La-Z-Boy South, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 295 (N.L.R.B. 1974)

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