The Cavern Supply Co., Inc.

National Labor Relations Board - Board Decisions

May 15, 1973

203 N.L.R.B. 583 (N.L.R.B. 1973)

CAVERN SUPPLY CO.
The Cavern Supply Company, Inc. and United Steel
Workers of America, AFL-CIO
The Cavern Supply Company, Inc. and United Steel
Workers of America, AFL-CIO Petitioner. Cases
28-CA-2463 and 28-RC-2241
May 15, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On December 22, 1972, Administrative Law Judge
James R. Webster issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, The Cavern Supply Compa-
ny, Inc., Carlsbad, New Mexico, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
IT IS FURTHER ORDERED that ( 1) the challenges to the
ballots of Douglas Haney, Dorotha Shipman, Eddie
Minter, Bennie Grant, and W. R. Noftsker be over-
ruled, (2) Petitioner's objections 2b and 2c be sus-
tained and all other objections of Petitioner be
overruled, and (3) Case 28-RC-2241 be, and it hereby
is, severed and remanded to the Regional Director to
open and count the ballots of Douglas Haney, Doro-
tha Shipman, Eddie Minter, Bennie Grant, and W. R.
Noftsker, and to issue a revised tally of ballots and a
certification of representative if the United Steel
Workers of America, AFL-CIO, has received a ma-
jority of the valid votes cast. In the event the Union
has not received a majority, the election conducted on
December 1, 1971, shall thereupon be set aside and a
new election shall be conducted when the Regional
583
Director deems that circumstances permit a free
choice by the employees.
1 We note the following minor errors in sec. B of the Decision of the
Administrative Law Judge , which in no way affect the result in this case: The
Decision states that Jordan, rather than Caddell, told McDonald to follow
the instructions of his "supervisor" on the occasion when McDonald refused
to `jerk coffee" as instructed by Haney. Due to a typographical error, the
Decision states that in the fall of 1971, Haney was asked if "employer," rather
than employee , Roland Marshall , was not a pretty good person. In one
instance, the Decision states that each day Haney or Department Head
"Johnson," rather than Jordan , determined how much chicken would be
needed
We find no meet in Respondent's exception to the Administrative Law
Judge's failure to find that the Board's decision in a prior proceeding (187
NLRB 160) is resjudicata wth respect to the supervisory status of employee
Haney. In the earlier case , the Board adopted the Administrative Law
Judge's finding , based solely on the complaint allegation and Respondent's
admission in its answer, that employee Max (Mike) Smith who, like Haney,
was a "supervisor" in the cavern lunchroom , was a supervisor within the
meaning of the Act. While Smith was a witness in that proceeding , neither
his conduct nor his supervisory status was contested or litigated . According-
ly, the Board's decision in the prior proceeding is not determinative of
Haney's supervisory status in the present proceeding..
DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Administrative Law Judge: This case
was heard in Carlsbad, New Mexico, on June 20-23 and
August 1-3, 1972, upon a complaint of the General Counsel
and answer of The Cavern Supply Company, Inc., herein
called Respondent or Employer, and on an order consoli-
dating cases issued by the Regional Director for Region 28
of the National Labor Relations Board. The complaint was
issued on April 10, 1972, on a charge filed November 12,
1971. The complaint alleges that Respondent discrimina-
torily discharged Douglas W. Haney and that Respondent
illegally interrogated employees, thereby engaging in viola-
tions of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, herein called the Act.
The order consolidating cases was issued on April 10,
1972, and directed hearing on Objections 2, 3, and 4 filed
by the United Steel Workers of America, AFL-CIO, herein
referred to as the Union or the Petitioner, in Case 28-
RC-2241, and directed hearing on the challenged ballots
cast by W. R. Noftsker, Douglas Haney, Dorotha Ship-
man, Eddie Minter, and Bennie Grant. An election was
conducted in this case on December 1, 1971, with 17 votes
cast for Petitioner, 19 votes cast against the Union, and 5
votes challenged.
Briefs have been filed by the General Counsel and the
Respondent and statement of position was filed by the
Union. These have been carefully considered. Upon the
entire record, including my observation of the demeanor of
the witnesses, I hereby make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is a New Mexico corporation with its office
203 NLRB No. 97
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Carlsbad, New Mexico. It is engaged in the operation of
a restaurant, a lunchroom, and a curio and gift shop at the
Carlsbad Caverns National Park, approximately 20 miles
from the city of Carlsbad. During the past 12-month period,
Respondent purchased and received at its place of business
in New Mexico, foods, curios, restaurant supplies, and other
goods and materials of a value in excess of $50,000 that were
shipped directly from suppliers located in other States of the
United States. During the same period, Respondent sold
and distributed products and performed and provided serv-
ices, the gross value of which exceeded $500,000.
I find that Respondent is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The United Steel Workers of America, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
AND OBJECTIONS TO ELECTION
A. The Issues
1. Whether Douglas W. Haney was a supervisor within
the meaning of the Act.
2. Whether General Manager George Crump illegally in-
terrogated and otherwise coerced Douglas Haney and other
employees, and whether Department Head James Jordan
illegally interrogated employees in November 1971.
3. Regarding the challenged ballots of Dorotha Shipman,
Eddie Minter, and Bennie Grant, were they supervisors
within the meaning of the Act?
4. Regarding the challenged ballot of W. R. Noftsker,
was he an employee of Respondent or did he do accounting
work for Respondent as an independent contractor?
5. Did Respondent interfere with the results of the elec-
tion by acts of interrogation and coercion of employees, by
the discharge of Douglas Haney, by a speech made by com-
pany attorney to employees on November 30, 1971, by the
presence of the company president and company attorney
in the company restaurant during the polling period, by
padding of payroll, and by the contents of letters distributed
to employees by Respondent shortly before the election?
B. Douglas Haney, Supervisor or Employee
Haney was employed by Respondent in June 1968 and
was fired on November 2, 1971. He started his employment
as a temporary employee in the underground lunchroom.
His status changed to that of permanent employee in Sep-
tember 1968. In June 1969, Haney was promoted to the
position of "supervisor" in the underground lunchroom. At
the time of his discharge, his immediate supervisor was
James Jordan, the department head of the underground
lunchroom. Jordan reported to Bob Lofton, assistant opera-
tions manager, and to Bob Caddell, operations manager.
George Crump was general manager.
Respondent's operations are seasonal with the busy tour-
ist season being from Memorial Day to Labor Day each
year. Carlsbad Caverns are open year round, and
Respondent's permanent staff of employees that work
throughout the year number about 29 hourly paid employ-
ees, 5 hourly paid "supervisors" and 4 salaried department
heads. Besides James Jordan as department head of the
underground lunchroom, there are department heads of the
restaurant, the curio shop, and the nursery, all located at the
entrance to Carlsbad Caverns. The food sold in the under-
ground lunchroom consists of box lunches, sandwiches, soft
drinks, and candy. Cooking is done in the restaurant above
ground. During the summer months, Respondent hires ap-
proximately 90 additional temporary employees; these are
distributed among the four departments previously men-
tioned. In addition to prepared lunches, tourists may pur-
chase refreshments, curios, camera supplies, and related
items in the underground lunchroom.
During the summer of 1971, there were two "supervisors"
In the underground lunchroom under Department Head
Jordan; these were Douglas Haney and Leonard Flores.
Each had a crew of approximately 20 employees. In the fall
of 1971, besides Jordan, there was one "supervisor," Haney,
and eight other employees in the lunchroom.
The work performed by the employees in the under-
ground lunchroom consists of making sandwiches and pre-
paring lunchboxes, dispensing of these items to customers,
operating the cash register, sweeping the floor, emptying
trash cans , cleaning tables, lunch counters, kitchen area,
and the bailer room. Haney directed a crew of lunchroom
employees in these operations. During the summer months,
the busy season, Haney spent approximately 50 to 60 per-
cent of his time directing the work of the employees in his
crew in the things that needed to be done; and the remain-
der of the year, the off-season , Haney spent about 90 per-
cent of his time in the manual work of the department and
10 percent in directing other employees. The permanent
employees are experienced in the work of the department
and do not require the direction needed by the summer
temporary employees.
The Caverns are open 7 days a week, and Jordan and
Haney and all employees are scheduled for work 5 days
each week. Due to the fact that each employee is off 2 days
each week, the number at work each day in the summer
necessarily consisted of about 15 employees and in the off-
season of about 6 employees. During the 2 days that Jordan
is off, Haney is the only one in the department directing the
work of the employees, but the responsibilities and authori-
ties of "department head" are taken over by Operations
Manager Caddell or Assistant Operations Manager Lofton.
In Jordan's absence if something came up that required
action by the department head, Haney would call either
Lofton or Caddell, who came down from the surface facili-
ties to the underground lunchroom more often during days
that Jordan was not there.
From November 2, 1971, until late April 1972, when Ro-
land Marshall was designated as "supervisor" in the lunch-
room, a period of approximately 6 months, there was no
"supervisor" in the lunchroom.
Haney, and other comparable "supervisors"-Dorotha
Shipman in the restaurant, Eddie Minter, and Bennie Grant
in the curio shop-whose ballots were challenged at the
Board election of December 1, 1971, were hourly paid and
CAVERN SUPPLY CO.
received time and a half for overtime . Jordan and other
department heads are salaried and receive no overtime pay.
When Haney was terminated , he was receiving $1.95 per
hour. The hourly rate of the other permanent employees in
the lunchroom was $1.60 to $1.80 per hour.
In February 1969, the base rate of pay of Respondent's
permanent employees was $1.30 per hour, and this was the
rate Haney was receiving . On June 6, 1969 , he was promot-
ed to "supervisor" on a trial basis and his pay was increased
by 10 cents per hour to $1.40 per hour. On June 17, 1969,
his designation as supervisor was made permanent and his
rate of pay was increased to $1.50 per hour. On January 29,
1970, the base rate of pay for permanent employees was
increased to $1.45 per hour and Haney's rate was increased
to $1.75 per hour. On February 1, 1971, the base rate of the
permanent employees was increased to $1.60 per hour and
Haney's rate was increased to $1.95 . The base rate for sea-
sonal employees was $1.10 per hour prior to February 1,
1971, and was $1.25 per hour thereafter.
Department Head Jordan 's salary exceeded Haney's base
rate, computed on a monthly basis, by at least $200 per
month.
At the time of Haney's discharge , Bennie Grant, "super-
visor" in the curio shop , was receiving $ 1.95 per hour, Eddie
Minter, "supervisor" in the curio shop was receiving $1.70
per hour, Dorotha Shipman , "supervisor" in the restaurant,
was receiving $1.70 per hour.
On occasions Haney was confronted with the problem of
recalcitrant employees or those engaged in misconduct. On
one occasion in the summer of 1971, some temporary em-
ployees refused to empty trash cans . Haney told them he
would have them fired if they did not do the work and they
did the work. That evening, Operations Manager Caddell
asked Haney if he had had any problems, and Haney told
him of the trash can incident. Caddell told him, "You don't
have the right to do that, if you have any trouble, call me
or call Bob Lofton, you don't have the right to tell them
that." Thereafter, when there was a similar problem, Haney
told the employees "either you're going to have to do it [the
work] , or I'm going to have to call Mr . Caddell or Mr.
Lofton." Haney could reproach or reprimand employees,
but regarding any serious violations , Crump testified, Ha-
ney would report these to someone else.
Sometime in the summer of 1971 , Haney, in an effort to
cut down on errors on cash registers , told cashiers in his
crew that if their machines "turned out lousy" they would
not get a break the next day. He told Caddell of this effort
to improve efficiency, and Caddell told him that he did not
have the right to tell the employees this.
On another occasion , Haney caught two employees, Ter-
ry Thomas and Frank Anderson, "cave crawling." He re-
ported this to Lofton. Lofton came down to the lunchroom
and talked to them. About 1 1/2 to 2 hours later, Lofton
called down and told Haney to bring the two employees and
their timesheets up to the office . They were terminated.
Haney had made no recommendation as to action to be
taken.
On another occasion , employee Billy Earl Robertson re-
fused to empty trash cans. Haney called and reported the
matter to Lofton. Lofton told him to bring Robertson up to
the office. There, Lofton asked them to tell him exactly what
585
had happened. Haney told him what had occurred. Rob-
ertson was asked if he had directly refused to follow
Haney's instructions, and he replied that he had.
Lofton called President Crump and repeated the informa-
tion to him. Haney then went back to the lunchroom. About
30 minutes later, Lofton called and told him that Robertson
would no longer be working there.
Also, on other occasions, Haney reported misconduct of
certain employees who were not terminated . In the summer
of 1971, he told the Respondent that they could do without
employee Jerry Gee; no action was taken, although about
2 weeks later, Gee was suspected of involvement in a theft
of $50 and was terminated. Other employees that Haney
reported to supervision that they were not good workers and
that Respondent could do without, and who were not termi-
nated , were Jewell Hair , Rita Rodriguez , Quinn Crabb, and
Lawrence Bass . A representative of management would talk
to the employee involved and usually the problem was recti-
fied , at least to the satisfaction of management . Operations
Manager Caddell testified as to Jewell Hair that she had a
bad habit of opening her mouth at the wrong time and
saying things, but that "we didn't fire her at that time be-
cause we felt she could develop into a good employee." As
to Crabb, Haney was told that since the summer season
would be over in a day or two, they would just let him go
ahead and finish the season.
All discharges are made by General Manager Crump; no
one other than he has the authority to hire or fire . In connec-
tion with company records on the discharges of Terry
Thomas, Frank Anderson, and Billy Earl Robertson,
Crump testified that "a full investigation is made of all the
incidents relating to the dismissal or disciplining of any
employee , after which a complete resume of the details is
made up in the office in Carlsbad and placed in the
employee's personnel folder."
On another occasion , Haney complained to Department
Head Jordan that employee Rocky McDonald refused to
"jerk coffee" when Haney told him to do so. Jordan went
to McDonald and told him he would follow instructions of
the "supervisor" or take his timesheet to the main office and
see what could be done about it. McDonald then returned
to the coffeestand and jerked coffee.
At the end of the summer in 1971, Haney wrote up evalu-
ations on each of the terminated employees in his work
crew. This included such matters as how well they did their
work and how well they got along with others, and generally
contained Haney's recommendation as to rehire. These
were utilized by Respondent when considering applications
from such persons for future employment, or when called
by another employer for reference. General Manager
Crump, who does all the hiring, testified that there was no
one whom he refused to rehire based solely upon an adverse
evaluation or summary prepared by Haney. Also, employee
Peggy Armstrong, on whom Haney wrote a very favorable
evaluation, was not employed by Crump based on "other
reasons that came out during the conversation [that Crump
had with her] other than her previous employment that was
a very deciding factor in not reemploying this girl."
In the fall of 1971, Lofton or Caddell told Haney they
were going to need another supervisor and Haney was asked
if employer Roland Marshall was not a pretty good person
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Haney replied that Marshall would make a good super-
visor . After Haney's discharge , Marshall was offered the
position, but did not accept it until April 1972.
Haney assigned members of his crew to their specific
jobs, such as serving the coffee , cleaning the tables, empty-
ing trash cans, and taking over jobs for employees on break
periods ; he kept the timesheets on each employee and on
himself ; he, along with Jordan and permanent employees,
trained new employees . Haney checked the cash register
tallies, and recounted the money if receipts and cash did not
tally. If corrections were necessary , Haney, Jordan, or the
cashiers signed the correction slips . Haney also completed
forms provided on such matters as spoilage , lunch tally, and
accidents . Each day, Haney or Department Head Johnson
determined how much chicken would be needed and how
many lunches were to be prepared ; one or the other ordered
merchandise needed by the underground lunchroom from
the kitchen or facilities above ground . On occasions em-
ployees Carmen Biscaino or Roland Marshall would call up
an order for candy . Although , in performing these duties
Haney had to exercise judgment , his duties were all routine
and repetitive and based on knowledge as to how the de-
partment had functioned on prior days.
Haney did not have the authority to excuse employees on
his crew from work . When an employee wanted to be off
work for any reason and called Haney at his home before
work, Haney told them to call Caddell or Lofton . When this
occurred at work, he took the information from the employ-
ee and relayed it to Caddell or Lofton for decision. Some-
times the employee , after telling Haney, would take his
request for time off to Caddell or Lofton . If Haney were
shorthanded, or if he thought the reason inadequate, he
could oppose letting an employee off, but Jordan , Lofton,
or Caddell had the final say , although the recommendations
of "supervisor" are, in most cases, followed.
On occasions Caddell or Lofton have called Haney re-
garding the need for an additional employee temporarily in
one of the departments above ground, and Haney has desig-
nated one or more from his crew to be sent to the other
department . Likewise, Haney has called them for someone
when he has been shorthanded.
During the busy season in the summer, Haney told em-
ployees in his crew when to take their coffee and lunch
breaks; he assigned other employees to take over jobs of
employees on breaks when this was necessary; and he was
responsible to see that employees did not abuse their break
privileges.
C. Discharge of Haney
In the fall of 1971, the Union was engaged in an organiza-
tional campaign among Respondent 's employees. Haney
joined the Union and, when he did so, he explained to
Union Representative Cornett his job as "supervisor." He
was advised to the effect that he was not excluded from the
protection of the Act. Haney actively supported the Union's
organization drive, was a member of the Union's organizing
committee, and about 3 days prior to November 1, 1971, he
started wearing two union buttons while at work.
On November 1, about 4 p.m., Operations Manager Cad-
to the office above ground . When he arrived at the office,
Respondent's President Wilson and General Manager
Crump were there . Wilson showed Haney a memorandum
distributed by Respondnet to "supervisors" in August 1969,
at the time Local 462 of the Retail Clerks International
Association was attempting to organize Respondent's em-
ployees . This memorandum notified the "supervisors" that
they were not to accept any papers or proposals on behalf
of Respondent that related to union activities , and were not
authorized to speak or act on behalf of Respondent on any
union matters.
Crump then told Haney "You realize you can be fired by
wearing those union buttons , don't you?" Haney replied
that he did not. Crump then read something from a pam-
phlet to the effect that the Company had the right to fire a
supervisor for participating in union activities and it would
not be an unfair labor practice. Crump asked why Haney
wanted a union . Haney told them of some of his complaints.
Crump told him that if he took off the union buttons, they
could work something out. Haney did not respond, but
when he left the office , he took the union buttons off.
At the end of the next workday, November 2, Haney was
told by Caddell to report to Respondent's office in down-
town Carlsbad when Respondent's bus got into town. Ha-
ney asked employee Roland Marshall to go with him as a
witness . In the office was President Wilson, General Man-
ager Crump, and Operations Manager Caddell. Crump read
from a slip of paper that "because it was determined that
you [Haney] have not complied with previous instructions
issued prohibiting you, as a supervisor of this Company, to
refrain from engaging in union activities regarding this
Company, and your statement that you intended to contin-
ue to do so , you are discharged from employment as of this
date."
D. Conclusions as to "Supervisors"
In a case involving Respondent and the Retail Clerks
International Association, Local 462, Case 28-CA-1936, in
which the Board issued its Decision on December 14, 1970,
the complaint alleged , the answer admitted, and the Admin-
istrative Law Judge found that Mike Smith, a "supervisor"
in the lunchroom, was a supervisor within the meaning of
the Act.' Smith occupied a position identical to that of
Haney, and, in fact, they both served as shift lunchroom
supervisors at the same time . As the finding that Smith was
a supervisor within the meaning of the Act was not based
on a factual determination , but on legal conclusions con-
tained in the pleadings , I find that it is not binding on me.
Haney, and the employees whose ballots were challenged
as supervisors, Dorotha Shipman, Eddie Minter, and Ben-
nie Grant, all had the title of supervisor , and all had duties
and authority equal to that of Haney; but it takes more than
title to constitute a supervisor within the meaning of the
Act. The Board and the courts have recognized a category
of persons generally referred to as "leadmen" as employees
within the meaning of the Act . Leadmen exercise some
control and supervision over other employees. To be a su-
dell came down to the lunchroom and asked Haney to come ' 187 NLRB 160.
CAVERN SUPPLY CO.
pervisor within the meaning of the Act, a person must be
vested with genuine management prerogatives. Authority to
hire or fire , or in like manner, significantly to affect an
employee's tenure or terms and conditions of employment
without his actions being subject to review, constitutes one
a supervisor within the meaning of the Act. Apparently,
only General Manager Crump has the authority to hire or
fire.
A person can also be a supervisor within the meaning of
the Act if he can "effectively" recommend action of this
nature; but, to "effectively recommend" means that one's
recommendation be accepted without independent investi-
gation and no more than cursory review of the merits of
such action. All of Haney's recommendations regarding re-
hire, time off, promotion, or need for disciplinary action
were independently investigated and evaluated; sometimes
they were followed; sometimes they were not.
Section 2(11) of the Act, in defining a supervisor, also sets
forth as indicia of a supervisor, one who has authority "res-
ponsibly" to direct employees and to adjust their grievances.
But "responsibly to direct" carries the same connotation as
"effectively to recommend" in that the acts performed are
not normally questioned or reviewed by superiors, and, fur-
ther, that the acts are "not merely of a routine or clerical
nature, but requires the use of independent judgment."
The work performed by Haney's crew was of a routine
nature; once it was learned, it was a matter of doing that
which needed to be done at the time it needed to be done,
whether it was dispensing lunch boxes, sandwiches, coffee,
candy, cleaning tables, counters, floors etc., counting mon-
ey, or counting lunches. Haney's completing of time forms
and other forms was also routine. He exercised his judgment
as to when certain jobs needed to be done, whether more
lunches needed to be prepared, etc., yet these were all within
the framework of his duties as formulated by past experi-
ences on the job and by direction of superiors. Following
Haney's discharge in November 1971, and until April 1972,
no one was designated as "supervisor" in the lunchroom.
Additionally, Haney, being hourly paid and only 15 cents
per hour above the highest paid employee in his crew, was
aligned with employees in the area of wages, and signifi-
cantly separated from Department Head Jordan and other
managerial personnel. Jordan was salaried and received in
excess of $200 per month more than Haney.
I find that Haney was at all times an employee in the
category of "leadman," and not a supervisor within the
meaning of the Act. In the busy summer months, his crew
swelled from 8 to 20 in number; and with more employees
and inexperienced employees, he spent more time directing
them; nevertheless, his authority over them remained the
same.
"Supervisors" Grant, Minter, and Shipman were in the
same category as Haney as to authorities and duties and
relationships with their superiors and with departmental
2 N L R.B. v. Security Guard Service, Inc., 384 F.2d 143 (C.A. 5, 1967); New
Fern Restorium Co., 175 NLRB 871; Pueblo Supermarkets, Inc., 156 NLRB
654; United States Gypsum Co., 118 NLRB 20. Also see Boyer Bros., Inc, 170
NLRB 1108, where line supervisors with authorities fairly similar in a num-
ber of respects to those of Haney were found to be supervisors within the
meaning of the Act.
587
employees. Grant received the same hourly wage as Haney,
but both Minter and Shipman received only $1.70 per hour.
I find them to be employees, and not supervisors as defined
in the Act.
E. Interrogations
General Manager Crump, under the thought that Haney
and the other "supervisors" of the same level as Haney, were
supervisors within the meaning of the Act, questioned them
about their union activities on and shortly before November
1, 1971, and instructed them not to say anything for or
against the Union to anyone, and not to sign anything per-
taining to the Union. He threatened Haney with discharge
for wearing union buttons. Having found that they were
employees and not supervisors within the meaning of the
Act, I find that Crump's interrogation of them about their
union activities and his directions that they not engage in
such activities, and his threat of discharge to Haney for such
activities constituted unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
At some date around the first part of November 1971,
when employees first began wearing union buttons, several
employees were sitting around a cashier stand in the lunch-
room between tours; Department Head Jordan and park
service employee Elmo Gee were with them. Gee noticed
the union buttons, and asked why they were wearing them.
He and Jordan told them about the strikes that occurred at
some of the mines in the Carlsbad area in the past. Jordan
asked the employees why they wanted the Union. They told
him that they wanted better salaries and better working
conditions. Some one asked him why he did not want a
union. Jordan reminded them of the $25 Christmas bonus,
the profit sharing plan, and the hospitalization policy; that
if they got a union, they may not have this; that it would
not be all peaches and cream; that they would not get every
thing that they asked for; that everything had to be negotiat-
ed.4
In view of the fact that the employees present were wear-
ing union buttons at the time, that Jordan did not initiate
the discussion about the Union, and that there was a general
discussion of the merits and demerits of the Union, I find
that Jordan's asking them why they wanted the Union and
his statement to them that certain of their benefits may not
remain the same after negotiations, did not constitute inter-
ference, restraint, or coercion.
F. The Challenged Ballot of W. R. Noftsker
Noftsker is an accountant with a private office in the city
of Carlsbad. He also works part time for Respondent as an
accountant in its offices in Carlsbad. He works an average
of about 20 hours each week for Respondent, and most of
this is done at Respondent's offices; he prepares payroll
checks for Respondent in his own office. He has worked for
3 Although the complaint alleged only the interrogation, the direction to
employees to desist from union activities and the threat of discharge to
Haney occurred during the interrogations, and were fully litigated.
4 This finding is based on an evaluation of the testimony of the several
witnesses to this conversation . I do not credit the testimony of employee
Eusibia Sapien in the respects that it vanes from this finding.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent for approximately 19 years . He receives 2
weeks' paid vacation and 10 days' paid sick leave for each
year, the same as other employees who have worked a full
year. He also shares in the employee hospitalization pro-
gram and the profit sharing plan.
Besides Company executives , Respondent 's Carlsbad of-
fice has an office manager, Nina Schoonover , a clerk, Doro-
thy Ridgeway, and Noftsker on a part-time basis . There is
no issue as to eligibility of Ridgeway . Both Noftsker and
Ridgeway are salaried.
The appropriate unit in Case 28-RC-2241 included "all
employees of the Employer in Carlsbad and at Carlsbad
Caverns, including clerks , busboys, concessionaires , cooks,
cashiers, waitresses , truckdrivers, nursery and kennel atten-
dants, seasonal and regular part -time employees . Excluded:
All corporation executives , summer seasonal, watchmen,
guards, and supervisors as defined, in the Act."
Since the unit includes employees "in Carlsbad" as well
as those at the Caverns , and includes "regular part-time
employees ," I find that Noftsker is in the appropriate unit,
and that his ballot should be counted.
G. Other Alleged Objections to the Election
1. The preelection speech
The polls opened for the election at 2 p.m. on December
1, 1971. On November 30, starting about 12 to 12:30 p.m.,
Respondent assembled approximately 13 of its employees
for speeches by General Manager Crump and Respondent's
attorney, Leonard Pickering. The meeting ended at approxi-
mately 1:30 to 1:45 p.m. The employees were asked if they
would like to attend the meeting , and it was held during
working hours . There is no objection to the contents of the
remarks made by Respondent's representatives. The only
objection is that it was a captive meeting and may have
violated the Peerless Plywood Co. rules As the meeting end-
ed more than 24 hours prior to the election, I find no merit
to this objection.
2. Hiring new employees
The Union objected to Respondent's employment of five
new employees just before the election and contends that
they were interrogated. These employees were not called to
testify and there is no evidence that they were interrogated.
Respondent normally increases its work force during the
Thanksgiving and Christmas holiday season. I find this ob-
jection to be without merit.
3. Company officials near the polls
The Union objected to the presence of General Manager
Crump and Attorney Pickering in Respondent's restaurant,
through which the employees had to pass to reach the poll-
ing place, during the period of the election. The polls were
set up in an area of the restaurant that could be closed off
with sliding panels. The preelection conference ended short-
6 107 NLRB 427.
ly before 2 p.m. on December 1, and Crump and Pickering
went into the restaurant to eat lunch. The restaurant area
that had not been closed off was in the shape of an "L." The
area closed off for the election was along the long side of
the "L"; the entrance to the polling place was near the top
end of the long side of the "L"; the entrance to the restau-
rant was at the end of the short side of the "L." Just outside
the restaurant was the curio shop.
Emloyees going to vote could either enter through the
main entrance to the restaurant and proceed through the
restaurant to the entrance to the voting area near the top of
the "L," or they could proceed through the kitchen of the
restaurant which is located across from the entrance to the
voting area and on the inside of the "L." Crump and Picker-
ing selected a table in the corner of the "L," which was the
fartherest spot from the entrance to the polling area, about
70 feet in distance. A partition, extending out about 4 feet
from the wall, blocked their view of the door to the voting
area . They were served about 2:25 p.m., and left the restau-
rant about 3 p.m. They did not electioneer or communicate
with employees passing through the restaurant going to
vote. Before eating, they made arrangements for the Board
agent to be provided with something to eat in the polling
area, since he was unable to complete preelection arrange-
ments in time to eat before the polls opened. Employees
going through the restaurant to vote, taking the most exped-
itious pathway, would at no time be closer than 20 to 30 feet
from Crump and Pickering. There is no showing as to how
many other customers were in the restaurant at that hour,
but as it was past the peak lunch time, it is likely that it was
not crowded.
It is improper for supervisory personnel to engage in sur-
veillance or to give the impression of surveillance of the
voting activities of employees 6 On the other hand, where a
supervisor visits the voting area only briefly or where his
official duties take him for short visits in the area, the Board
has not felt that this conduct was sufficient to disturb the
laboratory atmosphere of the electioon.7 In the Performance
Measurements Co. case, the company president stationed
himself for some period of time at a table 6 feet from the
entrance to the voting area, and this was held to be improper
conduct. In the Belk's Department Store case, the supervisor
stood and walked around in the area where employees were
gathering to enter the voting area, and this was held to be
improper conduct. In Components, Inc., and in Threads, Inc.,
a supervisor was near the voting area in the course of official
duties or in conformity with procedures established at the
preelection conference with the Board agent.
Although I believe it would have been better form if
Crump and Pickering had had their meals served to them
in the office rather than in the restaurant, yet in view of the
fact that they were not just sitting or standing around, but
were engaged in a normal and necessary activity, and had
been unable to eat at an earlier time due to the length of the
preelection arrangements, and in view of the fact that they
were not sitting in close proximity to the door to the voting
area or to the pathway to the voting area and made no
contact with employees, I am inclined to the view and find
6 Performance Measurements Co, Inc, 149 NLRB 1451; Belk's Department
Store of Savannah, Georgia, Inc, 98 NLRB 280.
7 Components, Inc, 197 NLRB 163; Threads, Inc, 124 NLRB 968
CAVERN SUPPLY CO.
that this conduct is not sufficient to warrant setting aside the
election.
4. Letters to employees
The Union contends that in letters Respondent sent to
employees shortly before the election, misrepresentations
were made . Respondent sent a series of five letters to em-
ployees on November 23, 24, 26, 27, and 29, 1971. The
Union contends that Respondent misrepresented the effect
of the President 's wage stabilization program on possible
wage increases for Respondent's employees and misrepre-
sented the Union as "strike-happy."
In Respondent's letter, mailed November 24, it stated
that "it appears , at this time, that President Nixon's Phase
II of the Price and Wage Freeze will limit general Price
increases to 2 1/2% and Wage increases to 5 1/2% for the
next year."
In Respondent's letter of November 26, it referred to the
Union as this "strike-happy Steelworkers Union."
The pertinent provisions of the Rules and Regulations of
the Economic Stabilization Program referred to by the
Union, and in effect at the time of the election , are found
in the Appendix thereto entitled "Policies governing Pay
Adjudgments Adopted by the Pay Board November 8,
1971," as follows:
4. (a) Effective November 14, 1971, the general pay
standard shall be applicable to new labor agreements
and, where no labor agreement is in effect, to existing
pay practices. The general pay standard would pro-
vide:
On and after November 14, 1971, permissible annual
aggregate increases would be those normally consid-
ered supportable by productivity improvement and
cost of living trends. Initially, the general pay standard
is established as 5.5 percent. The appropriateness of
this figure will be reviewed periodically by the Board,
taking into account such factors as the long-term pro-
ductivity trend of 3 percent, cost of living trends, and
the objective of reducing inflation.
In reviewing new contracts and pay practices, the
Pay Board shall consider ongoing collective bargaining
and pay practices and the equitable position of the
employees involved, including the impact of recent
changes in the cost of living upon the employees' com-
pensation.
5. Following approval of special procedures by the
Pay Board with respect to hearing "prior approval"
cases and other special situations , application may be
made for an exception to the general pay standard and
for a hearing on such matters as inequities and sub-
standard conditions.
7. Provisions may be considered for vacation plans,
in-plant adjustments of wages and salaries , in-grade
and length of service increases, payments under com-
pensation plans , transfers and the like.
During the several days before the election, the Union
sent to employees and to Respondent a number of letters
and leaflets. In Union Representative Cornett's letter to
George Crump, dated November 27, 1971, he replied to the
question of the wage freeze as follows:
589
I am sure you are aware that Employers with less
than 1,000 Employees do not even have to go before the
Wage Board before they can put in effect a Wage
Raise . Low wage groups are not restricted to the 5.5%
Guide lines, However, the wage price board has al-
ready approved one wage settlement in excess of 15%.
I am sure we can get the wage board to approve just
about any amount you would be willing to give your
employees. (Check Section 4 of the Pay Boards Policy
Guide lines.)
I find nothing in the rules and regulations of the Pay
Board, in effect at the time of the election herein, which
exempts its coverage to employers with less than 1 thousand
employees or to low wage groups as a general category.
Section 101.25(b) provides that as to employers with less
than 1 thousand employees, "pay adjustments are not sub-
ject to pre-notification and reporting. However, they are
subject to monitoring and spot checks as are pay adjust-
ments by firms in other categories." Section 101.32 sets
forth classifications of exemptions, but not low wage groups
generally.
As to Respondent's assertions on the effect of the wage
stabilization program on wage increases of its employees, I
cannot find that Respondent made a misrepresentation.
Furthermore, the Union had the opportunity to, and did at
least to Crump, set forth its interpretation as to the effect
of the regulations.
As to the characterization of the Union as "strike-happy,"
the Union contends that it has never had a strike "in South-
eastern New Mexico, in Eddy County," and that therefore,
the statement of Respondent is false. This statement of
Respondent was contained in its letter of November 26; the
Union had ample opportunity to respond; Respondent's
characterization was not limited to any geographical area;
furthermore, this is a characterization that the employees
can evaluate.
I find that the Union's objection to the contents of
Respondent's election letters is without merit.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Douglas Haney on November 2, 1971,
because of his union activities, Respondent engaged in an
unfair labor practice affecting commerce within the mean-
ing of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
4. By coercively interrogating employees, by directing
them to desist from union activities, and by threat of dis-
charge to Douglas Haney for union activities Respondent
violated Section 8(a)(1) of the Act.
5. Employees Dorotha Shipman, Eddie Minter, Bennie
Grant, and Douglas Haney are employees within the mean-
ing of the Act and are not supervisors within the meaning
of the Act. W. R. Noftsker is an employee of Respondent
within the meaning of the Act and in the appropriate unit.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the conduct of Respondent described above in par-
agraphs 3 and 4, Respondent has improperly affected the
results of the representation election conducted on Decem-
ber 1, 1971 . Respondent has not otherwise interfered with
the results of the election by other conduct alleged in
Petitioner's objections.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary that Respondent
be ordered to cease and desist therefrom , and that it take
certain affirmative actions to remove the effects of the un-
fair labor practices and to effectuate the policies of the Act.
The Respondent , having discriminatorily discharged
Douglas Haney, is to be ordered to offer him full reinstate-
ment, with backpay computed on a quarterly basis, plus
interest at 6 percent per annum , as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), from date of
discharge to date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent, The Cavern Supply Company, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for joining or supporting United Steel Workers of
America, AFL-CIO, or any other union.
(b) Coercively interrogating any employee about union
support or union activities ; directing employees to desist
from engaging in union activities; and threatening employ-
ees with discharge for engaging in union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Douglas Haney immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges , and make him whole
for his lost earnings in the manner set forth in the section
of the Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards , person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order.
(c) Post at its place of business in Carlsbad, New Mexico,
and at the Carlsbad Caverns, copies of the attached notice
marked "Appendix." 9 Copies of the notice, on forms pro-
vided by the Regional Director for Region 28, after being
duly signed by an authorized representative of Respondent,
shall be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained for 60 consecutive days
thereafter , in conspicuous places , including all places where
such notices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply therewith.
IT IS FURTHER ORDERED (1) that the challenges to the ballots
of Douglas Haney , Dorotha Shipman, Eddie Minter, Ben-
nie Grant, and W. R. Noftsker be overruled, (2) that
Petitioner's objections 2b and 2c be sustained and that all
other objections of Petitioner be overruled, and (3) that
Case 28-RC-2241 be remanded to the Regional Director to
open and count the ballots of Douglas Haney , Dorotha
Shipman, Eddie Minter, Bennie Grant, and W. R. Noftsk-
er, and to issue a revised tally of ballots and a certification
of representative if the United Steel Workers of America,
AFL-CIO, has received a majority of the valid votes cast.
In the event the Union has not received a majority, the
election conducted on December 1, 1971, shall thereupon be
set aside and a new election shall be conducted when the
Regional Director deems that circumstances permit a free
choice by the employees.
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes.
9 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any employee , including those in the classifica-
tion of "supervisor," for joining or supporting the Unit-
ed Steel Workers of America, AFL-CIO, or any other
union.
WE WILL NOT coercively interrogate any employee
about union activities.
WE WILL NOT direct employees that they are not to
engage in union activities.
WE WILL NOT threaten employees with discharge for
engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in their right to
engage in union activities.
WE WILL offer Douglas Haney immediate and full
reinstatement to his former job or , if it no longer exists,
CAVERN SUPPLY CO. 591
then to a substantially equivalent position, without This is an official notice and must not be defaced by
prejudice to his seniority or other rights and privileges , anyone.
and we will reimburse him for earnings he has lost This notice must remain posted for 60 consecutive days
because of the discharge , plus 6-percent interest . from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concerning
THE CAVERN SUPPLY COMPANY , this notice or compliance with its provisions may be direct-
INC. ed to the Board's Office, 7011 Federal Building and U.S.
(Employer) Courthouse, P.O. Box 2146 , 500 Gold Avenue , S.W., Albu-
querque , New Mexico 87101 , Telephone 505-843-2508.
Dated By
(Representative) (Title)