Country Club of Little Rock

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1112 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Country Club of Little Rock and Katherine E.
Moss. Case 26-CA-8586
March 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 3, 1981, Administrative Law Judge
Richard A. Scully issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Country Club
of Little Rock, Little Rock, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.2
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge:
Based on a charge filed on August 12, 1980, by Charging
Party Katherine E. Moss, a complaint was issued by the
Regional Director for Region 26 of the National Labor
Relations Board on September 4, 1980, alleging that
Country Club of Little Rock (the Respondent) violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (the Act), by discharging Katherine E. Moss
because she engaged in activities protected by Section 7
of the Act, specifically, filing a sex discrimination charge
against the Respondent with the Equal Employment Op-
portunity Commission (EEOC) and notifying local news-
papers about the filing of the charge. The Respondent
260 NLRB No. 151
filed a timely answer denying that it had committed any
violation of the Act. A hearing was held in Little Rock,
Arkansas, on March 4, 1981.
All parties were given a full opportunity to participate,
to examine and cross-examine witnesses, and to present
argument. Briefs submitted on behalf of the General
Counsel and the Respondent have been carefully consid-
ered. Upon the entire record and from my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, the Respondent was a
nonprofit Arkansas corporation with its principal place
of business in Little Rock, Arkansas. During the 12
months preceding the filing of the complaint, it had gross
revenues in excess of $500,000 and had purchased goods
valued in excess of $5,000 directly from points outside
the State of Arkansas. The Respondent operates a pri-
vate country club providing recreational facilities such as
golf, tennis, and swimming as well as dining and bar
facilities exclusively to club members and their guests.
The Respondent has about 85 to 90 employees on a year-
round basis and during the summer employs as many as
115 workers.
In its answer, the Respondent admits the foregoing
facts concerning its gross revenues and out-of-state pur-
chases but denies that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that it is subject to the Act. Counsel for the
Respondent did not pursue these points in his brief. I
find that the Respondent does substantial business affect-
ing commerce and is, therefore, an employer engaged in
commerce within the meaning of the Act. See Walnut
Hills Country Club, 145 NLRB 81 (1963).
The Respondent is not now and never has been a
party to a collective-bargaining agreement with a labor
organization within the meaning of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Katherine Moss began working for the Respondent as
a part-time waitress in the country club's main dining
room in March 1980.' She worked evening shifts, from
5:30 to 10 p.m., 3 or 4 days a week. At the time, she was
a full-time college student. After school was over in
June, her request for additional hours was granted and
she worked more evening shifts and some lunch shifts.
After receiving her first paycheck as a full-time em-
ployee, Moss realized that she was only making S4 per
hour instead of the $5 that she understood she was to re-
ceive when she was first employed. She contacted Wil-
liam H. Courtenay, the general manager of the country
club who is directly in charge of food and bar oper-
ations, to inquire about her rate of pay. Courtenay told
her it was the club's policy to pay part-time people $5
per hour in order to get them to come in for 2 or 3
' All dates hereinafter referred to are in 1980.
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COUNTRY CLUB OF LITTLE ROCK
hours at a time, while full-time help was paid $4 per
hour. She discussed this with other employees and at
least one, Larry Moss,2 confirmed that this was in fact
the policy of the club.
Moss subsequently enrolled in summer school and was
permitted by Courtenay to switch back to part-time
work as of July 17. Upon receiving her first paycheck
after returning to part-time status, Moss found she was
still being paid at the rate of $4 per hour. She spoke to
Larry Moss about this around July 24 or 25 and was told
that he would change her rate of pay, retroactive to July
17. When she received her next paycheck, she was still
being paid at the $4-per-hour rate. On August 3, after
her shift, Katherine Moss went to see Courtenay and
asked him why she was only being paid $4. Courtenay
answered that the club could not afford to pay her more.
She responded that she knew of other people who were
making $5 per hour. Courtenay asked her who they were
and she mentioned one waitress by name. Moss then
asked Courtenay if he fixed pay rates abitrarily and he
responded that he did. At that point, Courtenay indicat-
ed he did not want to discuss the matter further and that
she could take or leave the $4 per hour. When Moss
asked if the rate of pay depended upon how Courtenay
felt about the employee personally, he told her to leave
or he would ask her to go for good. Moss then left.
Moss worked the evening shift on August 4. On
August 5, a day she had off, she went to the EEOC
office and filed a charge alleging sex discrimination by
the Respondent. The charge alleged that Moss felt she
was being discriminated against on account of her sex
because she knew of a recently hired part-time male
waiter who was being paid $5 per hour while she was
only paid $4 and that the Respondent had lowered her
pay from $5 to $4 when she went from part to full-time
employment but failed to raise it to $5 when she re-
turned to part-time status.
After filing the charge, Moss called a local newspaper,
the Arkansas Democrat, and talked to a reporter about
it. The reporter called Courtenay, informed him of the
filing of the charge, and asked for his comments. Cour-
tenay responded that he did not knowingly discriminate
against anyone and hung up when the reporter sought a
further statement. A story concerning Moss' charge ap-
peared in the morning edition of the Democrat on
August 6. Upon his arrival at the club on August 6,
Courtenay learned that a television news camera crew
and reporter had been there earlier seeking to interview
him, but had left before he arrived. At that point, Cour-
tenay decided to fire Moss, had her timecard pulled, and
had the bookkeeper make out her final check. When
Moss arrived at work that evening she found her time-
card missing. She obtained a new card, clocked in, and
went to the dining room to begin work. A few minutes
later, Courtenay came into the dining room and told
Moss that he had pulled her timecard and that she was
2 Larry Moss, who is no relation to the Charging Party, was employed
by the Respondent as a chef According to Courtenay. during the time
Courtenay was on vacation during July, Larry Moss was temporarily
given the assignment and title of assistant food and beverage manager
Upon Courtenay's return from vacation, Larry Moss returned to his posi-
tion as chef
not working there anymore. Nothing more was said and
Moss left.3
Moss testified that on August 7 she returned to the
EEOC office to file "a retaliation complaint" as she had
previously been advised to do in the event she was dis-
charged. While there, at the request of an EEOC staff
member, Moss called Courtenay to confirm that she had
been discharged and not merely laid off. Courtenay told
Moss that she had been fired and, when Moss asked
why, Courtenay responded, "If you don't know that,
little girl, you're in sad shape." Moss repeated the ques-
tion and Courtenay told her she had been fired because
she "filed the first complaint and went to the papers
about it." Moss thereupon filed a second charge alleging
that she was fired because she had filed a charge against
the Respondent with the EEOC.
Courtenay denied that he told Moss that she was fired
because she had filed a charge with the EEOC. He testi-
fied that she was fired "because of the fact that she had
gone to the news media" and that in the telephone con-
versation on August 7 the "gist" of what he told Moss
was that she was fired because "she had caused all this
commotion by contacting the news media."
I credit Moss' version of their telephone conversation
rather than that of Courtenay, who appeared unsure of
himself and apparently had little or no independent rec-
ollection of the events surrounding Moss' discharge as he
constantly referred to notes throughout his testimony.
His claim that he was not even aware of the type of
charge Moss had filed and that he thought it related to a
state unemployment claim was not convincing. He testi-
fied that a reporter had told him that the charge had
been filed with the EEOC in a telephone conversation
on August 5. His statement to the reporter that he did
not "knowingly discriminate against anyone" indicated
that he was aware of the nature of Moss' charge. He also
testified that he had read the article in the Arkansas
Democrat, which stated that Moss had filed "a sex dis-
crimination complaint against the club" with the EEOC,
before he fired her. Moss, on the other hand, appeared to
have a clear recollection of the telephone conversation
with Courtenay and her testimony was consistent with
the allegations in the second charge which she filed with
3 The foregoing findings are based on the credited testimony of Moss
and Courtenay The only significant difference in their testimony con-
cerns the rate of pay Moss was to receive when she was hired. which
Moss said was $5 per hour. Courtenay denied telling Moss she was to be
paid $5 It was stipulated that Moss was never paid more than $4 per
hour at any time during her employment with the Respondent I credit
Courtenay and not Moss on this point. The employee data form the Re-
spondent maintained indicated that Moss was to be paid at the rate of $4
per hour when she was hired. I find it unlikely that Courtenay would
have promised Moss S5 and then paid her only S4. I also find it likely
that, if Moss expected to receive S5 per hour when hired in March. she
would have realized that she was being paid only S4 per hour before
June On the other hand, I believe that, once Moss learned from Cour-
tenay and Larry Moss in June that the club's policy was to pay part-time
help $5 per hour, she fully expected to receive that amount when she
commenced part-time employment in July, an expectation that was en-
couraged by Larry Moss when he promised her an increase to $5 per
hour, retroactive to July 17 It was the Respondent's failure to pay her at
the rate of $5 per hour while other employees. including a recently hired
male employee, were paid at that rate which prompted Moss to file her
charge with the EEOC
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the EEOC immediately after that conversation. I find
that Moss was discharged because she filed a sex dis-
crimination charge against the Respondent with the
EEOC and because she discussed the charge with a
newspaper reporter. 4
The Respondent is a nonprofit, private membership
club which is certified as tax exempt by the Internal
Revenue Service under 26 U.S.C. Section 501(c) of the
Internal Revenue Code of 1954.
Prior to filing the sex discrmination charge with the
EEOC, Moss did not discuss with any other employee
the fact that she felt she was being paid less than other
employees because she was female or that she was going
to file the charge. She testified that when she spoke to
Courtenay on August 3 she was acting on her own
behalf and not on behalf of or as a representative of any
other employee.
The General Counsel contends that Moss was engaged
in concerted activities protected by Section 7 of the Act
when she filed the sex discrimination charge with the
EEOC and brought it to the attention of the news media
and that by discharging her because of such activities the
Respondent violated Section 8(a)(l) of the Act. The Re-
spondent contends that Moss' actions were not concerted
activities under the Act and, even if they were, they
were not protected.
B. Analysis
The Respondent points to the fact that Moss acted
alone, solely for her own benefit in filing the sex discrim-
ination charge with the EEOC. She did not act as the
representative of any other employees, nor was she au-
thorized by them to do so. She did not discuss her alle-
gations of discrimination with any other employees nor
did she inform anyone of her intention to file a charge
with the EEOC. It therefore argues that Moss' activities
were not concerted activities entitled to protection under
Section 7.
The fact that an individual employee has acted alone
does not necessarily mean that the employee was not en-
gaged in concerted activities. The Board has consistently
held that the actions of a single employee who seeks to
enforce or implement the provisions of an existing col-
lective-bargaining agreement constitute concerted activi-
ties protected by Section 7 because such actions are an
extension of the concerted activity giving rise to the
agreement.5 Even in the absence of a collective-bargain-
ing agreement, the Board has deemed an individual em-
ployee's actions to constitute protected concerted activi-
ty where the employee: filed a safety complaint with a
governmental agency; 6 filed a claim for unemployment
compensation benefits;' inquired at the employer's bank
' In response to an unemployment compensation claim by Moss, Cour-
tenay filed a form which gave as the reason for her discharge "work un-
satisfactory." Courtenay admitted that this was not correct.
S E.g., King Soopers. Inc., 222 NLRB 1011 (1976); Roadway Express.
Inc., 217 NLRB 278 (1975); Interboro Contractors, Inc., 157 NLRB 1295
(1966); Merlyn Bunney and Clarence Bunney, partners. d/b/a Bunney Bros
Construction Company, 139 NLRB 1516 (1962)
'Alleluia Cushion Co.. Inc., 221 NLRB 999 (1975).
'Self Cycle & Marine Distribution Co.. Inc.. 237 NLRB 75 (1978)
as to whether there were sufficient funds on deposit to
meet the upcoming payroll;8 expressed an intention to
file a claim for workmen's compensation benefits;9 filed a
claim with a governmental agency for back overtime
wages;" wrote a letter complaining about racism, sexism,
favoritism, and denial of a wage increase;" refused a
work assignment unless paid the same as male employees
doing the same job;"2 and/or filed a sex discrimination
complaint with a governmental agency. 3 In each case,
although acting alone, the employee's action arose out of
the employment relationship, was a matter of common
concern to other employees similarly situated, and in-
volved an aspect of national labor policy. In the absence
of any evidence that fellow employees disavow such rep-
resentation of their mutual interests, the Board "will find
an implied consent thereto and deem such activity to be
concerted." 14
In the present case, it is clear that Moss acted alone
without consulting with or advising fellow employees
that she was going to file the sex discrimination charge
and to publicize the fact that she had done so. However,
her actions arose out of her employment situation and in-
volved sex discrimination, a matter that the Board has
recognized as one of common concern to other employ-
ees and one which Congress as well as certain state and
local governments have enacted legislation to prevent.
These facts notwithstanding, the Respondent contends
that, because as a tax-exempt, private membership club it
is exempt from the antidiscrimination provisions of Title
VII of the Civil Rights Act of 1964,'5 Moss' complaint
to the EEOC could not have benefited her or any other
employee, and, therefore, is not concerted activity even
constructively.
The Board has held that whether the employee's com-
plaint has merit is irrelevant to the issue of whether the
employee is engaged in concerted activity.1 6 It follows
that, even if Moss' filing of a charge with the EEOC was
ineffective because it was erroneously filed with ana-
gency without power to act upon it, her refusal to acqui-
esce in what she perceived as discriminatory treatment in
her employment and her attempt to do something about
it would be a matter of common concern to other em-
ployees and would constitute protected concerted activi-
ty under established Board precedent.
Moss' bringing the filing of her charge with the
EEOC to the attention of the press and discussing it with
a reporter was a reasonable extension of her action in
filing the charge and is, likewise, protected by Section 7
of the Act. There is no evidence to support the Respond-
ent's contention that Moss' actions were disloyal or that
her "behavior threatened her employer's business inter-
8 Air Surrev Corporation. 229 NLRB 1064 (1977)
9 Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979)
'° United Investment Corporation d/b/a Santas Bakery, 249 NLRB 1058
(1980)
" Diagnostic Center Hospital Corp of Texas, 228 NLRB 1215 (1977)
I2 Dawson Cabinet Company, 228 NL.RB 290 (1977).
'3 Hotel and Restaurant Employees and Bartenders Union, Local 28. of-
filiated with Hotel and Restaurant Employees and Bartenders International
Union, AFL C/O, 252 NL RB 1124 (1980)
" Alleluia Cushion Co., Inc.. supra at 1000.
" See 42 U S.C. § 2000 e(b)(2)
ARO, In c. 227 Nl.RB 243 (1976)
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COUNTRY CLUB OF LITTLE ROCK
ests, was insolent and insubordinate, and was designed
solely to embarrass her employer." On the contrary, it
appears that Moss' actions were based on a good-faith
belief that she was being paid less than a male coworker
for no reason other than the fact that she was a female
and were taken only after she had contacted Larry Moss
and Courtenay with her problem and failed to receive
satisfaction. The allegations of the charge filed with the
EEOC and the statements attributed to her in the Arkan-
sas Democrat are straightforward, state the facts as she
understood them, and are limited to the subject matter of
the dispute with her Employer.
Moss was entitled to make the public aware of the dis-
pute with the Respondent and in no sense did her state-
ments constitute a disparagement or vilification of her
employer or its reputation so as to render them unpro-
tected."7 In this regard, it appears that the Respondent
or, at least, its general manager, William H. Courtenay,
has an extraordinary sensitivity to publicity. ts Although
she testified that she thought publicity about her charge
might eventually be embarrassing to the Respondent, it is
clear from her testimony as a whole that this was not a
significant factor in her motivation for filing or publiciz-
ing the charge.
I find that Katherine Moss was engaged in concerted
activity, protected by Section 7 of the Act, when she
filed a sex discrimination charge against the Respondent
with the EEOC and when she discussed that charge with
the news media and that the Respondent violated Section
8(a)(1) of the Act when it discharged her specifically be-
cause she engaged in such protected activities."9
CONCLUSIONS Of: LAW
1. The Respondent, Country Club of Little Rock, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By discharging Katherine E. Moss because she en-
gaged in concerted activities protected under the Act,
the Respondent has engaged in an unfair labor practice
in violation of Section 8(a)(l) of the Act.
3. The unfair labor practice found herein is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
17 See Allied Aviation Service Company of New Jersey. Inc., 248 NLRB
229 (1980).
l" Courtenay testified as follows:
Q. Now, would you tell us, in your own words, why did [you] fire
Miss Moss
A. The reason she was fired is because of the fact that she had
gone to the news media She tned to harass and embarrass the club.
a pnvate club, a country club. We try to keep a low profile Every-
body, it seems, tries to take pot shots at a club, so I have made the
effort to keep a low profile, and, of course, this irritated me [Io] no
end when she went to the press, and my first knowledge of her filing
a complaint was from a reporter
'9 I am aware of the fact, as pointed out by the Respondent, that cer-
tain U.S. circuit courts of appeals have refused to find that the actions of
a single employee acting alone constitute "concerted activity" within the
meaning of the Act, at least, in the absence of a collective-bargaining
agreement. However, I am bound by Board precedent which is clear and
consistent in holding that actions of the kind involved here constitute
protected concerted activity.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I shall recommend that the Re-
spondent be required to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
Having also found that the Respondent unlawfully dis-
charged Katherine Moss, I shall recommend that the Re-
spondent be ordered to offer her immediate reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent job, without prejudice to her se-
niority or other rights and privileges previously enjoyed.
In addition, the Respondent will be required to make
Moss whole for any loss of earnings she may have suf-
fered by reason of her unlawful discharge on August 6,
1980, less any interim earnings, to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest to be paid on the amount
owing computed in accordance with Florida Steel Corpo-
ration, 231 NLRB 651 (1977).2°0 The Respondent will also
be required to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 21
The Respondent, Country Club of Little Rock, Little
Rock, Arkansas, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because they have engaged in concerted ac-
tivities for the purpose of mutual aid and protection.
(b) In any like or related manner restraining and co-
ercing employees in the exercise of rights protected by
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer Katherine Moss immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent job, without prejudice to her
seniority or other rights and privileges previously en-
joyed, and make her whole for any loss of earnings she
may have suffered by reason of her unlawful discharge,
in the manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
20 See, generally. Iis Plumbing & Heating Co., 138 NLRB 71b (1962)
The General Counsel's request for interest at the rate of 9 percent is
denied See Olympic Medical Corporation, 250 NLRB 146 (1980)
'2 In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National L abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed svaived for all purposes
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its facilities in Little Rock, Arkansas, copies
of the attached notice marked "Appendix." 22 Copies of
said notice, on forms provided by the Regional Director
for Region 26, after being signed by an authorized repre-
sentative of the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
22 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment 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
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and we have been ordered to post this
notice.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they engage in con-
certed activities for mutual aid and protection.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer Katherine Moss immediate and
full reinstatement to her former job or, if the job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and give
her backpay, plus interest, for any losses she suf-
fered as a result of our unlawfully discharging her.
COUNTRY CLUB OF LITTiLE ROCK
1116