La-Z-Boy Midwest

National Labor Relations Board - Board Decisions

Mar 22, 1979

241 N.L.R.B. 334 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
La-Z-Boy Midwest, a subsidiary of La-Z-Boy Chair
Company and United Furniture Workers of Amer-
ica, AFL-CIO, Petitioner. Case 17-RC-8427
March 22, 1979
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELILO
On June 6, 1978, the acting Regional Director for
Region 17 issued his Report on Objections in which
he recommended overruling in their entirety the Peti-
tioner's three objections to the February 9, 1978, elec-
tion.' Thereafter, Petitioner filed timely exceptions to
the report and the Employer filed a brief in answer to
Petitioner's exceptions.
On August 25, 1978, the Board issued its Decision
and Order Directing Hearing in which it adopted the
acting Regional Director's recommendation to over-
rule Objections I and 3, and one allegation of Objec-
tion 2 involving conduct of Supervisor Harold Cook.
However, the Board directed a hearing to resolve fac-
tual issues raised by the conduct of Supervisors Kern,
Matters, Brooks, and Macklin alleged in Objection 2.2
Pursuant to the Board's direction, a hearing was
held on September 21 and 22, 1978, before Hearing
Officer James R. Waers. On October 13, 1978, the
Hearing Officer issued and served on the parties his
report recommending that the Board overrule Peti-
tioner's Objection 2 in its entirety and that a certifica-
tion of results issue based on the election outcome as
reflected by the tally of ballots. Thereafter, Petitioner
filed timely exceptions to the Hearing Officer's report,
and the Employer filed a reply 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.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 248 for, and 288 against, the Peti-
tioner; there were 3 challenged ballots, an insufficient number to affect the
results of the election.
2 In recommending that Objection 2 be overruled in its entirety, the Acting
Regional Director found the conduct alleged therein "technically objection-
able" but concluded such conduct was not "sufficient to materially interfere
with the holding of a fair and free election."
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truck drivers and leadmen, employed by
La-Z-Boy Midwest, a subsidiary of La-Z-Boy
Chair Company, at its plant located on Howard
Bush Drive, Neosho, Missouri, EXCLUDING
office clerical employees, professional employees,
technical employees, guards, and supervisors as
defined in the Act, and all other employees.
5. The Board has considered the objections, the
Hearing Officer's report,3 the exceptions. 4 and briefs
and hereby adopts the report only to the extent con-
sistent herewith.5
In its Objection 2 Petitioner alleged that several
supervisors engaged in repeated interrogation of and
threats to numerous employees during worktime on
or about February 8 and 9, 1978.
With respect to the allegations of Objection 2 con-
cerning the conduct of Supervisor Matters, the Hear-
ing Officer found that a night or two before the elec-
tion Matters, in reply to an inquiry from employee
Curtis Tanner concerning an upcoming wage in-
crease, remarked that the Employer could not grant
the wage increase until after the election and, "ltjust
all depends on how the election goes." Matters fur-
ther stated that if the Union won the election the raise
would have to be negotiated. The Hearing Officer
noted that Matters, whose testimony was discredited
where inconsistent with Tanner's recollection, con-
ceded on cross-examination that he had discussed the
matter of wages with all other employees (approxi-
mately 15 to 20) who were under his supervision prior
to the election. Nonetheless, based on his finding that
past yearly wage increases were given in late Febru-
ary or early March, the Hearing Officer concluded
that Matters' statement that the raise could not be
given prior to the February 9 election amounted to an
On October 2. 1978, the Employer filed with the Hearing Officer a "Post-
Hearing Motion to Hearing Officer to Correct Discrepancies in the Tran-
script." In the absence of any opposition to the motion we grant the motion
and correct the record accordingly.
I In its brief the Employer moved the Board to dismiss the allegations of
Objection 2 concerning conduct of Supervisors Kern and Hood based on the
contention that the Board lacked jurisdiction to consider further these allega-
tions because the Petitioner did not specifically refer to Kern and Hood in its
exceptions to the report on Objections. Contrary to the Employer, and in
agreement with the Heanng Officer's ruling on a similar motion made at the
hearing, we conclude that Petitioner's specific reference to Objection 2 in its
exceptions to the Regional Director's report was sufficient to present all of
Objection 2 for review. Accordingly, the Employer's motion is denied.
I In agreeing with his colleagues that the election should be set aside,
Member Penello relies only on that part of Objection 2 concerning state-
ments made by Supervisors Hood and Kern.
241 NLRB No. 46
334
LA-Z-BOY MIDWEST
accurate reflection of relevant legal principles and
therefore was not a basis for setting aside the election.
The Hearing Officer also recommended overruling
the allegations of Objection 2 concerning the conduct
of Supervisors Kern and Hood. In brief, the Hearing
Officer found that some time during the first 2 weeks
of January 1978 Kern approached employee Straight
and told him that he, Kern, would bend the rules a
little but, if the Union got in he would "have to go
strictly by the book." Thereafter, I or 2 days before
the election, in response to a question from employee
Fletcher concerning the possibility of probationary
employees being "written up" for failing to meet pro-
duction standards, Kern stated that as long as the
Company stayed the way it was he could bend the
rules a little, but if it became a union plant the rules
would not be bent and they would "go by the book."
The Hearing Officer further found that immediately
before the election Straight and Fletcher discussed
Kern's comments about "going by the book."
As for Supervisor Hood's conduct, the Hearing Of-
ficer credited testimony that the day before the elec-
tion Hood approached employee Sigars, asked for
Sigars' support for the Employer in the upcoming
election, asked Sigars what she thought of La-Z-Boy
as a place to work, and when Sigars remarked that a
union could help to make changes, responded that
La-Z-Boy had been "good" to Sigars in giving her
only a 5-day suspension for insubordination some 2
years earlier.
The Hearing Officer recommended overruling the
allegations concerning Supervisors Matters, Kern,
and Hood based on his conclusion that nothing in the
statements attributed to these supervisors was coer-
cive, that the statements made by them generally
were in response to inquiries by employees, and that,
in any event, their conduct was so isolated as not to
have had an appreciable impact on employees' free
choice in the election.
Contrary to the Hearing Officer, we conclude that
the conduct described above warrants setting aside
the February 9 election and directing a second elec-
tion. In the first place, we find that Supervisor Mat-
ters engaged in objectionable conduct by linking de-
lay in implementation of the regular wage increase to
the Union's presence and, specifically, to the outcome
of the election. Moreover, Matters raised the possibil-
ity that the raise might well be forfeited entirely if the
Union won the election and was in a position to nego-
tiate. Cf. Russell Stover Candies, Inc., 221 NLRB 441
(1975); KDEN Broadcasting Company, a wholly owned
subsidiary of North American Broadcasting Company,
Inc.. 225 NLRB 25 (1976).
We also find that Supervisors Kern and Hood en-
gaged in objectionable conduct. In this connection we
conclude that Kern's statements to two employees
during separate conversations constituted threats to
apply more stringent work rules in the event employ-
ees exercised their Section 7 right to select union rep-
resentation. We have held repeatedly that such
threats warrant setting aside an election. See Super
Thrift Markets, Inc. t/a Enola Super Thrift, 233
NLRB 409 (1977); Vincent's Steak House, Inc., 216
NLRB 647 (1975). Finally, we conclude, contrary to
the Hearing Officer, that Supervisor Hood's exchange
with Sigars on the eve of the election, when viewed as
a whole, was coercive and constituted objectionable
conduct. In so doing we note that the conversation
was initiated by Hood and amounted to an effort to
elicit Sigars' view concerning the election. Moreover,
we find that Hood's abrupt interjection of the prior
disciplinary measures taken against Sigars, coupled
with her observation that the Employer in that in-
stance had been "lenient" in its treatment of Sigars,
may fairly have been understood in the context of the
conversation as a veiled threat.6
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
6 We find unpersuasive the Heanng Officer's suggestion that the conduct
alleged and found here was so isolated that it was not likely to have had an
impact on the election results. Obviously, matters such as the pendency of
wage increases and the possibility of more stringent application of work rules
are of general concern to all employees and are likely to be the topic of
general "discussion and repetition among the electorate." Standard Knitting
Mills, Inc., 172 NLRB 1122 (1968). The record here contains testimony that
just such discussion of the wage and work rule issues took place.
335