This page addresses frequently asked questions about Administrative Law Judge Clifford Anderson’s 8/17/12 decision, in which he found that Castlewood had maintained an unlawful lockout for two years. For a PDF of the full decision, click here. Page references refer to the full decision.
What happens next?
Castlewood managers could end the NLRB case by reinstating workers, paying back wages and benefits, rescinding regressive bargaining proposals, and addressing several other violations of the National Labor Relations Act. Or they could continue the dispute by asking the National Labor Relations Board in Washington to review the case. If Castlewood does not end the lockout, the Regional Director of the NLRB’s local office could seek an injunction that would put the employees back to work while the legal dispute continues. We don’t yet know if he will do this.
In the meantime, workers will be out on the picket line until they’re back at work with a fair contract – and they need you to stand with them.
What about the lawyer who altered the bargaining notes?
Judge Anderson wrote, “Under all the circumstances of the notes creation and emendation, I find the notes compromised . . . Since I find the Union’s notes are free from the disabling circumstances respecting [Castlewood attorney Robert] Hulteng’s notes, I credit and rely on those notes over those of Hulteng. Turning to the testimony of counsel Hulteng respecting the August 10 bargaining, I also find his testimony lacks credibility as a result of the circumstances presented. Counsel Hulteng, as he testified, refreshed his recollection with these notes and yet his memory of altering them was not also refreshed. I find this fact is persuasive evidence that his memory of the events of this session were [sic] dim indeed and may not be relied on.” (22)
Why did Judge Anderson say Castlewood had “animus” toward the union and its supporters?
Judge Anderson found that Castlewood stopped trying in good faith to reach an agreement in the summer of 2010, at least partly in response to emails from Club members and former Club officers. He quoted several of those emails, including this one: “As far as I am concerned I would like to NOT see any of the picketing former employees returned to Castlewood. I would not trust any of them to serve my food or drink. The few who are not in this fight would be welcomed back.” (7)
What does bad-faith bargaining mean in this case?
Judge Anderson found that, in August 2010, Castlewood made new proposals on three important issues: seniority, subcontracting, and union security. These proposals were substantially worse than what the Club had offered at the beginning of the lockout, and Club representatives’ testimony about why the Club changed its proposals six months into the lockout was not persuasive. Anderson wrote that the proposal on subcontracting was “a seriously regressive proposal offered essentially without warning or explanation.” (60) The proposal on union security “was designed to show the union who was boss and teach it a lesson.” (59) The Club also unreasonably refused to schedule bargaining sessions to explain its new proposals unless the union agreed to major concessions.
Why does the decision say the lockout is illegal?
Judge Anderson: “Bargaining in bad faith without a desire or intent to reach an agreement with the Union on the terms of a new contract, as found above, is conduct inconsistent with an economic lockout . . . having found that the Respondent’s bad- faith bargaining was conduct inconsistent with an economic lockout I further find that the Respondent’s wrongful conduct on August 10 ended the legal lockout . . . by reason of the Respondent’s bad-faith bargaining, its inherently destructive conduct, and its anti-union animus, I find the lockout from August 10 onward violated Section 8(a)(5), (3), and(1) of the [National Labor Relations] Act.” (64)
Did Castlewood commit other labor law violations?
Judge Anderson also found that Castlewood General Manager Jerry Olson threatened employees by telling them they could quit their jobs if they did not like Castlewood’s proposal; that Castlewood maintained overly restrictive rules against workers being in “member areas” and distributing literature, and threatened workers with discipline if they disobeyed these rules; that Clubhouse Manager Tom Hunt threatened an employee with discipline for distributing union leaflets in her non-work hours; that Director of Golf John Hughes told an employee that Castlewood’s Board of Directors would never allow locked-out workers to return; and that the Club subcontracted kitchen cleaning work without informing or bargaining with the union. (71)
How is this different from what happened last year?
In August 2011, the General Counsel of the NLRB issued a complaint charging Castlewood with maintaining an unlawful lockout. The General Counsel issues a complaint when, based on an internal investigation, he concludes that there is enough evidence to prosecute the accused (in this case, Castlewood) for violating federal labor law. After the complaint issues, a hearing is held where the government, the union and the employer are all given the opportunity to present witnesses who testify under oath, cross-examine the opposing party’s witnesses, present documentary evidence, and subpoena evidence from the other parties and third parties such as Club members. In early 2012, a nine-day hearing was held in which Castlewood was given the opportunity to present all of its evidence. After reviewing the evidence, witness testimony, and briefs, Judge Anderson reached the same conclusion as the General Counsel did. He found that every one of the violations alleged by the General Counsel in the complaint had occurred.