La-Z-Boy Tennessee

National Labor Relations Board - Board Decisions

Dec 16, 1977

233 N.L.R.B. 1255 (N.L.R.B. 1977)

LA-Z-BOY TENNESSEE
La-Z-Boy Tennessee and United Furniture Workers
of America, AFL-CIO. Cases 10-CA-11706, 10-
CA-11801, 10-CA-11831, 10-CA-11844, and 10-
CA-11953
December 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 13, 1977, Administrative Law Judge
Joseph L. Battle issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge,1 to
modify his remedy so that interest is computed as set
forth in Florida Steel Corporation, 231 NLRB 651
(1977),2 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, La-Z-Boy Ten-
nessee, Dayton, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
MEMBER MURPHY, concurring in part:
While I agree with my colleagues that the Adminis-
trative Law Judge correctly concluded that Respon-
dent's failure and refusal to rehire Ferrell Hensley
violated Section 8(a)(3) and (1) of the Act, I do so
only on the grounds that Respondent engaged in
such unlawful conduct within the 6-month limitation
period of Section 10(b) of the Act.
As indicated in footnote I, supra, Vice President
Cammenga, during one of his conversations with
Hensley, berated Hensley for the union activities of
Hensley and his wife Leona. During a subsequent
t we agree with the Administrative Law Judge that Respondent's refusal
to rehire Ferrell Hensley was a continuing violation of the Act. In addition,
however, with regard to the 6-month limitation of Sec. 10(b) of the Act, the
record shows that Leona Hensley's activities on behalf of the Union did not
start until August 1975, when she rode around with the union organizer.
Obviously, it was this conduct, well within the 10(b) period, that Vice
President Cammenga referred to when he thereafter berated Ferrell Hensley
for the prounion activities of his wife. The actual date of the unlawful refusal
to rehire can be ascertained at the compliance stage of these proceedings by
233 NLRB No. 185
telephone conversation Cammenga told Hensley, "If
you want a job, you go see [a union organizer] and
see if he can't give you one."
Leona Hensley testified that her union activities
(including certain incidents regarding which Cam-
menga specifically berated her husband) did not
begin until August 1975, which was well within the
10(b) period.3 Ferrell Hensley, on the other hand,
testified only that his conversations with Respondent
occurred in the summer of 1975. The Administrative
Law Judge apparently failed to note that Leona
Hensley's testimony makes it clear that her hus-
band's conversations with Cammenga must have
occurred after her union activities began in August
1975. Rather, the Administrative Law Judge conced-
ed in his Decision that these conversations may have
occurred prior to July 5. However, on the theory that
Respondent treated Ferrell Hensley's application for
employment as a continuing one, the Administrative
Law Judge (assuming arguendo that all of Respon-
dent's conduct was outside the statutory period)
found that Respondent's refusal to rehire Hensley
was a "continuing violation" of Section 8(a)(3) and
(I) of the Act. And although my colleagues cite the
evidence that places Respondent's conduct within
the 10(b) period, they also explicitly adopt the
Administrative Law Judge's continuing violation
theory.
I would disavow that theory for two reasons. First,
inasmuch as Respondent's unlawful conduct clearly
occurred within the limitations period, it is unneces-
sary, and indeed, superfluous, to say that the
violation was a continuing one. But second, and
more important, that theory is inapplicable to the
facts of this case.
Thus, the Administrative Law Judge in his Deci-
sion was willing to assume that all of Cammenga's
statements to Hensley occurred before July 5.
However, the Administrative Law Judge failed to
find either that Hensley applied for a job or that
Respondent refused to hire him after July 5.
Therefore, the Administrative Law Judge's finding
that Respondent's failure to rehire Hensley after July
5 was unlawful depends solely on the presumed
illegality of conduct which the Administrative Law
Judge conceded may have occurred prior to that
date. As the Board stated in North Bros. Ford, Inc.,
220 NLRB 1021 (1975):
determining when a job which Hensley was capable of performing became
available. In the absence of exceptions, we adopt, pro forma, the
Administrative Law Judge's failure to find Cammenga's statement violative
of Sec. 8(a)(l) of the Act. See fn. I of the Administrative Law Judge's
Decision.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3 Conduct occurring prior to July 5, 1975., would be outside the 10(b)
period herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 10(b) of the Act confines the issuance
of unfair labor practice complaints to events
occurring during the 6 months immediately
preceding the filing of a charge and has been
interpreted by the Supreme Court to bar finding
any unfair labor practice, even though committed
within that period, which turns on whether or not
events outside that period violated the Act.4
Accordingly, although I agree that Respondent
unlawfully refused to rehire Ferrell Hensley, I would
disavow the continuing violation rationale of the
Administrative Law Judge. In all other respects, I
would adopt his Decision.
4 Citing Bryan Manufacturing Co., 362 U.S. 411 (1960).
DECISION
STATEMENT OF THE CASE
JOSEPH L. BATTLE, Administrative Law Judge: This case
was heard before me at Dayton, Tennessee, on August 3-5,
1976, upon a consolidated complaint issued by the General
Counsel of the National Labor Relations Board and an
answer filed by La-Z-Boy Tennessee, hereinafter called the
Respondent. The issues raised by the pleadings relate to
whether or not the Respondent (1) violated Section 8(a)(1)
of the National Labor Relations Act, as amended, by
interrogating some of its employees and (2) violated
Section 8(a)(3) of the Act by (a) refusing to rehire Ferrell
Hensley and Freddy Johnson, (b) reprimanding Leona
Hensley and discharging her, (c) reprimanding, imposing
onerous working conditions upon, and transferring Bill
Ronald Scott, and (d) discharging Betty Jo McClendon.
Briefs have been received from the General Counsel and
the Respondent and have been duly considered. For the
reasons which follow, I find that the General Counsel has
met its burden of proof as to all of the alleged violations
except some of the allegations relating to the Respondent's
interrogation of its employees and the allegation which
relates to a warning given to Scott.
Upon the entire record in this proceeding and having
observed the testimony and demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
The consolidated complaint alleges, the answer admits,
and I find that the Respondent is engaged in the
manufacture and sale of upholstered chairs; its sales and
shipment of finished products in interstate commerce are
sufficient to satisfy the Board's standard for the assertion
of jurisdiction; the Respondent is an Employer within the
meaning of the Act; and the United Furniture Workers of
America, AFL-CIO (hereinafter called the Union), is a
labor organization within the meaning of the Act.
1. Section 8(a)(1) violations
In January 1975, Respondent's supervisor, Stanley
Worthington, asked employee Joel Yearwood at work if he
were going to attend a union meeting scheduled for that
evening. Yearwood replied, "Yeah, the way La-Z-Boy done
me." Worthington then asked if 'fearwood had any
complaints or suggestions to make things better. When
Yearwood replied that he had none, the conversation
ended. Despite the Respondent's contention to the con-
trary, I find that this conduct on the part of the
Respondent's supervisor constituted unlawful interrogation
of an employee as to his union activities. In this regard, I
note that the supervisor's question was asked without a
legitimate reason and without assurance of nonreprisal.
The natural consequence of such interrogation is to
restrain or coerce or interfere with an employee's Section 7
rights. Accordingly, I find that the questioning of employee
Yearwood by Supervisor Worthington violated Section
8(a)(l) of the Act.
During the evening of February 19, 1976, employee
David Lee Tankersly sought from his supervisor, David
Edwards, the Respondent's view of the Union. Later the
same evening, on a separate occasion, Supervisor Edwards
asked employee Tankersly if he were going to the union
meeting scheduled for that evening. When Tankersly
indicated that he was planning to attend, Edwards asked
him "if I would bring just some of the information and the
viewpoints of the union back to him. Fie said to compare
them." Tankersly did so the next day. The Respondent
notes that, in the "two" discussions with Supervisor
Edwards, employee Tankersly brought up the subject of
the Union and sought Supervisor Edwards' advice. In fact,
there were three conversations and, in the second conversa-
tion, unlawful interrogation occurred. Thus, the interroga-
tion by Supervisor Edwards as to whether employee
Tankersly planned to attend the union meeting, coupled
with the request by Supervisor Edwards that employee
Tankersly bring back "some of the inibrmation and the
viewpoints of the Union," amount to more than prepara-
tion by the Respondent's supervisor to debate with the
Respondent's employees about the advantages or disad-
vantages of the Union. In the absence of any assurance by
Supervisor Edwards against reprisal if employee Tankersly
did not attend the meeting or report back as requested, it
appears that the questions of Supervisor Edwards placed
employee Tankersly in the position of acting as an
informer, rather than as a debater, regarding "some of the
information and the viewpoints of the Union." In these
circumstances, I conclude that the second conversation
between Supervisor Edwards and employee Tankersly
constituted unlawful interrogation in violation of Section
8(a)(l) of the Act.
2. Section 8(a)(3) violations
a. Ferrell Hensley
Alleged discriminatee Ferrell Hensley worked for the
Respondent for about a year from 1973 to 1974. Prior to an
election which was held in June 1974, Hensley wore a
company campaign button. After Respondent Vice Presi-
dent Cammenga complimented him for wearing it, he also
began wearing a union button. In addition, Hensley signed
a union authorization card, obtained other signatures,
distributed leaflets, and attended union meetings. On one
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LA-Z-BOY TENNESSEE
occasion, he was telephoned by Vice President Cammenga
who asked him "what I was doing with them kind of people
in my house, them Union people." When Hensley asked to
be off one evening to take his child to an out-of-town
hospital, he was warned by his supervisor that he would be
given a 3-day layoff. In Hensley's words, "they give me a
little harassment." Shortly thereafter, he quit. Subsequent-
ly, on several occasions, he performed work for Cammenga
on a casual basis.
Sometime in the summer of 1975, during a new
organizing effort by the Union, Respondent's personnel
manager, Kelly, telephoned Hensley and "said he wanted
to talk to me in his office about coming back to work," that
"they was starting to set up the second shift." When
Hensley arrived, Kelly "started talking to me about a job
on the second shift. . . and asked me what kind of job I'd
like to have ... but he said they wasn't going to get started
right away with the second shift, and . . . he asked me
about the Union." Kelly asked Hensley which of two union
organizers was the smartest and why the Union had not
put out as many leaflets during the current organizing
campaign. Kelly also stated that he did not think the
Union had the necessary number of signed cards to obtain
an election. After Hensley replied, Kelly "said if he gave
me a job - he said that he figured that would be one vote
against the Company." However, at the conclusion of the
conversation, Kelly thanked Hensley and told him "I
believe I'll have a job for you in a day or two." On another
occasion, Hensley telephoned Vice President Cammenga
who invited Hensley to come to his house to talk with him.
In their conversation, Cammenga told Hensley he "had no
business riding with [a union organizer], me or my wife,
and going to no Union meetings." When Hensley asked
Cammenga for a job, Cammenga asked if the varicose
veins in Hensley's leg were still giving him trouble and
Hensley replied that, if he moved around, his leg was all
right. Cammenga then suggested that Hensley could
bandage his leg and Hensley agreed. But then Cammenga
told Hensley that "you've got no business fooling around
that Union, and you've got no business going to them
Union meetings." When Hensley left, he thought he was
going to get a job. However, after subsequent telephone
conversations, Cammenga finally told Hensley "if you
want a job, you go see [a union organizer] and see if he
can't give you one." In addition to the above, Hensley
further testified that he was able to work at the time of his
conversations with Kelly and Cammenga and that, at the
time of the hearing, he was weighing tomatoes, working a
12-hour day, 7 days a week.
It is clear from the foregoing that Hensley participated
actively in each of the Union's campaigns of 1974 and 1975
and that the Respondent was aware of his union activity.
As to the reason why the Respondent refused to hire
Hensley when he sought reemployment, the Respondent
contends that Hensley was an incompetent employee who
was initially hired because of his need rather than because
of his ability. Yet his ability was sufficient for him to retain
The aforesaid questions and statements by Kelly and Cammenga
during the summer of 1975, or on occasions of unknown dates, constitute
conduct prohibited by Sec. 8(a)l) of the Act. However, the General
Counsel has failed to prove that such conduct occurred within the statute of
employment with the Respondent until he quit. Conceiv-
ably, if Hensley were as incompetent as the Respondent
contends, he would have been terminated for lack of
competency. Instead, Respondent continued to employ
Hensley and thereby indicated its satisfaction with his
work. In these circumstances, I reject the Respondent's
contention that Hensley was not rehired because he was
incompetent as an employee. As to Hensley's physical
condition, apparently he is able to control his problem of
varicose veins by moving around or, as Cammenga
suggested, by bandaging his leg. Whatever physical
problem he may have had has not prevented him from
working under arduous circumstances for another employ-
er. In any event, his problem of varicose veins was never
mentioned to him as a reason for the Respondent's refusal
to rehire him.
Nor does it appear that the Respondent even mentioned
to him its concern about his alleged attempts to serve both
the Respondent and the Union as a double agent. Instead,
when Hensley applied for reemployment, both Kelly and
Cammenga discussed the Union with him and encouraged
Hensley concerning the prospect of a job for him with the
Respondent. From this it appears that Respondent was not
indicating its concern to Hensley as to its potential liability
for employing him as a spy. Instead, the Respondent was
encouraging Hensley in his application for reemployment
in an attempt to gather information concerning the Union.
In these circumstances, the Respondent's alleged concern
for employing a double agent appears to be a pretextual
reason for its refusal to reemploy Hensley.
Lastly, the Respondent contends that Hensley's conver-
sation with Kelly is the only evidence adduced concerning
the Respondent's refusal to rehire Hensley and that the
General Counsel has not shown that such conversation
occurred within the statute of limitations set forth in
Section 10(b) of the Act. In this regard, the charge
concerning Hensley was filed on January 5, 1976, so that
General Counsel must show that the Respondent's refusal
to rehire Hensley was continuing on July 5, 1976, or
thereafter. Under the evidence presented, it is possible that
the Kelly-Hensley interview during the summer of 1975
occurred prior to July 5, 1976, the earliest date within the
statute of limitations. It is also possible that Hensley's
conversation with Cammenga at his house and on the
telephone occurred prior to the Section 10(b) period.' If
such were the case, the particular refusals to rehire Hensley
on these several occasions could not be remedied because
of the statute of limitations. But the refusals to rehire are
evidence of a continuing course of conduct (an unlawful
refusal to rehire) on the part of the Respondent, which is
presumed to continue in the absence of evidence showing
that a change has occurred. Cf. Winn Dixie Stores, Inc., 206
NLRB 777, 778 (1973). And no such evidence of a change
on the part of the Respondent has been presented.
Moreover, in the circumstances in this case, it appears that
Kelly and Hensley treated Hensley's application for
employment as a continuing one despite the fact that the
limitations of Sec. 10(b) of the Act. Accordingly, such conduct is considered
only as background evidence of the Respondent's union animus rather than
as separate violations of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's promises of employment for Hensley were
subsequently unfulfilled. Cf. N.L.R.B. v. Albritton Engi-
neering Corp., 340 F.2d 281, 285 (C.A. 5, 1965), cert. denied
382 U.S. 815 (1965), enfg. in pertinent part 138 NLRB 940
(1962).
In these circumstances, and based upon all of the
foregoing, I conclude that, by continuing to refuse to rehire
Hensley for discriminatory reasons, the Respondent,
within the 10(b) period, from July 5, 1975, forward,
violated Section 8(a)(3) and (1) of the Act each time it
bypassed for discriminatory reasons Hensley's applica-
tion.2
b. Freddy Johnson
Alleged discriminatee Freddy Johnson worked for the
Respondent from March 4 to July 22, 1974. At the time of
an election which was held in June 1974, Johnson was a
known union adherent. Subsequent to the election, he quit
after being told by his immediate supervisor that Johnson
had "no more use" to wear his union T-shirt and that
"there would be someone over [his] back at all times."
When Johnson quit, Respondent's personnel manager,
Kelly, filled out a termination report indicating that he
would not recommend that Johnson be rehired. Johnson's
quality of work, effort, and quantity of work were rated
"fair" and his cooperation, attendance, and adherence to
rules were rated "poor." Kelly acknowledged that John-
son's termination report was converted from a form used
for 30-day progress reports on probationary employees,
that the report was "a record I made for my personal use
which is made on every employee who leaves La-Z-Boy
exactly the same way," and that he had no other form for
this type situation. However, regular "Termination Notice"
forms were introduced into evidence concerning employee
Linda Grubbs and alleged discriminatee Betty Jo McClen-
don, both of whom also quit. No marked up converted
forms were introduced as to them, nor as to alleged
discriminatee Bill Ronald Scott who also quit his job with
the Respondent. The regular termination notice forms do
not have boxes to check to indicate whether an employee is
rated good, fair, or poor as to various factors. In any event,
during the time he was employed, Johnson's foreman told
him that he was "doing a good job" and that the foreman
and a supervisor were "proud of" Johnson's work.
On March 31, 1975, Johnson talked with Kelly concern-
ing reemployment and he filed a written application for
employment with the Respondent. He was told that the
Respondent was not hiring. On June 6, 1975, after Johnson
was unable to see Kelly, Johnson pushed the door to
Kelly's secretary's office "wide open," and "slammed it
back . . . like he was really upset and angry." On
numerous occasions Johnson called Kelly and told him
that he needed help, was out of work, his wife was hungry,
and his family did not have any money. Johnson also told
Kelly "well, I could help you, you know, with the Union"
and "I'll do anything," which Kelly interpreted to mean
that Johnson would serve as a spy for the Respondent in
return for a job. In June 1975, Johnson telephoned Kelly,
2 The determination of the particular dates upon which Hensley's
application was bypassed is a matter for the compliance stage of this
proceeding.
seeking employment. According to Kelly, Johnson was told
that he would not be rehired and that the decision was
final. Kelly testified that his decision was based upon
Johnson's conduct in leaving the office of Kelly's secretary
and because Kelly wanted to hire a smarter person whose
work performance would be better than Johnson's. John-
son was not told of Kelly's reasons for Kelly's refusal to
reemploy him. When Kelly refused Johnson's application,
Johnson remarked, "Well, you have two children, don't
you?" Kelly interpreted this as a threat and telephoned the
local police and sheriffs department to tell them that "if I
drag his dead ass down there, I want you to know that he
was messing around my house with my kids." At the time
of the alleged threat, three employees were in Kelly's office.
Kelly testified that the alleged threat occurred sometime in
June because one of the three employees who were in the
office at the time worked her last day for the Respondent
on June 17, 1975. According to Kelly, he did not talk with
Johnson again after the conversation in which the alleged
threat occurred. Johnson derlied that he ever talked with
Kelly by telephone or that the foregoing threat occurred.
Johnson again applied for employment by filing a
written application with Kelly in July 1975. On this
occasion he was told that the Respondent would "keep him
in mind." When he was not rehired, he again sought
employment on October 6, 1975, and was told by Kelly
that the Respondent would "look around in the wood room
and see if they would have [him] back." On October 13,
1975, Johnson returned and was told by Kelly that "he
wasn't going to put me back to work," that "if I hired you
back again, you would vote for [the Union] again, and
therefore, it would be like me voting for the Union."
Johnson testified that he was sure of the specific dates on
which he applied for employment because he marked them
on his calendar after each occasion, except the July
occasion when he thought that he would be rehired. During
September and October 1975, the Respondent sought
production employees through newspaper ads and produc-
tion employees other than Johnson were hired.
The Respondent contends that its only refusal to rehire
Johnson occurred, if at all, in June 1975, more than 6
months prior to March 3, 1976, the date on which the
charge as to Johnson was filed. But Johnson testified that
his conversation with Kelly occurred on October 13, 1975,
at a time within the statute of limitations set forth in
Section 10(b) of the Act. In this regard, I discredit Kelly's
testimony that the last time he talked with Johnson was in
June 1975. Kelly testified that he could not remember
every termination meeting. It is just as likely that he could
not remember every employment interview. Having ob-
served Johnson's demeanor, I credit his testimony that he
circled specific dates on his calendar after meetings with
Kelly and that October 13, 1975, was one of the dates.
Given the dire economic circumstances of Johnson, it is
likely that he would make note of the occasions on which
he met with Kelly so that he could pursue his applications
for employment in the event he heard nothing from the
Respondent.
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LA-Z-BOY TENNESSEE
As a part of the Respondent's argument based upon
Section 10(b) of the Act, it could be said that Kelly would
not logically talk with Johnson in July or October after
Johnson had "threatened" Kelly's children in June of the
same year. But Johnson's words, "Well, you have two
children, don't you?" are ambiguous. In any event, Kelly
could not reasonably construe the words to be a threat in
light of his knowledge of Johnson's expressed desire to
provide an income for his wife and children. Moreover, in
testifying, Kelly impressed me as a take-charge, aggressive,
and athletic individual who would not be bothered with
words such as those spoken by Johnson. Indeed, Kelly's
contact with the police and sheriffs department seems not
to have been made as a result of fear, but rather out of a
desire to establish a defense in the event Kelly "drag[ged
Johnson's] dead ass down there." In these circumstances, I
conclude that the words spoken by Johnson in June would
give Kelly no reason to refuse to talk with Johnson in July
or October 1975. One matter remaining concerning
Johnson's alleged threat concerns the issue of whether such
alleged misconduct would disqualify Johnson from reem-
ployment with the Respondent. In light of the fact that
Johnson's words were ambiguous and did not, in fact,
constitute a threat, I conclude that the General Counsel
has met its burden of rebutting the contention of the
Respondent that Kelly believed in "good faith" that a
threat had occurred. In these circumstances, I conclude
that the alleged threat cannot serve as a defense to
Johnson's charge of discrimination. Cf. Moore Business
Forms, Inc., 224 NLRB 393, 398 (1976), "Dorris Junior
Payne"; Rubin Bros. Footwear, Inc., 99 NLRB 610, 611
(1952).
Likewise, I find that Johnson's alleged offers to serve as a
spy for the Respondent are based on statements which, if
made at all, are ambiguous. In any event, I note that such
statements were not of enough concern to Kelly to use as a
reason for refusing to rehire Johnson. The Respondent
contends that Kelly refused to rehire Johnson because of
Johnson's rudeness to Kelly's secretary and because of
Johnson's poor work performance. But neither of these
reasons for refusing to rehire Johnson was communicated
to him. Johnson's "poor work performance" as a reason is
questionable in light of the fact that Johnson's foreman
told him that he was "doing a good job" and that his
supervisor was "proud of" Johnson's work. Moreover, it is
questionable that the Respondent would refuse to rehire
Johnson merely because he pushed or slammed a door
wide open. In any event, although the Respondent could
refuse to rehire Johnson for any reason other than a
discriminatory one, the Respondent may not seize upon
misconduct of Johnson as a pretext for refusing to rehire
this vigorous union adherent.
After considering all of the foregoing, including John-
son's past union activities of which the Respondent had
knowledge, and the Respondent's union animus as demon-
strated by Kelly's statement to Johnson on October 13,
1975, as to why Johnson would not be rehired ("if I hired
you back again, you would vote for [the Union] again"), I
conclude that, by refusing to rehire Johnson on such date,
the Respondent violated Section 8(a) (3) and (1) of the Act.
c. Leona Hensley
Alleged discriminatee Leona Hensley worked for the
Respondent from July 22, 1974, to March 5, 1976. Prior to
being hired, in May 1974, while doing yard work for the
Respondent's vice president, Cammenga, Hensley asked
him for a job. She was told "that he would ... give me a
job if I would whip . . . Linda Grubb" because "she was
helping the Union and that if he fired us both, that he
would rehire me back later. That way he could get rid of
her." Ultimately, Linda Grubb quit her job with the
Respondent. When Hensley was hired she told Respon-
dent's personnel manager, Kelly, that she would "have to
be out some" to take her daughter (who had heart trouble)
to an out-of-town doctor. In 1974, she received a written
warning because of an absence from work. However, she
had no telephone and her supervisor did not know that she
had a doctor's excuse until after the warning had been
written.
During August 1975, Hensley showed a union organizer
where the Respondent's employees lived, obtained signa-
tures on union authorization cards, and went to union
meetings. In the summer of 1975, the Respondent's vice
president told Ferrell Hensley, Leona Hensley's husband,
that neither of the Hensleys had any business riding with a
union organizer or going to union meetings. During 1975,
Hensley did not receive any written warnings or repri-
mands. She was verbally warned concerning her absentee-
ism on August 18, 1975, after the Respondent made a
periodic review of the attendance record of its employees.
This review revealed that Hensley's percentage of absentee-
ism was 33 to 34 percent, but was 15 to 16 percent if
authorized medical leaves or leaves of absence were
excluded from her record. The 15-to-16-percent figure was
about 5 percent higher than any other employee in the
plant. Concerning her absences, Hensley acknowledged
that her supervisor spoke to her about her absenteeism, but
testified that it was in a joking manner. During October
and November 1975, Hensley was on sick leave because of
surgery. When she returned to work, her work station had
been moved because in the words of the Respondent's vice
president, she had been "a bad girl." On December 16 and
22, 1975, Hensley was verbally warned concerning the
quality of her work. The December 16 warning involved 20
defective footrests.
In January 1976, Hensley was identified as a member of
the Union's organizing committee in a letter sent to the
Respondent by the Union. Also in January 1976, Hensley's
supervisor returned some footrests to her because she had
failed to punch out some of the holes in the cardboard
which is attached to the back of the footrests. Testimony
conflicted as to whether footrest makers were required to
perform this task as a part of their job. On January 12,
1976, Hensley distributed union handbills at the plant. The
next day she was given a written warning for "failure to
report to work after informing supervisor that she would
come in." Concerning this absence Hensley testified that "I
did tell them I would be in." But at 7 o'clock on the
morning of January 13, she telephoned her supervisor to
tell him "that I had been outside and that the roads - it
was pretty slick. I didn't think I was going to try it and I
had some teeth pulled, and I had a doctor's excuse saying
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for me not to come in." Sometime during the morning or
early afternoon the plant closed because of snow.
A week and a half later, on January 22, Hensley was
given a written warning for "bad quality." The warning
noted that "Employee has been cautioned of these defects
before this warning." On this occasion, her supervisor
brought back some of the defective footrests to Hensley
from the upholstery department. Subsequently, Hensley
went to the upholstery department and repaired the
defective footrests. This was the first time she had to go to
the upholstery department to correct defective work. The
same day, Hensley was given a written warning for
"Excessive Absenteeism." The warning also noted that
"Attendance must improve." Concerning this occasion, as
Hensley later explained at her termination meeting, she
took her 10-year-old daughter to the doctor "because the
teacher sent word for her to go see about her glasses." Her
husband could not take their daughter because "she cried
and said she wouldn't go with him and I was out going to
the doctor. As I - as a matter of fact they sent a paper
over here saying that I nearly had pneumonia, but I was
out I day." Hensley testified that "I had taken my
daughter, to the doctor and I had called in that morning
and told [my supervisor] the day before that I would be out
because I was taking her to the doctor, and I brought him a
doctor's excuse, and he took me into the office and wrote
me up." Five days later, on January 27, 1976, Hensley
received a verbal warning concerning the quality of work.
She was taken to the inspection department to view the
defective footrests there because, in her supervisor's words,
"it's much easier to see what's wrong with any individual
part of that chair when it's completely assembled." An oral
warning rather than a written warning was utilized
because, as her supervisor testified, "I felt sorry for Leona,
Leona had problems of which I was aware."
After this, a new supervisor, Ricketts, was assigned to
Hensley. Two weeks after her verbal warning, on February
10, 1976, Hensley received two written warnings in I day
from the new supervisor. One warning was for "Excessive
Absenteeism" and noted that it was a "final warning."
Concerning this occasion, Hensley testified that she
followed routine company procedure by furnishing a
doctor's statement the morning following the date of her
absence. The other warning on February 10 was for "Bad
Quality - Failure to Carry Out Specific Instructions" and
noted that it was Hensley's "2nd written warning." This
occasion involved a footrest which was returned to Hensley
because it did not have enough cotton in the corners.
Hensley's supervisor instructed her not to use a particular
instrument to push the cotton into the corners because the
instrument would leave a hole in the material which
covered the cotton. When asked why she used the
instrument, Hensley merely shrugged her shoulders. Ac-
cording to Hensley, there were no holes in the material
after she used the instrument.
Hensley's new supervisor "was sort of at the end of my
rope, as far as I could go," so he discussed Hensley's record
with the Respondent's personnel manager. These two men
then met with Hensley in the afternoon of the same day on
which the two warnings were given. Unknown to Hensley,
this meeting was recorded on tape by the Respondent. At
the meeting, Hensley was told by Personnel Manager Kelly
that the quality of her work and her attendance had to
improve and that the Respondent was "through warning,
we're through talking, we're through giving writeups."
Hensley replied that the written warning on January 22,
1976, was the first time her supervisor had ever said
anything to her about her work. Moreover, she argued that
"other people get three (pairs?) back and they don't get
writ up or even talk to them about it." In response,
Personnel Manager Kelly asked her to do better "so that it
doesn't work a hardship on the other people in your
department and your supervisor."
Concerning the quality of Hensley's work, Respondent
Inspector Joan Edwards testified that Hensley produced
"just bad upholstery," and that there was no one particular
characteristic involved. Respondent Inspector Charlotte
Pritchett testified that "the way her footrests are bad, they
always stuck out right at the top and were real fat across
the top." Inspector Pritchett further testified that "other
than that [one] day which was all bad, Hensley's work was
probably about like that of other footrest workers . . .
although she probably did have a few more repairs than the
other girls." Concerning her work, Hensley testified that an
employee making production could make $2.84 per hour,
but that her last 3-month-average before she left was $4.11
an hour, the highest rate of any of the footrest makers. As
to the quality of her work, Hensley testified that "the kind
of footrests I was on, you use two pieces of cotton and two
pieces of foam together, and you'd put it together, and
sometimes it'd be too thick and sometimes too thin, and if
it was, they'd bring it back." Hensley further testified that
nobody but her was reprimanded for poor quality.
Respondent introduced evidence of a written and a verbal
warning given to two other employees on January 5 and
February 10, 1976, respectively.
As to Hensley's absences, Hensley's fellow workers had
complained to the Respondent that Hensley's absences
caused them to have to work overtime. However, one
footrest maker, Stinett, testified that she made no comp-
laints concerning Hensley's absenteeism during the last
months Hensley worked. This was "because she had
worked a little bit better and because we kept warning her
if she didn't start staying and quit staying out so much,
they were going to fire her because Leona was doing union
activities." In testifying, Hensley named two employees
who were absent as much as she was and who were not
reprimanded. One of these two employees, Hill, was
allowed a 3-week leave of absence after her child was
hospitalized as a result of an automobile accident. Hill had
not engaged in union activities to Hensley's knowledge and
had refused to sign a union authorization card when
requested to do so by alleged discriminatee McClendon.
On February 19, 1976, a complaint was issued by the
NLRB alleging that the Respondent had unlawfully
refused to hire Hensley's husband. The last incident which
led to Hensley's dismissal occurred several weeks later on
March 5, 1976, and involved Respondent's inspector,
Edwards. Despite the fact that she did not usually make
production as an upholsterer, Edwards was serving as a
part-time inspector around the last of February or the first
of March. At the time of the hearing on August 4, 1976, she
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LA-Z-BOY TENNESSEE
had been serving as an inspector for about 6 months. Her
husband is one of the Respondent's supervisors. Although
Inspector Pritchett did not know Hensley's clock number,
Inspector Edwards did. By looking at the clock number on
the back of each footrest, Edwards could determine
whether Hensley had made a particular footrest. Inspector
Edwards testified that on March 5, 1976, she fixed several
of Hensley's defective footrests and that she showed
Hensley's defective work to a supervisor. A footrest was
taken to Hensley's supervisor who showed it to the
Respondent's personnel manager, Kelly, who then request-
ed that Hensley meet with him and her supervisor.
Unknown to Hensley, this meeting was tape-recorded by
the Respondent.
At the meeting, Hensley was discharged because of
"unsatisfactory performance, chronic absenteeism, bad
quality." Kelly showed Hensley a defective footrest and
stated that too many footrests in a particular group
produced by Hensley were defective "for somebody with
your experience." Hensley replied that "I'm not the only
one who's getting footrests back. I can't understand why I
got wrote up for everything and I know they's a Buggy up
there that's got some-on it and she's got them back four or
five times and she's never been wrote up for them." To this
Kelly responded that he could not understand why
Hensley was absent so much. He further noted that
Hensley had received a final warning as to excessive
absenteeism and poor quality of work. Hensley then
argued that "it's been nearly 2 years and it's just now
started ... all my work started coming back suddenly." In
reply, Kelly stated that "something has happened to you,
your attitude or something." Hensley then argued that she
had not missed many days after returning from her surgery.
Kelly responded with "you've got the very worst absentee
record of any employee and I guess you've probably got
the worst quality problem of any employee." He then told
her that "I've tried everything I know to do, verbal
warnings, written warnings, and it doesn't seems to work,
so I'm to the point now that I don't feel that it's fair for the
other people or your supervisor to keep you on here at La-
Z-Boy. So I am discharging you for unsatisfactory
performance and the reason being excessive absenteeism
and bad quality."
Hensley protested saying that "I don't see how you can
put that absenteeism on it because it's not on it now,
because I've not been out none since you told me that. You
couldn't put that on there, Allen. You might put bad
quality." At this point, the Respondent's personnel manag-
er directed his secretary to prepare a discharge slip for
Hensley. He then reviewed Hensley's absences. Concerning
these occasions, Hensley stated that "the day it snowed we
didn't work" and that her husband could not take their 10-
year-old to the doctor "because she cried and said she
wouldn't go to work with him and I was out going to the
doctor. And I - as a matter of fact they sent a paper over
here saying I nearly had pneumonia, but I was out one
day." To this the Respondent's personnel manager replied
that "even if every absence was legitimate, it wouldn't
change the fact that you're not here and we can't count on
you." Hensley then stated that "I know there's more out
there that stayed out more than I did . . . Bud Carbaugh's
wife did .... She stayed out 2 and 3 days a week." To this
Kelly replied that he was "looking at the past year" in
stating that "3 to 5 percent is the normal absenteeism rate"
and that Hensley was "running 15 percent." Hensley then
stated that "I've been picked on ever since I had surgery
. . .because they are footrests brought back on the same
people out there to the same thing and they wasn't wrote
up but I was and it was my first time and my first
warning." Kelly stated that Hensley had been warned
before and wondered if she had recovered from her
surgery. After this Kelly repeated the reasons for which
Hensley was discharged. When Hensley asked when she
did the footrests which resulted in the meeting, her
supervisor replied that "we did run this lay probably last
week - first of last week." Personnel Manager Kelly again
repeated the reasons for Hensley's discharge and the
meeting ended.
According to Hensley's testimony, a day or two after she
was discharged, she telephoned Kelly's secretary to convert
her group medical insurance coverage to an individual
plan. She was told by the secretary that "when you were
fired or terminated that your insurance was terminated the
same day." The secretary testified that the reason Hens-
ley's coverage under the group medical plan was not
converted to individual coverage was because "she didn't
come tell me she wanted it." Testimony concerning
Hensley's inability to convert her medical insurance was
offered by General Counsel as background evidence only.
In analyzing the foregoing facts, it is clear that Hensley
was an active union adherent and that the Respondent was
aware of this. However, the Respondent notes that her
record of absences was 50 percent more than the employee
with the next poorest record and that her irregular
attendance at work, for whatever reason, caused her
coworkers to work overtime and adversely affected the
Respondent's production. Concerning her absences, Hens-
ley, at her termination meeting with the Respondent's
personnel manager on March 5, 1976, named an individual
who "stayed out more than I did," who "stayed out 2 and 3
days a week." To this Personnel Manager Kelly replied
that he was "looking at the past year." In testifying,
Hensley named two other individuals who were absent "at
about the same rate or as much as" she was. One of the two
individuals was granted a leave of absence to care for a
child who was hospitalized as a result of an automobile
accident. The Respondent introduced no specific testimo-
ny to show that the absences of these two named
individuals were less than those of Hensley. In my opinion,
this disparity in treatment counteracts the Respondent's
contention that Hensley was dismissed because the
Respondent could not "count on" her to be at work.
As to the specific reasons given by Hensley for the
absences for which she received written warnings, the
Respondent stresses Hensley's broken promise to come to
work and the availability of Hensley's husband to take
their child to the doctor. Hensley's first written warning for
absenteeism occurred just after she had been identified as a
member of the Union's organizing committee and the day
after she handbilled the plant. The roads were slick and she
"had some teeth pulled and a doctor's excuse saying for me
not to come in." Although she testified that "I did tell them
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I would be in," it is not clear that this promise was
made in the same conversation in which the excuses for her
absence were offered. Indeed, it is unlikely that she would
call her supervisor at 7 a.m. on a day that she was
scheduled to work the first shift in order to offer an excuse
for her absence and then conclude the conversation by
promising to come to work. It is more likely that she was
calling to inform the Respondent that, although she had
asked for only I day's sick leave to go to the dentist, an
additional day of sick leave would be needed in the opinion
of the dentist and that, in any event, the roads were slick.
Concerning the latter point, I note that the weather
conditions of the day ultimately caused the Respondent's
plant to close. Concerning the availability of Hensley's
husband to take their 10-year-old daughter to be examined
for eyeglasses, Mrs. Hensley "was out going to the doctor"
herself and "as a matter of fact they sent a paper over here
saying I nearly had pneumonia, but I was out I day." Thus,
Hensley's excuse for this absence related to her own illness
as well as to her need to accompany her child to the doctor.
The last written warning concerning her absenteeism was
one which involved her own medical problem and was one
for which she provided a doctor's statement the following
morning. Thus, each of Hensley's absences for which she
received a written warning involved a legitimate medical
excuse which appears to have been ignored by the
Respondent. Hensley was not absent again from the time
of her third warning to the time of her discharge. As to her
coworkers' concern for working overtime as a result of
Hensley's absences, I note that one such coworker testified
that she made no complaints concerning Hensley's absen-
teeism during the last months that Hensley worked because
"she had worked a little bit better and because we kept
warning her if she didn't start staying and quit staying out
so much, they were going to fire her because Leona was
doing union activities."
In reviewing the foregoing facts as to Hensley's absences,
I note that all of her written warnings for absenteeism were
received within 2 months after she was identified as a
member of the Union's organizing committee and that one
of the warnings was received the day after she handbilled
the plant. I further note that the excuses for her absences
and the procedure which she followed with respect to them
seem reasonable. Lastly, I note that the Respondent has
failed to offer specific proof to rebut Hensley's statement as
to named individuals who received no warnings even
though they were absent about the same rate or as much as
Hensley was. In these circumstances, I conclude that the
warnings given to Hensley as a result of her absenteeism
were also given, at least in part, because of her union
activities and adherence, and thereby violated Section
8(a)(3) and (1) of the Act.
As to the quality of her work, the Respondent's
personnel manager told Hensley at her termination
meeting that "you've probably got the worst quality
problem of any employee." Moreover, the Respondent
notes that at such meeting Hensley stated that "you might
put bad quality" as a reason for her termination. Concern-
ing her work record, Hensley stated at the final-warning
meeting that "other people get three [pairs?] back and they
don't get writ up or even talk to them about it." No direct
response to this claim of disparity was made at the meeting,
nor did the Respondent's personnel manager or Hensley's
supervisor mention at the meeting that a written and an
oral warning had been given to other employees for poor
quality work. Again, at her termination meeting, Hensley
claimed disparity, stating that "I know they's a Buggy up
there that's got some - on it and she's got them back four or
five times and she's never been wrote up for them" and
"they are footrests brought back to the same people out
there to the same thing and they wasn't wrote up but I
was." As stated by Hensley, "all my work started coming
back suddenly." Indeed, the first time Hensley had to go to
the upholstery department to fix defective work during her
1-1/2 years with the Respondent occurred within 2 weeks
after she had been identified as a member of the Union's
organizing committee and within a week and a half after
she had handbilled the plant. The written warning she
received on this occasion was one of two that she received
that day. The other was for absenteeism when she "nearly
had pneumonia" and had been "out I day." Although the
written warning notes that Hensley had been warned
before, the two oral warnings she received in December
occurred just after she had returned from surgery and had
her work station moved for being "a bad girl." The
supervisor who gave Hensley her first written warning for
poor quality was replaced after he gave Hensley a verbal
warning and took her to the inspection department where,
in his words, "it's much easier to see what's wrong with any
individual part of the chair when it's completely assem-
bled."
From her new supervisor, Hensley received two written
warnings on the same day within a month after she had
handbilled the plant and within a week or two after the
new supervisor had assumed his position of authority over
her. One of the warnings concerned an excused absence as
previously described. The other warning involved the use
of an instrument to repair a footrest. Despite Hensley's
failure to follow the Respondent's directions as to how to
repair the footrest, no damage occurred to the material
covering the footrest. On the same day these two warnings
were given, Hensley's final warning meeting was held. It
was at this meeting that Hensley made her first claim of
disparate treatment as to the warnings which had been
given to her for poor quality work. No reply was given by
the Respondent at this meeting concerning Hensley's
claim. Her next claim of disparate treatment was made at
her termination meeting. Hensley's dismissal occurred
about 2 weeks after a complaint was issued by the NLRB
alleging that the Respondent had discriminated against her
husband.
The incident which led to Hensley's discharge involved
footrests which were produced the week after the com-
plaint was issued in her husband's case. The defective
footrests involved were discovered by a newly promoted,
part-time inspector who had been unable to make produc-
tion as an upholsterer. The inspector was married to one of
the Respondent's supervisors. Although one of the Respon-
dent's inspectors did not know Hensley's clock number
which was on the back of the footrests Hensley produced,
the new inspector did. At the termination meeting, no
mention was made by the Respondent's personnel manager
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LA-Z-BOY TENNESSEE
or by Hensley's supervisor as to the written and verbal
warnings which had been given to two other employees for
poor quality work. No direct reply was given to Hensley
concerning her claim of disparate treatment.
It is true that Hensley stated in her termination meeting
that "you might put bad quality" as reason for her
dismissal. However, from the facts of this case, an
additional reason for Hensley's dismissal appears. Such
facts include the disparate treatment Hensley received
concerning warnings. Other facts include the timing of her
warnings and the unusual circumstances under which they
were given. Lastly, such facts include the statements of the
Respondent's vice president in suggesting that Hensley
help rid the Respondent of a union adherent, that Hensley
had no business riding with a union organizer or going to
union meetings, and that her work station was not moved
because she was a "bad girl." From the foregoing facts with
respect to the quality of Hensley's work, it appears that the
Respondent, in dismissing Hensley, was motivated not
only by its concern for the quality of her work but also, at
least in part, by its desire to rid itself of an active union
adherent.
Based upon all of the foregoing facts and analysis with
respect to Hensley's attendance and the quality of her
work, I conclude that the Respondent's union animus as to
Hensley has been shown through direct and circumstantial
evidence. I further conclude that a reasonable inference of
a causal connection between the Respondent's union
animus and Hensley's discharge has been established.
Because I find that one of the reasons for which Hensley
was discharged was because of her union adherence and
activities, I conclude that by discharging Hensley on
March 5, 1976, the Respondent violated Section 8(a)(3)
and (I) of the Act.
d. Bill Ronald Scott
Alleged discriminatee Bill Ronald Scott worked for the
Respondent from September 28, 1975, until mid-April
1976, when he quit. His first job involved full-time
production work. After surgery in November 1975, Scott
was transferred at his request to a less strenuous, nonpro-
duction job. The first week of January 1976, Scott
requested and was granted a production job building seats.
This job was requested by Scott so that, with an incentive,
he would have an opportunity to earn more money. In this
job Scott also performed repair work which was paid on a
straight time basis "for a few hours on a couple different
occasions." According to Scott's foreman, Wilkey, Scott
also built backs of chairs for which he was paid straight
time and this situation resulted in Scott complaining to the
three foremen in the department. Around the middle of
January 1976, Scott signed a union authorization card. On
Saturday, January 17, 1976, he added his name to a posted
list of the Union's organizing committee. This was done in
the presence of Foreman Wilkey. Later, at Scott's work
station, Wilkey asked Scott "what [he] was doing" and why
Scott didn't get permission from the personnel office since
the list was on a letter to the Respondent and had been
posted by the Respondent on the Respondent's bulletin
board. In response to Wilkey's first question, Scott
announced to Wilkey that "I signed my name on the
Union letter and that I was a member of the organization
committee and I signed a Union card and . . . that I
intended to be active in the Union." At this time, Scott had
been taking 30 minutes to clean up and set up his work
station for the next day's work. However, the following
Monday, Wilkey told Scott that Scott should use only the
last 10 minutes of his shift to clean up and to fill out his
timecard. Another employee who built seats with Scott
continued to take 30 minutes to set up his work and to
clean up. According to Foreman Wilkey, he allowed
everyone 10 minutes to clean up and, if any employee used
more time, he called this to the employee's attention. This
testimony was substantially corroborated by another
foreman in the same department and by the superintendent
of the department, Patton. In addition to having less time
at the end of his shift for setup and cleanup Scott began
getting shorter, less lucrative orders which caused him to
have to work harder to make production. At the hearing,
General Counsel offered evidence as to the latter situation
as background rather than to support a separate finding of
discriminatory treatment.
Prior to February 6, 1976, Scott was offered transfers to
other jobs, but refused. When asked on one occasion if he
would like to transfer, Scott told Superintendent Patton
that he would like to stay where he was so that he could
"take my breaks with those particular people and where I
would be around those people because of the Union."
According to Scott, "my attitude changed after the first of
the year because my job situation changed." Because of his
"bad attitude" Scott was "taken to the office to see
someone in personnel six or seven times." A progress
report, signed by Foreman Wilkey sometime during the
last 2 weeks of January 1976, indicates that Scott's
"cooperation" had gone from "good" to "fair." All other
factors, including quality of work, effort, quantity of work,
attendance, and adherence to rules were marked "good."
The form further indicates that Foreman Wilkey recom-
mended that Scott be retained as an employee. Although
the probationary period for Scott would normally involve
only three progress reports, a fourth report, referred to
above, was prepared for Scott because of an injury and
surgery which delayed his accumulation of 90 working
days.
On February 6, 1976, 3 weeks after Scott had identified
himself as a union adherent, a job opening occurred in a
full-time production job under the supervision of Respon-
dent's foreman, Walker. Walker "had to do some checking
to see if any of my people had more seniority than he
before I could get him." According to Superintendent
Patton, "nobody wanted it" so Scott was brought to
Patton's office to "inform him that the job was open." Scott
was the only employee brought into Patton's office.
According to Superintendent Patton, Scott had no objec-
tion to the transfer except to protest that "I can't get any
cards signed back there," referring to the location of his
former job. Patton further testified that Scott's new work
station was only 30 feet away from his former location and
that Scott could still take his breaks with the same people.
Scott testified that he had not asked for the transfer and
that he had no choice concerning the transfer. He further
testified that it was not until a week after his transfer that
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Wilkey told Scott that the transfer occurred so
that Scott could have a full-time production job and would
not have to be paid on a straight time basis for any part of
his work. The job to which Scott was transferred involved
putting glue in holes and pounding pegs in the holes.
Production was 140 pieces of wood per hour with 3 pegs
per piece of wood. In an average day, Scott would process
1,200 pieces of wood with 3 pegs per piece. According to
Scott, this job was "a great deal more difficult" than his
former job of makting seats and "was considered by most
people in the department to be the hardest job in the
department and one of the hardest jobs to make produc-
tion on." Scott's new job had a base rate of 10 cents per
hour less than the old job, but involved more overtime
work so that Scott's gross earnings remained about the
same. During the 10 or so weeks that Scott worked on his
new job before he quit, he did not attempt to bid off the
job. However, he did complain to Foreman Walker and
sought to return to his former job which was being
performed as a full-time production job by a newly hired
employee. In response, Scott was told that "it's simply up
to the Company where they wanted to put their people and
they didn't want to hear anymore about it."
On February 9, 1976, Scott received a written warning
because of an absence for which he later provided a
doctor's excuse. The warning was for missing work on a
Saturday during which the plant worked overtime. The
warning states that Scott "did not call in before Ist break.
First offense. Failed to report for assigned overtime. First
offense." On February 13, 1976, a week after being
transferred to his new job, Scott received a warning for
insubordination. The original warning notice has been
replaced by General Counsel with a copy which is
unreadable. On the date that Scott received the warning, he
indicated to Foreman Walker that he did not wish to
volunteer for overtime work because he was supposed to
distribute union literature at the Respondent's plant after
his regular shift. When Walker told Scott that overtime was
mandatory, Scott remained on the job. At the end of
Scott's regular shift, Foreman Walker, following the
Respondent's normal procedure, asked Scott for an
estimate of what he would produce on overtime. Scott told
him 10 more pieces since he was tired and since he had
already made production for the day including the
overtime period. Ultimately, Scott produced 60 to 70 pieces
in 20 or 30 minutes of overtime. Production was 140 pieces
per hour. As a result of their conversations concerning
Scott's overtime work, Scott and Walker met with Respon-
dent's personnel manager, Kelly, who was in the office of
the Respondent's plant manager, Marunick. Scott stated
that he was being singled out because of his union
activities. This was denied by Kelly. Marunick told Scott
that he would have fired Scott, but that he was not going to
overrule his foreman. Personnel Manager Kelly suggested
that, even though Scott was insubordinate, Scott had, in
fact, performed the work requested of him so that a
discharge was not warranted in Scott's case. Foreman
Walker suggested that Scott was a good employee and that
the Respondent needed his production. Ultimately, at
Marunick's suggestion, Scott received a written warning
from Foreman Walker for borderline insubordination for
questioning a supervisor. When the meeting concluded, the
employees on Scott's shift had already left so that Scott did
not handbill the plant. After the meeting, Kelly apologized
to Scott for berating him as to personal matters at the
meeting. On March 30, 1976, Scott received a written
warning for "unexcused absence - Did Not Bring
Doctor's excuse as asked for 3-29-76." Scott had not been
to a doctor but had called in to notify the Respondent of
his absence. Scott testified that the Respondent's handbook
simply states that an employee must call in before the first
break if he is going to be absent. On separate occasions in
1976, because Scott was unhappy, Personnel Manager
Kelly, Superintendent Patton, and Foreman Wilkey sug-
gested that Scott quit or take an indefinite leave of absence
to farm. During the second week of April 1976, Scott did
quit because "it was just getting to be too much of a
hassle."
General Counsel contends that the Respondent unlaw-
fully interrogated Scott when Wilkey asked Scott "what
[he] was doing" after Scott added his name to the list which
contained the Union's organizing committee. In rejecting
this contention, I note the ambiguity of Wilkey's question,
the fact that the question was asked at Scott's work station
so that it may have referred to Scott's work, and that, at the
time the question was asked, Wilkey was already aware of
Scott's union adherence. Wilkey's conversation with Scott
does, however, provide proof of the Respondent's knowl-
edge of Scott's union activity and adherence. The Respon-
dent denies that it imposed more onerous working
conditions on Scott by decreasing his setup and cleanup
time. In this regard, I note the Respondent's contention
that the same policy was applied to all employees and that
any employee who violated the policy had this called to his
attention. However, because Scott was advised of the
Respondent's rule as to setup and cleanup time on the next
working day after his announcement of his union adher-
ence and because another employee who performed the
same work as Scott continued to violate the rule, apparent-
ly without this being called to his attention, I conclude that
Scott's union adherence caused the Respondent to strictly
enforce its policy against Scott in a disparate manner,
thereby violating Section 8(a)(3) and (1) of the Act.
The Respondent denies that it transferred Scott to a less
desirable and more onerous job because of his union
activities. In this regard, the Respondent notes that Scott
had asked for a full-time production job, that he made
production on the job, and that he did not refuse the new
job. Respondent further notes that, during breaks, Scott
could continue to obtain signatures for union authorization
cards from employees who worked at Scott's former
location. In considering the evidence, I note that seniority
was followed to an extent in filling the job which Scott
took, but that Scott was singled out by being being called
into the office of the superintendent of the department for
assignment to a job which was considered to be the hardest
job in the department and which involved a lower base rate
than Scott's current job. Although his earnings on the new
job were about the same as on his former job, this was
accomplished, in part, through overtime work. Another
unusual aspect of the transfer was the fact that Scott's
former job was filled by a newly hired employee who
1264
LA-Z-BOY TENNESSEE
thereafter became engaged in full-time production work. In
these circumstances, I conclude that it is reasonable to
infer that Scott's transfer of February 6, 1976, was due to
his union adherence, and thereby violated Section 8(aX3)
and (1) of the Act.
Lastly, with respect to Scott, General Counsel contends
that the Respondent issued a warning reprimanding Scott
because of his union activities. In rejecting this contention,
I find that Scott was justifiably warned for borderline
insubordination after telling his supervisor that he would
run only 10 more pieces since he had already made
production for the day.
e. Betty Jo McClendon
Alleged discriminatee Betty Jo McClendon was em-
ployed by the Respondent from October 20, 1973, until
April 26, 1976. She was described by Personnel Manager
Kelly as "a good employee." She was not active in the
Union's 1974 campaign. However, in January 1976, she
was identified to the Respondent as a member of the
Union's organizing committee. She signed a union authori-
zation card, solicited and obtained signatures of other
employees for union authorization cards, attended union
meetings, and accompanied union representatives who
visited employees of the Respondent in their homes. In
March 1976, she handbilled the Respondent's plant. She
was absent on sick leave from April 19 to April 23, 1976.
On Friday, April 23, around 2 o'clock, she telephoned
the Respondent's personnel manager and told him that
"my husband had a heart attack and I wanted a month's
leave of absence . . . to be off with my husband and to
help with the [her husband's lawnmower] shop." The
Respondent's personnel manager replied that "you might
need 6 weeks to 2 months if he needs to have surgery" and
that the Respondent did not ordinarily do this, but that he
understood. He said that he would grant her a voluntary
layoff and that she would be in good standing with the
Company. She asked if she could convert her medical
insurance to an individual plan and was told that she could
do so. She was told to bring in her medical excuse for that
week and to come to the personnel manager's office on
Monday, April 26, to sign the necessary papers.
On April 26, McClendon drove 35 miles from the
hospital to the Respondent's plant and, around 2 p.m., she
met with the secretary of the Respondent's personnel
manager. The secretary presented McClendon with a
"Request for Leave of Absence" for the sick leave that she
had taken the prior week. She was also presented with
papers to convert her medical insurance, and a "Termina-
tion Notice" which had a checkmark in a box by the word
"Quit." By the words "Reason/Explanation" the notice
indicated "Voluntary quit with notice." The notice shows
an effective date of "4/23/76." McClendon did not expect
to see the request for leave of absence for the prior week
since she had not asked for a leave of absence and had a
doctor's excuse which she presented to the secretary. She
thought that company policy required that an employee
request a leave of absence before the employee missed
work and this was the procedure she followed when she
was absent for surgery for 2 months in 1974. McClendon
did not know of anyone who was asked to execute a leave
of absence after being absent for over I week. Although she
testified that employees ask for a leave of absence after
they have been absent because of sickness for 2 days, the
absenteeism record introduced into evidence by the
Respondent for Leona Hensley shows three consecutive
absences on one occasion and indicates "sickness self"
rather than "leave of absence." In any event, McClendon
signed the leave of absence request and the insurance
papers.
McClendon testified that Personnel Manager Kelly had
not mentioned a termination when she talked with him and
she questioned the fact that a termination notice had been
prepared for her to sign. She told Kelly's secretary that "I
thought I was on leave." The secretary then contacted
Kelly who told her that the termination notice was proper
because "we can't give her leave to run her husband's
business." The secretary explained this to McClendon who
then signed the termination notice because she "had to be
off." Although the Respondent had never given an
employee a leave of absence to run a family business, it did
allow one employee, Hill, a 3-week leave of absence to care
for her child who had been injured in an automobile
accident. Subsequently, on May 5, 1976, McClendon
applied for unemployment compensation. In connection
with this claim, she signed a statement which says that she
"voluntarily quit." This phrase was recorded on McClen-
don's statement by a representative of the State Depart-
ment of Employment Security over McClendon's protest.
The basis of this phrase was McClendon's termination
notice which McClendon had presented to the representa-
tive. In addition to the foregoing, the statement also
indicates that "I never had any trouble on my job until I
requested an emergency leave" and that when McClendon
requested an "emergency leave," "a leave of absence,"
Personnel Manager Kelly "indicated my need to be off 6
weeks to 2 months." The statement further indicates that
the Kelly told McClendon that her papers would state that
she "was accepting a voluntary layoff, which would leave
her in good standing with the Company." On June 1, 1976,
McClendon's unemployment compensation benefits claim
was denied on the basis that she had voluntarily quit her
employment. At the time of the hearing, this decision was
on appeal. Kelly testified that he told McClendon that
"later on when her problems settled down and she saw her
way fit, that she could come back to work, come on back
up and put in an application," but that McClendon had
not contacted him concerning employment between April
23, 1976, and the time of the hearing in August 1976.
The Respondent contends that McClendon requested a
leave of absence for an unspecified time, but the leave
which she requested was for I month. The Respondent
further contends that McClendon voluntarily quit as
shown by Kelly's statement to her that she would be in
good standing with the Respondent. But Kelly told her that
she would be given a "voluntary layoff." Such a status
would also leave McClendon in "good standing" with the
Respondent. In addition, the Respondent contends that
McClendon admitted that she quit by signing the Respon-
dent's termination notice and by the statement she gave in
connection with her claim for unemployment compensa-
tion benefits. Concerning the unemployment compensation
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement, McClendon protested the sentence that indicat-
ed that she had quit. This sentence was written by the State
Department's representative rather than by McClendon
and was based on Respondent's termination notice.
McClendon's true understanding of her situation is found
in other parts of the statement where she relates that the
Respondent's personnel manager told her that she "was
accepting a voluntary layoff." The truth of this statement is
reflected in the surprise which McClendon displayed when
Kelly's secretary gave McClendon the termination notice
to sign. Although McClendon ultimately signed the
termination notice, she did so at the Respondent's
direction in a situation where she "had to be off for
emergency leave." Cf. Sears, Roebuck and Co., 221 NLRB
632, 636-637 (1975).
The Respondent contends that it has never granted an
employee a leave of absence "to run a family business" and
notes that McClendon indicated something about her
husband's business, thereby distinguishing her case from
employees who had been granted a leave of absence to care
for a member of their family. But this was the position
which the Respondent ultimately took when McClendon
met with Kelly's secretary. Earlier, in McClendon's
conversation with Personnel Manager Kelly, McClendon
had asked for a month's leave "to be off with my husband
and to help with the shop" and Kelly had stated that the
Respondent did not ordinarily do this, but he understood
and a voluntary layoff would be granted. He even
suggested that "you might need 6 weeks to 2 months."
From all that appears, sometime between 2 p.m. on Friday,
April 23, and 2 p.m. on Monday, April 26, 1976, the
Respondent's personnel manager decided to change
McClendon's status from "voluntary layoff" to "voluntary
quit with notice." By placing McClendon in a "quit" status,
the Respondent, in effect, constructively discharged her.
Cone Brothers Contracting Co., 135 NLRB 108, 109 (1962),
enfd. 317 F.2d 3, 7 (C.A. 5, 1963), cert. denied 375 U.S. 945
(1963).
To prove that the discharge constituted an unfair labor
practice, the General Counsel must show that an alleged
discriminatee was engaged in union activity and that the
Respondent had knowledge of such activity. General
Counsel must also show direct or circumstantial evidence
from which a causal connection may reasonably be
inferred between the discharge and union animus on the
part of the Respondent. N.L.R.B. v. Link-Belt Company,
311 U.S. 584, 596 (1941). Here, the evidence is clear that
McClendon was an active union adherent who signed a
union authorization card, solicited signatures from other
employees, made home visits, and handbilled the plant.
The Respondent's knowledge of her union adherence is
also clear as a result of the union letter to the Respondent
which identified McClendon as member of the Union's
campaign committee and as a further result of the overt
efforts of McClendon on behalf of the Union. Union
animus on the part of the Respondent is amply demon-
strated by the facts surrounding the 8(a)(3) violations
found as to other alleged discriminatees herein. As to
McClendon, in particular, the Respondent argues that 15
weeks passed between her identification as a member of
the Union's campaign committee and the last date of her
employment on April 23, 1976. However, this ignores the
fact that she openly handbilled the plant in March 1976. Of
course, because McClendon was "a good employee," no
occasion for the Respondent to rid itself of this active
union adherent arose before her requested leave on April
23, 1976. Circumstantial evidence connecting the Respon-
dent's union animus with McClendon's discharge is shown
in the Respondent's unexplained abrupt change in first
granting and then denying Hensley the emergency leave
which she requested, with the result that she was construc-
tively discharged. The Respondent's decision to allow
McClendon "a voluntary layoff' of 1 month to take care of
her husband was consistent with its decision to allow
another employee 3 weeks off to care for her injured child.
It was also consistent with the way in which the Respon-
dent might be expected to treat a senior, competent
employee. The Respondent's decision to constructively
discharge McClendon is consistent with a demonstrated
desire by the Respondent in the case of other alleged
discriminatees to rid itself of active union adherents.
Further circumstantial evidence connecting the Respon-
dent's union animus with McClendon's discharge is found
in what appears to have been an attempt by the Respon-
dent to mislead McClendon into thinking that she was, in
fact, obtaining a leave of absence. This was accomplished
by placing among the papers for her to sign on April 26,
1976, a "Request for Leave of Absence" form for a leave of
absence that she had not requested. In this regard, I note
that the Respondent's normal procedure was to provide
such a form before, rather than after, an employee's leave
of absence. Based upon all of the foregoing and, after a
careful consideration of the facts as to McClendon and
reasonable inferences which can be drawn therefrom, I
conclude that the Respondent constructively discharged
McClendon for discriminatory reasons on April 23, 1976,
and thereby violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of the Act and it will effectuate the purpose of the
Act for jurisdiction to be exercised herein.
3. By interrogating some of its employees as to their
union activities or adherence, the Respondent has inter-
fered with, restrained, and coerced employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act.
4. By (1) refusing to rehire Ferrell Hensley after July 5,
1975, (2) refusing to rehire Freddy Johnson on October 13,
1975, (3) reprimanding Leona Hensley and discharging her
on March 5, 1976, (4) reprimanding, imposing more
onerous working conditions upon, and transferring Bill
Ronald Scott, and (5) discharging Betty Jo McClendon on
April 23, 1976, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
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LA-Z-BOY TENNESSEE
REMEDY
As to remedy, I recommend that the Respondent desist
from the 8(a)(1) violations which I have found and take
affirmative action to effectuate the policies of the Act. As
to the 8(a)(3) violations which I have found, I recommend
that the Respondent remedy such unlawful conduct by
making whole for lost earnings each of the discriminatees
whom it refused to rehire or discharged. This is to be done
by paying said discriminatees for any loss of earnings they
have suffered as a result of the discrimination against them.
The payment is to equal the amount each discriminatee
would have earned from the date the Respondent unlaw-
fully refused to rehire or discharged the discriminatee to
the date of the discriminatee's reinstatement to his or her
former position or a substantially equivalent position, less
net earnings during such period, to be computed on a
quarterly basis with interest at 6 percent as prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). The usual
provisions regarding recordkeeping, reporting require-
ments, and notice posting will also be included. I further
recommend that the Respondent cease and desist from the
8(a)(3) violations which I have found with respect to
discriminatee Scott and with respect to some of the
warnings given to Leona Hensley to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, La-Z-Boy Tennessee, Dayton, Tennes-
see, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging concerted activities of its employees or
membership in United Furniture Workers of America,
AFL-CIO, or any other labor organization, by unlawfully
refusing to rehire, discharging, reprimanding, imposing
more onerous working conditions upon, or transferring any
of its employees or discriminating in any other manner
with respect to their hire and tenure of employment or any
term or condition of employment, in violation of Section
8(a)(3) of the Act.
(b) Interrogating or in any other manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor organizations,
to join United Furniture Workers of America, AFL-CIO,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to each employee whom it refused to reinstate
or discharged, if it has not already done so, immediate and
full reinstatement to his or her former job or, if that job no
longer exists, to a substantially equivalent job, without
prejudice to his or her seniority or other rights and
privileges, and make such employees whole in the manner
provided in the section of this Decision entitled "Remedy"
for any loss of pay he or she may have suffered from the
date of the Respondent's unlawful refusal to employ or
unlawful discharge until the date of such offer of reinstate-
ment.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its plant at Dayton, Tennessee, copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notice is not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint herein be
dismissed insofar as it alleges unfair labor practices not
found herein.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4 In the event the Board's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice:
WE WILL NOT discourage concerted activities of our
employees or membership in United Furniture Workers
of America, AFL-CIO, or any other labor organization
by unlawfully refusing to rehire or discharging, repri-
manding, imposing more onerous working conditions
upon, or transferring any of our employees or by
discriminating in any other manner with respect to our
employees' hire and tenure of employment or any other
term or condition of employment in violation of
Section 8(aX3) of the Act.
WE WILL NOT interrogate or in any other manner
interfere with, restrain, or coerce our employees in the
1267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their right to self-organization, to form labor
organizations, to join United Furniture Workers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for
the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all
such activities.
WE WILL offer to rehire Ferrell Hensley and Freddy
Johnson whom we refused to rehire after July 5, 1975,
and on October 13, 1975, respectively.
WE WILL offer reinstatement to Leona Hensley and
Betty Jo McClendon, whom we discharged on March 5,
1976, and April 23, 1976, respectively. If we have not
already done so, each of these employees will be offered
immediate and full reinstatement to his or her former
job or, if that job no longer exists, to a substantially
equivalent job, without prejudice to his or her seniority
or other rights or privileges, and pay to each of them
any backpay he or she may have lost because of our
refusal to rehire him or our decision to discharge her.
All of our employees are free to become, remain, or
refrain from becoming or remaining members of any labor
organization.
LA-Z-BoY TENNESSEE
1268