La-Z-Boy

National Labor Relations Board - Board Decisions

Sep 8, 1986

281 N.L.R.B. 338 (N.L.R.B. 1986)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
La-Z-Boy and United Furniture Workers of Amer-
ica, AFL-CIO/CLC. Case 1O-CA-21326
8 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 7 April 1986 Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge 's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect , Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
2 In affirming the judge 's conclusion that the comments made by Per-
sonnel Manager Kelly and Superintendent Brown to employee Jason Wil-
liams concerning a transfer did not violate Sec 8 (a)(1) of the Act, we do
not rely on the judge 's statement that Brown was "offering to assist Wil-
liams in a transfer ," and the judge 's finding that there was no indication
that any employee was intimidated or coerced by the comments Rather,
we find that , under all the circumstances , the comments would not rea-
sonably have been viewed as threats and hence do not amount to viola-
tions of Sec 8(a)(l) of the Act
J. Howard Trimble, Esq., for the General Counsel.
Allen Poppleton, Esq., of Baltimore , Maryland, for the
Company.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
case was tried at Dayton, Tennessee, on 28 January
1986.1 The charge was filed by United Furniture Work-
ers of America, AFL-CIO/CLC (the Union), on 5 No-
vember and the complaint issued on 26 November, alleg-
ing that La-Z-Boy (Company) violated Section 8(a)(1) of
the National Labor Relations Act (the Act), by about 24
and 25 October threatening its employees with loss of
wages and benefits if they selected the Union as their
' All dates are 1985 unless otherwise indicated.
collective-bargaining representative, threatening its em-
ployees that it would be futile for them to select the
Union as their collective -bargaining representative by
telling them its nonunion plants would always receive
better terms and conditions of employment than its union
plants, and threatening its employees that they would be
transferred to another plant if they joined or engaged in
activities on behalf of the Union . The Company, in its
answer dated 2 December, admitted various allegations
of the complaint but denied the commission of any of the
alleged unfair labor practices . I find for the Company on
all issues.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Company is a Tennessee corporation with an
office and place of business located at Dayton, Tennes-
see, where it is engaged in the manufacture and distribu-
tion of furniture . During the calendar year preceding is-
suance of the complaint, the Company sold and shipped
from its Dayton, Tennessee facility, finished products
valued in excess of $50,000 directly to customers located
outside the State of Tennessee. The complaint alleges,
the Company, by its answer, admits, and I find it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint further alleges, the Company admits,
and I fmd the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company has for the past 13 years held "gripe
sessions" with its employees. The gripe sessions are not
regularly scheduled; however, they are held approxi-
mately every 45 days to 3 months. The sessions, which
are held in the Company 's canteen area , usually involve
approximately 50 employees at a time. The meetings are
informal. The employees may eat, smoke, chew, have
Cokes, candy, or coffee during the gripe sessions. The
sessions generally start with 4 or 5 minutes of announce-
ments made by the company officials regarding, for ex-
ample, "new styles, vacations, picnics, bass tournaments,
[or] whatever" with the remainder of the sessions, which
last approximately 20 minutes, devoted to employee
"gripes" or "problems." The Company held 16 employee
gripe sessions on 24 and 25 October, at which Personnel
Manager Allan Kelly (Kelly) and Plant Superintendent
David Brown (Brown) were present.2 All the complaint
allegations arose out of the October employee gripe ses-
2 Brown testified his title was plant superintendent . It appears he is
generally referred to as the plant manager
281 NLRB No. 54
LA-Z-BOY 339
sions. All agree the Union was discussed at the October
gripe sessions.
The Union commenced an organizing campaign at the
Company in May. The Company operates a facility in
Florence, South Carolina , that has been unionized for a
number of years.
B. The Alleged Threats of a Loss of Wages and
Benefits
It is alleged at paragraph 7 of the complaint that Per-
sonnel Manager Kelly, about 24 and 25 October, threat-
ened employees with loss of wages and benefits if they
selected the Union as their collective-bargaining repre-
sentative.
The General Counsel presented three witnesses in sup-
port of the above complaint allegation . Three-year em-
ployee David Hughes (Hughes) testified that Personnel
Manager Kelly stated at the gripe session he attendeds
that if the employees voted in the Union "we would ab-
solutely start with nothing, not with what we've got-
concerning wages ."4 Three-year employee John Weaver
(Weaver) testified that "nothing really specific" was said
about wages at the gripe session he attended, but he
added Personnel Manager Kelly did say that basically
the Union would give up anything for checkoff and that
probably insurance would be the first thing to go.
Weaver testified Kelly said the Company would "wipe
the slate clean in negotiations and then ... backed up
and said, we'll start with minimum wage because we're
required to." Ten-year employee Jason Williams (Wil-
liams) testified Kelly discussed the Union's organizing
campaign at the gripe session he attended and "started
off" by saying : "If a union comes in, you'll start out with
absolutely nothing" and then added, "The only thing
that we have to pay you is minimum wage and that's be-
cause the Government makes us."
Personnel Manager Kelly testified he said essentially
the same thing at each of the 16 employee gripe sessions
that he held on 24 and 25 October . Kelly stated he did
not have a written script but that from his 13 years of
experience since the first organizing attempt , he knew
what he wanted to convey to the employees . Kelly testi-
fied he wanted to correct some misinformation and re-
spond to some union literature. Kelly testified:
I felt the misinformation was that the Union was
trying to get across the point to the employees-
sign a card , vote us in , you've got nothing to lose.
The only thing you can do is go from where you
are and add to that. That they were saying when
you sign a contract, everything you've got now will
automatically remain in place after negotiations and
the only thing that will happen is that we can add
to that. You can't lose.
I felt like this was a misrepresentation and I
wanted to straighten that out. So I tried to explain
9 Hughes estimated approximately 70 employees attended the session
that he did.
* Hughes stated other things were said about the Union that he could
not recall. He stated he could not recall minimum wages being mentioned
at all.
to the employees the process of negotiations and
how it works. And I more or less talked in generic
terms so it would cover as much ground as possible.
And what I did tell them is that "When you sit
down to negotiate or to bargain , that the contract
you start with is a blank sheet of paper . 5 There's
nothing automatically on that paper . That every-
thing that ends up on that contract is a result of the
negotiation." And you start from scratch on that'
contract . Everything comes out of negotiations and
you may end up with the same, you may end up
with less, you may end up with more-that's what
negotiations is all about.e
And I pretty well stuck to that with every
group-all 16-trying to explain how the process of
negotiations works . And I tried to get away from
the fact-or I thought the misinformation that they
had-hey, we don't start from scratch on the con-
tract, there's certain things that will automatically
be there-being those things that were in place at
that time and we can-the Union will add on to
that negotiation . That's not true. I tried to explain
to them so that they wouldn 't be under that misin-
formation.
Kelly denied he told the employees the Company would
start "with absolutely nothing except minimum wage, be-
cause that's what the Government makes us give."7 He,
however, stated he did
make a statement in the context about minimum
wage. And I don't remember the question, but the
answer was in respect-well, don't you have to do
certain things or if there are certain things that
happen-and I said yes, we have to pay minimum
wage. But I said everything else is up for negotia-
tions. But I said of course that negotiations-I mean
minimum wage would be the bottom line and then I
think I went on to say that's ridiculous. Nobody-
you know we are not going to pay minimum wage
regardless.
Kelly further testified:
What I tried to get across is the point-the pri-
mary thing that I was trying to get across to em-
ployees was that when you go into negotiations,
6 Plant Superintendent Brown and employee Wendell Worthington
(Worthington) testified Kelly spoke about a clean sheet of paper ; employ-
ee Roger Bedwell (Bedwell) stated Kelly talked about a blank sheet of
paper; and Brown and employees James Burchard (Burchard), Charles
James (James), Keith Laher (Laher), and Robert Pendleton (Pendleton)
stated Kelly spoke about negotiations starting from scratch.
s Plant Superintendent Brown , as well as employees Burchard , James,
Laher, Pendleton, Bedwell, Worthington , and Terry A. Smith (Smith) all
testified Kelly stated that as a result of negotiations the employees could
end up with more, less, or the same benefits.
' Plant Superintendent Brown testified Kelly did not say the Company
would withdraw wages and benefits to minimum wage before starting ne-
gotiations. Employees James , Pendleton, Bedwell, and Smith testified
Kelly did not say anything about cutting back to minimum wage before
negotiations started . Employees Burchard and Worthington testified they
did not hear any remarks by Kelly about minimum wage or cutting back
to minimum wage. Employee Laher testified he did not remember Kelly
saying the Company would cut wages.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there's no guarantee of what you 're coming out
with. It could be more, it could be the same, it
could be less . I didn't want them under the misun-
derstanding that you can't lose, that when you go in
all you can get is more, more , more. And so I'm
pretty certain that I covered that in every meeting.
Kelly stated insurance benefits could have been men-
tioned when he talked about dues checkoff. Kelly testi-
fied:
I did make the statements in some of the meet-
ings that the Union would be wanting a check off.
And then the question was asked, what's a check
off. And I explained the check off-you know, as
that's where the Union gets their dues from the
company, you know, without having to go directly
to the people. And somebody in one of the meet-
ings asked well , why would you give a check off
and I said , "Well, we would bargain and we would
negotiate ." And they said what 's that mean and I
said, "It's give and take and bargaining." And they
said like we might give up something and I said
yeah. And you know we were talking back and
forth like that . And they said what. And I said, "It
could be insurance, it could be holidays, it could be
vacation, it could be anything. I don't know what
we'd bargain for." So in that context, we-I don't
think we per se talked about insurance though,
other than in that context.
Kelly impressed me as a candid and forthright witness.
I credit his account of what was said in the gripe ses-
sions about the Union and negotiations. Therefore, the
issue is whether Kelly's comments constituted threats
that the employees would lose wages and benefits if they
selected the Union as their collective-bargaining repre-
sentative.
It is well settled that during a union campaign an em-
ployer is free to communicate to its employees its views
on unionism. An employer has the right to oppose union-
ism and to say so to its employees as long as the commu-
nications do not contain threats of reprisals or promises
of benefits. NLRB v. Gissel Packing Co., 395 U.S. 575 at
618 (1969). In the recent case of Clark Equipment Co.,
278 NLRB 498, 499 (1986),8 the Board examined some
eight pieces of campaign literature distributed by the
company therein and commented on portions of that lit-
erature as it related to alleged unlawful threats of loss of
benefits. The Board held the following statements accu-
rately reflect the obligations and possibilities of the bar-
gaining process and do not contain threats to bargain re-
gressively or in bad faith:
Neither the Company nor the Union can predict
what will be in the contract. Your wages and bene-
fits could turn out to be higher, lower, or the same
as they are now.
I'm sure the Union will try to tell you there is some
sort of law that will prevent the Company from ne-
gotiating for anything less than you now receive.
That statement is simply not based on facts. I've
given your supervisors copies of a decision in which
the Court upheld the employer 's right to inform his
employees that he may not even have to agree to the
continuance of existing wages and benefits
These facts may seem harsh, but I think it's impor-
tant that you know the truth about the collective
bargaining process before you vote . Remember bar-
gaining means putting everything on the table, includ-
ing the benefits you already have.
Bargaining with a union can be a complicated and
time consuming process during which the Union
and the Company negotiate to get an agreement
that both sides are satisfied with. And bargaining
starts from scratch, which means that everything is
negotiable.
You should know, however, that the benefit pack-
age given Rockingham employees by Clark from
the time this plant opened was better than those at
Clark's unionized plants. You were given greater
benefits voluntarily by the Company than those in
unions bargained repeatedly with Clark for more
than 20 years for their benefits.
The Board concluded the above statements were within
the protection of Section 8(c) of the Act.
In the instant case Kelly's statements , taken in context,
do not appear to have been designed to relay the mes-
sage that the Company would take away wages or bene-
fits if the employees selected union representation, but
rather his comments were that existing benefits could be
lost as a result of bargaining . Kelly did nothing more
than point out that in the bargaining process wages and
benefits can go up, down, or stay the same. Kelly's com-
ments came about as a result of what he perceived was
misinformation about what could happen in negotiations.
Kelly's statements about negotiations starting from either
a clean or blank sheet of paper or from scratch were not,
without more, unlawful. Kelly did not threaten to bar-
gain regressively when he said everything was up for ne-
gotiation and that minimum wage was the bottom line;
inasmuch , as he told the employees it was "ridiculous" to
think the Company would pay minimum wage regardless
of the outcome of negotiations. Kelly did nothing more
than explain , with examples , the realities of negotiations
when he told the employees that in the give-and-take of
bargaining the Union might give up insurance, holidays,
or vacation time to obtain dues checkoff from the Com-
pany.
In summary, I find the evidence does not establish that
Kelly threatened employees with loss of wages and bene-
fits if they selected the Union as their collective- bargain-
ing representative. I therefore recommend that paragraph
7 of the complaint be dismissed.
8 The case was decided by all five members of the Board
LA-Z-BOY
C. Alleged Threats of Futility
It is alleged at paragraph 8 of the complaint that Per-
sonnel Manager Kelly, about 24 and 25 October, threat-
ened employees it would be futile for them to select the
Union as their collective-bargaining representative by
telling them its nonunion plants would always receive
better terms and conditions of employment than its union
plants.
The General Counsel called three witnesses in support
of the above allegation.
Norma Downs (Downs) testified Personnel Manager
Kelly told the employees at the gripe session she attend-
ed that, "a nonunion plant would never get ahead of a
union plant." The General Counsel asked Downs to
think carefully about what she had said and asked her to
again state, as nearly as she could , what Kelly had said.
In her second answer to the same question, Downs
stated Kelly said , "A non-union plant would never be
able to get ahead of a union plant ."9 Employee Weaver
testified Personnel Manager Kelly, in talking about the
Union at the gripe session he attended , said, "We've
never let a Union plant get ahead of a non -Union plant."
Employee Williams testified Kelly said the employees
had the best of two worlds , that they received all the
benefits of the unionized plants without having to pay
any dues. Williams stated Kelly also told the group not
to mess up a good thing, that "our non-Union plants
would always stay ahead of the Union plants," and
added, "a union plant would never get ahead of the non-
Union plants" because the Company would "never" let
that happen.
Personnel Manager Kelly testified he "pretty well"
knew the strength of the Union in the campaign and be-
cause he believed the Company was far ahead of the
Union he did not want to make "a dumb mistake" in any
of the meetings. Kelly testified:
I thought very hard about what I was going to say
in those meetings to make sure that I didn't step
over the line . And one of the things I did address as
a response to ... some of the Union hand -outs ...
and some questions that had been put to me by em-
ployees, was concerning the Florence deal and
what I tried to get across to the people ... was ba-
sically that Florence had had a Union for 15 years
and never had they been able to get anything that
the non-Union plant hadn 't gotten ... that we had
always had at least as much and many times more
than the Union plant had.
I gave an example that we had the dental insurance,
prior to the Florence plan having it, and a year or
so ago the non-Union plants got a bonus of-I think
it was $250-that the Florence plant didn 't get and
I put it to them-all the employees-as such, that
they had been there for 15 years and they had not
been able to get any advantage for the dues payers
in Florence over what the non-Union plants.
8 The General Counsel , in his brief, alludes to the "error" Downs
made in her testimony. She may well not have intended to testify as she
did; however , she repeated her testimony and no further attempts were
made to correct her "error" if, in fact, she made an error.
341
And I told the people, "You've got the best of
both worlds. You've got all the fringe benefits and
all of the things that Florence has got, and you
don't have to worry about paying dues."
Kelly stated he did not say at any meeting that the Com-
pany would never let a union plant get ahead of a non-
union plant. Kelly testified he talked only about the past
and added, "I was talking about ... only what I knew
about.... I know for a fact that they've never gotten
anything ahead of the non-Union plants . . . [w]e've
always had as much or more." Kelly testified that some
employee asked him if the benefits at the union and non-
union plants were about the same . He stated he told the
employee they were "virtually" the same except they did
not have to pay union dues.
I credit Kelly 's testimony as outlined above. I do so
not only because he impressed me as a truthful witness,
but also because seven10 of the other eight witnesses
called by the Company corroborated Kelly's testimony
that he only spoke about the past when he compared the
Company's union and nonunion plants . One of the three
witnesses called by the General Counsel corroborated
Kelly's testimony that he only, spoke about historical
matters and did not forecast the future when he com-
pared the benefits at the Company 's union and nonunion
plants. i i
Inasmuch as Kelly only talked about past benefits at
the unionized and nonunionized plants ,1 2 and did not, as
alleged in the complaint, state the nonunion plants would
always receive better terms and conditions of employ-
ment thin the union plants, I shall recommend that para-
graph 8 of the complaint be dismissed.
D. The Alleged Threats to Transfer Employees
It is alleged at paragraph 9 of the complaint that Per-
sonnel Manager Kelly, about 25 October, threatened em-
ployees they would be transferred to another plant if
they joined or engaged in activities on behalf of the
Union.
Employee Williams asked , at the gripe session which
he attended, about employee benefits at the Company's
unionized plant in Florence , South Carolina.1 s Accord-
ing to Kelly, whose testimony I credit , Williams began
to dominate the meeting. r 4 Plant Superintendent Brown,
i° The seven witnesses were : Plant Superintendent Brown and.em-
ployees Burchard, James, Laher , Bedwell, Worthington, and Smith. Pen-
dleton, who was also called as a witness by the Company , did not recall
Kelly comparing the benefits at the union plants with the nonunion
plants.
i l Weaver testified, on cross-examination, that Kelly said , "We have
never let a Union plant get ahead of a non-Union plant."
's The comments Kelly made in comparing the Company's nonunion
and unionized facilities fall within the scope of permissible 8(c) state-
ments.
18 Williams was an open and active supporter of the Union. He wore
union T-shirts to work and had one on at the October gripe session he
attended.
14 Kelly stated it was the manager's job to ensure that no individual
dominated a gripe session so that all would have an opportunity to ex-
press their concerns or voice their gripes.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after listening to Williams for a while, stated that, "if he
[Williams] liked Florence so much, [he would] see if [he]
could give him an opportunity to transfer (to South
Carolina] ."1 a Everyone laughed . ' a Personnel Manager
Kelly testified that after everyone laughed he seized the
opportunity to "upstage" Plant Superintendent Brown
and commented to Williams , "I guess there's' several in
here that would probably help you pack . Everyone again
laughed and Kelly stated, ". . . that kind of shut Jason
[Williams] up and that was really what was intended and
we went on to the next complaint or question [a]nd the
meeting continued as usual."
I am persuaded Brown 's and Kelly 's comments to Wil-
liams did not amount to an unlawful threat to transfer
him to another Company plant if he joined or engaged in
activities on behalf of the Union . The instant case is
unlike the situations , held to be implied threats of dis-
charge, 17 in which employers have suggested to employ-
ees who favored the union that they seek employment
elsewhere . In the instant case, Plant Superintendent
Brown was not impliedly or otherwise threatening to
discharge Williams. Rather, Brown was merely offering
to assist Williams in a transfer to another of the Compa-
ny's facilities (which was in fact unionized) if that was
what Williams desired and if it could be accomplished.
Additionally, I find the remarks did not violate the Act
in that they were made in jest. The employee gripe ses-
sions were informal and the uncontradicted testimony of
Plant Superintendent Brown indicated "a lot of kidding
... [is] ... normally done in employee meetings."
There is no indication anyone was intimidated or co-
erced by the joking comments made by Brown and
Kelly in the give-and-take atmosphere of the employee
gripe session in question. Accordingly, I recommend that
the allegations of paragraph 9 of the complaint be dis-
missed.
On the foregoing factual findings and conclusions, I
reach the following
CONCLUSIONS OP LAW
1. La-Z-Boy is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. United Furniture Workers of America, AFL-
CIO/CLC is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Company has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
15 Williams testified it was Personnel Manager Kelly who told him, in
Brown 's presence, at the gripe session , "If you are determined to have a
Union, then go to Florence . We will can ahead and get you a transfer
with your seniority." I do not credit Williams ' testimony that it was
Kelly who talked to him about the transfer . Brown's testimony was cor-
roborated by that of Personnel Manager Kelly and employees Laher,
James, and Pendleton that it was he who made the comment to Williams.
is Each witness , including Williams, that testified about the conversa-
tion stated the employees laughed when the comment was made.
11 See, for example, Sans Souci Restaurant, 235 NLRB 604 at 606
(1978), and L. A Baker Electric, 265 NLRB 1579 at 1580 (1983).
ORDER
The complaint is dismissed.
16 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.