American Golf Corp., d/b/a Mountain Shadows Golf Resort. - Decision Summary

American Golf Corp., d/b/a Mountain Shadows Golf Resort (20-CA-26942, et al.; 330 NLRB No. 172) Rohnert Park, CA April 17, 2000. The Board affirmed the administrative law judge's finding that the Respondent unlawfully issued written warnings to Eli Jensen in the first months following his return from layoff in August 1995 and that Jensen was engaged in protected activity on March 4, 1996, when he placed a call to a competitor of the Respondent urging him to attend a city council meeting scheduled for the following day. Contrary to the judge, the Board found that Jensen's distribution of a handbill outside the city council chamber on March 5, 1996, was unprotected under NLRB v. Electrical Workers UE Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).

The Board remanded the case to the judge for a finding as to whether the Respondent established its asserted defense under Wright Line that it would have suspended and discharged Jensen for his unprotected distribution of the handbill even if he had not made the protected March 4 phone call. The Respondent did not dispute that it relied on both incidents as the basis for its actions against Jensen, but it argued at trial and in exceptions to the judge's decision that it would have discharged Jensen for distributing the March 5 flyer even if he had not made the March 4 phone call. Because the judge concluded that both activities were protected, he made no findings with regard to this contention.

From October 1995 through January 1996, Jensen communicated extensively with Rohnert Park city officials and members of the city council regarding his ongoing disagreement with the Respondent over the treatment of maintenance employees at the city-owned public golf course that the Respondent managed. On March 2 and 3, 1996, Jensen prepared and distributed to area residents a handbill complaining about alleged bad-faith bargaining by the Respondent and the city council's failure to intervene and urging residents to attend the city council meeting on March 5 and to support the maintenance employees. On March 4, Jensen tried to speak with the owner of one of the Respondent's competitors, but he was able only to leave a message.

Applying Jefferson Standard, the Board found that Jensen's March 4 phone call to the Respondent's competitor was protected because it was expressly related to the maintenance employees' ongoing dispute with the Respondent and nothing said by Jensen in the course of the call was so flagrantly disloyal, reckless or maliciously untrue as to cause him to lose the Act's protection. The credited testimony is that Jensen simply left a message inviting the owner to the March 5 city council meeting. However, the Board said that Jensen's distribution of the March 5 flyer is "the type of conduct that the Court found to be beyond the protection of the Act in Jefferson Standard." It explained: "Like the handbill at issue in that case, Jensen's March 5 flyer 'made no reference to a labor controversy or to collective bargaining.' 346 U.S. at 468. Like the Jefferson Standard handbill, it made a 'sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income.' Id. at 471. And like the Jefferson Standard handbill, although its ultimate purpose-to put pressure on the Respondent with respect to negotiations with the Union-was lawful, '[T]hat purpose . . . was undisclosed.' Id. at 972, quoting 94 NLRB at 1511."

Charges filed by Laborers Local 139 and Eli Jensen, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at San Francisco, May 13-16, 1997. Adm. Law Judge William L. Schmidt issued his decision July 2, 1998.