Campbell Soup Co.

National Labor Relations Board - Board Decisions

Apr 17, 1968

170 N.L.R.B. 1547 (N.L.R.B. 1968)

CAMPBELL SOUP COMPANY 1547
Campbell Soup Company (Swanson Division) and
United Packinghouse , Food & Allied Workers,
AFL-CIO , Local 10 . Case 11-CA-3303
April 17, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 27, 1967, Trial Examiner Herman
Tocker issued his Decision in the above- entitled
proceeding, finding that Respondent ' had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Charg-
ing Party filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respon-
dent filed an answering brief thereto.
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
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 and
briefs, and theentire record in the case, and hereby
adopts the findings,' conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
the rule did not improperly restrict solicitation. The
evidence which the Trial Examiner relied on did
not purport to relate to the Respondent's rule, but
merely stated the law as the Union and employees
understood it. The Respondent's application of the
rule to employee Weaver in telling her that she was
not to leave her work area and in prohibiting her
from discussing the Union with the girls, when
other discussion was not prohibited, was unlawful.
In this connection, I note that Supervisor Royer ad-
mitted that the rule permitted him to discharge any
employee who talked about the Union, on the job,
but that talk on the job about anything else was not
prohibited. I would therefore find that the Respon-
dent's maintenance and enforcement of the rule
violated Section 8(a)(1) of the Act.
In light of this conclusion, I would also hold that
Royer's admitted interrogation of employee Ray as
to why the girls in the plant wanted a union was not
permissible and violated Section 8(a)(1),3 although
the inquiry occurred as a "casual conversation."4
1 The Charging Party has excepted to the credibility findings made by the
Trial Examiner. It is the Board 's established policy, however, not to over-
rule a Trial Examiner 's resolutions with respect to credibility unless the
clear preponderance of all the -relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for disturbing the
Trial Examiner's credibility findings in this case.
' The rule in issue, which was contained in a notice to employees dated
and posted July 15, states: "Solicitation by employees on company proper-
ty during working time is prohibited." The validity of that part of the rule
which prohibits distribution of literature by employees on company proper-
ty in nonworking areas during working time was neither questioned nor
litigated.
3 Webb Tractor and Equipment Company, 167 NLRB 383, 384. See also
Struksnes Construction Co., Inc., 165 NLRB 1062.
4 Webb Tractor and Equipment Company, supra; Struksnes Construction
Co., Inc., supra, Abex Corp.-Engineered Products Div., 162 NLRB 328; Lit-
tle Rock Hardboard Company, 140 NLRB 264,266-267
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that -the complaint be, and it hereby is,
dismissed in its entirety.
Member Brown, dissenting in part:
In agreement with my colleagues, I would adopt
the Trial Examiner's Decision and dismiss the com-
plaint in most respects. However, I would find that
the Respondent coerced its employees by the fol-
lowing conduct.
The Trial Examiner found, and the majority
agrees, that Respondent's rule prohibiting, solicita=
tion2 was ambiguous because it could be in-
terpreted as prohibiting nonworking employees
from soliciting other nonworking employees at any
time on company premises. However, I do not
agree with their conclusion that in actual operation
TRIAL EXAMINER'S DECISION
I. STATEMENT OF THE CASE
HERMAN TocKER, Trial Examiner: This case was
heard before me, the duly designated Trial Ex-
aminer, in Sumter, South Carolina, on September
18 and 19, 1967, upon the complaint, as amended,
and the answer of Campbell Soup Company (Swan-
son Division), the Respondent.
United Packinghouse, Food & Allied Workers,
AFL-CIO, Local 10, the Union or Charging Party,
filed a charge on May 2, 1967, alleging that
Respondent had violated Section 8(a)(1) and (3)
of the Labor Management Relations Act, 1947, as
amended, because of its alleged discrimination
against Catherine Mayer in connection with her
hire or tenure of employment. The complaint was
issued June 23, did not allege that violation of Sec-
tion 8(a)(3), but did allege various violations of
Section 8(a)(1) involving alleged interrogation, so-
licitation of employees to ascertain and report to
170 NLRB No. 167
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent the names of persons handing out
union cards and prohibition of union solicitations at
any time while permitting solicitations for other
purposes during working hours. Following its is-
suance there were various amendments or motions
to amend but these, after further amendment or
withdrawal, resulted only in additional allegations
of alleged interferences with protected activity.
At the hearing all parties were represented by
Counsel, were given full opportunity to present"
evidence, to examine and cross-examine witnesses,
to present oral argument, and to file briefs. Oral ar-
gument following the conclusion of the hearing was
waived. Respondent has filed a posthearing brief.
None has been received on behalf of the Union or
on behalf of the General Counsel.
II. THE ISSUES
The issues are whether Jim Paulas, Delbert
Royer, Wayne Partin, and Wayne Hopson, admit-
tedly supervisors, unlawfully interrogated em-
ployees concerning union activities , whether James
R. Kane, Respondent's safety supervisor, instructed
employees to ascertain and report to Respondent
the names of persons distributing union cards, and
whether there was discriminatory enforcement of a
no-solicitation rule.
There also was an issue created by the pleadings
as to whether Ruth Riddle was a supervisor but
there was a complete failure of proof to support
this allegation.
Counsel supporting the complaint called four wit-
nesses, Susie N. Weaver, Elnora Batchelder, Vera
N. Ray, and Christine Penley.
Mrs. Weaver testified that shortly before Christ-
mas 1966, at a briefing meeting, Supervisor Kane
addressed the group and asked them to bring to
him any union cards presented to them for signa-
ture; that around the first of June 1967 Supervisor
Royer admonished her about talking to the girls on
the job about the Union and warned her that if this
were repeated she would be terminated; that on the
next morning, when she went to complain to Super-
visor Partin and to ascertain her proper area of em-
ployment, he asked her how many signed cards she
had obtained, whether she thought the Union
would be "coming in," and at the same time ob-
served that the Meatcutters' Union would be "com-
ing in" in the following week and asked why her
Union did not "come on in"; and why she thought a
union was needed at Respondent's plant; and that,
despite the prohibition against union solicitation
during working hours, she and another girl were
permitted to sell cosmetics or home products while
on the job."
Mrs. Batchelder testified that Supervisor Hopson,
in the latter part of March 1967, asked two girls
who were working on the line next to her if they
knew of anyone who was working for the Union
and that, in the beginning of April, he remonstrated
with her for working for the Union because anyone
who worked for it was not his friend, opined that
she had a pocket full of union cards, and said that
he ought to search her. She testified also to the sale
of stuffed ducks by a girl at Easter, to Sue Weaver's
selling of cosmetics, and to a collection for a going
away gift, all "on the job" and in the view of Super-
visor Douglas. This conduct was permitted even
though, when she was hired, she and other persons
in her group had been instructed not to solicit for
the Union during working hours.
Mrs. Ray testified that early in March 1967, Su-
pervisor Royer asked her why the girls thought they
needed a union; that in about June or July 1967,
and also in 1966, she had sold "Stanley" products
and cosmetics "all day ... on the job" throughout
the working area and that Supervisor Royer ac-
tually knew of this because she had asked him
whether he wanted to buy some "bubble bath"
from her. Next she testified about a conversation in
June 1967 with Supervisor Partin when she com-
plained about the failure of her immediate foreman
to appoint her to a higher paying job. According to
her, Partin asked her whether the Union had
anything to do with the decision not to promote her
and also how many signed cards she had obtained.
Christine Penley testified that on the night of
December 27, 1966, at the time she was employed,
she was in a group of about 15 new employees who
were addressed by Supervisor Kane who told them
that they did not need a union because Respondent
"was paying more than the minimum wage law
required in South Carolina"; that he would rather
the employees did not sign a union card and that, if
she saw anybody anytime who had union cards, she
was to get that person's name and bring it to him so
that he might take care of it. Next she testified that,
on "an average of about once a week in the
cafeteria, Jim Paulas would come by and ask" the
employees sitting at the table whether anybody had
been around to get them to sign union cards. She
testified also to vending activities by employees
during working hours in the presence of and under
the assumed observation of supervisors.
The foregoing is a summary statement of the
evidence submitted in support of all the allegations
in the complaint. An order has been entered
providing for certain corrections of the steno-
graphic transcript.
The resolution of the issues in this case is depend-
ent largely on the credibility of the witnesses who
gave the oral testimony in support of the charge. In
this connection I have considered their demeanor
and conduct, their candor or lack of it, their objec-
tivity, bias, or prejudice, their understanding of the
matters concerning which they testified, whether
their testimony has been contradicted or suffi-
ciently impeached, whether parts of testimony
should be accepted when other parts are rejected,
consistency, plausibility, and probability, and the
effect which leading questions might have had on
the answers elicited thereby.
CAMPBELL SOUP COMPANY
Now, on the basis of the entire record, including
the testimony at the hearing, my observation of all
the witnesses, the exhibits received and, after my
consideration of the brief submitted on behalf of
the Respondent following the close of the hearing, I
hereby make the following:
III. FINDINGS OF FACT
A. The Business of Respondent and Jurisdiction
Campbell Soup Company is now, and at all times
material herein has been, a corporation duly or-
ganized and- existing under the laws of the State of
New Jersey. It is engaged in the manufacture or
processing of various packaged and canned foods in
numerous States in the United States. To the extent
that this" proceeding is concerned, it is engaged in
the p paration of prepackaged convenience foods,
particularly chicken dinners, in a plant located at
Sumter , South Carolina.
Respondent, having admitted the volume and in-
terstate nature of its business, as alleged in the
complaint, and also that it is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act, I so find.
B. The Labor Organization Involved
United Packinghouse, Food and Allied Workers,
AFL-CIO, Local 10, the Union, is now, and at all
material times has been, a labor organization within
the meaning of Section 2(5) of the Act.
C. The Alleged Interrogation by Jim Paulas "Weekly
during the month of January to May 1967,
inclusive."
Christine Penley testified that on a regular basis,
"once a week" over a period of several months, Su-
pervisor Paulas made it a practice to approach a
table at which she and other persons were sitting in
the cafeteria and to ask them "if anybody had been
around to, talk to (them) to' get (them) to sign a
card for the Union." She testified on direct ex-
amination that this happened regularly once a week
in January, February, March, and April. "Around
the first of May 'was'the ,last occasion that he came
N " and did this. On cross-examination she testified
at`it happened also in June and July. This brought
her to 'the time when she left Respondent's employ.
She was elusive about and did not name any of
the other persons with-'whom she had been sitting
all the times that this interrogation so regularly had
occurred. No other witness testified that these' in-
terrogations had occurred.
All the employees who, as she had testified, had
been sitting at the table or tables where these inter-
rogations occurred `were subject to Paulas' supervi-
sion. Even though he had the power to discharge or
to discipline them, Mrs. Penley said that they con-
sistently ignored him.' If she is to_ be believed, they
1549
neither acknowledged the fact that he was inter-
rogating them, nor answered his questions, nor
complained about the fact that he was interrogating
them. It is difficult for me to believe that not one of
them paid any attention to their supervisor, not one
-answered or refused to answer his questions, and
not one protested the fact that he was engaging in
this allegedly constant practice which, in view of its
frequency, must have become either annoying to
them or a regularly humorous performance.
Paulas, in his testimony, -identified himself as a
supervisor in the boning room on the second shift
and, while admitting that he knew Christine Penley,
denied that he ever had had any conversations with
her about the Union or union activities. He denied
that he had ever asked her any questions, directly
or indirectly, about the Union or union activities of
other employees. He denied that, he ever had ad-
dressed a table of employees in the cafeteria and
had inquired whether anybody had talked to them
at home and had asked them to sign a union card or
words to that effect. He denied that he had ever
questioned employees about their union activities
in the cafeteria or in any other place. Although
Mrs. Penley had testified that her supper break
began at 8 o'clock in the evening and lasted about a
half hour, Paulas testified that his practice was to
take lunch between 6:30 and 7 and to try to be
back in the boning room by about 7:30 p.m.
Although he was subjected to skillful cross-ex-
amination and the questions were designed to force
him into admissions (for example, this question
making the assumption that there had been a meet-
ing of supervisors, "Now, did you attend that super-
visory meeting that the company called on this and
discussed with the superivsors?") he was not en-
trapped, and clearly and distinctly, . after first
questioning the content of the question by saying,
"I beg your pardon," answered, when the question
was repeated, "I don't recall any meeting, that was
specifically called to discuss the union activities."`
I am satisfied that Paulas did testify to the, truth,
that he did not engage in the practice of "once a
week" interrogating the employees at, their dinner
table, as testified by Mrs., -Penley,; and that her
testimony to this effect should not be credited.
D. The Alleged Delbert Royer Interrogations of
March 1 and June 14, 1967
Testimony seeking to establish these alleged
violations was given by Vera M. Ray with respect to
the March I st incident and- by 'Susie M. Weaver
with respect to that of June 14th.
Vera Ray was anything but friendly to Supervisor
Royer.- She testified that "sometime in March" she
went to his office to get something. No one else was
there. According to her, Royer opened the conver-
sation by saying, "Vera, why do you think, Why do
the girls think that they need a union here?" Her
answer was to the effect that there was no seniority
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and no meaningful job security. With that someone
walked in and she left.
It seems that Mrs. Ray had a habit of going in
and out of Royer's office two or three times a day.
Royer did not deny that there had been such a con-
versation. According to him he had "asked her one
day, why the girls thought they should have a union
in the plant." He described it as "a casual conversa-
tion." It cannot be said, either from Mrs. Ray's
testimony or that of Royer, that he had arranged
the meeting or called her into his office for the pur-
pose of interrogating her. At the time this happened
she had not yet developed her dislike for him. She
was admittedly outspoken in favor of the
Packinghouse Union and opposed to the Meatcut-
ters Union which, at the time, also was seeking to
organize the plant.
In the complaint it was alleged that this inter-
rogation took place on March 1, 1967. While Mrs.
Ray testified that the conversation occurred in
March, in response to a question whether it had
been "early March," she answered, "No, I don't re-
call, I know it was sometime in March." On the
other hand, while he freely admitted the conversa-
tion, Royer was unable to fix the time. In any event,
the testimony of both is clear that there had been a
conversation and that it consisted only of an inquiry
as to why the girls in the plant (not Mrs. Ray)
wanted a union. It does appear to have been a
"casual" incident. In a context of strong union
animus, systematic interrogation, surveillance,
retaliatory and punitive conduct, and promises of
reward for rejecting or abstaining from the Union,
or a substantial amount of some of these, a question
of this sort could well be regarded as an inter-
ference with the right of employees to engage in
concerted activities for their mutual aid or protec-
tion. It is necessary here to decide whether this
particular question, under the circumstances
described by Mrs. Ray, should be regarded as coer-
cive and interfering with any protected right. In an-
ticipation of my other findings herein and in view of
those findings and upon the entire record, I am not
convinced that this admitted interrogation should
be regarded as a violation of Section 8(a)(1) of the
Act. The inquiry, in and of itself, was not coercive
or threatening. There are no collateral facts from
which the inference might be made that, even
though not on its face coercive, interfering and
threatening , it actually was. Although Mrs. Ray
walked in and out of Royer's office two or three
times every day and this went on over a long period
of time, it is the only time that such an inquiry was
addressed to her.
It is also alleged that on June 14, 1967, Super-
visor Royer engaged in unlawful interrogation. The
testimony in support of this allegation was given by
Susie M. Weaver. According to her, about the first
day of June 1967, she was called to Royer's office
to receive instructions about " telling new girls what
to do." This turned out to be instead (following her
diversion of the conversation to a conversation
about the Union) a reprimand for "bothering the
girls on the job about the Union." Following a visit
to Supervisor Partin's office to obtain a clarification
of her working area (during which she was sub-
jected to interrogation, to be discussed below), she
testified that she went back to Royer, on Partin's
instructions. There she was told by him that she
would have to keep the girls supplied with chicken
in connection with their work and this was her last
chance, "The next time you will be terminated."
Then, although she had just testified that the "last
chance" warning had been related to the supplying
of chickens to the girls, in response to another
question she changed that and said, "The next time
I would be terminated about the Union if I was
called back in the office about the union ." (These
are almost the same words she attributed to him as
having been uttered at the first meeting .) Accord-
ing to the time schedule related by her this still
would have been "around the first of June."
On cross-examination, she again, without
prompting, spontaneously disclosed that she had
channelled the first Royer meeting from questions
having to do with her department to a talk about
the Union. "... (H)e asked me (about) my depart-
ment and everything, and I said what is this about?
And I said this is about the Union mostly, isn't it?
And he said, yes, that is mostly what it is about the
Union ... bothering the people about the union on
their jobs. And he said that he had had complaints
from the girls."
Mrs. Weaver's testimony about the two meetings
with Royer (disregarding the variance of the date as
testified from the date in the complaint which
would have been cured by the granting of the mo-
tion to conform the pleadings to the proof) is
hardly demonstrative of an interrogation. It is more
like a threat of discharge for engaging in a union
activity. It appears, from an "Employee Counseling
Record," that complaints had been made about
Mrs. Weaver "talking union on the job and ag-
gravating employees about the Union. Trying to act
as a representative for every girl's problem and
complaint." Her testimony indicates that she must
have been aware that complaints had been made by
the girls about her engaging in this conduct because
she herself quickly diverted the purpose of the
meeting from her duties to supply chicken to the
girls to her union activities. Far from being in-
timidated, she testified that she asserted she "had
not been bothering the girls. And at the time, I had
not been bothering the girls, on the job about the
Union. I told him that I talked union at lunchtime
and on my breaks, and after work, and that I would
continue to do so."
Royer testified that his purpose for calling Mrs.
Weaver to his office was to tell her about the com-
plaints received from the girls to the effect that she
had been "aggravating them (talking union on the
job) because they said that they were not interested
CAMPBELL SOUP COMPANY
. "She denied it-but he advised her that what she
had been doing "was not allowed and that this
would be the only warning that (he would give) her
on this thing." The counseling record in evidence
discloses only that her response had been, "I know
I see things in the boning room but I'm not telling
anyone." According to this record, Royer
responded to this by informing her that it was every
employee's obligation to inform her supervisor of
problems or of matters which were wrong in the de-
partment. It concludes-with the sentence, "This will
be the only warning- that I give on this problem." It
was definitely brought out on cross-examination
that the policy of the Company was, "(T)hat the
employees (who) talked union on the job, would ...
be a discharge offense." To the extent that this
might have been a threat to discharge in connection
with the alleged discriminatory enforcement of the
no-solicitation rule, it will be disposed of by my rul-
ing on that rule. Since the incident -did not involve
interrogation , as alleged in the complaint , that al-
legation fails of proof.
E. Alleged Wayne Partin June 15 Interrogation
The complaint next alleges that Wayne Partin,
the supervisor of the safety department, engaged in
unlawful interrogation on, June 15, 1967. The
testimony supporting this allegation also was given
by Mrs. Weaver. I revert back now to the two
meetings with Royer about the distribution of
chicken and her alleged bothering of the girls. It
was between these meetings that, this alleged Partin
interrogation is claimed to have occurred.
Chronologically, according to the complaint, the
first meeting with Royer was on June 14th and she
testified that on the next day, which would be June
15th, she went to see Partin, "to ask him where
(her) area was that (she) wanted to know where
(her) -area was and (she) -that (she) wanted to do
the right .thing." After she had told him that she
had come to get advice from him (and for ap-
parently no reason and without any connection to
this) according to her ,he interjected, "How many
cards have you got signed? And do you think that
the union will be coming in soon?" She said that
she refused to answer That but his next -observation
was, "-Well, the Meateutter's,,they said that the
union would be, coming in next week.-" Her reply
merely was, "Well maybe so." This, according to
her, prompted him to say, "If your union is -so good,
why don't your union come on in?", to which she
answered they wanted to be certain that they had
sufficient cards before demanding an election in
order to` avoid having to, wait a year for another
election. She testified than he pursued the conversa-
tion saying, "Do you think that we need a union?
Why do ,youthink.that we need a union here?" She
answered-by reciting- several grievances and wind-
ing up with the remark, "I refuse to answer any
thing else aboutthe union . .."
1551
It was brought out on cross-examination that it
was she and not Partin who had been the first to
bring up the matter of the Union. Her first answer
in response to a question as to whether she told him
of her conversation with Royer the preceding day
was, "I didn't tell him everything, I just- told him
about the Union, and that he had told me or in-
structed me not to leave my area, and didn't want
me talking to the girls.... I told him that I wanted
him to tell me and to give me advice what to do.
What I was supposed to do. And so he give me ad-
vice to go back to Del Royer, but ...." She am-
plified this a little later saying that she told Partin,
"that Del Royer called (her) into his office, and he
said that (she) had been bothering the girls, had
been talking union on the job , and (she) told, him
that (she) had not. And he told (her) that he
wanted (her) to stay in the area, he did not want
(her) talking to other girls." A little later, in
response to a question designed to establish that
Partin had not brought up the subject of the Union,
she answered, "Oh, yes, he did." But, in response
to the very next question, she admitted that she had
brought it up first and answered, "Yes, but he was
very interested and wanted to know how many
cards (she) had signed." She expressly agreed that
he had asked her these questions after she had
brought up the Union and that this was the first oc-
casion on which he had spoken about the Union or
even had joked about it.
This and other incidents in the record indicate
that Mrs. Weaver was not at all hesitant about in-
jecting the Union into conversations with super-
visors. On this occasion she sought out Partin by
going to him because she was disturbed by what
had happened in Royer's office., After he had asked
her what he could do for her and she had informed
him about the problem involving the' area in which
,she was supposed to work, he told her that he was
unable to get into this problem and it was" up to -her
supervisor, Royer'. The conversation had'been con-
cerned with nothing but the work area problem
until she injected the Union into it.
Partin's testimony is that they talked only about
the meat distribution problems in the boning .room.
He,denied that he had asked her how many signed
union cards she had obtained. He denied- asking her
when she (or the Union) was going to file a petition
or when her Union was going to "'come in." He de-
nied also that he had informed her about the "com-
ing in" of the Meatcutters Union. He denied that he
had ever made'such a statement to any employee.
He denied that he had asked' Mrs, Weaver any
questions about the Union at anytime and asserted
that (no such' question having been, asked) she did
not reply with a refusal to answer. He was not at
the plant during the week beginning June 12, 1967,
and ending on the Sunday following, June 18th.
This absence from the plant emphasizes the fact
that the June 15th date in the complaint would be
incorrect in any event and That the conversations in
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the alleged offenses were committed were, as
appears from the "Employee Counseling Record,"
on June 8 or 9,, and closer to the first part of June,
as testified by Mrs . Weaver.
Here we ' have a clear-cut question as to whether
Mrs. Weaver's testimony should be accepted as
meeting the General Counsel's burden of proof to
establish the alleged unlawful interrogations or
whether her testimony, when considered together
with that given by Partin in direct contradiction,
while not necessarily to be discredited, falls short of
meeting the General Counsel's burden of proof. Mrs.
Weaver 's purpose in going to Partin was to appeal
Royer 's accusation or decision that she had been
soliciting for the Union while the girls were working
and thus had annoyed those not interested . Initially
she had testified that in response to her telling him
of what had transpired and her desire to obtain ad-
vice from him he abruptly had asked her how many
signed cards she had obtained and whether she
thought that the Union would be coming into the
plant soon . She testified that she had - refused to
answer the first question and answered , "Maybe
so," to the second question . According to her,
although there is no indication why he should have
said it, he observed that if her Union was "so good,
why don 't your union come on in?" This was when
she said that the Union wanted to be certain it had
enough cards signed before it moved so that it
would not have to wait a year before it could try
again for an election . He prolonged the conversa-
tion by asking her why she thought a union was
needed at the 'Respondent 's plant . She answered
citing various reasons . After that she again said that
she refused to answer anything else about the
Union and she was sent back to her supervisor.
Thus , after first saying she refused to answer the
questions about how many cards she had obtained
and when 'the Union was coming in, she related an
extended discussion about the Union which was fdl-
lowed by , her second statement that she had refused
to answer any thing else about the Union . On cross-
examination , although she had testified on _ direct
that she had opened the conversation with Partin
by telling him about her supervisor 's ruling con-
cerning the area in which she worked and asked
him for advice , she said , " I didn 't tell him
everything , I just told him about the Union, and
that -he had told me or instructed me not to leave
my area , and' didn 't want me talking to the girls."
Next, in disregard of the reason why she had, given
for having ,, gone ' to Partin 's office (which included
her resentment that Royer had accused her of sol-
iciting for the Union on working time ), she testified
that she did not recall whether she told Partin of
this but ,, two answers later , she said , "I told Wayne
Partin that Del Royer called me into his office, and
he said that Thad been bothering-the girls , had been
talking uinion on the job, and I told him that I'had
not. And he 'told me that he wanted me to stay in
the area that he did not want me talking to other
girls . And I asked Wayne Partin exactly where my
area was and what I was supposed to do at this
time . And Wayne Partin told me ... "- Next,
although on direct she had given me'the distinct im-
pression that the bulk of the meeting with Partin
had been his 'efforts to interrogate her and to
discuss the merits of the Union and- that he had
refused to discuss Royer's ruling , merely sending
her back to him, she altered this on cross -examina-
tion testifying that Partin did not merely send her
back to Royer but went further by instructing her
"to do whatever he said to do and stay in (her)
area , and if he hollered at (her) and wanted (her)
to go to another area and service -them , after he had
told (her ) to stay there , for (her) not to do it." In
other words , she testified on cross-examination that
Partin told her not only to do what her supervisor
instructed her to do but, if he changed those in-
structions after having instructed her in a certain
manner , she, was to disobey those later instructions
and continue to disobey them' until she received
"further instructions. From higher people....."
The cross-examiner seems to have misinterpreted
this answer, for he then- asked her a question that
would indicate that he thought that she had testified
that if the change of instructions cane from some-
one other than Royer she "had better get it cleared
up with somebody before (she) violated it ...."
Even though this interpretation of her prior testi-
mony was wrong she answered,, "Right" to this.
Then, although first asserting strongly that Partin
did bring up the subject of the Union in this meeting,
she' agreed almost immediately that , she had
brought it up first. She explained this by saying,
"(B)ut he was very interested , and wanted to know
how many cards I had signed." Elsewhere in,-her
testimony, concerning an exchange with Supervisor
Kane just prior to her going to a ' union meeting she
answered , "Yes," to a question which emphasized
twice that her purpose in going to the meeting had
been to eat the Union's food and drink its whiskey.
Nevertheless , she later denied that she had said that
she was going to drink their whiskey but, even then,
she' admitted that she was going to have-supper and
that she would` ` drink wine, you know, drink 'wirte."
I am just not able to , accord to this ' sort' of
testimony that degree of certainty necessary to con-
clude that Partin's denial ot her version has false
and that he actually did (even though denied by
him) enter into extended discussion about the
union cards, the pros and cons 'of the two unions,
the need for a union 'at the "Respondent's plant, the
desirability of the Unions filing for ^ an elec tion, all
as an off-shoot of her complaint about het; ' super-
visor's action and his refusal to 'overrule that super-
visor.
F. The Alleged Wayne Hopson' Interrogations
The last alleged unlawful interrogations .a'r`e those
attributed to Night Plant Manager Wayne Hopson,
CAMPBELL SOUP COMPANY 1553
March I and April 1, 1967. Testimony in support
of this allegation was given by Mrs. Elnora
Batchelder- who had been employed by the Re-
spondent from December 19, 1966, until June 1967.
The first alleged interrogation was in "the latter
part ofMarch" (not March 1 as alleged in the com-
plaint). While Mrs. Batchelder was standing next to
one girl, with Hopson between that girl and another
girl, she overheard Hopson ask them "if they knew
of anyone who was working for the Union, and they
said no." She said he,spoke very distinctly and that
this was all that was said on this occasion. Although
she worked beside these girls on the line she was
unable to identify them other than by saying one
had blonde hair, was heavy set, wore glasses, and
her first name was Jackie, and the other was a
"colored" girl-she "never remember(s) with
colored people." She was able to remember
Jackie's first name only because she had talked to
her a few times but didn't associate with her and,
although the "colored" girl had been on the line
with her from the day that both were hired, she
never learned her name.
The second incident involving Hopson was about
the first of April. April 1st was a Saturday and 2
"days after the date of the letter written by the
Union to Respondent informing it that Mrs. Vera
Ray and Mrs. Elnora Batchelder (the witness) were
active union organizing committeewomen. Accord-
ing to her, despite the Union 's warning to the Com-
pany that these employees had been notified of
their rights and would engage in soliciting signed
union cards, Hopson came up to her and said, "I
thought you were my friend ... people who work
for the Union aren't my friend .... Well, I suppose
you have got a pocketful of union cards, I ought to
search you, I suppose that you have got a pocketful
of union cards." She testified that, she did not say
anything.
Hopson denied having had any conversation with
Mrs. Batchelder about the Union. He specifically
denied ever having remarked to her that he thought
she was his friend, that people who worked for the
Union were not his friends, and that he supposed
that she had a pocketful of union cards and ought
to search her. He remembered that the Company
once had employed a Jackie Hughes, whose
whereabouts were not known, but he denied that he
asked any employees on the line a question about
who was engaging in union activity or to specify the
names of union organizers , or words to that effect.
Normally, when the line is operating, the noise level
is so great that it is difficult to talk and,,other than
a word of greeting , when it is necessary to say
anything to an employee the employee is requested
to come into the office so that they may talk. On
cross-examination , Hopson freely admitted that on
occasion employees would engage him in conversa-
tions about the Union. These conversations would
be either specific questions addressed to him or
conversations engendered by employees directing
his attention to union handbills. Although he had
admitted on direct examination that he had known
Mrs. Batchelder was a member of the Union when,
on cross-examination, an effort was made to make
it appear that he had testified that he never became
aware of her union advocacy, he refused to be en-
trapped and answered that he did, become aware
that she was associated with the Union. He there-
upon referred to the communication which had been
received from the Union. He was not as successful
as this in parrying a subsequent question suggesting
that he had been surprised to see Mrs. Batchelder's
name on the letter. It ultimately was clarified that
he had been surprised to see her name on the letter
because he would have been surprised to see any
employee's name on it . (A reference he made to
untruths appears to have been to Mrs. Batchelder's
testimony at the hearing.) The cross-examiner was
unable to force him into an admission that he had
commented to Mrs. Batchelder about the fact that
her name was on the letter. He admitted however
that he had informed Mrs. Batchelder's foreman
that the letter had been received but denied that he
had given him any instructions about it. He always
remained firm in his denials that he made the state-
ments attributed to him by Mrs. Batchelder in her
testimony and that he had discussed the Union with
her.
I am in extreme doubt about the likelihood of the
alleged interrogation by Hopson of the two girls
who had been standing alongside of Mrs.
Batchelder. She was unable to remember anything
about them except that the first name of one of
them was Jackie and that the other one was a "col-
ored" girl. This was some time before-the Com-
pany had been notified that she was on the union
organizing committee. Had it known at that time of
her union activity I do not believe that Hopson
would have addressed two girls-standing right next
to her, in a necessarily loud voice above the noise
-of the line, and asked them if they knew of anyone
working for the Union. On the other hand, if it did
not know of her activity at that time, there does not
appear to be any reason at all why Hopson would
have asked those two girls this question and would
not have asked her. She does not claim that Hopson
did.
It is even more unlikely that immediately after
receiving a letter from the Union putting the Com-
pany on notice that she was on the organizing com-
mittee he would have made it a, point to seek her
out, accuse her of not being his friend, speculate
that she had a pocketful of union cards, and remark
that he ought to search her. I would be willing to
believe that after receiving the Union's letter he
had gone to her and expressed surprise that she was
on the union committee, just as he ,testified during
cross-examination that he was, but I am unable to
believe that he would have .gone so far as to make
the comments she says he made. Consequently I am
unable to find that Hopson engaged in either of
these, interrogations or conversations.
350-999 0 - 71 - 99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Alleged Request That Employees Report
Solicitors of Union Signatures
It is alleged in Paragraph 7(b) of the complaint
that James Kane "instructed employees to find out
the names of persons handing out union cards at
any time and report this to the Respondent."
Mrs. Penley, whose testimony about the "once a
week" interrogation by Foreman Paulas in the
cafeteria I have rejected, testified that when she
was hired, December 27, 1966, she and about 14
other girls attended a meeting for new employees.
All that she was able to recall about this meeting
was that Kane addressed it, informed the employees
that they did not need a union because Respondent
"was paying more than the minimum wage law
required in South Carolina ... that he couldn't
force (them) not to sign a card for the Union, but
(the Company) had rather that (they) didn't. And
if (she, Penley) could see or did see anybody at
anytime that had any cards for the Union for (her)
to get the person's name and bring it to him and he
would take care of it."
On cross-examination she was reminded, and she
agreed, that Kane had told the employees what was
expected from them on the job and that if the Com-
pany didn't need them it would not hire them and
that he also told "about the safety rules and all of
the Company. And ... (what they) would be mak-
ing an hour." She was reminded further, and she
agreed, that he had also spoken about the wage
structure, about benefits, about leaves of absence,
and about everything in which a new employee
might be interested.
Testimony tending to corroborate Mrs. Penley
was given by Mrs. Weaver. Although she had been
hired on October 3, 1966, she contrived to be in-
vited to an orientation meeting held "right around
before Christmas time in December." (Respon-
dent's attorney points out that an orientation meet-
ing at the time she was hired would have been at a
time more than 6 months prior to the date of filing
the charge.) Her version of the remarks at this
meeting was , "Well, the best thing I can recall at
the present , Jim Kane made a statement that if we
had anybody coming to our doors with a six-pack of
beer to let them come on in and help them drink it.
And if they give us any cards to sign, to bring them
the cards to him or them, I can't recall whether he
said to him or to them, the cards that we sign. And
he also said that his union dues were free , didn't
cost anything." She said that that was all she re-
called about this meeting . It seems that she had not
known anything about the meeting which was to be
held-only that a briefing meeting was to be held
and she wanted to be present . For that reason she
requested permission to attend . She repeated, on
cross-examination , that Kane had said "... if we
had any union men to come to the doors to try to
get in with a six-pack of beer , to let them in, invite
them in and help them drink it. And if they give us
any cards, he said to bring them to him or them, I
don't recall whether , you know , he said to him or to
them ." Although she had not remembered it on
direct testimony , on cross-examination she said,
"(T)he purpose of the meeting was to show the
girls how to bone the boners how they would
progress after they had been boning and what
progress they should be making and how much they
should be boning." According to her , the only
reference to the Union was what she had related
before and no one had asked Mr. Kane, or any
other supervisor , any questions after that. This
meeting lasted about 45 minutes and it was the only
meeting in 1966 with supervisors "during which the
word union or the subject of union was discussed."
She testified also about another meeting "around
the first of March " in 1967 at which various cost
matters were discussed and in which Kane told
them "(T)hat the men outside of the gate , we don't
need those kind in here on the inside . And said that
we have those some people working on the'inside
of the plant and you know who they are. And we
said that we don 't need that in here . He said that
there-that their uncles that they are depending on
outside too ." It is not contended that this alleged
remark at the March meeting constituted a viola-
tion of the Act. I assume that it was presented for
the purpose of showing that Kane habitually
discussed the Union when staff meetings were
called.
Mrs. Weaver 's testimony about what Kane is al-
leged to have said at the "before Christmas"
December meeting differs from Mrs. Penley's in
that the former said that Kane had directed their at-
tention to the possibility that solicitors might come
to their door with beer soliciting them to sign union
cards and had requested that any such cards be
brought to him while the latter said that at the
"December 27th" meeting he had told the em-
ployees if they saw anybody with any cards for the
Union they were to get the person 's name and bring
it to him so that he might take care of it. Con-
sequently , Mrs. Weaver's testimony is not really
corroborative of Mrs . Penley 's even though they
both might have attended the same meeting.
The complaint is so framed that it is dependent
on Penley 's testimony and not on Weavers. Even
before considering Kane 's testimony , Mrs. Penley's
becomes open to question . We have first her initial
failure to remember anything that had transpired at
the meeting except the comments she related about
the minimum wage law and the reporting of names
as contrasted with all the other matters discussed at
the meetin of which she was reminded during her
cross-examination . Next we have the extreme un-
likelihood that Kane , who I had the opportunity to
observe on the witness stand , would have addressed
a group of new employees , whose union attitudes
he obviously did not know , and so boldly violate
the law by seeking to enlist them as decoys or spies
to report to him the names of union solicitors so
that he might take care of them.
CAMPBELL SOUP COMPANY
- Kane was called to testify . The topical summary
of the talk he habitually gave to new employees was
received in evidence. There is nothing in it which
refers to any minimum wage law. There is a
reference to the fact that two unions were attempt-
ing actively to organize at the , Sumter plant. The
reference states the Company's opposition to this.
It also states the Company 's intention that the em-
ployees would be convinced that - it was a good
place to work and that any problems could be
worked out without outside interference.
I accept Kane's denials as credible and do not
credit testimony given by Mrs . Penley and Mrs.
Weaver in support of the charge that Respondent
instructed its employees to -ascertain and report to
it-the names' of persons handing out union cards.
This charge has not been proven.
H. Alleged Discriminatory Enforcement of a No-
Solicitation Rule
The final allegation is that Respondent prohibited
union solicitations at any time ` while it permitted
solicitations for other purposes during working
hours.
'Consideration of this alleged violation involves
both consideration of the Company 's posted rule,
of which the employees had actual knowledge, and
whether, regardless of its , validity, it discriminated
against union solicitation by permitting other types
of solicitation during working hours.
The posted rules were:
Solicitation - and distribution of literature by
non-employees on company property is
prohibited.
Solicitation by employees on company proper-
ty during working time is prohibited.
Distribution of literature by employees on
company property in non -working areas during
working time is prohibited.
Distribution of literature by employees on
company property in working areas is
prohibited.
We are concerned here only with the rule
governing solicitation by employees on company
property. It is expressly qualified to apply only
"during working time."
In Campbell Soup Company, 159 NLRB 704,
enfd . in part , and set aside in part, 380 F.2d 372
(C.A. 5), we were concerned with two rules, one
governing distribution and the other solicitation.
The no-distribution rule- applied "at anytime during
employees ' 'working time on company property
other than in the work areas of the plant ." The no-
solicitation rule there involved prohibited solicita-
tion "during company working hours ." Both were
held by the Board , "presumptively discriminatory
and invalid inasmuch as they are so broad as to
prohibit any distribution or solicitation during a
particular employee 's nonworking - hours and in
1555
areas - of the plant set aside as `break -areas,'
lunchrooms or restrooms ." The court held that the
no-distribution rule was "not a model of clarity but,
nevertheless , it does not prohibit employees, on
nonworking time, from •distributing material in be-
half of a labor organization in nonworking areas of
the plant ." Pointing out that this was the concern of
the Board and was the "proscription set out in the
Board order," it declined to enforce this portion of
the order . On the other hand , it held that the no-
solicitation rule which applied "during company
working hours" was vague and indefinite and could
be interpreted to mean "that there may be no so-
licitation whatever during company working hours."
Because of the vagueness of the rule itself and-also
for the purpose of avoiding vagueness in the order,
the court; while enforcing the order -as- to no so-
licitation, stated that it construed the Board's lan-
guage in the portion of the order enforced "as ap-
plying to the employee doing the soliciting and to
the employee being solicited . . . " Thus the portion
of the order, that requiring Campbell to cease and
desist from "prohibiting its employees during non-
working time from otherwise soliciting their fellow
employees to join-or support (the Union) or any
other labor organization ," was held to apply only to
an employee who, while working might be soliciting
another employee while working, or an employee
who, even though not working , might be soliciting a
working employee , or a working employee who
might be soliciting an employee who is not working.
Although the prohibition against solicitation with
which we are here concerned could be interpreted
as prohibiting nonworking employees from solicit-
ing other nonworking employees on company pro-
perty, which might include break ' areas, the
cafeteria, halls, and public portions at any time
while any part of the plant was working, it is clear
from the evidence that the Union , the employees,
and management did not encounter any ambiguity
in its wording. In actual , operation , the rule did not
restrict any employee from engaging in union so-
licitation if that employee was not working at the
time and if the solicitation was directed to other
employees who similarly were not working. Wit-
nesses called in support of the complaint testified
quite clearly that this was the manner in which the
rule was interpreted . Mrs. Penley engaged - in union
solicitation at breaktime and in the cafeteria while
she was eating supper . She understood, that 'solicita-
tion while she was working would have, violated the
rule. Mrs . Weaver, after she had been accused of
soliciting for the Union while the girls were work-
ing, asserted that, she had not and, in defense, said
that she had "talked union at lunchtime and on
(her) breaks and after work ,. and that,'(she) would
continue to do so ." The Union - so ', construed the
Company's rule. In a letter written March 30, 1966,
notifying the Company that , Mrs. Ray and Mrs.
Batchelder were on the union organizing commit-
tee, it stated, "They have 'been notified of their
rights as guaranteed by the National Labor Rela-
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board . They will engage in asking people to
sign cards and ask for their support, of our Union.
This they will do on their own time only , and not
company time ." In another letter dated June 10,
1967, read into the record by the Union 's attorney,
the Union notified Respondent of Mrs . Weaver's
activity on the organizing committee and in the
letter stated, "She has been notified of her rights ...
guaranteed by the National Labor Relations
Board . She will engage in asking people to sign
cards and ask for their support of our union. This
she will do on her own time only, and not on com-
pany time."
There is nothing in the record to suggest that the
Company objected to this interpretation of its rule.
As recently as February 7, 1967, the Board in R. G.
Barry Corporation , 162 NLRB 1472, approved the
receipt and consideration of collateral evidence to
aid in the interpretation of an ambiguous rule. It
said,
While the first sentence does prohibit all "sol-
icitations " at anytime , other than for United
Appeal, we cannot say that , when read in its
entirety , the rule can be construed as prohibit-
ing employees from soliciting for the Union
during their nonwork time.
In these circumstances , the rule, at worst,
remains ambiguous , and collateral evidence
was properly admitted as to its interpretation
and application. In this connection the Respon-
dent testified , without contradiction , that the
rule was neither intended to apply , nor un-
derstood by the employees as applying, to
union solicitation , as demonstrated by the fact
that employees in fact solicited continuously
for the Union during their nonworking time in
accordance with a longstanding policy of the
Respondent . As we cannot conclude , in view
of this undisputed evidence , that the rule inter-
fered with the employees ' right to self-or-
ganization , we shall dismiss the pertinent al-
legations of the complaint.
Under the circumstances of this case the same
result is indicated.
In recognition of its validity , it was alleged and
Counsel supported the complaint sought to show
that the rule was discriminatorily enforced in that,
while union solicitation was prohibited during
worktime , other solicitations were permitted. This
proof, however, was wholly insufficient to support
the conclusion sought.
The testimony offered in support of the claim of
discriminatory enforcement was given by Mrs.
Weaver , Mrs. Penley , Mrs. Batchelder , and Mrs.
Ray. Regardless of the doubts which I have with
respect to the credibility to be accorded to these
witnesses , a critical reading of their testimony sug-
gests to me only that in those instances in which
they sought to show sales of cosmetics and
household articles during company time , such sales
always were made surreptitiously.
The majority of sales or the bulk of the business
done seems to have been done during breaks and in
the cafeteria . The circumstances described by these
witnesses , even if they were credited, do not
establish with any degree of certainty that any su-
pervisor actually knew that there was any passing of
money or taking of orders during worktime.
Testimony to the effect that there had been at iso-
lated solicitation of money "for one of the men that
was being transferred to Texas" was to the effect
that it "took place any hour even on the job ...
right there in the eviscerating room ." In response to
a leading question as to whether any supervisor was
present in the area at the time, the witness an-
swered , "James Douglas , our supervisor , was in the
room right there." The manner in which the money
was being collected, what was said or done at the
time and what overt acts if any were committed at
the time do not appear in the record . When this
witness was asked whether she could testify that
Douglas "overheard " what (the employees) were
talking about?", she answered , " I can't say for sure
that he overheard but he was in the room."
Mrs. Ray testified that on one occasion she in-
vited Foreman Royer to buy some "bubble bath,"
during working time , but he declined , laughing, and
saying that he "takes chicken baths during the day,
you know , just made a joke out of it, you know how
it is ." Royer denied that this incident occurred and
I credit his denial.
Other efforts to fasten on supervisors knowledge
that articles were being sold during working time
were made by offering testimony that supervisors
were present in the room or work area at the time
that the prohibited activities were being conducted.
I do not believe , on the basis of the evidence given
and considering the overall testimony of the per-
sons who gave the evidence , that even if those ac-
tivities were being conducted in the work areas dur-
ing worktime , that they came to the attention of the
supervisors . Incidentally, one of the persons named
as one of those supervisors was Ruth Riddle, the
person to whom I referred at the beginning of this
Decision and as to whom I made the finding that
she was not a supervisor.
I am unable to find, in view of all the testimony,
that in support of the complaint and of the Respond-
ent's witnesses , that the Respondent had any
awareness at all that selling activities were being
conducted and that there had been a collection of
money by working employees during working time.
The allegation in the complaint to the effect that
there was a discriminatory application or enforce-
ment of the no-solicitation rule is not supported by
substantial evidence of probative value.
CONCLUSIONS OF LAW
1. Campbell Soup Company is, and at all times
material herein has been , an employer engaged in
commerce within the meaning of Section 2(6) and
CAMPBELL SOUP COMPANY
(7) of the Act. The National Labor Relations Board
has jurisdiction of it and of this proceeding.
2. United Packing House, Food and Allied Work-
ers, AFL-CIO, Local 10 is now, and at all times
material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. Ruth Riddle, an employee of the Respondent,
was merely an instructress and was not a supervisor
within the meaning of Section 2(11) of the Labor
Management Relations Act, 1947 , as amended.
4. There is not sufficient substantial evidence of
probative value to establish that the Respondent
did interrogate employees concerning their union
membership , activities , and desires , and the union
membership , activities , and desires of other em-
ployees ; that it instructed employees to find out the
names of persons handing out the union cards at
any time and to report such names to it ; and that
1557
the Respondent prohibited union solicitation at any
time, while permitting solicitations for other pur-
poses during working hours.
5. Upon the preponderance of the testimony
taken in this proceeding the Respondent, Campbell
Soup Company, has not engaged in, and is not en-
gaging in , any unfair labor practice within the
meaning of Sections 2(6) and ( 7) and 8(a)(1) of
the Act.
Now, upon the entire record and in view of the
foregoing, the following is my recommended
ORDER
The complaint as amended , in Case 11-CA-3303
should be, and hereby is, dismissed.