YMCA of Pikes Peak Region, Inc. v. N.L.R.B.

• Decision Date: 26 September 1990
• Docket Number: No. 88-2963,88-2963
• Parties: 135 L.R.R.M. (BNA) 2553, 116 Lab.Cas. P 10,357 YMCA OF THE PIKES PEAK REGION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1442

914 F.2d 1442

135 L.R.R.M. (BNA) 2553, 116 Lab.Cas. P 10,357

YMCA OF THE PIKES PEAK REGION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 88-2963.

United States Court of Appeals, Tenth Circuit.

Sept. 26, 1990.

Raymond M. Deeny (N. Dawn Webber, with him on the brief), of Sherman & Howard, Colorado Springs, Colo., for petitioner.

Fred L. Cornnell (Peter Winkler, Supervisory Atty., Joseph E. Desio, Acting Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, with him on the brief), N.L.R.B., Washington, D.C., for respondent.

Before SEYMOUR and BALDOCK, Circuit Judges, and SEAY, ^* District Judge.

SEYMOUR, Circuit Judge.

Petitioner YMCA of the Pikes Peak Region, Inc., challenges a National Labor Relations Board order adopting the Administrative Law Judge's ruling that the YMCA violated sections 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (3), and (4) (1988). The Board filed a cross-application for enforcement of the order. We have reviewed the arguments of the YMCA, and we hold that enforcement of the Board order is warranted.

I.

The YMCA of the Pikes Peak Region is a nonprofit, charitable, membership organization with two branches in Colorado Springs, a Downtown Center and a Garden Ranch Center. These facilities offer swimming pools, exercise equipment, weight rooms, tanning beds, meeting areas, and locker rooms, some of which are equipped with saunas, whirlpools, color television, and free toiletries and towels. The YMCA provides a range of health, educational, and recreational programs for children, adults, and senior citizens, including swimming instruction, yoga, aerobics, karate, weight reduction, and smoking cessation programs. The two facilities have a membership of approximately ten thousand.

Each member of the YMCA receives a card which has a statement of purpose on the back reading in part: " 'The purpose of the Y ... is to establish and maintain a fellowship of individuals and families of all faiths, and ... build a Christian society through activities and services which contribute to spiritual, intellectual, physical and social growth.' " Rec., vol. I, at 52.

The YMCA's membership dues and program fees constitute its principal source of income. During calendar year 1986, its gross revenues were $2,674,500, of which $56,700 went to purchase supplies and materials directly from suppliers located outside the State of Colorado. See rec., vol. II, g.c. ex. 2. The YMCA of the Pikes Peak Region is affiliated with the YMCA of the U.S.A., to which the local YMCA pays a percentage of its income in exchange for use of the logo, an employee retirement fund, and a number of other services. Local YMCAs must follow the constitution of the national YMCA, but their national affiliation does not require that they honor memberships from locations outside Colorado.

The YMCA's Garden Ranch Center first hired Rita Ague in July, 1985, to work as a substitute on the aquatic staff. In September, she began working twenty hours a week on a regularly scheduled part-time basis. On October 6, during an informal meeting called by aquatic director Diane Sanford and consisting of the entire aquatic staff, Ague voiced concerns she and other employees held about pool safety, wage, and overtime pay problems. Ague suggested to those at the meeting that because of these concerns, the employees might want to consider bringing in a union, and she passed around an envelope for interested employees to sign. Ague and four other employees put down their names. Ague then contacted the Office and Professional Employees Union, Local No. 5.

The next day, Sanford and Fawn Kirkland, Ague's immediate supervisor, reported to Ray Weber, the Garden Ranch Center executive director, that Ague had circulated the sign-up sheet. On October 8, Weber approached Ague while she was working in the pool area and asked her to come into his office. With Sanford present, Weber expressed his concern that Ague had not come to him first with the problems she saw at the YMCA. According to Ague, Weber then asked her whether she had contacted the union, and when she said that she had, he asked her what specific person she had contacted. He also requested that Ague inform him of "any union activities that might be occurring, or would occur in the future." Rec., vol. I, at 88. At some point in the conversation, they discussed the termination of an employee, whom Ague believed was fired for his union activities, but whom Weber asserted had resigned voluntarily. Within a few weeks of Ague's conversation with Weber, YMCA employees and a union representative began to meet.

On October 14, Fawn Kirkland telephoned Ague to inform her that her hours "had been cut way back." Id. at 91. Kirkland told her that there had not been any problem with her work performance, but that Sanford had told Kirkland that Ague's "hours were being cut back radically and that Ray Weber wanted to get rid of the troublemaker." Id. at 92. Kirkland also told her that she had recently submitted her own resignation.

Ague confronted Sanford, who denied making the "troublemaker" comment. Ague informed her that she intended to contact the union regarding her hours change, and she did so. According to Ague, Sanford then told her that "she was still in the process of reshuffling [the schedule], and she would get back to [Ague]." Id. at 94. The union sent the YMCA a letter dated October 24 expressing its intent to organize the YMCA workers, and noting that any change in Ague's working conditions as a result of her organizing activities would violate section 8(a)(3) of the Act. See rec., vol. II, r. ex. 7. By the end of October, Ague's hours essentially had been restored.

On November 13 and 14, James Klever, the YMCA's president and chief executive officer, conducted mandatory meetings for all employees in order to discuss the current unionization efforts. At one point during a meeting at which Ague was present, Klever commented that "it took a hundred men to build a barn, but one jackass to tear it down." Rec., vol. I, at 98. ¹ When Klever opened up the meeting for general discussion, Ague stood up and explained that she was the "jackass" referred to because she was the person who had called the union. She then elaborated upon the reasons why she thought a union was necessary.

At a later meeting with Klever, Ague again stood up to explain why she favored unionization. She also stated her concern that "when employees had tried to organize ... they had been asked to resign." Id. at 102. According to Ague, Klever then told her that " '[i]f you knew what a limb you've climbed out onto, you'd have heart failure.' " Id. She replied, " 'I don't threaten easily,' " and Klever responded, " 'Neither do I.' " Id. at 102-03.

During this time, efforts to organize the employees continued. One of the union activists, Bernadette O'Bryan, had a conversation about unionization with co-employee Dennis Schwed on November 15 while both were working in the physical services area. O'Bryan testified that she had asked Schwed, who is mildly retarded and has emotional problems, what he thought of the meetings concerning union organization efforts. He told her he wanted to talk to a friend about unions. O'Bryan suggested he also might want to talk to YMCA employees, and then she mentioned she felt "really frustrated with the narrow-mindedness of the employees that have come to [her] over the years complaining about different policies at the Y and then not doing anything about it." Id. at 222.

About a week later, O'Bryan's supervisor, Jim Asleson, called O'Bryan into his office and handed her a letter. The letter was a warning to her that any similar discussion regarding union matters would result in her termination. Asleson told her that Schwed had been very upset after the conversation, and had claimed that O'Bryan had called him a coward. O'Bryan denied that she had referred to Schwed as a coward. She also testified that she had never been reprimanded in the past for conversations not related to work, nor had her co-workers ever been disciplined for solicitations relating to football tickets or restaurants, for example.

On December 19, the union filed an unfair labor practices charge with the Board. On February 14, 1986, the parties entered into a settlement agreement in which the YMCA promised not to threaten employees with a cut in hours or any other type of retaliation because of their union involvement. The YMCA also agreed not to forbid union solicitation where the YMCA did not forbid other types of solicitation, and to rescind and remove the warning letter from O'Bryan's personnel file. See rec., vol. II, r. ex. 10(a).

After the settlement agreement, the employees had further unionization meetings. Towards the end of February, just before Ague left on a vacation, a number of employees signed union authorization cards in Ague's presence. One of these employees was Wes Beal. When Ague returned from her vacation, she discovered that Beal had been fired on March 5 for sexual harassment of Marnie Duke, a sixteen year-old high school student who worked at the Garden Ranch Center as a lifeguard and an instructor. Ague tried to get more information about the firing from other employees, but was unable to learn very much; her co-workers told her that she should talk to Duke if she wanted to learn more.

Ague testified she initially called Beal, who told her that he was "in a state of shock," that "[h]e was extremely surprised at being fired," and that he did not feel he had done anything to warrant the sexual harassment charge. Rec., vol. I, at 117. Ague asked him whether he thought his firing could be the result of union activities, and Beal responded that he may have aroused the hostility of YMCA management by defending Ague at one of the November meetings with Klever. According to Ague, s...