The Cavern Supply Co., Inc.

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.