Ithaca Industries, Inc.

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