Wigwam Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1964

149 N.L.R.B. 1601 (N.L.R.B. 1964)

WIGWAM MILLS, INC. 1601
1. Employees currently represented by New York Printing Press-
men's Union No. 51, International Printing Pressmen an Assistants'
Union of North America, AFL-CIO, are entitled to perform the
offset preparatory work for Sinclair Manifold Products, Inc., at Old
Westbury, Long Island, New York.
2. Long Island Typographical Union No. 915, International
Typographical Union, AFL-CIO, is not entitled, by means pro-
scribed by Section 8(b) (4) (D) of the Act, to force or require the
Employer to assign the aforementioned offset preparatory work to
employees who are represented by it.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Long Island Typographical Union No. 915, Inter-
national Typographical Union, AFL-CIO, shall notify the Regional
Director for Region 2, in writing, whether or not it will refrain from
forcing or requiring Sinclair Manifold Products, Inc., by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute to
employees represented by the ITU rather than those represented by
the Pressmen.
Wigwam Mills, Inc. and United Textile Workers of America,
AFL-CIO. Cases Nos. 30-CA-25 and 30-RC-8 (formerly Cases
Nos. 13-CA-5889 and 13-RC-9460). December 11, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On August 12, 1964, Trial Examiner Stanley N. Ohlbaum issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed. He further found
that the Respondent had interfered with an election held on August 9,
1963, and recommended that it be set aside.' Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision, and a support-
ing brief.
'Although the Regional Director, on March 27 , 1964, consolidated Case No. 13-RC-
9460 with Case No. 13-CA-5889 , the Trial Examiner had before him for hearing and
decision only those matters raised by objection No 3 As the Trial Examiner 's recom-
mendation , which we adopt , with respect to objection No 3 disposes of the basic issues
in the representation case, we find it unnecessary to consider the matters raised by the
Union 's other objections , the Regional Director ' s report on such objections, and Respond-
ent Employer's exceptions to them The Employer's request for oral argument is hereby
denied
149 NLRB No. 146.
770-07 6-6 5-vol 149-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases , and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations .2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the, National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that the election held on August 9, 1963, in Case No. 13-RC-9460, be
set aside, and that the Respondent, Wigwam Mills, Inc., its officers,
agents, successors , and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
[Text of, Direction of Second Election omitted from publication.]
2 Member Leedom agrees that the Respondent violated Section 8(a) (1) through Cor-
porate Officer Dales ' speeches and letters to employees , but only with respect to Dales'
statements evidencing a predetermination not to bargain : ( 1) That the Company would
not under any circumstances agree to a union -shop provision as long as one employee
opposed it ; ( 2) that the employees ' trust fund would be continued regardless of whether
or not the Union won the election , and (3 ) to the effect that the Company would con-
tinue its existing policies on wage raises whether or not the Union got in See, e.g,
United States Gypsum Company, 90 NLRB 964 , 969, Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1788. • `
Member Leedom also agrees that the election of August 9, 1963, should be set aside in
view of the threats to employee Ungl and the above 8 ( a) (1) violations , all of which
occurred shortly before the election.
TRIAL EXAMINER'S DECISION AND REPORT ON
OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
These are consolidated cases heard before Trial Examiner Stanley N. Ohlbaum in
Sheboygan , Wisconsin , on May 13, 1964, with all parties represented and participating
throughout . The entire record and briefs filed subsequent to the hearing have been
carefully considered.
Case No. 13-CA-5889 involves charges of unfair labor practices filed on Septem-
ber 23, 1963,1 by United Textile Workers of America, AFL-CIO, herein called Union,
resulting in issuance of a complaint on March 16, amended April 14, 1964, and further
amended at the hearing by General Counsel of the Board (through the Regional
Director for Region 13) against Wigwam Mills,'Inc., herein called Wigwam, Respond-
ent, Employer , or Company, alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended , herein called Act, by reason of Employer
surveillance , interrogation , creation of impression of surveillance, discriminatory invo-
cation of a no-solicitation rule, economic and other threats, discriminatory discharge
and nonreinstatement of an employee, and interference with investigative processes
of the Board. All allegations are denied by Respondent.
1 Dates are 1963 throughout unless otherwise stated
WIGWAM MILLS, INC. 1603
Case No. 13-RC-9460 arises out of a representation election conducted under Board
auspices among Respondent's employees on August 9, which the Union lost by a vote
of 219 to 154.2 The Union's objections, filed August 15, to the election were investi-
gated by the Regional Director, who, on September 30, issued his report on objections
recommending the sustaining of objections Nos 1 and 2, overruling of a portion of
Objection No. 3 and the holding of a hearing on the balance thereof, overruling of
objection No. 4, and the holding of a new election because of preelection conduct of
the Employer, who on October 17 filed exceptions to this Decision. On March 23,
amending its February 26, 1964, order directing a hearing concerning objection No. 3,
the Board authorized consolidation for hearing before a Trial Examiner of the issues
raised by objection No. 3 with the aforedescribed unfair labor practice case; and on
March 27, 1964, the Regional Director consolidated the cases accordingly.
Upon the entire record 3 and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
-At all material times, Respondent, a Wisconsin corporation, has maintained its
principal places of business and plants in Sheboygan, Wisconsin, for the manufacture
of sports hose and related products, involving, during the 12-month representative
period immediately preceding issuance of the complaint, sales and distributions in
interstate commerce of its products exceeding $50,000 in value. Respondent has at
all such times been and is an employer within the meaning of Section 2(6) and (7)
of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been and is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the manufacture of socks, knitted headgear, stretch slip-
pers, knee socks, and allied merchandise, at its factory in Sheboygan, Wisconsin, with a
work force of about 450, mostly women .4 Its president is Robert E. Chesebro. Over-
all management responsibility (including administration of basic labor relations
policy) is vested in Hugh A. Dales, who is its secretary, treasurer, and member of the
Board. The plant is organized into approximately 10 departments, each usually with
its own supervisor. Subordinate to Dales is Plant Superintendent Edward Moore,
under whom are Personnel Manager Norman Van Groll, Industrial Engineer Don
Sloane, and the plant foremen` and supervisors including Peter Verhage, Annette
Marcus, Rose Evans, Mabel Schild, and Robert Yonker. Van Groll reports directly
to Moore, and Moore to Dales, on "questions of -any import," although Van Groll
discusses such matters with Dales as well as with Moore.
"In the spring and summer months of 1963, the Union and the Company conducted
a vigorous election campaign to win the support of the employees." 5 Respondent's
Personnel Manager Van Groll testified that he regarded employees Ruth Engl and
Gottfried "Gulley" Zitzer (the former the subject of an alleged discriminatory dis-
charge and failure to reinstate, and the latter the reason for invocation of an allegedly
arbitrary and discriminatory no-solicitation rule, both discussed below) as the main
leaders of the union movement at the plant. Although the union petition for repre-
sentation election was filed on May 29, its organizing drive at Wigwam had begun
around February or March. The first, large union organizational meeting was held
at union premises in Sheboygan on April 27, and subsequent meetings were held in
June, July, and August. To counter this union activity, the Employer, through Dales,
among other things, concededly mailed to its employees no less than four letters and
an illustrated magazine, and delivered to its assembled employees at its premises no
less than six speeches (one final speech, apparently by Chesebro) in the period from
2 With 1 void and 1 challenged ballot in 375 cast, of approximately 385 eligible voters
3 Hearing transcript corrected in accordance with Trial Examiner 's Order dated July 7,
1964 , and further in accordance with General Counsel ' s unopposed motion dated June 19,
1964, which is hereby in all respects granted.
4 Respondent ' s brief, p. 1.
I Id , p. 28
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 12 to August 7 (2 days before the representation election of August 9, which
the Union lost), exhorting them against affiliation with the Union upon a number .of
grounds, some of which are discussed below, and some of which form the basis for
union objections to the election and the Regional Director's report and Employer's
exceptions thereto which are not herein discussed, inasmuch as they pertain to union
objections other than objection No. 3 which alone was referred to the Trial Examiner
for -report and recommendations.
Various incidents forming the basis of the Union's charges (as well as its objection
No. 3 to the election) and General Counsel's complaint herein, occurring during the
organizational campaign, are here for consideration.
1. Surveillance-Employer's enlistment of employee to spy and report
to Employer on union activities
Wigwam employee Janet Backhaus testified that shortly prior to the first union
rally of April 27, Personnel Manager Van Groll summoned her to his office. She had
then been employed for about 2 years in the Wigwam dyehouse at $1.26 per hour.
This call to Van Groll's office was for practical purposes unprecedented, although it
might have happened once before in another routine connection. Van Groll asked
her how she liked her job, to which she replied that she could not do without it, had
gotten new furniture. and needed'the pay. Van Groll then asked her "if [you] would
go up to the Union meetings and report back to [me]." When she said this would be
a "spy job," Van Groll disagreed and asked her to "do it as a favor to the Company."
Thus enlisted, Backhaus thereafter regularly supplied detailed reports to Van Groll
on her observations at the union meetings. She attended all union meetings, took
notes, and reported to Van Groll after each meeting. At first she reported to him
in his office, but afterward, because "there was so much suspicion arising among the
employees that I was in his office all the time," with some of the employees questioning
her about it, on Van Groll's instructions she discontinued reporting to him at his
office, and instead reported to him at his home, by telephone. When she thus reported
to Van Groll on what was happening at the union meetings, Van Groll asked her and
she told him how many were there, their names, what was said, and related matters.
On occasion he asked her why she was not telling him about some of the "more
important names," to which she replied that she had either forgotten or did not think
them important, and Van Groll cautioned her "to be more accurate in [your] report
on the meetings."
When in April Van Groll enlisted Backhaus to undertake the observation and report-
ing of union activities, she was employed in the dyehouse at $1.26 per hour, in work
of a hazardous nature involving boiling water and chemicals by which she had been
burned, as well as machinery in which she had caught her hand, so as to require
surgery. It is conceded by Respondent that on July 18 or 22 she was transferred from
this hazardous dyehouse employment to the position of stock clerk in the greige goods
division at $1.31 and later $1.41 per hour. Prior to her undertaking of the described
surveillance mission, she had been seeking a transfer from the dyehouse, without suc-
cess. Van Groll testified that, in addition to paying more, the greige goods stock
clerk job is hazard-free and is in "a much nicer working environment."
Backhaus reported to Van Groll on details of each union meeting until the repre-
sentation election of August 9, lost by the Union, after which Plant Superintendent
Moore commended her on her performance of this mission, stating that she "had done
a good job" in the reporting.
The only persons Backlaus had taken into her confidence with regard to this covert
activity in which she was enrolled by Van Groll, were her parents. According to her
testimony, after the election Van Groll asked her to attend and report back to him
on what transpired at a meeting to be held on September 3 at Fountain Park Motel
in Sheboygan, where a Board agent would be present. After discussing the matter
with her immediate family, however, she decided to discontinue reporting to Van Groll
and instead, disclosed her previous activities to officials at the Fountain Park
conference.
Respondent's Personnel Manager Van Groll, the other party to the arrangement
which has just been described, confirmed employee Backhaus' testimony in its essen-
tials, with some unimportant variations except for his denial that he solicited Backhaus
to report to him on the activities at the Fountain Park conference with the Board
agent, which will be discussed below in another connection. Van Groll admitted
that he asked Backhaus to let him know what transpired at the union meetings and
that she did in fact report to him regularly thereon, including at his home, by tele-
phone, on such matters as attendance, identification of persons present, and statements
made, and that he then passed this information on to Dales.
WIGWAM MILLS, INC. 1605
Conceding that prior to her reporting to him on the union meetings, Backhaus had
unsuccessfully been seeking a transfer from her dyehouse job, Van Groll at first swore
that her transfer from the dyehouse to the greige goods stock clerk job took place
before his arrangement with her to observe and report on the union meetings. How-
ever, after his recollection was refreshed through company records, he revised his
testimony and admitted that her transfer and raise occurred after she commenced
observing and reporting on the Union.6
I was favorably impressed with Backhaus' testimonial demeanor, considering par-
ticularly the trying situation under which she testified, involving public confession of
what, to many persons including herself, would appear to have been misdeeds. On
the other hand, I was not similarly impressed by Van Groll. who among other things
shifted and changed his testimony, and seemed unnecessarily indirect, evasive, vague,
and equivocating. Although that portion of Van Groll's testimony which dealt with
Backhaus' enlistment and performance in the surveillance service of Respondent did
not in significant essence contradict Backhaus' version, to the extent of inconsistency,
I accept the testimony of Backhaus.7
Respondent maintains that it is not chargeable with Backhaus' espionage activities
because she performed these voluntarily, and also because Respondent was receiving
information from other employees. In my opinion, neither of these contentions has
merit. Although, considering the circumstances of Backhaus' sudden success in
obtaining transfer to a better job at more pay, it may be doubted whether her enlist-
ment into Van Groll's surveillance system was entirely voluntary, even if it were,
espionage is nonetheless espionage because the spy is willing, whether or not he is
coerced or rewarded Even if an employee is willing to be subverted into conducting
surveillance upon supposedly private affairs of his fellow employees and therefore
perhaps to be treated as having abandoned his own right to freedom from inter-
ference by his employer into his own organizational activities, it is also necessary to
consider the rights of his fellow employees to noninterference by the employer in
their organizational activities, which such spying by a fellow employee destroys.
Respondent's further contention that it gained immunity from responsibility for
Backhaus' activities on its behalf because it was also receiving information from other
employees as well as Backhaus, in my opinion also lacks merit. Although there is no
proof that Respondent was in fact receiving such information, nor as to what the
information was, or when, or by whom, or from whom received, even if it be assumed
that such information was received and that it precisely matched that procured
through Backhaus, it is clear that the cross-matching, comparison, testing, piecing
together, and corroboration and rejection of information received from a variety
of sources (some perhaps of dubious value) plays a most important and valuable
function in the evaluation of a situation and the planning of a course of action depend-
ent upon accurate knowledge of the facts Since Respondent chose not only to
recruit Backhaus into its surveillance service, but also to continue to accept the fruits
of her work, it cannot now be heard to insist (in any event not established) that it
knew from other undisclosed sources what she was reporting. Respondent's further
contention, now advanced in its brief, that-apparently in view of Backhaus' con-
fession-Backhaus must be regarded as having been a union decoy who, to mix a
metaphor, played the role of Trojan horse vis-a-vis Respondent, must also be rejected.
Although, based upon observation, the suggested portrayal of Backhaus as a successful
siren in a strategic contest of wits with Van Groll is hardly other than ludicrous, there
is not a scintilla of evidence to support such a conclusion.
Respondent also urges that since Van Groll's initial contact with Backhaus on the
subject of the possibility of union surveillance activities by her occurred prior to the
filing of the petition for representation election, it may not be considered.8 The
9 Van Groll also stated that the greige goods department job to which Backhaus was thus
transferred was first offered to another employee, who turned it down because she was
leaving. Even assuming this were to be believed in the absence of testimony by such
other alleged employee, notwithstanding my grave general reservations with regard to
Van Groll's credibility based upon his facile inconsistency and evasiveness and his ob-
served testimonial demeanor, it is to be noted, that according to Van Groll, this other
alleged employee was already employed in the greige goods department and turned the
job down because she was leaving and Van Groll failed to indicate when she allegedly
turned the job down Furtheimoie, in any Brent the fact remains, that this better job
with more pay was given, at the time and under the circumstances that it was, to
Backhaus (who had been unable to obtain a transfer before she undertook the sur-
veillance mission) rather than to anybody else.
7 The Fountain Park conference episode is dealt with separately below.
8 Cf. The Ideal Electric and Manufacturing Coiapany, 134 NLRB 1273
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer to this contention is that according to the credited testimony of Backhaus,
such requests by Van Groll were not confined to the period prior to the filing of the
election petition , but continued regularly thereafter and constituted a continuing
request, and also that Backhaus ' execution of Van Groll ' s spying assignments and his
receipt of her reports thereon continued regularly thereafter.
In sum, there is thus presented in this aspect of the case a classical 0 situation of
espionage by an employee at the behest of an employer , in clear violation of Section
8(a) (1) of the Act10 I find and conclude that, as alleged in the complaint, on or
about April 27, 1963, and thereafter ( including after May 29, 1963 ), Respondent,
through its supervisor and agent , Norman Van Groll, asked its employee, Janet
Backhaus , to spy and report back to Respondent on union meetings , which Backhaus
in fact did , and that Respondent thereby engaged in surveillance and activity in
violation of Section 8(a) (1) of the Act.
2. Interrogation
Ruth Engl, formerly a knitter in Respondent 's employ, testified that following a
union meeting which she attended on June 9, Van Groll approached her at her
machine and , in effect, chided her for going to union meetings , provoking her into
expressing her prounion views and intention to continue to attend , whereupon he
remarked, "It 's obvious you aren't satisfied here, Ruth , or you wouldn ' t be attending
meetings ." When Engl replied, "Oh , no, you are wrong, I like my job , I like my
hours, I like the people I work with , I like the people I work for . My husband is
strong Union and a little of this rubbed off on me," Van Groll persisted in pressing
his inquiries and questioned her on the subject of her prior union affiliations, sug-
gested to her that there must be stronger reasons than her husband for her union,
sympathies , and continued to query her as to precisely why she favored unions,
eventually steering the conversation around to Wigwam and its employees and'
remarking that what happened to Wigwam employees did not concern Engl and that
she would not have a job if the Union came in, and also that the Company could,
if it wished , move down South. A few days after the union meeting of June 20,
Van Groll again approached Engl and questioned her persistently about what occurred'
at that meeting . Later that week, in connection with sudden warning by her super-
visor about smoking in an off-duty location, Engl was told by her supervisor, "You,
know how the Company feels about this [Union activity ], Ruth, I am real disap-
pointed in you," eliciting from her the response , when the conversation was later
resumed, that she intended to continue her union activity in order to maintain her-
self-respect . Again on August 6, 2 days after the union meeting of August 4, Van.
Groll questioned her about the attendance at the meeting and remarked to her,.
"Ruthie, Ruthie , if you don 't want to get burned, stay out of the kitchen."
In his testimony Van Groll conceded that he had indeed discussed union activity
with Engl on a number of occasions , since he was aware that she was active in the
union campaign , but he insisted that he had never threatened her because of such,
activity or indicated she might lose her job because of it.
Respondent's machine repair and maintenance employee, "Guffey " Zitzer , testified
that he, too , was being approached around 2 months before the election by Super-
visor Olsen ( located on another floor ), also usually after union meetings , for "infor-
mation of the Union meeting and what transpired and who was present and how
many." Respondent 's employee June Kloppenburg , of the boarding department,
likewise testified that she, too , was questioned several weeks before the election by
her supervisor , Marcus, about whether she had received union mail , which she
denied. Respondent 's employee Lily Thiel, also of the boarding department, simi-
larly testified that she was questioned by her supervisor, Marcus, as to her attendance
at a union meeting, which she untruthfully denied. The supervisors in question did
not testify , nor was this testimony of these employees , who impressed me as highly
credible and whom I believed , contradicted . In view of my findings with relation
to the interrogation of Engl by Van Groll as alleged in the complaint , additional
findings with regard to the interrogation of these other employees , not expressly
°Cf Fruehauf Trailer Company, 1 NLRB 68 , enfd 301 U . S. 49 (private investiga-
tor) ; Friedman -Harry Marks Clothing Company, Ine, 1 NLRB 411, enfd . 301 US 5S
(employee)
10 Cf Edward Fields, Inc v . N.L R B ., 325 F 2d 754 ( C A 2) ; Saginaw Furniture
Shops , Inc., 146 NLRB 587 ; Rowe Furniture Corporation , 145 NLRB 1175, Baldwin
County Electric Membership Corporation , 145 NLRB 1316; Southern Coach & Body Co.,
Inc, 135 NLRB 1240 , Ken Lee, Inc , 133 NLRB ' 1598 , enfd 311 F 2d 608 ( C.A. 5).
WIGWAM MILLS, INC. 1607
alleged in the complaint , would be merely cumulative . However, the interrogations
to which these other employees were subjected provide background , together with the
other episodes which were taking place , to indicate that the interrogations of Engl
were not just isolated or innocuous , as'Respondent appears to contend.
Respondent urges, in connection with the described incidents of interrogation of
Engl-which I fully credit , that she freely supplied the information to Van Groll, so
that her conversations with Van Groll constituted - "simply an exchange of ideas." 11
Against the background of the record as a whole, I do not share this view . To begin
with , Engl did not volunteer this information to Van Groll . It was Van Groll who
approached Engl and asked questions , obviously for the purpose of eliciting responses.
The fact that the employee provided responses without utilization of the rack and
screw or other force, does not alter the essential nature of the questioning as coercive
interrogation . In the total frame of reference of the undisputed interrogation of the
various additional employees , the espionage and other activities being carried on by
Van Groll and his subordinates and superiors in what Respondent itself characterizes
as a "vigorous election campaign to win the support of the employees ," 12 and credi-
bility evaluation involving demeanor comparisons of Engl and Van Groll , I believe,
find, and conduce that Van Groll intended to and did conduct interrogation and
not "simply an exhange of ideas" 13 on the occasions described . Moreover, even if,
as Respondent coitends, the interrogation did not contain threats of reprisal ,14 this
did not alter its uilawful nature.15 Respondent 's employees had the right , under the
Act, to engage in 'awful organizational activities free from persistent prying by their
employer into theilaffairs.16
I find and conctde that, as alleged in the complaint, on or about June 10, 1963,
and thereafter , Repondent , through its supervisor and agent , Norman Van Groll,
interrogated its emloyee Ruth Engl regarding her union activities in violation of
Section 8 ( a) (-1) of ie Act.
3. Creation of impression of surveillance
In connection wit one of his interrogations of Engl-i.e., the one following the
union meeting of Jiie 20 ,17 Van Groll ' told Engl ( as testified to by Engl, whose
testimony was not entradicted , and whom I believe, particularly since, according
to his own admissi4 , Van Groll had a regular informant , namely Backhaus):
"Ruthie, I hear you :e quite adept at making speeches ," and he proceeded to indi-
cate that she had "rmtioned the name Van Groll, batter [ed] it around" and had
discussed the "sign [ i5 of] a union card" and that she had sounded "real strong."
After disputing this, s told him that he had "better go back and tell your source of
information to get a being aid or use a tape recorder."
In view of Van Grol; admission that he was receiving information from Backhaus
regarding what was haiening at union meetings , it requires no exercise of imagina-
tion to conclude that hwas using the information in the manner credibly described
by Engl. Because of t; admitted existence of this espionage system, I cannot go
along -with Respondent ',ontention , advanced in its brief, that "it is more logical to
assume that it [this info'iation] reached Van Groll via the `scuttlebutt ' route rather
than the surveillance roi ,, particularly in the absence of credible testimony to that
effect if there were andoubt (which there is not ) in my mind that Van Groll's
statements conveyed to 1;l the impression that the union meetings were under the
Employer 's surveillance , would be dispelled by Engl 's quoted reaction to the state-
ments, challenging the accacy of his informant. That such creation by an employer
11 Respondent ' s brief, p 26
19 Id., P. 28
1a Id , p 26
14 To an extent this may beubted , in view of the contemporaneous remark of Van Grail
to Engl , "Ruthie, Ruthie, if i don't want to get burned , stay out of the kitchen," fol-
lowed thereatter by Engl ' s teination under circumstances described below
>v Charlotte Union Bus Stat , Inc., et al., 135 NLRB 228'
16 The natural effect of suciersistent inquisition is to cause employees to feel they
are doing something wrong inid of something expressly authorized by law , or at least
to feel that they are incurringeir employer ' s displeasure , if not hostility for exei cising
their legal rights " . integation is generally deemed unlawful unless it is iso-
lated ." Thompson Raino Woosdge, Inc. (Dage Television Division ), 132 NLRB 993,
996, enfd as modified 305 F 297 (CA 7)
17 Respondent ' s counsel correcipoints out in, his brief ( p 27) that General Counsel's
reference to June 29 is inadvert-and,that the union meeting of June 20 was intended.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the impression and lurking fear among employees that what takes place at their
presumably private union meetings is under his efficient surveillance ( and therefore
subject to reprisals ) is illegal, is abundantly settled 18
I find and conclude that on or about June 20 , 1963, Respondent , through its super-
visor and agent, Norman Van Groll, by indicating that he had knowledge of specific
activity at the union meeting of June 20, created the impression that Respondent
had the union meeting under surveillance , in violation of Section 8(a) (1) of the Act.
4. Discriminatory invocation of no-solicitation rule
Gottfred Zitzer ( known throughout the plant as "Guffey" ), a knitting machine
maintenance and repairman in Respondent 's employ for 33 years, is acknowledged
by Respondent to have been , with Engl, one of the two "main leaders on behalf of the
Union" in the plant . In servicing the machines , his duties require him to move about
the plant. The credible testimony of "Guffey," Kloppenburg , Thiel , and Engl-in
part corroborated , in part uncontradicted , and in part contradicted , by Respondent-
establishes and I find that prior to the umon organizational drive, solicitation activi-
ties had taken place regularly at the plant on company worktime with Respondent's
approbation and participation , on behalf of such causes as Community Chest and
Red Cross ; and without concealment and therefore presumably with the knowledge
of Respondent and its supervisors , and without objection of Respondent , by various
employees for private causes, including gifts and gratuities to fellow employees and
also for personal and group endeavors such as procurement of discounted merchan-
dise through sales catalogs ; and that no company rule had ever been posted, publi-
cized, or applied forbidding or limiting solicitation or conversation between employ-
ees, even on worktime.
"Guffey" joined the Union on March 9 . He thereafter engaged in organizing
activities on behalf of the Union, consisting of talking to employees and giving them
union cards to sign. Although he talked to employees both on his own time and
on company time, he passed out cards only on his own free time during his lunch
period
Prior to the union organizing drive , "Guffey," as well as other employees, had
always been permitted to talk to other employees during worktime . During the
union organizing drive, employees and supervisors 19 spoke freely and without limita-
tion in opposition to the Union , at the plant during worktime 20 However , in July,
shortly prior to the election , "Guffey" was summoned to the office of Van Groll, who
notified him that he had been informed that "Guffey" was soliciting employees on
company time to sign union cards. "Guffey " denied this , while admitting that he
had been talking about the Union in the same way as others . Van Groll thereupon
admonished him, "If you are soliciting the employees on Company time to join the
Union, I want it stopped ." "Guffey" asked him if this was a threat, to which Van
Groll replied , "Well, it's up to you, the way you want to take it ." When "Guffey"
indicated that-since all he had been doing was talking to other employees in the
same way that other persons were-he construed this as a "threat that if I continue
talking about the Union , that I would get fired ," Van Groll did not disavow such an
interpretation , but, on the contrary , after saying he was trying to ascertain whether
"Guffey" was "trying to solicit" and if so, wanted it stopped , warned him , "I will leave
it up to you if you want to continue working here or not " Van Groll also took the
occasion to point out to "Guffey" that the Company "had a good thing going for the
employees" in its trust fund, which he said "would benefit the employees in the
future," to which "Guffey ," as an employee of 33 years' standing , responded that his
financial situation made his current needs the subject of his interest rather than what
might take place "when I am old and gray."
Although "Guffey's" account of his meeting with Van Groll was not contradicted
in essential detail by the latter, to the extent of any inconsistency , I have no hesitation
in preferring that of "Guffey" because of my unwillingness to credit Van Groll for
reasons elsewhere indicated herein, notably demeanor observations.
A fair interpretation of the intendment of Van Groll 's remarks to "Guffey" on the
described occasion shortly prior to the election , considered in the light of the entire
record, including credibility resolutions , is, and I find it to have been , that Van Groll
'B Cr e g, Park Edge Sheridan Meats , Inc, et al , 146 NLRB 289; Bannon Hills, Inc.,
146 NLRB 611; Gordon Hills, Inc, 145 NLRB '883, Burlington Industries, Inc, Vinton
Weaving Company Plant, 144 NLRB 272 , The Triple AAA Water Co, 142 NLRB 803;
Sachs cC Sons and Helen Sachs, Inc, 135 NLRB 1199 , footnote 1.
"'Including Dales, VanGroll , Verhage , Olsen, and Marcus.
20 Corroborated by Kloppenburg , Thiel , and Lngl, whom , as well as "Guffey," I believe.
WIGWAM MILLS, INC. 1609
meant and conveyed to "Guffey" that, notwithstanding all of the previous and exist-
ing practices prevalent in the plant regarding "solicitation" and "conversation," insofar
as "Guffey," a union leader, was concerned-(1) "Guffey" would be subject to dis-
charge if he "solicited" for the Union on company premises on company time; (2)
"solicitation" was not defined, and Van Groll intended to, and did, convey the impres-
sion to "Guffey" that "Guffey's" merely talking to other employees favorably about
the Union on company time, without necessarily passing out union cards,21 would
subject him to discharge. In so doing, I believe Van Groll, intentionally or other-
wise,22 went too far. Plant General Manager Dales himself indicated that Respond-
ent has never quarantined or restricted its employees from talking to each other, so
long as it did not interfere with work. Inasmuch as management and supervisory
personnel, as well as rank-and-file employees, were in no way restricted from talking
in opposition to the Union,23 it was discriminatory for Van Groll, under guise of
ambiguous use of the expression "solicit" or "soliciting," to restrict "Guffey," on
threat of loss of his job of 33 years' standing, from speaking in favor of the Union
without relation to whether or not the particular circumstances or length of such
conversation interfered with his or another employee's work.
The undisputed evidence further establishes that some time subsequent to the
election, toward the end of 1963, "Guffey" was directed by Supervisor Marcus to
leave her department because she saw him talking to one of the employees there.
This resulted in another summons of "Guffey" to Van Groll's office,24 followed by a
complaint by "Guffey" to Chesebro and Dales about the discriminatory treatment to
which he was being subjected. Van Groll was supported by his superiors in what
was described to "Gulley" as company policy that he not talk to other employees and
thereby "interfere" with their work. Although this incident occurred subsequent to
the election, and although not alleged in the complaint was litigated, findings need
not be made with regard thereto as they would be merely cumulative. The incident
does, however, serve in a sense to underline what seems to have been a discriminatorily
selective one-man "rule" that singled out, as its sole target, "Guffey," who was con-
cededly at that time the only remaining union leader since the other one, Engl, had
been terminated shortly prior thereto under circumstances about to be described. In
connection with this second incident involving "Guffey," Dales reiterated in his testi-
mony that he could not recall a single other instance in his 33 years at the plant when
another employee was called in for violation of any rule.
Considered in the totality of the record presented, I am persuaded that discrimi-
natory motivation underlay Respondent's invocation and application of the alleged
no-solicitation rule against "Guffey" at the particular time and circumstances in-
volved. Respondent had theretofore (and thereafter) permitted solicitation and
conversation for practical purposes without limitation on its premises on worktime,
involving appeals and conversation and other communicative media, including man-
agerial speeches to assembled employee audiences in what Respondent itself describes
21 Plant General Manager Dales testified that although Van Groll reported to him that
he had called "Guffey" to his office-the only instance in the history of the Company, to
Dales' knowledge, where an employee had been called in over such a matter-Van Groll
did not tell him that "Guffey" was passing out, union cards, and that Dales understood
from Van Groll's report to him that "Guffey" had been called in by Van Groll because
"Guffey" had merely spoken (and thereby presumably "interfered") with another employee
Van Groll's testimonial, comment on differences between his testimony and that of
Dales was, "My testimony is not similar to Mr. Dales, because I have a different concept
of what went on" In the cited context, I prefer the testimony of Dales as to what
Van Groll told Dales, to Van Groll's testimony as to what he told Dales
21 There is evidence that Van Groll may later have recognized he went too far in his
warnings to Guffey. Engl testified that Van Groll acknowledged to her on one occasion
that he had "made a mistake talking to Guffey the, way I did, I shouldn't have done
that
23 The evidence clearly establishes that a good deal of such talk was, going on.' In his
letters of July 12 and 26 to all employees, shortly before the election, Dales invited them
with respect to the union campaign and the company countercampaign: " . . If you have
any questions of any kind, please don't hesitate to ask your Foreman or Supervisor or
myself." Although he did not specify, it seems reasonable to assume that he was not
restricting such questions to off-duty time, but that such discussion was invited to take
place on company premises on worktime.
z Although Van Groll at first testified, imaginatively as it turned out, that on this occa-
sion "Guffey" stormed into his office "like a house afire," he later, of his own volition,
revised this picture so as`to testify that "Guffey" "did not come storming into my office.
I called Guffey down."
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the "vigorous election campaign to win the support of the employees." 25 The
evidence overwhelmingly establishes that employees were subjected to antiunion talk
during worktime on its premises, with no claim of any effort by management to pre-
vent or limit such activity in any way. Under these circumstances the sudden mvo7
cation and application of a supposedly general no-solicitation "rule," applicable only
to or enforced only against "Guffey," one of the two union leaders at the plant was
transparently disparate and discriminatory, and did not stem from any desire, as now
pretended, to preserve efficient operations by eliminating distracting conversation
between employees.
I therefore find and conclude that the alleged no-solicitation vile announced and
applied by Respondent, through its supervisor and agent, Norman Van Groll, against
its employee, Gottfried Zitzer, prior to the election of August 9, 1963, was discrimi-
natory and violative of Section 8(a) (1) of the Act.26 27
5. Economic threats in event of employees' exercise of rights under the Act
The amended complaint alleges that on and since July 26, Respondent, through
its officer and agent, Dales, in effect informed employees that it would never agree
to a union shop or sign a collective-bargaining agreement, that it would be futile to
vote for the Union, and that if the Union won the election it would result in elimina-
tion of existing part-time and short-shift work and other benefits.
It would be unrealistic to consider these alleged violations , involving statements
made by Respondent's executive and Plant Manager Dales, in isolation, since they
did not occur in isolation. Respondent's acts and words are not to be judged as
discrete entities , but as an amalgam taking its character from the crucible of the
events and other words in which it was formed.28
Respondent's brief, p 28
20Cf N.LR.B. v. Hill & Hill Truck Line, Inc, 266 F. 2d 883, 886 (CA. 5) , Standard
Manufacturing Company, 147 NLRB 1608; Bannon Mills, Inc, 146 NLRB 611, Park Edge
Sheridan Meats, Inc , et al, 146 NLRB 289, Burlington Industries, Inc Vinton Weaving
Company Plant, 144 NLRB 272; Revere Camera Company, 133 NLRB 1658, enfd. 304 F. 2d
162 (C A 7) ; Memphis Publishing Company, 133 NLRB 1435. See also Republic Aviation
Corporation v N L R.B., 324 U.S 793, 803, footnote 10; Peyton Packing Company, Inc.,
49 NLRB 828, 843, enfd 142 F 2d 1009 (CA 5), cert denied 323 U.S 730
2a The complaint alleges that an invalid no-solicitation rule was also invoked by Re-
spondent's Supervisor Mabel Schild. The facts relative to this, as established at the hear-
ing through the uncontradicted testimony of "Guffey" (neither Supervisor Schild nor
Supervisor Yonker testified), are that in July "Guffey," accidentally walking in on part
of a private conversation taking place in a section of the winding room between Super-
visors Schild and Yonker, overheard Schild tell Yonker that "If I hear any of my girls
talking Union, out they go " Since, as "Guffey" himself testified, the supervisors were "by
themselves" in a "sort of secluded area away from the'other girls," and as Guffey stumbled
in on this conversation they immediately stopped talking as soon as they noticed him,
this conversation was private and not intended for "Guffey ' s" or any nonsupervisory ears.
Under these circumstances, the described snatch of overheard conversation may not be re-
garded as' establishing invocation by Respondent of an invalid no-solicitation rule This
incident Involved a strictly private conversation between two supervisors, the inadvert-
ently and partially overheard few words of which, snatched out of context and equivocal
at worst, were obviously not directed , addressed , intended, or anticipated to be overheard
by any employee's "ears . . within hearing." Tri County Employers Association, 103
NLRB 653,, 673; see also National Mattress Company, et al, 111 NLRB 890, 891, with
which cf.: Wright & McGill Company and A. D. McGill and S. M. Wright, Co-Partners,
d/b/a Sharp Point Fish Hook Company , 102 NLRB 1035 , 1037; The Advertiser Company,
Inc., 97 NLRB 604, 617, Jamestown Veneer and Plywood Corporation, 93 NLRB 101,
111, enfd as modified 194 F. 2d 192 ( CA. 2). I accordingly find and conclude that in-
vocation of an invalid no-solicitation rule through the described overheard conversation
of Supervisors Schild and Yonker has not been established , and that the complaint should,
in this respect, be dismissed.
""Words are not pebbles in alien juxtaposition ; they have only a communal existence ;
and not only does the meaning of each interpenetrate the other , but all in their aggregate
take their purport from the setting in which they are used, of which the relation between
the speaker and the hearer is perhaps the most important part. What to an outsider
will be no more than the vigorous presentation of a conviction , to an employee may be
the manifestation of a determination which, It Is not safe to thwart " Learned Hand, J.,
in N.L.R.B. v. Federbash Company, Inc, 121 F. 2d•954, 957 (C.A. 2). That, as else-
WIGWAM MILLS, INC. 1611
Respondent's statements complained of were artfully spaced in a series of pre-
planned communications, written as well as oral,20 aimed by Respondent at its
employees during the organizing drive and waiting period before the election of
August 9. Throughout its vigorous campaign, Respondent stressed to its employees
its own responsibility, in alleged contrast to that of the Union, for the accuracy of its
statements and representations to its employees Thus, in his speech of July 12 to
the assembled plant employees, Dales emphasized the need for "responsibility," assur-
ing the employees that the Company had not and would not misrepresent, although
the Union would, stressing what he described as the "very definite responsibility" on
the part of the Company to keep its employees fully informed. In a followup letter
to the employees on the same day, Dales again emphasized-
At this time, all I ask you to remember is that we [i e., Respondent] ate i espon-
sible for any and all statements we make to you but the union can make all kinds
of statements, accusations, and pionuses without any iesponsibility whatever.
I hope you will read this letter carefully, also that you will consider and weigh
very carefully everything that is said and done in the future by both your com-
pany and the union organizers
Respondent thereby, and thereafter, established the pattern of recognition on its part,
and strong emphasis to its employees, of Respondent's responsibility for the accuracy
of the information it was purveying to its employees not only in its campaign to win
their votes but also, necessarily, in its industrial relations policy toward them.
In his speech to the assembled employees on July 26, Dales emphasized a question
which he said had been raised by various employees, as a matter of great concern to
them-in view of the fact that "The work force of approximately 450 employees
consists primarily of women " 30 He said that although he had already answered the
question, nevertheless, "to eliminate the possibility of misunderstanding on your
part" and once again "to give you clearly an explanation of the company's position
,on the point raised so all of you will be fully informed, not just those who asked the
question or those who were in the group when this particular question was asked.
The question asked was, or in words to this effect, `If the union comes in, will we
have a union shop, must everybody jom7' " After describing what a union shop is
and that it requires a separate two-thirds vote of employees and that "In that event,
the company is required by law and would negotiate and consider the question if or
when properly presented," Dales nevertheless followed this up by making extensive
comment on certain alleged decisions and cases before the Board and the Supreme
Court, and continued:
For example, just last January the NLRB ruled that a worker who had failed
to pay his union dues could be fired from his job even though he offered to pay
up This happened in cases involving the General Motors Corporation and
Acme Fast Freight, Inc. in 1961 . These are just a few of the many and
various types of situations and problems that arise under a union shop agree-
ment Under such conditions, the employee is powerless and must succumb to
the dictates of the union leadership and the employer is powerless to intervene
and try to help the employee.
where in the law, it is inappropriate to lift individual statements out of context and
treat their in isolation in assessing unfair labor practice, see, e g The Lord Baltimore
Press. 142 NLRB 328; Oak Manufacturing Company, 141 NLRB 1323, Arch Beverage
Corpoiation, 140 NLRB 1385, 1387 "Any determination of the exact nature and effect
of such statements can be inade only with due regard for the context of the statements, the
chaiacters and economic positions of those who heard it, and the relationships existing
between a company and its employees " A TL R 11 v Morris Fishman and Sons, Inc., 278
F. 2d 792. 796 (C A 3) The line separating coercive from noncoercive statements "is
not always easy to draw and cannot by any mains always be drawn by ieference only to
the words used Words innocuous in themselves can take on a sinister meaning in the
context in which they rue uttered " Local 901, International Brothei hood of Teamsters,
Cliaaffeuis. lVarehonseinen