Squaw Valley Development Corp.

National Labor Relations Board - Board Decisions

Jul 12, 1960

128 N.L.R.B. 9 (N.L.R.B. 1960)

--SQUAW VALLEY DEVELOPMENT CORP. 9
whose operations fall within that classification. As the Employer's
commerce data meets the established minimum standard for com-
munications, I would assert jurisdiction in this case.
Squaw Valley Development Corp . and/or Squaw Valley Lodge
and Operating Engineers , Local Union No. 3 , International
Union of Operating Engineers , AFL-CIO. Case No. 20-CA-
1714. July 12, 1960
DECISION AND ORDER
On March 24, 1960, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following corrections.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
1 The Trial Examiner found the Respondent's statements to employees that it would
curtail operations and contract out maintenance` work, rather than deal with the Union
they had designated to represent them, constituted interference, restraint, and coercion
within the meaning of Section 8(a) (1) of the Act. He stated in this connection that
"The complaint did not allege independent 8(a) (1) violations of the Act, but the matter
on which these findings are made was fully litigated." While we agree that the matter
was fully litigated, we note also that the complaint did allege that the Respondent, by
warning that it "would contract out its maintenance work or close down the whole
operation seven months a year because of the union activities of the employees," violated
Section 8(a) (1) of the Act. The Trial Examiner's recommended order required the
Respondent to cease and desist from such conduct, but this provision was inadvertently
omitted from the notice to be posted by the Respondent. We shall therefore amend the
notice to conform with the order.
Footnote 8 of the Intermediate Report refers to the Respondent's letter offering re-
instatement to the dischargees as an "offer of unspecified work . . . ." While we agree
with the finding that the offer was inadequate for the other reasons set forth in the
Intermediate Report, we note that the letter was an offer of "the same work as last
-winter."
128 NLRB No. 10.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, Squaw Valley Development
Corp. and/or Squaw Valley Lodge, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Operating Engineers, Local
Union No. 3, International Union of Operating Engineers, AFL-CIO,
or in any other labor organization of its employees, by discharging
or in any other manner discriminating against its employees in regard
to their hire or tenure of employment or any term or condition of
employment.
(b) Threatening its employees with loss of employment if they
seek or obtain representation by the aforesaid Union, or by any other
labor organization.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Operating Engineers, Local
Union No. 3, International Union of Operating Engineers, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to John Richard Gilbert, Lilburn Jones, Dale B. Gillas-
pie, and Fred Arden Gillaspie immediate and full reinstatement to
their former or substantially equivalent positions,2 without prejudice
to their seniority or other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of the dis-
crimination against them in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary or appropriate to analyze the amounts of
backpay due under this Order.
(c) Post at its operations in Squaw Valley, California, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
2 See N.L.R B . v. American Steel Building Company, Inc., 278 F. 2d 480 (CA. 5).
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
SQUAW VALLEY DEVELOPMENT CORP. 11
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage affiliation with Operating Engineers,
Local Union No. 3, International Union of Operating Engineers,
AFL-CIO, or any other labor organization, by discharging our
employees, or discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT threaten our employees with loss of employment
if they seek or obtain representation by the aforesaid Union, or
by any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-
named Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as authorized by the National Labor Relations Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer John Richard Gilbert, Lilburn Jones, Dale B.
Gillaspie, and Fred Arden Gillaspie immediate and full rein-
statement to the positions they formerly held, or their equivalent,
without prejudice to seniority or other rights and privileges, and
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make them whole for any loss of pay they may have suffered as
a result of the discrimination against them.
SQUAW VALLEY DEVELOPMENT CORP.
AND/OR SQUAW VALLEY LODGE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner of the
National Labor Relations Board , herein called the Board , in San Francisco, Cali-
fornia, December 16, 17 , and 18 , 1959 , on the complaint of the General Counsel of
the Board and answer of the Respondent . The principal issue litigated was whether
the Respondent violated Section 8 ( a) (1) and ( 3) of the National Labor Relations
Act, 61 Stat . 136, herein the Act, by discharging four of its employees because of
their activities on behalf of Operating Engineers , Local Union No. 3, International
Union of Operating Engineers , AFL-CIO, herein called the Charging Party or the
Union . All parties waived oral argument . The General Counsel , though invited
to do so, did not file a brief. The Respondent's duly filed brief has been carefully
considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Squaw Valley Development Corp., a Nevada corporation, is engaged in the
operation of a combined hotel and restaurant at Squaw Valley, California, known as
Squaw Valley Lodge, hereinafter called the Lodge, and is also engaged in the opera-
tion of certain skiing facilities in the vicinity of the Lodge. During the fiscal year
ending September 30, 1959, the Respondent received a gross income of approximately
$355,000 from the operation of its Lodge, and approximately $209,000 from the
operation of its skiing facilities. The total income from both operations was there-
fore in excess of $500,000 for the stated fiscal year.
Respondent in its answer to the complaint asserts that its Lodge and ski operations
are run as "separate, distinct and independent operations," and presumably would
have it inferred that it would be improper to use the combined income from the
two operations to satisfy the Board's formula for asserting jurisdiction. Not much
is made of the point and in any event it is clearly established in the testimony of
Respondent's president, Alexander Cushing, and of the manager of the Lodge, John
T. Buchman, that the two operations in fact represent a joint enterprise, being inter-
dependent in both management and functioning. Cushing directs both operations;
Buchman, whose primary duties are management of the Lodge, also has "a good
deal of authority" over the ski lifts; a "package plan" that provides reduced rates
for the combined use of Lodge and skiing facilities is offered potential customers;
and concessions in the Lodge, operated on a percentage basis, include ski equipment
and a ski rental shop. An enumeration of further detail on the point would be
superfluous.
That the Board has legal jurisdiction over the Respondent's operations is not
challenged. To list only a few of the items establishing jurisdiction: the bulk of
meat supplies used in restaurant operations in the Lodge, of a value of about $35,000
annually, is purchased from a Reno, Nevada, firm; the laundry from its Lodge opera-
tions, at a cost of about $500 a month, is done in Reno; the replacement of a cable
on one of its ski lifts, valued at about $15,000, was done by a subsidiary of United
States Steel Corporation; in a normal year a small percentage of those who pay to
use its Lodge and ski facilities come from outside California, but in a skiing com-
petition held in February 1959, there were participants from both outside the State
SQUAW VALLEY DEVELOPMENT CORP. 13
and from foreign countries ; and, as everybody interested in winter sports knows,
Squaw Valley was the site of the 1960 Olympics.
It is found that the Board has and will assert its jurisdiction over the Respondent.
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers, Local Union No. 3, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the meaning of the Act, admitting
to membership certain classifications of employees of the Respondent herein.
III. THE UNFAIR LABOR PRACTICES
This proceeding involves principally the Respondent's discharge on June 27, 1959,
of the following four employees: John Richard Gilbert, Dale B . and Fred Arden
Gillaspie, brothers, and Lilburn Jones. The Gillaspies were hired in January 1959
as rope tow operators and maintenance men. Jones was hired during the 1957-58
winter season as a ski patrolman, and was rehired in October 1958 on ski lift main-
tenance. Later, when snow -fell, he resumed his duties as ski patrolman. Gilbert
was hired during the winter season of 1957-58 primarily as a ski lift maintenance
man. He was the only one of the four employees in question who was initially hired
on a year-round basis. A fifth employee, whose discriminatory discharge is not
alleged but who is somewhat involved in the situation giving rise to the discharges,
was Donald H. Farnham, a Lodge maintenance man.
Immediately supervising the work of the outside maintenance crew during the
period material herein, was Lee Jones. Dating from January 1959, when Foreman
John Martizia left Respondent's employ, he made work assignments to the mainte-
nance clew, was authorized to grant time off to members of his crew, and to make
recommendations with respect to hiring and firing. He was what is commonly called
a working foreman, with limited supervisory authority but enough, I think, to bring
him within the Act's definition of supervisor.' In the spring of 1959, the Respondent
hired Lowell Northrop to advise the Respondent on its "outside" operations, but it is
clear that he acted primarily in an advisory capacity and, admittedly, he worked on
a casual or part-time basis throughout the period that is material herein. While his,
status was undoubtedly managerial in character, there is no evidence that he en-
gaged in actual supervision of the work of maintenance personnel . John T.
Buchman, manager of the Lodge, also had some general authority with respect to
"outside" operations and was consulted in such matters but did not directly super-
vise the work of the outside maintenance crew. Final authority with respect to
every phase of Respondent's Sqaw Valley operations rested in Alexander Cushing,
Respondent's president?
Respondent's winter or " ski" season normally begins with the first snowfall about
Thanksgiving and ends about Easter or mid-April. It is the season when Respondent
has the greatest number of employees, many of them being hired only for the winter
season. The Lodge remains open throughout the year and during the summer there
is sufficient tourist business to keep at least one of the ski lifts in operation. Nor-
mally, in the past, a skeleton maintenance crew has been kept on after the close of
the winter season, and some college students, boys and girls, are employed for
ground maintenance and operation of the ski lift. The year 1959 was a little different
from previous years because it was the year preceding the big Olympics event, and
the Respondent was obligated to extend certain privileges to officers inspecting the
area in preparation for the Olympics, such as the use of a ski lift when and as
often as required.
Near the end of the winter season of 1958-59, the Respondent, through Lee
Jones but principally through Cushing himself, approached the Gillaspie brothers
and Lilburn Jones about remaining in Respondent's employ throughout the year, and
1 Respondent's original answer to the complaint admitted Lee Jones' supervisory status,
but in its answer amended at the hearing Respondent denied that he had such status.
The resolution of the matter has little bearing on ultimate findings. If be be found to
occupy the status of supervisor, his statements to employees purporting to represent
Cushing's views on unionization would be binding on the Respondent; if he be found
not to occupy such status, then any statements made to him by Cushing must be regarded
as statements made to a rank-and-file employee, without the privilege of communication
between persons of managerial rank.
2 Cushing's testimony : "Anything involving, I'd say, substantial expenditure either in,
manpower or money, is certainly approved by me although it is very often done through.
Mr. Buchman, but Mr Buchman is simply the intermediary. He comes to me and consults
me about it."
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after some skirmishing over salaries in which the said employees received the salary
increases they held out for, Respondent's offer of permanent employment was ac-
cepted by each of them .3 Cushing discussed in detail with each of these employees
the work he had in mind to be accomplished before the start of the next winter
season , and also discussed his plans for outside maintenance work with Gilbert,
admittedly one of his best qualified men. Lists of work projects had been drawn
up by Gilbert and Lee Jones and all of this was thoroughly reviewed toward the end
of the 1958-59 winter season.
On April 14, 1959, Farnham, the Gillaspies, Lee, and Lilburn Jones met with
union representatives at Gilbert's house and all, including Gilbert, signed cards
authorizing the Union to represent them.
About May 13 and again on May 15, union agents visited Respondent's premises
in Squaw Valley and attempted to see Cushing. Unable to reach him they intro-
duced themselves to Buchman and left their business cards with him. It was not
until about June 23 that they actually saw Cushing in the latter's office. They in-
formed Cushing that the Union represented a majority of his maintenance employees
and that they wished to negotiate a contract. (According to Cushing, the informa-
tion was that the Union represented eight of his employees. Actually, as already
noted, six employees had signed cards.) It is established to my satisfaction that
the Union's agents while informing Cushing that they had authorization cards, refused
to submit them for his inspection but agreed that he might question his employees
on whether they had signed such cards. The Union's agents submitted a proposed
agreement which Cushing said he would read, and left.
Following this visit, Cushing questioned Lee Jones concerning his knowledge of
union activities and asked him if he had signed a union card. Jones admitted that
he had. He told Cushing that he thought when he signed the card he was merely
consenting for the Union's representative to "come in and explain their deal," and
that he had no intention of joining the Union. Cushing said that was "all right";
that it made no difference to him whether the men went union or not, but if they
did "the only thing he could possibly do was to close down"; that he was "not going
to sign a contract with the Union, making a non-union man work with a union man."
In amplification of earlier testimony Lee Jones further testified: "Mr. Cushing felt
it would be far cheaper if we just more or less closed down or held a skeleton crew
on. If there is any major work to be done, to get a bonded and competent steel
company in to do the work, get it over with, than to be paying union wages the year
around."
Jones on one or more occasions repeated the substance of his conversation with
Cushing to his maintenance crew, telling them in effect that Cushing said if they
went union he would close down operations for 7 months of the year.
Cushing also called Gilbert and Lilburn Jones to his office for separate interviews
and questioned each concerning his interest in the Union. According to Gilbert,
Cushing told him that when you were a member of a union you were working for the
union and not your employer; that the "inside" Lodge employees had tried to
organize once but had failed; that he had operated for 9 years without a union and
didn't think it was time to change that; and that if Gilbert was going to join the Union
or any other labor organization there was no place in his organization for Gilbert.
Gilbert further testified on his conversation with Cushing:
He said that we would price him clear out of the ski area business, and he
would have to shut down seven months out of the year. It was economically
impossible for him to operate with union help.
At which time I said that I was sure that I wasn't about to price him out of the
ski area, and I didn't think anybody else working for him was, and that we had
to ratify any contract that the union brought before him to be signed before it
went into effect, and I wanted my job just as bad as the next guy wanted his,
and I wasn't going to price him out of business.
In his conversation with Lilburn Jones, Cushing said, as he had to Gilbert, that in
joining a union Jones would be working for the Union instead of for Cushing, and
"that the economics of the situation in all probability would be more than he could
afford, that he didn't want the union in."
Cushing did not interview the Gillaspies or Farnham with respect to their union
activities. He testified that he had known for some time that Farnham was a member
of a "Carpenters" union.
Cushing, while admitting that he had the conversations in question with Gilbert
and Lee and Lilburn Jones, denied that he said he would refuse to sign a contract
8 The salary agreed on for each was $350 monthly The Gillaspies had previously been
receiving about $175 a month, and Lilburn Jones about $300.
SQUAW VALLEY DEVELOPMENT CORP. 15
requiring nonunion men to work with union men and testified that he said, instead,
that he would not require his employees to join a union pursuant to a union-shop
contract; denied that he told Gilbert there would be no place in his organization for
Gilbert if the latter joined the Union, or that he said he would close down operations
for 7 months of the year if the union came in. He gave a rather elaborate and
discursive account of what was said in these conversations and the nature of his
testimony is such as to make it difficult, if not impossible, to separate what he actually
said from his explanations of what he meant, or had in mind, in stating his position
on the organization of his maintenance employees. Remarks attributed to him about
shutting down operations and about union members working for the Union and not
their employer, he explained in this manner: ". . . if we got in the situation whereby
we had to pay construction wages for our maintenance personnel . . . we would
hire those personnel as a matter of common sense just as infrequently as possible.
It would be so expensive for us. Basically, we do as much as we possibly can
out on contract and the consequence would be that those men, once they were
getting construction wages like any construction job, would be treated like any
other construction personnel; they would go around where the union sent them, as
I understand, they wouldn't necessarily be working for us."
On the basis of the entire testimony, I am convinced that Cushing left no doubt
in the minds of the employees he talked to that he strongly opposed their repre-
sentation by this particular Union, which he regarded as a "construction" union, and
told them in effect that rather than pay them the construction wages which would
be required of him under union contract, he would, for economic reasons, keep
only a skeleton maintenance crew as he had in past years, contracting out the work
which he would otherwise have done with his own employees. I doubt very much
that he offered them the elaborate rationalizations of his remarks that are afforded
us in his testimony. I think when Lee Jones reported to his crew that Cushing had
said he would close down operations for 7 months of the year if they went union,
he was telling them the gist of what Cushing said as he reasonably understood it,
and if Cushing did not exactly say to Gilbert that there would be no place in his
organization for Gilbert if the latter joined a union, what else would Gilbert infer
from his remarks that he could not afford to pay construction wages and therefore
would contract out maintenance work rather than deal with the Union? I also
credit Lee Jones' testimony that Cushing stated he would not sign a contract re-
quiring union and nonunion employees to work together. Obviously, if the outside
maintenance crew was separately organized this would have an impact on student
personnel and personnel hired solely for the winter season, and Lee Jones was by
no means hostile to the Respondent in the giving of his testimony; he was in fact
a very reluctant witness for the General Counsel.
According to Cushing, these interviews with employees concerning union activities
all occurred on June 23, following his conference with the Union's representatives.
On Saturday, June 27, without prior warning or notice of any sort, Cushing dis-
charged Gilbert, Lilburn Jones, and the Gillaspies, telling them that their services
were no longer required inasmuch as he had reached an agreement with the manu-
facturer of a defective cable on one of the ski lifts for its replacement, thereby
rendering extensive upkeep of this cable, previously planned, unnecessary, and had
contracted out certain other work originally planned for the maintenance crew. The
normal pay period for the discharged employees would have been July 5. Cushing
suggested to each that he apply for rehire the following fall, and whatever was due
them in vacation pay was paid The Gillaspies he invited to stay on at the Lodge
as Respondent's guests until they located other employment and they did stay on for
2 days. Jones, who protested that he had given up an opportunity for a summer
teaching job on Cushing's representation of a year-round employment, was invited
by the latter to report back if on investigation he found this job opening foreclosed
to him, and was given some assurances that in that event he would be offered some
other kind of employment with the Respondent. From this, Respondent argues
that Lilburn Jones was not actually discharged but quit. I do not agree. Jones was
unequivocally discharged from the job for which he was hired, and there was nothing
definite about giving him other employment if on investigation he found he had lost
out on his teaching job, other than the suggestion that it might be something inside
the Lodge. Inside the Lodge would, of course, mean outside the unit of the Union's
representation. I think under all the circumstances Jones was under no duty to
report back to test the Respondent's good faith in its suggestions of further and
different employment. He was fired and knew it.
Subsequent to the discharges, the Union's representatives again met with Cushing
and made a vain attempt to get him to discuss the contract proposal they had left
with him on June 23, and to reinstate the discharged employees. The Union then
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketed Respondent's premises in Squaw Valley, and Don Farnham, refusing to,
cross the picket line, was replaced by the Respondent by the hiring of a new employee.
It is Farnham's credited testimony that in a discussion with Buchman, occurring out-
side the picket line soon after -it was established, the latter said, "You know, we are
just as well rid of that bunch and this thing is going to go on for a long time. Mr.
Cushing didn't sign last time and he won't sign this time. You can rely on it, if
it runs until doomsday." Buchman further said on this occasion, "If these boys do
come back to work, say we get it all settled. . I absolutely will not be here. I and
the office force feel the same way about it. We couldn't possibly work with the
boys if they did come back."
Also subsequent to the discharges, at about the time the picket line was established,
there occurred a conversation between Gilbert and Lowell Northrop, Cushing's
advisor on outside operations, in which, according to Gilbert's undisputed testimony,
Northrop said, "I can't understand what in the devil is wrong with Old Cushing. . . .
With all the work load that we have to do this summer, to get involved in a mess
like this. .
By letter dated July 6, 1959, Cushing advised the Union:
This is to inform you that it is the policy of the Squaw Valley Development
Company to contract all construction and maintenance on the ski lifts to con-
tractors recognized by the Building Trades Union.
By letter dated July 21, 1959, he advised a business representative of the Union:
In view of the fact that we contemplate contracting out lift maintenance, we
will not be hiring any lift maintenance employees at all.
In so far as lift ramp personnell [sic] are concerned, you have repeatedly ex-
pressed a lack of interest in them. It may interest you to know that the feeling
is mutual.
I shall be pleased to discuss any mutual problems with you, but only after
the picket line is removed.
By letters dated November 12, 1959, the Respondent offered each of the four
discharged employees reinstatement, commencing November 16, to positions held
during prior winter seasons to continue through the winter season ." The salaries
were to be the same as those last received while in Respondent's employ.
In its ably presented defense to what is obviously a strong prima facie case of
discriminatory discharge, the Respondent relies, principally, on two factors: the
one most stressed is an understanding between Respondent and a steel company
which had supplied it with a steel cable for installation on its main ski lift, referred
to herein as Squaw 1, for the replacement of that cable; the second factor was
Cushing's decision to contract out the construction of a utility building instead of
utilizing the services of his maintenance crew, as previously planned.
An oral agreement by which the steel company assumed responsibility for the
replacement of the steel cable was reached on June 25, and was reduced to writing
several days later. This cable, purchased and installed just prior to the 1958-59 ski
season , gave unsatisfactory service from the start and was the subject of complaints
made by Cushing to the manufacturer, and claims for expenses incurred in its
defective operation, dating back to January 1959. Correspondence and conferences
between the parties occurred at intervals throughout this period to the date of the
oral agreement. Cushing testified that at the time he offered year-round employ-
ment to the employees in question, he had thought it might be possible to continue
to operate with this cable despite its defects but that to do so would require extensive
repairs and upkeep. When the agreement for its replacement was reached, in con-
ference with Northrop, his adviser on "outside" operations, it was agreed that only
the required minimum upkeep would be expended on this ski lift. The Squaw 1
ski lift was in fact continued in operation throughout the summer tourist season,
the only lift in operation during that period, and until actual work on the replace-
ment of the defective cable began in October, when several new employees were
hired for the work required by its replacement.
It is not clear to me just what, if anything, Respondent' s success in obtaining
replacement of the defective cable had to do with Cushing's sudden decision to
contract out the construction of a utility building instead of building it with his
maintenance crew as previously planned. Cushing testified that the utility building
was to be leased to the State of 'California, presumably in connection with the
Olympics, and that there was a deadline requiring that a "substantial" part of the
building be completed by August 1. Further, according to him, it was determined
that the deadline could not be met by having the work performed by his own
maintenance crew. A second reason for the change in plans, as given by Cushing,
SQUAW VALLEY DEVELOPMENT CORP. 17
was that if he used his own men there would be "union trouble with the construction
trades." On this he testified: "We had been the only new construction in the valley
that was not being done with union labor, so we were anxious not to upset the
applecart in any way, and we wanted to contract that job out as well." He thought
the contract on the construction of the utility building was let about June 29.
A further contention advanced by the Respondent that not having interviewed
the Gillaspies concerning their union affiliation, Cushing had no knowledge that they
were involved and therefore could not have been discriminatorily motivated in his
discharge of them, merits but scant notice. Cushing had learned from the Union's
representatives that all of his maintenance men had signed authorization cards, and
this was confirmed by his interviews with Lee Jones, his foreman, Lilburn Jones,
and Gilbert. There was no need for him to search further, for the only reasonable
conclusion he could have reached from these interviews was that the Gillaspies,
also, had signed union cards.
I am also convinced that the agreement on the replacement of the defective cable
had no such impact on outside maintenance projected for that season as to require
the discharge of four employees. Cushing may very well have contemplated that
if Squaw 1 lift remained in operation, it would be necessary to make extensive
repairs because of the defective cable but hardly to the extent of requiring the serv-
ices of four employees for the entire summer season. Since it did remain in opera-
tion throughout the summer, obviously all that was required to make that operation
safe and workable was done, and all that was left undone was the replacement of
defective parts. There is no basis in the evidence for a finding that the projection
of this particular job was a controlling factor in Cushing's decision to augment his
year-round maintenance crew. The evidence is to the contrary. Gilbert was hired
for year-round work before this cable was installed, and in offering Dale Gillaspie
post-season maintenance work, Cushing told him that he would like to have him
stay on as a part of a permanent crew not only because of "the Olympics coming up"
but because Respondent's operation was a "growing organization all year around."
No mention was made of work on the defective cable. Lilburn Jones was retained
primarily to work with Farnham on maintenance of the Lodge grounds and swim-
ming pool, and up to the time of his discharge spent some 80 percent of his time
on lawn-lodge maintenance. Only a week or two before they were discharged, the
Gillaspies had been instructed by Lee Jones to equip themselves with uniforms
suitable for ski-lift operations. That the uniforms were not costly is immaterial.
The point is that their purchase would not have been authorized except that these
two employees were expected to remain on ski lift operations, operations which
were continued throughout the summer, with college students in charge.4
With respect to the letting out on contract of the construction of a utility building,
it does not appear that some new deadline had been set for its substantial comple-
tion of which Cushing became aware only at the time he effectuated the discharges
or that there was any new development at all affecting this construction work other
than that these employees had authorized the Union to represent them. The same
is true of other projects contracted out or postponed. Cushing's fears, suddenly
realized on June 27, that to do construction work with his maintenance crew would
cause "union trouble with the construction trades," also can be attributed to no
new development other than the action of his employees in choosing the Union to
represent them. There is no evidence indicating that he had encountered "union
trouble" in previous years when he had used his own maintenance crew for building
a recreation room and ski rental shop, and now that his maintenance crew was
organized such work performed by them would be performed by union labor. As
a matter of fact, one of the chief objections Cushing voiced to his employees over
having this Union represent them, was that he would be required to pay "con-
struction" wages and rather than do that he would contract out his construction
work. It appears that this is what he did and therein lay his motivation for doing it.
After consideration of all the rather lengthy testimony taken in this matter,5 I
'It was usual for the Respondent to hire several college students for the summer
season, and it is clear from Cushing's testimony that they were assigned to whatever odd
jobs came up There is no reason to infer that when Cushing augmented his regular
maintenance crew in the spring of 1959, he intended to discontinue or curtail his hiring
of college students
5 There was much testimony on just what maintenance work the four employees were
engaged prior to their discharge, what was -projected, and what remained to be done at
the time they were discharged With an operation such as Squaw Valley and in a year
preceding the Olympics, it obviously would be difficult if not impossible to define precisely
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can only conclude that Cushing's agreement with the steel company for the replace-
ment of a defective cable furnished him with what appeared to him to be a plausible
reason for ridding himself of an obligation to recognize and bargain with a union
which he strongly opposed, and that he seized on this as a pretext for effectuating
the discharges in question. I do not of course question his good faith in opposing
representation of his maintenance employees by this Union, nor the validity of his
arguments on what he believed would be the economic consequences of such rep-
resentation, but unfortunately for his point of view, their choice of a bargaining
representative was a right guaranteed his employees under the Act and, regardless
of possible or potential economic effects of such representation on his operations,
he could neither lawfully coerce them in the exercise of that right nor discharge
them to escape his bargaining obligations. I must find, therefore, and do find that
the Respondent discharged Gilbert, the Gillaspies, and Lilburn Jones because of
their union activities and thereby violated Section 8(a)(1) and (3) of the Act.
Cushing's statements to his employees to the effect that rather than deal with the
Union they had designated to represent them, he would contract out work which other-
wise would be assigned to his maintenance crew, was, I think, coercive, whether or
not it was accompanied by Cushing's rationalizations of the economic consequences
he thought would flow from such representation, and whether or not his remarks
be regarded as a "prediction" of the consequences of union representation. They
were in fact a little more than a mere prediction; they constituted a statement of
intent and purpose, and were converted into action and accomplished fact when
Cushing discharged four of his maintenance employees and contracted out work he
had previously intended to assign to them. The full extent of his purpose and
design is further reflected in the letters he addressed to the Union, or agents of the
Union, subsequent to the discharges. I find that Cushing's statements to his em-
ployees that he would curtail operations and contract out maintenance work rather
than deal with the Union they had designated to represent them, constituted inter-
ference, restraint , and coercion within the meaning of Section 8(a) (1) of the Act.6
Interrogation of employees concerning their union activities is not per se violative
Act, inasmuch as the bargaining representatives of these employees invited Cushing
to interrogate them, or at least acquiesced in his announced intention of doing so,
I do not find that his interrogation of Lee Jones, Lilburn Jones, and Gilbert violative
of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent discharged its employees, John Richard
Gilbert, Lilburn Jones, and Dale B. and Fred Arden Gillaspie, because of their
union activities, it will be recommended that the Respondent offer them immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of pay suffered because of the discrimination against them, by payment
to each of a sum of money equal to that which he normally would have been
paid in Respondent's employ from the date of the discharge to the date of Respond-
ent's offer of reinstatement , less his net earnings , if any, during said period. Loss
of pay shall be computed upon a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.8
or set a precise limit on the amount of maintenance work that might reasonably be
undertaken, but Northrup's remark to Farnham subsequent to the discharges is indicative
of what Respondent's adviser on outside operations thought of maintenance requirements
6The complaint did not allege independent 8(a) (1) violations of the Act, but the matter
on which these findings are made was fully litigated.
4 In none of the findings and conclusions herein Is there any reliance on the testimony of
the Union's representatives, Donald Kinchloe and Edward J. Hearne, with respect to
antiunion statements made to them by Cushing
8 At the time these employees were discharged, they occupied full-time year-round jobs.
Respondent's November 12, 1959, offer of unspecified work for the period of the winter
season only was not such an offer of reinstatement as is required to remedy the Respond-
THIELE TANNING COMPANY 19
The Respondent 's trespass upon employee rights under the Act, as disclosed by
the discharges and statements and actions of its president showing a fixed intention
of denying its employees a free choice of union representation is of such character
and scope that in order to make the remedy coextensive with the threat, it will be
recommended that the Respondent cease and desist from in any manner interfering
with, restraining , and coercing its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployees, John Richard Gilbert, Lilburn Jones, and Dale B . and Fred Arden Gillaspie,
thereby discouraging membership in the Union , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
3. By the aforesaid discharges and by threats of contracting out work otherwise
to be assigned to its maintenance employees if the latter became organized, the
Respondent has interfered with, restrained , and coerced its employees in the exercise
of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
ent's unfair labor practices , and not such an offer as the dischargees were required to
accept in order to preserve their reinstatement rights. Seasonal work is not the equivalent
of year-round employment . Stokely Foods , Inc., 91 NLRB 1267, 1289.
Thiele Tanning Company and Leather Workers Union, Local
No. 47. Case No. 13-CA-3270. July 1 2, 1960
DECISION AND ORDER
On January 29, 1960, Trial Examiner Leo F. Lightner issued his
Intermediate Report, and on February 4, 1960, an erratum, in the
above-entitled proceeding, finding that the Respondent had engaged
in certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.i
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
3 The Respondent also requested oral argument. The request is hereby denied as the
record, exceptions , and brief fully present the issues and the positions of the parties
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers, Bean,
and Fanning]
3 The Respondent excepts to the Trial Examiner's ruling admitting in evidence General
Counsel ' s Exhibit No . 7, a copy of a letter dated March 17, 1959. This letter was
128 NLRB No. 5.