Campbell Soup Co.

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