Seascape Golf Course

National Labor Relations Board - Board Decisions

Jun 12, 1989

294 N.L.R.B. 881 (N.L.R.B. 1989)

SEASCAPE GOLF COURSE
American Golf Corporation d/b/a Seascape Golf
Course and General Teamsters, Packers, Food
Processors and Warehousemen Union, Local
912, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America , AFL-CIO and Hotel Employees, and
Restaurant Employees International Union,
Local 483, AFL-CIO. Cases 32-CA-8612 and
32-CA-8892
June 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 21, 1988, Administrative Law
Judge James S. Jenson issued the attached decision.
The Respondent filed exceptions' and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
' The Respondent also filed a motion to reopen the record to introduce
evidence concerning the Union's posthearing acceptance of the Respond-
ent's offer to recognize and bargain with the Union and the parties' sub-
sequent agreement concerning starting wage rates Pursuant to Sec
102 48(d)(1) of the Board's Rules and Regulations, the Respondent's
motion is denied because the additional evidence, if adduced and cred-
ited, would not require a different result See fn 3, infra
No exceptions were filed in Case 32-CA-8892
2 Respondent, a California corporation with its headquarters located in
Santa Monica, California, owns and operates golf courses in California
During the past calendar year, the Respondent, in the course and con-
duct of its business operations, derived gross revenues in excess of
$500,000, and purchased and received goods valued in excess of $5000
which originated outside the State of California The parties admitted,
and the judge found, that the Respondent is an employer engaged in
commerce within the meaning of Sec 2(2), (6), and (7) of the Act
3 We agree with the judge that a make-whole order restoring the status
quo ante is warranted under State Distributing Co, 282 NLRB 1048
(1987) The Respondent argues that, based on posthearing recognition
and bargaining which has resulted in an agreement on starting wage rates
identical to those unlawfully imposed, a bargaining order is not needed
and its backpay liability should be tolled
Dependable Maintenance Co, 274 NLRB 216 (1985), on which the Re-
spondent relies, is distinguishable In Dependable Maintenance the changes
in the terms and conditions of employment were on the bargaining table
prior to the company's unlawful unilateral implementation of them, and
the Union allegedly continued to bargain to impasse despite the compa-
ny's unfair labor practice The Board remanded the case to the judge to
determine whether the parties had bargained to impasse subsequent to the
unlawful changes and, if so, what effect that might have on the status
quo restoration remedy
In the present case, the Respondent's unlawful conduct began some 9
months before it recognized the Union and 11 months before bargaining
began This is not, as in Dependable Maintenance, a matter of prematurely
implementing unilateral changes before an already-recognized union
could formulate proposals and before a valid impasse could be reached
The Respondent here took advantage of its unlawful failure to hire em-
ployees of the predecessor employer and recognize the Union and insti-
tuted new terms and conditions of employment which it forced on the
employees with no regard for their bargaining representative Further,
the Respondent proffers no evidence of the parties' having reached final
881
conclusions3 and to adopt the recommended Order
as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , American Golf Corporation d/b/a Seas-
cape Golf Course , Aptos, California , its officers,
agents , successors , and assigns , shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
"(c) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(d).
"(d) On request of the above Union , retroactive-
ly restore the terms and conditions of employment
that existed immediately before its takeover of the
Aptos Seascape Corporation operations , including
wage rates and benefit plans, and make the employ-
ees whole by remitting all wages and benefits that
would have been paid in the absence of unlawful
changes, from December 22, 1986 , until it negoti-
ates in good faith with the Union to agreement or
to impasse . The remission of wages shall be com-
puted as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd . 444 F.2d 502 (6th Cir.
1971), plus interest as prescribed in New Horizons
for the Retarded , 283 NLRB 1173 (1987). The Re-
spondent shall remit all payments it owes to the
employee benefit funds and reimburse its employ-
ees in the manner set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd . 661 F.2d
940 (9th Cir. 1981), for any expenses resulting from
agreement on wage rates for new employees Under these circumstances,
the bargaining that has taken place cannot be reliably equated with bar-
gaining that reaches impasse or agreement after commencing with timely
recognition of the bargaining representative and without unilateral reduc-
tion of existing terms and conditions Hence, we are not convinced that,
without initial restoration of the status quo ante, the parties can be re-
stored to the position they would have occupied but for the unlawful
conduct Cf NLRB v Cauthorne Trucking, 691 F 2d 1023 (D C Cir
1982)
Member Cracraft agrees that the facts of this case are distinguishable
from those in Dependable Maintenance However, she does not pass on
whether she would have reached the same result in the case
The judge, in his Conclusions of Law, inadvertently cited January 6,
1987, rather than December 22, 1986, as the date the Respondent unlaw-
fully refused to recognize the Union
° We have reviewed the judge's recommended Order under the stand-
ards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and we have
decided to substitute narrow cease-and-desist language for the broad lan-
guage provided for by the judge
Par 2(d) of the judge's recommended Order is also modified to specifi-
cally provide as part of the make-whole remedy that the Respondent
shall remit payments it owes to the employee benefit funds and reimburse
employees for any expenses resulting from its failure to make such pay-
ments in the manner set forth in Kraft Plumbing & Heating, 252 NLRB
891 (1980), enfd 661 F 2d 940 (9th Cir 1981)
294 NLRB No. 79
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent's failure to make these payments.
Any amounts that the Respondent must pay into
the benefit funds shall be determined in the manner
set forth in Merryweather Optical Co., 240 NLRB
1213 (1979)."
3. Substitute the attached notice 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to hire employees previous-
ly employed by Aptos Seascape Corporation be-
cause of their union affiliation or to avoid an obli-
gation to bargain with the General Teamsters,
Packers, Food Processors and Warehousemen
Union, Local 912, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO.
WE WILL NOT fail to recognize and bargain with
this Union as the exclusive collective-bargaining
representative of the employees in the following
unit, including by making changes in the rates of
pay and benefits or other terms and conditions of
employment of the employees in this unit without
notice to and consultation with the Union:
All full-time and regular part-time grounds-
keepers, mechanics and foremen employed at
our Seascape Golf Course Facility, excluding
all other employees, managerial employees,
office clerical employees, guards, and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain
with the Union, as the exclusive representative of
our employees in the above unit, with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if
an understanding is reached, embody the under-
standing in a signed agreement.
WE WILL, on request of the Union, retroactively
restore the terms and conditions of employment
that existed immediately before our takeover of the
Aptos Seascape Corporation operations, including
wage rates and benefit plans. WE WILL make the
employees in the above unit whole by remitting all
wages and benefits that would have been paid in
the absence of unlawful changes from December
22, 1986, until we negotiate in good faith with the
Union to agreement or to impasse, with interest.
WE WILL remit any payments we owe to benefit
funds and reimburse our employees for any ex-
penses resulting from our failure to make the re-
quired payments.
WE WILL offer to employees formerly employed
by Aptos Seascape Corporation at the golf course
maintenance facility immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and dis-
charging if necessary other employees who have
been hired in their place, and WE WILL make them
whole for any loss,of earnings, plus interest.
AMERICAN GOLF CORPORATION
D/B/A SEASCAPE GOLF COURSE
Charles H. Pernal Jr., for the General Counsel.
Daniel F. Fears and Howard Hay (Paul, Hastings, Jan-
ofsky & Walker), of Costa Mesa , California, for the Re-
spondent.
Henry Celis , of Watsonville , California, for Local 912.
Eugene Miller (Miller & Sincoff), of Seaside , California,
for Local 483.
DECISION
STATEMENT OF THE CASE
JAMES S . JENSON , Administrative Law Judge . I heard
these cases in Santa Cruz, California, on October 6, 7,
and 8, 1987, pursuant to complaints which were issued
on March 13 , 1987,1 in Case 32-CA-8612, and on
August 31 in Case 32-CA-8892. On September 1, the
cases were consolidated for hearing . The complaints
both allege the Respondent is the successor to Aptos
Seascape Corporation whose employees it refused to hire
because of their union membership in violation of Sec-
tion 8(a)(3). Section 8(a)(5) is alleged to have been violat-
ed in both cases by the Respondent's withdrawal and
withholding of recognition from the respective Unions,
and by making numerous changes in the terms and con-
ditions of employment of employees in the separate units
' All dates are in 1987 unless stated otherwise
SEASCAPE GOLF COURSE
represented by the respective Unions, without prior
notice to the Unions. The complaint in Case 32-CA-
8892 also alleges as a violation of Section 8(a)(1), that
one of Respondent's supervisors informed an employee
that he had not been hired because of his past union
membership. The Respondent admits in Case 32-CA-
8612 that it unlawfully refused to consider the predeces-
sor's employees, but that when the violation came to the
attention of its counsel, immediate steps were taken to
correct it, including an invitation for job interview and
the hiring of the nonsupervisory employees who applied.
As Respondent has voluntarily recognized the Teamsters
in that case, it is claimed that the only issue is the period
of backpay for which it is liable. As an affirmative de-
fense, the Respondent argues that it had the right to set
the initial terms and conditions of employment in both
cases. It also denies the commission of all unfair labor
practice allegations in Case 32-CA-8892. All parties
were afforded full opportunity to appear, to introduce
evidence , to examine and cross-examine witnesses, to
argue orally, and to file briefs. A brief was, filed by the
General Counsel, separate briefs in each case were filed
by Respondent, and all have been carefully considered.
On the entire record in the cases, including the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
It is admitted and found that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and found that Local 912 and Local 483
are each labor organizations within the meaning of Sec-
tion 2(5) of the Act.
A. The Setting
American Golf Corporation d/b/a Seascape Golf Cor-
poration is engaged in the management of 97 golf
courses, approximately 20 of which it owns. In late 1986,
Respondent began negotiations for the purchase of a golf
course and restaurant facility in Aptos, California, from
Aptos Seascape Corporation, the facility involved in
these matters.2 Prior to December 22, 1986, the date Re-
spondent took possession of the facility, the Aptos Seas-
cape golf course employees were covered by a collec-
tive-bargaining agreement with Teamsters Local 912 for
a term commencing July 1, 1986, to June 30, 1989, and
the restaurant employees were covered by one with Res-
taurant Employees Local 483 for a term commencing
October 1, 1985, to September 30, 1989. The record es-
tablishes that while the golf course continued uninter-
ruptedly when Respondent took over, the restaurant fa-
cility was closed for several months for repairs and re-
furbishing. Employees of both facilities were terminated
2 The primary owner of Aptos Seascape Corporation was the Team-
sters Pension Fund
883
by the prior management as of December 21,-and invited
by Respondent to apply for employment with it. David
Price is Respondent's principal shareholder and chairman
of its board of directors . Bruce Pluim is Respondent's
general manager and in charge of the entire Aptos ' facili-
ty. Dan Ross is regional manager and directly over him.
Mike McCraw, previously Respondent's regional golf
course superintendent in Palm Springs , became golf
course superintendent of the Aptos golf facility when
Respondent took over on December 22, 1986. Ken Sakai
is Respondent's regional superintendent for its Northern
California golf courses, which includes the Aptos golf
course. Paul Lloyd was the golf course superintendent
for Aptos Seascape Corporation until McCraw assumed
that position on December 22. Frank DeSarno was Re-
spondent's food and beverage director' from January 26
until May 21, and was responsible for hiring employees
for the restaurant facility when it reopened. Mary
Aubert, who had been dining room supervisor and co-
banquet coordinator for the previous owner, was hired
by Respondent as banquet coordinator DeSarno relied
on her recommendations with respect to which former
restaurant employees would be hired. Stephen Long, an
independent contractor, conducted security interviews
and administered polygraph tests on applicants for em-
ployment in the restaurant.
B. The Golf Course, Case 32-CA-8612
In November 1986, during negotiations for the pur-
chase of the Aptos facility, Price went to Aptos where
he met with Lloyd, who showed him around the golf
course facility for the first time Lloyd testified he had
heard a rumor to the effect that everyone was going to
be terminated and asked Price if that was true. Accord-
ing to him, Price responded in the affirmative but stated
that he (Price) would "be able to hire back less than half
of our original employees " Asked why, Price is purport-
ed to have stated, "Because of the Teamsters Union" and
the fear that if they brought back everybody, "they
would reorganize-." Lloyd claimed he told Price that
the employees were willing to stay on for less money if
they could keep their jobs, and that Price responded
they were going to stay with the original plan. Lloyd
testified that he also asked about the restaurant employ-
ees since his daughter worked there, and that Price re-
sponded, "Well, the same thing is going to happen there:
we can only hire back less than half of the employees,
for the same reason." He acknowledged on cross-exami-
nation that an affidavit he gave a Board agent on Janu-
ary 23, 1987, did not contain that information. He
claimed, however, that he had told the Board agent
about Price's statement regarding the restaurant, but that
she said, "Someone else would be handling that part of
the case." I find that incredible, especially in light of the
fact the charge involving the restaurant was not filed
until May 1, over 3 months later. Accordingly, I do not
credit his testimony that the restaurant was discussed.
Lloyd testified he asked what he was supposed to do
when the takeover occurred since he was only supposed
to hire half the golf course maintenance crew, and that
Price told him that "more than likely .. . we will be
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bringing in people from other golf courses to help you
out until we can get settled; until the dust settles." Ac-
cording to Lloyd, he went on to tell Price that the
Teamsters had allowed him, the general manager and the
controller, to join the Umon so they could have the
Teamsters' benefit program, and that Price responded he
didn't think that would be a problem. Lloyd testified that
Price expressed pleasure with the condition of the golf
course, indicated they wanted him to stay on and that he
would be hearing from Sakai in a couple of weeks. He
testified that about 3 days before the takeover, he heard
a rumor from a salesman that someone else was going to
be the course superintendent, so he called Sakai who
stated that when Price had reported he was a union
member, he was "voted out" and "that was the only
reason." Sakai did not testify. Thus, Lloyd's testimony
regarding Sakai's statements are unrefuted and credited.
Price testified that he had inspected financial data on
the facility in mid-1986 and concluded it was a very poor
operation, but that he felt that if American Golf could
put in its own system and management team, upgrade the
facility in terms of repair and maintenance, pay competi-
tive wages and benefits consistent with the area, and
market properly to the customer, that it could be a suc-
cessful operation.3 He testified that he was not involved
with who was hired at Aptos, but that the normal prac-
tice is to bring in management talent and experienced
workers from other facilities, and to institute a uniform
policy and training program. He denied he had any in-
volvement in whether Lloyd or any of the maintenance
or restaurant employees were hired, or that he told
Lloyd it was the policy not to hire a majority of a prede-
cessor's employees. He testified that Lloyd had asked if
he was going to be retained as superintendent and that
he told Lloyd that as far as he knew, Lloyd was, but
that he doubted all of the maintenance crew would be
because it was winter and it was company custom to
have a winter core crew which was supplemented in the
summer by part-time workers, and they had a number of
American Golf personnel which they planned to transfer
in. He claimed that the decision to transfer McCraw
from Palm Springs had not yet been made. He also
denied he stated he was favorably impressed with the
condition of the golf course or that he commented on
the quality of work performed by the golf course mainte-
nance crew. He also denied Lloyd said anything about
the maintenance crew being willing to work for lesser
wages.
I have carefully compared and weighed the testimony
of both Price and Lloyd and have taken into account the
probabilities involving matters about which they testified
and their demeanor on the witness stand. As noted
before, I find incredible Lloyd's testimony that a Board
agent was not interested in memorializing Price 's alleged
statement-that less than half the restaurant employees
8 A wage survey of other golf courses in the area, which was prepared
by Lloyd, and collective-bargaining agreements at golf courses operated
by Respondent disclose the hourly groundskeeper wage rate at Aptos
was approximately $2 higher than the other golf courses The Aptos
Seascape contract also called for a $1000 annual bonus per employee
during its 3-year term See G C . Exh. 4 which shows the low rate for
groundskeeper at one golf course was $6, or $4 35 below the Aptos rate
would be hired back because of the Umon-on the
ground "someone else would be handling that part of the
case." I do not believe a Board agent would reject such
strong evidence of animus if it was actually mentioned.
The Board agent's purported response is further unlikely
since a charge involving the restaurant was not filed
until several months later and any union animus would
have been relevant to this case. Lloyd admitted on cross-
examination that he was angry with Price, and I am con-
vinced he tailored his testimony in an effort to paint Re-
spondent in as unfavorable a picture as possible. Thus, I
do not believe Price told him that Respondent would
only hire back less than half the golf course employees
because of the Teamsters Union. I am convinced Lloyd's
testimony was strongly biased in a desire to retaliate
against Respondent for failing to keep him on as the golf
course superintendent. In sum, I am convinced that Price
is the more credible witness. Accordingly, where their
testimony is in conflict, I credit Price's version over that
of Lloyd's.
On December 22, 1986, Respondent took over oper-
ation of the entire facility. As noted, McCraw, formerly
regional golf course superintendent in Palm Springs,
became the golf course superintendent at Seascape. In
addition, three experienced golf course employees were
transferred to there from nearby courses, John Betz as
assistant superintendent, Tom Maltman, whose wage was
$9 per hour, and Ken Tims, who earned $6.75 per hour.
These men were to begin upgrading the golf course to
American Golf standards.4 The Respondent immediately
instituted what it characterized as wages competitive in
the area-lower than those in the predecessor's Team-
sters contract-and put into effect the same policies and
benefits, including insurance, holidays, vacations and uni-
forms, which were standard at its other golf courses.
From December 30, 1986, through February 9, five golf
course maintenance jobs were filled by new hires at $7
per hour. Respondent admits that McCraw did not con-
sider the predecessor employer's employees for the five
openings because of their union membership. Upon learn-
ing from company counsel that this conduct was unlaw-
ful, McCraw mailed the following letter to all of the golf
course maintenance employees formerly employed by
Aptos Seascape:
We anticipate having some full-time openings for
greens keepers at the Seascape Golf Course in the
near future.
If you wish to be considered for any of these
openings, you must come in for an employment
interview on either February 18 or February 20 be-
tween 9:00 am and 11:00 am. If you cannot come in
for an interview on either of these dates, but could
be available some other date prior to the 20th,
please advise us.
If you are interested and do apply, we assure you
that you will be fairly considered. If we do not hear
from you by February 18th at 9:00 am, we will
4 It appears that Betz and Tims returned to their former locations on
January 14 and 23 respectively.
SEASCAPE GOLF COURSE
assume you have no interest in employment at Seas-
cape at this time.
Please give Barbara a call at 688-3276.
Sincerely,
/s/ Mike McCraw
Mike McCraw
Superintendent
He testified that while he did not feel they had openings
for everyone, Respondent was willing to exceed staffing
requirements and "bite the bullet on labor costs in order
to be legal." Pablo Picasso (a witness for the General
Counsel) was interviewed on February 18, was offered a
job as an irrigator, and commenced work on March 4 at
a wage rate of $7 an hour. John Machado was inter-
viewed on February 18, was offered a job and com-
menced working on March 17 for $7 an hour. Manuel
Cuellar was interviewed on February 20, was offered a
job and started working on March 16 for $7 an hour.
John Romantic, who had been employed by Aptos Seas-
cape as a mechanic, was interviewed on February 18 and
offered a full-time job, part time as a mechanic and part
time cutting grass at the rate of $7 per hour. He declined
the offer because he felt the pay was too low and be-
cause he had found a better job paying $9 per hour.
Gene Lanthier had been employed as a groundskeeper
and had run the fairway mowers for many years. He was
interviewed on February 20 and offered a job as a sec-
tion person at $7 per hour, which Lanthier declined.
McCraw testified Romero Lopez had been a night irriga-
tor, that when Lopez appeared for an interview, he had
trouble communicating with him since Lopez did not
speak a lot of English; that he asked Lopez if he was
aware of the immigration reform act which required that
he provide the Respondent with certain documentation;
that he offered Lopez a job commencing the following
day, but that Lopez never showed up. It appears from
the record that John Oneto was offered a job on Febru-
ary 27; that he was to let McCraw know one way or the
other by March 3, which he failed to do; and that
McCraw sent him a letter stating he was offering the job
to another person. William Robb also declined a Febru-
ary 26 job offer because he had secured another one.
While McCraw testified interview letters had been sent
to Mark McManus and A. L. Solorio, neither man was
interviewed McManus testified he never received his. It
was returned unopened to the sender as "unclaimed."
Francisco Picasso is alleged in the complaint as a discri-
minatee. Respondent 's second affirmative defense in Case
32-CA-8612 alleges he was a supervisor within the
meaning of Section 2(11) of the Act. Thus, while the
General Counsel was on notice that his status as an em-
ployee or supervisor was an issue, Francisco was not
called as a witness , nor was Lloyd, who presumably had
knowledge on the subject, queried regarding his author-
ity. Accordingly, McCraw's uncontested testimony on
the issue is credited. McCraw testified that he told Fran-
cisco that there was a job as "section person" available
and explained what it was. Francisco's response was to
the effect that "he was the ramrod of the crew, he set
the daily schedules, he did disciplinary action and also
did some of the hiring" for the prior employer; "that he
885
was not interested in a position that was anything other
than either a foreman or assistant superintendent or
something in the supervisory capacity, and that, also, he
was not interested in a job that would pay less than, I
think he said $10 an hour, I don't know if it was $10 an
hour or what he formerly made there." As his employ-
ment by the predecessor was as a supervisor , and as a
nonsupervisory position with Respondent was not ac-
ceptable to Francisco, Respondent's failure to hire him
was not unlawful.
Position of the Parties
The General Counsel contends that Respondent is a
successor employer to Aptos Seascape Corporation, and
that while under Burns,5 a successor is ordinarily free to
set initial terms and conditions of employment on which
it will hire employees of a predecessor, an employer
loses that right where, as here, it failed to hire the prede-
cessor's employees because of their union affiliation in
violation of Section 8(a)(1) and (5). As Respondent ad-
mittedly changed terms and conditions of employment
without bargaining with the Teamsters, it is appropriate
to restore the status quo ante. It is also argued that in
view of the unilateral action, the February offers to hire
some of the former employees were not unconditional
and unequivocal offers to return. Thus, while Respond-
ent's offers might arguably offset backpay, they do not
constitute valid offers of reinstatement and were ones
which the employees were privileged to reject under the
circumstances. It is also argued that while the Respond-
ent offered to recognize and meet with the Teamsters a
few weeks prior to the hearing, the offer was inadequate
since it gave the Teamsters reduced bargaining leverage
in light of the changes in terms and conditions of em-
ployment and the requirement of restoring the status quo
ante is not met.
Respondent contends that under Burns, it had the right
to establish initial terms and conditions of employment
on December 22, 1986, when it took over the golf
course, transferred the employees, and implemented
wages competitive with other golf courses in the Bay
Area and benefits and policies which are standard at all
its golf courses. It is argued that under Spruce Up Corp.,
209 NLRB 194 (1974), "where the employer is willing to
employ the former employer's employees but only on the
new employer's initial terms and conditions of employ-
ment, it cannot be assumed that the majority of the pred-
ecessor's employees will accept employment on those
terms Thus, the `perfectly clear' exception in Burns does
not apply and the employer is free to set its initial terms
and conditions of employment before bargaining with the
Union." It is argued that it cannot be found in this case
that it is "perfectly clear" that a majority of the prede-
cessor's employees would have accepted job offers at the
substantially lower rates that it set even if all had been
offered jobs on December 22. It is contended that the
only job openings the Company had from December 30
through February 10 were five openings filled by new
hires, and that it made job offers to every former em-
5 NLRB v Burns Security Services, 406 U S 272 (1972)
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee by February 25, which demonstrates the Compa-
ny's good-faith offer to remedy the "refusal to consider"
violations which occurred for the five openings which
had arisen. It is claimed that the proper remedial order
in this "unique case" is a backpay award in favor of five
of the predecessor's employees, presumably based on se-
niority, for the five openings filled between December 30
and February 9, continuing to February 28, the day by
which all employees had-either accepted or rejected the
Company's offers of employment. Inasmuch as Respond-
ent has agreed to recognize the Teamsters Union as the
representative of its golf course maintenance employees,
it is argued there is no need for a bargaining order.
Discussion
It has been admitted and is found that until December
21, 1986 , all full-time and regular part-time grounds-
keepers, mechanics, and nonsupervisory foremen em-
ployed by Aptos Seascape; excluding all other employ-
ees, managerial employees , office clerical employees,
guards, and supervisors as defined in the Act, constituted
an appropriate collective -bargaining unit, and that the
Teamsters Union was the recognized collective-bargain-
ing representative of the employees in that unit. It has
also been admitted and is found that at all times since
December 22, employees in the same described unit em-
ployed by Respondent, constituted an appropriate unit.
At the hearing, and in its brief, Respondent admitted,
and it is found, that it failed to consider the Aptos Seas-
cape golf course maintenance employees because of their
union affiliation , and that such conduct was unlawful. It
is further admitted and found that before, on and after
December 22, Respondent made numerous changes in
terms and conditions of employment without notice to,
or affording the Teamsters Union an opportunity to bar-
gain on those matters. It is denied, however, that Re-
spondent was under a duty to first bargain with the
Teamsters.
The Respondent seems to claim that there were no job
openings available for Aptos Seascape employees until
December 30 since it had transferred in three employees
on December 22 and did not hire any other outside em-
ployees until December 30. The evidence, however,
proves otherwise. Two of the three transferees were
clearly temporary employees and were used as a stopgap
measure to take care of the golf course until Respondent
could carry out its unlawful plan to hire other nonunion
employees instead of the former Aptos Seascape employ-
ees represented by the Teamsters Union.6 Accordingly,
it is found that its unlawful refusal to hire was initiated
with the beginning of its taking over the golf course on
December 22. It is, therefore, apparent that but for Re-
spondent's unlawful conduct, the Union's status as the
exclusive collective-bargaining representative would
have survived Respondent's takeover of the golf course.
This, together with Respondent's continued operation of
the golf course at the same location , serving the same cli-
entele, with basically the same jobs under the same con-
ditions, except that wages and benefits had been changed
6 One transferee was gone by January 14 and the other by January 23,
1987
in violation of the Act, and providing the same services
to the public, compels a finding that Respondent is a
legal successor to Aptos Seascape with respect to its bar-
gaining obligation to the Teamsters Union As the court
stated in Love's Barbeque Restaurant No. 62 v. NLRB,
640 F.2d 1094, 1100 (9th Cir. 1981), enfg. in pertinent
part 245 NLRB 78 (1979).
When employees have a collective bargaining
agreement and a change in ownership occurs, the
new owner must recognize and bargain with the
employees' union if the new owner is found to be a
"successor employer." NLRB v. Edo, Inc., 631 F.2d
604, at 606-607 (9th Cir. 1980); Bellingham Frozen
Foods, Inc. V. NLRB, 626 F.2d 674, 678 (9th Cir.
1980). The new owner is a successor employer if.
(A) the employer conducts essentially the same
business as the former employer , and (B) a majority
of the new employer's work force are former em-
ployees or would have been former employees
absent a refusal to hire because of anti-union
animus. Id.; Pacific Hide & Fur Depot, Inc. v.
N.L.R.B., 553 F.2d 609, 611 (9th Clr. 1977).
Having found that Respondent unlawfully refused to
hire Aptos Seascape golf course employees, and is the
legal successor to Aptos Seascape Corporation with re-
spect to its bargaining obligation with the Teamsters
Union, it follows that Respondent unlawfully refused to
recognize and bargain with the Teamsters in violation of
Section 8(a)(5) and (1) of the Act. As the Board stated in
Shortway Suburban Lines, 286 NLRB 323, 328 (1987),
"[W]e acknowledge that a successor employer is ordinar-
ily free to set initial terms on which it will hire the pred-
ecessor's employees. This rule does not apply, however,
when the successor has unlawfully failed to hire those
employees because of their union affiliation . [Respond-
ent], therefore , was not entitled to set the initial terms of
employment without first consulting with the Union.
[See Love's Barbeque Restaurant No. 62, supra, 245
NLRB at 81-82.]" Accordingly, it is found that Re-
spondent has violated Section 8(a)(5), (3 ), and (1) as al-
leged in the complaint, with the exception that the refus-
al to offer a supervisory job to Supervisor Francisco Pi-
casso was not unlawful.
C. The Restaurant, Case 32-CA-8892
The General Counsel contends that "the prima facie
case established with respect to the Teamsters also estab-
lishes the prima facie violation with respect to the Res-
taurant Employees Unit," and that I "should reject Re-
spondent 's nonsensical argument that the animus which
is applicable to its failure to hire the Teamster members
does not also apply with respect to its failure to hire
former unit members of the Restaurant Employees
Union " In Kessel Food Markets, 287 NLRB 426 (1987),
involving two separate units (meat and nonmeat), which
were represented by two separate unions, the Board
stated at footnote 16, that "we believe that alleged dis-
crimination against unit employees and alleged successor=
ship must be analyzed in each unit separately." Where, as
here, there are separate units and unions involved , hiring
SEASCAPE GOLF COURSE
decisions were made more than a month apart, independ-
ently of each other, by different personnel and, as is
shown hereafter, there is a total lack of credible evidence
of animus or unlawful intent or conduct on the part of
the Respondent in the restaurant unit, it is appropriate to
consider the restaurant case on its own merits.
On December 1, 1986, an official of Restaurant Em-
ployees Local 483 wrote Price, congratulating him on
the purchase of the Aptos Seascape facility and stating,
in substance, that it had represented the workers there
for many years and requesting that Price contact him
Price responded with the following letter dated Decem-
ber 10:
Thank you for your letter of 1 December 1986.
It is correct that I presently am seeking to pur-
chase the Aptos Seascape Golf Course, but the pur-
chase has not yet been completed.
No final decisions have thus far been made with
regard to the operation of the Seascape restaurant
and banquet facility. It is my expectation that our
marketing people will evaluate the entire facility
and its place in the Aptos area dining market before
making a final recommendation as to how to best
serve the dining public. This, in return, will prob-
ably necessitate some remodeling of the kitchen and
dining areas. For those reasons, it is presently our
intention to close the Seascape restaurant as soon as
we assume ownership in order to facilitate this mar-
keting evaluation and remodeling.
Once the remodeling is nearing completion, we
will begin hiring the best qualified persons for the
new restaurant staff. All applicants at that time will
be considered,
All restaurant employees were terminated by Aptos
Seascape Corporation prior to Respondent's taking over
on December 22, 1986. While the golf course remained
open under conditions set forth above, the restaurant fa-
cilities were closed for repairs and refurbishing until
March 2 when the dining room reopened 7 With the
consent of the prior management , Pluim had posted a
letter on the employee bulletin board prior to taking
over advising that Respondent was accepting applica-
tions for employment. Of the 39 former Aptos Seascape
employees who completed applications, 12 were inter-
viewed and hired, 12 were either unavailable or not in-
terested, and 16 were interviewed but not offered jobs, 7
of whom were rejected by Pluim on the basis of security
interviews, and 8 by DeSarno on Aubert's recommenda-
tions.8 All 16 are alleged in the complaint as discrimina-
tees. Applications were also accepted from people "off
the street."
Mary Aubert had been employed by Aptos Seascape,
first as a waitress, then as the dining room supervisor
and at the closing as dining room supervisor and co-ban-
7 There was a banquet on February 24, and a company-hosted cocktail
party on either that date or the 26th
s Per Jt Exh 10, the name of Dan Kamalam appears on two lists, as
unavailable or not interested, and as having been hired into a different
position Michael Paradise, who appears on the hired list, is an alleged
discriminatee and will be discussed later
887
quet coordinator. She was the first person hired by Re-
spondent in the restaurant. Her position was banquet-co-
ordinator and as such was responsible for booking and
coordinating the staff and collecting all moneys with re-
spect to the banquet facilities. The record establishes that
while working for Aptos Seascape, she was a member of
Restaurant Employees Local 483 and a statutory supervi-
sor. The record establishes, and the Respondent admits,
that she has been in a supervisory position since em-
ployed by it. Frank DeSarno was employed as the food
and beverage director from January 26 until May 21,
1987. As the restaurant was not open when both Aubert
and DeSarno were hired, they were instrumental in se-
lecting those to be hired after the applicants had been
screened for security purposes and approved by Pluim.
The record shows that Aubert, DeSarno, and all appli-
cants for employment in the restaurant were required to
submit to the Respondent's standard preemployment se-
curity screening process which included all personnel
who handle money or are in positions of responsibility
such as managing inventory or merchandise.9
Shortly after DeSarno was hired, both he and Aubert
called the individuals that had filed applications-both
former Aptos Seascape employees and "off the street"
applicants-to came in for an interview, which consisted
of reviewing the application, having the applicant state
his or her experience, and having them take a "Reid"
test which consists of hypothetical questions designed to
elicit attitudes toward matters such as theft, drug and al-
cohol use. After completing the "Reid" test, applicants
were then asked if they would consent to a security
check which consisted of an interview and possible poly-
graph examination . Arrangements were then made with
Long, an independent polygraph examiner from Peta-
luma, California, to come to Aptos and conduct security
checks on a number of applicants.10 DeSarno compiled a
list of applicants to be tested, which was given to Pluim.
Pluim reviewed the results of the security interviews
with Long, and then indicated on the list with an N, for
no, or a Y, for yes, as to whether the individual was eli-
gible for employment from a security standpoint. It was
then up to DeSarno to select the future employees.
Seven of the 16 alleged discriminatees were rejected by
Pluim on the basis of the security interviews. Eight were
rejected by DeSarno upon Aubert's recommendations
that they not be hired.' i The record shows that De-
Sarno relied entirely upon Aubert's recommendations,
whether to hire or not, with respect to all former Aptos
Seascape employees, and those applicants from "off the
street" that Aubert knew because of her long residency
in the Aptos area. Thus, there are two categories of re-
jected applicants, seven for security reasons, and eight
because Aubert recommended against hiring. Deanna
McManus, an alleged discriminatee, is in a category by
herself as is Michael Paradise.
'See G C Exh 8
io Long interviewed all restaurant applicants and conducted polygraph
examinations on some with their consent
11 Aubert also recommended that Alfred Smith, a cook rejected by
P1mm , not be hired
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Deanna McManus
The restaurant unit includes the classification "snack
shop employees."12 The snack shop is apparently located
on or, adjacent to the golf course and caters to the golf
course clientele . Deanna McManus, the daughter of
Aptos Seascape golf course superintendent Paul Lloyd,
worked part-time in the snack shop from January to June
1986 when her sister quit, at which time she became full
time in her sister's place and Kristen Crabb became part-
time. Both McManus and Crabb were 'members of Res-
taurant Employees Local 483. They were terminated by
the predecessor employer along with the other restaurant
employees. A girl from another golf course facility oper-
ated by Respondent was brought in to operate the snack
shop for the first 2 or 3 days after December 22 until a
decision was made to keep it open while a construction
crew worked on it. Pluim testified that he had gone
around and met some of the employees prior to Decem-
ber 22, and in the process met McManus once and talked
to Crabb two or three times, and while he did not have a
negative impression of McManus, Crabb "seemed very
personable and the customers seemed to like her and she
had a good rapport" so when it was decided to keep the
snack shop open, he called her. He denied he knew at
the time that McManus was Lloyd's daughter. Crabb
went through the security screening process after she
was hired. Pluim testified that only one employee was
needed in the snack shop at that time of the year-De-
cember, January, and February-because of the weather,
so Crabb worked 6 hours a day for 6 days a week, and
he had a cart attendant fill in as needed. McManus testi-
fied it was necessary to have only one employee working
in the snack shop. She also testified that the Respondent
had called her in early 1987, and that while she returned
the call, she did not follow up on it because she had
other employment.
The General Counsel argues that there was enough
work for Respondent to employ both Crabb and
McManus; that McManus would have been more quali-
fied to fill in at the snack shop than a cart attendant, and
therefore "the failure to retain her with Crabb can only
be attributed to her past coverage in the Restaurant Em-
ployee bargaining unit. . . ." His argument is not persua-
sive. McManus corroborated Pluim's testimony to the
effect that only one snack shop employee was needed at
that time of year There is nothing in the record to even
hint that Pluim's selection of Crabb instead of McManus
was unlawfully motivated. Both were union members
and Pluim credibly testified the decision between the
two was made on his perception of their personality and
rapport with customers. The General Counsel has failed
to prove McManus was unlawfully discriminated against.
Michael Paradise
Paradise did not testify. i 3 Consequently, Aubert's un-
refuted testimony regarding him is credited. She testified
12 The "snack shop" is also referred to in the transcript and briefs as
the "snack bar" and "dog shack "
i2 The parties stipulated he was not a member of Restaurant Employ-
ees Local 483
that there was nothing wrong with his performance as a
busboy; that he was a student and therefore not available
until after 3 p.m.; that the restaurant was open for dinner
only on Friday and Saturday nights and on Sunday; that
gratuities are greater on the weekends so that "we felt
that the busboys that worked during the hours where the
gratuities were very low [during the week], that they de-
served those shifts that were busier [on the weekends]";
that he was rehired in May since she thought perhaps he
could work for Respondent during the summer , that he
worked 1 day and informed her that he had a job in con-
struction. The General Counsel has failed to prove Para-
dise was unlawfully discriminated against
1. Applicants rejected by Pluim
Pluim testified he based his decision as to eligibility for
employment upon the results of Long's security inter-
views. His primary concern, as outlined in the Loss Pre-
vention Statement, page 3 of General Counsel's Exhibit
8, was theft. He testified he was also concerned about
the use of alcohol and drugs, including the type of drugs
used, the frequency of use, and the last time used if used
frequently.
Alfred Smith
Smith worked for Aptos Seascape as a cook from Sep-
tember 1984, until the restaurant closed when Respond-
ent took over Smith testified he was interviewed by De-
Sarno in early 1987, that he took two written tests, and
that he also took a lie detector test. After learning that
he was not going to be hired, he testified he went to the
restaurant and asked the chef why and was told the chef
did not know and suggested he ask DeSarno. He claims
he then asked the chef "Between you and me, what
would have happened if I hadn't taken the lie detector
test," and the chef responded "We couldn't have
touched you, we couldn't have hired you." His account
of his conversation with DeSarno was:
So, then, I went and asked Frank, well, you
know, I took the lie detector test and I was honest,
dust like he said I should be and I told the truth
about everything, why wasn't I hired, and Frank
said to me, "Well, you worked here before, didn't
you?" And I said yes. And he said, "Well, you said
[sic] two strikes against you right there," at which
point I said, "You meant union ," or I said, "You
mean u -n-i-o-n?" And he just kind of went like this
and said, "You said it, I didn't." And that was the
end of our talk. 14
On cross-examination Smith admitted he had been
interviewed by the polygraph examiner but had not been
given a polygraph examination ; that he admitted to using
three illegal substances , one at Christmastime 1986 and
another the night before he was interviewed by the poly-
graph examiner ; he admitted to having failed to admit
the use of a particular illegal substance within the past
year on the Reid test; that he had been terminated by
14 DeSarno denied this conversation took place
SEASCAPE GOLF COURSE
three previous employers, that he had lost his temper
and been rude and abrupt with fellow employees; that
there had been occasional complaints on his performance
as a cook; that while Aubert had never given him a writ-
ten warning, he had received oral counseling from her;
that in late 1986, following an incident with a waiter,
Aubert "wanted to talk to me about my abruptness and
attitude with the waitresses in general and that's why she
had some of the other girls there because she felt I had
been abrupt with them and that was a good time for us
all to get together and solve something about this rude-
ness or abruptness or whatever.. . ."; that the following
day another employee reported that Aubert had told the
chef that "Alfie's got a bad attitude "
Pluim testified that Respondent conducts security
interviews because it is looking for the best possible em-
ployees that it can find at each of its facilities; that he
and Long discussed the interview worksheet that Long
completed on each applicant; that the major factor he
was concerned with was theft, but that drug usage, its
type, use frequency and the last time used were also im-
portant. He testified he rejected Smith because the inter-
view worksheet revealed Smith was unsure of the last
time he had stolen, "and he had done quite a bit of drug
usage and the thing that really stuck out is that he was
coming in for a security interview, and he smoked pot
the last night before also." He therefore informed De-
Sarno that Smith was not to be hired. Aubert testified
she had also recommended to DeSarno that Smith not be
hired because of "his attitude toward his fellow employ-
ees, the waitresses and busboys"; that she had written
him up for his attitude about the kitchen; that on many
occasions she had to return food from the dining room
that he "had cooked inappropriately"; that she had had
to counsel him regarding a "very negative attitude"
toward another employee; and that just about every em-
ployee had complained about him.
I do not credit Smith's testimony that DeSarno told
him he had two strikes against him because he had
worked for the previous employer, to which Smith pur-
portedly said "you mean u-n-i-o-n" and that DeSarno re-
plied, "You said it, I didn't" DeSarno, who no longer
worked for Respondent, denied the conversation, and he
impressed me throughout his testimony as giving honest
answers Smith, on the other hand, impressed me as
being a bit loose with the truth. His answers on the Reid
test and to questions during the security interview in-
volving drug usage were inconsistent. In an affidavit
given a month before the hearing, he denied he had been
criticized for his cooking ability or performance; yet at
the hearing he admitted to "occasional" complaints on
his performance, a fact elaborated on by Aubert, whom I
found to be a forthright and honest witness. According-
ly, I do not credit his testimony when it conflicts with
that of either DeSarno or Aubert and particularly re-
garding his purported conversation with DeSarno. The
overall evidence convinces me that the reasons given by
Respondent for not hiring him are not pretextual as
claimed by the General Counsel. Accordingly, I find that
the General Counsel has not shown by a preponderance
of the evidence that Smith was unlawfully denied em-
ployment or that DeSarno informed an employee, as al-
889
leged in paragraph 8 of the complaint, that he had not
been hired because of his past union membership.
Colleen Collins
Collins was a dining room lunch and banquet waitress
for Aptos Seascape about 6 months. She applied with
Respondent, was interviewed by DeSarno, took the Reid
test and was interviewed by Long, to whom she admit-
ted to drug use in the past, to a driving conviction and
fine, to thefts totaling $300 to $400, the last of which was
3 months prior, which she testified was a very insignifi-
cant amount. Because of the admissions, Long did not
administer a polygraph examination. Pluim testified his
decision not to hire was based on the thefts and their re-
cency revealed in the security interview report from
Long. Aubert testified that she had discussed Collins
with DeSarno and told him Collins had a cold and dis-
tant manner with customers but that he had said she
should continue in the interview process. Aubert's under-
standing was that she was not offered employment be-
cause of her security interview.
Kim McCloud
McCloud did not testify. Pluim testified that her rejec-
tion for employment was based upon admissions made to
Long during the security interview, which consisted of
admitting to thefts totaling $500, and as recent as Sep-
tember 1986, to giving "free food to cute guys while
working at Seascape," and "quite a bit of drug use."
Long did not administer a polygraph examination be-
cause of her admissions during the interview.
Judith Keller
Keller testified she worked for Aptos Seascape as a
dining room hostess off and on for 7 years, made applica-
tion for a job with Respondent and "went through ev-
erything that everybody else did," including a polygraph
exam She later received a letter from DeSarno inform-
ing her that her application would be kept on file but her
services weren't needed then. About 2 months later,
while she was at the restaurant with friends, DeSarno
told her that they had been very busy and asked if she
would like to return. She responded she "would only do
it for $7.50 an hour," and he said he would think about
it. 15 About 3 weeks later she called Aubert and learned
that DeSarno "had been relieved of his duties." The se-
curity interview sheet completed by Long, and which
Pluim used in making a decision whether she was eligible
for employment, lists some drug usage and thefts totaling
$400 to $500, in the form of both cash and merchandise
totaling $50 and $80 respectively at one time. Keller tes-
tified that the "theft" had actually resulted from mathe-
matical errors totaling $400 to $500 for which she was
responsible and was discovered during an audit of a
company for whom she had worked for 10 years which
had just been sold. She testified she did not give the
foregoing explanation to Long either before or after she
was attached to the polygraph machine. Pluim testified
15 Her prior wage was $6 an hour
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he relied on the information on the security interview
sheet which revealed theft and some drug use, which
formed the basis for his decision that she was not eligible
for hire.
David Andrews
Andrews testified he had been employed at Aptos
Seascape almost 50 years. He completed an application
for employment with Respondent in December and was
called in January to come in for an interview which, ap-
parently , consisted of taking the Reid test followed by a
short conversation with DeSarno wherein the latter ex-
pressed the opinion his "chances of coming back would
be about 95 percent ." A couple of weeks later DeSarno
called and asked him to come in for a polygraph exami-
nation . Asked by Long if he had ever stolen , he testified
"I told him I have a problem with his question . That it
was hard for me to answer yes or no to this question be-
cause a lot of gray matter , a lot of certain circumstances
involved . And, but if you need a yes or no, it would
have to be yes. Then I gave a yes reluctantly. . . . He
asked me give me an instance . . . . I told him I stole a
turkey one Christmas" for either a former or part-time
employee He explained that each employee was to re-
ceive a turkey, for which they had to sign their name,
and that he signed his name twice and had gotten a
turkey for his friend also. Asked if he had stolen cash, he
explained that sometimes when a customer would buy
him a drink , instead of treating the money left by the
customer as payment for the drink , he would treat it as
tip money , which he considered thievery . The security
interview sheet completed by Long indicates the poly-
graph examination results indicated deception on the part
of Andrews with respect to thefts . Pluim testified he re-
jected Andrews because "he had stolen currently in the
last six months and . . . he had given that admission and
also Mr . Long couldn 't verify his truthfulness in regards
to thefts , even after he gave the admission."
Eugene Pelayo
Pelayo had worked for Aptos Seascape as a fry cook
since 1971. He testified that after filing an application he
received a call from Aubert to come in, which he did.
He claimed he spoke to both Aubert and the chef and
was told he was hired . A week later he was called again
and told he had to come in and take the Reid test, which
he did. A week or two before the opening he was called
again to "come to work " When he arrived , he testified,
he was told he had to take a polygraph exam , which he
did. He denied using drugs or any thefts. The security
interview form discloses that as a result of the polygraph
examination , Long concluded "Deception indicated on:
undetected crimes - Thefts." Pluim testified he rejected
Pelayo because Long could not verify his truthfulness
with respect to theft questions and crimes.
Randy Maldonado
Maldonado did not testify. P1mm testified he rejected
Maldonado because Long "couldn 't verify the truthful-
ness of theft questions and also there was some drug
usage." His security interview form shows Maldonado
admitted to some drug usage but denied any thefts. The
form indicated the polygraph examination showed "De-
ception indicated on: Thefts."
Discussion
The General Counsel contends the Respondent's use
of the polygraph examination "should be construed as
merely a useful pretextual screening device as opposed to
a rigorous and objective basis for selecting competent
employees," and that "an analysis of the polygraph inter-
view process results shows no objective bases for the Re-
spondent 's general manager , Pluim to make selections of
some applicants as opposed to others."
The Respondent argues that it has been conducting se-
curity interviews and polygraph examinations for several
years at both union and nonunion golf courses in fulfill-
ment of its policy of hiring the best people possible, and
that the same standard was used on both the former
Aptos Seascape employees and the "off the street " appli-
cants. In each of the seven instances recounted above, it
is argued , Pluim rejected the former employee because
the employee had either admitted to theft from prior em-
ployers or indicated deceptiveness during the polygraph
examination . As the restaurant employees have daily
access to cash and inventory , it is argued , there can be
no serious argument that Respondent "lacked a legiti-
mate, nondiscriminatory reason for electing not to hire
the seven former Aptos Seascape employees who admit-
ted to theft or failed a polygraph with respect to past
theft."
I have considered all of the arguments and positions
set forth in the General Counsel's brief in conjunction
with the record and am unable to discern any unlawful
motive with respect to Pluim's role in staffing the restau-
rant . Evidence shows Respondent has used the security
interview and polygrpah examination at its other golf
courses. It has not been shown that any unlawful ques-
tions were asked or that Respondent 's supervisors or
agents exhibited any antiunion animus. Also, the security
interview forms for the "off the street " or nonformer
Aptos Seascape applicants lend support to the Respond-
ent's defense that all applicants were treated alike and
that those who either admitted to theft from prior em-
ployers or whose polygraph examination indicated de-
ceptiveness with respect to theft , were rejected. 16 See
also the security interview forms for the former Aptos
Seascape employees and the "off the street " applicants
that were hired for the restaurant , Respondent 's Exhibits
16 and 18 , respectively, which both disclose that not a
single restaurant unit employee hired either admitted to
theft , nor did the polygraph examination indicate any de-
ception in that regard . In sum , I conclude the General
Counsel has failed to prove by a preponderance of the
evidence that Smith , Collins, McCloud , Keller, Andrews,
Pelayo, or Maldonado was refused employment unlaw-
fully.
18 Other apparent reasons for rejections of "off the street" applicants
appear to be venereal disease, sale of drugs , recent drug use, and offen-
sive body odor
SEASCAPE GOLF COURSE 891
2. Applicants rejected by DeSarno
DeSarno testified that it was his responsibility to hire
the restaurant staff from the lists of those whom Pluim
had approved from a security standpoint. He denied that
he was ever told to consider, or that he did consider,
union membership or affiliation in making his decisions,
and there is no credible evidence to the contrary regard-
ing him or Aubert. He further testified that since Aubert
had worked with the former Aptos Seascape employees,
he relied completely on her judgment and accepted her
recommendation with respect to hiring or not. Thus,
those former Aptos Seascape employees hired and those
not hired that cleared the security phase were because of
her recommendations . He also relied on her recommen-
dation regarding "off the street" applicants that she had
knowledge about. His objective, he testified, was to co-
ordinate a working team that would improve the overall
service and the food. The record shows that Aubert rec-
ommended against hiring each of the following former
Aptos Seascape employees.
Barbara Markum
Markum did not testify. Therefore, Aubert's testimony
regarding her past experience with Markum is uncontra-
dicted. Aubert testified that on the day she interviewed
Markum, DeSarno asked Aubert about her experience
with Markum. Aubert told him that she had had to speak
to Markum on several occasions about her drinking on
the job; that there was a continuing problem of bringing
her boyfriend to wait for her which was against compa-
ny rules; that on one occasion the boyfriend got into a
fight and hit a customer; that both she and the food and
beverage manager had told both Markum and her boy-
friend to keep him out of the premises; that she had to
remind Markum frequently to be more attentive to cus-
tomers; that she had gotten into a verbal fight with a
bartender and used profanity in front of customers; that
Markum had received several verbal and written warn-
ings for her conduct. For the above reasons, she recom-
mended to DeSarno that Markum not be hired. The
General Counsel has failed to establish an unlawful
motive for declining to hire Markum.
Loretta Ashley
Ashley was a part-time cocktail waitress. She appears
to have gone through the regular interview and security
screening process and been approved by Pluim from a
security standpoint. Aubert testified that following his
interview with Ashley, DeSarno stated he felt she "was
a little distant and not very personable," at which time
Aubert related her experience with Ashley. She informed
him that Ashley has a business in hypnosis and had coun-
seled the beverage manager in hypnosis with respect to
stopping smoking; that she often pulled a bar stool over
by the fireplace and appeared to go into a self-hypnotic
trance, which was frustrating for Aubert because Ashley
would not be aware of customers in the lounge and
Aubert "would have to call her as if almost to awaken
her from-this state that she was in"; that she had spoken
to her about her appearance on two occasions; and that
she had given her verbal warnings.
Ashley testified she had never received any warnings
and that-both Aubert and the food and beverage manag-
er complimented her every day on her clothing and the
way she did her job She testified.
I never knew I could sit down. Um, I was always
up on my feet and looking for things to do and busy
and they liked the way I kept the tables clean and I
received numerous compliments from her [Aubert]
and from the bartenders and from Bruce [food and
beverage manager] and from everyone.
She denied she ever engaged in self-hypnosis during
working hours or that Aubert had ever had to awaken
her from a trance. She admitted on cross-examination to
having practiced self-hypnosis in the past and to having
taught a class in it . In addition to volunteering informa-
tion probative of nothing, Ashley stated that Aubert
"was a very warm, loving person and I considered her a
good friend ." Ashley's enthusiasm for pinning an unlaw-
ful motive on the Respondent was far more apparent
than her willingness to answer questions directly. I find
that Aubert is the more credible of the two. The General
Counsel has failed to establish an unlawful motive for de-
clining to hire Ashley.
Nancy Arnone
Arnone worked for Aptos Seascape from April 1985
to December 1986 as a waitress in the banquet depart-
ment. She testified she applied for employment in Janu-
ary, was called by Aubert to come in for an interview,
which she had with DeSarno, who informed her she
would be called back for another interview and would
be asked to take a polygraph test, about which she ex-
pressed reluctance, but that he indicated it probably
would not be necessary because most of the time the
interviewer did not require it. Having heard that other
employees had been called back for the polygraph test,
she called DeSarno to find out why she had not been.
DeSarno informed her that a letter was in the mail
which, when received, stated that all of the positions had
been filled.
Aubert testified that she was present during the inter-
view by DeSarno and that Arnone displayed "a very
negative attitude" which she and DeSarno discussed, and
that she told DeSarno about her past experience with
Arnone; that she had exhibited a bossy and negative atti-
tude by not following instructions and complaining about
doing so; that she had verbally counseled her regarding
her attitude and for using a utility cart from the kitchen
instead of serving from a tray which was the type of
service both Aptos Seascape had used and Respondent
was also going to use She had made Arnone return the
utility cart to the kitchen and use the proper service
Aubert said she did not schedule Arnone in the dining
room because she did not want to deal with the problem.
Arnone stated that she "had tendonitis very badly" in
her wrist the spring of 1986, for which she was being
treated, and had asked someone else to carry her trays
for her. She apparently did not tell either Aubert or the
food and beverage manager about her disability. She
denied Aubert talked to her about using a cart instead of
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tray service, and stated the two had a good relationship.
The General Counsel has failed to establish an unlawful
motive in declining to hire Arnone.
Mary Lambert
Lambert worked for Aptos Seascape 3-1/2 years as a
waitress-bartender in the banquet room. She completed
an application in December and was called by Aubert
the latter part of January for an interview. She testified
she took the Reid test and underwent a polygraph exami-
nation and later received a letter stating she wasn 't being
hired.
Aubert testified she spoke with DeSarno regarding
Lambert and was present during her interview . She testi-
fied:
... Mary was discussing the availability of hours
that she could work, and that she had many obliga-
tions at home , such as children and social events
and building a new home : And I also related to
Frank that she was extremely difficult to schedule
as an Aptos Seascape Corporation employee and
that at times it was difficult to rely on her when
making out a schedule because she seemed to have
so many other personal obligations. And that, per-
sonally, that wasn't the type of employee that I was
looking for to man the banquet crew . . . she
would many times switch shifts with other people,
which, at times, created problems regarding over-
time and that type of thing. . . . They were not
supposed to without the acknowledgment of man-
agement , but there were times that Mary , because
of her demanding personal schedule, did do that
[without permission].
Lambert admitted that someone working in the ban-
quet facility had to be flexible; that sometimes when she
was not scheduled and was called to come in, that she
could not; that sometimes she traded off with other em-
ployees, but that she would "write it down on a piece of
paper and get an okay from your supervisor." She also
acknowledged having had a personality conflict with
Arnone, about which she had been spoken to by manage-
ment , but stated they had ironed out their problem and
everything had gone smoothly the last year. She in-
formed DeSarno that she had "two children and a family
as well. And they came first and . . . that I had never
missed work and I always worked out my schedule and
babysitting was never any problem at all." The General
Counsel has failed to establish an unlawful motive in de-
clining to hire Lambert.
Lucy Ferguson
Ferguson was employed as a banquet and dining room
waitress from August 1984 until December 1986. She
was interviewed by DeSarno the latter part of January
and underwent a polygraph examination but did not hear
anything from Respondent after that.
Aubert testified DeSarno asked her about Ferguson on
the day he interviewed Ferguson. Aubert reported Fer-
guson had worked primarily in the dining room and that
she had received many complaints from customers re-
garding Ferguson and that "she had somewhat of a rude
approach to customers"; and that she had received a
written warning from the food and beverage manager re-
garding her personal appearance. She testified that Fer-
guson had refused to adhere to a dress policy which cov-
ered appearance expectations in that she continued to
wear green and blue nail polish and extreme hairstyles.
She testified there had been one instance when a group
had refused to have her continue to wait on them and
she had to send another waitress to do so
Ferguson testified that she had been scheduled to
work on her birthday'on September 17 and that the food
and beverage manager had refused her request for the
day off. She characterized him as just "being unrespon-
sive." Therefore, she made arrangements with another
employee to cover her shift "and I think I had [Aubert]
okay that after that." She received an employee warning
the following day for "substandard work," her "atti-
tude," and for being "uncooperative ." She testified she
felt very surprised and did not see any point to it. She
received another warning a few days later for complain-
ing about the schedule. With respect to the dress code,
she acknowledged that Aubert had told her the finger-
nail polish she was wearing was not acceptable . She also
testified she had known the food and beverage manager
and his wife from Idaho, and that she called his wife and
said that he "has certainly been acting strangely toward
me lately." The General Counsel has failed to establish
an unlawful motive for declining to hire Ferguson.
John Fields
Fields, a busboy, did not testify. Therefore, Aubert's
testimony regarding her past experience with him is un-
contradicted. She testified that she told DeSarno that she
had known Fields about 13 years; that he had gone to
school with her youngest son; that he was a likeable
young man but was habitually late, for which she had to
warn him; that he would come in wearing wrinkled'
shirts or shirts that had not been washed, and that on a
couple of occasions she sent him to the pro shop to take
a shower before starting work. She stated she did not
want to deal with those problems again and did not feel
he was the type of employee Respondent wanted repre-
senting them. The General Counsel has failed to establish
an unlawful motive for declining to hire Fields.
Jeff Baird
Baird , a part-time busboy, also did not testify so .Au-
bert's testimony is uncontradicted. She testified she told
DeSarno that she had experienced difficulty with him,
that he was extremely slow, had difficulty learning and
had to be retrained each day; that his fellow employees
constantly complained about his slowness and waitresses
did not want to work with him. The General Counsel
has failed to establish an unlawful motive for failing to
hire Baird.
Discussion
In addition to arguing that Respondent 's unlawful con-
duct in the Teamsters unit case also applies to the Res-
taurant Employees unit case, an argument which I reject-
SEASCAPE GOLF COURSE
ed at the outset of my decision in the Restaurant case,
the General Counsel argues that the reasons Respondent
advances for refusing to hire those employees whom
Aubert recommended against hiring, "were simply not
true," and that it should be inferred that they were not
hired because of their past union affiliation so as to un-
lawfully avoid successorship status. He also argues that
all of the Aptos Seascape employees "should have been
hired as a class, given that the polygraph screening
device constituted an 8(a)(5) change in terms and condi-
tions of employment, which should not be used against
them."
Respondent contends there is absolutely no evidence
of an improper motive on Aubert's part in recommend-
ing certain employees not be hired, and that it is a fact
that all witnesses who were asked testified that Aubert
had always been fair with them. It is also argued that the
General Counsel's case rests principally upon specula-
tion, conjecture, and suspicion, which do not substitute
for proof by a preponderance of the evidence, a burden
which rests upon the General Counsel. Further, since
there is no proof of a discriminatory motive by Aubert,
the Respondent had the absolute right to rely upon her
past experience with, and evaluation of, the applicants, as
well as her recommendations as to whether applicants
should be hired
Again having reviewed and considered all of the argu-
ments and positions in the General Counsel's brief in
conjunction with the record, I fail to find any credible
evidence of an unlawful motive on the part of either
Aubert or DeSarno in either making recommendations or
in declining to hire any of the above seven applicants.17
Nor is there any basis for inferring an unlawful motive.
The General Counsel carries an affirmative burden of
proof and must show by a preponderance of the evi-
dence that the allegations of the complaint are true. Sus-
picion alone does not suffice to prove an unfair labor
practice. Kings Terrace Nursing Home, 229 NLRB 1180
(1977).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board held that a violation of Section 8(a)(1) or (3) is es-
tablished where the General Counsel has shown that an
employer's opposition to protected conduct was a "moti-
vating factor" in the employer's decision, and the em-
ployer, in the face of such a showing, has failed to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct. In my
view, the General Counsel has not only failed to make a
prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in re-
fusing to hire the former Aptos Seascape restaurant em-
ployees, but that the Respondent has shown that they
were not hired because of lawful business considerations.
In so concluding, I am mindful of the fact that Respond-
ent violated the Act with respect to the golf course
maintenance unit, and that it knew that the restaurant
employees had been represented by the Restaurant Em-
11 It was all too obvious that Ashley, the General Counsel's final wit-
ness , was bent upon establishing, albeit unsuccessfully, an unlawful
motive,
893
ployees Union at the time their employment was denied.
As previously noted, however, alleged discrimination
against unit employees and alleged successorship must be
analyzed in each unit separately. Kessel Food Markets,
supra. As the Respondent has not violated the Act in re-
fusing to hire a majority of the former Aptos Seascape
restaurant employees, it follows that it cannot be a suc-
cessor. Daka Inc., 286 NLRB 548 (1987). It further fol-
lows, and -I find, that Respondent was not required to
recognize and bargain with the Restaurant Employees
Union and was privileged to establish its own terms and
conditions of employment without first giving notice to
the Restaurant Employees Union. In sum, I find that the
Respondent has not violated the Act in any respect al-
leged in the complaint in Case 32-CA-8892.
THE REMEDY' 8
Having found that Respondent discriminatorily refused
to offer employment to the former golf course mainte-
nance employees of Aptos Seascape in Case 32-CA-
8612, I shall recommend that their employment status be
restored to what it would have been but for the discrimi-
nation against them, and that Respondent offer them im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights or privileges previously enjoyed, discharging, if
necessary, employees hired from sources other than
Aptos Seascape, to make room for them and make them
whole for any loss of earnings they may have suffered
due to the discrimination practiced against them, as pre-
scribed in F. W Woolworth Co., 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).19 Backpay shall be calculated ' on the basis
of the contractual rates paid by Aptos Seascape
It is further recommended that Respondent bargain, on
request, with the Teamsters Union concerning any terms
and conditions of employment on which it would have
been required to bargain had the Union's lawful status
been acknowledged on December 22, 1986, the date Re-
spondent took over and began operating the golf course.
It is further recommended that Respondent cancel, on
request by the Teamsters Union, any departures from
terms and conditions of employment, including rates of
pay and benefits unilaterally effectuated and make whole
the employees by remitting all wages and benefits20 that
181 have considered Respondent's argument regarding remedy and
find it unpersuasive An appropriate remedy in these circumstances is to
restore the status quo ante My recommended remedy and Order are
based on well-established Board precedent See, for example, State Dis-
tributing Co, 282 NLRB 1048 (1987), for a detailed analysis of the
Board's reasoning
19 In accordance with the Board's decision in New Horizons, interest on
and after January 1, 1987, shall be computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
25 U S C § 6621 Interest on amounts accrued prior to January 1, 1987
(the effective date of the 1986 amendment to 26 U S C § 6621) shall be
computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977)
20 As part of the make-whole remedy, Respondent shall remit pay-
ments it owes to the benefit funds and reimburse employees for any ex-
penses resulting from its failure to make such payments
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have been paid, absent the Respondent's unlawful
conduct, from December 22, 1986, until the Respondent
negotiates in good faith to agreement or to impasse.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local 912 and Restaurant Employees
Local 483 are each labor organizations within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time groundskeepers,
mechanics and foremen employed by American Golf
Corporation d/b/a Seascape Golf Course at the facility
formerly operated by Aptos Seascape Corporation, ex-
cluding all other employees, managerial employees,
office clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material, General Teamsters, Packers,
Food Processors and Warehousemen Union, Local 912,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment and other terms and conditions of employment
within the meaning of Section 9(a) of the Act.
5. By its refusal on December 22, 1986, and thereafter
to hire the employees of Aptos Seascape Corporation,
following the purchase of this facility, because of the
union affiliation of these employees and to avoid an obli-
gation to bargain with Teamsters Local 912, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
6. The Respondent is the successor employer to Aptos
Seascape Corporation, and by failing to recognize and
bargain with Teamsters Local 912 since January 6, 1987,
as the exclusive collective-bargaining representative of
the employees in the above unit, including by departing
from pre-existing rates of pay and benefits without prior
notification to and consultation with the Union, it violat-
ed Section 8(a)(5) and (1) of the Act.
7. The Respondent has not engaged in any of the
unfair labor practices alleged in Case 32-CA-8892.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, American Golf Corporation d/b/a
Seascape Golf Course, Aptos, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the fmdmgs, 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
(a) Refusing to hire employees because of their union
affiliation and to avoid an obligation to bargain with
General Teamsters, Packers , Food Processors and Ware-
housemen Union , Local 912, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, AFL-CIO.
(b) Failing to recognize and bargain with General
Teamsters , Packers, Food Processors and Warehousemen
Union, Local 912 , International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, AFL-CIO, as the exclusive collective -bargaining
representative of its employees in the following unit, in-
cluding by making changes in the rates of pay and bene-
fits of the employees in this unit without notice to and
consultation with the Union:
All full-time and regular part-time groundskeepers,
mechanics and foremen employed by Respondent at
the Facility, excluding all other employees, manage-
rial employees, office clerical employees, guards,
and supervisors as defined in the Act.
(c) In any manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to the golf course maintenance employees
formerly employed by Aptos Seascape Corporation at
the Aptos facility, full and immediate reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to seniority or other rights which they have former-
ly enjoyed, discharging if necessary other employees
who have been hired in their places.
(b) Make whole the golf course maintenance employ-
ees formerly employed by Aptos Seascape Corporation
for any loss of earnings they may have suffered due to
the discrimination practiced against them, in the manner
described in the remedy section of the decision.
(c) On request, bargain with Teamsters Local 912 as
the exclusive representative of the employees in the
aforesaid appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(d) On request of the above Union, cancel any changes
from the rates of pay and benefits or other terms and
conditions of employment that existed immediately
before taking over the Aptos Seascape Corporation oper-
ations, and make the employees whole by remitting all
wages and benefits that would have been paid absent
such changes from December 22, 1986, until it negotiates
in good faith with the Union to agreement or to impasse
in the manner described in the remedy section.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
SEASCAPE GOLF COURSE 895
(f) Post at its Seascape Golf Course copies of the at-
tached notice marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
22 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint in Case
32-CA-8892 be dismissed.