Ithaca Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1985

275 N.L.R.B. 1121 (N.L.R.B. 1985)

ITHACA INDUSTRIES 1121
Ithaca Industries ,- Inc. and International Brother-
hood of Firemen and Oilers, AFL-CIO. Case
10-CA-20604
19 July 1985
'DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 April 1985 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The-General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a reply
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
the briefs filed by the General Counsel and Respondent,
I make the following
-FINDINGS OF FACT
I JURISDICTION
Respondent is a North Carolina corporation with an
office and place of business in Cairo, Georgia, where it is
engaged in the manufacture of women's undergarments.
During the past calendar year, Respondent sold and
shipped from its Cairo, Georgia facility finished products
valued- in excess of $50,000 directly to customers located
outside the State of Georgia. The complaint alleges, Re-
spondent in its answer to the complaint admits, and I
find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. The complaint further alleges, Respondent further
admits, and I also find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' In adopting the judge 's conclusion that the Respondent did not vio-
late the Act by soliciting employees to report threats or intimidation
during the Union's campaign , Chairman Dotson expresses no view con-
cerning the continued validity of those cases distinguished- by the judge
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Thomasville, Georgia, on 8 March.
1984. The charge was filed by International Brotherhood
of Firemen and Oilers, AFL-CIO (the Union) on 23 No-
vember 1984' (amended 10 January 1985) and the com-
plaint was issued on 16 January 1985, alleging that Ithaca
Industries, Inc. (Respondent) violated Section 8(a)(1) of
the National Labor Relations Act through the statements
and conduct of certain of.its supervisors and representa-
tives. The issues are whether Respondent (a) unlawfully
restricted the association and smoking privileges of its
employees because of their union activities, (b) threat-
ened - employees with discharge and other reprisals if
they solicited union support from fellow employees, (c)
solicited employees to inform Respondent regarding em-
ployees who solicited their union support, and (d) pro-
hibited employees from distributing union material to
employees or soliciting union support from them while
permitting employees opposed to the Union to speak out
against the Union.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
1 All dates are in 1984 unless otherwise stated.
A Background
Activity on behalf of the Union among Respondent's
employees at its Cairo facility began in August with the
first meeting of employees for organizational purposes
taking place on 23 August at the home of Joy Fain and
her husband, William Fain, both of whom were employ-
ees of Respondent at the time. It appears from the record
that William Fain was the initiator or prime mover of
the union activity. It is clear that Joy Fain and Dorothy
Fleming, both witnesses in the instant case, and other
employees signed union authorization cards at the 23
August meeting. There is no evidence that Respondent
knew of the union activity until 21 September. Steven
Propst, Respondent's director of industrial relations with
an office in Wilkesboro, North Carolina, testified herein
that on that date he learned of union activity among Re-
spondent's Cairo employees at the same time he was con-
sulted by Cairo officials regarding some terminations in
the shipping and receiving department as a result of the
discovery of a theft ring operating in that department.
Propst further testified that to put at' rest a number of
rumors circulating among the approximately 400 employ-
ees of Respondent at the Cairo facility,' he went to Cairo
to address the employees regarding the terminations
taking place in the shipping and receiving department.
Propst also decided to use the same occasion to speak to
the employees about the union activity.
Propst's talk to the employees took place in the plant's
lunchroom on 26 September and was delivered to 4 sepa-
rate groups of about 100 employees each. The General
Counsel argues that it was in this speech that Propst
made coercive remarks to employees about their -union
activity which the complaint alleges constituted viola-
tions of Section 8(a)(1) of the Act. Two additional viola-
tions of Section 8(a)(1) of the Act are alleged to have
taken place on the day before Propst's speech. These al-
leged violations relating to the imposition of unlawful re-
strictions on union activity are attributed to Gloria Bat-
chelor, supervisor in the sewing department, swipes divi-
275 NLRB No. 160
1122 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion , and Chuck Golden , sewing floor superintendent
Both Batchelor and Golden , like Propst , are admitted by
Respondent to be supervisors within the meaning of Sec-
tion 2(11) of the Act. The alleged violations are related
chronologically below.
B. The Alleged Unlawful Restrictions
The complaint alleges that Batchelor and Golden on
25 September "contrary to past practice, restricted the
association and smoking privileges of its employees be-
cause of their activities on behalf of the Union." The
General Counsel relied upon the testimony of three wit-
nesses, to establish the violation alleged . Two of these,
Fain and Fleming, were former employees of Respond-
ent having left.such employment in October, while the
third, Rebecca Brady, remained an employee of Re-
spondent at the time of the hearing.
Fain testified she had worked as a sewing machine op-
erator under the supervision of Batchelor Batchelor as-
signed Fain her work, but a service girl brought the
work to the machine operators. However, Fain testified
that it had been the practice for the operators to get up
and get their own work material in the event they ran
out of work before being resupplied by the service girl
Moreover; according to Fain, employees were normally
allowed to leave their work stations and go to the rest-
room whenever they found it necessary. Fain testified
these practices changed around 25 September, for at that
time Batchelor came around to the work stations of the
operators, including Fain,' and told them that they could
no longer'get up for anything except-to go to break and
to lunch.-Fain conceded on cross-examination that, about
the second day -aft`er Batchelor's remarks, Fain resumed
the prior practice of leaving her position to obtain addi-
tional work or to go to the restroom whenever she
needed to. There was no evidence that Batchelor sought
to discipline her for this. -
Fain also testified that, around 25 September, Golden
came walking down the production line 'and told Fain,
Fleming,' Brady, and two other employees identified as
Phyllis Johnson and "Laverne," "I don't want any more
congregating outside the back door, any more than two
or three at a time." According to Fain, the prior practice
of Respondent was to allow employees to exit a door
near the shipping department and smoke outside the
plant during lunch and breaks. The only other designated
permissible smoking area for - employees was in the
plant's lunchroom. Fain was vague in her testimony
about • whether Golden specifically prohibited smoking
outside. Further, she was uncertain whether the employ-
ee's went outside. to smoke on the day of Golden's re-
marks. However, she related that employees did go out-
side to smoke at least- once subsequently, and then the
following week employees apparently resumed smoking
outside, although Fain testified she did not. .
Fain's testimony as set forth above was generally cor-
roborated by Fleming, and Brady. More specifically,
Fleming testified that Batchelor had told her that it was
Golden, who had -said -that employees were not to be
talking and were not to get up from their machines for
any reason. With respect to Golden's alleged admonition
-to employees not to congregate more than two or three
at a time outside the building, Fleming, contrary to Fain,
testified that Golden made the remark at-the back door
exiting the shipping department. Golden-'also added, ac-
cording to Fleming, that employees were supposed to
smoke and take breaks in the cafeteria Further, Fleming
only placed herself, Fain, and the third employee identi-
fied as Laverne as being present.
In her testimony Brady related that 'Golden had stated
that employees were "not to congregate more than two
or three," and were not to go outside. Brady-added that
Golden made the remarks at - Brady's work station and
identified Fleming, Fain, and employees Louise Barrett,
Debbie Ansley, and Maylois Daniels as being present.
With respect to the prohibition against leaving her ma-
chine, Brady testified only that Batchelor told the opera-
tors not to leave their machines except for 'scheduled
breaks According to Brady, Batchelor enforced - this
policy in mid-October,when she told an unidentified; op-
erator who had left her position to take some-repairs to
another employee and that she did not have any business
out of her seat.
Respondent produced Batchelor and Golden as wit-
nesses. Batchelor testified that Respondent's policy was
to allow employees to go _to the restroom at any time
they needed to. She conceded,-however, that she had on
occasion asked employees to stay at their work stations.
She explained that when employees got up to get their
own work materials rather than receiving it from the
service girl, they tended to get material lots and; sizes
.mixed up creating a mess. According to .Batchelor, em-
ployees are not prohibited from talking among them-
selves while working, but she admitted that quite often
she had to admonish employees for excessive talking and
did observe an increase in talking' among' employees
during the week of 25 September, as a result of which
she had to increase her requests-of employees to stop
talking. She denied there were any increased restrictions
on talking as such, however. She did not specifically
deny the remarks attributed to her by the General Coun-
sel's witnesses. With respect-to smoking, Batchelor testi-
fied that it was policy to allow employees to smoke in
the breakroom and outside and that there was no change
in restrictions regarding smoking during September.-
Golden testified in support of Batchelor regarding-Re-
spondent's smoking policy and denied that- there had
been any change in restrictions on smoking at any time.
He denied' that he had stopped employees from -going
outside the-building and taking their breaks. In-connec-
tion with Resspondent's policy on' talking, Golden related
that there -was no change or increased restrictions on
talking imposed by Respondent, but admitted that he had
stopped more employees from-talking on the job during
September because there appeared to be more talking
going on which he attributed, on cross-examination; to
the terminations taking place in the shipping department.
Golden had no recollection of any encounters with Fain,
Fleming; or Brady restricting them from congregating,
smoking, or going outside, and generally denied the re-
marks attributed to him by them. -
•ITHACA INDUSTRIES 1123
C. The Alleged Unlawful Speech of Propst
According to the allegations of the complaint, Propst,
in his speech or talk to the employees 'on 25 September,
threatened employees with discharge -or' other reprisals
for soliciting for the Union on nonworking time, solicit-
ed employees to inform .Respondent regarding union so-
licitors, and prohibited employees from distributing or
soliciting for the Union while permitting "non-union sup-
porters to.speak out freely against the Union." In sup-
port -of these complaint allegations, Fain testified that
Propst told the group of 75-100 employees in the session
attended by Fain that there were rumors going around
about people being fired for stealing and some being laid
off. He then reported the fact that union activity was
going on and he talked about union cards and what- a
union could do for employees. Propst, according to Fain,
held up a newspaper referring to a union strike and
stated, "This union strikes. more than it works, and you
ought to feel lucky you're able, to, work now." He re-
marked that "[s]igning a union , card is -like signing a
blank check, after you sign one you have to pay $15-a
month for somebody else to do your talking." Propst
went on to say, Fain testified, "[t]hat it was against the
law to have a union card in your possession on Respond
ent's premises , and employees could be _ terminated if
caught with a union card on the premises and that if
anyone tried to give an employee a union card, it was
their duty to tell their supervisor immediately." Fain re-
lated that during his speech, Propst paced back and
forth , carried nothing in his hand other than the newspa-
per referred to, and did not read his speech.
The testimony of Fleming and Brady was generally in
accord with that of Fain, and based on Fain's testimony,
all three attended Propst 's speech at the same time, so all
three were testifying about the same speech. In addition
to the statements of Propst related by Fain, Fleming tes-
tified that Propst said it was illegal, that employees could
be prosecuted if they signed, pushed, or solicited materi-
als on company time or on company property, and that
Respondent was against it. .
Propst, 'testifying 'for Respondent, admitted having
given the-talks to the employees on 26 September, but he
denied making the remarks in those talks that were at-
tributed to him by' Fain, Fleming, and Brady. Rather, he
explained that in the first portion of his talk in all the ses-
sions at which he gave his talk he followed a handwrit-
ten outline only and addressed himself to the fact that
rumors were circulating that terminations of certain em-
ployees had taken place for a number of stated reasons.
He testified he told the employees of the 'discovery .of
the theft ring in the plant and indicated that Respondent
would not prosecute. According to Propst's outline, he
then referred to another rumor, i.e , that Respondent
fired people for mentioning the word "union." He assert-
ed that that was ridiculous. He referred to a USA Today
newspaper dated 24 September, • and noted a graph ap-
pearing on the front page , showing a decline in union
membership and referring to a strike by the UAW. At
that point , Propst drew the employees ' -attention to, and
held up a copy of, the employee handbook which was
generally distributed to all new employees and in which
Respondent 's opposition to unions was noted . From this
point, Propst read from a typed statement setting forth in
further detail Respondent's opposition to the Union In
the typed speech, it was stated that signing a union card
was like signing a blank check over to the Union with
respect to job rights. The typed speech also contained
the statement , "It is unlawful for union pushers to threat-
en or intimidate you about signing their union cards. If
this occurs, you should let your supervisor know and we
will see that the proper authorities are contacted and a
stop is put to this improper activity."
The closing portion of Propst's typed remarks contains
the following statement:
I want to make sure that all of you understand that
if you are against a union , you have every legal
right to talk and speak out against it
However, there was no reference to a restriction on
union supporters speaking out for the Union. Moreover,
there was no reference in Propst's speech to a no-
solicitation/no-distribution rule contained in Respond-
ent's employee handbook. While such a rule does exist in
the handbook, it is not alleged by the General Counsel to
be unlawful in any respect.
Propst's- testimony regarding the content of his speech
was corroborated by Respondent's plant manager David
Woodyard, who testified that. he assisted in' preparation
of-the topics to be discussed in Propst 's speech and also
read the prepared text of the remarks before the speech
was delivered at the four employee sessions. While Woo-
dyard conceded that he did not read along with Propst
as the speech was given, he testified that Propst did not
deviate from the prepared text which was received in
evidence herein. More specifically, Woodyard denied
that,Propst made the remarks in his speech which the
General Counsel 's witnesses attributed to him.
Batchelor and Golden in their testimony also denied
that Propst in his speech made the unlawful remarks at-
tributed to him. Propst's testimony concerning the con-
tent, of his speech was also corroborated by employees
Diane Murphy and Marie Gainus. Both specifically
denied that Propst threatened employees with discharge
or reprisals for union activity or requested that employ-
ees inform on union solicitors
'D Conclusions
There are inconsistencies in the testimony of the Gen-
eral Counsel's witnesses concerning the remarks of Bat-
chelor and Golden which raise a doubt as to the credibil-
ity.of such testimony First, with respect to the remarks
attributed to Golden, the three witnesses differ with re-
spect to where the= remarks were made. Thus, Fain ini-
tially testified Golden made the remarks on the produc-
tion line. Then on cross-examination, she.testified Golden
made the remarks at-the door exiting the shipping de-
partment, and at one point suggested that Golden came
outside the rear door to make the remarks. However, she
quickly retracted that suggestion. Fleming related Gol-
den's remarks were made outside the door where she,
Fain„ and "Laverne" had gone to smoke although Flem-
ing being a nonsmoker was not actually smoking . During
cross-examination, Fleming changed her testimony and
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that she was "at" the back door but not outside
And Brady testified that Golden made the remarks' she
attributed to him at her machine although' she identified
Fain and Fleming as being present. '
In addition to the differences between the witnesses
about where Golden made the remaiks attributed to him,
there are also differences between the three regarding
who. was present at the time Golden made the remarks.
Thus, Fain related that, besides Fleming and Brady, em-
ployees. Phyllis Johnson and Laverne were present.
Fleming's testimony had it that only Fain, Laverne, and
herself were present Finally, Brady testified that others
present besides herself when Golden. -made the statements
she attributed to him were Fain, -Fleming, Louise Bar-
rett, Debbie Ansley, 'and Maylois Daniels. None of these
additional witnesses was called by either party to testify
in this proceeding. The identification of all these differ-
ent witnesses to Golden's alleged remarks suggests that
he repeated the remarks to different groups. This is a dis-
tinct possibility supported by the initial testimony of Fain
that Golden made the remarks'as he was walking down
the production line On the other hand, it appears. to be
contradicted by the fact that neither Fain, Fleming, or
Brady testified that Golden's remarks were-01 rected at
them more than once.
Finally, the testimony of the General Counsel's three
witnesses varies to some extent in. substance . Fain's testi-
mony suggests that Golden in effect barred • employees
from going out the back door to take a break Brady's
testimony would appear to be in accord with Fain in this
respect. However, Fain's testimony was uncertain re-
garding a specific reference by Golden to smoking. On
the-other hand, Fleming's testimony was that Golden did
refer to smoking and claimed , at least on cross-examina-
tion, that Golden said employees were supposed to take
their breaks and smoke in the cafeteria. Brady omitted
any reference'by Golden to smoking.
The foregoing variations and inconsistencies in the tes-
. timony. of the General Counsel 's witnesses may not 'be
regarded as insignificant. And, when considered with the
fact that` I found none of the three was impressive in de-
meanor while testifying, I am unable to conclude that
their testimony is totally reliable and should be credited
in all respects. The memory of each appeared highly se-
lective, vague, and confused. ,While the General Counsel
argued at the hearing and in his brief that the three had
reduced to writing their recollections of Golden's and
Batchelor's remarks at an early time after they were
made, , all the record indicates is that the earliest time
such recollections were reduced to, writing was a month
or more later. This lapse of time makes the-recording of
their versions and recollections no more reliable than the
,previously unrecorded recollections, of Respondent's wit-
nesses. ' Moreover, the three appeared to me to be embel-
lishing whatever-Golden said with their own impressions
or interpretations of his-remarks. On the other hand, I do
not believe that the remarks they attributed to Golden
were' complete fabrications. I note in this regard . that
Golden in, his testimony failed to specifically deny ad-
dressing either Fain, Fleming, or Bardy about going out-
side on breaks and relied instead on a general denial.
Considering all the foregoing, I conclude Golden did
tell employees not to gather more than two or three at a
time outside the rear door during breaks Having found
this to be the fact, I nevertheless do not find that Gol-
den's, action placed any unlawful restriction upon em-
ployees in violation of Section; 8(a)(1) of the Act. There
'is absolutely no evidence to connect this restriction with
the union activity of either Fain, Fleming, or Brady.
Indeed, there is no, evidence that Respondent or Golden
was aware of any union activity"' on"tfie p'a""rf ,'of either'of
the three Nor was there any evidence that connects the
restriction with employee union activity generally. No
explanation was provided by the-General Counsel to es-
tablish how Respondent could have hoped to thwart
union activity by' restricting outside smoking to two or
three employees at a time. And it is clear that Golden
did not bar all outside smoking, for Fleming admitted on
cross-examination that employees continued to go out--
side and smoke after Golden's remaiks And Respond-
ent's witness Diane Murphy testified she had never been
prohibited from going outside to smoke: Accordingly, I
find no unlawful restriction on the association and smok-
ing privileges of Respondent's- employees based on G61-
den's remarks.
I'reach a similar conclusion "with respect to ,the re-
marks attributed to Batchelor. The most that can' be said
if the General Counsel 's witnesses are credited' in all-re-
spects is that Batchelor told employees not to get up
from their machines for any.reason except for breaks and
lunch. But Brady did not support Fleming and Fain re-
garding any restriction on going to the restrooms during
working time At best, the General Counsel's evidence
may reflect an effort to run a "tighter ship" but there is
again no showing that it was responsive to the union ac-
tivity of Fain , Fleming, or Brady, or to union activity
among employees generally. Any tightening of restric-
tions on employees leaving their machines is as consist-
ent with Respondent's 'desire to meet its production re-
quirements at the time as it is with a retaliatory response
to union activity. Fain in her testimony conceded that
there was a ;lot of work for employees in September and
that Golden and Batchelor were telling employees that
they had to get work out, that they had orders to meet.
Under these circumstances , and also because Fain also
conceded that Batchelor's restriction on employees leav-
ing their machines only lasted about 3 days after which
Fain began to leave-her machine more without repri-
mand or hinderance from Batchelor or, Golden, I con-
clude that the 'General Counsel has failed to- establish
that Respondent, through Batchelor,' imposed 'restrictions
on employees for unlawful reasons in violation . of. Sec-
tion 8(a)(1) of'the Act. - - "
Turning to the speech of Propst, it is quite clear that if
the General Counsel 's witnesses are credited over those
of Respondent, it must be concluded that-' Respondent
blatantly violated the Act in the manner alleged' in the
complaint . However, as related' above,- Fain, Fleming,
and Brady did not impress me as totally reliable- That
unreliability is. also reflected in their testimony. concern-
ing Propst's speech. In assessing their. credibility regard-
ing the-speech,' it is noteworthy that they represent only
ITHACA - INDUSTRIES 1125
•3 of the 75 to ,100 employees who heard the speech.
They were not in the first group to whom the speech
was made, but in the third group according to Fleming's
testimony. It is odd, and indeed unlikely, that Propst
would choose only that group to make the unlawful re-
marks attributed to him and not repeat such remarks to
the,other groups. Yet, the General Counsel produced no
witnesses from the other groups to establish that the re-
marks were, repeated. Beyond this improbability and the
lack, of corroboration 'from witnesses in the other groups,
there again is a lack of consistency between the General
Counsel's witnesses regarding both what was said by
Propst and whether or not he read his speech.-Only
Fleming attributed to Propst any restriction on union so-
licitation related to company time. Only Brady conceded
that Propst read at least some of his talk to employees.
All three of the General Counsel's witnesses on cross-ex-
amination conceded that Propst made many statements
which are in fact included in the written speech Propst
identified as the one he delivered to the employees on 26
September. Fain denied that Propst had said in the
speech that it was unlawful for union pushers to threaten
or intimidate employees although he may have used the
words "threaten" and "intimidate" in his speech Flem-
ing said Propst did make such • a remark. On the other
hand, Brady could not recall Propst's use of the words
"threaten" or "intimidate" and recalled only that he said
that if employees knew of anyone soliciting union materi-
al to notify their supervisors However, after having her
recollection refreshed by her prehearing affidavit, Brady
conceded Propst did say it was unlawful for union push-
ers to threaten and intimidate employees. Fain,'Fleming,
and Brady could not recall other statements contained in
Propst's version of his speech and thus could not deny
that such statements were made.
In contrast to the General Counsel's witnesses, Re-
spondent's witnesses were consistent and emphatic in
their denials of the coercive remarks attributed to Propst
in the speech. It is undisputed, that Propst did not read
all his remarks during the course' of his speech, and it is
not claimed by Respondent that anyone read a copy of
the written portion of Propst's speech as he delivered it
to ensure that he did not deviate from it. These factors
do not, however, serve to impeach either the accuracy
or the veracity of the denials by Respondent's witnesses
as to the presence of coercive remarks in the speech.
Propst's testimony regarding the contents of his speech
and the circumstances of its delivery impressed me as
reasonable, logical, and candid. Similarly, • Woodyard's
corroborative testimony appeared straightforward and
particularly sincere. The testimony of 'neither was ad-
versely affected by cross-examination. The testimony of
employees Murphy and Gainus in support of Propst I
also found persuasive.
In view of all the foregoing, and the fact that,each of
the General Counsel's -witnesses supports various por-
tions of the remarks Propst claims to have related to the
employees in the 26 September, speech, and because I
find Respondent's witnesses on this issue plausible and
more convincing than the General Counsel's, I conclude
that Propst's version of his speech as supported by Re-
spondent's witnesses was the most accurate and reliable
version.
Having credited Propst's version of his speech and
since there is no reference by Propst in that version to
Respondent's lawful no-solicitation/no-distribution rule,2
there is no basis for concluding that in his speech Propst
prohibited employees from lawful union solicitations or
distributions while allowing union opponents to-speak
out freely, against the Union. And nothing in Propst's
speech can be viewed as threatening employees with re-
prisals if they solicited their fellow employees on behalf
of the-Union during nonworking time to join or support
the Union.
While Propst did state in the speech that employees
who were against the Union could speak out against the
Union, he did not invite them to do so -on worktime.
And contrary to claims of the General Counsel, I find
nothing in the credited version of Propst's speech which
implicitly granted employees a license to speak against
the Union on worktime. Accordingly, I find no threats
of - reprisal in Propst's speech, nor any suggestion that
Respondent intended to disparately apply its no-
solicitation/no-distribution rule. I therefore find no viola-
tions of'Section 8(a)(1) of the Act with regard to either
of these allegations
It is admitted that Propst did solicit employees to
report to supervision union' pushers who "threaten or in-
timidate" employees. The General Counsel argues that
this 'solicitation io report is similar to other solicitations
to report union activity which the Board has found vio-
lative of Section- 8(a)(1) of the Act. In support of this
contention, the' General Counsel cites and relies upon
Board decisions in J. P. Stevens & Co, 244 NLRB 407
(1979), enfd. 668 F.2d 767 (4th Cir. 1982); Lutheran Hos-
pital of Milwaukee; 224 NLRB 176 (1976), enfd in rele-
vant part 564 F.2d 208 (7th Cir. 1977); and Poloron Prod-
ucts of Mississippi, 217 NLRB 704 (1975). The evil point-
ed to in these cases is that the 'solicitations to report
there invoked a standard so vague as to invite reports
concerning vigorous and insistent but nevertheless per-
fectly legal union 'solicitations. Respondent, on the other
hand, citing Liberty House Nursing Home, 245 NLRB
1194; 1197 (1979), asserts that Propst's comment request-
ed reports only of threats and intimidation' and, there-
fore, in effect sought reports only of unlawful coercion I
concur in the position of Respondent and find the cases
cited by the General Counsel distinguishable. In J. P.
Stevens, the standard for reporting union solicitations was
vague and therefore unlawful because it sought reports
not simply "of threats, but of "pressure." The same was
true in Lutheran Hospital where -reports of being "pres-
sured" and "bothered" by union solicitations was sought.
And in Poloron reports -cf'union solicitation was sought
from employees if the-union solicitors "won't leave you
alone." See also Bank of St. Louis, 191 NLRB 669, 673
(1971), enfd. 456 F.2d 1234 (8th Cir. 1972), where re-
quests to report "constant badgering" in union solicita-
2 Respondent's no-solicitation/no-distribution rule does not specifically
refer to union solicitation or distribution but lawfully bars all solicitation
and distribution on working time and all distribution in work areas at any
time
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions was found to be unlawful In the Liberty case, the
solicitation to report only threats in connection with
union solicitations was found not unlawful because, in
the words of the administrative law judge, affirmed by
the Board, "[T]he use of-the term `threatened' was suffi-
ciently specific-to require . . any potential infringement
of Section 7 of the Act to yield to the right of employers
to assure that its work force, in the course of an organi-
zational campaign, is insulated from this form of coer-
cion at the .hand of employee organizers." 245 NLRB at
1197 - -
The instant case, I find, is more in line with the Liberty
case and controlled by it. Here, of course, not only re-
ports of threats were solicited as in Liberty, but also "in-
timidation." The additional standard of "intimidation"
here involved is admittedly somewhat vague in.the sense
that reasonable minds may differ regarding what consti-
tutes intimidation, but it is no less vague than the
"threaten" standard found lawful in Liberty. Intimidation
connotes compulsion through fear as if by threat. Thus,
it presents a clearer standard than the more vague stand-
ards relating to pressuring, bothering, or badgering found
unlawful in the cases cited by the General Counsel. Re-
quiring Respondent -to further define threats .or intimida-
tion in union solicitations would impose on it an on
restriction which could ,well adversely impact upon its
right to maintain or enforce. plant discipline. According-
ly, I find Respondent did not violate Section 8(a)(1) of
the Act in soliciting employees to report threats or in-
timidation in connection with union solicitations.
Aside from remarks alleged to be unlawful in Propst's
speech, the complaint herein did not specifically allege
that Respondent violated the Act by disparate applica-
tion and enforcement of its no-solicitation/no-distribution
rule. Fain, Fleming, and Brady testified, however, with-
out contradiction from Respondent, that employees fre-
quently engaged in solicitations and distributions on
worktime without, restraint or interference by Respond-
ent. In fact, their uncontradicted testimony was. that Su-
pervisor Batchelor not only was aware of the solicita-
tions and distributions but. occasionally promoted and
participated in such activity during working time The
General Counsel in his brief appears to argue discrimina-
tory enforcement of Respondent's rule, and Respondent
in its brief argues the absence of any,violation of the Act
in this regard. The Board may find and remedy a viola-
tion of the .Act even in the absence of a specific allega-
tion in the complaint, so long as the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated. See Crown Zellerbach Corp., 225
NLRB 911, 912 (1976); Rochester Cadet Cleaners, 205
NLRB 773 (19.73). I find the issue of disparate applica-
tion of Respondent's no-solicitation/no-distribution rule
ripe for decision. While it is clear that Respondent must
be charged on the uncontradicted evidence with knowl-
edge of Batchelor's involvement in solicitations and dis-
tributions on worktime in violation of its rule, it never-
theless cannot- be said from this record that Respondent
disparately applied or enforced its rule because there is
absolutely no evidence that Respondent invoked its rule
-against union activists And because I have credited
Propst's version of his speech which- contains no refer-
ence, to the no-solicitation/no'-disfribution=rule; =I cannot
conclude that Propst reaffirmed Respondent's rule so as
to indicate an intent to disparately apply the rule or oth-
erwise to prohibit employees from engaging in union so-
licitations on worktime while authorizing or condoning
other forms of solicitations or. distributions on worktime.
The General Counsel has the burden of establishing that
Respondent's rule was disparately applied. I conclude he
has -not, met his burden here and I find no violation of
Section 8(a)(1) of the Act in this regard.
CONCLUSIONS OF LAW -
1. The Respondent, Ithaca -Industries, Inc., Cairo,
Georgia, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Firemen
and Oilers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act. -
3. Respondent • did not restrict the association and
smoking privileges of its employees because of their ac-
tivities on behalf of the Union, or threaten employees
with discharge or reprisals for soliciting fellow employ-
ees on behalf of the Union on-nonworking time, or solic-
it employees to report on the lawful union activities of
their fellow employees, or prohibit employees from solic-
iting their fellow employees on behalf of the Union
while permitting union opponents- to speak out freely
against the Union, and therefore did not violate Section
8(a)(1) of the Act in the foregoing respects. .
4. Respondent has engaged in no unfair labor practices
violative of Section 8(a)(1) of the Act which would, war-
rant the issuance of a remedial order.
On .these findings of fact and ,conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The complaint is dismissed in its entirety.
3 If' io exceptions are filed as provided by Sec .102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in, Sec 10248 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses