Taos Ski Valley, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 2000

332 N.L.R.B. 403 (N.L.R.B. 2000)

TAOS SKI VALLEY, INC. 403
Taos Ski Valley, Inc. and Pavel M. Lukes. Case 28–
CA–14563
September 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On September 18, 1998, Administrative Law Judge
William L. Schmidt issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief in opposi-
tion to the General Counsel’s exceptions.
The National Labor Relations Board has delegated 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, as set forth be-
low, has decided to affirm the judge’s rulings, findings,
and conclusions and to adopt the recommended Order
dismissing the complaint.
In adopting the judge’s determination that the Respon-
dent did not violate the Act when it failed to extend
Pavel Lukes’ employment for the 1997–1998 season,1 we
note that the judge stated that he found the General
Counsel’s case “tenuous at best” and had merely “as-
sumed for decisional purposes” that the General Counsel
had made a prima facie showing that the Respondent’s
decision not to rehire Lukes was motivated by his pro-
tected concerted activity. The judge determined that,
although the Respondent was fully aware that Lukes had
engaged in certain protected conduct, the timing of his
termination was on the “outer cusp of significance” as
related to his protected activities and, significantly, that
the record is void of evidence of animus. Moreover,
crediting the testimony of Respondent’s president and
general manager, Michael Blake, regarding the basis for
not rehiring Lukes, the judge concluded that independent
provocations, wholly separate from any protected con-
duct, motivated his decision not to reemploy Lukes.
Thus, rejecting the General Counsel’s contention that the
Respondent’s stated reasons for terminating Lukes were
pretextual, the judge determined that the Respondent had
met its Wright-Line2 burden and dismissed the complaint.
In adopting the judge’s dismissal of the complaint, we
emphasize that the Respondent’s stated basis for declin-
ing to bring Lukes back for another season—his contin-
ued obvious dissatisfaction and persistent complaints
about the Respondent’s temporary revocation of his
son’s ski pass—was credibly established and fully sup-
ported by the record evidence. Contrary to the General
Counsel’s arguments, Lukes’ involvement in protected
activities did not play any part in Respondent’s decision.
Instead, Lukes’ relentless pursuit of this non-
employment-related issue provided the impetus for his
termination.3

1 The Respondent operates a recreational ski facility located within a
national forest area under the auspices of the U.S. Forest Service.
Beginning in the fall of 1994, and for the next three ski seasons (late
November to mid-April), Lukes was employed by the Respondent as a
part-time ski instructor.
Unless otherwise noted dates refer to events occurring in 1997.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
It is undisputed that in late January, a lift operator re-
voked Lukes’ teenage son’s season lift pass for misbe-
having in line. Lukes immediately and vigorously pro-
tested his son’s treatment. A 2-week series of calls, let-
ters, and meetings resulted in a temporary suspension
rather than a revocation of the pass. Despite this appar-
ent resolution, Lukes filed a civil complaint against the
Respondent in early March, and followed up with an
article in the local newspaper referencing the incident.4
In early April, Lukes extended his quest regarding his
son’s treatment with a letter to the U.S. Forest Service,
the Respondent’s landlord. In mid-June, the Regional
Forester forwarded to the Respondent, a copy of Lukes’
letter. Blake testified that it was this letter, decrying the
Respondent’s treatment of its guests, which convinced
him that Lukes was unable to let go of the ski pass inci-
dent and that there was no hope that they could re-
establish a mutually satisfactory employment relation-
ship. The letter clearly states that Lukes is not seeking
the Forest Service’s intervention with regard to his par-
ticular employment situation or to more general working
conditions at the facility, but was a complaint and request
for intervention over the Respondent’s treatment of his
son and other paying guests of the facility. This was a
matter completely separate from and unrelated to Lukes’
earlier protected activities on behalf of a union. There-
upon, some 5 months after suspending his son’s pass, the
Respondent reasonably determined that Lukes’ implaca-
bility over the incident was incompatible with his contin-
ued employee status and decided not to offer him a posi-
tion for the next season. Upon these facts, we find that
the Respondent committed no unfair labor practice in
terminating Lukes.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
3 There is evidence that Lukes’ son receives at least a price reduction
in his ski pass as an emolument of Lukes’ employment. However, the
General Counsel does not rely upon this or pursue it in an effort to
show an employment nexus. Thus, we do not pass on this issue.
4 Blake testified that he was not served notice of the legal proceed-
ings and that he learned of the suit by reading about it in the newspaper.
332 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404

Brendon Riley, Esq., for the Acting General Counsel.
Pavel M. Lukes, Pro Se, of Taos, New Mexico.
John A. Mitchell, Esq. (Mitchell & Mitchell), of Santa Fe, New
Mexico, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I
heard this case in Albuquerque, New Mexico, on April 13,
1998. Pavel M. Lukes (Lukes) filed the underlying NLRB
charge on August 5, 1997,1 and the Regional Director for Re-
gion 28 issued the complaint on September 26. The complaint
alleges, in essence, that Taos Ski Valley, Inc. (Respondent or
Company) violated Section 8(a)(1) and (3) of the Act by refus-
ing to rehire Lukes for the 1997–1998 ski season.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I have
concluded that the Acting General Counsel failed to prove that
Respondent violated the Act, as alleged, based on the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a ski facility near
Taos, New Mexico. During the 12-month period preceding the
issuance to this complaint, Respondent’s gross sales exceeded
$500,000 and its direct inflow exceeded $2000. Accordingly, I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that it would effectuate the purposes of the Act for the Board to
assert its statutory jurisdiction to resolve this labor dispute. I
further find that Local Union No. 16, Laborers International
Union of North America, AFL–CIO (Union), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Facts
Respondent operates a recreational skiing facility and ski
school on land situated in the Carson National Forest. The
parents of Michael Blake, Respondent’s current president and
general manager, established the facility in 1955. Because of
its location on public land administered by the U.S. Forest Ser-
vice, Respondent must conduct its operations in accord with the
terms and conditions set forth in the special use permits origi-
nally issued prior to the time Respondent established the facil-
ity. Consequently, Forest Service agents conduct regular safety
and permit compliance inspections of Respondent’s operations
and also conduct an annual overall compliance evaluation.
Blake has overall responsibility for the facility’s operations.
Other key managerial personnel include Bill Etchemendy, the
mountain operations manager; Max Killinger, the ski school
director; and Ann McGee, the director of human resources.
Respondent is a major employer in the Taos area. It employs in
the neighborhood of 700 employees at the peak of the ski sea-
son (about Thanksgiving to mid-April) but only 80 to 90 em-

1 All dates refer to the 1997 calendar year unless otherwise indicated.
ployees work full-time on a year-round basis. None of Re-
spondent’s employees have ever been represented by a labor
organization for collective-bargaining purposes and, according
to Blake, Respondent has never before been involved in a labor
dispute. Despite its size, Blake characterizes Respondent as a
“family” operation as it has employed, in some cases, persons
spanning three generations of local families.
Respondent provides skiing lessons for its customers through
the Ernie Blake Ski School, named for Respondent’s founder,
and reputedly one of the more outstanding ski schools in the
country if not the world. Killinger oversees the ski school op-
erations. The school employs a group of supervisors, referred
to in-house as “homeroom” supervisors, and well over 100 ski
instructors. Although all of the instructors work on a seasonal
basis, about 90 instructors work full time during the season and
20 to 30 more work on a part-time basis. The vast majority of
the ski instructors return season after season. Typically, in-
structors desirous of work, the following season, assume that
they will be recalled unless advised otherwise at the conclusion
of the season.
Charging Party Lukes moved to the Taos area in 1994 and in
short order, became a licensed real estate broker and building
contractor. In the fall of 1994, Respondent hired Lukes as a
part-time ski instructor. Lukes worked three consecutive sea-
sons as a part-time instructor but on July 24, Blake advised
Lukes that he would not be recalled for the 1997–1998 ski sea-
son. Respondent’s motive for refusing to recall Lukes gives
rise to the core issue to be decided here.
The General Counsel contends that Lukes’ union and con-
certed activities motivated Respondent’s adverse action against
him. The undisputed evidence shows that Lukes, following
informal discussions with several employees, telephoned sev-
eral labor organizations in an effort to obtain information about
organizing Respondent’s ski instructors. Sometime in January,
Arnold Vigil, the Union’s agent in Albuquerque, agreed to
assist Lukes in organizing the ski instructors. Between that
time and early March, Lukes and Vigil conversed by telephone
several times and finally concluded arrangements for Vigil to
meet with the interested ski instructors at a location in Taos.
Lukes concedes that he acted alone during these early telephone
contacts with Vigil and that no one had knowledge of his ef-
forts until early March.
In the meantime, Lukes became openly critical of Respon-
dent’s operations. Two incidental events precipitated Lukes’
disclosure of his general disdain for the management style of
Respondent’s executives for Killinger. The first, and least sig-
nificant event, occurred when a brief article about employee
turnover appeared in the January 14 edition of As the Bullwheel
Turns (Bullwheel), an employee newsletter prepared by McGee
and distributed with the employee paychecks. In sum,
McGee’s article related that the number of returning employees
had declined from approximately 90 percent in 1984 to a low of
60 percent in 1997. McGee attributed this decline to the in-
creasing size of Respondent’s workforce and “the changing
demographics of Taos County.” The article concluded by so-
liciting employee “thoughts” on this matter.
Lukes responded to the article by a letter dated January 21, a
copy of which he also posted in the employee locker room.
TAOS SKI VALLEY, INC. 405
Lukes’ letter took issue with McGee’s “changing demograph-
ics.” He argued that Respondent’s management should exam-
ine itself for answers to the increasing turnover problem. He
asserted that the rate of employee turnover “is commonly re-
garded in business circles as a good barometer of companies’
management of human resources.” He further argued that
“high turnover . . . . ought to prompt a company to reflect upon
it’s [sic] self, it’s [sic] management philosophy, structure and
how that structure is staffed from the ground up.” Lukes fur-
ther asserted that a department-by-department examination of
the turnover problem “will bring to light where there is a prob-
lem with the mid-level management and why.” Finally, Lukes
challenged Respondent, in effect, to survey other area employ-
ers to determine if they experienced similar turnover problems
and suggested that at least one employer did not have that prob-
lem.
Blake conceded that Lukes’ letter, in effect, struck a nerve in
the executive suite. He claimed that he favored printing Lukes’
response in the Bullwheel but “others” opposed doing so on the
ground that the letter was “too contentious.” Blake admittedly
acceded to the wishes of those who opposed its publication
including, undoubtedly, McGee. Although Respondent refused
to publish the letter, there is no evidence showing that any
manager or supervisor ever criticized the letter publicly or oth-
erwise spoke to Lukes about its content or tone. However,
Lukes claimed without contradiction that a ski school supervi-
sor informed him about an inquiry from McGee concerning
Lukes’ value to the ski school shortly after he wrote this letter.
Lukes interpreted McGee’s inquiry as an indirect response to
his letter.
The second and more significant event occurred 6 days after
Lukes wrote his letter to McGee and its aftermath continued
even beyond the time that Blake notified Lukes that he would
not be recalled for his fourth season. On January 27, one of
Respondent’s ski lift operators seized the season pass of Lukes’
14-year old son Paul and ordered him off the slope immediately
allegedly for misbehavior around a ski lift. According to
Lukes, the ski lift operator unnecessarily removed the pass
from Paul forcibly. Whatever the case, Mountain Operations
Manager Etchemendy informed Lukes’ son before he left the
facility that his pass would be revoked for 2 weeks.
After hearing his son’s account of the incident that evening,
Lukes became indignant. The following day he went to Re-
spondent’s facility seeking to meet with both Blake and Etche-
mendy but both were unavailable. On January 30, Lukes called
Blake’s office and left a phone message but received no re-
sponse. The following day Lukes faxed a letter to Blake re-
counting his several failed attempts to contact both Blake and
Etchemendy, and demanding the “immediate return” of his
son’s pass. That same day Blake responded by a letter noting
that Etchemendy had been prepared to meet with him the pre-
vious day and informing Lukes that following a review of
“your son’s case,” Respondent found “no reason to return the
pass at this time.” On February 4, Lukes left a note with Ski
School Manager Killinger recounting his unsuccessful effort to
meet with Blake that day or the following day and requesting
the opportunity to meet with Blake and Paul’s “accusers eyeball
to eyeball” the following Monday.
Lukes, his son, Blake, and Etchemendy all met in Blake’s of-
fice on February 10. Lukes asserted that the seizure of his
son’s pass should not have occurred without some form of due
process and consultation with him in his parental capacity.
Blake asserted that the matter was strictly contractual requiring
no due process. It further appears that Lukes’ son provided his
account of the January 27 incident and that either Blake or
Etchemendy recounted the reports received from the ski lift
operator and other employees about the events that day. Lukes
questioned the absence of his son’s accusers at the meeting and
their accounts. By the conclusion of the meeting Blake agreed
to review the matter one more time and advise Lukes of his
decision in a couple of days.
Later that day, Lukes sent a lengthy letter to Blake further
explaining his position and charging that “the man who re-
moved [his son’s] pass has fabricated [a] great majority of his
‘story’ subsequent to his actions in order to justify his inexcus-
able behavior.” In order to resolve the divergent accounts of
the incident, Lukes offered to pay for lie detector examinations
of his son and the operator who seized the pass in order to pre-
vent “an employee who lies and files false reports from becom-
ing . . . . somewhat of a liability to [Respondent], if he has not
already became one.” Blake did not respond to this letter.
On February 12, Lukes wrote another letter to remind Blake
of his promise to advise Lukes about the results of his further
review in a couple of days. On February 14, Blake responded
by fax, advising that Paul’s pass would be returned on February
21 “subject to the condition that there be no further incidents.”
The fax further advised that Paul would be “welcome to pur-
chase tickets in the meantime.”2
Lukes received his annual performance review on February
19. Although instructor reviews appear to be a consensus
evaluation of all supervisors, his homeroom supervisor met
with Lukes to discuss the review. Lukes received below aver-
age ratings in three of the five review categories, an average
rating in another category and an average to good rating in the
remaining category. Because Lukes’ failed to teach an ex-
pected number of classes, the principal criticism of his per-
formance related to his motivation as an instructor. Even
though Lukes’ homeroom supervisor commented that the work
he did do was satisfactory, he also added this observation: “Ob-
viously it is hard to divorce problems with upper management
from ski school—but you must try. We do not care about all
that.” Lukes conceded that this remark undoubtedly related to
his support for his son rather than to any union or concerted
activity as management would not have known of his protected
activities at that time. For their part, Respondent’s officials
conceded that Lukes’ review, though not stellar, would permit
his recall.
On March 3, Lukes filed a civil complaint against Respon-
dent in the Taos County Magistrate Court, claiming a breach of
contract by virtue of the revocation of his son’s season skiing
pass without cause on January 27. Lukes sought $5000 in
compensation for the monetary losses he and his son incurred,

2 There is evidence that prior to this time Paul purchased a daily ski-
ing ticket to ski with his sister, Andrea, but that he nonetheless was
barred from skiing when he appeared at a lift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
and the emotional distress and loss of reputation caused by the
revocation. Respondent, through its attorney, answered the
complaint allegations, and filed a counter claim for $5000 in
attorney’s fees and costs for defending the suit. This matter
lingered until December 23 when the magistrate judge granted
Respondent’s motion to dismiss without attorney’s fees or
costs.
That same day Lukes also posted and distributed flyers at
Respondent’s facility inviting Respondent’s employees to a
meeting on March 12 with Union Agent Vigil. Among other
places, he posted copies in the employee locker room, on the
bulletin board normally reserved for Respondent’s notices to
employees located adjacent to the time clock and elevator to the
executive suite, on the windshields of automobiles in the park-
ing lot, and at other places throughout the community. The
flyers stated that “[t]ogether we can organize TSV employees
in a labor organization which will represent us, and protect our
dignity, interests and rights” and invited employees to tele-
phone Lukes for further information. In addition, the flyer
announced Lukes’ appearance on a local radio program on
March 28, invited employees to call in during that program and
stated that “TSV, Inc. declined participation in the debate” on
the radio. Lukes distributed and posted a similar flyer on
March 12, the day of the meeting.
Both Blake and Killinger claim that they first learned of the
nascent union activity from Lukes’ March 3 notice. The no-
tices posted on the Respondent’s bulletin board near the time-
clock were not removed. Neither Blake nor Killinger ever
spoke with Lukes about the union organizing effort. Likewise,
there is no evidence that any manager or supervisor ever spoke
to any other employee about the flyers or any of the union ac-
tivity. In fact, Blake claims that he instructed the supervisors
and managers to listen to whatever an employee might say to
them about the effort at union organizing but to express no
opinions about the subject. However, Blake admitted that if he
had known of it he would have been compelled to take action
against Lukes for “papering” automobiles in the parking lot
because of a strict Forest Service regulation prohibiting that
activity by anyone.
On March 6, Lukes’ pointedly critical guest editorial ap-
peared in The Taos News, a weekly, general circulation. The
newspaper serving the Taos area. Lukes’ editorial charged that
the morale of Respondent’s employees was “at an all time low”
because they were “fiscal hostages ruled and controlled through
meager pay while in fear of being summarily dismissed without
recourse.” He then recounted that his “own troubles began”
after responding to the article about employee turnover. The
only response, he claimed was an inquiry about his value to the
ski school, followed a week later by the suspension of his son’s
skiing privileges. Lukes reported that he filed a suit in magis-
trate court over the latter matter. He concluded by asserting
that it was “time for the emperor to realize that he has no
clothes” and for the employees to form “an organization which
will stand up for dignity and respect” in order to “bring the
mountain out of a coma induced by years of autocracy . . . . “
Although Blake admitted that he eventually studied the en-
tire editorial, the matter of greatest importance to him on his
first reading concerned the filing of the lawsuit. Blake asserted
that, until he read about it in newspaper, he was unaware of the
lawsuit as Respondent had not yet been served with a notice of
the complaint. Hence, Blake took immediate steps to insure
that Respondent’s local attorney filed a timely answer in the ski
pass case. According to Blake, he had learned through the local
grapevine that Lukes had received a default judgment in an-
other case unrelated to Respondent in circumstances suggesting
that the complaint had not been served.
About 28 employees attended the March 12 meeting. Both
Vigil and Lukes addressed those in attendance and answered
questions. Union authorization cards were distributed. In addi-
tion, Lukes appeared on the local radio program mentioned in
the flyer to promote the organizing project and, for a while,
efforts were made to get additional cards signed following the
meeting. However, Lukes conceded that this initial organizing
effort failed to generate enough interest among employees to
proceed further so he then began making inquiries about orga-
nizing with other unions representing employees at the
Breckenridge and Vail ski resorts in Colorado. No evidence
shows that Respondent’s agents became aware of what oc-
curred at the March 12 meeting or Lukes’ subsequent activities.
Blake even claims that he did not hear Lukes’ guest appearance
on the radio program.
At the conclusion of the ski season in April, no manager or
supervisor gave Lukes any impression that he would not be
recalled for the following season. In fact, Lukes received a
letter, presumably sent to most other instructors, thanking him
for his efforts during the past season and he subsequently re-
ceived an invitation to Respondent’s summer employee picnic
that summer. In short, every indicator suggested that Lukes
would be recalled.
In the meantime, Lukes wrote a letter dated April 4 to the
Regional Forester complaining about Respondent’s operation
of the ski resort. Lukes asked the Forest Service to address
Respondent’s “long, self perpetuating autocratic pattern of
behavior” during its “annual review process” and to insure that
“safeguards i.e., due process, grievance, and appeal process etc.
are mandated . . . . in the interest of protecting the public from
arbitrary and unilateral actions by the abusive authority of your
tenant.” Lukes conceded that, to him, it was “not clear how
your agency can assist employees with similar safeguards [but
that] the employees have other means to seek protection against
unfair and abusive management, which is being pursued as we
speak.” Lukes then recounted the story of his move to Taos,
his employment with Respondent, and the fact that he had come
to believe that Respondent’s employees were “fiscal hostages . .
. . ruled and controlled through mediocre pay and fear of being
summarily and brutally dismissed,” all similar in tone and
phrasing to his editorial in The Taos News. Thereafter, Lukes
asserted his belief that his “troubles” began when he responded
to the Bullwheel article and implied, at least, that Respondent
retaliated against him for his criticism by revoking his son’s ski
pass. After detailing the ski pass matter at length, Lukes re-
quested that the Regional Forester “address the issues raised in
this letter” because his problem was “not an isolated incident,
but merely the tip of an iceberg of a big problem with [Respon-
dent’s] conduct . . . . “
TAOS SKI VALLEY, INC. 407
Although Lukes’ letter to the Regional Forester indicates he
copied “various individuals and organizations,” no evidence
shows that he sent a copy to Respondent. Instead, Respondent
learned of the letter when it received a copy from the Forest
Service sometime around the middle of June.3 Blake regarded
Lukes’ letter to the Forest Service as the last straw. He wrote
to Lukes on July 23 advising him that Respondent “will not
offer you employment for the 1997–1998 season.” Blake ex-
plained to Lukes only that this action was being taken because
“[t]here appears to be no foundation upon which to build a
mutually satisfactory employment relationship.” At the hear-
ing, Blake explained the basis for his decision as follows:

Q. Mr. Blake, what involvement, if any, did Mr.
Lukes’ son’s ski pass incident have in connection with the
decision not to hire him for the ‘97/98 ski season?
A. His—his behavior over that incident, his very angry
behavior, [and] the fact that he would not let it go, did
in—did constitute or make up one element in the determi
nation that he would not be hired for that season that you
just referred to, ‘97/98.
. . . .
JUDGE SCHMIDT: When you said there was one
element, were there other elements?
THE WITNESS: Yes, sir.
JUDGE SCHMIDT: Can you put that in a nutshell?
Well, what were they?
THE WITNESS: The other elements were the lawsuit.
My personal belief is you don’t—you don’t sue your em-
ployer. I felt that was really significant. If you can’t work
this out, you can’t work it out, but you don’t sue your em-
ployer, and I—I don’t separate his son from the fact that
he’s the one that sued us, asked for damages, so on.
And, I have to tell you, we haven’t reached it yet, but
the straw that—for me that broke the camel’s back was
when he started the forest service’s mule’s tail about we
weren’t doing our job. We’re very sensitive about that.
The forest service is our landlord, and when you twist
the old mule’s tail and get them to go after us for some-
thing, based largely on this incident that we were just talk-
ing about with his son, the forest service can’t do anything
about employees, or your relations with your employees,
any of those things. But they sure are your regulatory
agency, and when you start going after them to take action
against us, that was a major, major element for me. [Em-
phasis added.]
B. Further Findings and Conclusion
Section 8(a)(3) prohibits employers from discriminating in
regard to an employee’s “tenure of employment . . . . to encour-
age or discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by taking adverse actions

3 The copy of the letter in evidence (R. Exh. 34) bears the June 9
date stamp of the Regional Forester’s office. The date of receipt re-
flected by the date stamp suggests, in the absence of any other explana-
tion, that there may well have been a considerable delay between the
time preparation of the letter commenced and the time Lukes mailed it.
affecting an employee’s employment status for antiunion mo-
tives. Consec Security, 325 NLRB 453 (1998).
Under the causation test established by the Board in Wright
Line, 251 NLRB 1083 (1980), and approved by the Supreme
Court in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated the employer’s adverse action.
Where the General Counsel establishes a prima facie case, the
burden of persuasion shifts to Respondent to establish that the
same adverse action would have been taken even in the absence
of the employee’s protected activity. Best Plumbing Supply,
Inc., 310 NLRB 143 (1993). To meet this burden “an employer
cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the pro-
tected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984).
I have assumed for decisional purposes that the General
Counsel met the burden of proving a prima facie case. How-
ever, I hasten to add that General Counsel’s prima facie case is
tenuous at best. Although Lukes clearly engaged in a consider-
able amount of high profile protected conduct well known to
Respondent, the case is completely void of expressed animus
on Respondent’s part other than Lukes’ eventual termination.
Simply put, no evidence shows that any manager or supervisor
spoke a single word to Lukes or any other employee related to
any of the protected activity, which occurred here. Moreover,
the complaint charges no independent violations of Section
8(a)(1) and the counsel for the Acting General Counsel con-
ceded at the hearing that he had no such evidence. Although
the Board can, and on occasion does, infer animus from the
alleged discriminatory adverse actions alone, such cases almost
invariably reflect that the unlawful conduct occurred close in
time to either the commencement of the protected activity or
the occurrence of some significant protected conduct. In my
judgment, even the timing of Lukes’ termination in relation to
the bulk of his protected activity would be on the outer cusp of
significance for purposes of ascribing an unlawful motive to
Respondent.
As noted above, the Wright Line causation test requires that I
assess and determine in this case whether Lukes’ termination
would have occurred even in the absence of Lukes’ protected
activity. Viewing this record stripped of Lukes’ protected ac-
tivity, I am convinced that he would have been terminated in
any event. Lukes’ concurrent activities on behalf of his son,
while understandable conduct of a parent, simply does not fall
within the scope of the Act’s protection and the evidence here
shows that those unprotected activities plainly played the most
significant role in his termination. By first suing his employer
for damages based on the ski pass incident and then complain-
ing to the Forest Service, in effect Respondent’s landlord and
regulator, concerning its poor treatment of guests, in particular
his son, Lukes unquestionably annoyed his employer enough to
bring about his termination. This is especially true where, as
here, Respondent felt that it had satisfactorily resolved the ski
pass matter well before Lukes took both actions. I therefore
credit Blake’s unequivocal assertion that he would have termi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
nated Lukes in any event. In my judgment, the complete ab-
sence of any evidence that Respondent otherwise interfered
with protected employee activity lends strong support to this
conclusion. No basis exists to conclude, as General Counsel
asserts, that Lukes’ termination because of his persistent pursuit
of the ski pass matter is a pretext designed to mask an unlawful
motive. For these reasons, I will recommend dismissal of this
complaint.
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. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Acting General Counsel failed to prove that Respon-
dent violated the Act as alleged in the complaint and notice of
hearing dated September 26, 1997.
On these findings and conclusion sof law, and on the entire
record, I issue the following recommended4
ORDER
The complaint is dismissed.

4 If no exception s are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses. All pending motions inconsistent with this recommended Order
are denied.