La-Z-Boy Midwest

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