Hanes Hosiery, Inc.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanes Hosiery, Inc. and Chauffeurs, Teamsters, and Helpers Local Union No. 391 , International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 11-CA-5681 and 11-CA-5745 July 22, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 11, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a brief. The General Counsel filed cross- exception to the Administrative Law Judge's Deci- sion together with 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 the light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge ex- cept as modified below. The Administrative Law Judge found, inter alia, that Foreman Loggins' interrogation of employee Beeson was not unlawful. We do not agree. During their long, cordial work relationship, Bee- son and Loggins have discussed a myriad of topics in a relaxed, easy manner, including the advent of the Union. The Union was introduced into their conver- sation by Beeson who, on Friday, March 1, 1974, informed Loggins that she had been invited to attend a union meeting to be held that evening, and teasing- ly asked him if he were going to attend. On the fol- lowing Monday morning, Loggins subjected Beeson to a series of union-related questions, each of which fed upon Beeson's previous answer. Thus, he asked her whether she had attended the union meeting. Beeson replied that she had and stated further that employee Baker also was at the meeting where he acted as spokesman for Respondent's employees who were present. Loggins then asked, "What Baker had to do with the meeting," and was told that Baker had introduced the speakers. Loggins then asked Beeson for the speakers' names (both of whom were union officials), and when Beeson supplied this information Loggins asked Beeson for the spelling of one of those names. In addition, during conversations concerning the Union in which Beeson and Loggins engaged over the following 3 days, all of which were initiated by Beeson and conducted in a casual and relaxed manner, Loggins continued to ask Beeson whether Baker had attended the union meeting. Based primarily on the longstanding and friendly work relationship between Beeson and Loggins, the relaxed manner in which they conducted all of their conversations, including those concerning the Union, and Beeson's initiation of all of the above union con- versations after that which occurred on Monday, the Administrative Law Judge found that the entire con- text of those conversations was bereft of coercion and did not constitute sufficient actual interference to amount to a violation of Section 8(a)(1) of the Act. We long have recognized that the test of interfer- ence, restraint, and coercion under Section 8(a)(1) of the Act does not turn on Respondent's motive, cour- tesy, or gentleness, or on whether the coercion suc- ceeded or failed. The test is whether Respondent has engaged in conduct which reasonably tends to inter- fere with the free exercise of employee rights under the Act.' We find that Loggins' interrogation of Bee- son falls within the purview of this test and, there- fore, violates Section 8(a)(1) of the Act. Our dissenting colleague cannot find any factual basis to support a finding of unlawful interrogation. He asserts we are holding that the interrogation of Beeson is unlawful per se. As we have found, supra, the record clearly shows that despite the cordial rela- tionship between Loggins and Beeson, and notwith- standing the friendly manner in which their union conversations were conducted, the fact remains that Loggins, a representative of management, in what our colleague refers to as "conversations," interrogat- ed Beeson as to her union activity, interrogated her as to the names, and the spelling thereof, of those who spoke at the union meeting, and repeatedly in- terrogated her as to the union activities of employee Baker. Moreover, those interrogations did not occur in a vacuum since, as the record shows, they were a prelude to Respondent's subsequent discriminatory application of its no-solicitation rule against another known union adherent. The facts that the questioner and questioned employee were otherwise on friendly terms and the interrogation was conducted politely and without overt hostility provides no legal basis for concluding that Respondent's conduct lost its coer- cive effect .2 Nor does an absence of direct evidence 1 N.L.R.B. v. Illinois Tool Works, 153 F.2d 811 (C.A 7, 1946), enfg. 61 NLRB 1129 (1945). 2 The Board and the courts long have held that, subject to certain limita- tions and safeguards, an employer lawfully may interrogate its employees In, e.g., the investigation of unfair labor practice charges and for the prepa- ration of its defense, Saunders Leasing System, Inc, 204 NLRB 448 (1973); Guild Industries Manufacturing and Paul A Saad, 321 F.2d 108, 114 (C.A. 5, 1963), or to verify a union's majority status, Struksnes Construction Compa- ny, Inc., 165 NLRB 1062 (1967). Absent such legitimate purposes, however, and despite our dissenting colleague's protestations to the contrary, interro- gation which otherwise is unlawful is not made lawful merely because it is 219 NLRB No. 47 HANES HOSIERY, INC. show that employees were, in fact, coerced. Experi- ence has shown that statements made during an or- ganizing campaign are the subject of discussion, rep- etition, and dissemination among the employees, cf. Standard Knitting Mills, Inc., 172 NLRB 1122 (1968). The absence of direct evidence does not indicate that the interrogatee or employees may not, in fact, have been coerced, or that such unlawful conduct had no tendency to affect unlawfully their Section 7 rights. As we have noted, the test is whether the conduct tends to interfere with the exercise of employee rights under the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hanes Hosiery, Inc., Weeks plant, Winston-Salem, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees with respect to their union activities, support, and membership. (b) Applying its no-solicitation rule in a discrimi- natory manner. (c) Discriminating against employees because they engage in union activities. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Chauffeurs, Teamsters, and Helpers Local Union No. 391, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Expunge from its records the final warning in writing issued to employee Brenda Collins on May 9, 1974, and forthwith advise her in writing of such ac- tion. (b) Post at its Weeks plant in Winston-Salem, North Carolina, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms pro- conducted in a friendly, pleasant, and courteous manner. Monroe Manufac- turing Company, Inc., 200 NLRB 62 (1972). It is the fact, and not the man- ner, of interrogation which interferes with or coerces the employees in the exercise of their rights. 7 Standard Knitting Mills, supra. 339 vided by the Regional Director for Region 11, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the allegations of un- fair labor practices contained in the complaint which have not been found herein are hereby dismissed. MEMBER KENNEDY, dissenting: I agree with the Administrative Law Judge that the conversations between Respondent's foreman, Log- gins, and employee Beeson were not coercive and did not constitute sufficient actual interference to amount to a violation of Section 8(a)(1). My col- leagues summarily conclude, without any apparent rationale, that these conversations fall within the test of "conduct which reasonably tends to interfere with the free exercise of employee rights under the Act." Absent any factual basis, such a conclusion is in real- ity no more than a ruling that interrogation is per se unlawful, an approach rejected by both the Board and the courts.' The Board, in Blue Flash Express,6 long ago reject- ed such a per se rule because it "would mean that a casual, friendly, isolated instance of interrogation by a minor supervisor would subject the employer to a finding that he had committed an unfair labor prac- tice . . . ." Indeed, that is precisely what has hap- pened here. As the Administrative Law Judge found, employee Beeson has long worked "in close conjunc- tion" with Knitting Department Foreman Loggins and in her capacity as factory clerk "is frequently in and out of his office," and regularly helps him with 4In the event that this 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 " 5 Blue Flash Express, Inc, 109 NLRB 591 (1954), Frtto-Lay, Inc, 151 NLRB 28, 34 ( 1965); Bourne Co. v. N L R B, 332 F.2d 47 (C A. 2, 1954). It is now well settled that interrogation of employees as to union matters is unlawful only when it is conducted against a background of employer hos- tiltty and discrimination towards unionization as would induce in its em- ployees a fear of reprisal for lawfully pursuing their union activities or when it contains an express or implied threat or promise . N L.R.B. v. Ralph Print- ing and Lithographing Company, 379 F.24 687, 690 (C.A. 8, 1967); N.L.R.B. v. J E. McCarron, et al , d/bla Prince Valley Lumber Co, et al., 216 F 2d 212, 216 (C.A. 9, 1954). 6 Supra 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his weekly reports. My colleagues concede that Beeson and Loggins have shared a "long, cordial work relationship" and that they have discussed many topics, including the advent of the Union, in a "relaxed, easy manner." They even concede that, as the Administrative Law Judge found, on the Friday before the Monday morning "interrogation," Beeson informed Loggins that she had been invited to a union meeting to be held that evening and "teasingly asked him if he were going to attend." It was in this context that Loggins asked Beeson, when she arrived at his office on Mon- day morning to work with him on the weekly reports, whether she had attended the Friday night meeting. Beeson did not merely respond that she had, in fact, attended; rather, she "volunteered little gossipy de- tails" about the meeting. She volunteered that em- ployee Baker was the spokesman for the company employees present. Loggins responded to this unsoli- cited outpouring of information with a question as to Baker's part in the meeting and was told by Beeson that Baker had introduced the speakers. All subse- quent discussions concerning the Union were initiat- ed by Beeson and, like the initial conversation, con- tained absolutely no threats of warnings, either expressed or implied. Without question, the test to be applied in de- termining the lawfulness of interrogation is "whether, under all the circumstances, the interrogation reason- ably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act."' The circumstances surrounding Loggins' interrogation of Beeson precluded any possibility that Beeson or any other employee could have felt restraint in pursuing union activities.8 Moreover, the only unfair labor practice committed by the Respondent herein in- volves a single incident with respect to 1 employee in a plant employing nearly 2,300 employees. It is in- conceivable to me that "interrogation" of a single employee in this context could, as my colleagues find, tend to interfere with the exercise of employee rights under the Act. Indeed, my colleagues do not suggest any basis whatsoever for their contrary con- clusion, and their finding of a violation herein is to- tally inconsistent with Board and court holdings that interrogation is not per se unlawful. In N.L.R.B. v. Huntsville Mfg. Company, a subsid- iary of M. Howenstein & Son Inc., 514 F.2d 723 (C.A. 5, 1975), approximately 10 employees out of a work force of 1,000 had been interrogated by their imme- diate supervisors who questioned the employees as to 7 Blue Flask Express, Inc., supra, 593. 8 Certainly employee Baker could not possibly have felt restrained by the questions concerning his part in the union meeting. There is absolutely no evidence, or even allegation, that Baker knew of such questions or was in any manner interfered with in the exercise of his rights under the Act. what they thought about the union. The court's hold- ing in Huntsville is clearly applicable to the majority's decision herein. In refusing to enforce the Board's order the court stated: ... These incidents must be placed in the con- text of a three-month organizing campaign of a total workforce of over 1,000 employees and in which any other incidents of an "anti-union ani- mus" are noticeably absent.4 Further militating against the Board's conclu- sion that the questioning was coercive is the gen- erally innocuous nature of the questions asked and that the "interrogations" were in employee working or break areas. The questions on the whole were permissible under § 8(c), 29 U.S.C. § 158(c) (1970) [footnote ommitted ], were asked by low-echelon supervisors , most of whom were in daily contact with the employees questioned, and there was no testimony that any of the employees were purposely evasive in their answers. We would note here that the Board apparently equates in this case an employer's opposition to the union with an anti-union ani- mus. The Act does not mandate that employers willingly embrace union representation of their employees nor do we think that opposi- tion to a union can be converted into an anti-union animus without some proof, absent here, that the employer engaged or has engaged in the past in a pattern of conduct hostile to unions. Further, finding that there were no "threats of repri- sal" violative of the Act, the court in Huntsville quot- ed with approval the following from Salinas Valley Broadcasting Corp. v. N.L.R.B., 334 F.2d 604 (C.A. 9, 1964), a decision also apposite to the majority's find- ings in this case: Neither mere inquiry by employer of employ- ees without harassment or undue frequency, as to the fact of the existence of a plan to unionize, nor a single somewhat vague prediction of antic- ipated loss of economic benefits can be trans- formed or transmuted by the magic of semantic labels into "repeated interrogations" or "threats of economic reprisals," sufficient to swing the balance against the other facts in the record. A fortiori the "semantic labels" applied by my col- leagues cannot transform the conversations herein- involving only 1 employee among 2,300 conducted in a friendly atmosphere in response to the employee's voluntary discussion of the Union, containing abso- lutely no threats of reprisals, and to which the em- ployee responded not only unevasively but with fur- ther, unsolicited information-into "interrogation which is unlawful." In view of the friendly and relaxed relationship of Beeson and Loggins and Beeson's gossipy nature, I HANES HOSIERY, INC. cannot conceive of circumstances in which questions concerning union activity could be less likely to in- terfere with the free exercise of employees' rights un- der the Act. Unquestionably, Beeson's interrogation by Loggins under the circumstances herein did not tend to restrain or inhibit her in the exercise of her rights in any way. She, in fact, continued to volunteer information concerning the Union, bringing up the subject herself. I cannot agree with my colleagues' reversion to the rule that interrogation is per se unlawful? I would find, as did the Administrative Law Judge, that in the circumstances of this case, Loggins' interrogation of Beeson was bereft of coercion, did not interfere with the employees' exercise of their rights under the Act, and, therefore, is not unlawful. Accordingly, I would dismiss the complaint in regard to such interrogation. 9 My colleagues disavow taking such a per se approach. They specifically ignore, however, "the friendly manner in which their union conversations were conducted ," the obvious fact that Beeson was not inhibited by the conversations and, in fact, continued to volunteer information about the Union in conversations which she initiated, and the fact that the only unfair labor practice committed involves I employee out of 2,300. The exclusion of these factors from their consideration and their blind reliance on the fact that the "interrogations" occurred belies the majority's disclaimer of a per se approach to interrogation. My colleagues misstate my position . They state that "despite [my] protes- tations to the contrary, interrogation which otherwise is unlawful is not made lawful merely because it is conducted in a friendly , pleasant, and courteous manner." I have not "protested" to the contrary . Rather, I find such a statement irrelevant to the discussion herein . Under the test set forth in Blue Flash Express, supra-interrogation does not become unlawful un- less "under all the circumstances, the interrogation reasonably tends to in- terfere with the employees in the exercise of rights guaranteed by the Act"-the interrogation herein is not "otherwise unlawful." Monroe Manu- facturing Company, Inc., 200 NLRB 62, on which the majority relies to support their conclusion that unlawful interrogation is not made lawful by the manner in which it is conducted , does not support their application of that conclusion herein ; indeed, their reliance on it merely emphasizes the per se approach they now pursue. In Monroe, an employee who had already been unlawfully interrogated on several occasions and had been the subject of other unlawful interrogations was sought out by the respondent's presi- dent, who questioned her as to why she favored the union , attempted to change her mind about the union , and asked her if his arguments had changed her mind. My colleagues noted in Monroe the master-servant rela- tionship and found that the president's seeking out the employee and the discussion which followed "was calculated to, and would reasonably be interpreted by the employee involved as an attempt to, interfere with her right to self-organization, regardless of the courtesy and civility of the inquiry." It cannot be seriously suggested that employee Beeson was the victim of a "master-servant" relationship or that she interpreted Loggins ' responses to her voluntary outpouring of information about the union meeting as an attempt to interfere with her right to self-organization. I refuse to join my colleagues in their per se approach to interrogation, regardless of the facade with which it is veiled. APPENDIX 341 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT interrogate our employees with respect to their union activities, support, and membership. WE WILL NOT, in any like or related manner, do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT apply our no-solicitation rule in a discriminatory manner. WE WILL NOT reprimand or otherwise discrimi- nate against employees because of their union activities. WE WILL expunge from our records the written final warning given Brenda Collins on May 9, 1974, and advise her in writing of that action. HANES HOSIERY, INC. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: These consolidated cases arise initially from charges in Case 11- CA-5681 filed March 19, 1974 t and later amended on April 8 and 18 and May 9. The charges in Case 11- CA-5745 were filed May 17 and amended June 5. All the charges were filed by Chauffeurs, Teamsters and Helpers Local Union No. 391, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (the Union) against Hanes Hosiery, Inc. (the Respondent). On June 14 a consolidated complaint issued based on these charges alleging that Respondent engaged in unfair labor practices consisting of multiple violations of Section 8(a)(1) of the National Labor Relations Act, as amended (the Act), and a single violation of Section 8(a)(3) of the Act. The allegations respecting 8(a)(1) involve a no-solicitation 1 All dates herein are 1974 unless otherwise noted. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rule, interrogation of employees regarding union activity, and warning employees to remove, or coverup, union but- tons. The allegations respecting Section 8(a)(3) involve the issuance of a final warning to employee Brenda Collins. Respondent filed an answer admitting the jurisdictional allegations of the complaint but denying the alleged viola- tions of Section 8 (a)(1) of the Act. The answer admits a final warning was issued to employee Brenda Collins but denies it was issued because of her union or concerted ac- tivities. The issues were heard before me at Winston-Salem, North Carolina, on July 18 and 19. Upon the entire record , my observation of the witnesses, and consideration of the brief filed by General Counsel, I make the following: Weeks plant started on March 1 with a meeting of between 75 and 80 plant employees at a local motel. The organizing went forward with handbilling outside the plant, beginning about March 7 and with further meetings of employees including a mass meeting held on March 10. In addition an in-plant organizing committee was set up to solicit employ- ees signatures on union authorization cards . The union or- ganizing effort continued through April, May, June, and July and was in progress at the time of the hearing herein. Simultaneously Respondent has been engaged in a cam- paign to counteract the Union organizing. B. The Alleged Threats, Coercion, and Restraints 1. The no-solicitation rule FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent is a North Carolina corporation engaged in the manufacture and sale of women's hosiery. It operates a plant known as the Weeks plant at Winston-Salem, North Carolina, the only facility involved in the present matter. Respondent annually receives at its Weeks plant at Win- ston-Salem goods and raw materials valued in excess of $50,000 which come to it directly from points outside North Carolina. It also annually sells and ships from the Weeks plant to points outside North Carolina goods val- ued in excess of $50,000. Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Weeks plant employs between 2200 and 2300 per- sons in three shifts . Eighty percent of the employees are women. H. THE LABOR ORGANIZATION INVOLVED The Union is an organization which represents employ- ees respecting wages, hours, and working conditions and which admits to membership employees of various employ- ers, including employees of Respondent. It is a labor orga- nization within the meaning of Section 2(5) of the Act. At the time of the events involved in this case and con- tinuing through the time of the hearing the Union was en- gaged in a campaign to organize the employees at the Weeks plant. On May 28 the Union filed a petition (11- RC-3922) seeking a Board election. Following a hearing on June 20, the Board's Regional Director for Region 11 on July 5 issued a Decision and Direction of Election di- recting that a representation election be held among the production and maintenance employees of the Weeks plant on August 7. At the time of the unfair labor practice hear- ing herein the election remained scheduled but had not yet been held. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union Organizing Campaign The union campaign to organize employees of the The complaint alleges, and the answer denies , that Re- spondent promulgated, maintained, and enforced an inval- id no-solicitation rule prohibiting employees from union solicitation during nonworking time on company property. There is no dispute that a no-solicitation rule has long been in effect in the form of Rule 17 in the employees hand- book. The General Counsel contends that rule 17 on its face is invalid because its language is too broad, and, fur- ther, that it was discriminatorily applied. The rule in question reads as follows: 17. Solicitations, collections, sales. Except by the express permission of management, there shall be no-solicitations , collections, or sales on the job or which in any way interfere with work or production. In arguing that this rule in invalid on its face because it is too broadly worded the General Counsel first relies on Daylin, Inc., Discount Division, d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972). The thrust of the argu- ment appears to be that as read by the ordinary employee rule 17 would be understood to ban all union solicitations on plant premises even though the employees involved might not be working at the time . Apparently the General Counsel does not contend, and in any event there is no evidence to indicate, that rule 17 was initially established for a discriminatory purpose . Cf. Serv-Air, Inc., 161 NLRB 382 (1966). Looking to the language of the rule itself , it prohibits solicitations "on the job." Contrary to the contention of the General Counsel I find that ordinary employees read- ing those words would understand that they applied to sit- uations where employees were working . In the past the Board has considered rules banning solicitations "on the job" and has found that such rules are not on their face invalid. Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527 (1965). See also Southwire Company, 145 NLRB 1329 (1964), enfd. as modified 352 F.2d 346 (C.A. 5, 1965); White Oak Acres, Inc., 134 NLRB 1145, 1150 (1961). The General Counsel seems to read rule 17 as including two rules : one prohibiting solicitations on the job and the other prohibiting solicitations which interfere with work or production. The rule forbids solicitations in circumstances described in the following language, "on the job or which in any way interfere with work or production." The Gener- HANES HOSIERY, INC. al Counsel emphasized the use of the disjunctive "or" to support his reasoning that two rules are involved . But this is a strained reading . There is no punctuation preceding the disjunctive "or." As I read the rule, and as I think the ordinary employee would read it , the words "or which in any way interfere with work or production" modify and explain the words which precede them and serve to empha- size that the purpose of the rule is to protect the production process. I have been referred to no case where language forbidding solicitations which interfere with work produc- tion has been held per se invalid. The General Counsel further contends that the opening words of rule 17 allowing an exception to the rule if per- mission of management is obtained serves to encourage solicitations for causes popular with management while si- multaneously discouraging solicitations for the Union. There is some validity in this argument where the employ- er, as here, is engaging in a campaign in opposition to the Union. Yet one must not lose sight of the fact that the rule as a whole is short and easily read . It takes up only three lines in the employee handbook. It is not a long involved statement with numerous exceptions requiring an employ- ee to be a Philadelphia lawyer to figure it out. Compare Fasco Industries, Inc. v . N.L.R.B., 412 F.2d 589 (C.A. 4, 1969), enfg. 173 NLRB 522 (1969). Whether stated in the rule or not, management has the inherent power to change the rule or grant exceptions to it. This language merely announces that authority . I do not think it significantly encourages or discourages employees in their solicitations. The General Counsel also contends that rule 17 , whether or not invalid on its face, was disparately applied against union solicitations. In this connection the record shows that rule 17 was ignored insofar as the sale of various prod- ucts such as Tupperware , Rubbermaid, Avon, and candy and jewelry. In addition, various collections were at times taken up such as collections for the flower club fund used on the occasion of funerals or serious mishaps . Some col- lections were taken up to purchase Christmas gifts for su- pervisors . The record indicates that management knew about these solicitations and allowed them to continue without restrictions . There was also some buying and sell- ing of firearms in the plant. But the record indicates that management was unaware of these sales . The plant manag- er testified that he received no complaints from employees that they were being bothered or pressured by these vari- ous solicitations. Perhaps he himself did not receive any complaints. But with a work force of over 2 ,000 it is hard to believe that some disgruntled individual has not on some occasion groused to a supervisor about such solicitations. The General Counsel contends that rule 17 was applied to the union solicitations in a discriminatory manner and points to the disciplining of Brenda Collins as evidence of such disparate application . I so find . The evidence is treat- ed hereinafter in connection with the alleged discrimina- tion against Collins. 2. The alleged interrogations The complaint alleges, and the answer denies, that on various dates in March and April three of Respondent's supervisors unlawfully interrogated employees about the 343 union activities, membership, and desires of those employ- ees as well as other employees. The three supervisors in- volved are Elbert Loggins, first-shift foreman in the knit- ting department, George Tucker, first-shift foreman in the pairing department, and Jerry Warren, plant manager. a. The alleged interrogations by Elbert Loggins At the time of the events involved here Louise Beeson was employed as a factory clerk on the first shift in the knitting department under the supervision of Foreman El- bert Loggins. She has been an employee of Respondent for 20 years. In her capacity as factory clerk Beeson works in close conjunction with Loggins and is frequently in and out of his office. She keeps the department records such as the style and size setups necessary for production. She regu- larly helps Loggins with his weekly reports. This latter ac- tivity takes place early each Monday morning in his office. Beeson and Loggins converse with each other daily. The scope of their conversations include not only their work but also many other topics of mutual interest. On the evening of Friday, March 1, the Union had scheduled a meeting of employees to which Beeson had been invited. Earlier that day while at work she came into the office of the superintendent in charge of her operation at a time when Loggins was there. Beeson volunteered that she had been invited to a union meeting and asked Loggins why he did not go also. Loggins declined, saying he had not been invited. According to Beeson they have discussed the Union many times. The following Monday morning, March 4, when Beeson arrived at Loggins' office to work on the weekly reports with him, he asked her if she attended the meeting on Fri- day night. She said yes. According to Loggins she volun- teered that she had gone to the meeting. His version is consistent with her testimony that they often talked about the Union, that she told him about union activity without his asking, and that his questions in this regard came after the subject was being discussed. Nevertheless, I credit the testimony of Beeson and find that on Monday, March 4, Loggins brought up the matter by asking her if she had attended the Friday meeting. I reach this finding because it seems logical in light of their interchange on Friday that he would ask her if in fact she went. The conversation continued with Beeson volunteering many details about the Friday night meeting and with Log- gins asking some questions along the way. From the total evidence it is clear that he did not grill her. Beeson told about various things that happened such as her difficulty in getting into the meeting when the man on the door of the meeting place asked her what she was doing there. She also told of another man at the meeting who apparently had been drinking and had to be told to sit down. She told Loggins what the speaker said in his opening remarks. She told him that an employee named Talmadge Baker was the spokesman for the company employees present. According to Beeson, Loggins specifically asked her if Talmadge Bak- er was at the meeting, to which she replied that she did not know, and also specifically asked her the identity of the spokesman for the employees present, to which she replied that she did not know. On these differences I do not credit 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beeson. The account of Loggins upon which I base the above finding was more detailed than hers. In any case, it seems to me that a 20-year employee such as Beeson, who admittedly had often talked about the Union with Loggins and who had volunteered little gossipy details such as her experience with the doorman when she arrived and the incident about the man who got out of order, would not have been so reluctant to mention the name of the employ- ee spokesman or so quick to plead ignorance in this regard. After learning that Talmadge Baker had been the em- ployee spokesman, Loggins admittedly asked Beeson what Baker had to do with the meeting. She replied that he intro- duced the speakers. Loggias then admittedly asked her who the speakers were and she gave him the name of two union officials, a Mr. Durham and a Mr. Lauk (which she pronounced as Lock). He then asked her how to spell the name Lauk. He testified that that was all he asked her. He denied asking her if other employees , specifically certain changer-mechanics, were there. Beeson testified that he had asked her if some changer-mechanics were at the meet- ing and that she had pleaded ignorance. I credit Loggins in this respect. It is not clear from her testimony whether Bak- er was one of those she referred to. On the following day, Tuesday, Beeson again had occa- sion to be in Loggins office. They conversed on various topics including job relations. Beeson brought up the sub- ject of the Union. She testified that Loggins again asked her if Baker was at the meeting and that she again said she did not know. Beeson further testified that on the following Wednesday and Thursday, March 6 and 7, approximately the same general conversations occurred . She admittedly raised the subject of the Union each time. She testified that on each of these days Loggins again asked if Baker had been at the Friday meeting. Loggins, without giving any details about the Tuesday, Wednesday, or Thursday con- versations, categorically denied asking about Baker on any of those days. I do not credit his denial. Whether Loggins violated Section 8(a)(1) of the Act is a close question. He, a supervisor, while in his office, the locus of authority, clearly asked Beeson, a rank-and-file employee, about union activities. Yet the entire context of the conversations is bereft of coercion. The relationship between Beeson and Loggins was a cordial one. Even though he was a supervisor and she was not, they were in part coworkers. There is no question that she was not a supervisor. Yet her duties involved her in management's work much more than was the case with the ordinary mill- hand. Loggins' office was for her a normal work area. A longstanding mutual relationship allowed them to fre- quently converse on many topics. They often talked about the Union. On each of the particular occasions discussed in the evidence, except one, she brought up the topic of the Union. Any questions or comments he had followed there- after as in normal conversation . The one exception was on the morning March 4 when he asked her if she had gone to the meeting the previous Friday night, a meeting she had earlier told him about and invited him to attend. Whether Loggins' questions, although not coercive, were nevertheless an interference, is arguable. Plainly Beeson and her fellow employees were not quite as free of employ- er influence after her supervisor's questions were put and she had responded. In the first place, as in any conversa- tion, she necessarily was under some slight pressure to re- spond in some manner. Secondly, she and her fellow em- ployees could reasonably believe that , at least to the extent of the scope of the questions asked, their employer was interested to learn what they were doing and thinking. This conceivably could have an inhibiting effect on future exer- cise of their statutory rights. But the same context which leads me to find no perceptible coercion present in these conversations also leads me to find insufficient actual in- terference to amount to a violation of Section 8(a)(1) of the Act. Accordingly I find that Loggins did not commit an unfair labor practice. b. The alleged interrogation by George Tucker The complaint alleges, and the answer denies, that in the second week of April George Tucker, foreman in the pair- ing department, unlawfully interrogated employees about their own union activities, membership , and desires and the activities, membership, and desires of other employees. At the Weeks plant Respondent follows the practice of having a supervisor interview each employee once a year. On April 8, Tucker routinely called in Novella Adams, em- ployed in the pairing department as a material handler on the first shift, for her regular annual interview . Although the union organizing campaign was then in progress, and Adams had twice been solicited (once in March and again in April) to sign a union card by Brenda Collins , a member of the union organizing committee, while they were work- ing, I find, based on the credited testimony of Tucker, that the interview with Adams was routinely scheduled, that he took her in order, and that the scheduling of the interview was unrelated to the union campaign then in progress. The interview was held in Tucker's office. When Adams appeared he asked her to sit down, asked her how she was getting along, and told her it was her regular yearly inter- view. He then went over her absentee record, her work record, and checked her current address. According to Ad- ams she asked Tucker in the course of the interview if a person did not sign a union card would they be subjected to dues. Tucker answered no. Adams further testified that Tucker then asked her how she felt about the Union and she answered that she wanted no parts of it. She further testified that Tucker asked her if she thought the Union would get in and she answered no, not with Brenda Collins pushing it. It is clear from the testimony of both Adams and Tucker that she brought up the topic of the Union. On cross-exam- ination Adams testified that prior to Tucker saying any- thing about the Union she said she wanted no parts of the Union. Further along in the cross-examination she testified she did not remember whether she had told Tucker first or whether he had asked her first about the Union, that it could have been either way. She testified that Tucker did not grill her about the Union, that his statements were in answer to her questions , that he talked to her in a nice way without putting pressure on her or making her fearful. And finally she testified that she probably told Tucker about the Union without him asking. On his part Tucker testified credibility that, when Ad- HANES HOSIERY, INC. ams brought up the topic of the Union by asking him if the Union should come into the plant, would she have to join the Union or belong to the Union, he answered no, that it was each person's privilege. According to Tucker, Adams explained the reason she had asked was because a girl that had been wearing a union badge in the pairing department had been trying to get her to sign a union card and she did not want anything to do with it. Tucker unequivocally de- nied he ever asked Adams how she felt about the Union or if she thought the Union would win or lose or what the feelings of other employees were about the Union. He testi- fied further that, when Adams mentioned the union card, he suggested that she read it very carefully, including the fine print. According to him he did not suggest that she not sign one nor did he ask her if she had signed one. According to Tucker he did not report to the plant man- ager on his interview with Adams. During the interview, however, he filled out a routine personnel form which be- came a permanent part of Adams' file. On the back of the form in a space provided for general comments Tucker wrote, "Novella said she appreciated her job and all that Hanes has done for her. She ask (sic) about the Union if they get in here could they make you join. Said she did not want any part of it." I find the above evidence insufficient to establish that Tucker coercively interrogated Adams about the union ac- tivities, membership, and desires of herself or other em- ployees. I reach this finding because even though the inter- view took place at the locus of authority, it was scheduled as a routine matter in accordance with established practice. I further rely on the fact that the employee injected the subject of unionism into the conversation. Moreover, her testimony, which is the only evidence offered to support the allegation, was vacillating and contradicted by the un- equivocal denial of Tucker. Accordingly, these allegations of the complaint should be dismissed. c. The alleged interrogation by Jerry Warren As noted earlier herein employee Novella Adams had twice been solicited to sign a union card by fellow employ- ee Brenda Collins while they were on the job. On the first occasion in March Adams indicated she was undecided. On the second occasion in April Adams indicated she had not made up her mind. She did not sign an authorization card on either occasion . It was after these two incidents that she had her annual interview with her foreman, George Tucker, detailed above. Some time in April, after her interview with Tucker, Ad- ams encountered Collins in the break area during break- time. Other employees were also present . At the time Col- lins was angry with Adams. She pointed to Adams, calling her a Miss Hanes Hosiery "ass-licker." Adams was much embarrassed by the uncomplimentary epithet. As a result of the incident in the break area Adams re- quested an interview with Plant Manager Jerry Warren. He was not immediately available but a few days later he called her to his office pursuant to her request. She told him about all three incidents involving Collins, the two occasions when she was solicited to sign a union card as well as the abusive language in the break area. She asked 345 Warren if there was anything that could be done about Collins and her conduct, saying she did not like Collins' attitude trying to get her to sign a union card. According to Adams, whom I credit, Warren then asked her if she thought the Union had a chance. She replied she did not think so with people like Collins working for it because Collins was hurting it more than she was helping it. Adams said she did not want any part in the Union. She also testified that Warren may have asked her about her feelings about the Union. She did not remember his exact words. Inasmuch as her testimony is uncertain in this re- gard I find the evidence insufficient to warrant a finding that Warren asked her how she felt about the Union. Moreover, it is clear he already knew what her feelings were. Warren denied that he asked Adams how she thought the Union was doing, or whether it had a chance, or who was for or against the Union. But the account of Adams is very clear and I credit her version that he asked if she thought the Union had a chance. If Warren had called Adams to his office on his own motion and inquired of her if the Union had a chance, his interrogation would clearly have been coercive and a viola- tion of Section 8(a)(1) of the Act. But because she sought the interview, voluntarily reported about her encounters with Collins which involved the Union, asked Warren if anything could be done about Collins' conduct, voluntarily expressed her antiunion attitude, and only then did Warren ask her opinion about the Union's chances, I find the evi- dence as a whole insufficient to establish that the circum- stances were coercive. Accordingly, I find that Warren did not violate Section 8(a)(1) of the Act in this regard. 3. Warnings to remove or cover up union buttons The complaint alleges, and the answer denies, that Re- spondent violated Section 8(a)(1) in that Foreman Joe Gil- lespie in mid-March, on March 18, and in late March, warned employees to either remove or cover up union but- tons which they were wearing. The real issue is whether business reasons justified such directions. Buttons were distributed by the Union in March for use by union supporters during the union campaign. They were round metal campaign buttons about 2 inches in diameter, with yellow background, the words "Vote Teamster" in black across the top, and a drawing of a smiling face be- low. The buttons were affixed to the wearer's clothing by a pin across the back, the point of the pin protruding about one-fourth inch beyond the periphery of the button. The surface of the button itself , which appears to be painted, is generally smooth. However, the particular button offered in evidence by the General Counsel, which witnesses testi- fied is identical to all of the others used, is slightly rusted along the edge. Joe Gillespie is the section foreman on the third shift in the knitting department. The shift starts work at 11:50 p.m. and continues for 8 hours. The knitting department is the principal activity in the plant during the night hours. Gil- lespie supervises 56 employees operating 28 production lines. The area under his supervision encompasses approxi- mately 25,000 square feet. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In approximately the second week of March quality checker Lola White wore a union button to work. Gillespie told her she would either have to take it off or cover it up. In mid-March fixer-mechanic James Chatman also wore a button and was told the same thing by Gillespie. On the night of Friday, March 15, quality checker Faye Long wore a button without incident. The next Monday morn- ing, March 18, quality checker Helen Witaker wore a but- ton and Gillespie told her to take it off or cover it up. That same night Faye Long again wore her button and Gillespie told her the same thing. In each case he gave the employee the option of removing the button or continuing to wear it but covering it up. He gave no indication as to how it should be covered up, whether by a transparent or opaque covering. Chatman, the fixer-mechanic involved, works in and among the running knitting machines . His duties include the handling of hosiery. He was wearing his button on the neck strap of his apron. The quality checkers involved, White, Whitaker, and Long are each responsible for two production lines. As a knitting machine produces hosiery it blows the finished product into a bag. When a quality checker finds that a machine is running defects, her duties involve pulling all the hose produced by the machine out of the bag. This is done by hand. The number of hose handled on any given occasion may be small but may also be substantial. The evidence indicates that on occasion bunches of hose are held in the arms and even against the body and that the employees must take care not to nick or pick the hose. Considerable evidence was offered respecting picks. A pick is a single strand of yarn in a hose which has been pulled out of place with the result that the hose is defective. Some picks are repairable but they present a problem be- cause hand labor is required to repair them. Larger picks of 2, 2-1/2, and 3 inches in length are not repairable and the hose become waste. About 1-1/2 mile of yarn go into each conventional hose. Picks are a constant problem. The number of picks has varied from as little as 6 percent of the hose produced to as much as 22 percent. Gillespie testified credibly that he is under constant pressure from higher management to keep down the number of picks. In 1973 when picks were run- ning particularly high, his superiors specifically instructed him to get the level of picks down. He also testified credi- bly, and I find, that the yarn currently used in the produc- tion of hosiery is more susceptible to picks than that previ- ously used. As a result more effort is being made to reduce picks. In order to avoid picks employees are required to wear gloves. If they wear a wristwatch not covered by the gloves, they are required to wear a cover for the watch. No special restrictions are put on the clothing the employees wear ex- cept that the Company prefers they wear clothing which is smooth in front to avoid the possibility that stockings may be picked by brushing against rough clothing or against buttons and the like. Quality checkers are provided with aprons covering them below the waist. However, they are not required to wear the aprons. Fixer-mechanics appar- ently wear aprons which have a bib front covering the chest as well as the lower body. Although the above noted evidence shows a valid busi- ness concern with picks, some evidence in the record tends to indicate a nonbusiness motivation for Gillespie's in- struction regarding the union buttons. Thus, he gave his instructions while the union campaign was in progress and while Respondent admittedly was engaged in a campaign to counter the union campaign. Whitaker testified without contradiction that after Gillespie told her to take off or cover up the union button she asked him why and he re- plied that it was against company rules. She then com- mented she thought it was silly and he replied, "We're not supposed to go within a mile of those people." It is not alleged that this comment was an unfair labor practice, but the General Counsel contends it indicates why Gillespie restricted her in wearing the union button. Chatman testi- fied, without contradiction, that when Gillespie told him to leave the button on or cover it up he also stated, "It's against the company policy." Gillespie testified, and I find, that there is no company policy against wearing union buttons or any other kind of buttons as such. Chatman and Long both testified, and I find, that in the 1972 presidential campaign they both wore political campaign buttons similar to the union button in question here and in about the same location. No limita- tion was put upon them. Long also testified that since Gil- lespie limited her she has seen others in the plant wearing union buttons. I give little weight to the fact that political buttons were worn in 1972 because of the passage of time and because of the evidence that the problem of picks has since become more serious and the yarn is apparently more fragile than used at previous times. Whitaker testified, and I find, that she has often worn necklaces and pins in the same general location as she wore the union button and has never snagged a hose. However, she did not testify that Gillespie never objected to these ornaments. She denied that during her work hose comes close enough to such ornaments to be picked. I do not credit her denial in view of the substantial testimony of other witnesses to the contrary. Respecting Whitaker, Gil- lespie testified credibly that he never observed her wearing a long necklace although he had seen her wear a short one which fell inside her blouse and was therefore covered. I credit his testimony in this reagrd. However, he did not recall Whitaker wearing brooches with long pins sticking out in front so her testimony respecting pins stands unde- nied. Gillespie admitted that White has worn long chains and that he has had to talk to her about it. His instructions, however, appear to have been exceedingly mild because he allowed her to continue to wear the chain for the balance of the shift and asked her not to wear it again. According to him she also on occasion wore a necklace with a cross pendant. He had her put this down inside her blouse. Long testified, and I find, that she sometimes wears a small metal clip in the form of an American flag up on her shoulder in the same location as the union button she wore. According to her the flag pin snaps on like a tie clasp and would tend to snag hose if it came into contact with them. Nothing has ever been said to her about wearing the flag clip. There is evidence in this record going both ways. Some HANES HOSIERY, INC. tends to support an inference that restrictions were put on employees of union buttons in order to hamper the union campaign . Other evidence supports an inference that busi- ness reasons were behind the restrictions . Gillespie, who was a forthright and credible witness, testified that his re- strictions on wearing the union button were not related to the fact that they were union buttons but only to the fact that they posed a problem regarding picks. He testified that the union buttons were on the front of the employee's chest. This is in conflict with all of the employee witnesses who testified that the union buttons were placed high up near the shoulder. I think Gillespie was mistaken and ac- cordingly I credit the employee witnesses on this point. I find that the union button could, if it came into contact with hose, cause picks in them. Obviously the pin which protrudes a quarter inch beyond the periphery of the circu- lar button could cause a pick or snag. Secondly, Gillespie demonstrated at the hearing how a hose could catch on the round edge of the union button which was offered in evi- dence by the General Counsel. There is a slight rust mark on the edge of this particular exhibit. The evidence is to the effect that all of the union buttons were the same. The record is silent as to whether buttons other than the one offered in evidence had any rust on the edge. I make no finding in this respect. Yet Gillespie's demonstration viv- idly portrayed the hazard involved in the button coming into contact with hose. The evidence shows that some risk of picks did exist from the wearing of the union buttons as well as other articles. The evidence shows that on some but not all occa- sions Gillespie took measures to limit employees' use of such ornaments. Thus, Long was never restricted in the use of her flag pin while others were told to put hanging neck- laces inside their blouses or not to wear them in the future. And Long observed union buttons being worn in the plant after the incidents involved here. I find there is sufficient evidence to warrant the conclu- sion that business justification existed for Gillespie's re- strictions respecting the union buttons. The difficulty with the General Counsel's case here is that the type of clothing and ornaments worn by the employees have a direct rela- tionship to production. Management on the spot must be allowed a reasonable discretion in guarding against defects in the product which might be caused by clothing or orna- ments. Here I think Gillespie was within the bounds of that discretion. He did not absolutely ban the wearing of the buttons. His restrictions permitted employees to continue wearing them if they were covered. I find they could have been covered by a transparent material and still have com- plied with his restrictions. In my view it is unwarranted to find unlawful a foreman's restrictions on use of a union button which has been demonstrated in the courtroom to be capable of causing picks in the hosiery produced. Whether Gillespie was entirely correct in his judgment that the buttons placed high on the body of the employee were nevertheless a hazard is an arguable matter. The hazard appears to have been greater in the case of Chatman than with the quality checkers because he had to get in and around the running machines which were using the fragile yarn and he also had to handle some hosiery. But even restrictions on the quality checkers were within the 347 foreman's legitimate discretion. Given the particular cir- cumstances here, to find that Gillespie committed an un- fair labor practice would be to second guess his judgment regarding the production of the product. I might reach a contrary result if the button involved were not so clearly demonstrated to be a potential hazard to the product. Compare Consolidated Casinos Corp. Saha- ra Division, 164 NLRB 950 (1967). If, as I find, the union buttons were a hazard to the product and Gillespie acted accordingly, it is immaterial that he failed to so act on all occasions, whether with respect to union buttons worn by employees other than the four involved here or with respect to other ornaments on clothing. Respondent's inefficiency on some occasions does not warrant a finding that occa- sions of efficiency amount to unfair labor practices even if some restriction of employee rights to propagandize is in- volved. I find that the risk to the product shown here are special circumstances which legitimize Gillespie's actions. C. The Alleged Discrimination The complaint alleges , and the answer admits , that on May 9 Respondent issued a written "final warning" to em- ployee Brenda Collins. The complaint further alleges, but the answer denies, that the warning was issued because of her union or concerted activities. 1. Collins' employment history and union activity Collins was hired on October 14, 1968. At the time of the events involved here she worked on the first shift as a pair- er of hose in the pairing department. She first involved herself in union activity on March 10 when she attended a mass meeting of employees. At that time she joined the in-plant organizing committee and thereafter endeavored to persuade other employees to execute union authoriza- tion cards. She talked about the Union to fellow employees in the plant. At times when she was not working she sta- tioned herself in the parking lot near her car (where she kept a supply of blank authorization cards) and tried to interest employees in signing them. She also passed out union handbills outside the plant. Her union activities were known to management. Respondent maintains a system for administering three types of discipline depending upon the gravity of the em- ployee offense. Minor derelictions such as unexcused ab- sences result only in oral reprimands. After two oral repri- mands the employee is given a written reprimand. More serious faults such as sleeping on the job result in a written reprimand for the first offense and in discharge on the sec- ond occasion. Company guidelines for the type of offenses within this category also include interfering with the work of others, abusive language to fellow employees, and threatening, intimidating, coercing, or interfering with fel- low employees on company premises. For even more seri- ous offenses employees are discharged on the first offense. Examples of offenses in the most serious category are fight- ing, abusive or profane language to supervision, and im- moral or indecent conduct. On May 9 Respondent issued a written reprimand to Collins. It was handed to her by her supervisor, George 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tucker. She refused to sign the reprimand. It reads in perti- nent part as follows: It was explained to Brenda Collins that she has been bothering and interfering with the work of other em- ployees while they were working. She was advised that any further occurrence of this nature that results in her neglecting her work or inter- fering with the work of others will result in her em- ployment being terminated. "THIS IS A FINAL WARNING." 2. The reasons for the reprimand to Collins Respondent asserts its reprimand to Collins was justified by her dealings with three fellow employees , Novella Ad- ams, Robert Zimmerman, and Larry Glenn, all of whom complained that she was bothering them. a. The incidents with Novella Adams As noted earlier herein Collins had on two occasions endeavored to interest Adams in the Union. On each occa- sion both were working. Collins on each occasion was at her work station pairing stockings . The evidence indicates that she could do this work while conversing with others. I find that on the two occasions when she solicited Adams, Collins did not interfere with her own work. On the other hand, Adams in the performance of her duties moved about from place to place and even from department to department. Her job classification was material handler in the pairing department. She generally used a handtruck in her work. In the course of her work she came into contact with many employees with whom she conversed. I find that she was not on a tight time schedule and that satisfactory performance of her duties permitted her to take a few min- utes from time to time for social conversation with fellow workers. I base this finding on uncontradicted testimony that on occasions she was asked to look up telephone num- bers or do other errands for employees required to stay at their work stations. On the first occasion which occurred in late March or early April, Adams in the course of her work came to the place where Collins and another employee were working. They had a short exchange of words and Adams moved on with no significant delay. On the second occasion which occurred 3 to 4 weeks later Adams was not passing imme- diately by Collins' work station but was in another aisle about 16 to 18 feet away from Collins. Collins called her over. Adams complied because she did not know what Col- lins wanted and it was not unusual for employees to make requests of her. Instead, Collins sought to interest Adams in signing a union card. Collins made comments about the pay and also urged Adams to sign a union card in the interest of a fellow employee present even if she was not interested for her own benefit. The evidence shows that on this occasion Adams was delayed a few minutes in contin- uing her further duties but that no adverse consequences resulted from her delay. She was, however, bothered by the conversations because she was not in favor of the Union and would have preferred that Collins not speak to her about it. It was after this that she had her annual interview with her foreman, George Tucker, detailed above . Some time after that Adams encountered Collins in the break area on which occasion Collins pointed to her and called her an obscene name. Adams then requested an interview with Plant Manager Warren who saw her at his convenience several days later. She reported to him on all three inci- dents and asked him if anything could be done about Col- lins conduct. b. The Zimmerman incidents Robert Zimmerman is employed in the service depart- ment. His duties include the hauling of waste material from the plant to a truck-trailer or dumpster in the parking lot. For this purpose he uses a handtruck which he pushes across the parking lot. On a number of occasions while he was thus working Collins, who had stationed herself in the parking lot near her car and was not working , tried to in- terest him in signing a union authorization card. She talked to Zimmerman several times even though he told her he did not want to sign a union card. He testified that about every time he went out the door she would be after him to sign. I find this was an impression of his because she obvi- ously was in the plant working during her shift. As noted earlier Collins kept a supply of blank authorization cards in her car in the parking lot. Part of her technique was to persuade employees to go over to her car to sign a card. Zimmerman testified that he never indicated to her that he was interested in signing a card or in going over to her car for that purpose. On one occasion on May 3, however, she succeeded in getting him to stop to talk with her. She tried to talk him into signing. Before talking to her he had stopped in line behind another employee with a truck to whom Collins was speaking . Zimmerman listened to what they were saying and then talked to Collins himself. He said he was not interested. The whole incident took be- tween 3 and 5 minutes during which he was not continuing with his work. Zimmerman reported Collins' efforts to talk with him to his superior, Harold McCulloch, complaining that he was getting tired of it. He asked McCulloch to have it stopped. McCulloch said he would see what he could do. Later, a Mr. Williams from Respondent's personnel office took a written statement on the matter from Zimmerman. It was this statement that was handed to Plant Manager Warren and which in part formed the basis for his discipline of Collins. c. The incident involving Larry Glenn Larry Glenn is also a service department employee whose duties include pushing a waste truck across the parking lot from plant to dumpster. Some time in early May, Glenn and fellow employee Roosevelt "Poochy" Harrison (who was not a witness), were pushing waste handtrucks across the parking lot when Collins called to them asking, "How about you all?" Harri- son responded, "There's no way you're gonna get me in the HANES HOSIERY, INC. car." I find that Collins was speaking to both Harrison and Glenn. Glenn was under the impression that she was talking to him. Glenn testified that Collins asked him if he wanted to sign a union card. He said he was not interested. She told him she would see him another day. It is not clear whether this was on the occasion when he was with Harrison or on another occasion. On cross-examination he was asked, "You did think, when Brenda Collins, this nice-looking lady, asked you to get in the car with her, that was serious enough to complain to the Company? Is that correct?" He answered, "That's right." He was then asked directly, "she asked you to get into the car with her?" He answered, "Yes, She asked me to get in there, so I could sign a union card." It should be noted here that Collins is a well endowed young adult female Caucasian. During her testimony she gave the impression she was no shrinking violet. Glenn is a 20-year-old male Black. During his testimony he gave the impression of being a somewhat timid person. When Glenn was asked if he had other encounters with Collins, he testi- fied as follows, "Well, when I go in the breakroom, she give them eyes. Looking." When asked what he meant by this, he explained, "Looking me right hard with her eyes." He also testified, "One day, she asked me did I look like I was dead." Glenn also reported to McCulloch that Collins was both- ering him in his work. As a result Williams took a state- ment from him which was transmitted to Plant Manager Warren. After receiving the reports from Zimmerman and Glenn, Warren instituted the discipline against Collins. But he did not investigate to find out her version of the events report- ed. He had Tucker deliver the reprimand to her but she had no opportunity to make a defense. She inquired of Tucker about who had made the complaints. He refused to tell her saying only that employees had complained about her. In explaining his decision Warren testified, "I looked at the three major complaints in front of me. And I felt that this was serious. I considered the fact that Brenda had worked there for 4 or 5 years, and that her work record was not that bad. And that I felt a written warning would cor- rect the situation to the point that we didn't have to termi- nate her." 3. Discussion It is significant that Warren did not take action based on the reports from Adams alone. At that point Collins' con- duct was not sufficiently serious to precipitate action by Warren. The written warning of May 9 makes no reference to her use of abusive language. So far as she knew that was not in the picture. Although Respondent made no oral ar- gument and filed no brief, Warren's position at the hearing appeared to be that another element, abusive language, was also a reason justifying the reprimand. Warren's solici- tude for the feelings of Adams in not referring to Collins' use of abusive language, which was already public knowl- edge, does not ring true. If her vulgarity had been a signifi- cant consideration, he would have taken action immedi- 349 ately. In view of his delay, I think Respondent must be taken at its written word as contained in the written repri- mand as to the reasons for the discipline. The important language in the reprimand is, "that she has been bothering and interfering with the work of other employees while they were working." Considering first the matter of interfering with the work of others, I find there is insufficient evidence of real interference with work to war- rant Respondent in limiting the statutory right to organize. See N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1965); Daylir, Inc., 198 NLRB 231 (1972). The evidence shows some short delay of employees while working but does not show that it made any difference in the produc- tion process. Thus, the first time Collins spoke to Adams there was no significant delay at all; on the second occa- sion there was a few moments' dalay. Given the nature of Adams' work and the fact that frequent minor delays for other reasons were allowed, I find that the delay which Collins caused her was of no consequence to her job func- tion. Zimmerman was also delayed but the bulk of his delay was caused by the fact that he was waiting behind another employee who was in front of him and who was talking to Collins. It does not appear that anything kept him in line or prevented him from going around the employees in front of him. Nor does it appear what Collins and the em- ployees in front were talking about. That employee made no complaint about Collins. Zimmerman made no com- plaint about the person in front of him. Even assuming that it all involved the Union, there is no concrete evidence that the work of Zimmerman or of Glenn in disposing of waste, or any of their other duties, was measurably impaired by Collins' solicitations. With respect to Glenn, his testimony indicates that she called across the parking lot to him. The evidence does not indicate that at any time that she spoke with him a signifi- cant amount of time was taken away from his performance of his duties. Considering the testimony of Adams, Zimmerman, Glenn, Tucker, and Warren, I find that the reason the three employees complained about Collins was that they were personally opposed to the Union and annoyed that she was pressing them to declare themselves in favor of the Union. In addition, of course, Adams complained about the abusive epithet in the break area. But, as noted earlier, that was excluded from the written reprimand. Turning next to the matter of "bothering" other employ- ees, I find that the written reprimand is ambiguous in that it is not clear whether bothering means bothering employ- ees in their work or bothering them personally. With the possible exception of the name-calling incident in the break area, no record evidence suggests that Collins' union activity caused a discipline problem. As noted earlier, her name calling did not precipitate her discipline nor was it included in the written reprimand. Bothering employees in their work is equivalent to interfering with them in their work. Interference with work is discussed above. Respon- dent apparently takes the position that employees who are personally bothered or upset inevitably will be affected ad- versely in the performance of their work. This is not an irrational position for a manager to take in the operation of 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a plant but I find it is not a defense to a charge that an employer has unlawfully limited the exercise of employees' statutory rights. Warren testified that he held that view. But this is a generalization . Absent proof of actual effect on work, I find such justification insufficient reason to lim- it employee rights to discuss the Union. This is not to say that an employer does not have an interest in, and a right to control, the production process as well as the circum- stances of employment which affect employee morale. But the right of employees to discuss unionism , pro or con, necessitates that the exercise of those rights not be limited to situations where participants are in agreement. Dis- agreement is a normal part of discussion . Annoyance to some on some occasions is unavoidable. In a plant as large as the one involved here there inevitably will be some em- ployees personally annoyed by persistent pro or antiunion proselytizing. Those so annoyed have no individual right under the Act to handcuff the free speech of others with whom they do not agree. They do not acquire such rights by asking management to act as their surrogate. And ab- sent some concrete showing that discussion about union- ism meaningfully affects the production process, manage- ment has no such right. No such showing is made here. The showing is that the three complaining employees were up- set by Collins' proselytizing. But there is no showing that this really affected the work. With respect to Glenn there are racial and Freudian ov- ertones that are troublesome . Assuming, without finding, that he was deeply troubled by Collins' forwardness, it still must be recognized that this is the world in which he lives. As already noted, there is no evidence that his work was actually affected. If management was protecting his stan- dard of values, it was not entitled to do so at the expense of rights guaranteed by Section 7. Even though management acted on the complaint of em- ployees, it ended up limiting solicitations on behalf of the Union while permitting all other manner of solicitations, the only difference being that the three employees had complained about the union solicitations. That is not enough to legitimize the discipline of Collins . The net ef- fect was that in Collins' case Respondent banned union solicitations, which were not shown to have actually im- peded work, while allowing others. The language of her written reprimand tracks rule 17, the no-solicitation rule. I find that it was a discriminatory application of that rule in violation of Section 8(a)(1) and (3) of the Act. I find also that Respondent disciplined Collins because of her union activity and that this action tended to discourage member- ship in the Union. For this reason also the reprimand was an unfair labor practice prohibited by Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By applying its no-solicitation rule in a discriminatory manner to the union activity of employee Brenda Collins, Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has committed, and is committing , unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By issuing a final warning in writing to employee Brenda Collins, Respondent discriminated in regard to her hire or tenure of employment thereby discouraging mem- bership in a labor organization, the thereby violated, and is violating, Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the poli- cies of the Act. I recommend that Respondent be ordered to expunge from its records the final warning in writing issued to employee Brenda Collins on May 9, 1974, and that it advise Brenda Collins of such action in writing. I further recommend that Respondent post appropriate no- tices at its premises. [Recommended Order omitted from publication.]