Mountain View Country Club

National Labor Relations Board - Board Decisions

Apr 25, 2013

359 N.L.R.B. 914 (N.L.R.B. 2013)

914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 102
Mountain View Country Club, Inc. and Laborers’
Pacific Southwest Regional Organizing Coali-
tion, Laborers’ International Union of North
America, AFL–CIO. Case 21–CA–083930
April 25, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On January 24, 2013, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Acting General Counsel filed an answering brief. The
Charging Party joined the Acting General Counsel’s
brief.
The National Labor Relations Board
1
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,
2
and conclusions and to adopt the recommended
Order as modified.
3

ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and

1 The Respondent contends that the Board lacks a quorum because
the President’s recess appointments are constitutionally invalid. We
reject this argument. We recognize that the United States Court of
Appeals for the District of Columbia Circuit has concluded that the
President’s recess appointments were not valid. See Noel Canning v.
NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as the court itself
acknowledged, its decision conflicts with rulings of at least three other
courts of appeals. See Evans v. Stephens, 387 F.3d 1220 (11th Cir.
2004), cert. denied 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d
1008 (9th Cir. 1985); and U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962).
This question remains in litigation, and pending a definitive resolution,
the Board is charged to fulfill its responsibilities under the Act. See
Belgrove Post Acute Care Center, 359 NLRB 633, 633 fn.1 (2013).
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent excepts to the judge’s finding that the Union did not
withdraw its information request on June 26, 2012. Although we adopt
the judge’s finding that the Union did not withdraw its request, we
further find that, even if the Union did, the Respondent’s 55-day delay
in providing the information before June 26 and its 36-day delay after
the Union renewed its request on July 18 each independently violate
Sec. 8(a)(5). “The duty to furnish information requires a reasonable
good-faith effort to respond to the request as promptly as circumstances
allow.” Woodland Clinic, 331 NLRB 735, 737 (2000). Here, the Re-
spondent presented no evidence justifying these delays in furnishing
what turned out to be 11 “counseling reports” spanning a mere 14 pag-
es.
3 We shall substitute a new notice to conform to the Board’s stand-
ard remedial language.
orders that the Respondent, Mountain View Country
Club, Inc., La Quinta, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substituted
for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unreasonably delay furnishing infor-
mation to Laborers’ Pacific Southwest Regional Organiz-
ing Coalition, Laborers’ International Union of North
America, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
MOUNTAIN VIEW COUNTRY CLUB, INC.

Jean C. Libby, for the Acting General Counsel.
Daniel H. Handman, for the Respondent.
Carlos R. Perez, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge: The
Acting General Counsel alleges that Mountain View Country
Club, Inc. (Respondent) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act)1 by unreasonable delay
in furnishing necessary and relevant information to Laborers’
Pacific Southwest Regional Organizing Coalition, Laborers’
International Union of North America, AFL–CIO (the Union)

1 29 U.S.C. §158(a)(1) and (5).
MOUNTAIN VIEW COUNTRY CLUB 915
from about May 2, 20122 until about August 23.3 This case was
heard on November 25 in Los Angeles, California.
On the entire record, including my observation of the de-
meanor of the witnesses,4 and after considering the brief filed
by counsel for the Acting General Counsel, I make the follow-
ing.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a California corporation with a principal place
of business and a facility located at 80–375 Pomelo, La Quinta,
California, where it is engaged in the operation of a full-service
country club. In conducting its operations, Respondent derived
gross revenues in excess of $500,000, excluding membership
dues and initiation fees, and purchased goods valued in excess
of $5000 directly from points outside the State of California.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent admits and I find that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. FACTS
On March 22, 2011, the Union was certified as the exclusive
collective-bargaining representative of the following unit of
employees, appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time golf course maintenance
employees, working foremen, mechanics, mechanic assis-
tants, irrigators, spray techs, equipment operators, and club
house gardeners employed by the Respondent at its facility
located at 80-375 Pomelo, La Quinta, California; excluding
all other employees, office clerical employees, professional
employees, timekeepers, watchmen, guards, and supervisors
as defined in the Act.

At all times since March 22, 2011, based on Section 9(a) of the
Act, the Union has been the exclusive collective-bargaining
representative of the unit employees.
Following certification of the Union, in April 2011, Re-
spondent and the Union began meetings for the purpose of
negotiating a collective-bargaining agreement. Although no
agreement has been reached, the parties continue their negotia-
tions. To date there have been about nine meetings. The parties
agree that their negotiations have been amicable. At an early
meeting, perhaps in April, May, or June 2011, Union Business

2 All dates are in 2012 unless otherwise indicated.
3 The original and first amended unfair labor practice charges were
filed by the Union on June 25 and August 30, respectively. Complaint
and notice of hearing issued on September 26. Respondent filed an
answer and an amended answer admitting and denying various com-
plaint allegations.
4 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
Agent and Recording Secretary Michael Dea orally requested
information about employee discipline—that is, suspensions,
terminations, or writeups of employees. Respondent’s repre-
sentative replied that he would have to get that information
from his client. No information was provided at that time alt-
hough Dea renewed his oral request at several subsequent meet-
ings. Dea explained that he needed this information for unit
employees in order to properly represent them and to file griev-
ances, and to monitor whether employees were receiving pro-
gressive discipline. Ultimately, about a year after the initial oral
request, Business Agent Dan Brennan sent an email to Re-
spondent on May 2, as follows:

Please consider this email an official request for all discipli-
nary actions, suspensions and/or terminations that have oc-
curred in the past 12 months. I need this information . . . with-
in the next 3 days. The Union will seek all remedies to obtain
the requested information. Thank you.

Respondent’s representative responded on May 4 stating that
he would call his contacts and find out what documents there
were and how long it would take to assemble them. Sixteen
days later, on May 18, when no documents had been produced,
Brennan reminded Respondent of the information request.
About a week later, Respondent again promised to call and find
out what documents there were and how long it would take to
assemble them. During the first week of June, Dea spoke by
phone with Respondent’s representative who asked if the Union
still needed the disciplinary information. Dea responded that
the Union still needed the information. Respondent asked if the
information could be brought to the next meeting which was
scheduled for June 26. Dea responded, “Just provide us the
information as requested.”
Neither prior to nor at the meeting of June 26, was the in-
formation provided. The parties disagree regarding whether at
that meeting Dea told Respondent that there was no need to
provide the documents because the Union did not believe that
bargaining would continue. Dea denied telling Respondent that
bargaining might not continue or that the Union no longer
needed the information while Respondent’s bargaining notes
state that the Union told Respondent it could hold off on
providing the information. As between the testimony of Dea
and the bargaining notes of Respondent, I credit Dea’s forth-
right and consistent testimony denying telling Respondent it did
not need to produce the information requested. In any event, on
July 18, any confusion was cleared up. At Dea’s direction,
Brennan wrote to Respondent noting that it had now been more
than 2 months since the May 2 request and the Union still
needed the information. On August 14, the Union, by email,
once again requested the information. Respondent promised to
send it “shortly.” Eventually, the Union received the infor-
mation from the NLRB around August 23.
Analysis
An employer has an obligation to provide a union with rele-
vant information during collective-bargaining negotiations.
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956). Infor-
mation regarding terms and conditions of unit employees is
considered presumptively relevant. Whitesell Corp., 352 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

916
1196, 1197 (2008), adopted by three-member Board, 355
NLRB 649 (2010), enfd. 638 F.3d 883 (8th Cir. 2011); Fleming
Cos., 332 NLRB 1086, 1086–1087 (2000). A request for infor-
mation may be made orally or in writing and does not need to
be repeated. Bundy Corp., 292 NLRB 671, 672 (1989).
The information requested in this case, disciplinary actions
for unit employees, is presumptively relevant. Booth Newspa-
pers, Inc., 331 NLRB 296, 300 (2000); Leland Stanford Junior
University, 307 NLRB 75, 80 (1992). The first written request
for this information was on May 2. The information was pro-
vided on August 23, 3 months and 21 days after the initial writ-
ten request for information. While there is no per se rule re-
garding timeliness of furnishing information, the law requires a
“reasonable good faith effort to respond to the request as
promptly as circumstances allow.” West Penn Power, Co., 339
NLRB 585, 587 (2003). The complexity and extent of the in-
formation sought, its availability, and the difficulty in retrieving
the information are factors considered in determining whether
an employer has responded with reasonable promptness. Id.,
citing Samaritan Medical Center, 319 NLRB 392, 398 (1995).
Respondent is a single-location employer and does not assert
that the information sought by the Union was difficult to re-
trieve. The disciplinary records for a unit of 23 employees
would not appear to be complex and there is no evidence in the
record that complexity of the information sought was a factor in
the timing of production of the documents. Generic information
on discipline, described as suspensions, terminations, or write-
ups, specifically confines the extent of the information sought.
Finally, there is no evidence that the information was unavaila-
ble. Thus, the factors of complexity, availability, and extent of
the information sought militate toward a prompt response.
However, each time the Union reiterated its request for infor-
mation, Respondent’s representative merely replied that he
would have to talk to his client. From the constancy of this
reply, I find that Respondent’s representative made no attempt
to gather the information and provide it to the Union from May
2 until August 23 when the information was finally provided to
the NLRB.
Respondent asserted only that its delay was due to the ami-
cable nature of negotiations and the June 26 statement that the
Union might not need the information after all. I find that nei-
ther of these factors provides a defense for failure to promptly
furnish the information. The mere fact that negotiations were
amicable without any indicia of waiver of the request for in-
formation does not excuse timely furnishing of the information.
Similarly, even had there been a statement from the Union
withdrawing the request for information on June 26, and I have
found there was not, by letter of July 18, the request was re-
peated. Respondent did not provide the information for another
5 weeks. Thus, I find that from May 2 to August 23, Respond-
ent failed to provide the information in a reasonably prompt
manner and thereby bargained in bad faith with the Union.
CONCLUSION OF LAW
By failing to provide presumptively relevant information,
unit employees’ disciplinary records, to the newly-certified
Union in a reasonably prompt manner, Respondent has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent shall post an appro-
priate informational notice, as described in the attached appen-
dix. This notice shall be posted in the Employer's facility or
wherever the notices to employees are regularly posted for 60
days without anything covering it up or defacing its contents. In
addition to physical posting of paper notices, notices shall be
distributed electronically, such as by e-mail, posting on an in-
tranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 2, 2012. When the notice is
issued to Respondent, it shall sign it or otherwise notify Region
21 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
Respondent, Mountain View Country Club, La Quinta, Cali-
fornia, its officers, agents, successors, and assigns, shall cease
and desist from unreasonable delay in providing information to
the Union or in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act. Respondent shall take
the following affirmative action necessary to effectuate the
policies of the Act.
1. Within 14 days after service by the Region, post at its fa-
cility in La Quinta, California, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to the physical posting of
paper notices, notices shall be distributed electronically, such as
by e-mail, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MOUNTAIN VIEW COUNTRY CLUB 917
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since May 2, 2012.
2. Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.