 p.m., when they came in to clear the mountain.
That day, three supervisors, including Maddalone among
others, were assigned to the job of clearing the mountain,
each taking a separate section. This was the first time in his
7 years there, Fox testified, that he had seen supervisors
used for that job.
C. Concluding Findings
1. Respondent's justification for the layoffs
Although Richardson, in his radio interview on February
8, explained the layoffs solely on the grounds that the new
snow cats were so efficient that the trail crew was no longer
needed, the Respondent, at the hearing, brought in two
other explanations or justifications, both based on econom-
ic grounds. The first was that business was off about 14
percent in January, and that this required economizing. The
second was raised by President Brown, who testified that
the Respondent was going to go public, and that the board
of directors had directed him to cut operating costs
wherever possible in order to enhance the Respondent's
financial picture.25 The instructions from the board of
directors were , Brown testified, given in the summer of
1970.
With regard to the justification based on the Respon-
dent's reduced earnings in January, I regard that as mere
makeweight, inasmuch as the Respondent had already
decided, in December 1970, to lay off the trail crew and, but
for the advice of its labor relations counsel that this would
look like an unfair labor practice and that they should wait
Respondent already had some 300 stockholders throughout the country.
Perhaps these stockholders wished to sell out by making a public offering
of their stock or perhaps there was authorized stock not yet issued
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until after the election, the Respondent would have laid the
trail crew off in December 1970.26 At that time, the
Respondent could not have been sure what business would
be like in January since business largely depended on the
amount of snowfall on the mountain. In a letter written by
Respondent's labor relations counselor, Philip R. Moore, to
a field examiner of the Board on February 12, he said:
The reason the decision was not made to mechanical-
ly pack the snow and lay off the packing [trail] crew
until this time [February ] was that:
1. The Ski Corporation needed to determine for
sure whether the mountain was going to run at a smaller
number of skier days for a continued period of time.
Such a decision could not be made on the basis of only
one or two weeks' experience after Christmas.
This contradicts Brown's testimony that only a month or so
was needed to determine the capacity of the snow cats to do
away with the need for a trail crew.
With regard to the instructions of the board of directors
in the summer of 1970 to economize because the
Respondent was going public, I find it difficult to believe,
after viewing all the evidence, that such economizing was a
genuine influence in the decision to lay off the trail crew.
Richardson estimated that the saving in wages of the trail
crew effected by the layoff was $6,000. This is not an
impressive saving in a corporation having gross earnings of
$6,000,000 a year, and it appears pennywise when
considered against the fact that, in the 1970-71 season,
officers' salaries were increased to $112,256 from $45,280
for the 1969-70 season, as appears from the consolidated
report of general and administrative expenses offered in
evidence by the Respondent.27 That report also shows an
increase of $4,000 in travel and entertainment expenses
over those of the prior season, an expenditure not
consistent with an economy drive. Likewise appearing to
belie the claim to economizing is the fact that, despite poor
earnings shown by Breckenridge, Brown undertook to hire
additional patrolmen there to serve as possible replace-
ments for strikers at Aspen, and Richardson was training
more of them at Aspen Meadows for the same purpose.
Although the Respondent showed reductions in expendi-
tures in some aspects of its operations,28 the increases
shown in other aspects of its operations detract from any
appearance of an employer attempting to pull in his belt for
economic reasons. Another indication that this so-called
reason for the layoff of the trail crew is unconvincing is the
fact that, although Brown was admonished in the summer
of 1970 to effect savings, he permitted a full trail crew to be
hired that fall and did not think of laying that crew off to
economize until after the union petitions had been filed. It
may also be pointed out that, in Moore's letter of January
25 to the Union, wherein he announced the Respondent's
intent to do without the trail crew, he made no mention of
26 No mention was made of the possibility of a change of sentiment by
the employees that might occur before the election, although the
Respondent must have thought of this before it issued its question and
answer pamphlet early in January. If the Respondent was moved by
antiunion considerations, it could postpone its decision to terminate the
trail crew, and be guided in its decision by how the election came out In,
view of Lindsay's admonition to the trail crew, there is reason to believe
that the Respondent was thinkmg along this line
27 This report covered the Respondent's expenses both as an operating
and as a holding company
the need to economize because the Respondent intended to
go public, although he did list this in his letter of February
12 to the Board's field examiner . On all the evidence, I
conclude that economizing was not the Respondent's true
reason for deciding to lay off the trail crew.
2. Conclusions as to Respondent's motivation in
making layoffs
A factor that cannot be ignored in reaching a conclusion
as to the Respondent's motivation in laying off the trail
crew is the timing of the Respondent's decision to effect the
layoff, and by this I mean the decision made in December
1970 and not the purported decision made in February
1971. The coincidence in time between the date of the
hearing on the petition of one of two unions and the date of
making the decision to effect a layoff is too marked to be
disregarded.29
Contrary to Brown's testimony that the Respondent, in
December 1970, had determined that it no longer needed
the trail crew because the snow cats had proved themselves
capable of taking care of the entire mountain, I find
evidence that indicates that Respondent was not justified at
that time in believing that the snow cats could eliminate the
need for the trail crew.30 The snow cats were tested on
steeper and steeper slopes far into January. At first they
were not satisfactory on very steep slopes (over 30 degrees)
because they could not ascend them and, if the slopes were
approached from the rear so as to come down, instead of
up, the steep side, the drag, which was pulled behind the
snow cat to break up lumps left behind the snow cat and to
smooth the snow, tended to swing down beside the snow cat
instead of following behind it. Toward the end of the
season, according to Richardson, a rigid bar was used to
connect the drag to the snow cat, and this improved the
operation. But this was long after the Respondent had
decided to lay off the trail crew and, even at the date of the
layoff, there were many areas that had been maintained by
the trail crew that the snow cats could not reach.
In belittling the need for the trail crew, Brown estimated
that the snow cats could cover all but 10 or 15 percent of the
mountain; but, when he was asked about specific heights
and trails, he did not know whether or not the snow cats
could reach them. I regard Brown's estimate as not of
reliable accuracy. Brown also testified that expert skiers
(most skiers on Aspen Mountain being expert skiers) like
moguls, thus offering that as a reason for not removing
them as a hazard. Yet ticket packers were used after
February 12 to remove moguls. Whatever expert skiers
liked, therefore, the Respondent evidently regarded moguls
as a hazard that could contribute to an accident or it would
not have had them removed. I can only conclude that the
Respondent was not doing as careful a job of maintaining
28 Some of the saving could well have come about through nonrecurrent
expenses
29 See McGraw-Edison Co v. N L R B, 419 F.2d 67 (C.A. 8).
30 At one point Brown testified that, until the Respondent tried out the
snow cats for a month or so, it could not be sure that the snow cats could
live up to the manufacturer's claims. The evidence indicates that at least 2
months, and perhaps a longer time, elapsed before the Respondent could
be sure of the ultimate capabilities of the snow cats. Since the heavy snows
came in late February and in March, the Respondent could have benefited
by its experience at that time.
ASPEN SKIING CORP. 1023
the trails after the February 12 layoff as it had done earlier
with the trail crew. Richardson estimated that the snow cats
could reach all but 15 percent of the mountain, slightly less
liberal an estimate than Brown's. George Milnor, a trail
crew employee until February 12, on the other hand,
estimated that the snow cats could cover only about 60
percent of the trails and slopes on Aspen Mountain.
Judging by the number of casual workers hired after the
layoff of the trail crew,31 it appears that there was still a
great need for manpower in addition to the machines.
Another indication that the Respondent was influenced
by the appearance of unions on the scene in deciding in
December to lay off the trail crew is the fact that, although
Richardson had spoken 'to Maddalone, before the season
began, about the possibility of doing without the trail crew,
Maddalone had resisted the idea, saying that it would have
to be proved to him that the snow cats would eliminate the
need for the trail crew. Following this, Richardson did
nothing to change the usual practice of hiring a full trail
crew that fall. It seems reasonable to believe that in
November 1970 the Respondent had decided to try out the
snow cats for at least a season before deciding whether or
not to maintain the mountain with snow cats alone, for,
when it hired the trail crew in that month, no intimation
was given to the employees that the trail crew would not be
employed, as it always had been in the past, for the full
season.
As previously pointed out, the Respondent timed its
decision to lay off the trail crew to coincide with the
representation case hearing. When it was advised to delay
giving effect to its decision until after the election, the
Respondent began to intimate to the employees that
Respondent could justify a layoff. It started by giving
intimation of this intent to its employees through its
question and answer memorandum which it distributed to
all employees in the units claimed to be represented by the
Union. The rumors of possible layoff were thus com-
menced and were added to by Maddalone's statements that
there would be drastic changes if the employees voted for
the Union and by Lindsay's warnings that the trail crew
would be laid off if the Union won in the election.
Although the Respondent wished to terminate and, but
for the advice of its labor relations counselor, would have
terminated the trail crew in December, there is no evidence
that the trail crew was without work to perform in mid-
December. Work was probably light during January
because of lack of sufficient snowfall. But judging by the
number of casual employees hired following the layoff of
the trail crew and the need to press supervisors into duties
that the trail crew would have performed, I conclude that
by February 1971 the snow cats had not demonstrated the
lack of need for the trail crew.
31 The General Counsel calculated that the Respondent used four times
as many casual workers after the layoff as it had before. He reached this
figure by comparing the number of tickets, 208, issued to ticket packers
before the latter part of February (according to a letter written by
Richardson to a field exannner of the Board on February 26) with the total
number of tickets, 1068, issued to ticket packers during the entire season
(according to an exhibit prepared by the Respondent). The Respondent did
not claim that these figures were inaccurate I take them to be correct
32 N L R B v. Erie Resistor Corp., 373 U.S 221; N LR B v. Symons
Mfg Co., 328 F 2d 835 (C.A. 8) As the Supreme Court said in N.LR B. v.
Great Dane Trailers, Inc, 388 U.S. 26:
Although the Respondent, in arguing that the trail crew
was only laid off and not discharged, made a point of
showing that the trail crew was allowed to keep their ski
passes for the balance of the season, the evidence as to use
of ticket packers in unusual numbers and the use of ski
patrolmen and supervisors to do work that the trail crew
might have done warrants the conclusion that the
Respondent was avoiding, at all events, a recall of trail crew
members even for a short period of time when they might
have been needed. On all the evidence, I conclude that the
layoff of the trail crew on February 12 was intended by the
Respondent to be permanent.
The Respondent, in its brief, cites cases where layoffs
were found to be for economic reasons and thus not a
violation of Section 8(a)(3) of the Act. The cases are not
apposite here. Even if the Respondent had reason to believe
that the snow cats could eliminate the need for the trail
crew, that would have justified the layoff only if that were
the sole motivating reason. If the Respondent also was,
even in part, moved by a design to discourage union
activity or preference, that illegal intent would render the
layoff illegal.32 In this case, the sum of the evidence
convinces me that the Respondent laid off the trail crew in
midseason to weaken the Union and to discourage union
membership in violation of Section 8(a)(1) and (3) of the
Act. Whatever the Respondent might have decided to do
about employing a trail crew in later seasons, absent a
discri minatory intent, I find that, at the very least, the
Respondent accelerated the termination of that crew by
terminating it before the end of the season.
3., Conclusions as to refusal to bargain and
withholding wages of ski patrolmen
Since I have found that the Respondent was motivated by
antiunion motives in laying off the trail crew, it follows that
the Respondent had no genuine intent to bargain
concerning that layoff but was merely going through the
motions deemed by it to be required to avoid an
appearance of unfair labor practices.33 I find 'that
Respondent irrevocably decided in December 1970 to
effect the layoff of the trail crew for illegal motives, and I
conclude that it entered the bargaining meeting of
February 5 with a closed mind on that subject and a fixed
determination not to agree even to reasonable proposals,
thereby violating Section 8(a)(5) and (1) of the Act 34
I further find that the withholding of wages from the ski
patrolmen by the Respondent was based on a discriminato-
ry motive. Perhaps the Respondent might have been
excused for inferring, in view of the time coincidence, that a
disgruntled member of the laid-off trail crew had sabotaged
the meterbox or boxes on the night of February 12, but this
. . even if the employer does come forward with counter
explanations for his conduct in this situation , the Board may
nevertheless draw an inference of improper motive from the conduct
itself and exercise its duty to strike a balance between the asserted
business justification and the invasion of employee rights in light of
the Act and its policy.
33 N.L.R B. v Whittier Mills Co, 111 F.2d 474, 478 (C.A. 5), N LR B
v Athens Manufacturing Company, 161 F.2d 8 (C.A. 5).
34 International Telephone & Telegraph Corp v. N.L R B, 382 F.2d 366
(C.A. 3), Flambeau Plastics Corp, 167 NLRB 735
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no reason for assuming that the Union or even the ski
patrolmen were parties to that unlawful act and for
punishing them for the act of an unknown person; yet, this
is apparently what the Respondent did assume, for, other
than general union animus, I find no other plausible
explanation for the Respondent's deviation from its prior
practice of paying the patrolmen when they were unable to
work for a few hours because the lifts were not operating.
The Respondent claims that there was no precedent for this
situation because it had never before sustained damage by
sabotage and that therefore it was justified in withholding
pay for time not worked. Although the Respondent had not
been rendered inoperative by such intentionally inflicted
damage before, I find no material distinction between
idleness caused by that situation and the idleness caused by
wind damage or mechanical failure.35 Since it was the
Respondent's practice to pay in the latter situation, it
should have followed the same practice in the case of
sabotage. Richardson's reported answer to Mayer's com-
plaint, that Mayer should go to his union representative,
clearly indicates that Richardson was abandoning the past
practice because he was unwarrantedly blaming the Union
and the patrolmen for the illegal destruction of property or
because of Respondent's general union animus, or both,
thus discriminating in regard to their terms of employment
and discouraging union membership in violation of Section
8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. As a result of a Board certification on February 1,
1971, the Union was, and now is, the exclusive representa-
tive of all ski patrol employees and trail crew employees
employed by Respondent on Aspen Mountain, Colorado,
excluding all office clerical employees, casual packers, ski
instructors, lift operators, cat skinners, ticket sales employ-
ees, mechanics, parking lot attendants, guards, and
supervisors as defined in the Act within the meaning of
Section 9(a) and (b) of the Act.
4. By notifying employees that they would be laid off
and that drastic changes would be made if they voted for
the Union, the Respondent interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
5. By discriminatorily laying off the trail crew on
February 12, 1971, and thereafter failing to reinstate them,
and by docking the wages of the ski patrolmen on February
35 The Respondent sought to differentiate on the ground that
inoperability because of wind is of indeterminate duration Actually, the
same doubt could exist in case of mechanical failures And it is evident that
there was an element of doubt about the duration of the length of time it
would take to repair the damage on February 13. By 9:30 a.m one lift was
operating and the others were operable not long afterward. Had the ski
patrolmen left the premises, they might not have been available until I l
a.m., the original estimate of the time for commencement of operations
13, 1971, the Respondent discouraged union membership in
violation of Section 8(a)(3) of the Act.
6. By entering into the collective-bargaining meeting on
February 5, 1971, with a closed mind respecting the subject
of laying off the trail crew, the Respondent engaged in a
failure and refusal to bargain with the Union within the
meaning of Section 8(a)(5) of the Act.
7. By the conduct set forth in paragraphs 5 and 6,
above, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend an order
that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Since I have found that the trail crew employees were
discriminatorily terminated on February 12, 1971, I shall
recommend that they be made whole by paying to them an
amount of money equal to that which they would have
earned as wages between February 12, 1971, the date of
their unlawful termination, and the date of the close of the
season on Aspen Mountain in April 1971.
The manner in which the Respondent may, in the coming
season or seasons, decide in a nondiscriminatory manner to
pack snow and take care of other chores that, in the past,
had been performed by the trail crew is not certain at this
time. Should the Respondent decide in a nondiscriminatory
manner to hire anyone for wages to do such work in the
future, the members of last season's trail crew should, upon
their application at the time for hiring such help, be given
preference in hiring, and I shall so recommend.
I shall also recommend that the Respondent pay to the
ski patrolmen who reported for duty on February 13, 1971,
the amount of wages withheld from them contrary to past
practice.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 36
Respondent, Aspen Skiing Corporation, Aspen, Colora-
do, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that they will be laid off or
will work under more arduous conditions unless they
But they remained and were called to work before that time. In effect, they
were on standby.
36 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
ASPEN SKIING CORP.
forego their membership in a union or their desire for union
membership;
(b) Discriminating in regard to hire and terms of
employment by withholding pay from unionrepresented
employees contrary to past practices and under conditions
where the same is not withheld from nonunion employees;
(c) Laying off or terminating the employment of
employees discriminatorily;
(d) Failing or refusing to bargain collectively in good
faith with the Union or with any other labor organization
representing its employees;
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole Ted Bachle, Thomas Canning, Gary
Krubsack, George Milnor, Robert Sullivan, and Anthony
Vagneur for any loss they may have suffered by reason of
the discrimination against them as trail crew members as a
result of their termination on February 12, 1971, by paying
each of them an amount of money equal to that which he
would have earned between February 12, 1971, and the
date of the close of the season in April 1971, less his interim
earnings, if any, during said period, said sum to be paid in
accordance with the Board's usual formula37 and with
interest at the rate of 6 percent per annum until paid.38
(b) Make whole members of the ski patrol for the amount
withheld from their wages on February 13, 1971, for the
period between the time when they reported for work at
their regular starting time and the time they were put to
work by the Respondent that morning with interest on said
amount at the rate of 6 percent per annum until paid.
(c) Upon request, bargain collectively with the Union
regarding terms and conditions of employment of employ-
ees, including trail crew employees who might be required
during ski seasons hereafter.
(d) Give preference to members of the 1970-71 trail crew
who apply for jobs in the event that Respondent hereafter
hires anyone for duties heretofore performed by trail crew
members.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, timecards, personnel records and reports,
and all other records necessary to determine the amount of
backpay due to laid off members of the trail crew of the
1970-71 season.
(f) Post in conspicuous places at its buildings in Aspen,
Colorado, where notices to employees may be seen,
including places normally used for notices posted for
employees, copies of the attached notice marked
"Appendix A." 39 Copies of said notice, to be furnished by
the Regional Director for Region 27, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
any material.
(g) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of receipt of this
1025
Decision, of what steps Respondent has taken to comply
herewith .40
37 F W. Woolworth Company, 90 NLRB 289.
38 Isis Plumbing & Heating Co., 138 NLRB 716.
39 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
40 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 27, in writing, within 20 days
from the date of this Order, of what steps the Respondent has taken to
comply therewith."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees that they will be
laid off or that they will work under harder conditions
unless they give up their membership in a union or give
up their desire for union representation.
WE WILL NOT discriminate in regard to hire, tenure,
or terms of employment by:
(a) Withholding pay from union represented
employees contrary to past practices and under
conditions where such pay is not withheld from
nonunion employees;
(b) Laying off or terminating the employment of
employees discrimonatorily;
(c) Failing or refusing to bargain in good faith
with the International Brotherhood of Teasm-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 961, as representative
of our ski patrolmen and trail crew employees, or
with any other labor organization representing
our employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or the
right to refrain from any or all such activities except to
the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(3) of the National Labor Relations Act, as
amended.
WE WILL pay Ted Bachle , Thomas Canning, Gary
Krubsack, George Milnor, Robert Sullivan, and
Anthony Vagneur each a sum of money equal to that
which he would have earned between February 12,
1971, and the date of the close of the season in April
1971, with interest at the rate of 6 percent per annum,
less his interim earnings during said backpay period.
WE WILL pay to each member of the ski patrol who
reported for work on February 13 the amount of wages
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withheld from him that day contrary to past practice, membership in a labor organization as a condition of
with interest on said sum at the rate of 6 percent per
annum until paid.
WE WILL, upon request, bargain in good faith with
the Union, including the subject of employment of a
trail crew on Aspen Mountain and regarding the terms
and conditions of such employment.
WE WILL give preference to members of the 1970-71
trail crew who apply for jobs in the event that we
hereafter hire anyone for duties heretofore performed
by trail crew members.
All our employees are free to become or remain members
of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
961, or of any other union, or to refrain from becoming or
remaining members of such labor organization except to
the extent that a collective-bargaining agreement made in
accordance with Section 8(a)(3) of the Act requires
employment.
Dated By
ASPEN SKIING
CORPORATION
(Employer)
(Representative) (Title)
This is ' an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 721
19th Street, Denver, Colorado 80202, Telephone 297-3551.