Campbell Soup Co.

National Labor Relations Board - Board Decisions

Jun 25, 1976

225 N.L.R.B. 222 (N.L.R.B. 1976)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campbell Soup Company and Chauffeurs, Ware-
housemen and Helpers Local Union No. 876, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 5-CA-7481, 5-CA-7625, 5-CA-7656,
and 5-RC-9419
June 25, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
IT IS FURTHER ORDERED that the election conducted
on November 19, 1975, in Case 5-RC-9419 be, and it
hereby is, set aside and that case is hereby remanded
to the Regional Director for Region 5 for the purpose
of scheduling and conducting a second election at
such time as he deems the circumstances permit a
free choice on the issue of representation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 30, 1976, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent Campbell Soup Compa-
ny, Salisbury, Maryland, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products , Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 Since Chairman Murphy dissented from the Board's Order denying the
Employer ' s request for review of the Regional Director's finding that
Wayne Witzke and Frederick Dinges are nonsupervisory professional em-
ployees , she also disagrees with those portions of this Decision which treat
them as employees Thus, Chairman Murphy would not find that Respon-
dent violated Sec 8 (a)(1) of the Act by interrogating Witzke and Dinges or
by reprimanding Witzke for violating Respondent ' s no-solicitation /no-dis-
tribution rule Similarly, Chairman Murphy would not find that
Respondent's withholding of Witzke 's annual wage increase violated Sec
8(a)(3) of the Act. For the same reasons, Chairman Murphy would also
overrule the objections to the election which are based on the foregoing
conduct vis -a-vis Witzke and Dinges In all other respects , Chairman Mur-
phy agrees with the majority 's disposition of the issues
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: The
hearing of these cases was held in Salisbury, Maryland, on
January 13 and 14, 1976. The complaint in Case 5-CA-
7481 was issued by the Acting Regional Director of Region
5 of the National Labor Relations Board (herein the
Board) on October 31, 1975, based on a charge filed by
Chauffeurs, Warehousemen and Helpers Local Umon No.
876, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(herein the Union) on August 18, 1975. The complaint in
Cases 5-CA-7625 and 5-CA-7656 was issued by the Re-
gional Director on January 6, 1976, based on charges filed
by the Union on November 11 and December 1, 1975,
respectively. The complaints and appropriate orders conso-
lidating same were duly served upon Campbell Soup Com-
pany (herein Respondent) and Respondent filed timely an-
swers denying the substantive allegations of the
complaints.
Consolidated for hearing with the complaints were the
Union's objections to the conduct of the election conduct-
ed on November 19, 1975, in Case 5-RC-9419. The objec-
tions were filed on November 26, 1975, and the report on
objections and order consolidating cases and notice of
hearing issued on January 9, 1976. Except as noted, infra,
the objections and the complaint allegations were substan-
tially identical.
At issue was whether Respondent violated Section
8(a)(1),(3), and (4) of the Act, and interfered with the con-
duct of the election by interrogating employees, soliciting
their grievances , promulgating, maintaining , and enforcing
unlawful no-solicitation and no-distribution rules, creating
the impression of surveillance , threatening loss of benefits,
and denying an employee a wage increase because he filed
charges, testified under the Act, and engaged in other
union activities.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses, and to argue orally. Comprehensive briefs,
which have been carefully considered, were filed on behalf
of the General Counsel, Respondent, and the Union.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing.
225 NLRB No. 35
FINDINGS OF FACT
CAMPBELL SOUP CO. 223
tion. As noted, the Union filed timely objections to con-
duct affecting the results of the election.
I. THE RESPONDENT 'S BUSINESS AND THE UNION 'S LABOR
ORGANIZATION STATUS
Respondent, a New Jersey corporation, is engaged at
Salisbury, Maryland, in the production of frozen food
products. Jurisdiction is not in isssue. I find and conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I find and conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The following persons comprise Respondent's superviso-
ry heirarchy, to the extent relevant herein:
Edward Thomas-Plant Manager
Elwood Anderson-Personnel Manager
Donald DeValle-Manager of Quality Control
James Jackson-Manager of Laboratories
II. THE UNFAIR LABOR PRACTICES
A. The Union Activity Generally-Representation Case
Proceedings
Respondent's Salisbury, Maryland, plant has approxi-
mately 725 employees. Those in the hourly rated produc-
tion and maintenance positions are represented for collec-
tive-bargaining purposes by the Amalgamated Food and
Allied Workers Local 56. The salaried employees, consist-
ing of office clericals, inspectors, laboratory technicians,
and professional employees, of whom there were approxi-
mately 80, are unrepresented.
In mid-July 1975 (all dates hereinafter are 1975 unless
otherwise set forth) Wayne Witzke, plant bacteriologist,
contacted the Union regarding representation of the sala-
ried employees. Witzke received and distributed union au-
thorization cards between July 19 and 25. He returned suf-
ficient signed cards for the Union to establish the requisite
showing of interest. On July 28, the Union filed its petition
in Case 5-RC-9419.
A hearing on the Union's petition was held on August 20
and 27 and September 9. The Regional Director's Decision
and Direction of Election issued October 22. Witzke and
Frederick Dinges, a chemist, were determined to be nonsu-
pervisory professional employees. Respondent, contending
that Witzke and Dinges were statutory supervisors, filed a
request to review the Decision and Direction of Election
which the Board denied. Respondent did not seek to reliti-
gate the status of Witzke and Dinges in the instant pro-
ceeding. However, on brief, Respondent reasserted its posi-
tion that Dinges and Witzke were supervisors. In view of
the Board's findings, I deem them to be employees.
An election was directed in two voting groups, profes-
sional and nonprofessional, and was conducted on Novem-
ber 19. In the voting group consisting of nonprofessional
office clerical employees, inspectors, and laboratory tech-
nicians, 38 votes were cast against the Union and 13 votes
were cast for representation. Among the professional em-
ployees 2 votes were cast in favor of representation and
none against. Witzke was the Union's observer at the elec-
B. Respondent's Conduct-Meetings, Speeches, and Letters
Respondent responded to the Union's petition with a
series of meetings and other communications with the em-
ployees.1 The first meetings were with those whom Respon-
dent considered to be supervisors. Witzke and Dinges at-
tended one such meeting with Elwood Anderson and
James Jackson. Anderson gave them a set of written "In-
structions to Supervisors" which related the fact of the or-
ganizational effort, stated Respondent's intention "to con-
vince our salaried employees, in a fair and lawful manner,
that they do not need a union," told them that they would
be largely responsible for carrying out Respondent's pro-
gram, informed them of Respondent's expectation that
they would support it in their discussions with employees,
and reminded them that Respondent was responsible for
their actions. Specifically, the instructions directed them
not to interrogate, threaten, or make promises to employ-
ees. Probable questions and permissible answers were set
out.
On July 31, Respondent either posted or mailed a letter
to its salaried employees. That letter, signed by Thomas,
related the fact of the petition and stated:
Our feeling is that there is no need for a third party
to become involved.
The union will be busy trying to get you to sign an
authorization card.
We remind you that the no solicitation rule is in
effect and that you should report any incident to your
Supervisor.
In the event that you have signed a card, you still
have the opportunity to have it withdrawn.
On the same date, Anderson and Thomas began to meet
with all of the salaried employees, in small (4-16) groups.
Anderson's message to the employees was essentially the
same as Thomas' letter, described above. However, Ander-
son testified that he stated in regard to the no-solicitation
rule:
That we had a long standing no solicitation rule in the
plant and if employees were approached several times
with regard to the possibility . . . of signing cards and
they felt that they needed protection of this rule, under
those circumstances, they should contact their supervi-
sors or contact me for assistance.
Witzke related Anderson's statement in regard to the no-
solicitation rule as being essentially identical to the state-
ment in Thomas' letter. He denied that there was any refer-
ence to seeking assistance of supervision only in the event
of repeated solicitations. I credit Witzke's testimony.2
1 Prior to the representation campaign, Respondent had only infrequently
held meetings with the employees
2 The comparative demeanors of Anderson and Witzke were of little as-
sistance in resolving this question I base my finding on the similarity be-
tween Anderson's remarks and Thomas' letter Moreover, inasmuch as no-
solicitation rules are intended for the protection of management, not em-
Continued
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to July 31, Anderson had never instructed employ-
ees as to the existence of a no-solicitation rule. He knew of
no such rule written or posted in the plant. Respondent
publishes a booklet, entitled "Rules for Personal Conduct,"
which it distributes to the hourly paid employees and those
salaried employees who supervise or measure the levels of
performance of such hourly rated employees. This booklet
is not generally distributed to salaried employees and was
not given to those involved in this case. It designates as an
infraction warranting progressive discipline, from warning
to dismissal, "Distributing written or printed material on
company property without permission." Anderson testified
that Respondent considered the prohibition of solicitation
to be included within the foregoing rule. The rationale for
the rule, Anderson testified, was primarily to aid manage-
ment in maintaining an atmosphere of concentration upon
producing its product, and secondarily, to prevent waste
and trash which might impinge upon sanitation and qual-
ity.
The record reflects that Respondent utilizes its rules to
limit the number of charitable solicitations-permitting
only one unified fund drive. It prohibits political candi-
dates and other outsiders from making solicitations in the
plant. Permitted, however, is a weekly pool during the foot-
ball season and occasional distributions of religious tracts.
The former includes participation of supervisors; the latter
is done with Anderson's express permission.
Respondent's plant was shut down for its annual vaca-
tion period in the first 2 weeks of August. Upon their re-
turn to work, Thomas met individually with each of the
persons deemed by management to be a supervisor, includ-
ing Witzke and Dinges. According to his own testimony,
Thomas advised each that, as a supervisor, he or she was
excluded from the unit. He reminded them of the previous-
ly distributed "Instructions for Supervisors," and, stating
that he expected it, asked them whether he had their whole-
hearted support. He asked them whether they were aware
that cards were being distributed and whether "they had
been contacted by anyone or had they contacted anyone."
The latter questions indicated the purpose of these meet-
ings, as information had come to Thomas that some super-
visory personnel had been soliciting cards. Thomas dictat-
ed notes of his meetings with each of the "supervisors."
These notes indicate that Thomas inquired as to the com-
plaints or problems impelling the employees to seek repre-
sentation. The notes of his conversation with Dinges relate,
in part:
Fred did state the cards were being circulated and
signed and as a member of management would give
full cooperation although he did not appear strong in
this area. He stated that he had been contacted by a
fellow employee, but did not give me any details as to
who contacted him. He stated that he had not contact-
ed any employees concerning the signing of cards.
ployees, I deem Anderson's version less plausible than Witzke's I do note
that Anderson's version is consistent with the notes he claimed to have used
during these meetings and with the testimony of one employee, Nickerson
However, he admitted that he did not read his notes verbatim Finally, in
view of the number of such meetings held, it is not inconceivable that
Anderson's remarks were more detailed at some meetings than at others
As to the Thomas-Witzke meeting, the notes state:
Wayne stated that he did not want to discuss what is
bothering him or other individuals in the plant and
that we would learn at a later date. I asked him if he
understood that he is a member of management and
that we expect his support.
*
During the meeting, Mr. Witzke was up tight and ap-
peared to be on the edge of being a fanatic as he
pounded his fists on the table.
I asked Mr. Witzke if he had contacted any employees
concerning the signing of cards. He would not reply?
Following the individual meetings with the "supervi-
sors," Thomas met with the salaried employees in small
groups. Thomas' candid testimony was as follows:
Q. (By Mr. Smethurst): What was the nature of
these meetings?
A. I indicated that recent events had me extremely
concerned, that apparently I had lost touch and first
hand I wanted to sit down and learn from them what
was really bothering them. I indicated that I asked an
individual to sit in with us who had some technical
knowledge regarding benefits, salaries to sit in with us
and respond if she could, to any questions they had. It
was really to find out what was bothering those peo-
ple.
*
At the meeting I held the middle of August with these
employees, I indicated we would give them a prompt
response to any questions they brought up. I met with
them again in early September. I would say it was the
3rd or 4th.
Thomas made notes of each employees' gripes, as raised in
his meeting with them. These "gripes" included such mat-
ters as wages, vacations, availability of the credit union,
layoffs, leave policies, cost of living, and promotions. At
the meetings in early September, as he had promised to do,
Thomas reported progress on several of the matters raised
by the employees in the mid-August meetings-notably the
parking lots, the lunchroom, and the credit union .4 He stat-
ed that more such meetings would be held.
Under date of November 7, Thomas sent each unit em-
ployee a letter containing the following:
I want to make it clear to you why the Company is
opposed to the union and why I feel it is not needed at
our plant.
*
In return for your good work, we have, as a matter of
policy and practice, always tried to do right by you.
To the extent that our business would permit us, we
3 Thomas' testimony and notes are not in conflict with, and indeed are
more detailed than, the recollections of Witzke and Dinges
General Counsel did not contend that the actions taken constituted un-
lawful grants of benefits as each of them had commenced prior to the ad-
vent of the union activity
CAMPBELL SOUP CO. 225
have consistently tried to keep our pay and benefits in
good shape and provide a satisfying work environ-
ment. In addition, we have strived to establish a cli-
mate of friendly and considerate relations.
A third party has never been needed here to speak for
you. This is particularly true of our salaried employees
who are, in reality, part of the management team. If
we work together, we grow together, if we work
against each other, we go backward together. The
door is always open if you have a problem. Every
manager, every supervisor is prepared to listen and
answer your questions and to take action when you
point out a situation which you feel needs correction.
We don't claim to be perfect, but we always try and
are willing to help. I don't believe that intervention by
an outside party can improve this kind or relationship.
Campbell Soup Company would never give more to
employees dust because they are represented by a
union than they would give employees not represented
by a union. The union cannot get for you the things
Campbells, in keeping with good business practices, in
unable to give you. A union can only make promises
and may strike in an effort to enforce their promises.
Finally, let me remind you that if you have any ques-
tions, please talk to you supervisor, departmental
manager or me. We will answer your questions as di-
rectly and honestly as we can.
An additional letter sent over Thomas' signature on No-
vember 14 related that representation did not automatical-
ly mean higher benefits, that unions sometimes traded
other benefits to secure union-shop and checkoff provi-
sions, and stated , "Remember , in collective bargaining ev-
erything starts from scratch "
Thomas delivered a final speech several days before the
election, again to small groups of employees. He read from
a prepared text. After describing the details of the election,
soliciting questions concerning the pending unfair labor
practice charges, and briefly discussing their benefits com-
pared to those of the represented Campbell Soup employ-
ees, he stated:
In my last letter to you I pointed out that a union does
not automatically mean better wages and benefits. As
much as the union does not address itself to the situa-
tion-bargaining begins from scratch
Under the law the employer is not required to agree to
continue in effect existing benefits . Bargaining for a
contract does not start from a base of existing benefits
or from the benefits that employees already have.
Let me give you an example-
The employees of our Southeastern Products Compa-
ny in Milwaukee, Wisconsin, where our spices are
made, had paid sick leave and personal time off as
part of their benefit package as salaried employees.
They decided to organize-go to collective bargaining
and in negotiating these benefits they lost them.
Again , I state that bargaining begins from scratch.
The speech closed with a description of the costs of union
membership and a request that the employees vote "No."
Sentiments similar to those of Thomas ' speech and let-
ters were also contained in a booklet of questions and an-
swers given out on the day before the election. Included in
that booklet was the following:
Q. Why not vote to have a union since the Compa-
ny will not take away anything we already have, and
the Union will only make it better?
A. If the Union wins the election everything is up
for grabs. All salaries, hours, and other working condi-
tions, including fringe benefits , are subject to negotia-
tions and there is no guaranty that things will continue
as they are now.
C. Alleged Discrimination-Enforcement of Rules
On August 26, at the request of the Union, Witzke
picked up a subpena for one of Respondent's supervisors,
Ron Price. Shortly after the lunch hour, Witzke served the
subpena on Price, on the production floor. About an hour
later, Witzke was summoned to the conference room where
he met with Anderson, Thomas, and DeValle. Anderson
told Witzke that he wanted to remind him of the no-solici-
tation rule, that it was still in effect, and that he considered
serving a subpena on an individual to be a form of solicita-
tion. He was told that all legal papers were to be delivered
through the personnel department. Witzke disputed
Anderson's contention that this was solicitation. He asked
for a copy of the no-solicitation rule and was referred to
the no-distribution rule, contained in the "Rules for Per-
sonal Conduct," previously quoted. Witzke had not previ-
ously seen these rules He subsequently asked Anderson
whether he was going to get a written warning for this
incident. He was told that Respondent did not intend to
pursue the matter further and he should not be concerned
about it. He checked his personnel jacket and determined
that there was no written record made of this incident.
On the first of September in 1972, 1973, and 1974, Witz-
ke had received wage increases. He received no such in-
crease in 1975. He was denied the increase because, follow-
ing the filing of the petition, he had disclaimed his alleged
supervisory status and sought direction of his supervisors
in such matters as scheduling overtime of the employees
who worked with him. Additionally considered in denying
the wage increase was an allegedly derogatory comment
that Witzke made concerning the plant manager and assis-
tant plant manager to the effect that when he was through
there would be homes for sale in Deer Harbor (where these
two management officials lived). This remark, I find, only
has meaning in regard to Witzke's union activity. These
reasons for denying the wage increase to Witzke, as can-
didly testified to by Anderson and DeValle, established for
them that Witzke did not, for one in his position, demon-
strate the degree of company loyalty warranting an in-
crease.
On October 9, Witzke learned that Respondent had
filed a motion to dismiss the Union's petition. Using
Respondent's copying equipment, he made copies of the
motion, with handwritten comment on it , stating : "another
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempt by your company to depnve you of your freedom
of choice by virtue of an election." He distributed copies
around the office and laboratory. Anderson learned of this
and suggested that DeValle speak to Witzke. This DeValle
did on or about October 13. He asked Witzke if he recog-
nized the document and told him that he assumed Witzke
had distributed copies. He reminded Witzke that there was
a no-solicitation rule in effect for the violation of which he
had previously been warned, and told him that this con-
duct was in violation of the rule.
On November 6, Respondent posted a notice to all sala-
ried employees relating that it had been served with unfair
labor practice charges. The notice stated: "It appears that
many were initiated by the Plant Bacteriologist, whom the
company has always considered to be a supervisor." It also
stated that Respondent would have an opportunity to de-
fend itself and would "continue" to act normally and law-
fully. Witzke removed the notice from the bulletin board
for about 5 minutes and copied it. He was then called into
Anderson's office where Anderson told him his actions had
been observed and that they were in violation of company
rule D-29, which proscnbes "Posting, removing, altering or
defacing notices on bulletin board at any time without ap-
proval." He was also told that the copying machine was for
official business. (It was, however, used for such unofficial
matters as the football pool.) He was also cautioned
against excessive breaks.
On or about November 14, Jackson was observed to be
following employees and making notes on their conversa-
tions. Jackson did not deny engaging in this conduct. He
attributed it not to the union activity but to his attempt to
determine whether there was unproductive time in the lab-
oratories. This had grown out of his request to DeValle for
additional employees and DeValle's belief that there was
idle time available. For the same reason, Jackson coun-
seled his employees about the appropriate use of break-
time . He did not mention the Union. Neither was there any
reference to the Union in the notes he made. Jackson's
conduct ceased as soon as it was reported to management
that he was engaging in a form of surveillance.
III. ANALYSIS AND CONCLUSIONS
A. Interrogation
Respondent contended, and in good faith believed, that
Witzke and Dinges were supervisors. The Board, however,
found them to be employees and it is in that capacity that
I treat the conduct directed at them. The record reflects
that in the course of questioning its supervisors concerning
the union activity and their possible participation therein,
Respondent's plant manager questioned both Witzke and
Dinges. They were asked, inter aka, whether they were
aware that cards were being distributed and whether they
had contacted or been contacted by any fellow employees.
Thomas' notes of his meeting with Dinges establish that
Thomas had sought the details of which employee had con-
tacted Witzke.
General Counsel contends that such interrogation vio-
lates Section 8(a)(1) notwithstanding Respondent's good-
faith belief that Dinges and Witzke were supervisors. In
support of this proposition, General Counsel cites LTV
Electrosystems, Inc. v. N.L.R B., 408 F.2d 1122 (C.A. 4,
1969); Ross Porta-Plant, Inc., 166 NLRB 494 (1967); and
Benson Wholesale Company, Inc., 164 NLRB 536 (1967).
These cases are inapposite as none of them reach the ques-
tion of whether an employer violates Section 8 (a)(1) when,
in an effort to learn if his supervisors are improperly in-
volved in the union activity, he mistakenly but in good
faith interrogates some who do not meet the criteria of
Section 2(11). LTV Electrosystems dealt only with the dis-
charge of an employee believed to be a supervisor; Ross
and Benson involved both interrogation and discharges but
lacked the elements of good-faith belief in the supervisory
status and a valid purposes for the interrogation.
Respondent has relied on a case more nearly in point.
Pillows of California, 207 NLRB 369 (1973). In that case,
the employer erroneously but in good faith believed that an
employee, Herman, was a supervisor. Upon receiving a
union communication indicating Herman' s role in the
campaign the employer called Herman in for questioning.
As in the instant case, Herman was told that she was con-
sidered a supervisor, given an explanation as to the permis-
sible restrictions upon a supervisor's union activity and in-
formed of the legal consequences of a supervisor's
participation in the union's campaign. She was then asked
whether she had solicited other employees to join the
union. As in this case , she was told that her loyalty and
support were expected. Unlike the instant case , however,
Herman was not asked whether and which other employ-
ees had solicited her support for the union. It is upon this
latter point that a valid and significant distinction exists.
For, while the coercive effect of asking a purported super-
visor/employee if he or she engaged in union activity may
be offset by an explanation of the employer's position vis-
a-vis that employee's status and its reasons for the interro-
gation and may be balanced by the employer's right to
protect itself from union activity by its supervisors, nojust-
ification exists for questions directed at determining which
other employees are engaging in statutorily protected activ-
ities. Such questions convey to the purported supervisor the
message that, even if he is an employee, the employer has
an improper interest in his activities. There is an implied
threat of possible retaliation in such interrogation and by it
are employees coerced in the exercise of their statutory
rights. Rex Disposables, Division of DHJ Industries, Inc,
201 NLRB 727 (1973).5
General Counsel further contends that DeValle's ques-
tioning of Witzke on October 13, regarding his role in dis-
tributing the editorialized copies of Respondent' s motion
to dismiss the representative petition, constituted addition-
al unlawful interrogation. I agree. By its questioning, Re-
spondent expressed its displeasure and tended to interfere
with further involvement in such legitimate , if intemperate,
campaign activities. Moreover, by stating to Witzke that he
5 1 would further note that Respondent's motive or intent in interrogating
its employees is irrelevant if such interrogation reasonably "tends to inter-
fere with the free exercise of employee rights under the Act " Guerdon Indus-
tries, Inc Armor Mobile Homes Division, 218 NLRB 658 661, In 23 (1975),
citing with approval The Cooper Thermometer Company, 154 NLRB 502,
503, In 2 (1965)
CAMPBELL SOUP CO. 227
assumed that Witzke had knowledge of the distribution,
DeValle impliedly sought information as to who else, be-
yond Witzke, might be involved in the distribution. Such a
statement forced Witzke to assume responsibility for the
union activities of other employees .6
Accordingly, I find that Respondent's interrogations of
Dinges and Witzke violated Section 8(a)(1) of the Act.
B. The No-Solicitation and No-Distribution Rules
Immediately upon the advent of the Union's campaign,
Respondent "reminded" the unit employees, orally and in
writing, "that the no-solicitation rule is in effect." I The
rule, as stated, was without limitation as to time or place. It
could not conceivably have been worded in broader terms.
Such a rule is unlawfully broad. FMC Corporation, 211
NLRB 770 (1974); Stoddard-Quirk, supra. Even if the rule
as stated were to be considered ambiguous, the risk of that
ambiguity must be borne by the employer, not the employ-
ee upon whom the rule was imposed. Boaz Spinning Com-
pany, Inc., 210 NLRB 1078, 1079 (1974); N.L.R.B. v. Ha-
rold Miller, Herbert Charles, and Milton Charles,
Co-partners, d/b/a Miller-Charles and Company, 341 F.2d,
870 (C.A. 2, 1965).
Similarly, Respondent's no-distribution rule is facially
invalid. That rule prohibits "distributing written or printed
material on company property without permission." It fails
to restrict its prohibition to working areas and working
time. No justification, beyond a blanket assertion of con-
cern for production, sanitation, and quality, was offered
for the rule. As pointed out by General Counsel, such con-
cerns do not explain why distributions should be prohib-
ited in nonwork areas and on nonwork time. Neither was
there evidence of problems in the plant caused by distnbu-
tions which might warrant such a broad-based limitation.
Moreover, the qualification, "without permission," adds
little to the validity of the rule as few employees will seek
their employer's permission to engage in union activities
and expose themselves to possible enmity and retaliation. I
thus find Respondent's no-distribution rule to be unlawful-
ly broad. Republic Aviation Corp. v N.L.R.B., 324 U.S. 793
(1945); Groendyke Transport, Inc, 211 NLRB 921 (1974);
Stoddardk-Quirk, supra.
Respondent contended that its rules were not as broad
as they appeared on their face to be. The record does not
support this contention. What is shown by the record is
6 The coercive effect of this interrogation was heightened by the reference
to this conduct as violative of an invalid no-solicitation rule, as discussed
more fully, infra
The record fails to establish that Respondent maintained a no-solicita-
tion rule prior to this time, at least as to these employees Respondent's
"Rules for Personal Conduct" contained a no-distribution rule but, as Gen-
eral Counsel correctly asserted, no-distribution rules and no-solicitation
rules are separate and distinct A no-distribution rule does not impliedly
encompass a no-solicitation rule Stoddard-Quirk Manufacturing Co, 138
NLRB 615 (1962) Moreover, Respondent intentionally avoided distributing
copies of the "Rules for Personal Conduct" to these salaried employees
Nonetheless, contrary to General Counsel's contention, I would not find the
promulgation of such rules violative merely because they were established
when needed , if they were otherwise valid and nondiscnmmately applied
Sequoyah Spinning Mills, Inc, a Wholly Owned Subsidiary of Sequoyah Indus-
tries, Inc, 194 NLRB 1175 (1972) See also Veeder-Root Company, Altoona
Division, 192 NLRB 973 (1971)
that employees have not generally sought to engage in so-
licitations or distributions without first requesting permis-
sion of management and that management was aware of
few employee solicitations or distributions in nonwork ar-
eas and on nonwork time. The single regular solicitation of
which Respondent was aware was a football pool, which
was engaged in with the tacit approval, and participation,
of management.
The Respondent further contended that there was no
evidence that its rules interfered with or restrained anyone
because all solicitation efforts had been completed prior to
the filing of the petition and Respondent's announcement
of its rules. One answer to this contention is that it is the
reasonably anticipatable effect of conduct, not its actual
effect, by which its lawfulness is measured. The second is
that union activity seldom ends with the filing of a petition
and, but for the unlawfully broad rules, solicitations and
distributions might have continued.
Additionally, I note that Respondent's direction to re-
port violations of the no-solicitation rule added a further
element of coercion to the rule. A request that solicitations
be reported in order to gain management's "protection"
implies that the solicitor will be restrained or disciplined
and employees are not likely to engage in solicitations if
they expect or fear that their activities will be reported to
management. Moreover, union activity does not lose its
protected character when it is repeated. Even if, as Respon-
dent contended, the admonition applied only to repeated
solicitations, a solicitor might be unwilling to assume the
risk that a fellow employee might deem the solicitation re-
petitious and report it
Invalid no-solicitation and no-distribution rules provide
no justification for the discipline of employees who violate
them even when those violations occur in working areas
and on working time, unless the employer can establish
that the violation interfered with the employee's own work
or the work of other employees, and that this, rather than
the violation of the rule, was the reason for the discipline.
The Singer Company, 220 NLRB 1179 (1975); Daylin Inc.,
Discount Division d/b/a Miller's Discount Dept Stores, 198
NLRB 281 (1972). Thus, whether Witzke's service of the
subpena on Price was treated as a violation of the no-solici-
tation rule or the no-distribution rule, the reprimand he
received pursuant to one or the other of those rules violat-
ed Section 8(a)(1) of the Act. Respondent similarly violated
Section 8(a)(1) when, on October 13, following Witzke's
distribution of Respondent's motion to dismiss, he was "re-
minded" of the no-solicitation rule and told that he was
again in violation thereof. These warnings were implicit
threats of further and greater discipline.
C. Solicitation of Grievances
The complaint alleged that Respondent violated Section
8(a)(1) by soliciting employees to register their grievances
with it rather than with the Union in order to induce em-
ployees to reject the Union as their collective-bargaining
agent. The essence of such a violation is not the solicitation
of grievances itself; rather, it is the inference created by
such solicitation that the employer is promising to correct
those grievances. Uarco Incorporated, 216 NLRB 46 (1974).
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In regard to the creation of such an inference, the Board, in
Reliance Electric Company, Madison Plant, Mechanical
Drives Division, 191 NLRB 44, 46 (1971), stated the princi-
ple succinctly:
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that
he is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urg-
ing on his employees that the combined program of
inquiry and correction will make union representation
unnecessary.
This inference is, however, rebuttable. Herbst Supply Co.,
Inc., 222 NLRB 448 (1976); Uarco, supra
That Respondent herein solicited its employees' griev-
ances is undisputed. That was the express purpose of
Thomas' meetings with all unit employees in Mid-August.
Similarly admitted by Respondent was the fact that such
solicitations were not pursuant to an employer practice or
custom, having happened only rarely in the past, and were
occasioned at this time by the union activity. Thus, the
question which remains is whether the circumstances of the
solicitation herein negated or buttressed the implied prom-
ise.
I am constrained to conclude that Respondent's conduct
herein emphasized the promise to correct grievances. In so
concluding, I note that Respondent took notes of each
employee's problems or desires, thus underscoring its in-
tention to take corrective action. Further, it promised a
prompt response to the various inquiries and, in fulfillment
of that promise, met again with the employees in early Sep-
tember. At those September meetings, the employees were
advised of the steps already being taken to correct some of
the problems. As to those problems on which corrective
action had not commenced prior to the advent of the
Union, Respondent indicated that it could not then take
any action because, as stated by Thomas:
We were in this area of protected activity and no ac-
tion could be taken at that time as long as we were in
that area of protected activities.
Rather than being a negation of the implied promises, such
statements in this context emphasized Respondent 's inten-
tion to satisfy more of the grievances when, in the absence
of union activity, it was free to do so. I note, also, that
Respondent's letter of November 7 reiterated Respon-
dent' s willingness to hear and correct problems by it-
self, without union intervention . It went on to reinforce
this thought by stating that the Union could not get more
than Respondent would give without the Union. Finally, I
note that, unlike the circumstances in Uarco, supra, the re-
cord herein contains evidence of Respondent's union ani-
mus. See Herbst Supply, supra; Swift Produce, Inc., 203
NLRB 360 (1973).
Based on all of the foregoing, I conclude that Respon-
dent violated Section 8(a)(1) of the Act by its implied
promises of benefit. N.L.R.B. v Flomatic Corp, 347 F.2d
74 (C.A. 2, (1965).
D Impression of Surveillance
General Counsel and Charging Party contend that Re-
spondent further violated Section 8(a)(1) by creating the
impression that there was surveillance of the union activi-
ties. It is contended that such an impression was created by
Anderson, around August 1, when he told employees that
he understood that cards had been passed out and signed,
and by Jackson through his following and observing of
Dinges and Witzke on or about November 14.
As to Anderson's statements, Respondent contends that,
inasmuch as a petition (with the requisite showing of inter-
est) had been filed by the Union, Anderson was doing no
more than stating the obvious. Respondent's contention is
well founded. Such statements do not unlawfully create an
impression of surveillance. Central Merchandise Company,
194 NLRB 804, 811 (1972).
A closer question is presented by Jackson's observations
of Dinges and Witzke. Respondent's explanation that
Jackson was endeavoring to determine whether there was
idle time in the laboratories is not implausible and, in view
of the absence of any mention of the Union by Jackson or
in his notes made in the course of this purported surveil-
lance, and the fact that Respondent directed Jackson to
cease his observations as soon as it became aware of them,
I conclude that Jackson's activity cannot be deemed to
constitute the unlawful creation of an impression of sur-
veillance.
E. Denial of the Wage Increase to Wayne Witzke
Respondent candidly admitted, and I find, that it denied
Witzke a wage increase because, in order to establish his
eligibility to participate in the election as an employee, he
disclaimed supervisory status and because he further dem-
onstrated disloyalty, animosity, and disrespect by making a
derogatory remark, the import of which was that the Union
would win the election and Respondent would terminate or
transfer the plant manager and his assistant because of it.
Based on these findings, I do not deem it necessary to
probe, as General Counsel would have me do, for
Respondent's motive. Both activities by Witzke were legiti-
mate exercises of his statutorily protected rights to engage
in union activities. As to his position vis-a-vis his status, his
conduct amounts to no more than an assertion of his right
to participate in union activities, a position which the
Board determined to be correct. As to Witzke's remark
affecting the tenure of the plant management, Board law is
clear. The Board standard in regard to speech uttered by
employees in the context of union activities appropriately
recognizes "that the economic power of employer and em-
ployee are not equal, that tempers may run high in this
emotional field, that the language of the shop is not the
language of `polite society,' and that tolerance of some de-
viation from that which might be the most desirable behav-
ior is required." It holds that offensive, vulgar, defamatory,
or opprobrious remarks uttered in the course of protected
activities will not cause a forfeiture of the Act's protection
unless they are so flagrant, violent, or extreme as to render
the individual unfit for further service. Dreis & Krump
Manufacturing, Inc., 221 NLRB 309 (1975); American Tele-
CAMPBELL SOUP CO 229
phone & Telegraph Co., 211 NLRB 782 (1974). Witzke's
statement was far less offensive than many which the
Board and the courts have held not to exceed permissible
bounds. See, for example: Dreis & Krump, supra (accusa-
tions that a supervisor was malicious, negligent, careless,
and dissembling); Farah Manufacturing Company, Inc., 202
NLRB 666 (1973) (employee insubordinately refused to
lower voice); Ben Pekin Corporation, 181 NLRB 1025
(1970) (employee accused employer's president of bribing
union agent); and N L.R.B. v. Thor Power Tool Co, 351
F.2d 584 (C.A. 7, 1965) (employee referred to employer's
superintendent as a "horse's ass.")
Additionally, in view of Respondent's admitted attitude
caused by Witzke's remark and the fact that it was well
aware of Witzke's union activity and had demonstrated
animosity thereto, I find it impossible not to conclude that
Respondent deemed his entire pattern of union activity as
rendering him unworthy of the wage increase which he
otherwise would have received.
Accordingly, for all of the foregoing reasons, I find that
Respondent denied Witzke an annual wage increase be-
cause of his statutorily protected union activity, in viola-
tion of Section 8(a)(3) and (1) of the Act.'
IV CONDUCT AFFECTING THE RESULTS OF THE NOVEMBER 19
ELECTION
As stated at the outset of this Decision, the Regional
Director consolidated the representation and complaint
proceedings since they presented essentially identical is-
sues. The Union urges, as a further basis for setting aside
the election, that Respondent threatened its employees
with loss of benefits by its repeated "Bargaining from
scratch" statements .9 The Board has frequently been con-
fronted with such statements. In Wagner Industrial Prod-
ucts Company, Inc., 170 NLRB 1413 (1968), it stated:
As the Board and the courts have recognized in other
cases, in the course of organizational campaigns, state-
ments are sometimes made of a kind that may or may
not be coercive, depending on the context in which
they are uttered. "Bargaining from scratch" is such a
statement. In order to derive the true import of these
remarks, it is necessary to view the context in which
they are made. [Footnote omitted.]
Wagner Industrial Products was solely an unfair labor prac-
tice case and involved no contemporaneous violations. The
Board found the employer's remarks to be noncoercive,
pointing out that the employee's main thrust was to show
that mere designation of a union did not guarantee large
increases in benefits, and that there was no specific impli-
cation that the employer would seek a reduction in benefits
if required to bargain. In a more recent case, Stumpf Motor
8 The evidence failed to establish that the denial was occasioned by
Witzke's testimony in the Representation case or his involvement in the
charge filed in mid-August Accordingly, I find no violation of Sec 8(a)(4)
of the Act
9 As General Counsel declined to allege these statements as violative of
Sec 8(a)(I), I reject the Union's contention that I should treat this evidence
as an unfair labor practice allegation It is the General Counsel's sole re-
sponsibility to issue and amend complaints
Company, 208 NLRB 431, 432 (1974), involving both objec-
tions and unfair labor practices, the Board, notwithstand-
ing the presence of contemporaneous unfair labor practic-
es, found the following statements nonthreatening and
privileged under Section 8(c):
. .. under a union, all benefits would be negotiable,
[stated] as a preface to mentioning specific benefits
presently enjoyed . . . which could be lost as a result
of negotiations... .
* * s s s
[the employer] talked to about 20 of the employees
about the negotiability of existing benefits and . . .
stated that if he were in the position of the employees,
he would hate to lose certain of these benefits as a
result of collective bargaining.
Both Wagner Industrial Products and Stumpf were cited by
the Board , with approval , in Computer Perhipherals, Inc.,
215 NLRB 293 ( 1974), which involved only election objec-
tions.10
In the instant case, Thomas' November 14 letter and
Respondent 's booklet of questions and answers distributed
on November 18 made clear that the employees ' risk of
loss stemmed not from any regressive bargaining posture
predetermined by the Employer but from the possibility
that the Union, in order to secure other benefits, might
trade away some existing benefits. I therefore conclude
that this case is governed by the Board 's holdings in Wag-
ner Industrial Products , Stumpf, and Computer Perhipherals.
Respondent 's "Bargaining from scratch" statements fall
within the 8(c) privilege and did not improperly interfere
with the conduct of the election."
However , having found that certain conduct of Respon-
dent constituted interference , restraint, and coercion viola-
tive of Section 8(a)(l), and other conduct constituted dis-
crimination violative of Section 8(a)(3), I further find that
such conduct also interfered with the exercise of a free and
untrammeled choice in the election held on November 19
in the unit consisting of Respondent's office clerical em-
ployees, inspectors , and laboratory technicians . See Flight
Safety, Inc., 197 NLRB 223 (1972). Accordingly, I recom-
mend that the election in Case 5-RC-9419 held on that
date and in that unit be set aside and a rerun election be
conducted.
V. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
10 The Board, in Computer Perhipherals, distinguished the facts therein
from those in Saunders Leasing System, Inc, 204 NLRB 448 (1973), cited by
the Union This case presents the same distinguishing factors
ii Additionally, I reject the Union's argument that, since some of the
employees might have understood Respondent to threaten a loss of benefits,
the statements were objectionable An employee's subjective understanding
of employer remarks is not competent evidence to prove a coercive or objec-
tionable effect where the remarks do not reasonably have that tendency
Janler Plastic Mold Corporation, 186 NLRB 540 (1970)
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that Respondent discriminatonly
denied a wage increase to Wayne Witzke, it will be recom-
mended that Respondent grant him the wage increase and
make him whole for the loss of earnings he would have had
but for the discrimination against him. Backpay shall carry
interest at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It shall
be further recommended that Respondent be required to
preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel re-
cords and reports, and all other records necessary and use-
ful to determine the amount of backpay due under the
terms of these recommendations.
The Union has requested the imposition of extraordi-
nary remedies, including access to the Respondent's facili-
ty for solicitations and distributions, the opportunity to ad-
dress employees on Respondent's premises, and access to
Respondent's bargaining records and employee policies at
another facility to which Respondent had referred in the
course of the campaign propaganda. While the unfair labor
practices found herein are serious and warrant remedial
action, I do not deem them to be so aggravated or perva-
sive as to render them incapable of correction by the appli-
cation of traditional Board remedies. See Hecks, Inc, 215
NLRB 765 (1974). Indeed, compliance with the explicit
terms of the recommended Order and notice, including re-
vocation of the unduly broad no-solicitation and no-distri-
bution rules, should permit employees to freely and fully
exercise their Section 7 rights. Further, pursuant to my rec-
ommendation, the Regional Director will not conduct the
rerun election until such time as he deems the circum-
stances permit a free choice on the issue of representation.
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning
their union activities and the union activities of other em-
ployees, by promulgating, maintaining, and enforcing un-
lawfully broad no-solicitation and no-distribution rules,
and by soliciting employees' grievances thus impliedly
promising to grant benefits in order to defeat the Union's
organizational campaign, Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By denying to Wayne Witzke a wage increase because
of his union activities, Respondent has discriminated in
regard to the terms and conditions of employment, in vio-
lation of Section 8(a)(3) of the Act.
3. The unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
4. The unfair labor practices enumerated above have in-
terfered with the employees' rights to a free and untram-
meled choice in the election conducted among Re-
spondent's office clerical employees, inspectors, and labo-
ratory technicians on November 19, 1975 in Case 5-RC-
9419 and have tainted the results of that election.
5. Respondent has not engaged in any unfair labor prac-
tices not specifically found herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby make the following recommended:
ORDER12
Respondent Campbell Soup Company, Salisbury, Mary-
land, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities or the union activities of other employees.
(b) Promulgating, maintaining, or enforcing any rules
forbidding employees from soliciting for or discussing a
union at times when they are not actually working or re-
quiring employees to secure permission of management be-
fore, or otherwise prohibiting them from, distributing
union literature in nonwork areas of the plant when not
actually working.
(c) Promising employees, either expressly or by implica-
tion, that it will satisfy their grievances in order to discour-
age them from selecting a union as their collective-bargain-
ing representative.
(d) Denying wage increases or otherwise discriminating
against any employee in regard to hire or tenure of employ-
ment or any term or condition of employment in order to
discourage union activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Wayne Witzke whole for his loss of earnings
resulting from the discrimination against him, in the man-
ner set forth in the portion of this Decision entitled "The
Remedy."
(b) Rescind its no-solicitation and no-distribution rules.
(c) Preserve and make available to the Board or its
agents the payroll and other records as set forth in the
portion of this Decision entitled "The Remedy."
(d) Post at its Salisbury, Maryland, plant copies of the
attached notice marked "Appendix." 13 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
12 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
CAMPBELL SOUP CO. 231
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply therewith.
IT IS FURTHER RECOMMENDED that Case 5-RC-9419 be re-
manded to the Regional Director, that the election con-
ducted on November 19, among Respondent's office clen-
cal employees, inspectors, and laboratory technicians, be
set aside and that the said Regional Director conduct a
rerun election at such time as he deems the circumstances
permit a free choice on the issue of representation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things except to
the extent that membership in a union may be re-
quired pursuant to a lawful union-security clause.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights.
WE WILL NOT deny wage increases or otherwise dis-
criminate against any employee for supporting Chauf-
feurs, Warehousemen and Helpers Local Union No.
876, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other union.
WE WILL NOT coercively interrogate employees con-
cerning their union activities or the union activities of
other employees.
WE WILL NOT promise our employees that we will
satisfy their grievances in order to discourage them
from selecting a union as their collective-bargaining
representative.
WE WILL NOT promulgate, maintain, or enforce any
rules which forbid employees from soliciting for or
discussing a union at times when they are not actually
working, or requiring employees to secure permission
of management before, or otherwise prohibiting them
from, distributing union literature in nonwork areas of
the plant when not actually working.
WE WILL rescind our present no-solicitation and no-
distribution rules.
WE WILL make whole Wayne Witzke for his loss of
earnings by paying him backpay plus 6-percent inter-
est.
CAMPBELL SOUP COMPANY