Mountain Shadows Golf Resort

National Labor Relations Board - Board Decisions

Nov 20, 2002

338 N.L.R.B. 581 (N.L.R.B. 2002)

MOUNTAIN SHADOWS GOLF RESORT 581
American Golf Corporation, d/b/a Mountain Shad-
ows Golf Resort and Laborers’ Local Union No.
139, Laborers’ International Union of North
America, AFL–CIO and Eli Jensen. Cases 20–
CA–26942, 20–CA–27175, 20–CA–27207, and
20–CA–27472
November 20, 2002
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On April 13, 2001, Administrative Law Judge William
L. Schmidt issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
the General Counsel and Charging Party Jensen filed
briefs answering the exceptions, and the Respondent
filed a brief in reply to the answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
On April 17, 2000, the Board remanded this proceed-
ing in relevant part for further consideration. 330 NLRB
1238. In the attached supplemental decision, the judge
affirmed his earlier finding that alleged discriminatee Eli
Jensen was unlawfully discharged because of his pro-
tected union activity. The judge rejected the Respon-
dent’s defense that, independent of any protected conduct
that Jensen engaged in, he would have been discharged
for disloyal conduct not protected by the Act. He con-
cluded that in fact Jensen would not have been termi-
nated in the absence of his protected activity.
We disagree, finding that Jensen would have been dis-
charged for cause within the meaning of Section 10(c) of
the Act because of his disloyalty. Accordingly, we will
dismiss the outstanding complaint allegations involving
him.1
In his first decision,2 the judge concluded, among other
things, that Jensen, a maintenance worker and well-
known union supporter, was unlawfully discharged for

1 The Respondent excepted to the judge’s failure to consider the
brief it assertedly filed with him following the Board’s remand for
further consideration. In his supplemental decision, the judge stated that
no such brief was filed. The Respondent contends that it was properly
filed, and it provided some documentation in support. The Respondent
also has attached its remand brief to its brief on exceptions to the
judge’s supplemental decision. We will assume, without finding, that
the brief was properly filed with the judge. Given the particular issues
in this case, we are in a position to evaluate the brief as effectively as
the judge might have. Accordingly, we find that the Respondent has
suffered no prejudice in this matter.
2 The facts are fully detailed in the judge’s first decision and the
Board’s first Decision and Order.
contacting a competitor of the Respondent by telephone,
and for circulating a flyer the following day that dispar-
aged the Respondent’s operation of a municipal golf
course and openly solicited for the Respondent’s com-
petitors to take over the Respondent’s contract with the
city. The Respondent claimed that both the telephone call
and the flyer were disloyal and grounds for discharge
under NLRB v. Electrical Workers Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953). The judge found both to
be protected activity, and the discharge to be an 8(a)(3)
violation. On review, the Board agreed that the telephone
call was protected activity, but found that the flyer was
not protected under Jefferson Standard. The Board re-
manded for the judge to determine under Wright Line3
whether the disloyal flyer alone would have caused Jen-
sen to be discharged.
On remand, the judge reaffirmed that Jensen was
unlawfully discharged. He found that the protected tele-
phone call and the unprotected flyer were inextricably
linked, with the call being the primary basis for the dis-
charge. The judge concluded that Jensen would not have
been discharged for the flyer alone because he had made
similarly disparaging remarks in the past in other flyers
and in a self-evaluation form—all of which, unlike the
flyer at issue here, made reference to union activity.
Jensen made copies of the flyer available to the public
at a Rohnert Park city council meeting on March 5, 1996.
The flyer stated in full:

ROHNERT PARK RESIDENTS,

DOES AMERICAN GOLF RETAIN A GREATER
PERCENTAGE OF PROFITS FROM THE CLUBHOUSE
FACILITIES (AS COMPARED TO GREEN FEES)?
THERE’S NO MONEY BUDGETED FOR NEEDED COURSE
UPGRADES, BUT A CAPITAL COST, NON-BUDGETED
ITEM LIKE THE RESTAURANT ADDITION CAN BE
FUNDED. (WE CAN HAVE A COUPLE OF DRINKS WHILE
WE WATCH THE COURSE DRY OUT.) SINCE I’M
FAMILIAR WITH NEITHER THEIR BUSINESS MODEL
(VAGUE) NOR REVENUE DERIVATION, I CAN ONLY
GUESS AS TO THE INTENT OF EXPENDITURES.
THAT NON REVENUE-GENERATING ITEMS LIKE
INSTALLING A DRAINAGE SYSTEM WHERE NONE
EXISTS OR INSTALLING A SECOND SPRINKLER SYSTEM
AROUND THE SANDTRAPS (BOTH CAPITAL COSTS),
DON’T GET DONE BECAUSE THEY WEREN’T
BUDGETED, IS TYPICAL OF “OPERATING STATEMENT”
THINKING. IF SUCH COURSE UPGRADING DOES NOT
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
338 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
HAVE AN EASY, IMMEDIATELY CALCULABLE
PAYBACK, IT IS NOT DONE. THE MONEY GOES INTO
AREAS WHERE AMERICAN GOLF REALIZES A GREATER
PROFIT. (I.E. BANQUET / TOURNAMENT FACILITIES.)
WHILE MOUNTAIN SHADOWS IS A COMMUNITY
FACILITY, IT IS ALSO A BUSINESS. IN ORDER FOR A
BUSINESS LIKE THIS TO THRIVE, THEY MUST EMPLOY
“BALANCE SHEET” THINKING (BUT LET’S INCLUDE
THE GOLF COURSE). THE CLUBHOUSE WAS A
SIGNIFICANT INVESTMENT. AMERICAN GOLF WILL
FOCUS ON THIS AREA FOR NOW SINCE IT’S NOT
GETTING THE DESIRED RETURNS FROM THE GOLF
COURSE (RESIDENT RATES?) “GETTING BY”, “IT’S AN
ONGOING PROCESS” OR “NEXT YEAR WE’LL BUDGET
FOR IT”, ARE NOT ACCEPTABLE RESPONSES! THE
CONDITION OF THE COURSES DOES NOT PUT
MOUNTAIN SHADOWS FIRST ON ANYONE’S LIST, EVEN
SUBSIDIZED RESIDENTS. IF THE FACILITY WAS UP TO
PAR, IT WOULDN’T HAVE TO BE “SOLD” TO ANYONE.
WHILE IT WOULD BE GREAT TO HAVE A TOUR CALIBRE
COURSE, GREENS FEES WOULDN’T BE THIS SIDE OF A
HUNDRED DOLLARS. OBVIOUSLY, BENCHMARKS
HAVE TO BE ESTABLISHED OBJECTIVELY. IT WOULD
SEEM HOWEVER, THAT AMERICAN GOLF WOULD
RATHER HAVE A MEDIOCRE BUSINESS PROPOSITION
THAN A GOOD PRODUCT. THAT IS A BUSINESS
DECISION, AND NOT NECESSARILY GOOD FOR THE
COMMUNITY.
DOLLAR FOR DOLLAR, MOUNTAIN SHADOWS HAS
THE POTENTIAL TO BE THE BEST BUY IN THE AREA.
FOR TOO MANY YEARS, PROPER MAINTENANCE HAS
BEEN IGNORED. IF AMERICAN GOLF ISN’T PREPARED
TO LOOK AFTER THE FACILITY, PERHAPS IT’S TIME
THE CITY FOUND A NEW PARTNER? MAYBE
COURSECO IN PETALUMA OR THE ARNOLD PALMER
MANAGEMENT COMPANY IN ORLANDO?

POOR MANAGEMENT * POOR BUSINESS & MARKETING
PRACTICES * POOR MAINTENANCE

* IS ROHNERT PARK GETTING THE BEST DEAL? *

As discussed, the Board earlier found that the General
Counsel had established a sufficient showing that Jen-
sen’s Union activity was a motivating factor in the Re-
spondent’s decision to discharge him. But the Board also
found that “Jensen’s distribution of the March 5 flyer is
the type of conduct that the Court found to be beyond the
protection of the Act in Jefferson Standard,” 330 NLRB
at 1241. In Jefferson Standard, the Supreme Court de-
cided that certain employees’ conduct in circulating
handbills substantially disparaging the quality of the em-
ployer’s product was “an elemental cause for discharge”
under Section 10(c) because of its disloyalty. 346 U.S. at
472. Accordingly, the Court upheld the Board’s conclu-
sion that the employees’ discharge did not violate the
Act.
The Board’s earlier decision in this case, therefore, es-
tablishes that Jensen’s unprotected distribution of the
flyer could be a cause for lawful discharge within the
meaning of Section 10(c). On remand, it was thus the
Respondent’s burden to demonstrate that Jensen would
have been discharged even in the absence of his pro-
tected conduct.” Wright Line, supra at 1089.
The Board has consistently found that disloyal em-
ployee conduct justifies discharge and/or denial of rein-
statement and backpay in appropriate circumstances. In
Firehouse Restaurant, 220 NLRB 818 (1975), the Board
affirmed the administrative law judge’s finding that one
employee was lawfully discharged and two others, who
had otherwise been discharged unlawfully, were properly
denied reinstatement and backpay. The three had en-
gaged in disloyal criticism of the quality of the food
served in the employer’s restaurant. Id. at 824–825. In
American Arbitration Assn., 233 NLRB 71 (1977), an
employee was discharged for sending a letter to the em-
ployer’s clients that disparaged the employer’s operation
of its business. The Board agreed with the administrative
law judge that the employee’s conduct was disloyal, that
it constituted “an attack upon the Respondent which was
sufficient to deprive [the employee] of the protection of
Section 7 of the Act,” and that it provided the employer
with a reason for discharge that was “warranted and law-
ful.” Id. at 75. In Sahara Datsun, 278 NLRB 1044
(1986), enfd. 811 F.2d 1317 (9th Cir. 1987), the Board
denied reinstatement and full backpay to a discriminatee
who had denigrated the employer’s reputation in remarks
to a business associate of the employer after the dis-
criminatee had been unlawfully discharged. The Board
noted that the former employee’s action “surely would
have provided the Respondent with ample ‘cause’ for
discharge if he had been employed” at the time of the
misconduct. Id. at 1046. See also Studio S.J.T., 277
NLRB 1189, 1201 (1985) (finding that a discriminatee’s
post—unlawful discharge telephone call to a customer
attacking the employer’s owners’ personal reputations
was “an act of sufficient disloyalty and vindictiveness as
to deprive her of the right” to reinstatement and full
backpay).
In the March 5 flyer, Jensen publicly impugned the
Respondent’s business practices and priorities, and he
solicited city residents to replace the Respondent with
either of two named competitors. We agree with the Re-
spondent that a reasonable employer, confronted with
such disloyalty, might have terminated the employee
MOUNTAIN SHADOWS GOLF RESORT 583
responsible for it. More to the point, we find that the Re-
spondent met its burden of showing that it would have
discharged Jensen for the March 5 flyer standing alone.
The Respondent provided evidence, through the testi-
mony of Loretta Raftery, its vice president for human
resources, that Respondent in fact would have discharged
Jensen for the March 5 flyer alone. The judge declined to
accept Raftery’s testimony. Thus, the judge concluded
that the Respondent failed to establish that it would have
discharged Jensen for the March 5 flyer alone. For rea-
sons that follow, we disagree.
Initially, we note that the judge did not rely on de-
meanor reasons in refusing to accept Raftery’s testimony.
Rather, an explained below, the judge relied upon a
flawed analysis of the case. Therefore, in these circum-
stances, the Board may proceed to an independent
evaluation of the matter. See, e.g., J.N., Ceazan Co., 246
NLRB 637, 638 fn. 6 (1979), and cases cited there.
As noted, in support of its rebuttal case, the Respon-
dent offered the testimony of Raftery. She testified that
the Respondent had no specific rule or written policy
concerning disloyalty. She described a “common sense”
policy that the Respondent followed, in which the level
of discipline depends on the severity of the conduct
deemed disloyal. In her view, Jensen would have been
discharged because of the flyer, given the severity of the
disparagement of the Respondent’s business. She indi-
cated that there had been other incidents of employee
disloyalty, but nothing comparable to Jensen’s conduct
concerning the flyer.
However, the judge found Raftery’s testimony “less
than convincing.” In this regard, the judge relied on the
fact that the Respondent took no disciplinary action in
connection with earlier conduct in October by Jensen.
That earlier conduct was a self-evaluation by Jensen. In
the self-evaluation, Jensen described his goals as follows:

To void American Golf’s contract with Rohnert
Park. To replace Santok [Respondent’s maintenance
supervisor]. To unionize the cart barn and restaurant
employees. To make Mountain Shadows the excel-
lent facility that it could be. To unionize six other
American Golf operations. To get a new pair of “Ni-
kes” & “JUST DO IT!”

We do not agree that the October conduct was compa-
rable to the March 5 flyer. First, Jensen’s earlier self-
evaluation was a private, not a public, document. In addi-
tion, it did not criticize the Respondent in the same harsh
tones used in the March 5 flyer. Further, the self-
evaluation included clear references to union activity.
Therefore, the Respondent would have been at signifi-
cant risk if it had taken action in response to the docu-
ment. By contrast, given the public and harsh nature of
Jensen’s March 5 flyer, and its total lack of reference to
any protected activity, the Respondent could reasonably
conclude that discipline was necessary and warranted.
The judge also emphasized that Jensen’s March 5 flyer
was not “a bolt out of the blue” because Jensen had pre-
viously attended city council meetings to complain about
working conditions and the progress of collective bar-
gaining at Mountain Shadows, and had also previously
distributed flyers appealing for public support for the
golf course’s maintenance workers in their labor dispute
with the Respondent. The judge reasoned that because
the March 5 flyer represented “a continuation of a
lengthy stream of public criticism of the golf course op-
erations,” the Respondent would not have discharged
Jensen for the March 5 flyer alone. We disagree with
this reasoning. Jensen’s earlier public criticisms invaria-
bly included references to union activity and thus may
have been protected. The Respondent would reasonably
not have taken action against Jensen for that reason. But,
as the Board found in its previous decision in this case,
the March 5 flyer was not protected. It was thus signifi-
cantly different from Jensen’s previous public pro-
nouncements. Raftery herself testified that the flyer was
different from Jensen’s earlier activity because it did not
relate to a labor situation or to union activity. Indeed, in
finding the March 5 flyer unprotected in its earlier deci-
sion, the Board expressly contrasted that flyer, which
made no mention of union activity, with Jensen’s previ-
ous flyers, which did. 330 NLRB at 1241. Thus, to the
extent the judge relied on the fact that the Respondent
did not discipline Jensen for his previous flyers in deter-
mining that it would not have fired Jensen solely for the
March 5 flyer, the judge has simply ignored the Board’s
earlier decision in this case.
The judge ignored the Board’s earlier decision in an-
other respect as well. He concluded that Jensen’s March
4 phone call and the March 5 letter could not be sepa-
rated. In the judge’s view, they are “incapable of any
logical separation into component parts.” This view is
flatly inconsistent with the Board’s decision. The Board
concluded that the two acts were analytically distinct.
The March 4 phone call simply “left a message inviting
[a competitor] to the March 5 city council meeting.” The
March 5 flyer disparaged the Respondent and actively
sought to displace the Respondent as the operator of the
golf course. The March 4 phone call was protected; the
March 5 flyer was not protected. The Board remanded
the case to the judge to determine whether the Respon-
dent would have discharged Jensen based solely on the
March 5 flyer. To the extent that the judge found that the
March 4 phone call and the March 5 flyer were inextri-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
cably intertwined and that thus the Respondent did not
meet its rebuttal burden, the judge’s decision is fatally
flawed and must be rejected.
In light of all of the above, the Respondent’s earlier in-
action against Jensen provides no basis whatever for the
judge’s rejecting, or discrediting, Raftery’s testimony.
Thus, we are left with Raftery’s uncontradicted and in-
herently plausible testimony in support of the Respon-
dent’s rebuttal case.
Finally, we recognize that the Respondent has not
shown a practice of disciplining the kind of conduct in-
volved herein. However, that is because the Respondent
had not previously been confronted with the level of dis-
loyal conduct involved herein. Thus, the Respondent
could not, in this proceeding, cite any history of dealing
with such an act. Rather, the Respondent offered the tes-
timony of its manager Raftery. Unlike the judge, we find
no basis for rejecting Raftery’s testimony. It reasonably
supports the Respondent’s rebuttal case. Accordingly, we
conclude, contrary to the judge, that the Respondent
would have discharged Jensen, regardless of his pro-
tected activity, because of his distribution of the March 5
flyer.
Therefore, because we conclude that the Respondent
satisfied its Wright Line burden, we will dismiss the rele-
vant complaint allegations.
ORDER
The complaint allegations addressing the unlawful dis-
charge of Eli Jensen are dismissed.

Margaret M. Dietz and Jill Coffman, Esqs., for the General
Counsel.
Daniel F. Fears and William A. Calhoun II, Esqs. (Payne &
Fears), of Irvine, California, for the Respondent.
Eli Jensen, Pro Se, of Santa Rosa, California.
Paul D. Supton and Theodore Franklin, Esqs. (Van Bourg,
Weinberg, Roger & Rosenfeld), of Oakland, California, for
Charging Party Local 139.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. On July 2,
1998, I issued my decision and recommended order in this mat-
ter wherein I concluded that Respondent violated Section
8(a)(1) and (3) of the Act by suspending Eli Jensen on March
12, 1996, and discharging him some 3 weeks later on April 5.1
I reached this conclusion after finding that the two activities
Respondent used to justify his discharge, i.e., his March 4, tele-
phone call to Courseco, Respondent’s competitor, and his

1 The complaint in this case alleges that Jensen’s discharge as well
as his earlier suspension violated the Act. Unless the context otherwise
demands specificity, my references hereafter to his discharge also en-
compasses his suspension, or the entirety of the disciplinary action
taken against him in March and April 1996.
preparation and public distribution of a flyer the following day,
each constituted activity protected by Section 7 of the Act.
Because of my conclusion that both activities were protected by
the Act, I did not address Respondent’s alternate contention
that it would have terminated Jensen for either of these two
activities.
On April 17, 2000, the Board issued its Decision and Order
remanding wherein it agreed that Jensen’s telephone call to
Courseco constituted protected concerted activity but con-
cluded that Jensen’s preparation and distribution of the March 5
flyer lacked protection under the Act. Mountain Shadows Golf
Resort, 330 NLRB 1239 (2000). In reaching this conclusion,
the Board first explained that in its decided cases since the Su-
preme Court’s Jefferson Standard decision,2 it has “held that
employee communications to third parties in an effort to obtain
their support are protected where the communication indicated
that it is related to an ongoing dispute . . . and the communica-
tion is not so disloyal, reckless or maliciously untrue as to lose
the Act’s protection.” 330 NLRB 1239.
Applying this two-pronged test to Jensen’s March 4 tele-
phone call, the Board concluded that Jensen met the “first
prong” by telling the “person who answered the phone” (the
administrative assistant to Courseco’s president, Tom Isaak)
that the Mountain Shadows employees were having “union
problems” and that they were having trouble negotiating with
the Respondent. As to the “second prong” of the Board’s Jef-
ferson Standard test, the Board concluded that nothing occurred
during the March 4 telephone call that was “so flagrantly dis-
loyal, reckless or maliciously untrue as to cause [Jensen] to
forfeit the Section 7 protection.” In fact, as the Board noted,
Jensen did nothing other than leave a verbal invitation for Isaak
to attend the city council meeting scheduled for the following
day. The Board further noted the lack of evidence that Jensen
solicited Isaak to try “to take over management of the golf
course or otherwise attempt to interfere with American’s busi-
ness relationship with the city.” That is unquestionably true
because Jensen never, at anytime, spoke to Isaak personally;
even though he sought a telephone audience with Isaak on this
particular occasion, he got no further than Isaak’s administra-
tive assistant.
However the Board reached a different result when it applied
the same analytical scheme to Jensen’s March 5 flyer.3 It con-
cluded that the flyer failed to meet either of the requisite tests
necessary for protection under Section 7. First, the Board
found that “Jensen’s handbill made no mention of the labor
dispute, the Union, management’s treatment of the employees,
or any issue having anything discernibly to do with employees’
terms and conditions of employees [sic]” and that it “contained
nothing . . . directly or indirectly linked [to] the issues raised to
2 NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953).
3 Although labeled throughout as the “March 5 flyer,” this document
more precisely contains text of a speech Jensen planned to deliver at the
March 5 Rohnert Park city council meeting. He prepared extra copies
in anticipation of distributing them so that those in the audience could
follow along. As found earlier, Jensen decided to forego delivering his
speech when he observed no golf course officials present for that city
council meeting.
MOUNTAIN SHADOWS GOLF RESORT 585
any labor dispute.” As the Board viewed the substance of the
flyer, “the matters addressed . . . related solely to the impact of
the company’s capital investment and other business practices
on the quality of the service provided to customers.” And even
though the Board found that the flyer did “make a reference to
proper maintenance having been ignored—an issue with an
actual nexus to the employment concerns of the maintenance
workers—the reference occurred in the context of a suggestion
that the city consider turning over management of the facility to
one of Respondent’s competitors, not as a way to change labor
practice at the golf course but to make the course a better ‘buy’
for area residents.” As, in the Board’s view, the March 5 flyer
“omitted all reference to the labor controversy and attacked
policies of the Respondent with no discernible relation to it” the
Board concluded that Jensen’s public distribution of the March
5 flyer by leaving 24 copies on a table outside the Rohnert Park
city council chamber as he departed that meeting was not pro-
tected under the Act.
Noting that my decision did not address Respondent’s alter-
native assertion that Jensen would have been discharged for
distributing the March 5 flyer even if he had not made the
March 4 phone call, the Board remanded the allegations per-
taining to Jensen’s discharge to me for that determination. In
so doing, the Board found that the General Counsel had met his
initial burden of showing that protected activity was a motivat-
ing factor in Jensen’s discharge in light of its finding concern-
ing protected shrouding for his March 4 telephone call to
Courseco. Accordingly, the remand directs me to determine
whether Respondent had met its Wright Line4 burden of show-
ing that it would have discharged Jensen in the absence of the
March 4 telephone call to Courseco.
On remand, I provided all parties with an opportunity to sup-
plement their original posthearing briefs by a date certain. The
General Counsel and Jensen availed themselves of this oppor-
tunity; Respondent and Laborers Local 139 did not.5 After
carefully reconsidering the record in light of the argument
originally made on the remanded subject as supplemented fol-
lowing the remand, I have concluded that Respondent did not
meet its Wright Line burden. Hence, I remain of the view that
Jensen’s suspension and discharge violated Section 8(a)(1) and
(3) as alleged based on the following
SUPPLEMENTAL FINDINGS OF FACT
A. Argument
Respondent asserted in its posthearing brief to me that it
terminated Jenson for his “disloyal acts” (R. Br. to ALJ, p. 14,
L. 4), namely, “his admitted solicitation of a competitor and his
disloyal dissemination of the March 5th Memorandum.” (R. Br.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), as modified in Director,
Office of Workers Compensation Programs, Department of Labor v.
Greenwich Collieries, 512 U.S. 267 (1994).
5 Both Jensen and Laborers’ Local 139 filed unfair labor practice
charges concerning his discharge. Jensen’s charge is Case 20–CA–
27472; the Laborers’ charges in Cases 20–CA–27175 and 20–CA27207
pertain to Jensen’s suspension and discharge.
to ALJ, p. 18, LL. 21–22.) Even though Respondent contended
that its officials knew nothing of any protected aspect to Jen-
sen’s March 4 call to the Courseco office until his testimony at
the hearing and hence no unlawful motive can be inferred for
discharging Jensen for this reason, the Board has now held
otherwise.6
As the Board noted, Respondent also made the contention
that it would have discharged Jensen for the unprotected and
disparaging “March 5th memorandum regardless of the Isaak
call.” In this regard, Respondent’s argument in its posthearing
brief to me asserted:

The March 5th Memorandum alone, even in the absence of
the Isaak call, would have resulted in Jensen’s termination.
As discussed above, the March 5th Memo was clearly unpro-
tected activity which would have resulted in the discharge of
any employee, union or non-union.” [R. Br. to ALJ, p. 29, L.
25, p. 30, L. 1.]

Respondent cites the testimony of its vice president for human
relations, Loretta Raftery, detailed and addressed below, to
support this argument. Hence, Respondent argued, “even if the
Board concludes the Isaak call was somehow protected, no
violation of the Act can be found because [Respondent] has
carried its burden under the Wright Line test.” [R. Br. to ALJ,
p. 30, LL. 3–5.]
Counsel for the General Counsel argues that Jensen’s dis-
charge violated the Act despite the Board’s conclusion that he
authored and distributed the unprotected March 5 flyer. She
contends that Respondent would not have discharged Jensen
merely for distributing the “comparatively innocuous” March 5
flyer. Instead, she believes that his extensive protected union
organizing activities during the winter and spring of 1996, in-
cluding the March 4 Courseco phone call seeking to invite its
owner, Tom Isaak, to the city council meeting the following
day when he planned to again discuss the labor dispute. Coun-
sel for the General Counsel argues that the March 5 flyer,
viewed in the context of the activities that had already occurred
in connection with this labor dispute, “did not contain any ideas
or criticisms of American Golf that Jensen had not previously
raised or made during earlier [protected] activity.” Mainly for
this reason, counsel for the General Counsel asserts that Re-
spondent’s claim that the March 5 flyer represented a “very
different kind of activity” lacks credibility. The General Coun-
sel argues that no evidence shows that Respondent’s managers
“considered the two incidents separately and concluded that the
March 5 memorandum alone would have warranted discharge.”
In fact, the General Counsel argues, “it was the protected phone
call in which Respondent believed Jensen was soliciting Tom
Isaak to try to take over the management of the golf course that
6 At the very least, Respondent’s officials knew before discharging
Jensen that claims, both orally and in writing, had been made by Union
Attorney Supton, who represented Jensen, that the distribution of the
March 5 flyer and the Courseco phone call constituted protected activ-
ity. No evidence shows that any company official ever asked Supton to
explain the basis for that general claim. Instead, they persisted in their
insistence to speak directly with Jensen, which Supton refused to per-
mit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
caused Respondent to terminate Jensen, and not the March 5
statement.”
In his prelude to his supplemental brief, Jensen quotes to fol-
lowing passage from the Allied Aviation case7

the Board has found employee communications to third par-
ties seeking assistance in an ongoing labor dispute to be pro-
tected where the communications emphasized and focused
upon the issues cognate to the ongoing labor dispute.

and goes on to make the following contention concerning
Board’s conclusion about his March 5 flyer:

Unlike the message in the flyers disseminated in Jefferson
Standard, which had no discernable relation to the contro-
versy, the March 5 draft was specifically related to the Un-
ion’s protest of unilateral changes made by the new superin-
tendent, Mike Higuera, who contrary to past practice was
sending Department 40 workers home on a whim and was
manipulating hours so that no one received overtime. Re-
spondent was very sure to frame this as a business decision
not as a change to any labor practice. Unfair Labor Practices
were filed.

Jensen’s brief contains other similar argument about the March
5 flyer. I decline his apparent suggestion to revisit that ques-
tion; this case was not remanded to me for that purpose.8
B. Further Findings and Conclusions on Remand
As noted, the Board has already concluded that the General
Counsel established a prime facie showing that Respondent
terminated Jensen in part for his protected activities. It now
seeks a determination as to whether Respondent met its burden
of establishing that Jensen would have been discharged even in
the absence of the protected March 4 call to Courseco. Under
Wright Line, supra, if the General Counsel establishes a prima
facie case, the burden of persuasion shifts to Respondent to
establish that the same adverse action would have been taken
even in the absence of the employee’s protected activity. Best
Plumbing Supply, 310 NLRB 143 (1993). To meet this burden
“an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected conduct.” Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984).
At the outset, the evidence almost uniformly establishes that
Respondent made exaggerated assumptions about the Courseco
phone call during its investigation leading to Jensen’s dis-
charge. Hence, Respondent harbored (or professed to harbor)
the erroneous belief that Jensen had solicited Courseco to ac-
tively pursue the Mountain Shadows management contract. To
be sure, Jensen may have sought to instill that dreadful notion
in the minds of American Golf managers by seeking Isaak’s
appearance at a March 5 city council meeting while he once

dded.]
7 Allied Aviation Service Co., 248 NLRB 229 (1980).
8 Jensen’s supplemental brief also contains references to statements
contained in affidavits and attachments not contained in the official
record of this matter. Although no party sought to strike these materi-
als, I nevertheless have disregarded all such attachments and references
in the preparation of this supplemental decision.
again complained about course upkeep and suggested that the
city seek a new “partner” but all indications suggest that Isaak
wanted none of that. It was, after all, Isaak who alerted Re-
spondent to the phone call in the first place. Yet, Respondent’s
officials chose to assume the worst. The evidence detailed
below demonstrates the use of this choice to discredit Jensen,
who by then had become the most visible union activitist on
Respondent’s staff, not merely as an negative employee but as a
grossly disloyal worker plotting to destroy the Company’s part-
nership with the city of Rohnert Park, the resort’s owner.
Thus, Superintendent Mike Higuera letter dated March 14
seeking a second meeting with Jensen the following day. In
that letter, Higuera laid out the Respondent’s concern with
Jensen’s activities on March 4 and 5. It alluded to Jensen’s first
(March 12) meeting with Director of Maintenance Mike
McCraw and Higuera, and then it states:

At the meeting, we asked you about recent information we
had received that indicated that you (1) had contacted Tom
Isaak, the owner of Courseco, a competitor company, to so-
licit his company’s interest in the management of the Moun-
tain Shadows Golf Course, and (2) had been involved in draft-
ing and/or circulating a memorandum that is extremely criti-
cal of American Golf’s management of Mountain Shadows
and of its business practices. The only conceivable objective
of such conduct would be to interfere with American Golf’s
relationship with its landlord, the City of Rohnert Park, and
perhaps to sever American Golf’s relationship with Rohnert
Park. If successful, such efforts would result in serious dam-
age to American Golf business and revenue, and potentially,
American Golf employees would lose employment
opportunities. [Emphasis a

In addition, Jensen’s termination letter, signed by maintenance
director McCraw but admittedly prepared by Raftery, states:

Over the last few weeks we have met with you, your
union representative, and most recently, with your attorney
regarding (1) your contacting of Tom Isaak, the owner of
Courseco, a competitor company, to solicit his company’s
interest in the management of the Mountain Shadows Golf
Resort, and (2) your drafting and/or circulating to the pub-
lic a memorandum that disparages American Golf Corpo-
ration and its management team and the quality of the
golfing conditions at Mountain Shadows. It was our de-
sire to give you every benefit of the doubt with respect to
these matters and to hear your side of the story. Unfortu-
nately, despite the several meetings mentioned above, you
have refused to respond to our questions regarding your
involvement in the above-mentioned activities.
At our April 1, 1996 meeting at your attorneys’ (sic)
office, your attorney, Mr. Supton, confirmed that you were
involved in the above-mentioned matters, but he refused to
allow us to speak with you about these matters. Thus, it
appears very clear that you were involved in these ex-
tremely disloyal acts, that you do not deny involvement in
this misconduct, and that you will not even speak with us
about this matter.
Based upon the above, we must regrettably inform you
that your employment is being terminated. We can see no
MOUNTAIN SHADOWS GOLF RESORT 587
legitimate reason for your attempts to destroy the Com-
pany’s relationship with the residents of Rohnert Park and
to solicit a competitor company to attempt to take over the
golf course. If your actions were successful, it would most
likely result in the loss of jobs and a diminution of busi-
ness for the Company. Given the nature of your inappro-
priate actions and your failure to discuss them with us, we
do not believe that it serves anyone’s interest to continue
the employment relationship. [Emphasis added.]

The testimony of company officials also demonstrates the in-
tegration of the Courseco call into the basis for the discharge.
Thus, Raftery, the company official responsible for overseeing
Jensen’s discharge, explained:

I’m not sure if it hit me the moment I read the [March
5 flyer], but probably within that first day after I had both
pieces of information, I remembered the self evaluation9
which I had seen at the time it was generated and sort of
filed away in my mind because it did, at the time, appear
to be something that I couldn’t imagine an employee
would really be serious about doing.
And there were other things in that self-evaluation that
were Mr. Jensen’s personal expression of his feelings
about the company and about unions. I remember it when
I looked at the memo and remembered the Isaak situation,
and I thought, oh my gosh, this guy really means to do
this, really means to hurt our business by voiding our con-
tract with the city. It appeared to me the pieces of the
puzzle had come together on that.

Consistent with the theme present in the foregoing portion of
Raftery’s testimony, Respondent claimed at the hearing that
Jensen provoked his own discharge by three—rather than
two—acts that together amounted to grossly disloyal conduct.
Thus, its counsel moved to dismiss the General Counsel’s case
and argued as follows:

There’s a lot of ways you can apply pressure, some legal,
some illegal. If he burned down the roof, that would apply
pressure, but it’s not legal. Going out and disparaging the
name and engaging in disloyal acts that are separate from his
union activities, that’s not lawful. It’s not protected. So,
American Golf was well within its rights when it discharged
an employee who had engaged in these grossly disloyal acts,
calling up the competitor, inviting them in, going to the resi-

9 The reference made to the self-evaluation form refers to the “Co-
Worker Self Evaluation” Jensen completed and submitted to the Com-
pany in October 1995. In the section of that form asking the employee
to state “goals and objectives for the next six months” Jensen remarked:
To void American Golf’s contract with Rohnert Park. To replace San-
tok. To unionize the cart barn & restaurant employees. To make
Mountain Shadows the excellent facility that it could be. To unionize
six other American Golf operations. To get a new pair of “Nikes” &
“JUST DO IT! [GC Exh. 25.]
Santok refers to Maintenance Superintendent Singh who had recently
issued two unlawful warnings to Jensen immediately after his rein-
statement as ordered by Judge Pollack in the earlier case. Elsewhere in
the form Jensen, referring to his reinstatement, stated that he “was
thrilled” to have his job back. No company official spoke to Jensen
concerning the content of this form.
dents and telling them what a rotten golf course it is; and
when you combine that with his stated motive of voiding the
relationship, American Golf was well within its rights. That
was not protected and it was not anti-union animus. [Empha-
sis added.]

Likewise, Dan Ross, the Mountain Shadows general man-
ager who followed the progress of the events leading to Jen-
sen’s discharge from inside the Company but disclaimed any
involvement with the decision making in Jensen’s discharge,
also saw the relationship of the Courseco call to Jensen’s dis-
charge. He testified:

Q. Excuse me if I asked this before. Why weren’t you
involved in the termination of Mr. Jensen?
A. At that point, Mike McCraw was handling the is-
sue.
Q. What issue is that?
A. Performance issues, etc., with Mr. Jensen.
Q. Okay. It’s your understanding that he was fired for
performance related reasons?
A. My understanding that it was disloyalty to Ameri-
can Golf, contacting Mr. Isaak, a competitor, and solicit-
ing for a new partner for the City of Rohnert Park.

And later he explained:

Q. BY MR. FEARS: Can you explain to us whether or
not there was any relationship between the Isaak contact
and the March 5 memorandum to the residents in your
mind?
A. Well, they tie in.
Q. How.
A. Isaak is the president of Courseco.
Q. Was there any tie at all, in your mind, to the previ-
ously stated objective Mr. Jensen had made in his self-
evaluation form?
A. Yes.

The foregoing evidence and argument substantially detracts
from any conclusion that Jensen would have been discharged
for distributing the March 5 flyer “even in the absence” of the
Courseco call. Instead, the letters to Jensen state in rather plain
terms that the decision to discharge him resulted from the threat
his actions, if successful, posed to the jobs of employees and
the Company’s business, neither likely to result solely from
“badmouthing” by a low-level employee. Instead, the language
of both letters and Raftery’s explanation strongly indicate that
the solicitation of a competitor played a central role in the dis-
charge rationale. In my view, this evidence (the letters and
Raftery’s testimony) shows that Respondent’s rationale for
Jensen’s discharge amounts to a linear, unitary explanation
incapable of any logical separation into component parts with-
out altering the actual basis for his termination and inventing a
new and artificial justification unsupported by the record. In
sum, Respondent chose to claim here that Jensen’s activities,
taken as a whole, amounted to something far beyond negative
employee comments; they charged that Jensen’s activities
amounted to grossly disloyal conduct.
Additionally, Respondent failed to present a persuasive case
to support its alternative contention that Jensen would have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
been terminated for the March 5 flyer even in the absence of
the Courseco call. As seen below, the basis for that assertion is
weak while the evidence is strong that the tone and object of
the Jensen’s March 5 flyer bore considerable resemblance to a
substantial body of preceding protected concerted activity.
In support of its contention that Jensen would have been dis-
charged for distributing the March 5 flyer even in the absence
of the Courseco phone call Respondent’s brief relies entirely on
the following testimony from Raftery:

Q. If Mr. Jensen had been the most pro-company,
anti-union, if he had been leading the forces for no union,
but had sent out a memorandum to residents like the
March 5th memo, indicating that it’s a poorly maintained
and poorly managed golf course and the city council ought
to look at new partners, would you have taken the same
action?
MR. FRANKLIN: Objection.
JUDGE SCHMIDT: Overruled. You may answer.
THE WITNESS: I believe, under circumstances like this
with these acts that are alleged, I definitely would have
taken the same action if I had no explanation for why, per-
haps more quickly because I would have assumed a mo-
tive there that was a bad one. Perhaps financial gain or
something else.

I find this assertion less than convincing especially where, as
here, the Company did nothing in the face of Jensen’s direct
threat on his self-evaluation to void Respondent’s contract with
the city. Instead, I find that Respondent’s perception that Jen-
sen had sought the proactive involvement of Isaak (a perception
that is not wholly accurate) constituted the last straw that re-
sulted in his discharge.
Even though the Board concluded that the March 5 flyer dis-
paraged the Company’s product or service, Respondent failed
to make any credible case that the March 5 flyer, in and of it-
self, represented some kind of bolt out of the blue. To the ex-
tent that Raftery sought to claim otherwise, I do not credit such
a claim. Put in the context of all of the activities, Jensen’s dis-
tribution of the March 5 flyer represents a continuation of a
lengthy stream of public criticism of the golf course operations
by the Union, Jensen and other employees concertedly.
Thus, between the time of its certification in September 1995
and Jensen’s discharge in early April 1996, Union Representa-
tive David George and some of the unit employees, including
Jensen, attended an estimated eight to ten city council meetings
in Rohnert Park and two or three meetings of the council’s golf
course committee to complain about working conditions and
the progress of collective bargaining at Mountain Shadows. In
early January 1996 when Higuera became the maintenance
superintendent, the Union claimed that scheduling changes
occurred that reduced employee hours and pay. Thus, George
recalled what he first heard from unit members about Higuera:

Q. After Higuera started as the superintendent, what
was the first report you received about him from your
members?
A. That he was going to change the work week.
Q. What effect would that have on their incomes?
A. It would reduce the overtime, which would reduce
their pay.
Q. Okay. Was overtime an issue in bargaining?
A. Yes.

This led to a reduction of their wages and bitter complaints by
the maintenance employees who felt that the Company had cut
their work hours in the face of needed golf course maintenance
tasks. George explained the nature and the scope of his activi-
ties at the city council meetings:

Q. Okay. And what were the conditions that you re-
ported to them during the period of time we’ve just refer-
enced?
A. That some people are being illegally terminated
and reinstated; others have been terminated. A charge has
been filed and they should—a complaint had been issued
by the Board on that, adding duties to the work load of the
workers, harassment of the workers by management, with-
holding of work.
Q. Withholding of work, what did you complain about
there?
MR. FEARS: Objection. Relevance as to this whole
line.
JUDGE SCHMIDT: Overruled.
THE WITNESS: That there was work to be done out at
the course.
Q. BY MS. DIETZ: What work did you tell the city
council had to be done out at the course?
A. There was a lot of drainage work that was not done
during the winter which caused ponds or lakes to form out
on the course where drainage work was being avoided.
That was typically work that was done by the unit during
that period of time.
Q. Did you ever take photographs out at the golf
course for the purpose of going to city hall with them?
A. Yes.
Q. Okay. Can you recall a particular date when you
took photographs or a month, at least?
A. Yes. It was the beginning of March.
Q. What did you take pictures of at that time?
A. I took pictures of the course conditions where they
have the big lakes and such out there, where work was be-
ing withheld from the workers. They were sent home
when there was work to be done out there.
Q. And did you take those to city hall?
A. Yes. I took them and also the couple the workers
took. I presented them to the city council and explained
the pictures.
Q. Okay. Was that a city council meeting or a golf
course committee meeting; do you recall?
A. That was a city council meeting?
Q. Okay. In what month was that city council meet-
ing?
A. I believe it was late March, maybe early April.10

10 George later testified that during a brief meeting with McGraw
and Higuera at the golf course on March 22, McGraw chided him that
MOUNTAIN SHADOWS GOLF RESORT 589

Whether true or not, employees could easily perceive any re-
duction in hours in the face of needed course maintenance
amounted to little more than retribution for having chosen re-
cently to be represented by a labor organization.
Jensen participated in the Union’s corporate campaign in
concert with George. His first public distribution, dated De-
cember 12, 1995, occurred in the middle of that month and
illustrates his strategy to capitalize on the Company’s past
maintenance problems as its Achilles heel in the on-going labor
dispute.
Thus, Jensen attached to his December handbill a scathing
letter from Rohnert Park City Manager Joseph Netter to Kevin
Roberts, an official of American Golf, dated June 14, 1994.
Jensen’s flyer appealed for support from Netter similar to that
the city manager provided a Rohnert Park resident who headed
an association of local golfers in the attached letter. Unques-
tionably, Jensen’s December flyer reflects the existence of a
labor dispute. In an obvious reference to the Mountain Shad-
ows maintenance crew, Jensen openly asked why “a group of
twelve (down from twenty)” could not get support similar to
that reflected in the attached letter from Netter. He requested
that Netter send a letter “on our behalf” to “settle this dispute.”
Seizing on the threat contained in Netter’s attached letter,
Jensen suggested that the city should find “a new partner” if
American Golf would not “negotiate with the employees at
Mountain Shadows Golf Resort.” He claimed there were other
management companies “eager to manage” Mountain Shadows,
complained that even the city “can’t even have a look at the
books,” and questioned, “Who’s [sic] property is this?”11 The
December 12 letter concludes with an appeal for citizens to
support the Mountain Shadows’ maintenance workers by call-
ing Netter. (GC Exh. 11(a).) Plainly, this appeal for the city to
find a “new partner” parrots the threat Netter made in the at-
tached letter indicating that the city would be willing to change
partners if American Golf officials continued to blame the
Mountain Shadows deficiencies on the regulated resident
greens fees.

the improved weather conditions would make his picture taking more
difficult.
11 At the hearing, Respondent’s counsel argued Jensen’s assertions
about the city’s inability to “look at the books” (appearing here and
implied again in the March 5 flyer) somehow suggests that he is claim-
ing that the Company is engaging in “financial improprieties.” I find
that claim without any support. Even though Jensen clearly questioned
the Company’s allocation of capital in the March 5 flyer, any claim that
he also makes a charge of financial impropriety of any sort simply lacks
evidentiary support. As I read the March 5 flyer, Jensen, in his ellipti-
cal prose sought to state his pique at the Company for allocating major
sums of capital to build a new clubhouse facility because it provides
large returns (and no work for unit employees) while at the same time
declining to allocate capital for the correction of drainage problems on
the fairways that would likely produce work for unit employees but
little or no return on the dollars spent. Hence his scornful lament: “We
can have a couple of drinks while we watch the course dry out.” Con-
current with this distribution, George photographed pools of water
standing in the fairways for presentation to the city council later that
month in an effort to make a public issue out of the reduction in hours
for the maintenance workers despite the extreme drainage problems at
the course.
In the letter attached to Jensen’s December 12 distribution,
Netter excoriated Roberts for blaming the “management and
operational deficiencies at Mountain Shadows” on the city’s
steadfast refusal to permit large greens fees increases for resi-
dents. Without mincing words, Netter offered to terminate the
Mountain Shadows lease with American Golf to relieve it of
the “hundreds of thousands of dollars in losses” Roberts seem-
ingly blamed on the established resident rate. Netter also
charged that in the past 18 months routine problems never
seemed to be solved until he intervened so that he had “person-
ally spent more time on golf-related matters and complaints . . .
than [he had] for the full fifteen (15) years [he had] been with
the City.” In the end, Netter informed Roberts that the city was
considering “an audit of the lease terms to make sure all obliga-
tions and commitments have been completed” and that a public
works/parks inspector had been assigned “to review monthly
the maintenance of the courses” and that the city would provide
American Golf with a copy of the inspector’s report on “items
that are deficient or are in need of repair.” (GC Exh. 11(b).)
General Counsel’s Exhibits 28 and 29, lengthy lists of mainte-
nance items, appear to be an outgrowth of the inspection
scheme Netter implemented in his June 1994 letter to Roberts.
Jensen and a group of maintenance employees attended the
city council’s golf course committee meeting on January 16,
1996, to complain about Respondent’s conduct at the bargain-
ing table and elsewhere. Jensen prepared a speech for delivery
at that meeting and distributed extra “read-along” copies to the
public in attendance at the meeting. In those written remarks,
Jensen charged that if American Golf’s books were available
the city would realize that “they spend less money on our two
courses than they do on other similar courses” and that “they
put the minimum back into [the Mountain Shadows] facility,
milking it for all it can, realizing profits on the backs of under-
paid employees and sub-standard maintenance.” Jensen
grouped the problems faced by the Mountain Shadows man-
agement into two broad categories, course maintenance and
personnel. He asserted that course maintenance, i.e., “digging
out sand traps and filling them with real sand . . . levelling the
trees . . . drying out the swamps that pass for fairways . . . or
finally correcting the irrigation system . . . or buying new mow-
ers that won’t damage the turf” represented only part of the
problem. A “quality company,” Jensen asserted, needed to do
those things and more. American Golf, he said, also needed to
“treat its employees with dignity and to give us a decent living”
as the city did with its other employees. His prepared remarks
concluded:

Has American Golf been less than a good partner?
Have our profits been at the expense of not only the
condition of the course, but at the expense of the employee
who expend so much effort?
If the courses are operating at only 55% capacity,
maybe a more grounded business approach is necessary?
Poor management, poor business and marketing prac-
tices, poor maintenance.
Are we getting the best deal?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590
Finally: Thinking about the employee; are these the
“grape pickers” of the nineties? Other facilities are ex-
periencing the same “problem.”
Please. Look past their sales pitch and listen to those
who work with them.

The following week Raftery and Ross appeared at a city
council meeting to deliver a rebuttal to the Union’s presentation
the previous week. All of this vitriol resulted in a written ad-
monition from the Rohnert Park mayor to the effect that the
Company should follow all Federal and State laws, including
the labor laws. The tone and substance of the mayor’s letter
plainly fell far short of the kind of action Jensen sought a
month earlier when seeking intervention by the city manager.
In the second week of February, Jensen and two other main-
tenance employees requested and were granted an audience
with City Manager Netter and a subordinate where they com-
plained about being sent home early that day when rain appar-
ently threatened. There is no indication that this meeting pro-
duced results.
On March 3 Jensen distributed his “Monkey” flyer to area
residents appealing for citizen support at the city council meet-
ing on March 5. This flyer, implicitly critical of the city coun-
cil, charges the Company with refusing to bargain in good faith
and with violating city policy by not dealing fairly with em-
ployees.12 Plainly this flyer suggests Jensen’s frustration at the
failure of the city officials to become more involved in the dis-
pute as sought in his original December distribution. To the
extent that Jensen’s propaganda represented the feelings of
union officials and a consensus on the union side, the Monkey
flyer suggests a disappointment with the success of the Union’s
corporate campaign to that point.

12 A graphic of four monkeys appears on the heading of this flyer.
One appears with his hands over his eyes, another appears with her
hands over her ears, the third appears with his hands over his mouth,
and the fourth is shrugging.
In my judgment, the Courseco call the following day repre-
sents a significant escalation of the corporate campaign seeking
to pressure Respondent’s officials into agreement with union
demands. Undoubtedly the invitation to a competitor to per-
sonally bear witness to an unseemly spectacle at city hall about
Respondent’s maintenance practices and employee discord
went beyond the pale of what Respondent’s officials would
tolerate. The language in Jensen’s discharge letter stating that
the Company could see “no legitimate reason for your attempts
to destroy the Company’s relationship with the residents of
Rohnert Park and to solicit a competitor company to attempt to
take over the golf course” confirms the inseparability of the
Courseco call in the Jensen discharge rationale. By contrast,
Jensen, the Union and other employees had littered the land-
scape with disparaging comments about the Company, all of
which appear to have been treated as a part of the labor dispute
game up to that time.
For reasons discussed above, I find that Respondent failed to
carry the burden of establishing that it would have terminated
Jensen in the absence of the Courseco call. On the contrary, I
have concluded that the Courseco call represents the center-
piece for Respondent’s discharge rationale. Respondent’s
claim that it would have discharged Jensen for distributing the
March 5 flyer even in the absence of the Courseco call amounts
to, in my judgment, little more than a hastily devised argumen-
tative strategy constructed after specific evidence—Jensen’s
convincing testimony—emerged that demonstrated, contrary to
all earlier claims by company officials, the protected character
of the Courseco call, i.e., an up front disclosure about the ongo-
ing labor dispute at Mountain Shadows. In view of this conclu-
sion, I reaffirm my original conclusion that Jensen’s 1996 sus-
pension and discharge violated Section 8(a)(1) and (3) of the
Act.
[Supplemental Order omitted from publication.]