Claremont Resort & Spa

National Labor Relations Board - Board Decisions

Jun 16, 2005

344 N.L.R.B. 832 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 105
832
KSL Claremont Resort, Inc. d/b/a Claremont Resort
and Spa and Hotel Employees and Restaurant
Employees Union, Local 2850, Hotel Employees
and Restaurant Employees International Union,
AFL–CIO. Cases 32–CA–20417 and 32–CA–
20433
June 16, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 28, 2003, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified.1
We agree with the judge, for the reasons she states,
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing to recognize or deal with Leslie Fitz-
gerald as a union representative for unit employees and
by denying Fitzgerald access to the facility in order to
perform her collective-bargaining duties.2
We also agree with the judge’s finding that the Re-
spondent violated Section 8(a)(1) of the Act by its Feb-
ruary 7, 20033 issuance and subsequent maintenance of a
rule prohibiting “negative conversations” about associ-

1 The judge inadvertently failed to include in her recommended Or-
der the notice mailing provision in the event the Respondent closes.
We correct this omission here.
There are no exceptions to the judge’s ruling granting the General
Counsel’s motion to strike Respondent’s erratum to its posthearing
brief.
Chairman Battista and Member Schaumber note that, in ruling on
the motion to strike, the judge cited Elevator Constructors Local 2
(Unitec Elevator Services Co.), 337 NLRB 426 (2002), for the proposi-
tion that “excusable neglect” justifying untimely filing of documents
“requires extenuating circumstances rather than a mistake.” In the
Chairman’s and Member Schaumber’s view, the holding in Unitec
Elevator was more limited: “the miscalculation of a filing date, absent a
showing of extenuating circumstances, does not constitute excusable
neglect” under the Board’s Rules and Regulations. 337 NLRB at 426.
2 Member Schaumber agrees with his colleagues that Fitzgerald’s
behavior in attempting to push her way into a meeting between former
employee Dolma and Manager Dickson was not so severe as to justify
Respondent’s refusal to deal with her as a union representative. He
finds it unnecessary to rely on any implication in the judge’s decision
that Respondent would have no grounds for objection if Fitzgerald
engaged in like conduct during contract negotiations.
3 All dates are in 2003 unless otherwise indicated.
ates or managers.4 In so concluding, we apply Lutheran
Heritage Village-Livonia, 343 NLRB No. 75 (2004). In
that case, we held that where a rule does not expressly
restrict Section 7 activity, the rule will violate Section
8(a)(1) only upon a showing that: “(1) employees would
reasonably construe the language to prohibit Section 7
activity; [or] (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict
the exercise of Section 7 rights.” Lutheran, supra, slip
op. at 2. We find that the rule’s prohibition of “negative
conversations” about managers would reasonably be
construed by employees to bar them from discussing
with their coworkers complaints about their managers
that affect working conditions, thereby causing employ-
ees to refrain from engaging in protected activities. Ac-
cordingly, the rule is unlawful under the principles set
forth in Lutheran Heritage Village-Livonia.5
We also agree with the judge’s further finding that the
Respondent did not cure the illegality by its later com-
munication to employees about the rule. In agreeing
with the judge that the Respondent’s May 5 notice to
employees failed to meet the requirements for repudia-
tion established in Passavant Memorial Area Hospital,
237 NLRB 138 (1978), we do not necessarily endorse all
the elements of Passavant. The Respondent’s May 5
notice, however, dealt exclusively with employee rights
to discuss union matters. The notice said that: “We fully
recognize and have repeatedly acknowledged your right
to discuss Union matters at times and in circumstances
that are consistent with our lawful no solicitation poli-
cies.” The Respondent thereby ignored the exercise of
Section 7 rights relating to concerted activity other than
union activity, such as an employee complaining to a
coworker about a supervisor, the gravamen of the unlaw-
ful rule at issue here. Accordingly, while not passing on
all of the aspects of Passavant, we nevertheless agree

4 The Respondent’s rule stated: “Negative conversations about asso-
ciates and/or managers are in violation of our Standards of Conduct that
may result in disciplinary action.” The term “associates” refers to
employees.
5 Member Schaumber does not rely on the unfair labor practices al-
leged in Claremont Resort, Case 32–CA–19883, cited by the judge, as a
basis for finding this violation. Instead, in finding this violation, he
relies on the context in which the rule was promulgated as well as on its
text. The rule was included in a list of 10 employer policies distributed
as a reminder to employees. Some of the policies dealt with customer
service issues such as keeping voices soft and low and pushing linen
carts as quietly as possible. Other policies on the list, however, dealt
with working conditions such as clocking in and out procedures and
required trainings. In the context of these latter policies, employees
would reasonably read the rule prohibiting “negative conversations”
about associates or managers as a prohibition on voicing complaints
about managers generally rather than a restriction only on doing so in
the presence of customers.
CLAREMONT RESORT & SPA 833
with the judge that the Respondent’s May 5 notice did
not cure the Respondent’s unlawful conduct.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Claremont Resort and Spa,
Berkeley, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(d).
“(d) Within 14 days after service by the Region, post at
its facility in Berkeley, California, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 14, 2003.”
Thomas Bell, Esq., for the General Counsel.
Patrick Jordan, Esq. (Jordan Law Group), of San Rafael, Cali-
fornia, for the Respondent.
Timothy Sears, Esq. (Davis, Cowell & Bowe), of San Francisco,
California, for the Union.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. At is-
sue is whether KSL Claremont Resort, Inc. d/b/a Claremont
Resort and Spa (Respondent) violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act),1 by refusing to

6 Member Liebman joins her colleagues in adopting the judge’s find-
ing that the Respondent violated Sec. 8(a)(1) of the Act by issuing and
maintaining the rule prohibiting “negative conversations.” Member
Liebman agrees with the judge’s analysis concerning the rule’s illegal-
ity and the failure of the Respondent’s subsequent notice to satisfy the
requirements of Passavant Memorial Area Hospital, 237 NLRB 138
(1978).
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Sec. 8(a)(5) provides, in relevant part, that an employer must bar-
gain in good faith with the representatives of its employees, regarding
wages, hours, and terms and conditions of employment. Sec. 8(a)(1)
recognize and deal with a designated representative of Hotel
Employees and Restaurant Employees Union, Local 2850, Ho-
tel Employees and Restaurant Employees International Union,
AFL–CIO (the Union). A further issue is whether Respondent
interfered with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) of the Act by maintaining a rule which
prohibited negative conversations about other employees and
management.2
On the entire record, including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by counsel for the General Counsel and for the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a California corporation with an office and
place of business in Berkeley, California, is engaged in the
operation of a hotel and spa. During the 12-month period end-
ing May 16, Respondent derived gross revenues in excess of
$500,000 and purchased and received goods and materials val-
ued in excess of $5000 which originated from outside the State
of California. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent admits and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. BACKGROUND
Respondent is a world-class 22-acre urban luxury resort ho-
tel with an extensive spa and club and a variety of dining facili-
ties. The spa alone occupies 20,000 square feet and contains 35
treatment rooms. Respondent essentially sells luxury and pam-
pering services and a sense of relaxation in a hassle free envi-
ronment. In order to enhance this experience, appropriate em-
ployee behavior is explicitly detailed in a 70-page section of the
employee handbook.4

provides that an employer may not interfere with, restrain, or coerce
employees in the exercise of their Sec. 7 rights: “to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection” as well as the right to refrain from any such activities.
2 All dates are in 2003 unless otherwise referenced. The charge in
Case 32–CA–20417 was filed by the Union on March 5. The charge in
Case 32–CA–20433 was filed by the Union on March 12. Consolidated
complaint issued on May 16. Trial took place in Oakland, California,
on September 4 and 5.
3 Credibility resolutions have been made based upon witness de-
meanor, the weight of respective evidence, established or omitted facts,
apparent probability, and reasonable inferences drawn from the record
as a whole. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or
documents or because it was inherently incredible and unworthy of
belief.
4 The facts set forth in this paragraph were administratively noticed
at the request of the parties. See decision of Judge Gerald H. Wacknov,
Claremont Resort and Spa, JD(SF)-39-03 (June 6, 2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
On April 21, 1998, Respondent and the Union5 executed a
collective-bargaining agreement covering an appropriate unit of
approximately 135 food and beverage service employees.6 On
September 15, 2001, this agreement expired. At the time of
trial no replacement agreement had been reached, although
since September 2001 the parties had engaged in about 20 ne-
gotiation sessions for a successor contract. The Union also
represents about 65 housekeeping and front desk employees
pursuant to a separate contract. In late 2001, the Union began
an organizational campaign involving approximately 130 spa
employees. At the time of trial, this campaign was continuing.
III. REFUSAL TO DEAL WITH UNION REPRESENTATIVE
A. The Refusal
On January 9, the Union designated Leslie Fitzgerald, one of
their staff representatives, to deal with Respondent in negotia-
tions and grievances.7 On January 14, Respondent refused to
deal with Fitzgerald “regarding labor relations, grievances or
other union matters.” Respondent noted that it would be
pleased to continue dealing with Stephanie Ruby, secretary-
treasurer of the union; Lead Negotiator Mike Casey, chief ex-
ecutive officer of Local 2 in San Francisco; Wei-Ling Huber,
vice president; and Liz Perlman, union representative and or-
ganizer; all of whom had participated in prior negotiations and
were familiar with the terms of the current and expired con-
tracts.
B. Respondent’s Reason for the Refusal
Fitzgerald worked in Respondent’s spa from 1994 until Oc-
tober 2002. Throughout this time, Fitzgerald worked as a mas-
sage therapist, body treatment technician, attendant, and reser-
vations agent. Since about January 2002, Fitzgerald was an
open and active union proponent in the spa organizing effort
and a member of the employee organizing committee.
There is no dispute that on October 5, 2002, Fitzgerald and
other employees gathered in support of spa employee Kalsang
Dolma, who wanted to rescind her resignation. Fitzgerald at-
tempted to push past Security Guard Cooper in order to enter
Spa Manager Ilene Dickson’s office, where Dolma was meeting

5 Respondent denies that the Union is the designated exclusive col-
lective-bargaining representative of the food and beverage service
employees and denies that the Union has been recognized as such rep-
resentative. I find, nevertheless, that Respondent has dealt with the
Union as the exclusive collective-bargaining representative of these
employees and entered into a collective-bargaining agreement recog-
nizing the Union as the sole representative of the employees. Respon-
dent presented no evidence to the contrary. Accordingly, I find the
allegations of the complaint proven.
6 Although Respondent denies the appropriateness of the collective-
bargaining unit, I find that by entering into this agreement with the
Union, Respondent agreed that the unit was appropriate for collective
bargaining within the meaning of Sec. 9(a) of the Act.
7 According to Fitzgerald and other union negotiators, Fitzgerald at-
tended a negotiating session on January 9. She arrived at about 1:30
p.m., when the lunchbreak ended, and did not speak and was not en-
gaged in the negotiation process. She left at 2 or 2:15 p.m. At the end
of bargaining that day, the chief negotiator for Respondent said that just
because nothing had been said about Fitzgerald’s presence did not
mean that Respondent agreed she could be there.
with Dickson, even though Fitzgerald knew that Dickson did
not want Fitzgerald to enter the office and Dickson told Fitz-
gerald repeatedly that she was not welcome. There is no dis-
pute that when Fitzgerald attempted to enter the office, Fitzger-
ald’s and Cooper’s shoulders collided. Neither was injured or
lost their balance. There is also no dispute that Fitzgerald used
profanity during the incident and that she was insubordinate in
refusing to follow Dickson’s directive not to enter Dickson’s
office.
General Manager Todd Shallan suspended Fitzgerald on Oc-
tober 8, 2002, and discharged Fitzgerald on October 23, 2002.
Shallan discharged Fitzgerald based on written and oral first-
hand reports received from Dickson, Front of the House Man-
ager Jadd Elkeshen, Security Guard Reginald Cooper, and Se-
curity Director Robert Hand, as well as his review of notes
taken during Human Resources Director Suzy de Sousa’s sub-
sequent interview of Fitzgerald and his discussion with de
Sousa about that interview. Specifically, Shallan discharged
Fitzgerald for egregious conduct in violation of the standards of
conduct (attempted bodily injury to Security Guard Reginald
Cooper,8 publicly embarrassing behavior during an encounter
with Spa Manager Dickson,9 profanity addressed to Dickson
during the same incident,10 insubordination in refusing to fol-
low Dickson’s directions,11 and leaving her work without per-
mission12) and secondarily for Fitzgerald’s refusal to take any
responsibility for the incident or to show any remorse or ac-
knowledgement that her behavior was wrong.
Following her discharge, Fitzgerald, who was already a part-
time organizer for the Union, became a full-time union organ-
izer and representative. The Union filed an unfair labor prac-
tice charge regarding Fitzgerald’s suspension and discharge. It
was dismissed for insufficient evidence on December 19, 2002.
The Union’s appeal was denied on February 11, because the
investigation failed to establish that Fitzgerald was disciplined
for conduct protected by Section 7 of the Act.13

8 Standard of conduct 1 sets forth unacceptable conduct as follows:
“Fighting with or attempting bodily injury to another, threatening,
intimidating, coercing or interfering with anyone connected with the
Company or its business.”
9 Standard of conduct 5 states, in relevant part, that it is unaccept-
able to engage in, “Unethical, immoral or indecent behavior, or behav-
ior that publicly embarrasses the Company.”
10 Standard of conduct 8 makes it unacceptable to use “profane, dis-
courteous, abusive or rude language or action against another em-
ployee, supervisor, manager, guest or to others.”
11 Standard of conduct 7 states, in pertinent part, “Insubordination is
defined as willful disregard or disrespect toward a supervisor or repre-
sentative of management or failure to comply or perform work as re-
quired or assigned.”
12 Standard of conduct 14 states, in part, that it is unacceptable to,
“take an unauthorized break or otherwise leav[e] the job without per-
mission.” The uncontroverted evidence herein is that Fitzgerald’s work
ended prior to the incident leading to her discharge.
13 Specifically, the appeal was dismissed because,
It could not be concluded that Ms. Fitzgerald’s insistence on meet-
ing with a manager was protected conduct, particularly where Ms.
Fitzgerald was informed that the manager did not want to meet with
her. Further, there was insufficient evidence to establish that the
Employer treated Ms. Fitzgerald in a disparate manner from other
employees when it suspended and subsequently terminated her.
CLAREMONT RESORT & SPA 835
Analysis
In general, both unions and employers must bargain in good
faith with the representatives chosen by the other party. How-
ever, when the presence of a representative of one party will
create ill will and render good-faith negotiations impossible, the
other party is justified in refusing to meet with that representa-
tive. King Soopers, 338 NLRB 269, 269 (2002), quoting
KDEN Broadcasting Co., 225 NLRB 25, 35 (1976).
Discharged employees may not be excluded from negotia-
tions simply because they no longer work for the employer.
See Caribe Staple Co., 313 NLRB 877, 889 (1994), citing Vi-
bra-Screw, Inc., 301 NLRB 371 (1991); Colfor, Inc., 282
NLRB 1173 (1987), enfd. 838 F.2d 164 (6th Cir. 1988), over-
ruled in part on other grounds Van Dorn Plastic Machinery
Co., 300 NLRB 278 (1990). However, a discharged employee
who, without provocation, physically assaulted the personnel
director at the beginning of a grievance proceeding was held
properly excluded from negotiations. See Fitzsimmons Mfg.
Co., 251 NLRB 375, 379 (1980), enfd. sub nom. Auto Workers
v. NLRB, 670 F.2d 663 (6th Cir. 1982). Similarly, in King
Soopers, supra, a former employee was properly excluded be-
cause in response to a minor scheduling matter, he threw a meat
hook narrowly missing an employee; threw a 40-pound piece of
meat into a saw, breaking the saw’s blade; threw his knife into
a box; threatened a supervisor; and refused to leave when or-
dered to do so.
However, the facts herein are more similar to those in Long
Island Jewish Hillside Community Center, 296 NLRB 51
(1989). In that case a discharged employee was improperly
excluded from negotiations. His actions in pushing and nudg-
ing another employee and uttering obscenities, although not to
be condoned, were provoked. The Board held that the em-
ployee’s presence at negotiations would not create ill will and
make good-faith bargaining impossible. Although Fitzgerald’s
actions were ill advised and, given Respondent’s code of con-
duct, certainly would not be acceptable in relation to customers
of Respondent, the actions upon which Respondent relied to
discharge her do not persuade me that Fitzgerald’s presence at
negotiation would create ill-will or make good-faith bargaining
impossible.
The standards for behavior in negotiations are much different
than the standards of conduct for an employee in a luxury hotel.
Indeed, Respondent concedes this point when it stated at the
hearing that as long as negotiations were held offsite, it would
not be a problem to deal with Fitzgerald in negotiations. There
is no dispute that although negotiations occur in Respondent’s
conference rooms, hotel and spa guests are not impacted by
these negotiations. There is also no dispute that the 20-
negotiation sessions thus concluded have been heated at times.
Thus, to the extent a negotiator becomes visibly upset, shaking,
or out of control, behavior attributed to Fitzgerald by Respon-
dent’s managers in their memoranda to Shallan, negotiations, in
general, have been known to accommodate such behavior.
Negotiations may also accommodate some profanity. To the
extent that Fitzgerald attempted to push past Security Guard
Cooper and their shoulders collided, this does not impress me
as “violent” behavior or behavior that would reasonably put
others in a position of fear of Fitzgerald.
Moreover, Fitzgerald was employed by Respondent for ap-
proximately 8 years prior to the October 5, 2002 incident.
There is no other evidence of misbehavior on her part. Addi-
tionally, because spa employees are not represented by the
Union, the incident of October 5, 2002, was unrelated to nego-
tiations or contract administration. No one on Respondent’s
negotiating team was involved in the incident.
Finally, although Fitzgerald’s actions on October 5, 2002,
were unprovoked by Respondent, and although the issue of
Dolma’s resignation was viewed as a major issue by her friends
and coworkers, in the general scheme of labor relations, such
an issue is relatively minor. Thus, it must be concluded that
Fitzgerald, in fact, overreacted to Dickson’s refusal to allow her
to be included in Dolma’s resignation interview. However,
these actions alone do not convince me that Fitzgerald’s pres-
ence at negotiations, or on Respondent’s property, would lead
to ill will or make good-faith bargaining impossible.
IV. MOTION TO STRIKE RESPONDENT’S ERRATUM
TO POSTHEARING BRIEF
On October 27, Respondent filed an erratum to its post-
hearing brief. This erratum contained arguments and authori-
ties not previously included in Respondent’s initial, timely
brief. The General Counsel seeks to strike the erratum pursuant
to Rule 102.111(b) and (c).
Respondent opposes the motion to strike stating that portions
of the brief contained in the erratum were prepared prior to the
filing deadline but accidentally omitted from the initial brief.
Respondent also notes that no additional substantive conclusion
was added to the brief. Rather, Respondent asserts that the
heading, “Conclusion,” was merely inserted with no additional
argument.
The lawfulness of the February memorandum and the effec-
tiveness of the May repudiation were not briefed in the initial
brief but were added in the erratum. Further, the conclusion
section was added in the erratum although some of the lan-
guage in the conclusion was present in the initial brief.
The General Counsel’s motion to strike is granted. Pursuant
to Rule 102.111(c) briefs must be filed within “a reasonable
time” following the deadline “only upon good cause shown
based on excusable neglect.” Any party seeking to invoke this
rule, must file a motion stating the ground of “excusable ne-
glect” upon which it relies for requesting permission to file
untimely. Respondent did not do this but sought to circumvent
the rule by denominating its supplemental argument as an erra-
tum rather than an untimely filing. However, an erratum is
appropriate for correcting misstatements or citations—not for
adding additional argument, which is what Respondent’s erra-
tum contains.
In Elevator Constructors Local 2 (United Elevator Services
Co.), 337 NLRB 426 (2002), the Board overruled Postal Ser-
vice, 309 NLRB 305 (1992), and held that “excusable neglect”
would be analyzed pursuant to Pioneer Investment Services Co.
v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993).
The Board also took this opportunity to announce that hence-
forth strict compliance with Rule 102.111(c)’s requirement that
specific facts be set forth with the motion to allow late filing.
Accordingly, because no basis for “excusable neglect” was set
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD836
forth with the erratum, General Counsel’s motion to strike is
granted.
Had Respondent set forth the facts which it proffers in its
opposition to the motion to strike, accidental omission, this
would also be an insufficient basis for allowing a late filing. As
Elevator Constructors, supra, makes clear, “excusable neglect”
requires extenuating circumstances rather than a mistake.
V. RULE PROHIBITING “NEGATIVE CONVERSATIONS”
On February 7, Respondent issued a “Top Ten List” to spa
employees containing the following statement: “Negative con-
versations about associates and/or managers are in violation of
our Standards of Conduct that may result in disciplinary ac-
tion.” On May 5, Respondent issued a statement acknowledg-
ing that the “negative conversation” rule was the subject of
unfair labor practice proceedings. Respondent set forth em-
ployee Section 7 rights and continued,
We wish to make it clear that our suggestion concerning nega-
tive conversations was limited to personal attacks unrelated to
business considerations or issues and that we fully recognize
and have repeatedly acknowledged your right to discuss Un-
ion matters at times and in circumstances that are consistent
with our lawful no solicitation policies.
The memorandum does not admit any wrongdoing and does not
assure employees that Respondent will refrain from committing
future unfair labor practices.
As counsel for the General Counsel notes, Lafayette Park
Hotel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999), held unlawful an unenforced rule which prohibited mak-
ing false, vicious, profane, or malicious statements toward or
concerning the employer of any of its employees. General
Counsel seeks to distinguish Tradesmen International, 338
NLRB 460 (2002), in which the Board held lawful an employer
rule prohibiting disloyal, disruptive, competitive, or damaging
conduct and slanderous statements or statements detrimental to
the employer or its employees. General Counsel notes that in
Tradesmen International, the rule specifically set forth exam-
ples of violative conduct, none of which were examples of con-
duct protected by Section 7. Secondly, General Counsel notes
the rule in Tradesmen International was not issued in response
to a union organizing drive.
Finally, General Counsel notes that Respondent’s rule was
implemented in the aftermath of multiple violations of Section
8(a)(1). In this regard, General Counsel cites Claremont Resort
and Spa, JD(SF)-93-02 (November 25, 2002).14 In that case,
Judge Clifford H. Anderson found, among other things, that
Respondent unlawfully informed employees that they could not
talk to other employees about organizing activity when they
were at work on the clock. Judge Anderson’s decision is pend-
ing at the Board on exceptions.
Although a panel majority held that the rule in Tradesmen
International, supra, was lawful, in agreement with General
Counsel, I find the facts in Tradesmen International are distin-
guishable. As General Counsel notes, the employer therein

14 Administrative notice is taken of this decision at the parties’ re-
quest.
provided examples of conduct which would violate its rule.
Moreover, the employer in Tradesmen International clarified
any potential ambiguities in its rule by providing examples.
Finally, the rule at issue in Tradesmen International involved
disloyalty. It did not specify that conversations alone might
violate the rule. Respondent’s rule, on the other hand, specifi-
cally prohibits conversations about associates or managers
which are negative in tone. No examples are provided.
In Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999), the employer maintained a rule pro-
hibiting making “false, vicious, profane or malicious statements
toward or concerning [the hotel] or any of its employees.”
Relying on Cincinnati Suburban Press, 289 NLRB 966, 975
(1988), and American Cast Iron Pipe Co., 234 NLRB 1126
(1978), enfd. 600 F.2d 132 (8th Cir. 1979), the Board held that
the rule reasonably tended to chill employee exercise of Section
7 rights. There is virtually no distinction between the rule in
Lafayette Park and the one maintained by Respondent. Noting
that any ambiguities must be construed against Respondent,15 I
find that Respondent violated Section 8(a)(1) by maintaining
the rule.
Moreover, as counsel for the General Counsel notes, Re-
spondent’s attempt to remedy the rule falls short of the re-
quirements of Passavant Memorial Hospital, 237 NLRB 138,
139 (1978). Thus, because the May 5 clarification of the Feb-
ruary 7 rule was untimely, did not unambiguously admit
wrongdoing, and did not assure employees that Respondent
would not interfere with employees’ Section 7 rights in the
future, the attempted repudiation fails.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) and (5) of the Act by
failing to recognize or deal with Leslie Fitzgerald as a union
representative for unit employees and by denying her access to
the facility in order to perform her collective-bargaining duties.
2. Respondent violated Section 8(a)(1) of the Act by main-
taining a rule prohibiting negative conversations about employ-
ees and/or managers.
REMEDY
Having found that Respondent violated Section 8(a)(1) and
(5) by failing to recognize or deal with Leslie Fitzgerald as a
union representative for unit employees and denying her access
to the facility in order to perform her collective-bargaining
duties, I shall recommend that Respondent be ordered to cease
and desist and to affirmatively recognize and deal with Fitzger-
ald as a union representative for unit employees. Having found
that Respondent violated Section 8(a)(1) by maintaining a rule
prohibiting negative conversations about employees and/or
managers, I shall recommend that Respondent be ordered to
rescind this rule.
On these findings of facts and conclusions of law and on the
entire record, I issue the following recommended16

15 Lafayette Park Hotel, supra, 326 NLRB 824 at fn. 1.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
CLAREMONT RESORT & SPA 837
ORDER
The Respondent, KSL Claremont Resort, Inc. d/b/a Clare-
mont Resort and Spa, Berkeley, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recognize or deal with Leslie Fitz-
gerald as a union representative for the food and beverage ser-
vice employees and denying her access to the facility in order
to perform her collective-bargaining duties.
(b) Maintaining a rule prohibiting negative conversations
about associates and/or managers.
(c) In any other like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action.
(a) Recognize Fitzgerald as a union representative for the
food and beverage service employees and allow her access to
the facility in order to perform her collective-bargaining duties.
(b) Notify the Union, in writing, within 10 days of this deci-
sion that it no longer has any objection to dealing with Fitzger-
ald and that it will do so, on request.
(c) Rescind the rule prohibiting negative conversations about
associates and/ or managers.
(d) Post on its employee bulletin boards utilized for food and
beverage employees copies of the attached notice to employees
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days of
the date of this Order what steps the Respondent has taken to
comply.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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.
Federal law gives you the rights to
Form, join, or assist a union
Choose representatives to bargain on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected rights
We give you the following assurances:
WE WILL NOT fail or refuse to recognize or deal with Leslie
Fitzgerald as a union representative for the food and beverage
service employees and WE WILL NOT deny her access to the
facility in order to perform her collective-bargaining duties.
WE WILL NOT maintain the following rule, included in our
“Top Ten List” distributed to spa employees: “Negative con-
versations about associates and/or managers are in violation of
our Standards of Conduct that may result in disciplinary ac-
tion.”
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in forming, joining, or assisting a union,
choosing a representative to bargain on your behalf, or acting
together with other employees for your benefit and protection.
WE WILL recognize and deal with Leslie Fitzgerald as a union
representative for food and beverage service employees and
that we will grant her access to the facility in order to perform
her collective-bargaining duties and WE WILL notify the Union,
in writing, of these facts.
WE WILL rescind the rule prohibiting negative conversations
about associates and/or managers.
KSL CLAREMONT RESORT, INC. D/B/A CLAREMONT
RESORT AND SPA