The Cavern Supply Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 160 (N.L.R.B. 1970)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Cavern Supply Company , Inc. and Retail Clerks
International Association , Local 462, AFL-CIO.
Case 28-CA-1936
December 14, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On July 13, 1970, Trial Examiner Leo F. Lightner
issued his Decision in the above-entitled case, finding
that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof; the General
Counsel filed cross-exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision , the exceptions , the briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions,2 and recommendations of the
Trial Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, The Cavern Supply Company, Inc.,
Carlsbad, New Mexico, its officers, agents, succes-
sors, and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified.
Substitute for paragraph 2(a) of the Trial Examin-
er's Recommended Order the following:
"Make Susan Bergauer whole for any loss of pay she
may have suffered by the payment to her of the sum
she would have earned, had she continued working in
the warehouse from the date of her discharge, August
13, 1969, to and including August 20, 1969, less any
net earnings during that period."
I The Respondent excepts to the Trial Examiner 's conduct of the
hearing, alleging restrictions on its right to examine and cross -examine
witnesses , bias, prejudice , and predetermination of the issues, improper
refusal on the second and final day of the hearing to grant a recess to the
following day , and denial of due process The Respondent requests that, if
the Board does not dismiss the complaint in its entirety , it order the
hearing reopened to allow it to finish presenting its witnesses and other
evidence (which it does not specify ) and that the Trial Examiner be
disqualified and another Trial Examiner designated After a careful
examination of the entire record we are satisfied that these allegations are
without merit In our opinion there is nothing in the record to suggest that
the Trial Examiner 's conduct of the hearing , his resolutions of credibility,
or the inferences he drew were based upon bias or prejudice or that he had
prejudged the case . Rather, we think the Trial Examiner , in accordance
with the Board's Rules and Regulations (Sec. 102 35 ), attempted to inquire
fully into the facts and at the same time limit or exclude "irrelevant or
immaterial or unduly repetitious evidence" which the Respondent
continually insisted on presenting (See Sec 7(c) of the Administrative
Procedure Act.) Moreover , we are of the opinion that the Respondent has
failed to show that the Trial Examiner's rulings on the examination of
witnesses resulted in prejudice to the Respondent or a denial of due
process The question of whether a recess to the following day should be
granted is a matter within the discretion of the Trial Examiner . Having
examined the entire record in this case we perceive nq abuse of that
discretion herein Accordingly , the Respondent 's request that the hearing
be reopened and the Trial Examiner disqualified is denied
2 The Trial Examiner found that Susan Williams Bergauer should
receive backpay from August 13, 1969, to September 1, 1969 (Labor Day)
The Respondent excepts , contending there is no evidence to show that she
would have stayed beyond August 20 , 1969, had she not been terminated
We find merit in the Respondent 's exception . Accordingly , we shall order
backpay only from August 13, 1969, to August 20, 1969
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F . LIGHTNER , Trial Examiner : This proceeding was
heard before me in Carlsbad, New Mexico, on March 25
and 26, 1970, on the complaint of General Counsel, as
amended, and the answer of The Cavern Supply Company,
Inc., herein called the Respondent .' The complaint alleges
violation of Section 8(a)(1) and Section 2(6) and (7) of the
Labor Management Relations Act, 1947, as amended, 61
Stat. 136, herein called the Act. 2 Briefs filed by the General
Counsel and Respondent have been carefully considered.3
Upon the entire record,4 and from my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a New Mexico corporation with its
principal office and place of business in Carlsbad, New
Mexico, where it is engaged in the operation of a facility
and branch office at Carlsbad Caverns National Park,
1 A charge was filed herein on August 22, and amended on October 2
A complaint was issued on October 23, amended on October 29, and
further amended during the hearing herein All dates are 1969, except those
related to the hearing herein
2 The allegations of a violation of Section 8(a)(3) were dismissed at the
outset of the hearing.
3 It cannot be said that Respondent waived oral argument at the end of
the hearing Respondent, in its brief and at the end of the hearing,
contends it was precluded from presenting additional witnesses rhis
matter is considered infra, under Respondent's defense
4 Both parties have filed motions to correct the transcript General
Counsel's motion, as modified by Respondent's response thereto, is
granted Respondent's motion is granted except for the corrections sought
on p. 149 and 227 Relative to p. 149, 1 have a clear memory that
Respondent's Counsel incorrectly asserted Jan Andrews, when he meant to
assert Susan Williams, relative to the latter's attempt to quit. However, this
is not an error on the part of the reporter The corrections sought on p. 227
are editorializing and do not constitute errors by the reporter
187 NLRB No. 25
THE CAVERN SUPPLY COMPANY
including the sale and distribution of food, curios, and
related products, and the operation of an above ground
restaurant and a below ground lunchroom. During the year
immediately preceding the issuance of the amended
complaint, a representative period, Respondent purchased,
and had delivered to its place of business, food, curios,
restaurant supplies, and other goods and materials with a
total value in excess of $50,000 directly from States of the
United States other than the State of New Mexico; and,
during the same period, Respondent sold and distributed
products, and provided services with a gross value
exceeding $500,000. The complaint alleges, the answer
admits, and I find Respondent is an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and litigated
at the hearing are whether the Respondent has engaged in
unfair labor practices, in contravention of the provisions of
Section 8(a)(1) of the Act, by: (1) interrogation of
employees, by named officers and agents, on August 7 and
8; or (2) by restraining its employees from circulating a
petition and soliciting signatures relative to grievances, by
named officers and agents, on August 7 and 8; or (3) the
transfer of Susan Williams5 from the Caverns to the
downtown warehouse, on August 8, by Vice President
Crump; or (4) the discharge of Williams by Vice President
Crump, on August 13.6
Respondent, by way of answer, denies the commission of
any unfair labor practices and asserts that Williams
voluntarily quit her employment.
Supervisory Personnel
The complaint alleges, the answer admits, and I find that:
Dick Wilson, president; George Crump, vice president and
general manager; Bob Caddell, manager; Bobby E. Lofton,
assistant manager; James "Slim" Jordan, supervisor; and
Max "Mike" Smith, supervisor, are, and at all times
material herein were, supervisors within the meaning of
Section 2(11) of the Act, and agents of the Respondent.
Background
The facts set forth under this section are undisputed.
It is reasonable to infer that Dick Wilson, president, and
George Crump, vice president and general manager, are
primarily located at Respondent's principal office and
In addition at p 284, 1 14, the record inaccurately reflects the
termination date of Andrews as August 6 It is corrected to read August 26
5 Williams has since married Her married name is Bergauer Since all
of Respondent's records refer to her as Williams, and to avoid any
confusion, she is referred to as Williams herein, except in the Remedy
section, infra
6 While numerous Board decisions have found the Charging Party to be
a labor organization, that fact is of no consequence herein Accordingly,
upon motion of Respondent, at the outset of the hearing, par VI of the
complaint alleging that the Union is a labor organization was stricken
Similarly , par XV alleging that Respondent discouraged membership in a
labor organization was stricken since , in fact , no labor organization
appears io have been involved in the events herein, prior to the filing of the
161
warehouse located in downtown Carlsbad. At that location
Respondent also employs a secretary, identified as
Schoonover, and, normally two individuals in the ware-
house to receive incoming merchandise and to mark the
sale price of items such as curios, later placed on sale to the
public at the Caverns.7
Crump asserted that 35 to 37 total employees were
engaged in off-season months, described as Labor Day to
Memorial Day, of whom 20 are nonsupervisory. In
addition, approximately 115 nonsupervisory employees are
engaged during the peak season of June, July, and August.
These are mostly students.
Crump related that the National Park Service, a bureau
of the Department of Interior of the United States
Government, is responsible for the sale of tickets to the
general public, and the conduct of tours of the Carlsbad
Caverns, which are located some 30 miles from downtown
Carlsbad.
Respondent, as a concessionaire , operates a restaurant, a
gift shop, a nursery for the care of children, and kennel
facilities for the care of pets, all of which are above ground.
In addition, there is a lunchroom where both food and
merchandise are sold below ground.
The winter schedule of the National Park Service
provides four tours per day. This schedule is increased to
six tours per day for approximately 6 weeks preceding June
1. During the summer there are 13 tours per day.
Employees, all of whom inferentially live in or near
Carlsbad proper, are required to ride a company-provided
bus to the worksite.8 The first shift leaves Carlsbad at 5
a.m., requires 45 minutes to reach the Caverns, works 8-1/2
hours, including one-half hour for lunch, leaves the Caverns
at 2:15 p.m., and arrives back at Carlsbad at 3 p.m. or 10
hours after the time of departure. The second shift leaves
Carlsbad at 12:30 p.m., arrives at the Caverns at 1:15 p.m.,
works 8-1/2 hours, including a 30-minute lunch period,
leaves the Caverns at 9:45 p.m., and arrives in Carlsbad at
10:30 p.m. Normally each summertime employee works
one-half of the summer on one shift and, in midsummer, is
then transferred to the opposite shift .9 Lower eschelon
supervisors, such as Smith, do not change shifts in mid-
summer, but continue on the same shift. The students are
paid $1.10 per hour for each hour of actual worktime, 8
hours per day. They are not paid portal to portal and they
are not charged for the transportation furnished by
Respondent.
Susan Williams (Bergauer) and Mary Janell Andrews
(identified as Jan in the transcript) were both hired in late
May and initially assigned to the first shift. In nudsummer,
Williams and inferentially all of the balance of the first shift
charge
Crump described the warehouse complement as one full-time year-
round employee , one full-time summertime employee , and for undefined
penods a cavern or call-in employee as needed
8 The assertion of Crump that this arrangement avoids the
complications which might apse if a student woke up late and was
permitted to drive his own car over winding , possibly wet, mountain roads
at 5 a in , with the consequent increased danger of misfortune resulting is
credited
9 However, an exception was made in the case of Mary Janell Andrews,
one of the authors of the letter which caused the controversy herein, as
explicated, infra
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except the supervisors and Andrews was transferred to the
second shift. Crump explained the exception made in the
case of Andrews. Andrews explained that she was very
interested and active in the youth work of the First Baptist
Church of Carlsbad and requested that she be allowed to
stay on the early shift in order to continue this activity.
Crump related that he thought that this was a worthwhile
cause and grounds for granting the request.'0
On an unspecified date, it is inferred, Andrews and
Williams discussed the preparation of a letter setting forth
matters of grievance which they believed were of impor-
tance to themselves and other employees. Each contributed
unspecified portions of a letter which was prepared by
Williams' mother on August 6, and signed by both girls. It
was then discovered that this provided little, and inade-
quate, space for additional signatures . Thereafter, Williams'
mother retyped the letter so that the last paragraph
appeared on a second sheet, thus allowing room for
additional signatures . On this redraft, Williams placed
Andrews' name on the left, according to Williams to reserve
the space for Andrews.
The following day, August 7, Williams exhibited the
letter to an unspecified number of other employees, on the
bus, on the way to work, and invited those so disposed to
sign the same . She thus obtained the signatures of Andrea
Autry," Holly Martin, and Ray Justice. On August 7, all
were employed in the underground lunchroom, except
Martin who was employed in the ground-level restaurant.
After Williams arrived at the Caverns, at approximately
1:15 p.m, and before the first shift left, inferentially at 2:15
p.m., on August 7, Max "Mike" Smith requested and was
granted an opportunity to read the letter." Smith asserted
that the letter came to his attention by Justice advising him
of its existence .13 Smith returned the letter to Williams. A
little later , Smith advised his immediate supervisor, Jordan,
of the existence of the letter. Smith returned to Williams
and inquired if she would object to his showing the letter to
Jordan. Williams acceded to this request and gave the letter
to Smith. Jordan asserted that he read the letter and, on the
assumption that it was all right, he advised Caddell of its
existence , and, pursuant to the instructions of Caddell, took
the letter up to Caddell's office.
While Jordan was still present, Caddell read the letter,
called Crump by telephone, and read the letter to him.14
Crump related that Wilson came into the office as
Caddell was reading the letter to him. Crump had Wilson
get on the extension to hear the contents of the letter.
Immediately thereafter, Crump and Wilson proceeded to
the Caves, reviewed the letter, with Caddell, and then
dispatched Caddell to bring Williams to the office for a
conference . Conferences with the other four signers of the
letter were held the following day, August 8. Williams'
10 I find of no consequence the recitation of Crump that he had
Andrews initiate the request through appropriate channels It is undisputed
that the request was granted
11 Appearing incorrectly in the record as Autrey. The former Miss
Autry has since married and is now known as Mrs. Willis
12 The inaccuracies in and unreliability of the testimony of Smith is
partially demonstrated by his inability to relate whether he received the
letter from Andrews or Williams. It appears undisputed that Andrews' days
off are Wednesday and Thursday. August 7 was a Thursday. Smith, who
acknowledged that he rode the bus, together with from 30 to 40 others who
worked on the first shift, asserted that the letter first came to his attention
transfer to the warehouse occurred before she was due to
report on August 8. These events are considered in more
detail in the following sections.
The letter in question, dated August 6, is addressed to
Mr. Dick Wilson, at Respondent's downtown office and
contains the following:
We, the undersigned, would like to bring to the
attention of the management some of the feelings and
attitudes of most of your summer employees.
First of all, we would like to make it clear that many
of us do need jobs in order to continue our educations,
and we appreciate your hiring us. The work itself is
interesting and enjoyable. We have many and varied
responsibilities. We have the heavy responsibility of
meeting the public and serving them quickly and
efficiently. The manner in which we serve them as
evidenced through our attitude toward them and our
job could very well have a direct relationship on how
much they purchase and the feeling with which they
leave us. We all realize, of course, that these park
visitors are our means of livelihood, so our service and
the effect of our attitude on them cannot be underesti-
mated. Generally speaking, a large majority of your
employees are very dissatisfied with the wages we
receive. This dissatisfaction, in turn has adversely
effected the morale and general attitude of your
employees. Many of us handle hundreds of dollars
everyday, are responsible for merchandise and its
display not to mention some hard work the girls are
required to do such as carrying heavy, full trash cans,
trays of sandwiches, oranges, scrubbing floors, and
carrying heavy merchandise when an order arrives.
Each day ten hours of our time are consumed both at
work and traveling. We feel we should receive some
compensation for the hour and a half we are on the bus
every day. If we are paying for the bus fare out of our
earnings, it seems only fair that we know how much we
are paying. Many of us would prefer to pay a set
amount each week for bus fare rather than receive such
low wages. Miners, for instance, pay $1.50 to $2.00 per
week for bus service. We also feel that we should receive
more than one five minute break during a day. Eight
hours is a long time to be on our feet.
We feel, therefore, that we should receive more than
$1.10 an hour for the jobs we hold and that any boost in
wages will be to your advantage also in the form of
improved morale and attitude. After all, for this ten
hours a day, we bring home only $6.80. Furthermore, if
the wages were improved, many teens would return the
following summers to work, thus saving the time,
trouble, and money involved in training. We prefer to
pay a fair, agreeable price for bus fare and receive
on August 7 "before the late shift came in." Since it is unquestioned that
Williams was on the second shift, and since Williams took the letter to the
Caverns, Smith's recitation is incredible
13 Justice related he signed the letter on the bus, about I p in It is
patent that he was on the second shift.
Smith was inaccurate in asserting that he, after reading the letter,
discussed it with Andrews and Williams He was inaccurate in asserting
that it was Andrews who went to get the letter "at her counter" and
brought it to him to read.
14 Caddell corroborated this recitation of Jordan
THE CAVERN SUPPLY COMPANY
higher wages rather than having it provided at an
unknown cost to us. We want and need more than one
three to five minute break each day in order to remain
alert and efficient.
This letter is not intended to be offensive or
threatening to you; it is simply our means of making
some of our opinions known to you. Suitable,
acceptable solutions could well be advantageous to us
all ... .
Respectively,
Interrogation of Williams-August 7
It is undisputed that Respondent has an office at the
ground level of the caverns. Williams described the office,
where all of the interrogations took place, as being
approximately 8 by 10 feet. Crump estimated the size of the
office as approximating 10 by 14 feet. I find it unnecessary
to resolve this conflict, which is not substantial. It is
undisputed that Wilson, Crump, and Caddell were present
throughout the entire period of the discussion of the letter.
It is undisputed that Crump did substantially all of the
talking for management, with the possible exception of the
area of wages. While Williams estimated the time involved
in the discussion as approximating 45 minutes to an hour,
Crump estimated the total time involved as 20 to 25
minutes. In view of the length of time it took on the record
to explain the subject matter covered, the estimate of
Williams would appear the more accurate.
It appears undisputed that the duties of the girls
employed in the underground lunchroom included making
sandwiches and wrapping them, sacking chicken, making
box lunches, washing the tables, placing merchandise on
the counters, and selling merchandise and lunches.
Approximately 20 to 25 employees, boys and girls, were so
engaged on the second shift.
Williams credibly related that Crump had the letter in
front of him, and they proceeded to discuss it sentence by
sentence.15 Crump objected to the word "most" in the first
sentence. Williams asserted she responded the reason they
were getting signatures on the letter was to determine
whether "most" of the employees felt that way or not.
Crump indicated that management was pleased to know
that the employees appreciated having their jobs, and that
the employees found the work interesting and enjoyable.
While management acknowledged the employees had
responsibilities they did not believe they were great.
Williams asserted there was a discussion of employees'
pilferage, to which Williams observed that if the employees
were paid more this condition might abate. Crump advised
that the girls were not supposed to lift heavy boxes, or trash
cans, or carry trays of sandwiches. Relative to the bus,
Crump explained the possibility of wrecks, on the mountain
roads, at 5 in the morning. Crump asserted that the bus was
a free service to the employees. Williams asserted she
explained the last two paragraphs as a summary of the first
paragraph, and further explained that the letter was not
supposed to be threatening os offensive. According to
Williams, Crump asserted that Respondent was glad to
15 Only Crump, according to Williams, asked any questions about the
letter
163
learn of the employees' opinions, but did not agree with
them. Crump advised Williams, in conclusion, that they
were just not seeing eye to eye and there was no purpose in
further talk. Williams returned to her work station, after
requesting a return of the letter, considered infra.
Crump asserted that after he and Wilson read the letter,
at the cavern office, they decided the best way to get
clarification would be hold discussions commencing with
the individuals who had signed the letter.16 Crump related
that he advised Williams that they were very concerned
about the letter, which was laying on the desk in front of
Crump. He asserted he considered the letter sentence by
sentence, depending on the thought involved, offering
explanations and allowing time for Williams to ask
questions.
Crump asserted that he advised Williams that they would
like to take the letter item by item, and try to establish an
understanding as to why things are like they are, and also to
better understand "your feelings."
Crump acknowledged that he called attention to the
statement in the letter that "most of our summer employees
are dissatisfied with the jobs." Crump inquired of Williams
"Do you really know that most of our employees are
dissatisfied?" Crump asserted that, when she responded in
the affirmative, he inquired "Have you individually talked
to most of our employees in this regard?" Williams
acknowledged that she had not, but she had talked to quite
a few. Crump then observed, "Well, then, most would be
accurate only after you had a great number of signatures
attached." Williams responded that was why she wanted to
obtain more signatures . Crump's recitation as to the
discussion of individual portions of the letter does not vary
substantially from that of Williams. Crump asserted that
the bulk of the responses by Williams, after his separate
explanations, were mainly confined to a yes, no, or a smile.
Crump acknowledged that he did primarily all of the
talking and that the contributions of Wilson and Caddell
were mainly in reference to the matter of wages, which
Wilson explained were premised on students' lack of
experience at the time of employment.
Crump described Williams' reaction as a defiant and
closeminded attitude. Crump asserted that it was very
apparent that they were making no progress in respect to
creating a better understanding. The meeting concluded
with Crump suggesting that Williams return to her work
station.
Interrogations of Andrews , Justice , Autry, and
Martin-August 8
It is undisputed that, on August 8, the other signers of the
letter, Andrews, Justice, Autry, and Martin, in that order,
were each called to Respondent's office at the Caverns and
interrogated by Crump, in the presence of Wilson, Caddell,
and Lofton, except Lofton was not present during the
interview with Autry.
Andrews credibly related that, at an unspecified time, on
the morning of August 8, Smith advised her that Smith had
been called to the surface a few minutes before. According
16 While there is a difference of opinion as to the precise time of the
interrogation of Williams, I find the time of day of no consequence.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Andrews , Smith acted very mad and asserted that he had
been accused , by Crump , of being the ringleader of the
letter, and that Smith had "gotten mad and quit ." Shortly
thereafter she was advised , by Caddell , that she was wanted
at the upstairs office.
Andrews asserted that during the interview the door of
the office was closed . She described the size of the office as
approximating 6 by 8 feet . She estimated the conversation
as extending from between 1 hour and 1-1/2 hours with
Crump doing most of the talking, 17 but occasionally others
would add a comment.
Andrews related that the opening of the conversation
concerned whether or not her being allowed to stay on the
early shift all summer had been beneficial to her
involvement in the youth activities of her church. She
responded by stating her appreciation. Crump then
inquired as to whether Andrews liked her job . Andrews
asserted she responded in the affirmative but "sort of
implied" the wages were not all that she desired.
Crump then inquired if Andrews knew about the letter.
Upon her affirmative response , Crump inquired if Andrews
had been the sole composer of it. Andrews responded that
Williams had helped . Crump inquired as to how much of
the credit Andrews would take for the preparation of the
letter, and she responded probably more than half since it
had been her idea to write it . It was after this that Crump
mentioned that Williams had been interrogated the
previous night, that she had been "close -minded and
opinionated," and Crump asked if Andrews would be more
"open-minded and less opinionated ." She indicated a
willingness to try.
Crump asserted he was surprised that the complaints had
come so late in the summer and inquired as to why
Williams and Andrews had chosen such a late date to write
the letter . Andrews asserted she responded that as the
summer progressed employee dissatisfaction had grown,
until they finally decided to write a letter.
Near the end of the conference , Andrews mentioned that
she and Williams were upset that the letter had been taken
away from them before they had obtained additional
signatures . This aspect is considered , infra.
Andrews asserted that at the very last of the confronta-
tion she was asked if she wanted to remain an employee.
She responded that she did if they were still willing to have
her. Crump responded that they appreciated her attitude.
Andrews asserted that she "apologized" because she had
not understood all of the Company 's points of view. Her
apology was for her writing and circulating the letter.
Andrews, during the conversation , inquired if Williams,
the prior night , had clarified that it was Williams and
Andrews who wrote the letter. Crump responded in the
affirmative . Andrews then asserted that Smith had nothing
to do with it . Crump then advised Andrews that Smith had
called while Andrews was on her way up to the office,
advising of his recitation to Andrews relative to the
accusation that he was the "ringleader ," by Crump, and
that he had "quit" had been a "joke."
The sentence-by-sentence format followed, during the
17 Crump 's estimate of the length of the conversation with Andrews was
1-1/4 to 1-1/2 hours
interrogation of Williams , was the format followed during
the interrogation of Andrews and the others.
Crump described Andrews' attitude during the interview
as "she seemed very receptive , was willing to take part in
the discussion , to give specific reasons, ideas behind some
of the factors set forth in the letter." Illustrative, Crump
asserted that when they reached the matter of bus fare
Andrews attributed the idea to her mother . Crump asserted
Andrews' willingness to discuss each detail accounted for
the longer period of interview.
Crump asserted he advised Andrews that they were
concerned "over the appearance of the letter " and were
trying to promote understanding between management and
the employees because of it. According to Crump , Andrews
attributed the complaint about carrying heavy objects to
Williams.
Justice was employed from July 2 until August 17, in the
underground lunchroom . One day a week he drove a truck
bringing supplies from the warehouse to the Caverns.
Justice acknowledged signing the letter , prepared by
Williams, on the bus, on the way to work . The following
day, between 1:15 and 2 : 00 p.m ., Caddell advised that he,
Crump , Wilson, and Lofton wanted to speak to Justice in
the office . He estimated that the conversation extended
from between 45 minutes to 1 hour.18
Justice asserted that Crump did most of the talking.
Crump asked him what his main concern was and his main
objections. Justice asserted that he responded that the main
thing that bothered him was the wages , that he felt it was
like a police state , that he was uneasy all the time, and that
his supervisors made him feel like he had to do everything
just right or the cavern would fall in on him . Justice
asserted that Wilson responded that he didn't like the idea
expressed , that Wilson hated communism and a police state
reminded him of communism , and that he didn't want
anything like that to be felt by anyone.
Justice asserted that he was asked why he had signed the
letter , and related that he responded that he felt it was a
civilized and quiet way of bunging to their attention the
employees ' opinions of working conditions and what
needed improvement . Crump explained to Justice the
reason for the existing wage scale. Justice indicated, in
response to an inquiry of Crump, that wages were his main
grievance . Justice asserted that Crump explained that the
Respondent could pay 80 cents an hour , but had decided to
pay $1.10 an hour , even though other park help received
only a $1 an hour.
Justice acknowledged that toward the end of the
interrogation he indicated that the meeting had been
beneficial to his understanding . He related that Crump
asked him if he would tell any employee who inquired as to
what occurred at the meeting , how the Company operated,
and why the pay rate had been fixed.
Justice asserted that Caddell advised that if the
employees had any complaints they should advise manage-
ment , and if management felt the complaint was justified
they would try to correct the situation.
Crump asserted that the conversation with Justice
followed the same pattern as his conversation with
18 Crump's estimate of the length of the conversation was I hour
THE CAVERN SUPPLY COMPANY
Williams and Andrews. Crump asserted that Justice
mentioned that his contribution in the letter was not in
composition "but in the suggestions toward grammar, word
usage , punctuation, and format." Crump asserted that
Justice stated that he had no complaint toward Respon-
dent, that his father was in business for himself and Justice
had worked for his father, and as a result understood the
problems of business. Crump asserted that Justice stated
that he appreciated his job and, without being requested to
do so, he asked permission to discuss this with his fellow
employees and to relate to them his better understanding of
the conditions existing.19
Crump asserted that his conversation with Autry lasted
approximately 45 minutes and followed the same format as
his conversation with Justice. Crump described as "the
most significant difference" were questions from Autry
answered by Wilson relative to regulations regarding
wages.2o
Autry asserted that Jordan asked if she would discuss the
letter with him. She then proceeded into the office where
Caddell, Wilson, and Crump were present.
Autry then related: it was Crump who asked Autry if
Autry had read the letter; Crump then advised her that he
wished to go over the letter point by point; he went through
the letter, and gave his explanations, advising her that she
was free to ask questions, which she did. It was Wilson who
answered the questions relating to wages.
Crump asserted that, during the conference with Martin,
Martin, without being asked, stated that she had signed the
letter only because someone had advised her that they
needed her help. Crump asserted he then inquired if she
had read the letter before she signed it, and received an
affirmative response. She then volunteered that she had
19 Crump's assertion that at no time was any letter signer asked why he
(or she) signed the letter is not credited.
I also do not credit Crump's denial that Justice made any reference to a
police state, during the interview of August 8, or his denial that Justice
indicated uneasiness by reason of managements' observation of him
working, or dissatisfaction with wages. I also do not credit Crump's
statement that Justice aided in the preparation of the letter.
20 Autry corroborated the recitation of Crump relative to the interview
in which she participated.
21 Martin corroborated the recitation of Crump, relative to the
conversation in which she participated on August 8. It was Caddell who,
near the end of the conference, inquired if Martin enjoyed her work.
In answer to a request that she state precisely what occurred, Martin
asserted:
First thing they asked me if I had seen the letter and if-wait a
minute. They asked me if I had read a petition or letter and I agreed
that I had. And they asked me, well, did I read the letter. I said yes, I
had read it once on the way to work. They asked me, "Did you agree
with everything that was said on the letter?" And I said, "well, at first
when I read it I was just, because none of the things on that letter
really pertained to me upstairs because everything that was in the
letter pertained to everybody downstairs because as a waitress my
wages were the same as theirs, $1.10 plus tips, and I guess their gripe
was because we got tips and they didn't get tips or something." They
asked more or less why, what my reasons were for signing the letter. I
told them when Susan asked me and showed me the petition on the
bus she more or less was trying to get sympathy-wait a minute, I
don't know how to state it. I just felt sorry for her and I was trying to
help them. I just signed it because I wanted to help them.
Asked to identify who asked her why she signed the letter, Martin
identified Crump as having made the inquiry.
Later, after completing her testimony, and after a recess, Martin
returned to the stand and attempted to recant her assertion relative to this
inquiry. Since it is obvious, and undisputed, that Crump made numerous
inquiries of each of the letter signers, there is no reason to doubt that
165
since learned that she didn't know anything of the
conditions in the lunchroom and that the conditions listed
were exaggerated. It is undisputed that Martin worked in
the upstairs restaurant. Crump estimated that his conversa-
tion with Martin lasted approximately 20 to 25 minutes.
Crump asserted that Martin stated that she had no
complaints about her job, that she liked her job, and that
she expected to remain through Labor Day weekend.21
Suppression of August 6 Letter
It is alleged that Respondent restrained employees from
circulating a petition and soliciting signatures. The
evidence relative to this matter is next considered.
Williams credibly related that near the end of the
conference, on August 7, she requested the letter be
returned because other employees wanted to sign it. Crump
advised her if other employees wanted to sign the letter they
could come to the office. Williams responded that she was
certain they would not come to the office for that purpose.
Williams denied having been requested to allow the
Company to keep the letter long enough to make a copy of
it, or stating that she had other copies and that they could
keep the original. Williams denied advising Smith, after
August 7, that the Company had refused to return the letter
to her, or that the Company had requested an opportunity
to make a copy of the letter, and that she had advised Smith
that she advised Crump to keep the letter as she had plenty
of other copies. Williams denied talking to Smith at any
time after August 7.22
Asked if she requested a return of the letter, during her
conversation with Crump and the others, on August 8,
Andrews asserted "Toward the last of the conversation, I
Martin's initial testimony is more accurate than her recantation. I find
accordingly.
22 In view of the events immediately following August 7 , as established
in the record , I find Williams' assertion that she did not talk to Smith after
August 7 credible . I also infer that she did not talk to Smith on August 7
after her conference with Crump, et al.
Smith asserted that "later the same day ," August 7 , he wondered what
had happened to the letter and asked Williams. According to Smith,
Williams asserted they would not give the letter back . Smith then stated
"so I thought that was sort of rotten really, you know, I didn't think they
would take it up and not give it back to her or anything, but I thought it
was rotten if they did . But anyway, she told me later that they actually
wanted to see the letter and make a copy of it and that they didn't keep it
at all."
Williams placed the time she was called into the conference , on August
7 as approximately 5:45 p . m. Crump placed the time as approximately 3
p.m. In either event , it is patent that since Smith returned with the first
shift on the bus he could not have been at the worksite at the conclusion of
the conference . Smith acknowledged that he rode the bus with the first
shift . In addition, it is undisputed from the testimony of Crump that the
letter was not in fact returned to Williams at any time . Smith's recitation is
implausible , incredible , and patently false.
Crump acknowledged that , at the end of the conference, on August 7,
Williams requested a return of the letter . Crump asserted that he requested
permission to keep the letter to make a photocopy of it, before returning it.
Crump suggested that , in the meantime , anyone expressing a desire to sign
anything could sign it at any time in the downtown office or in the Cavern
office and that Respondent would not restrict anyone from signing
anything relating to employee conditions . Crump asserted that Williams
responded that they could keep the letter because she had numerous
copies . Crump acknowledged no subsequent attempt was made to return
the letter . I do not credit this recitation of Crump. In so finding I am not
unmindful of stipulations that Wilson and Caddell would corroborate the
recitation of Crump.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mentioned that Susan and I were upset that the letter had
been taken away before we got more signatures on it. Mr.
Wilson replied at this point that the letter had been
addressed to him, and so thus it was his property. However,
they didn't offer to give them the letter back or anything."
Andrews then asserted that "they" (Crump) mentioned that
there were fallacies on the letter and they felt if the letter
were kept in circulation that it would cause dissention and
trouble, that by taking it out of circulation, and having
copies available in the office at the cave, and the office
downtown, if anyone wanted to sign the letter they could go
to the office and sign it, and the Company could clarify the
fallacies and "restate" their point of view.23
Transfer of Williams-August 8
Crump acknowledged that between 11 and 11:30 a.m., on
August 8, by telephone, he advised Williams to report to the
warehouse, rather than to take the bus to her usual job.
Crump described the reason for the transfer as twofold,
"By using a standard of comparison in our discussions with
all of the people that we had discussed the letter with we
were convinced that if there was an element that would
have been very undesirable, an influence to the people, of
an employee of Cavern Supply Company it would be one
individual if this element did, in fact, exist." Crump then
made reference to literature received from the Illinois
Manufacturers Association relative to the possibility of a
campaign by the Students for a Democratic Society,
considered infra.
While the time of the conference of Crump, Wilson,
Caddell, and Lofton with Andrews, on August 8, may have
been before noon, at the Cavern office, the conferences
with Justice, Autry, and Martin did not occur until after
they had reported, for the afternoon shift. Crump's premise
that the transfer in any way resulted from his conversations
with all of the people who had signed the letter is thus
transparently false.
Crump asserted the normal complement of the ware-
house was one full-time year-round employee, one full-time
summertime employee, and a call-in employee on an "as
needed" basis. According to Crump, on August 7, the call-
in employee advised she was no longer available and this
created a shortage. Crump, who acknowledged Respon-
dent's suspicion that Williams was involved with SDS, and
asserted that was a reason for the transfer of Williams, on
August 8, also related that he had advised Williams that
23 Crump acknowledged that mention was made, during the interview
with Andrews, of his retention of the letter Crump asserted that Andrews
stated that it made her "mad" that they had taken the letter and would not
return it Crump asserted that Wilson, at this point , said, "Well, Jan, it was
addressed to me and I thought by this that I should be able to read it"
According to Crump, Andrews then said they wanted to get it "all fixed
up" for Wilson. Crump asserted that he explained to Andrews that
Williams had requested the return of the letter, the prior day, that
Respondent had requested that they be allowed to keep it and have copies
made , and that Williams had responded that she had copies and that they
could just keep it.
Both Williams and Andrews, on rebuttal, denied agreeing that the
Company could keep the letter for the purpose of making copies or for any
other reason Andrews denied that either Crump or Wilson stated that
Williams had given them permission to keep the letter. She reiterated that
Crump had stated they intended to keep the letter because of the falsities it
contained , which they knew would cause dissention and trouble On this
they had to get the souvenir and curio items out quickly and
this required more than the normal staff.
Crump acknowledged advising Williams she was trans-
ferred because of a vacancy in the warehouse. Williams'
hours at the warehouse were 7 a.m. to 4 p.m., with
Saturdays and Sundays off. Williams related that, on
Friday, August 8, at or about 3:30 p.m., Crump advised her
that she would be working in the warehouse for the rest of
the summer.24 It is undisputed that Williams did work at
the warehouse on Monday, Tuesday, and Wednesday,
August 11, 12, and 13, and was discharged on the latter
date.
Crump related that Williams' replacement, Lucy Mendez
Fierro, was hired on August 13. Fierro is listed, on
Respondent's list of replacement employees hired in July
and August, as having been hired on August 13, and as
being a clerk in the gift shop, evidently employed on a year-
round basis as the list shows all terminations to and
including one on March 4, 1970. While Fierro may have
initially worked in the lunchroom, as asserted by Crump,
there is no contention that she, or anyone else, replaced
Williams in the warehouse.25
Crump acknowledged that he did not indicate to
Williams, at any time, that she would be retransferred to the
caves if she remained as an employee.
The Discharge of Williams-August 13
Williams credibly related that, during her discussion with
Crump, on August 8, set forth in the preceding subsection,
when Crump requested her to work in the warehouse for
the rest of the summer, she advised him that she was going
to quit on August 20 because her boyfriend was coming to
town and her mother wanted Williams to help her. Williams
asserted that Crump responded that that would work out
better for them as they probably wouldn't need her for the
whole summer.26 Williams denied that Crump, on August
8, suggested that she reconsider her intention, or that he
inquired if she had reconsidered, at a following conversa-
tion, on August 13.27
On August 13, about 3:30 p.m., Crump called Williams
into his office. The office secretary, Schoonover, was also
present.28 Williams credibly related that Crump told her
that he would ask for her termination. She requested an
opportunity to wait until the following day in order to
advise him whether or not she wanted to terminate. Crump
responded they wanted a definite answer then. When
conflict I credit Williams and Andrews.
24 The denial of this statement by Crump is not credited. Crump
acknowledged that during this conference, during which there was a
discussion of Williams quitting, considered infra, he advised her to report
to the warehouse the following Monday and the successive days thereafter
25 1 find it unnecessary to treat with Respondent's assertion that it did
transfer an identified seven employees from the caves for 1, 2, or 3 days
work in the warehouse, during the same summer The question presented
here is the reason underlying the selection of Williams
26 Crump's denial of the last statement is not credited.
27 Crump's assertions that he had made a request for Williams to
reconsider, and had made the inquiry on August 13, are not credited
28 The transcription of the notes allegedly made by Schoonover during
this conference were rejected by reason of lack of proof of authenticity
However, Respondent's inability to produce Schoonover, assertedly by
reason of her condition of health, was wholly undocumented, and
unimpressive
THE CAVERN SUPPLY COMPANY 167
Williams did not respond, Crump advised her, "Well, this is
a mandatory termination ." Crump then advised Williams
that if congratulations were in order "for causing the
dissention and trouble that we had started that he could
offer his congratulations because we partially succeeded."
Williams responded they were not trying to cause disorder
or dissention, but thought the trouble was there and they
wanted to tell him about it.29
Williams returned to Respondent's office the following
day to obtain her final paycheck. It is undisputed that the
pay period ran from Thursday through Wednesday each
week.
Respondent's Defenses
Interrogation
During the hearing, and in its brief, Respondent urged
justification of the interrogations on the ground of
warnings received from Illinois Manufacturers' Association
relative to SDS demonstrations in the nature of student
summer "work-ins" (sit-ins).
In his opening statement, Respondent's counsel asserted
that Wilson and Crump, having been so warned of the
possibility of a campaign to disturb their business, "formed
the opinion" in talking to Williams, on August 7, that they
were experiencing something they had been warned might
occur. This was their frame of mind when they requested
Williams to report to the warehouse, on the morning of
August 8. Respondent's counsel acknowledged, as did
Crump, that this suspected activity was one reason for the
transfer of Williams. Respondent's counsel asserted "the
end result of the interviews with the other five signers
convinced the Company that this was not an SDS
proposition, but rather was a result of a lot of rumors and
misunderstandings and possibly some basic true feelings of
people. At that point, their earlier opinion being rather firm
pertained to Miss Williams being an SDS agitator, their
opinion did change, although there was suspicion as far as
she herself was concerned, they were convinced by the
other people that were involved with this petition that what
they had had to say that this was not an SDS move on the
part of anybody else, certainly."
Crump acknowledged that SDS was not mentioned in
any of the interviews with any of the five employees.
In his brief , Respondent 's counsel asserts:
In view of the fact that this Company employed so
many students for the vast bulk of its summer
employees, they had felt themselves to be particularly
vulnerable to this threatened SDS "work-in" and after
talking with Miss Williams concerning the subject
matter of the letter and encountering her defiant and
closed-minded attitude, became rather convinced that
this letter and her role in connection with it was a part
of this threatened SDS "work-in" to cause disruption
and dissension.
Even were I to assume the existence of a valid basis for
Respondent's conclusion that Williams was engaged in
activity on behalf of SDS, a fact completely without
substance on the basis of this record, Congress has not seen
fit to exclude members of SDS, or in fact the Communist
Party, from protection of the rights granted employees in
Section 7 of the Act.30
Respondent's defense relative to SDS is without sub-
stance and is neither relevant nor material for the reasons
indicated.
In its beef , Respondent contends it was foreclosed from
fully developing its defense, because of the method used by
the Trial Examiner in closing the hearing. While in its brief,
Respondent asserted that it had additional "witnesses," at
the time of the hearing Respondent asserted the only
remaining witness was President Wilson. Respondent made
no proffer as to what evidence Wilson would present, in
addition to his corroboration of the extensive testimony of
Crump.3i
Grounds for Discharge
Crump initially asserted that, as a matter of policy,
students were considered for employment only "if they
would agree to stay through the entire summer up to Labor
Day." An emergency, which Respondent considered a
"valid reason," was an exception. Crump also stated that
when they indicated a desire to quit early they were asked
to "terminate immediately. "
Crump acknowledged that, on August 8, when Williams
advised him that she intended to leave on the 20th he did
29 Crump's version of the conversation, in support of Respondent's
asserted defense was that all summer employees were hired on the basis
that they would agree to remain until Labor Day, considered further, infra
Crump related that he reminded Williams of her commitment when she
was hired , made personally to him, that she would stay through Labor
Day He asserted this elicited a response from her that she did not make
such a promise, that she told him that she would "try." He then inquired if
she considered this a "valid " reason for leaving early Upon obtaining an
affirmative response , he advised her he did not so consider it I credit
Williams ' denial that she had given an unqualified commitment
Crump asserted when a large number of people leave Respondent's
employment just previous to Labor Day it creates an impossible situation
as there is not sufficient time to recruit people Accordingly, when it is
made known to Respondent that an employee does intend to leave earlier
the Labor Day weekend, "without any good reason," they are then
requested to make their termination effective immediately . He asserted that
he so advised Williams on August 13, asking if she understood He
acknowledged that at this time she inquired if she could let him know the
following day He requested the answer be given then He acknowledged
that after a long pause , without her giving an answer, he asserted , "Susan,
we have tried to make this voluntary for the reasons explained If you will
not, we have no choice but to make your termination mandatory as of this
date At any rate , we will not need you any further for the reasons
explained "
Crump asserted that he then advised Williams that they appreciated the
good job she had done, that she was a very good employee, and that it was
unfortunate that she was leaving early.
Crump denied that his concern about SDS had anything to do with the
discharge
30 While numerous unions were expelled from the CIO, more than 20
years ago, as allegedly communist dominated , Congress has never adopted
legislation barring such organizations from eligibility for selection as
bargaining agents
Respondents' assertions relative to the SDS constitute in my view, a red
herring, to deliberately confuse rather than clarify the issues herein
31 Crump's direct testimony alone covered 120 pages. It is undisputed
that Crump, not Wilson, conducted the interrogation of the five letter
signers According to the record, particularly the testimony of Crump,
Wilson's contributions were in response to questions relative to wage
structure and the return of the letter The latter being on the request of
Williams and Andrews
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not ask her to terminate forthwith. Asked if he had not
earlier testified that employees who indicated a desire to
leave, without good cause , were requested to terminate
immediately, Crump qualified it with "as soon as the
replacement can be lined up." He acknowledged that he did
not request Williams to resign on August 8.
Crump, who asserted that he would not hire a student
who would not agree to remain through Labor Day, except
for something of an emergency nature, acknowledged that,
on August 8, when he sought to remind Williams of her
committment, she responded "I didn't promise. I told you
that I would try." 32
Ostensibly in support of its contention that it required
those who desired to leave early, without good cause, to
terminate forthwith Respondent introduced a list of "Early
quits and terminations-July - nd August 1969." The list
contains 39 names, 2 of whom were terminated ostensibly
for cause , 23 of whom left without notice, 9 of whom, it may
be inferred, may have left for reasons which Crump may
have found to constitute good cause, and 5 of whom,
including Williams, indicated they wanted to leave early
and were asked to terminate immediately 33
Having a list of employees hired in July and August, and
having asserted employees were terminated when replace-
ments were available, Crump was unable to relate the
identity of the replacements of Davis and Skeen. The
replacement list is only 28 in number. Crump asserted, "It
would be hard to specifically say which persons that were
hired as replacements filled a particular person's job."
Crump thus contradicted his earlier assertion that Fierro
replaced Williams.
I am unable to find from this record any consistent
pattern, or any policy known to the employees.
Concluding Findings
There can be no question that the conduct of Williams
and Andrews in preparing, circulating, and obtaining
signatures on the letter of August 6, complaining about
working conditions, is protected concerted activity within
the meaning of Section 7 of the Act.
In a determined effort to obfuscate and obliterate the real
issues presented, Respondent 's brief is addressed, inter aha,
to the right of employees to grieve, as contained in Section
9(a). For the same purpose, Respondent advances what is
commonly known as the freedom of speech provision
contained in Section 8(c), which prohibits expressions of
views which contain threats or promises. Neither section
has application to the problem herein.
In the Blue Flash case 34 the Board held that interrogation
of an employee as to union membership, activities, and
32 Accordingly , I credit Williams recitation , as follows
Q. Now, when you were hired were you told anything about
working for a specified period of time'
A Yes, I was asked to work until August , until Labor Day, and I
told them I would try, that I didn't know if I could
Andrews related that pursuant to a similar request she advised "if at all
possible" she would work through Labor Day
33 The four, who assertedly fit the category of Williams, who were told
to terminate immediately because they indicated a desire to leave early, are
Davis, Earnest, LaCfair, and Skeen
Earnest, on July 14, wanted to take off 2 weeks for a vacation with her
parents She was advised of a choice , i e , stay on the job or terminate, she
desires is not per se unlawful. The Board, in that case, found
legitimate reason for inquiry which was conducted with
appropriate safeguards. The Board held that the test is
whether, under all the circumstances, interrogations
reasonably tend to restrain and interfere with the
employees in the exercise of rights guaranteed by the Act.
In the Johnnie's Poultry case35 the Board held that the
purpose which the Board and courts have held legitimate
(permitting interrogation) are of two types: verification of
the union's claimed majority status to determine whether
recognition should be extended, and the investigation of
facts concerning issues raised in a complaint where such
interrogation is necessary in preparing the employer's
defense for the trial of the case. The Board further stated:
In allowing an employer the privilege of ascertaining
the necessary facts from employees in these given
circumstances, the Board and Courts have established
specific safeguards designed to minimize the coercive
impact of such employer interrogation. Thus, the
employer must communicate to the employee the
purpose of the questioning, assure him that no reprisal
will take place, and obtain his participation on
voluntary basis; the questioning must occur in a context
free from employer hostility to union organization and
must not be itself coercive in nature; and the questions
must not exceed the necessities of the legitimate
purpose by prying into other union matters, eliciting
information concerning an employee's subjective state
of mind, or otherwise interfering with the statutory
rights of employees. When an employer transgresses the
boundaries of these safeguards he loses the benefits of
the privilege.
It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on
the Employer's motive or on whether the coercion
succeeded or failed. The test is whether the Employer
engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights under
the Act. American Freightway Co., Inc., 124 NLRB 146.
General Counsel correctly calls attention to the fact that
this series of interrogations were conducted by the two top
officers of the Company, together with the manager, and in
three instances the assistant manager, of the Cavern, in a
private office. There can be no question that the purpose of
Respondent, in conducting these interviews, was to
ascertain the identity of the authors and the views, beliefs,
and sympathies of the letter signers.36 Respondent's
conduct must be considered in totality. The purpose of the
interrogation is apparent from Respondent's transfer of
Williams, to foreclose further action by her.
Questioning employees about the preparation, circula-
quit
Crump acknowledged that LaClair was not asked to terminate when she
first advised that she desired to take a vacation with her parents Rather
she was given the choice of taking the vacation or remaining at work It
was not until a week later , when she made her choice , that she was advised
she would be terminated
Davis and Skeen gave notice they wanted to leave early and were
terminated simultaneously , on August 7 When they gave notice is obscure
34 Blue Flash Express, 109 NLRB 591
as Johnnie 's Poultry Company, 146 NLRB 770, 775
36 Varo, Inc, 172 NLRB No 236, enfd. 425 F 2d 293 (C A 5)
THE CAVERN SUPPLY COMPANY
tion, and signing of the letter relating to wages, hours, or
working conditions, in the manner found supra, was
coercive and constituted interference, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act.37
I so find.
I have found, supra, that on August 7, Williams requested
a return of the letter. A similar request was made the
following day by Andrews. It is undisputed that the letter
was not returned at any time thereafter. Respondent's
effort to establish that Williams consented to a retention of
the letter by Respondent has been found incredible 38 I find
the retention of the letter precluded its further circulation
among the employees and this conduct constituted
interference, restraint, and coercion relative to a concerted
activity in which the employees sought to engage, and such
conduct is violative of the provisions of Section 8(a)(1) of
the Act.
Crump left no doubt that Williams' activity in drafting
the August 6 letter, and obtaining the signatures of Autry,
Justice, and Martin thereon, coupled with Respondent's
alleged suspicion that this might constitute SDS activity,
was Respondent's motivation for selection of Williams for
transfer to the warehouse.39
Thus, the motivation for the transfer was unquestionably
to remove Williams from her normal work area, where
Respondent considered her continued presence undesirable
by reason of the concerted activities in which she was
engaging. It is well established, in Board and court
decisions, that the existence of a legitimate reason for a
transfer does not relieve an employer from a finding of
conduct violative of the Act where there is a mixed motive
including conduct proscribed by the Act. Accordingly, for
the reasons stated, I find transfer of Williams constituted
interference, restraint, and coercion and was violative of
Section 8(a)(1) of the Act.
There remains for resolution the question of whether the
discharge of Williams, on August 13, was motivated,
entirely or in part, by the protected concerted activities of
Williams.
Respondent, through Crump, sought to establish that
Williams was discharged on August 13, solely because she
indicated that she did not intend to abide by her
commitment and remain through Labor Day, but intended
to leave on August 20. Respondent's contention will not
withstand close scrutiny. Crump would have it believed
that, on August 8, when Williams first advised him of her
intention to leave on August 20, he did not request her to
resign "forthwith" [in conformity with Respondent's
37 Duo-Bed Corporation, 145 NLRB 1504, enfd 337 F.2d 850 (C A 10),
cert denied 380 U.S 912, Montgomery Ward & Co, Incorporated, 156
NLRB 7
38 Obviously if Williams had agreed , the prior day, to the retention of
the letter by Crump, there would have been no purpose in Wilson pointing
out to Andrews, on August 8, that the letter was addressed to him Crump
acknowledged Wilson so stated.
39 Crump's assertion is illuminating
Q Would you tell us why you called Susan Williams to report at
the warehouse for processing that day rather than report to her usual
job at the Caverns?
A The purpose was two-fold By using a standard of comparison
in our discussions with all of the people that we had discussed the
letter with we were convinced that if there was an element that would
be very undesirable, an influence to the people, of an employee of
Cavern Supply Company it would be one individual if this element
169
alleged policy] rather he asked her to "reconsider because
of her commitment to the company." Crump acknowledged
that he hired Fierro, described as Williams' replacement,
during the morning hours of August 13. In fact, Crump
asserted that Fierro worked at the Caverns, in the
lunchroom, on the second shift on August 13. The second
shift bus left downtown at 12:30 p.m. She was thus in active
employment prior to the discharge interview involving
Williams. Crump also related "on the 13 [of August] from
approximately 3:20 to 3:25 p.m." he called Williams into
the office to ascertain if she had "reconsidered" as he had
requested her to do on August 8. When Williams requested
until the following day to advise him of her decision,
Crump advised that he was terminating her.
Crump acknowledged advising Williams, at the time of
her discharge, that she had been a very good employee and
that Respondent appreciated the good work she had done.
Respondent's assertion that he afforded Williams an
opportunity to "reconsider" must be held to be without
substance when, in fact, her replacement had been hired
prior to Respondent's determining whether she had so
reconsidered. Respondent's motive becomes transparent
when it is noted that Fierro, Williams' replacement,
reported for work in the Caverns where Williams had
formerly been employed. Crump acknowledged that he
never advised Williams that Respondent was considering
returning her to her former duties at the Caverns.
Accordingly, for reasons set forth, I find Respondent's
purported reason for the discharge of Williams is
pretextuous and that her discharge, under circumstances
found herein, constituted interference, restraint, and
coercion, and was violative of Section 8(a)(1) of the Act.40
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section II,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and, such of them as
have been found to constitute unfair labor practices, tend
to lead to the labor disputes obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged, and is
engaging, in certain unfair labor practices, it will be
did, in fact, exist
Q What element are you referring to?
A I am referring to our having been made aware that we would
need to be watchful of any attempt of organizations, especially SDS,
within the American industry within the summer of 1969 The alert
that we received through the mail followed very closely the pattern,
attitude and apparent goal that we were experiencing on the part of
one person at this time The reason for this was supported also by
opening that had come in the processing staff in the warehouse in the
Carlsbad office
(I have found , supra, that the transfer did not , as asserted by Crump,
follow interviews with the other letter signers )
40 KPRS Broadcasting Corporation, 181 NLRB No 66, KDI Precision
Products, Inc, 176 NLRB No 18, Duo-Bed Corporation, supra, Indiana
Gear Works, 156 NLRB 397
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the
Act.
While General Counsel urges the remedy of reinstate-
ment, afforded by the Board in many cases, I find this
remedy not appropriate herein as the period of employment
for which Williams was hired has long since passed.
However, I will recommend that Respondent make Susan
Williams Bergauer whole for any loss of pay she may have
suffered by the payment to her of the sum she would have
earned, had she continued working in the warehouse from
the date of her discharge, August 13, 1969, to and including
Labor Day, September 1, 1969,41 less the net earnings
during said period. Interest on backpay shall be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking of the amounts of
earnings due.
In view of the nature of the unfair labor practices
committed, the commission of like or related unfair labor
practices reasonably may be anticipated. I shall therefore
recommend that Respondent be ordered to cease and desist
from, in any like or related manner, infringing upon rights
guaranteed its employees by Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The evidence adduced herein establishes that Susan
Williams Bergauer was discharged on August 13, 1969, and
that said discharge constituted a violation of Section 8(a)(1)
of the Act.
3. By engaging interference , restraint, and coercion, to
the extent therein in
3. By engaging in interference , restraint , and coercion,
to the extent therein found , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
recommend that The Cavern Supply Company, Inc., its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees in the manner violative of the
provisions of Section 8(a)(l) of the Act.
(b) Restraining employees circulating a petition or
soliciting signatures thereto, when such petition involves
grievances regarding wages, hours, and other terms and
conditions of employment, in a manner violative of the
provisions of Section 8(a)(1) of the Act.
(c) Transferring employees from the Caverns to the
downtown warehouse, or discharging employees, for
engaging in protected concerted activities in violation of the
provisions of Section 8(a)(1) of the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage in, or refrain from engaging in, any or all of
the activities specified in Section 7 of the Act, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make whole Susan Williams Bergauer for any loss of
pay she may have suffered by reason of Respondent's
discharging her in accordance with the recommendation set
forth in The Remedy herein.
(b) Preserve and make available to the Board, or its
agents, upon request, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of the Recommended Order herein.
(c) Post at its place of business, in Carlsbad, New Mexico,
and at the Carlsbad Caverns, copies of the attached notice
marked "Appendix." 42 Copies of said notice to be
furnished by the Regional Director for Region 28, after
being signed by Respondent's representative, shall be
posted by the Respondent and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing each of Respondent's bulletin boards. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision, what steps it has taken to comply
herewith.
IT IS FURTHER RECOMMENDED that unless Respondent
shall within 20 days from the receipt of this Trial
Examiner's Decision notify said Regional Director, in
writing, it will comply with the foregoing Recommended
Order,43 the National Labor Relations Board issue an order
requiring that Respondent take the action aforesaid.
41 In finding the backpay period should not terminate until September
it is noted that while Bergauer had indicated an intention to leave on
August 20 , she requested , and was denied an opportunity to make a final
decision in that regard
42 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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 waived for all purposes . In the event
that the Board 's 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 be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
43 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this order, what steps Respondent
has taken to comply herewith "
THE CAVERN SUPPLY COMPANY 171
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
zation as a condition of employment, as authorized by
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL make Susan Williams Bergauer whole for
any loss of pay she may have suffered by reason of our
discharging her, on August 13, 1969, in violation of the
Act.
WE WILL NOT interrogate employees in a manner
violative of the provisions of Section 8(a)(1) of the Act.
WE WILL NOT restrain employees from circulating a
petition or soliciting signatures thereto, when such
petition involves grievances regarding wages, hours, or
other terms and conditions of employment, in a manner
violative of the provisions of Section 8(a)(1) of the Act.
WE WILL NOT transfer employees from the Caverns to
the downtown warehouse, or discharge employees, for
engaging in protected concerted activities in violation of
the provisions of Section 8(a)(1) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in, or refrain from engaging in, any
or all of the activities specified in Section 7 of the Act,
except to the extent that such right may be affected by
an agreement requiring membership in a labor organi-
THE CAVERN SUPPLY
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board 's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Avenue,
S.W. P.O. Box 2146, Albuquerque, New Mexico 87101,
Telephone 843-2582.