La-Z-Boy South, Inc.

LA-Z-BOY SOUTH, INC. 295 La-Z-Boy South, Inc.' and United Furniture Workers of America, AFL-CIO. Case 15-CA-5005 June 28, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On March 28, 1974, Administrative Law Judge Jer- ry B. Stone issued the attached Decision in this pro- ceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs, and Respondent filed a brief in answer to the exceptions filed by the Charging Party and General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusion 3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge hereby orders that the complaint be, and it hereby is, dismissed in its entirety. engaged in unlawful creation of the impression of surveil- lance of employee union activity and unlawful interrogation of employee union activities in violation of Section 8(a)(l) of the Act, and (2) whether Respondent discriminatorily suspended on two occasions and later discriminatorily dis- charged Kenny Thrash in violation of Section 8(a)(3) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the parties and have been considered. Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT L THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admis- sions therein. La-Z-Boy South, Inc., the Respondent, is a Mississippi corporation engaged in the manufacturing of reclining chairs. The only location involved in this proceeding is Respondent's facility located in Newton, Mississippi. During the 12-month period preceding November 27, 1973, which period is representative of all times material herein, the Respondent in the course of its business de- scribed above shipped goods valued in excess of $50,000 directly to points located outside the State of Mississippi. During the same period, the Respondent purchased and received goods valued in excess of $50,000 directly from points located outside the State of Mississippi. As conceded by the Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED i The name of the Respondent appears as amended at the hearing. 2 The Charging Party and General Counsel has excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge' s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 Member Jenkins would find Personnel Manager Speed's interrogation of R3gdon, concerning his union sentiments, to be in violation of Sec. 8(a)(1) of the Act and order an appropriate remedy. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceed- ing under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on Janu- ary 17 and 18, 1974, at Newton, Mississippi. The charge in this matter was filed on September 21, 1973. The complaint in this matter was issued on November 27, 1973. The issues concern (1) whether Respondent has Based upon the pleadings and admissions therein, it is found and concluded that United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Issues 1. The amendments to the complaint At the trial of this matter, on January 17, 1974, the Gener- al Counsel amended his complaint to allege additional alle- gations of violative conduct. The General Counsel in such regard alleged that the Respondent violated Section 8(a)(1) of the Act by alleged conduct of Personnel Manager Speed on July 16, 1973, in questioning an employee about his feeling toward the Union and by cautioning the employee to avoid another employee because of the other employee's union sympathies. The General Counsel in such regard also alleged that the Respondent discriminatorily suspended Kenneth Thrash on or about July 31, 1973, for 1 week in 212 NLRB No. 40 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(3) of the Act. The Respondent contended that the amendment with re- spect to the allegation of conduct violative of Section 8(a)(1) of the Act was improper and outside the 10(b) period, 6 months, since the date of the hearing was January 17, 1974, and the alleged event occurred on July 16, 1973. The Re- spondent contended that this was its first knowledge of such specific alleged violative conduct. The Respondent contended that the conduct alleged to be violative of Section 8(a)(3) of the Act was not a proper subject of amendment since the same matter was covered in a prior charge which had been dismissed. The Respondent contends that the disposition of such issue in the prior charge made the matter res judicata. The instant charge (Case 15-CA-5005) concerned allega- tions of conduct violative of Section 8(a)(3) and (1) of the Act and was filed on September 21, 1973. The alleged viola- tive conduct of both July 16 and July 31, 1973, occurred within the 6-month period prior to the date of the filing of said charge. Section 10(b) of the Act clearly does not pro- scribe the amendments to the complaint in such regard. Nor does the administrative dismissal of prior charges (Cases 15-CA-4910, -4939) bar the disposition of the issues relat- ing to the amendments upon the merits. I note that the administrative dismissal, the Regional Director's letter of September 5, 1973, indicated that the 8(a)(1) allegations were being dismissed because of the min- imal or isolated nature thereof. Such clearly does not consti- tute a dismissal upon merit. It is clear also that the alleged violative conduct of Section 8(a)(3) of the Act comes within 6 months both of the instant charge and the instant amend- ments. Accordingly, I adhere to my rulings at the trial that the amendments are proper. 2. Supervisory status Based upon the pleadings and admissions therein, it is found and concluded that, at all times material herein, Fred Speed, personnel manager, has been an agent of Respon- dent within the meaning of Section 2(13) of the Act and/or a supervisor within the meaning of Section 2(11) of the Act. B. Interference, Restraint, and Coercion (The 8(a)(1) Con- duct) 1. The General Counsel alleged that the Respondent, by its personnel manager, Fred Speed, at its Newton, Mississip- pi, plant "(a) On or about July 6, 1973, created the impres- sion of surveillance of union activities by informing a group of employees that he knew of two employees who were for the Union." The witnesses to this issue were Pickens, Jones, and Speed. There is no real conflict in the testimony. Pickens' and Jones' testimony included reference to remarks made by Speed about the Union and about Speed's referring to knowing that two employees were for the Union. Speed's testimony was to the effect that he did not recall mentioning the Union but that he may have done so. Speed's further testimony was to the effect that he didn't recall saying that he knew who two of the employees in the Union were, that he could have named more than two in that department if he had wanted to name them. The facts relating to this issue may be summarized as follows.' The first week in July, on a day around 3 p.m., Speed spoke to a group of employees in the receiving de- partment. Present at the time were seven employees and two foremen.2 Speed had recently hired extra help to help the receiving department load and unload material. Speed had observed around this time that members of the receiving department were strolling around and doing nothing and that such employees were away from their department. Pickens and Jones were two of the employees who worked in the receiving department. Both Pickens and Jones were active supporters of the Union, had engaged in passing out leaflets, and made no secret of their union activ- ity. Speed was aware that Pickens and Jones and certain unnamed other employees were for the Union.3 Speed in his "speech" to the receiving room employees during the first week of July 1973 told the employees that he had seen them in other parts of the plant where they didn't belong, that they had not been doing their work right, that they were messing around, that he would fire the whole department if they did not get back, get the job done, and stay on their job Speed told the employees in effect that he didn't come to talk about the Union, that their problem arose because they were messing around with "this union thing." Speed told the employees that, furthermore, he knew two of the employees who were present who were for the Union, that he hated to see people misled. Considering the foregoing, I conclude and find that facts are insufficient to establish that the Respondent, by Speed, created the impression of surveillance of union activities by informing a group of employees that he knew of two em- ployees who were for the Union. The facts reveal that Pick- ens and Jones were active and open supporters of the Union. The facts would further reveal that the employees would believe that Speed was referring to Jones and Pickens as the ones he knew to be for the Union, whether named or not. Under such circumstances, Speed's remarks do not warrant an interpretation or construction that the Respond- ent was creating the impression of surveillance of its em- ployees' union activities or desires. Accordingly, it is concluded and found that the allegation of conduct viola- tive of Section 8(a)(1) in such regard is not established. It will be recommended that such allegation be dismissed. 2. The General Counsel alleged that Respondent, by its personnel manager, Fred Speed, at its Newton, Mississippi, plant "on or about July 16, 1973, questioned an employee about his feeling toward the Union and cautioned the em- ployee to avoid another employee because of the other employee's union sympathies." The witnesses to this issue were Rigdon and Speed. Speed in his testimony did not deny Rigdon's version of the facts. Rather, Speed's testimony consisted largely of a generalized probability of what he may have said. I found Rigdon to 1 The facts are based upon a composite of the credited aspects of the testimony of Pickens, Jones, and Speed 2 There are approximately 600 people employed at Respondent's plant i f credit Pickens' and Jones' testimony to the composite effect that of the employees present, they were the ones who were active and open about their support of the Union LA-Z-BOY SOUTH, INC. 297 appear to be a completely credible witness. Rigdon credibly testified to the effect that he was hired on July 16, 1973, that on such date around 8:30 a.m. or 9 a.m. he was interviewed by Speed in Speed's office. What occurred is revealedin effect by the following excerpts from Rigdon's testimony: Q. Would you tell the court what took place during the interview. A. Yes, sir. Mr. Speed was looking over the inter- view sheet and he saw Kenny's name on the list. Q. Just a second. Who is Kenny? A. Kenny Thrash. ' A. He said, "As far as this Kenny Thrash boy is concerned, I thought I would warn you that he is in the union up to here." THE WITNESS : About this Kenny Thrash boy, I want to wain you he is the union up to here. s THE WITNESS. And then I asked him, "Well, do you want me to take his name off the list?" He said, "No. That's all right. I thought I would let you know about it." And then he went on and asked me what was my opinion about the union. I said, "I don't know much about it. I believe I was against it." And he went on to say that the company's policy was antiunion and went on about the interview. Considering the foregoing, I note the following. Interro- gation of an employee concerning his union activity or de- sires, when done in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act, constitutes conduct violative of Section 8(a)(l) of the Act. Factors to be considered in such assessment include whether a legitimate basis for such interrogation exists, whether assurances of nonreprisal are made to the employees, whether other coercive remarks are made, and whether in totality such interrogation is done in such a manner and degree as to constitute interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. In the instant case it is clear that Speed interrogated Rigdon, an applicant for employment and therefore an em- ployee within the meaning of the Act, as to his union desires, warned Rigdon concerning Thrash's status as a union adherent, and did not give assurances of nonreprisal to Rigdon. The totality of the facts in this case does not reveal, however, unlawful or coercive conduct otherwise. Consider- ing this, the interrogation and cautioning of Rigdon is mini- mal in nature, is isolated, and does not reveal the totality or degree of interference, restraint, or coercion warranting remedy as to such conduct. Accordingly, it will be recom- mended that the allegation of unlawful conduct, as alleged, be dismissed.' C. Alleged Discrimination Against Kenneth Thrash The General Counsel contends that the Respondent vio- lated Section 8(a)(3) and (1) by (1) suspending Kenneth Thrash from employment for 1 week commencing around July 31, 1973, (2) suspending Kenneth Thrash from employ- ment commencing on September 4, 1973, and (3) discharg- ing Kenneth Thrash on or about September 6, 1973. Essentially the questions are (1) whether Respondent's motivation for the suspension of Thrash on or about July 24, 1973,5 was because of his union activities or because the Respondent felt discipline was in order because of a fight that occurred between Thrash and an employee named Roncali, and (2) whether Respondent's motivation for the suspension on September 4 and discharge on September 6, 1973, of Thrash was because of his union activities or Respondent's belief that he had pulled a gun on a fellow employee at a truckstop. The relevant facts to the issues may be summarized as follows:6 Kenneth Thrash was employed by the Respondent from late 1971 to September 6, 1973. It appears that Thrash was a good employee and was so considered by the Respondent during his term of employment. As in most employment histories, there were occasions when minor work problems occurred. Thus, sometime around the middle or latter part of 1972, a minor question occurred as to proper workman- ship on a chair. Usry, a fellow employee, had to take the chair back to Thrash for correction.' Usry and Thrash dis- puted the problem concerning the chair and engaged in a brief fight. No action was taken by the Respondent with respect to this brief encounter. Thrash's brother and father also worked at the Respondent's plant during the first part of Thrash's job tenure. It is noted that Thrash's brother was discharged because of a problem he had with a leadman. Thrash appar- ently went into the office with his brother on this or another occasion wherein work problems arose affecting members of the Thrash family. On such occasions the Respondent would not allow Thrash's father to be present. After the 4 The remaining allegation of alleged unlawful interrogation (complaint par. 7(b)) was withdrawn by the General Counsel. 5 The General Counsel alleged that the event occurred on July 31, 1973. The facts reveal the incident to have occurred on July 23, 1973. 6 The facts are based upon a composite of the credited aspects of the testimony of all of the witnesses. Among the witnesses , it is noted that the principal dispute is between the versions of facts given by Kenny Thrash, Hillman, and Thrash's wife on one hand, and the versions of fact given by Roncali and Usry. I found most of the witnesses to shade the facts to present either Thrash in a better light, or Roncah and Usry in a better light The testimony of witnesses inconsistent with the facts is discredited . I found Usry to appear to be a more frank, forthright and truthful witness with respect to testimony concerning remarks made by Thrash concerning supervisors. I credit Usry in such testimony and discredit Thrash's denial of such remarks. 7 Thrash in his testimony denied that he had engaged in poor workmanship and contended that Usry had deliberately messed the chair up Although it is not of great importance, considering the logical consistency of facts and no apparent reason for such act by Usry, I credit Usry's testimony to the contrary effect that Thrash was at fault for such problems as existed. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge on September 6, 1973, Thrash's father has contin- ued to be employed by Respondent. Thrash's union activity commenced in December 1972, and was open and active thereafter until his discharge on September 6, 1973. Around March 1973 Thrash, at his re- quest, was allowed to change shifts because he considered such shift change to be more reliable paywise. Around this time Thrash obtained a picture of a Miss Parker which he commenced carrying in his billfold. Since Thrash's possession of such picture has a bearing upon a fight between Thrash and an employee named Roncali, I find it proper to set forth the following facts at this point. Thrash, a young man apparently in his early twenties, is a married man. Thrash is 6 feet, 2 inches in height, weighs approximately 185, and appears to be a nice looking person. In March 1973, Thrash met Miss Parker, whom he had known in high school, in the Respondent's parking lot. It appears that Thrash and Miss Parker discussed the fact that she had a picture of herself which had been taken for her senior (high school) yearbook. The result of the discus- sion was that later Miss Parker's mother brought the picture of Miss Parker to Thrash. Thereafter, until late July 1973, Thrash kept this picture in his billfold. Roncali,ellow employee, is a young man who is 5 feet, 6 inches tall and weighs around 125 pounds. Roncali was a friend of Miss Parker and of the man whom Miss Parker was planning to marry. Roncali became aware that Thrash had the picture of Miss Parker and had shown the picture to some other employees. Roncali told Thrash in effect that he did not think that Thrash should keep the picture and be showing the picture to others since Miss Parker was about to be marred. Thrash told Roncali in effect that the matter was none of his business. Roncali then told Thrash in effect that if there were a fight, he would be for Miss Parker's boyfriend. - In March 1973, Thrash became a member of the Union's in-plant organizing committee. Between March and the time of his discharge, Thrash was active and open in his union activities. Thrash handed out union leaflets, passed out union T-shirts, attended union meetings on Thursday nights, engaged in handbilling in front of the plant, and talked to employees at work about the Union. In June 1973, the Respondent suspended Thrash for 3 days because he had left work without permission. This incident was not alleged to be violative of Section 8(a)(3) of the Act. Nor did the General Counsel in brief or argument contend that this incident was revealing of background ani- mus. Further, although Thrash's testimony was to the effect that he had told his foreman that he wanted to be off on the occasion that he was away from work, his testimony does not reveal that he had received permission to be away from work. Further, Thrash's testimony also revealed that at the time when Superintendent Harvey told him of the suspen- sion, Foreman Griffin stated that he hadn't heard Thrash say anything about wanting to be off from work. The sum of such facts is insufficient to reveal that the suspension was improper or constitutes evidence of antiunion animus. During the period of time of Thrash's union activity prior to September 6, 1973, Thrash made remarks to other em- ployees about Manager Speed, Superintendent Harvey, and Foreman Griffin. Thus on frequent occasions Thrash would make remarks when Harvey or Griffin went by, whereby he referred to such supervisor as "that son of a bitch." On at least one occasion, when Manager Speed had been nearby and left, Thrash remarked "there goes that roachheaded son of a bitch." 8 As the facts previously show, Thrash had had an argu- ment and fight with Usry in 1972. As the facts also show, Thrash and Roncali had in March 1973 argued over Thrash's possession of Miss Parker's picture. The facts re- veal that Usry and Roncali are friends an d that the two are also friends of supervisors Harvey and Griffin. The facts also reveal that Usry and Roncali went to union meetings and displayed a type of questioning interest indicative that their sympathies were against the Union.9 It is clear that the remarks that Thrash made concerning Speed, Harvey, and Griffin were communicated to manage- ment. On July 6, 1973, Manager Speed spoke to Thrash about the remarks made by Thrash concerning Speed. What oc- curred is revealed by the following credited excerpts from Thrash's testimony.'° A. I was working at my upholstery table. At 6 ap- proximately, between 6:30 and 8 o'clock Mr. Speed came out to my table where I was at. He said he wanted to see me. I laid my tools down and went to his office. When I got to his office, Jimmy Harvey, the night shift plant manager was already in the office. Mr. Speed said, "Mr. Jimmy Harvey is in here just to hear what I say." He said, "Kenneth, I have the right to fire you right now if I was of a mind to." I said, "I want to know why." He said, "Kenneth, I have six people over in the upholstery department who said they heard you call me a lying S. O. B." Well, I said, "I hadn't said nothing like this. If they was going to accuse me, let them come in and accuse me to my face." He said, "No, Kenneth, we aren't going to bring people in. I already told you I wasn't going to fire you for this. So let it be. The point we want to get across is that you don't get so worked up that you can't work B I discredit Thrash's testimonial denial that he made such remarks Con- sidering the logical consistency of all the facts and the fact that I found Usry to appear more frank, forthright, and truthful as to his testimony in such rejard, I credit Usry's testimony over the Thrash's on such point. The weight of the facts relating to Roncah's actions at union meetings and at the plant persuade that he was opposed to the Union. I discredit his testimony to the opposite effect. 10 The General Counsel contends in effect that Speed' s discussion of Thrash's remarks about him constituted part of a plan to discharge Thrash for his union activity on a pretext. The evidence is insufficient to establish such point Rather, the overall facts reveal that Thrash appeared to be a person who argues that he is right on every point, that Thrash resented criticism, and that Speed was attempting to prevent Thrash' s getting too worked up in his day by day relationship with supervision. In short, Speed and Harvey were trying to keep Thrash from acting as if had a chip on his shoulder. The question of the Union was referred to. The facts are obvious that Thrash was allowing his feeling for the Union to affect his day by day attitude. I find nothing improper, therefore, in the fact that the Union was referred to and discussed Since the General Counsel's theory involves a question of planned pretexts, and since many of the events were excitable in nature involving manners and conclusions of witnesses, I am persuaded that the excerpted testimony of the witnesses as to some of the events, paints a better picture than the facts boiled down LA-Z-BOY SOUTH, INC. 299 after the union gets in." I said, "Mr. Speed, I have nothing against you or any of the bosses. My feeling is that I am for the union. I am 100% for it. And I am going to do everything I can to get it. I believe it would do the La-Z-Boy people some good." He said, "Well, Kenneth, we usually leave it up-we always leave this up to our employees to make their own decision as to this." And he said, you know, that he just wanted to make just get across that they didn't want me to get so worked up over the union that I couldn't work there. And Jimmy Harvey was sitting there. He said, "I want to ask you a question." I said, "All right." He- said, "Ken, you have the idea that we are out to get you. We are out to fire you." I said, "No, Jimmy, I don't have that opinion," even though I did. "And, Kenny, we aren't out to get you. We like you. You are a good worker. You build good chairs. If we didn't like you and didn't want you working here, we wouldn't let you come back." I told him, "I don't have anything personal against any of the other bosses that work there. I don't have anything against them." So Mr. Speed, I told him again that, "I didn't call them this." He said, "I wasn't going to fire you for that." He said, "Go on back to work." A. Yes, Mr. Speed started talking about how a union was organized into the plant and he said, "Well, first you have got to have an election." I said, "Yeah, I am familiar, you know, how the proceedings-how you go about it." I had been going to the union meetings three months, a couple of months, anyway. "You know, Kenneth, when you have an election, the union will petition and the company will set a date and a time and a place for the election to be held and the union will go along with it." I said, "No." I knew that it didn't work that way. I knew that the union would petition for an election and the government would set the time and date and the place for the election and the company and the union would agree to it. One of Thrash's job functions was the placement of cer- tain tacks in the back of chairs. On several occasions super- visor Harvey spoke to Thrash about his not placing such tacks in the chair. On such occasions Thrash took the posi- tion that he was doing his job right and that he was being picked on.tl On July 10, 1973,-Thrash left some tacks out of a chair that he was working on. What occurred is revealed by the following credited excerpts from Thrash's testimony. 12 11 Considering the logical' consistency of all the facts, I am persuaded that Thrash presented himself as a person who resented any correction at all. ... Jimmy Harvey came to my table and said he would like to talk to me. We went to his office. "Kenneth, Thomas is just in here" . . . like Mr. Speed did . . . "to hear what we have got to say." It didn't make any difference to me. I said, "All right." He said, "Kenneth, I have a right to fire you right now." He used the same words Mr. Speed did. So I said, "What is it this time?" He said, "Well, Kenneth, are you aware that you left two tacks out of that body that you are building out there?" - Q. Would you explain what you mean. A. In the back of the body of the chair there is a tailgate and in this tailgate you put two tacks to hold the tailgate down. It's always done. I said, "I didn't know I left tacks out of it." He said, "Kenneth, you did. All I would have to do is tell Mr. Speed and Mr. Roach and they would let you go and you would be out of a job." And he says, "But I am not going to do that." He said, "Kenneth, the reason I-I am not trying to harass you.-I want to get the point across to you that we aren't after you. I want to let you know we aren't trying to get you." I let him know I didn't have that feeling. I always tried to keep him clear, anyway. He said, "Kenneth, your outside activity is your business. That doesn't mean anything." So Thomas Griffin said, "Kenny, you seem to be trying to cause trouble for me and Jimmy out on the line." I said, "Thomas, I am not trying to cause trouble for anybody. I am just trying to make a living." I told them that I had nothing personal. I was for the union and I felt that was my business but I wasn't trying to cause any trouble for them. He said, "Go back to work." So I went back to work and straightened the chair out. During a period of time approximately a week to a week and a half before July 20, 1973, Thrash displayed the picture of the young lady, previously referred to, to some of the 12I discredit Thrash's denial that Harvey had talked to him previously about leaving tacks out of chairs. I credit Harvey's testimony to the effect that he had talked to Thrash about leaving tacks out. The facts reveal clearly that on this occasion Thrash had left tacks out. This reveals that Thrash did not always put the tacks in the chairs. As previously indicated, Thrash was prone to resent supervision or criticism The General Counsel argues that the fact that written reprimands were not issued establishes that the incident was part of an overall pretextual plan. Considering Thrash's earlier 1972 fight with Usry and the lack of reprimand or action thereto, I am convinced that Harvey's testimony that he "talked" to employees as to bad work and did not issue written reprimands is truthful and so credit the fact. In view of Thrash's attitude, I find Harvey's explanation given to Thrash to the effect that he was trying to show Thrash that the Respondent was not after him to reveal the real reason for the discussion. I discredit certain aspects of Thrash's testimony on this point since it is conclusionary and I found Thrash to appear to be a witness attempting to build his case and present himself in a light favorable to himself. I do not believe or credit such testimony. The General Counsel also argues that the leaving out of tacks was such a small problem that the discussion by Harvey with Thrash was unwarranted. Con- sidering Thrash's attitude and Respondent's awareness of such attitude, I am persuaded that Harvey, as he told Thrash, was merely trying to demonstrate to Thrash that they were not out to get him. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees. Roncali around July 19, 1973, asked Thrash why he didn't give the picture back to the young lady if this were what he was going to do with the picture. Thrash told Roncali that he had no intention of giving the picture back to anyone.13 The problem between Thrash and Roncali concerning the picture of the young lady arose again on July 20, 1973.14 What occurred is revealed by the following credited ex- cerpts from Thrash and Roncali's testimony. Excerpt from Thrash's Testimony A. I was-well, a boy across the line from where I was was talking about the union. We had had a union meeting on Thursday. This was on Friday. I asked him if he really accomplished something up there and really joking. I was telling him about the union. He was still similar to being on the fence. He wasn't one way or the other. And Lewis, he butted in our conversation and started downgrading the union and said, "Those people up at the union hall were nothing but high-paid profes- sionals to get our money and we were going to lose all sorts of things if they got in." He was downgrading and I was taking up for the union. Another employee, who works beside me, Jim- my Bishop, he said, "Tell this fellow you didn't get a whipping over this girl's picture." Well, I told him what he said. After we argued he decided we would settle it right there and then. * * A. Yes. I didn't get excited. I didn't think it was serious, anyway. This fellow Bishop said, "Tell him you didn't get a whipping over this girl's picture and you didn't think he was big enough now." Excerpt from Roncali's Testimony 15 mony.16 A. All right. So in about 30 minutes Jimmy Harvey called me to the office and he says-when I walked into the office area there him and Thomas Griffin was standing in the hall-and he said, "Kenneth, two men in the office here want to see you." Well, I didn't know who they were. Well, I had been in the office two or three times. I figured somebody was in the office. There was a gentleman sitting down and a young fellow leaning up against the desk. The fellow sitting down, he told me his name was Parker and I told him mine then. I didn't know who he was after he told me. He said, "Kenneth, you have got a picture of my daughter." And he said, "I want it." So I really-when I work I take my pocketbook and watch and things and lay them out on the bench. "I will go get it." Q. Better slow down. A. I walked out on the upholstery line and got the picture. I came back to the, office and gave it to the man. I would like to explain about this. I told him I would like-"Mr. Parker, this doesn't really involve you or your daughter or your son-in-law. This is be- tween me and Lewis Roncali. It's a union affair be- tween me and the company and the union." He said, "Well, Kenneth" . . . he was upset . . . he said, "Kenneth, if I knew what was going on was true," ... he talked to me pointing his finger at my face .. . and said, "I would blow your brains out." I said, "This doesn't involve you. Roncali is just using this to keep things stirred up between me and him." He talked a little bit. He left. He was cussing. He said he better not have to come back up there. If he did, there was going to be trouble. And I walked on out. And while I was in there I tried to explain that there wasn't nothing between me and this girl. What I had been accused of was talking more than anything else. Thrash then returned to work and had an argument with Roncali as is revealed by the following credited excerpts from Thrash and Roncali's testimony. A. Well, when he started the last-well, I can't re- member all that, but that Friday night he started talk- ing about her, putting her down and indicating what she was and all about her... . Later that evening the following event occurred as is re- vealed by the following credited excerpt from Thrash' s testi- 13 Considering all of the facts and the demeanor of Roncali and Thrash as they testified to the "picture" question, I found Roncali to appear to be more frank, forthright, and truthful with respect to the display of the picture during the period of time around a week or two before July 24, 1973. 1 credit Roncali's version of facts over Thrash's 14 Considering the testimony of Thrash, Roncali, and Speed concerning the timing of events, I find Speed's testimony to the effect that the Thrash- Roncali fight occurred on July 23, 1973, more reliable, and that the timing of events is as set forth. A different timing of events, however, would not affect the results herein. 15 I do not credit Roncah's testimony to the effect that Thrash had de- scribed the young lady as a whore. Rather, I am persuaded that this was Roncal's conclusion from what Thrash had said, as indicated with respect to whether Thrash had dated or not dated the young lady Excerpt from Thrash's Testimony 17 A. I went back on the line and Roncali and I had an argument. I said, "I thought it was really pretty silly to get somebody involved that really wasn't involved." i6 I note that Thrash told the girl's father that the problem was a union problem. The overall facts reveal that Thrash presented himself as a person who was never wrong I am persuaded that he attempted to portray his problem regarding the picture as a union problem as justification. I am persuaded that the basic argument between Thrash and Roncali was because of the picture. If the union probelm were involved, it was because Thrash disliked Roncah's opposition to the Union, and Thrash and others tried to agitate Roncali by remarks and display of the picture in front of Roncali. 17 Thrash also testified, and Roncali denied, that Roncali told him that he wanted to see Thrash and his father fired. Thrash's pretrial affidavit to the event does not contain such statement. I am persuaded that Thrash has tried to build his case in many respects; I did not find him to appear to be a fully frank, forthright, and truthful witness to this and to many other issues I found Roncali to appear to be a more frank, forthright, and truthful witness than I did Thrash on this point. I credit Roncali's testimony in such point and, discredit Thrash's testimony on such point. LA-Z-BOY SOUTH, INC. 301 We had another argument, and a cuss-out. I thought it was pretty stupid. He left where he was working and came to where I was working and he said, "OK. We will just settle it right here." I said, "We will not get in any fight here in this plant. You know that if I get in any trouble I will be fired." Excerpt from Roncali's Testimony A. He-when I come back from calling her up, he said, "You pussy you." The Fight on July 24, 1973, and the Suspension of Thrash Shortly after work had concluded on the July 23, 1973, night shift, around 12:15 a.m. on July 24, 1973, Thrash and Roncali engaged in an argument and fight on the company parking lot.18 After Roncali, Thrash, Usry and other employees had left their job and were in the parking lot, the events connected with the argument and fight commenced. Kenny Thrash, Ricky Hillman, and around a dozen more or less of Thrash's friends were around Thrash's father's car. Roncali was en- route to where Usry and 3 or 4 friends were, at a car approx- imately 25 feet from the Thrash car. Roncali motioned to Kenny Thrash and Thrash in return motioned to Roncali to come over to where Thrash was. Roncali went over to the Thrash car. Exactly what were the first remarks made and who made them is not clear. It is clear that Thrash and Roncali re- sumed their prior argument about Thrash's having a picture of Miss Parker 19 and showing the same to others. Roncali 18 The facts are based upon a composite of the credited aspects of all the witnesses to this incident. Testimony of such witnesses inconsistent with the facts found is discredited. The witnesses were Kenny Thrash , Thomas Thrash, Payne, Beal, Usry, Roncali, and Harvey. The testimony in large consisted of testimony of friends or relatives of either Thrash or Roncali. The testimontal versions, as tested on cross-examination , revealed in effect that the different versions painted the respective friend or relative, Thrash or Roncah, in the best light and the other in the worst light. The testimonial versions differed as to who first motioned to the other (Thrash or Roncali) and the General Counsel's version was presented in an attempt to establish that the "fight" was a setup for use as a pretext to discriminate against Thrash. Considering all of the testimony on cross-examination of the witness- es, the reliability of observation, the conclusionary effect of some of the testimony, I am persuaded that the preponderance of such testimony requires the crediting of Thrash's and Hillman's testimony to the effect that Roncali first motioned to Thrash. Further, I am persuaded that the preponderance of the facts not in dispute reveal that Roncah was not planning a fight. Thus, I note that Roncali is a much smaller person than Thrash. Roncali is 5 feet, 6 inches in height and weighs approximately 125 pounds Kenny Thrash is over 6 feet in height and weighs around 180 pounds. Roncali had three friends who were present with him. Thrash had a dozen, more or less, friends with him according to Thomas Thrash's credited testimony. The testimony of the General Counsel's witnesses concerning observation of supervisors Harvey and Griffin at a distance does not establish that Harvey and Griffin were standing and observing the fight. Such testimony merely establishes that possibility that the two could have observed the fight I find it hard to believe there was a prearranged plan to set up a fight between Roncali (who was so much smaller than Thrash) and Thrash with the cast of supporters so dispro- portionate. I credit Harvey's and Griffin's testimony to the effect that they were not observing the fight, but merely became aware of the fight and stopped said fight. accused Thrash of having indicated to others that he (Thrash) had dated the young lady. Thrash called Roncali a liar and told him that he had never gone with the girl, that the girl meant nothing to him. Roncali called Thrash a liar. Thrash then called Roncali a black faced whore. 0 Appar- ently at this time Roncali told Thrash that they might as well settle the matter now and swung at Thrash. Around this time Roncali's friends started toward the scene of encounter. Thomas Thrash, father of Kenny Thrash, separated Kenny Thrash and Roncali, told both in effect to stop and attempted to stop the fight and argument. Thomas Thrash also told Roncali's friends to stay out of the matter. Roncali and Kenny Thrash continued to cuss and argue, and Roncali broke loose from Thomas Thrash and commenced swinging at Kenny Thrash. The facts are clear that during the ensuing struggle Roncali was unable to be effective in his swings and that Kenny Thrash was effective in his efforts to fight and hold Roncali. During the time that Thrash and Roncali were arguing, before the fight, Superintendent Harvey and Foreman Grif- fin had walked by. The two went elsewhere for the purpose of listening to some tapes (music). On their way back across the parking lot, the two saw the fight and stopped the fight. Thomas Thrash apologized to-superintendent Harvey for the incident. Kenny Thrash told Harvey in effect that he had tried to avoid the fight. Exactly what Harvey said to Kenny Thrash is not revealed. Kenny Thrash's testimony was to the conclusionary effect that Harvey "chewed me out about it." Foreman Griffin remarked in effect that he knew that something like this was going to happen. Payne, an onlook- er, spoke to Griffin and said, "if somebody kept picking on you and made remarks and hit you, would you let him hit you like that?" Griffin replied, "No, I wouldn't." Personnel Manager Speed learned of the fight the next day and took steps to ascertain the cause of the fight. Speed first spoke to two employees whom he believed would give him the truth. These two individuals were George Matthew Morgan and Billy Morgan. Speed ascertained from the Morgans that there had been an ongoing argument between Thrash and Roncali prior to the fight, that the argument was about a picture of a young lady, and that Thrash had been showing the picture on the upholstery line. Around this time Thomas Thrash saw Speed and gave Speed his version of the fight incident. Later, Speed and plant manager Roach called Kenny Thrash and Roncali into the office to get their versions of what occurred. What occurred is essentially revealed by the following credited excerpts from Kenny Thrash's testimony 21 A. Well, I had been working just a few minutes. Right after the shift started Jimmy Harvey came out to where I was and said, "Kenny, Mr. Speed and Mr. 19 Miss Parker is now married . For simplicity, she will be referred to throughout this decision as Miss Parker. 20 1 credit Roncali's testimony to the effect that Thrash called him a black faced whore I discredit Thrash's testimony in demal thereof. 21 I do not credit Thrash's conclusionary testimony to the effect that all of the employees agreed with his side of the story. Essentially, the facts would appear to suggest that the employees agreed that Roncali threw the first punch The overall facts reveal, however, that the question of the "picture" and argument thereto was also involved. Nor do I credit Thrash's conclu- sionary testimony that Speed "hung his head " 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roach want to see you in their office." I said, "Harvey, I am not going in that office by myself." He said, "Ken, you will not be in that office by yourself." He said, "Mr. Speed, Mr. Roach and Tom- my and I will be in that office." I said, "That's what I mean. I am not going in there. There is too many people on this line that saw what happened to get railroaded." He said, "Come on. Tell Mr. Roach that." I came to the office and told Mr. Roach I didn't want to be in there by myself. There is too many people that saw us, that saw what happened. He said, "Kenneth, you are not on trial." He said sit down. And at about the same time he called the Ronca- li boy in. He said, "We just want to find out what happened. Start first and tell your story." So I told Roncali, "You go ahead." And he said, "No, you first." And I began to tell what happened the Friday night before then and the night before this particular day. Oh, two or three times while I was telling what I knew, Roncali interrupted me and said that was a he, that I had been telling something that was wrong. So each time that he interrupted me I told him, "There is no sense you and me getting in an argument here in the office. There are too many people on the line that saw what happened, too many saw what happened." So each time I said this, Mr. Roach and Mr. Speed said, "We are not going to get anybody else involved. We are going to settle this between ourselves. And we aren't going to bring anybody else in." I said, "My daddy saw what happened." Mr. Speed said, "I already talked to your daddy. We aren't going to bring your daddy in here." About the third time Mr. Roncali interrupted-and each time I told them the people on the line saw what happened. So finally they decided to bring in the up- holstery line employees that saw what happened. I told them my daddy saw what happened. I wanted him in here too. Mr. Speed said, "Under no circumstances is your daddy coming in-here." I said, "Why are you singling him out?" He said, "I already talked to your dad. I have got his side of the story. I am not going to bring him in." They sent Jimmy Harvey to get the boys on the upholstery line. When I first came into the office I started telling them that "Well, it' s no secret about how I feel about the union and how Lewis Roncali feels about it. I am for it and he is against it. This is what it boils down to." Mr. Roach, while Jimmy Harvey was out-gone af- ter the people that worked on the upholstery line, he said, "Kenneth, I would just like to ask a question. What is so wrong with La-Z-Boy that you feel you need a union?" I said, "Mr. Roach, I will express my feelings at the union meetings." He said, "Kenneth, there must be something bad wrong why you want a union." I told Mr. Roach, "I have never been in this office when I thought I was getting a square deal." He said, "Well, Kenneth, you wanted to come back to the night shift from the day shift and we brought you back." And I said, "Yeah, you did." And he said, "There must be something wrong here why you want a union." And I said, that, "I would talk about it at the union meetings." Well, in a few minutes Jimmy Harvey came back with all the boys on the upholstery line, about 20, a pretty good bunch of them. And Mr. Speed asked them how many of all of them saw the fight last night and the ones that saw the fight all raised their hands and how many saw the argument Friday night and the ones that saw the argument, they raised their hands. And Mr. Speed said, "Just how many of you didn't see anything?" And the ones that didn't see anything raised their hands. "Well, the ones of you that didn't see anything, you can go back to work." And that group left. And there were eight boys left of the uphol- stery department. Mr. Speed said, "Did all you boys see the fight last night?" And the ones that did said they did. "And did you hear the argument?" And the ones that did hear the argument said they heard the argu- ment. And Mr. Roach said, "We called you in here to see what happened last night." And he asked who started the fight. Well, a couple of boys told him that Roncali had started the fight. And they told him that I did what I could. They thought I did what I could to avoid an argument. And he asked them, do you definitely say that Roncali started the fight?" And they all said, "Yes." ... So after he had talked with them a while he let them go back out to work. And he said-Mr. Speed started talking about-I forget just exactly what he was saying, but he was talking general- ly about the union. He said, "It always happens with something like that, with a union campaign, somebody always gets in trouble, somebody always gets in trou- ble, gets in a fight." He said, "Kenny, Halls was done like that. Others had it done like that," he said. I said, "Mr. Speed, you are talking to both of us?" He said, "No, Kenneth, I am talking to you." So in a few minutes Mr. Roach said, "We already decided what we are going to do." He said, "If we could see clearly that one started the fight and one was an innocent party, we wouldn't take any disciplinary ac- tionagainst the one who was innocent." I told Mr. Speed, "I did all I could to avoid a fight out there." . . . He didn't have anything else to say. Well, Mr. Roach said, "We already made up our minds. We see clear that this was started on both sides, from both parties." He said, "We are going to lay you two off a week." But he said, "We want to make things clear. We want you all to get along when you get back from your suspension." It is noted that Thrash's testimony refers to Speed 's ascer- tainment about the "argument." I credit Speed's testimony to the effect that he ascertained the facts relating to the prior LA-Z-BOY SOUTH, INC. 303 argument about the young lady's picture and Thrash's dis- play of such picture. As a result of the foregoing, the Respondent suspended Thrash and Roncali from employment for 1 week. Around the time of the fight between Roncali and Thrash on July 23, 1973, apparently during the period of time after the fight and during August 1973, information was brought to the attention of Personnel Manager Speed indicative of tension at the plant. Thus, Kenney Thrash's mother called Speed and told him that someone had been riding the roads in their neighborhood all night long, that her neighbors had told her that people had been asking for them and where they lived. Speed told Mrs. Thrash that he would do what he could and suggested that she call the sheriff or police. Around the same period of time, Thomas Thrash, Kenny Thrash's father, came to Speed's office and told Speed that he had it upon reliable information that "they are going to try to get me tonight." Speed asked Thrash to relate this information to Mr. Roach. Speed asked Thrash to tell him who was trying to get him. Thomas Thrash said to Speed, "You know." Speed told Thrash that he did not know. Thrash repeated that he had it on reliable information that "they are going to try tonight." Speed contacted the police to arrange for police to be at La-Z-Boy at 12:15 that night. Speed was in contact with the police during this period of time and was told that there would be trouble if the Respon- dent didn't keep their finger on the problem out there. Apparently during this period of time the Respondent's night watchman saw Kenny Thrash with a pistol on the parking lot .22 There is no evidence that this was reported to higher ups by the watchman. From some source, however, it is clear that Manager Speed received information to the effect that Thrash and others had guns on the company property. Speed contacted Police Chief Wilson and asked him to check such information out. Police Chief Wilson reported back in effect that he had found no evidence that Thrash was carrying a gun.23 The Truckstop Incident and several other boys were wearing union T-shirts. And we were out handbilling leaflets. Q. Before you went to work? A. Before I went to work. There were several fellows that wanted T-shirts that didn't have them and I believe I gave T-shirts to four different boys that afternoon. When it came time to go to work there were 16 of us that wore T-shirts that night. We all filed in in a single line. We all went together. Mr. Roach was standing by the time clock. We went filing in. And that night after work my wife and Ricky Hillman's wife came down to pick us up. They came in my car. On the night of August 31, 1974, as employees from the night shift were leaving work, Kenny Thrash remarked "I will whip that son of a bitch's ass." Roncali and Usry were nearby. Usry told Thrash to watch his mouth. Later that night Thrash, Ricky Hillman, and their wives were in a car at a truckstop restaurant location. Roncali and Usry were in Roncali's car at the same location. Kenny Thrash started to leave the truckstop area in his Pinto car. As he was driving out, he drove close to where the Roncali car was parked. Usry had gotten out of the Roncali car and was walking toward the gas pumps. As Thrash's car went by where Usry was walking, Usry hit the top of Thrash's car with his hand or fist. 4 The blow on the car caused a loud noise. Thrash stopped his car and got partially out of the car. Usry in the meantime was near the gas pumps. Usry re- moved his glasses and placed them on the gas pump. 5 Thrash called Usry along haired s.o.b., and told him that he was not paying for the car to have someone tear it up. Thrash stated that he was going to kill that son of a bitch, and asked his wife where his gun was. Mrs. Thrash told Thrash that the gun was under the seat but that he shouldn't get it. Thrash got the gun, a 22 pistol, from under the seat, pointed it at Usry, and said "You son of a bitch I am going to kill you." Usry told Thrash that if he were going to shoot, to go ahead and shoot, that they might as well settle it now. Usry started toward Thrash. Thrash got in his car and drove off. 26 The Discharge of Thrash On August 31, 1973, certain union adherents wore union T-shirts into the plant for the first time as is revealed by the following credited excerpts from Thrash's testimony. A. This was the first day we wore union T-shirts into the plant. That afternoon I was wearing a union T-shirt 22 The facts are clear that on one occasion, at least, Thrash had a pistol in his possession on the company parking lot . Thrash testified to such effect and that he had borrowed it for target shooting. 23 Speed's testimony was to the effect as indicated in the facts found. Wilson in his testimony denied that he was specifically told to check whether Thrash had a gun, and denied that he told Speed that he had no probable cause to believe that Thrash had a gun. Wilson testified that he had picked up information that Thrash might have a gun. There is a distinction between probable cause for Wilson to believe, and probable cause for Wilson to act as a police chief The gist of Speed's request was to check as to a number of employees, including Thrash It is clear that Wilson so construed the request. I find that Speed requested the checking of Thrash and others relating to guns I am not convinced that Wilson accurately recalled such conversation. I am persuaded, however, that he testified to the truth as he best recalled the events. 24 Usry testified to the effect that he merely was pushing off from the car. Considering all of the testimony and the thrust thereof, I do not credit Usry's testimony to such effect I credit the testimony of Hillman and the Thrashes to the effect that there was loud noise and to the effect that there was a resulting dent on the top of the car, Considering all of the facts, I am persuaded that Usry intentionally hit the car and in effect was provoking an incident. 25 It is clear that the events in this case concerning the fight in July and the incident of this date were exciting events. Witnesses to these events have difficulty in presenting all of the minor details correctly. Coupling this with the facts that the witnesses to these events shaded the facts to present a better case from their view point, one has to weigh logical consistency of facts and plain logic in determining facts The witnesses are in dispute as to whether Thrash had a gun. Usry's testimony was to the effect that he put his glasses on the gas pumps after the "gun" was in the picture. I am persuaded from all of the facts'that Usry was attempting to initiate a fight. I do not believe that Usry would take off his glasses after becoming aware that Thrash had a gun. From all of the facts, especially Lang's testimony relating to seeing Thrash pick up an object, I am persuaded that Thrash did have a gun Considering all of this, I am persuaded that Usry took his glasses off before he was' aware of a gun and so find the facts. The testimony of witnesses inconsistent with the facts found is discredited. 26 Thrash, Hillman, and Mrs. Thrash testified in denial that Thrash had a gun or pointed the gun at Usry. Usry and Roncali testified to the effect that Continued 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day Usry, or Usry and Roncali, initiated state court criminal proceedings against Kenny Thrash in con- nection with the incident of Thrash's having pointed a gun at him. A warrant relating thereto was served on Thrash on September 4, 1973. Later Thrash initiated criminal charges of his own against Usry relating to damage to his car." On September 2, 1973, Sheriff Lindsley, of Newton Coun- ty,28 told Personnel Manager Speed that Kenny Thrash had allegedly pulled a gun on Usry in the truckstop incident. Thereafter, on September 4, 1973, Speed sought out Usry and received Usry's version of what had occurred. Usry told Speed in effect that Thrash had pulled a gun on him and threatened to kill him. Thrash was released on bond and returned to the plant on Tuesday night, September 4, 1973. What occurred then is revealed by the following credited excerpts from Thrash's testimony: A. Well, I went in the side door like all the employ- ees from the parking lot on the side. Jimmy Harvey was waiting and he said, "Kenny, Mr. Speed wants to see you in the office." I went right direct to Mr. Speed's office. And he said, "Kenny, I hear you are in trouble again." I said, "No., Mr. Speed, I am not in trouble." Q. Excuse me. Was there anybody else in the office at this time? A. No, I don't believe so. He went on and said, "Do you want to talk about it?" I said, "No, it's personal. I don't want to talk about it." He said, "Is it serious? I'heard you are involved in criminal activity." I said, "It can't be too serious because I am not in jail." He said, "You are charged with ..." He leaves it like that for me'to tell him what I have been charged with. He said, "Kenneth, the sheriff comes in here and tells me that you have been charged with . . ." And again he leaves it like that. When he sees I am not going to finish it, he said, "Kenneth, do you have it straight- ened out?" I said, "Well, I have got it straightened out for now." He said, "What do you mean for now?" I said, "I have got a hearing on it on the 19th of this month." He said, "Kenneth, we are going to suspend you until then." I said, "OK." I turned around and left. Thrash had a gun and pointed it at Usry . Lang, a station attendant, testified that he saw Thrash drop something to the ground and pick it up. Thrash testified to the effect that he did own a gun. Mrs. Thrash testified to the effect that she did not know that Thrash owned a gun Hillman's pretrial affidavits and statements were to the effect that he was not paying a great deal of attention to what was going on I find Roncali's and Usry's statements and testimonial demeanor on such point to appear to be more frank , forthright, and truthful on such point than opposing testimony or demeanor of other witnesses I credit Roncah's and Usry's testimony as to the question of the gun over that of the Thrashes and Hillman 27 Such criminal charges have either been nolle prossed , dismissed, or are still pending There was no adjudication thereof on the merits. 28 The County wherein the truckstop incident occurred. Af ter talking to Thrash on the night of September 4, 1973, Speed spoke to other employees about the incident. An employee named Jimmy Gainey told Speed that he had seen Thrash point a gun at Usry during the incident at the truck- stop. Speed spoke to one or two employees who he thought had witnessed the truckstop incident but learned that they had not. Speed spoke to Roncali who gave him essentially the same version of the truckstop incident as had been given by Usry. Speed spoke to Ricky Hillman on Wednesday, September 5, 1973.29 Ricky Hillman told Speed that he did not want to talk about the truckstop incident, that he did not think it was any of his business or concern, that he did not know what happened because he was not paying that much attention to the incident. Speed then decided to discharge Kenny Thrash. Kenny Thrash was at the plant at 6 a.m. on September 6, 1973, and handed out handbills. What happened on Sep- tember 6, 1973, is revealed by the following credited ex- cerpts from Thrash's testimony: A. I was wearing my union T-shirt. As a matter of fact the night the sheriff came to get me I was wearing my union T-shirt. I was in front of the plant handing out union leaflets from about 6 to 6:15. In the af- ternoon I was there from 2 o'clock to about 2:15. At 2:15 I went into the office. I wanted to get my check. I knew that he made the checks out on Thursday. I went in the office and told him I wanted my check. He reached in the desk and pulled out two checks and said, "Kenneth, we are going to let your suspension be per- manent." I said, "Any special reason?" He said, "Yes, you have already been suspended. We are tired of you jumping on our employees." So I turned around and walked out. Conclusion The General Counsel contends that the Respondent (1) discriminatorily suspended Thrash on July 24, 1973, with respect to the fight incident, (2) discriminatorily suspended Thrash on September 4, 1973, with respect to the truckstop incident, and (3) discriminatorily discharged Thrash on September 6, 1973, with respect to the truckstop incident. The Respondent contends that it suspended Thrash and Roncali on July 24, 1973, because of the fight on July 23,- 1973, and since from the overall facts both appeared equally at fault and blame could not be attributed to one, that its suspension on September 4, and later discharge of Thrash because of the truckstop incident was for nondiscriminatory reasons, to wit-its belief that Thrash had pulled a gun on Usry at the truckstop and the Respondent's desire to keep the lid on possible violence. Considering all of the facts, I am persuaded, and con- 29 The testimony of the witnesses Speed and Hillman is not clear as to when Speed spoke to Hillman Speed believed he talked with Hillman on Wednes- day Hillman believed that such conversation occurred on Thursday. Consid- ering the logical consistency of the facts, I am persuaded that such conversation occurred on Wednesday before the discharge of Thrash on Thursday. A finding that such conversation occurred on Thursday would not affect the ultimate results of this decision LA-Z-BOY SOUTH, INC. 305 clude and find, that the evidence is insufficient to establish that Respondent discriminatorily suspended Thrash on July 24 and on September 4, 1973, or that Respondent discrimi- natorily discharged Thrash on September 6, 1973. The facts are clear that Thrash was a strong union adherent and that the Respondent was aware of his strong support for the Union. The facts reveal that the Respondent is opposed to the Union and that on one occasion in July, Respondent warned an employee that Thrash was a strong union sup- porter. There is no evidence, unless Thrash's suspensions and discharges were found to be discriminatory, that reveals that the Respondent had a propensity to act discriminatori- ly because of its belief that employees were for the Union. On the contrary, Respondent transferred Thrash, at his re- quest, to a more desirable job in March 1973, when it knew he supported the Union. The General Counsel argues a theory to the effect that Respondent attempted to set up pretexts for the suspensions and discharge of Thrash. In my opinion, the evidence is insufficient to support such a theory. In July 1973 when Speed and Harvey spoke to Thrash on separate occasions about Thrash's having engaged in derrogatory name calling, and concerning the failure to place tacks in chairs, the facts reveal a background wherein Thrash had shown a hostile attitude toward supervision. It is clear that Thrash's union activity was contributing to his improper attitude of respect for supervision. In my opinion, the Respondent was merely trying to help keep his work attitude toward supervision in proper prospective. It was natural that some discussion about the union ensue, and Thrash, himself on many occa- sions brought up a discussion about the Union. As to the fight incident on July 23, 1973, and Respondent's investigation thereof, I am persuaded that the display of Miss Parker's picture and the background argu- ment between Thrash and Roncali was the contributing cause of the fight, that Thrash and some of his friends had in effect taunted Roncali by references to the picture and the fact that Thrash had not received a whipping, and that Respondent's investigation revealed that the fight was in part caused by Thrash's display of such picture. I have considered the fact that Speed apparently had a closed mind as to weight to give to Thomas Thrash's version of the fight. However, the facts reveal that Respondent had ascertained from other witnesses what would appear to be a reliable account of events. The Respondent accorded to both partic- ipants in the argument and fight the same discipline, a sus- pension for one week. In sum, I do not find the evidence to be sufficient to establish that the Respondent discriminato- rily suspended Thrash when it suspended him for 1 week on July 24 because of the argument and fight concerning Miss Parker's picture. As to the truckstop incident, I note that there had been hostility between Thrash and Roncali and Usry for some- time. Usry had overheard Thrash make a remark about "killing that son of a bitch" at the truckstop, and I am persuaded that Usry wanted to provoke a fight when he hit the top of Thrash's car. As the facts found reveal, Thrash did pull a gun, point it at Usry, and threaten Usry. On September 4, 1973, the Respondent was aware of the contention that Thrash had pulled a gun on Usry, and was aware that criminal charges were pending. Under such cir- cumstances, and since Thrash had not indicated any oppos- ing version of facts, I conclude and find that the evidence is insufficient to estabish that the Respondent was discrimi- natorily motivated in its suspension of Thrash from employ- ment on September 4, 1973. 9 In my opinion, the Respondent made a reasonable inves- tigation of the incident and had a basis for belief that Thrash had acted improperly in pulling a gun and pointing it at Usry. Further, the facts reveal a reasonable basis for concern that violence could occurr and should be deterred. I have considered the fact that Speed initially told Thrash that he would be suspended until the court hearing in the criminal charges, but then discharged Thrash on September 6, 1973. Considering the information which Speed ascer- tained on September 5, 1973, I do not place great weight upon this change of heart. In sum, I conclude and find that the evidence is insufficient to establish that Respondent discriminatorily suspended Thrash on September 4 and thereafter discriminatorily discharged Thrash on September 6, 1973. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. La-Z-Boy South, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Furniture Workers of America, AFL-CIO, is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By suspending Kenneth Thrash on September 4, 1973, and by terminating Kenneth Thrash on September 6, 1973, the Respondent has not engaged in unfair labor practices in violation of Section 8(a)(3) and (1) 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 30 The complaint in this matter is dismissed in its entirety. 30In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein, shall, as provided in Section 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