Barnes & Noble Bookstores, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1977

233 N.L.R.B. 1326 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barnes and Noble Bookstores, Inc. and District 65,
Distributive Workers of America. Cases 2-CA-
13940 and 2-CA-14384
December 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 12, 1977, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Barnes and
Noble Bookstores, Inc., New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Respondent has excepted to certain credibility 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 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge dismissed the allegation that the
Respondent threatened to dismiss Lynn Northrup for her union activity. In
the absence of an exception thereto, we adopt this finding.
We note that the Administrative Law Judge, in the fifth paragraph of
section II. F, of his Decision, inadvertently stated that Gene Hilmantel was
a part-time employee. The record shows that he was a full-time employee.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
question presented is whether, in connection with the
I The complaint in Case 2-CA- 13940 issued on December 8, 1975, and
was amended at the hearing on October 6, 1976, on a charge filed by the
Union October 6, 1975, and an amended charge filed November 13, 1975.
233 NLRB No. 198
organizing campaign of Respondent's bookstore employees
in New York City in August-October 1975, conducted by
the Charging Party (herein called the Union), Respondent
engaged in unfair labor practices, in violation of Section
8(a)(I) and (3) of the National Labor Relations Act (herein
called the Act), as amended, allegedly by coercively
interrogating employees regarding their union membership
or sympathies, threatening their discharge or transfer for
becoming union members or supporting the Union or to
sell the business if the shop went union, discharging five
employees for union activity, discriminatorily reassigning
certain employees and reducing hours of others, engaging
in surveillance of employees' union activities, and promis-
ing medical benefits and giving a pay raise to induce
employees to refrain from organizing for the Union.'
Respondent has contended that some of the events
allegedly constituting unfair labor practices did not
happen, and that there was no misconduct in those that did
happen; further, that the discharges of the five employees
were variously for economic reasons or good cause and not
for antiunion reasons.
The consolidated cases were heard in New York City on
October 6-8, 12, 14, 15, and 19-21, 1976. Counsel for the
General Counsel and for Respondent have filed briefs.
Upon the entire record of the cases, including my
observation of the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation with its office
and principal place of business at 105 Fifth Avenue in New
York City, and other places of business in several States,
where it has been engaged in the sale of books and related
products.
In the year prior to issuance of the complaints, a
representative period, Respondent purchased and caused
to be delivered to its place of business books and other
goods valued in excess of $500,000, of which books and
goods valued in excess of $50,000 were transported and
delivered to said places in interstate commerce directly
from places in other States.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent is a bookseller on a very large scale. As
described by its president, Leonard Riggio, Respondent
operates many stores in Northeastern United States where
The complaint in Case 2-CA-14384 issued on July 30, 1976, on a charge
filed by the Union July 2, 1976. An order consolidating the two cases for
hearing was issued on July 30, 1976.
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BARNES AND NOBLE BOOKSTORES
it serves nearby colleges and universities and general public
with textbooks and general books (called general or trade
books) and, by mail or other delivery to and from its
headquarters in New York City, engages in buying and
selling of used textbooks at wholesale with approximately
500 colleges and universities.
The headquarters and principal retail and wholesale
outlet is the main store at 105 Fifth Avenue, New York
City, and an annex across the street at 128 Fifth Avenue
which, as described by its manager, Vincent (Jimmy)
Riggio, brother of President Riggio, is a bargain (discount)
bookstore for the general public.
The main store and annex comprise a division under
General Manager Michael Goldsmith.
The college store or leased store division comprises 16 or
17 branch stores leased at college locations in various
Northeastern States. The division is under Vice President
Carlo Lattinelli.
The mall store division, comprising five bookstores
located in five shopping centers or malls in New York,
New Jersey, Pennsylvania, and Connecticut, was, at the
times pertinent to this case, under the direction of Vice
President Al Zavelle.
The wholesale division, located in the main store, was
under the direction of its manager, Fran Robito.
The employees below the supervisory level at the main
store and annex and the branch stores were full-time
permanent employees, paid a weekly salary and overtime
or compensatory time off for work over 40 hours (which
usually occurred in the rush periods of the year); part-time
permanent employees, paid hourly; and part-time tempo-
rary employees, paid hourly.
Supervisors were paid salaries computed at an annual
rate and bonuses for the rush periods (usually twice a year).
According to President Riggio and General Manager
Goldsmith, the main store in the summer and fall of 1975
had about 200-250 employees, of whom about 25 were
supervisory or management. In this connection, Goldsmith
pointed out that roughly 25 percent were full-time staff,
whereas 75 percent were part-time staff and almost entirely
college students. This meant, said Goldsmith, that in the
course of a year between 100 and 150 employees moved
out and replacements moved in.
The full-time employees, in addition to weekly salary and
overtime adjustment, were entitled to paid sick days,
holidays, 2-weeks' vacation, and health and life insurance.
The part-time employees, who were usually limited to 30
hours per week (but not always, if needed and able to give
more), after a year's work were entitled to 1-week paid
vacations and six paid holidays if scheduled for any of
those days, and none of the other benefits accruing to full-
time employment.
The main store comprised five floors and a basement
housing a number of departments, some of which were
directly involved in the 1975-76 events of this case.
Among these was the trade (or general) book depart-
ment. The manager was Abe Fiss, who also was chief buyer
for the department, supervising 4 assistant buyers and
about 16 full-time and part-time floor clerks. There was
also another full buyer, Elsa Lichtenstein, who exercised
autonomous buying authority and was responsible for
about 15-20 percent of the department purchases.
The textbook department comprised about 60 employees
in the summer of 1975. It was headed by Manager
Raymond Fiechter, who had an assistant manager, Jerry
Rosenbaum. The approximately six full-time employees
were called aisle chiefs and each was responsible for certain
subject areas in the back aisles of the store. The part-timers
worked in the several aisles.
The medical book department was headed by Manager
Paul Douglas (Doug) Purington and Assistant Manager
Rafael Barros. It comprised about 15 employees in August
1975, of whom 4 were full-time employees.
The engineering book department of about three em-
ployees was in the charge of William (Billy) Belniw, who
was its supervisor and buyer.
The wholesale department, which was in the charge of
Manager Fran Robito, comprised 10-12 employees at the
main store and 3 or 4 employees in travel.
The annex or sale annex, opposite the main store, was
opened in September 1974 and expanded in September
1975. It is a discount or bargain book store and had about
70 employees of whom about 20 employees were full time,
the remainder part-time. In charge was its manager, Jimmy
Riggio, who answered to General Manager Goldsmith. The
annex had six departments-paperback, scholarly and
trade, remainders, shipping and receiving, merchandising,
cashiers-each with a manager. Among these were Zbeg-
niew (Ziggy) Lubazka, manager of shipping and receiving,
and Janette Limondjian, manager of the scholarly and
trade books department (both stipulated supervisors within
the meaning of the Act). While Manager Jimmy Riggio
claimed that he directly supervised the paperback depart-
ment, he conceded that he designated Terese Neubauer
and Paul Merchant to help him supervise the paperback
department but claimed that neither was given the title of
manager. However, President Riggio testified that Neu-
bauer was manager of the paperback department (and see
Resp. Exh. 10).
Except for Paul Merchant and buyer Elsa Lichtenstein of
the trade book department, all of the persons named under
this heading were stipulated or conceded to be supervisors
within the meaning of the Act. In addition, Steve Einscig,
manager of the record department, was conceded by
Respondent to be a supervisor within the meaning of the
Act.
Notwithstanding President Riggio's assertion that he
believed the union organizational drive in the summer of
1975 was aimed only at organizing the main store and
annex, it appears that one branch or leased store, the
Columbia University Medical Center bookstore, at Broad-
way and 168 Street in New York City, was also involved,
and its operation is pertinent.
In August 1975, the Columbia University Medical
Center bookstore had full-time salaried employees and
part-time hourly employees. There were four full-time
employees, the manager, Steve Lorenzo; an assistant
manager, a post newly created for John Friedson, an aisle
chief from the textbook department of the main store, to
train as a replacement for Lorenzo; and two longtime
employees, Keris Padmore and Alida Arroyo. Manager
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lorenzo was admittedly a supervisor within the meaning of
the Act. However, whether or not Friedson was a statutory
supervisor is in dispute, and is resolved hereinafter under
the heading dealing with the discharge of Friedson.
President Riggio testified that he was personally involved
in the acquisition of Barnes and Noble in 1971, taking over
from a predecessor corporate owner, Amtel. Under Amtel,
he said, the enterprise had dwindled from several hundred
employees to 40 employees, with only the main store.
Under the management of President Riggio and his
associates the business has grown, he said, increasing the
volume of the main store alone from $1 million in the year
prior to takeover to nearly $10 million currently.
B. The Union Organizing
President Riggio testified that, prior to his acquisition of
Respondent from Amtel in 1971, a majority of the
employees, then constituting a unit of 21 full-time and part-
time employees, had voted in the Union as their bargaining
representative. Under Riggio, according to his testimony,
Respondent hired 13 of the predecessor's employees but
also added 20 - 30 new employees in the first several days,
and did not recognize or bargain with the Union. No unfair
labor practice charge was filed against Respondent.
In 1972, Respondent took over the Columbia University
Medical Center bookstore and, according to Riggio, hired
every employee who asked to be interviewed. Prior thereto,
said Riggio, the employees had begun to organize for
representation by the Union and, following Respondent's
takeover, the Board ruled in March or April 1973 that a
representation election be held, but the union withdrew.
Thereafter, said President Riggio, there have been
sporadic efforts at organizing by the Union, and by other
unions, hence the 1975 organizing drive did not come as a
surprise to him.
The 1975 organizing began internally in August when
employee Mary Mowery, the lone assistant at the main
store to Vice President Zavelle (in charge of the mall store
division), working with employee Mike Scarcella of the
medical book department, called a meeting of a small
group of employees at her house on the night of August 14,
1975, to discuss worker problems. Among those attending
in addition to Mike Scarcella were Robert Gabrielsky of
the paperback department of the annex, Billy Belniw
manager and Doug Harder of the engineering book
department, Kathy Yates of the trade book department,
and Amy Herman of the textbook department. According
to employee Mowery, the employees discussed having
either a general meeting of employees and employer, or
organizing a union. It was decided to organize a union.
By word of mouth, a second meeting was called and held
at employee Mowery's house on the night of August 18. In
addition to the attendees of the first meeting, among those
attending were Julia Nicolas and Lynn Northrup of the
trade book department, Gene Hilmantel of the medical
book department, and Michael Bolling of the annex. At
this larger meeting the matter of unionizing was discussed
and agreed upon again. It was decided to get in touch with
the Union (District 65) and employee Gabrielsky was
appointed as a representative to do that. (Testimony of
Mowery, Scarcella, Nicolas, and Gabrielsky.) As a result, a
third meeting of employees was held at Mary Mowery's
house on the night of August 21, with even larger
attendance than before and two union organizers, Bernie
Orff and Margie Latner, present. Among the approximate
21 employees, in addition to previous participants, were
employees Susan Turk and Christine Simpson of the trade
book department, and JoAnn Santiago (who worked for
Steve Riggio, father of President Riggio, in charge of cash
for Respondent). The union organizers inquired as to
employee grievances and explained what could be done.
Union authorization cards were distributed and signed and
the employees took additional cards for obtaining signa-
tures of other employees. The attending group was divided
into committees by work areas to keep track of card
signings, and employee Mowery was put in charge of
collecting signed union cards, because her job of filling
special book orders of the mall stores took her into all of
the departments of the main store and annex. (Testimony
of Mowery, Gabrielsky, Scarcella, and Nicolas.)
Employee Mowery testified that on the next day, Friday,
August 22, and Monday, August 25, she collected between
15 and 20 signed authorization cards either from employees
on breaks or at work at the time.
At the end of the day, Monday, August 25, General
Manager Goldsmith called employee Mowery to his office
and told her she was discharged.
C. Discharge of Employee Mowery
Employee Mary Mowery began her employment with
Respondent at the Center Reach, Long Island, New York
bookstore, in September-October 1974. She was hired by
Vice President Al Zavelle, in charge of mall bookstores, to
help open the new Center Reach mall store. She helped
open the store and apparently impressed Zavelle, who, as
she testified, moved her to the main store (where Zavelle
had his office) to become his assistant. President Riggio
claimed she was not to be Zavelle's assistant, but his
further testimony lent credence to her assertion. Riggio
pointed out that the mall store division was new, compris-
ing 5 stores in several States, that Respondent hoped to
establish a chain of 30 or more such stores, and that
developing help specializing in mall store work would be a
benefit to Respondent. Mowery's initial duties at the main
store were to pick up the special requests for books made
by telex from the mall stores, pull the books from the
various departments, bill and pack them, and turn them
over to shipping for mail out to the stores. As President
Riggio said, it appeared more desirable to have a specialist,
rather than a lot of people, pull these orders and thereby
provide Respondent with special knowledge and expertise
of demands from mall stores.
Vice President Al Zavelle was employee Mowery's
supervisor. Mowery agreed that that was so. President
Riggio said Zavelle was her only supervisor. But Mowery
pointed out that she spent a part of her day working on the
floor of the trade book department when her mall store
work was complete or to replace employees out ill or on
lunch; she regarded Abe Fiss, manager of the trade book
department, as her supervisor when Zavelle was away. Fiss
apparently shared that view as hereinafter indicated.
Zavelle was away about 50 percent of his time, said
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BARNES AND NOBLE BOOKSTORES
Mowery. To do a completed job on all telex requests
received in a day took her between 5 and 6 hours per day,
said Mowery.
When employee Mowery started work at Center Reach
she was paid $2.75 per hour, as a part-time employee. The
next month, the beginning of November 1974 when she
moved into the main store, she was raised to $3.25 per
hour. In mid-December 1974, she received a further raise
to $3.75 per hour. In mid-March 1975, she was made a full-
time employee at the suggestion of then General Manager
Morris Wogman, as pointed out by his successor General
Manager Goldsmith,2 and her pay was increased to a
salary of $160 per week for a 40-hour week. Her desk was
moved from the center of the third floor into the third-floor
office of Vice President Zavelle.
Employee Mowery had a sister, Holly Dunphy, who had
been manager of Respondent's mall store at West Farms,
Connecticut, until she was discharged by Respondent on
July 23, 1975. On July 25, Trade Book Manager Abe Fiss
came to employee Mowery to talk about it. As Fiss
testified, he was concerned that Mowery might be upset
over her sister's discharge and was further concerned that
she continue in her job, for which she was needed. His
surmise was correct. Mowery was upset; she told Fiss she
thought the discharge of her sister was unjust and she was
thinking of quitting. Fiss replied he hoped she would stay
with the Company, that she was a good worker and was
needed to do the job she was doing, and that the firing of
her sister had nothing to do with her staying on with
Respondent.
Shortly thereafter during the same morning, Merchan-
dise Manager Wogman called employee Mowery to his
office. Obviously, Trade Book Manager Fiss had reported
that Mowery was talking of quitting. Wogman sought to
dissuade her. He discussed with Mowery the discharge of
her sister, indicated that the sister had not been a
competent manager and that her case had nothing to do
with Mowery who, he said, had a great future with
Respondent. He asked her to reconsider leaving.
On August 3, 1975, following a week's vacation, Mowery
had a conversation with her chief, Vice President Al
Zavelle, in their third-floor office. Mowery told Zavelle
that she had reconsidered her initial impulse to leave the
Company after her sister's discharge and had decided to
stay, to which Zavelle replied that he was glad.3
On August 25, 3 weeks later, following her leadership
efforts from August 14 to 25 in organizing her fellow
employees for union affiliation, Mowery was told by
General Manager Goldsmith that she was fired. He told
her that her work was to be taken over by the wholesale
department. Mowery asked if there were any complaints
about her and if there were another position open to which
she could be transferred. Goldsmith replied that there had
been no complaints about her and there was no other job,
that it was just a procedural change.
Employee Mowery asked to speak to her supervisor, Vice
President Zavelle, Zavelle was called in and Mowery asked
him (in Goldsmith's presence) if he knew about her being
2 Wogman became merchandising manager for Respondent at approxu-
mately the end of March or beginning of Apnl 1975, when Goldsmith
succeeded him as general manager of the main store and annex.
fired. He said he did not and was surprised, according to
Goldsmith. Goldsmith testified that Zavelle was neither
consulted nor told in advance that Mowery would be
discharged. Likewise, her alternate supervisor in Zavelle's
absence, Trade Book Manager Fiss, testified that he was
not consulted nor told in advance concerning Mowery's
discharge. Fiss said flatly that he did not recommend or
(contrary to Goldsmith's claim) even hint at considering
the elimination of her job, and that Goldsmith did not
discuss the possibility with him, even on or after the one
occasion in June 1975 when he said he mentioned to
Goldsmith that he had told Mowery he thought she was
taking too long with the telexes and she replied that the
telexes were long and took a lot of time.
Other than referring to this one conversation with Fiss,
Goldsmith conceded that there were no complaints about
employee Mowery's work, and that he knew personally
that she performed her work satisfactorily because almost
daily he had occasion to observe her at work.
General Manager Goldsmith claimed that he had
become concerned that employee Mowery was unsuper-
vised when Vice President Zavelle was away. (This claim,
of course, ignored the supervisory role of Trade Book
Manager Fiss in Zavelle's absence.) He said he mentioned
it to President Riggio after his second month as the new
general manager of the main store, and Riggio told him
then that there were more pressing problems to deal with.
When Mowery returned from her I-week vacation in early
August 1975, Goldsmith said he made some suggestions to
her regarding organization of her work and she complied.
Nevertheless, said Goldsmith, because he felt she contin-
ued to be unsupervised in Zavelle's absence, he recom-
mended to President Riggio, around August 20, 1975, that
Mowery's job be abolished, and that the work be done by
the wholesale department because, said Goldsmith, it had
also been concluded at the same time that Respondent was
not going to expand the mall stores. Goldsmith said he also
told Riggio there was no other job available for Mowery.
President Riggio said he agreed with Goldsmith's
recommendation and on Monday, August 25, 1975,
employee Mowery was told by Goldsmith that she was
fired, as already related.
On Tuesday, August 26, Mowery went to see President
Riggio to seek clarification of her firing and to inquire
about transfer to another job. As Riggio noted, she
mentioned that Wogman and Zavelle had indicated she
had a promising career with Respondent. Riggio told her
that the abolition of her job and her firing was simply a
procedural change, nothing else, and that he had no other
job for her, but to call him in a week or so and he would
look around. She did call him a week later and was told
that Respondent had nothing for her.
In the course of the interview on August 26, Riggio said
to Mowery that her job (of going from department to
department in the store) would have been great for his
3 Neither Wogman nor Zavelle testified and Mowery's testimony was not
contradicted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brother Jimmy because he could have traveled through the
store talking pro-Barnes and Noble to all the employees. 4
President Riggio claimed that he did not know Mowery
was involved in union activity when she was discharged,
but there is evidence to the contrary.
In a conversation on August 26 or 27 between employee
Julia Nicolas, an assistant book buyer, and her boss, Trade
Book Manager Fiss, Nicolas asked why Mowery had been
fired. Fiss said, the Company can get rid of anyone it
chooses, no union can prevent that; to Lennie (President
Riggio), loyalty is more important than competency, he has
friends here who are not that good but they are loyal. (Fiss
claimed that he phrased his response differently indicating
that the reasons for firing could be company needs,
competence, or loyalty.)
On Friday, August 29, President Riggio sought out
employee Nicolas, who was a longtime employee for whom
he obviously had a high regard and whom he referred to,
more than once in his testimony, as a key figure in his
"communications network" of communications with the
employees. The conversation, of about an hour, started on
the trade book floor and ended up in Riggio's office.
Among other things, according to Nicolas, Riggio said he
knew she was satisfied with her job and had the respect of
her fellow workers, but he was becoming confused by what
was happening. She referred to a management-employee
committee, which at Riggio's suggestion she had helped
form in 1973 and on which she served, that had not worked
out, and said that as a result she thought the Union was a
good thing.
Riggio said he was broadminded about the Union, and
referred to the earlier union drive in 1971 saying that, when
he acquired the business, against his lawyers' advice he had
hired four of six employees who had previously been in the
Union. He said that Italians make good union members
and he was insulted that the present union people had not
approached some of the Italian workers in the textbook
department.
The conversation turned to firings, and they first
discussed the firing of Holly Dunphy and then Mary
Mowery. Of Mowery, Riggio said she was unsupervised,
and that if he had wanted a good public relations man at
the store he would have given him Mowery's position, but
as it was he might as well have put Nat Nattman, the
Union's chief organizer, in Mowery's job.
Continuing, President Riggio told employee Nicolas that
the store would be divided by the Union, that it would
create hard feelings and division between employer and
employees. He spoke of his pride in building up the
Company since 1971, and said he did not want the Union
telling him how to run the Company, that he would sooner
sell the Company than have the Union in.5
President Riggio referred to what he described for
employee Nicolas as an explosive, irrational confrontation
he had had the previous day, August 28, with Billy Belniw
of the engineering book department. Riggio said he was
angry with Belniw for lying, because Belniw had denied to
4 President Riggio claimed he said that Jimmy could have developed
public relations with customers as well as employees. I do not credit this
modification, for reasons appearing hereinafter that detract from Riggio's
credibility.
s This portion of the conversation is further discussed, infra, in
connection with 8(a)(1) findings.
him knowing of the Union and of union meetings at Mary
Mowery's house when he, Riggio, knew that Belniw had
attended the meetings at Mowery's house. 6
Belniw, who was supervisor of the engineering depart-
ment, testified as to his conversation with President Riggio
on August 28. Riggio told him, said Belniw, that he knew of
the union activities prior to August 25, when he saw Belniw
at the Columbia University Medical Center bookstore; that
in the previous week engineering book department person-
nel, including Doug Harder and the guy who wears a braid
in his hair (Belniw), had attended a union meeting and that
there was to have been a union meeting that was not held;
that trade book floor employees had signed union cards
and that the Union had 38 signed cards; that he would fire
anyone he thought to be a union "plant" and he knew of
two employees who were union organizers he had wanted
to fire before the union activities began; that he would do
away with the business if he thought the Union would
succeed, but thought he could keep the Union out at least 4
years, and would hire people favorable to his position to
vote against the Union. Riggio said, according to Belniw,
that he told Belniw all of this because he was a supervisor
and his signing of a union card was not legal; and he asked
Belniw to take management's side, admit his attendance of
the union meetings, tell Riggio what the employee
grievances were, and if he thought the organizing employ-
ees believed the Union would succeed.7
Conclusion
President Riggio, who testified that he had many
conversations with employee Nicolas and several with
Supervisor Belniw, contended that he was unaware of his
employees' union activities prior to August 25, 1975, and
that he did not mention the Union to either Nicolas or
Belniw or discuss it with them until after the distribution of
union literature began outside the main store and annex on
August 29 or 30.8 I do not credit this claim in light of the
contrary credible evidence and Riggio's close, intimate
knowledge of what was going on in the store, and I regard
the claim as a convenient and self-serving adjustment of
the time by Riggio to avoid the clear illegal implication of
the discharge of employee Mowery.
The alleged business or "procedural" reasons for Mower-
y's discharge were in themselves of doubtful validity.
Employee Mowery was not unsupervised, as alleged;
rather, she had two immediate alternate supervisors-Vice
President Zavelle, when he was at the store, and Trade
Book Manager Fiss, when Zavelle was away. Transfer of
Mowery's function for the mall stores to the wholesale
department, where it was spread about among 8 or 10
employees, was not the alleged natural and logical
development but rather a distraction for that department
because, as General Manager Goldsmith and President
Riggio admitted on cross-examination, the wholesale
department's business was 90 percent textbooks and in
quantity orders by lists from colleges and professors,
6 See fn. 5, supra.
7 See fn. 5, supra.
8 Mowery participated in this first distribution and some others, and was
admittedly seen by Riggio and other top management.
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BARNES AND NOBLE BOOKSTORES
whereas Mowery's work for the mall stores was usually
single book orders from mall store customers. These special
orders were more often for trade than for textbooks, so that
her continuing part-time experience on the trade floor was
an asset to her work whereas the wholesale staff did not
normally work on the sales floor. Actually, as Goldsmith
testified, in 1976 the wholesale department discontinued
filling the special orders for the mall stores.
However, more significantly, the alleged business reason
for the abolition of Mowery's job and her discharge was
not the real reason. Mowery was obviously the leader and
central figure among the employees in putting into motion
an organizational drive for unionizing the bookstore. To
President Riggio's watchful eye and from information from
his "communications system" in the store, no doubt this
campaign initially had the appearance of success that was
lacking in the intervening efforts to organize since 1971.
Moreover, happenstance had put Mowery in a position
where by the nature of her job she had natural and easy
access to every department of the main store and annex
and could without disruption of her work pass the word
concerning meetings and other organizational information
and collect signed union authorization cards, as she did.
President Riggio was unalterably opposed to the Union
coming into his Company (more fully shown in later parts
of this Decision). He was equally opposed to having an
employee, who actively assisted the Union, occupy a
position that provided such ready access for passing union
information to the employees, as he hinted to employee
Mowery immediately following her discharge and told
employee Nicolas a few days after the discharge. Hence he
approved, and more likely directed, the discharge of
employee Mowery, and ordered the elimination of her job
as a pretext to disguise the antiunion motivation of the
discharge.
The pretext in the abolition of Mowery's job and her
discharge is underscored by the fact that neither decision
was discussed with her prime supervisor, Vice President
Zavelle, nor her alternate supervisor, Trade Book Manager
Fiss. Neither supervisor made any such recommendations
and both were told of the decisions after her discharge.
Mowery was a capable employee whose talents had been
quickly recognized by pay raises and promotion and who
was being groomed as an assistant to the vice president for
mall stores. There had been no complaints about her work
nor warnings about her future with Respondent. On the
contrary, she had been importuned by top management to
make her future with Respondent when she wavered about
continuing less than a month before the discharge. In the
light of this background and the large and constant
turnover in employment at Respondent, I also find
preposterous Respondent's bland claim to Mowery (and at
the hearing) that it had no other work for her than the job
it abolished with her discharge. In this connection, the
discharge and refusal to transfer to another job came
within a week of the start of Respondent's peak rush season
at the main store and college bookstores.
Obviously, Respondent's object was to rid itself of the
prime union activist among its employees, and the
discharge was a violation of Section 8(a)(3) and (I) of the
Act. N.LR.B. v. Ulbrich Stainless Steels, Inc., 393 F.2d 871,
872 (C.A. 2, 1968).
D. Continued Union Organization
On the night of Monday, August 25, 1975, according to
employee Mike Scarcella of the medical book department,
a meeting of the employees was held at the union hall at 13
Astor Place in New York City, where the main topic was
the firing of Mary Mowery several hours earlier that day.
Thereafter, according to Scarcella and Mowery, the
employees continued to hold meetings either at the union
hall or Mowery's house or Scarcella's house, a total of 15-
20 additional meetings from the end of August to February
1976, with attendance as high as 45 employees at I
meeting.
Distribution of union literature outside the main store
and annex began on Friday, August 29, or Saturday,
August 30, according to Mowery, and continued periodi-
cally until February 1976. Respondent's officials from
President Riggio down acknowledged being aware of the
distribution and the literature from the time of the first
distribution. Some of the early literature identified by name
certain of the employee leaders--Mowery (discharged),
Scarcella, and Gabrielsky.
Signing of union authorization cards continued after the
initial signings at the third meeting at Mowery's house on
the night of August 21, 1975. Mowery testified she had
collected 15-20 signed cards before being fired on August
25, and was aware of 30 more cards collected by others.
Mike Scarcella, who had been assigned responsibility for
getting the medical book department employees signed,
said he signed up 15-20 employees mostly constituting the
large majority of the employees of that department. Several
others testified to signing cards, among them, employee
Arthur who signed at employee Gabrielsky's request, John
Friedson of the Columbia Medical Center bookstore who
signed a card received from Union Organizer Nat Natt-
man, and employee Paula Romeo who signed a card
received from Supervisor Belniw of the engineering book
department.
E. Further Countermeasures by Respondent,
Including 8(a)(1) Misconduct
On Thursday, August 21, 1975, Annex Manager Jimmy
Riggio questioned employee Robert Gabrielsky on the
main floor of the annex. Gabrielsky was a part-time
employee in the paperback department of the annex but his
duties put him in both the main store and the annex. As
recounted under section C, above, Gabrielsky had attend-
ed the employee meetings at Mary Mowery's house on
August 14 and 18, and on August 19 had arranged for two
union organizers to be at the next meeting, the night of
August 21. He had told several employees in his depart-
ment, including Dean Haddocks, one of two "straw
bosses" under Paperback Manager Neubauer, what was
transpiring at the meetings. Manager Riggio said to
Gabrielsky on August 21, as the latter testified, that it had
come to his attention that the employees, including
Gabrielsky, were interested in forming a union. Riggio said
he wanted to know what Gabrielsky knew about it, stating
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the same time that the Union was not a good thing, that
employees should get promotions and raises on merit, and
that the Union was an outside force that would hurt
management and the employees. Riggio asked Gabrielsky
was he engaged in union activity. Gabrielsky replied that
he was not engaged in union activity on company time and
what he did outside was his own business. Riggio asked if
he had any grievances, and Gabrielsky answered he wished
he was paid more money and had a more rewarding
position. Riggio asked Gabrielsky if he knew of any
employee engaged in union activity, and Gabrielsky said
he would not discuss that with Riggio.9
An employer who, in an atmosphere of antiunion
hostility, questions an employee concerning his union
activities or the identities and union activities of fellow
employees without indicating a legitimate purpose or
assurances against reprisal engages in coercive interroga-
tion in violation of Section 8(a)(l) of the Act. N. LR.B. v.
Camco, Inc., 340 F.2d 803, 805-807 (C.A. 5, 1965), cert.
denied 382 U.S. 926; N.L.R.B. v. Isaac Rubin and Marion
Kane, d/b/a Novelty Products Co., 424 F.2d 748, 750-751
(C.A. 2, 1970); N.L.R.B. v. Gladding Keystone Corp., 435
F.2d 129, 132-133 (C.A. 2, 1970). Manager Jimmy Riggio's
interrogation of employee Gabrielsky was such an unfair
labor practice.
President Riggio, in his conversation with employee Julia
Nicolas on August 29, 1975 (described in sec. C),
threatened to sell the business rather than have the Union
in the store. This was a threat that Riggio knew full well
would be transmitted to other employees because, as he
testified, Nicolas had been part of his communication
network with the employees since 1973 when she played a
large part in organizing the now defunct management-
employee committee. Moreover, Riggio followed up the
August 29 conversation with another conversation with
Nicolas in which he asked her to talk to the employees and
present an offer from him of airing employee grievances
and working them out without a union. Riggio told Nicolas
he did not want the union issue to divide the Company, he
wanted the channels of communication open, and he
would not fire anyone who aired complaints. However, he
said, management could not be wholly passive about the
Union and would take "soft" measures, such as transfers of
employees. Nicolas testified that she talked to a number of
the employees (e.g., Scarcella, Northrup, Yates, Herman,
who along with her were supporters of the Union) and they
rejected Riggio's proposal. Nicolas reported the rejection
to Riggio the next day, and he reacted angrily, calling the
union sympathizers pigheaded. (He said that in reporting
the rejection of his proposal Nicolas also reported that the
union sympathizers said Riggio was too smart for them, he
would talk the employees out of the Union.)
President Riggio denied the threat to sell the business,
but I do not credit the denial. It is useful to note that, on
the day prior to August 29, Riggio made a similar
statement to Supervisor Belniw about disposing of the
business if the Union succeeded (see text preceding fn. 7, in
sec. C) indicating that the thought was in his discussions at
that time. The threat to employee Nicolas to sell the
9 Riggio admitted the conversation, and that he asked Gabrielsky if he
had any problems, but denied mention of the Union. I do not credit the
denials, and I credit the testimony of Gabrielsky.
business if the Union came in was a violation of Section
8(a)(1) of the Act, Mike O'Connor Chevrolet-Buick-GMC
Co., Inc., 209 NLRB 701, 703 (1974); indeed, his accompa-
nying threat of transfers if the employees did not desist
from activities for the Union was a like violation of Section
8(a)(1) of the Act (though not specifically alleged in the
complaint, it relates to the subject matter of the complaint
and was litigated, Monroe Feed Store, 112 NLRB 1336,
1337 (1955), and cases cited at fn. 2).
Nonsupervisory Status of Employee Nicolas
Respondent argued that legally the threat or threats to
employee Nicolas could not have been violations of
Section 8(a)(1) because she was a supervisor rather than an
employee, within the meaning of the Act. The facts are to
the contrary, developed principally from her testimony and
the testimony of her supervisor, Manager Abe Fiss of the
trade book department.
In August-September 1975, Julia Nicolas was one of four
assistant buyers-Kitty Monroe, Christine Simpson, and
Alice Charleton were the other assistant buyers-to the
chief buyer of trade or general books, Abe Fiss. There was
still another full buyer in the department, Elsa Lichten-
stein, who bought in conjunction with Fiss but on her own
list and authority, and accounted for between 15 and 20
percent of the book purchases of the department. Whereas
Fiss did not review the orders placed by buyer Lichten-
stein, he did review the orders placed by assistant buyer
Nicolas and the other three assistant buyers.
Nicolas (as did each other assistant buyer) bought a line
of books from a list of publishers provided by Respondent
and ordered in two ways: (1) to fill existing orders for a
book or books recorded by the floor clerks in the course of
their daily work, and (2) to stock anticipated needs. Filling
existing orders required no judgment, merely a phone call
to the appropriate publisher or wholesale source, and chief
buyer Fiss usually had no need to review such orders.
Purchasing anticipated stock needs did require judgment,
and for these Nicolas (and the other assistants) had to clear
with and obtain the advance approval of Fiss. Moreover, as
Fiss pointed out, there was no buyer judgment as to price.
Book prices were fixed by the sellers. But even in the area
of exercising initial judgment subject to chief buyer review,
assistant buyer Nicolas pointed out that she operated
under specific instructions laid down for her, such as not to
order a book for anticipated needs that had not sold 9
copies a year, or to order only at maximum discounts,
meaning that she could pick up 2 or 3 books of a given title
from a wholesaler but was to save orders of 15 or more of
the same title for the publisher to get the greater discount.
While assistant buyer Nicolas initiated a large volume of
purchases for her department under the two described
methods-approximately 20 percent of the department
purchases, said Fiss-she was not working under a budget
or privy to it or aware of the amount of money allotted to
the trade book department.
Employee Nicolas spent about 90 percent of her time on
her purchasing work and was expected to spend the
1332
BARNES AND NOBLE BOOKSTORES
balance selling on the trade floor where she waited on
customers, loaded books on shelves, and dusted. The trade
department fluctuated between 16 and 20 employees (other
than the 6 buyers and assistant buyers), and the middle
room, to which Nicolas was assigned when on the floor,
had 2 full-time and 4 part-time employees. She had
responsibility to schedule the lunch hours of these six
employees (doing it she said by asking each employee when
would he or she like to go to lunch), but Manager Fiss also
scheduled the lunch hours. She might ask an employee to
restock a shelf, but a full-time employee might equally so
direct a part-time employee. She had no authority to hire,
fire, or discipline an employee and had no function of
recommending in those respects. As Fiss described the
occasions when she, or other assistant buyers, talked to him
about other employees it was not about their performance
but about their appearance or clothing.
Manager Fiss claimed that when he was not present in
the department, usually on his weekly day off and in
vacation time, assistant buyers Kitty Monroe or Julia
Nicolas were in charge, but he conceded this was not for
his supervisory function as manager but for his buying
function. Nicolas testified that she did not share this
substitute's responsibility with assistant buyer Monroe who
apparently was ranked above Nicolas and was paid a
higher salary. Nicolas testified that she was never told by
management that she was a supervisor nor invited to
attend supervisory meetings. She was a salaried employee
as were other full-time employees at a comparable salary
scale; however, for overtime, whereas the full-time clerks
were compensated by the hour she and the other assistant
buyers were paid a bonus twice a year.
On these facts, employee Nicolas was neither a supervi-
sor within the meaning of the Act nor a managerial
employee. Her major function was placing orders for
books, and only when she had free time for work on the
sales floor did she engage in sales work, which was a small
fraction of her time. On these occasions the few functions
she performed that might resemble those of a supervisor,
such as arranging for the lunch break of the six employees
in the middle room, were minor and routine, N.LR.B. v.
Cousins Associates, Inc., 283 F.2d 242, 243-244 (C.A. 2,
1960); Sunset Nursing Homes, 224 NLRB 1271, 1274
(1976). Moreover, even if employee Nicolas occasionally
assumed a position of command or responsibility in the
absence of Manager Fiss, as he claimed and Nicolas
denied, such occasional actions did not transform an
otherwise rank-and-file worker into a supervisor, N.LR.B.
v. Quincy Steel Casting Co., Inc., 200 F.2d 293, 296 (C.A. 1,
1953).
In Nicholas' primary function as assistant buyer, her
ordering of books to fill orders in hand recorded by the
sales clerks was purely a routine function involving no
exercise of discretion. To the extent that Nicolas might
exercise discretion in placing book orders for anticipated
needs, that discretion involved no judgment as to price and
was circumscribed by rules and direct supervision of the
lo The supervisors' meetings included the department heads and
assistants, such as Textbook Manager Ray Fiechter and his assistant
manager. Jerry Rosenbaum, Medical Book Manager Doug Punngton and
his assistant manager. Rafael Barros, and Trade Book Manager Abe Fiss,
but not the assistant buyers of the trade book department (such as Julia
chief buyer whose advance approval was required and
obtained. In these circumstances assistant buyer Nicolas
did not exercise sufficient independent discretion to align
her with management, nor was she a managerial employee,
Bell Aerospace, A Division of Textron, Inc., 219 NLRB 384,
385-386 (1975), applying N.LRB. v. Bell Aerospace Co.,
416 U.S. 267 (1974), approving Eastern Camera and Photo
Corp., 140 NLRB 569, 571 (1963).
F. Supervisory Meetings, Additional
Countermeasures Including 8(a)(1) Misconduct
Respondent President Leonard Riggio called two or
three meetings of the top management in his office,
according to Annex Manager Jimmy Riggio. These were
meetings of just a small group of persons including the two
Riggios and General Manager Goldsmith (but not the
department managers, such as Fiss and Feichter), held in
early September, said Jimmy Riggio (Vice President
Lattinelli said he was present at one). The meetings were
held in response to the union campaign to see what
management could do, said Jimmy Riggio.
In addition, President Riggio held two meetings on the
third floor of the main store of all supervisors of the main
store and annex and the top management, approximately
30 persons, in the first and second weeks of September,
according to General Manager Goldsmith.' 0 (President
Riggio could recall only the second of these two supervi-
sors' meetings, and did not recall the top management
meetings, described by his brother Jimmy.)
The purpose of the meetings was to discuss the union
campaign, but President Riggio claimed that he only told
his supervisors what not to do in order to avoid commis-
sion of unfair labor practices. Others attending contradict-
ed his testimony, saying, in addition, Riggio told them to
maintain lines of communication with employees, talk to
them, find out their gripes, tell them the pro's and con's of
the Union, tell them the supervisors' personal opinions of
unions in general, speak to the employees about their
specific rights, and talk pro-Barnes and Noble (testimony
of Goldsmith, Lattinelli, Fiechter, and Rosenbaum)."
General Manager Goldsmith admitted that he talked
adversely of unions in general to about seven employees,
individually. When employee Susan Turk of the trade book
department told him the store was shorthanded and that
she could not understand the firings beginning with Mary
Mowery's, Goldsmith told her he was working on replace-
ments but the Union had him in a bind, that he could not
hire new people because he could not guarantee against
their signing union cards. Goldsmith conceded that he
arranged for employee Gene Hilmantel of the medical
book department to meet employee Verzoni, a former
union member, in order to have Verzoni discuss his alleged
bad experience with the Union. Goldsmith was aware, he
said, that Medical Book Manager Purington was talking
about the Union to the employees of his department.
Nicolas), and none of the branch store managers or assistants (such as John
Friedson).
i" Medical Book Manager Purington first said Riggio did not say the
supervisors could give their personal opinions of unions to the employees.
then changed his testimony to say they could, but were not obliged to.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Purington admitted he talked to a number of
his medical book department employees individually about
the Union because, he said, he wanted to know if their
problems in performance had anything to do with the
Union or other cause, and how they felt about working
conditions. Employee Hilmantel, who was a part-time sales
clerk of the medical book department, testified that, in a
rather lengthy meeting in Purington's office in September,
Purington asked if he had any grievances. Among other
things Hilmantel complained there were no medical
benefits for part-time workers like himself. Purington
replied that Respondent was working on a medical plan for
part-time employees, and that there were advantages,
under the management of Leonard Riggio, that would be
open to Hilmantel if he wanted them. Conversely, said
Purington, if the Union were in there would be no merit
raises or flexibility of hours and the general work situation
would be more rigid.
Hilmantel asked Purington why Mary Mowery had been
fired. Purington replied that she was in an unsupervised
position that permitted her to propagandize for the Union
and her position was eliminated. When Hilmantel com-
mented that her work was now being done by people who
didn't know the work and who were taking up some of his
and his colleagues' time to help them, Purington told him
to talk to Goldsmith or Riggio if he wanted to know more.
The next day, Manager Purington called employee
Hilmantel again to his office and talked of the bad points
of the Union and the good points of the company
management. When Hilmantel said all unions were not
bad, Purington replied this Union (District 65) in particular
was bad, and there were people in the store who were
former members who could tell him so. Hilmantel said he
was interested. Two days later Purington took Hilmantel to
General Manager Goldsmith who introduced him to
employee Verzoni, as indicated above. Verzoni told
Hilmantel of a difficulty he had had with the Union on a
medical benefit.
About the same time in early September, Medical Book
Manager Purington called into his office employee John
McCaulley for a talk about the Union. McCaulley was a
part-time employee in the stockroom of the department.
Purington told McCaulley that the Company and the
Union (District 65) and the Catholic Church had a need to
grow, but that the Union would stop the growth of freedom
in the way the medical book department ran. He said that
unions were needed in the 1930's but had no place today.
He talked of benefits at the Company under the current
management, that the employees were making a better
living than previously, and if McCaulley had any problems
to come to him or Goldsmith or Riggio. Purington said to
McCaulley that medical benefits would be given to the
part-time employees, but he did not know when.12
In my view, in the context of these conversations with
employees Hilmantel and McCaulley, Manager Purington
made them a promise of medical benefits in order to
dissuade them from supporting the Union. Such promise of
benefits was a violation of Section 8(aX I) of the Act,
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964).
12 Purington claimed that in talking to the part-time employees of
medical benefits he merely said they were under study by Respondent's
Similarly, Respondent violated Section 8(aX I) of the Act,
on September 9, 1975, when Leased Stores Vice President
Lattinelli and Manager Lorenzo of the Columbia Medical
Center Bookstore gave the four part-time employees of that
bookstore a 25-cent-per-hour pay raise effective September
10 (G.C. Exhs. 5a, b, c, d). These four employees, Ms.
Carrion, Fishburne, Marin, and Norat, had each just
previously received raises, variously at the end of July and
mid-August (G.C. Exhs. 6a, b, c, d); but the September 9
pay raise followed immediately on Respondent learning
that John Friedson, whom Respondent had recently sent to
the Columbia store from the main store textbook depart-
ment to train as a possible replacement for Manager
Lorenzo, favored unionizing the branch stores as well as
the main store because he thought there were labor
relations problems at the Columbia bookstore and so told
his former manager, Feichter, and General Manager
Goldsmith on September 4, and Lattinelli on September 6.
The circumstances surrounding the September 9 pay raise
make it obvious that it was given to discourage the
Columbia bookstore employees from supporting the
Union.
While the complaint alleged that Respondent engaged in
surveillance of the employees' union meetings and concert-
ed activities, the proof indicated that Respondent created
the impression of such surveillance, in violation of Section
8(aXl) of the Act, Commerce Concrete Company, Inc., 197
NLRB 658, 659 (1972). Employee Nicolas testified that, in
her conversation of August 29, 1975, with President Riggio,
he told her he was angry with Billy Belniw, supervisor of
the engineering book department, because Belniw lied to
him the previous day about knowing of the Union and
attending employee-union meetings at Mary Mowery's
house when he, Riggio, knew Belniw had attended the
meetings at Mowery's house. This creation of the impres-
sion of surveillance was confirmed by Belniw's testimony
of his confrontation on August 28 by President Riggio
when, among other things, Riggio told Belniw that he knew
that engineering book department personnel had attended
the meetings at Mowery's house, including the guy with the
braid in his hair (Belniw), and that the Union had 38
signed cards. President Riggio furthered the impression of
surveillance when in a later conversation with Belniw in
mid-September Riggio said he was disappointed with Paula
Romeo (of the textbook department) because she was
signing up people in the lunchroom of the textbook
department, and he would have felt better if she told him
directly that she was upset over the firing of her boyfriend.
(The reference to "boyfriend" was to John Friedson who
was fired by Riggio on September 10 and in whose
company employee Romeo was seen several times by
management officials, including the day he was fired.) I do
not credit Riggio's denials of these remarks; and while
Belniw was admitted by the parties to be a supervisor
within the meaning of the Act, it is clear that because of
Belniw's obvious sympathy for the organizing by the
lawyers. I do not credit his claim, and I credit Hilmantel's and McCaulley's
testimony.
1334
BARNES AND NOBLE BOOKSTORES
employees Riggio anticipated that what he told Belniw
would be relayed to the employees.' 3
Other statutory supervisors, such as Manager Raymond
Fiechter and Assistant Manager Jerry Rosenbaum of the
textbook department, admitted engaging in talks with
employees following the supervisors' meetings held by
President Riggio, either giving their personal views about
the Union (Fiechter) or talking pro-Barnes and Noble
(Rosenbaum).
G. Discriminatory Reduction of Hours and Duties
of Employee Gabrielsky, and Related Misconduct
Robert Gabrielsky had been employed by Respondent
since October 21, 1974, as an hourly employee in the used
paperback department of the annex. He had been hired by
then General Manager (now merchandising manager)
Morris Wogman who assured him of at least 35 hours per
week, more hours in the rush periods (September, Febru-
ary, and June), and the possibility of a salaried position.
In the ensuing period to late June 1975, employee
Gabrielsky worked at least 35 hours per week and in the
rush periods, including June, at least 40 hours per week and
sometimes 48 hours per week.
At the end of June 1975, in a conversation with Manager
Jimmy Riggio, who had recently assumed charge of the
annex, Gabrielsky was told there was talk of cutting his
hours below 40 hours per week but, in the discussion that
ensued, it appeared that there was a lot of work to be done
in preparation for opening the expanded annex, and
Gabrielsky was told by Manager Riggio that he would
continue to work at 40 hours per week and eventually move
into a salaried position.
Gabrielsky was apparently a satisfactory employee and
had received periodic wage increases. His duties were to
file used paperback books in the stockroom on the third
floor of the main store, price them for sale either there or in
the annex, stock shelves in the annex, and work in other
departments, including the shipping and receiving depart-
ment of the annex and on the customer floor. His
immediate supervisors, who worked with him, were Dean
Haddocks and Paul Merchant, the department manager
was Terese Neubauer, and the annex manager was Jimmy
Riggio. Riggio had been preceded by Zbegniew (Ziggy)
Lubazka as acting annex manager, who became an
assistant to Riggio and manager of the annex shipping and
receiving department.
On the night of August 14, 1975, at the suggestion of
coworker Michael Bolling, employee Gabrielsky attended
the first meeting of the employees at Mary Mowery's
house, and then the meetings that followed. As indicated
above, he was instrumental in bringing in the union
representatives to the third meeting (sec. B), was active in
obtaining employee signatures to union authorization
cards (sec. D), and was unlawfully interrogated by
Manager Jimmy Riggio on August 21 concerning his own,
a3 The complaint alleged a threat by President Riggio to fire employee
Lynn Northrup, a longtime employee, who had been among the first
participants in employee meetings at Mowery's home. Riggio engaged
employee Northrup in conversation off the floor of the trade book
department in mid-September 1975. However, while employee Northrup
testified to being questioned by Riggio as to what were the employee
and his knowledge of other employee, union activities (sec.
E). Riggio admitted telling Gabrielsky what he, Riggio,
thought of the Union.
On Tuesday, September 2, 1975, in a conversation
involving Manager Riggio, employees Gabrielsky, Bolling,
and Merchant, Riggio told the others that effective at once
Gabrielsky and Bolling, who were working 40 hours per
week, were cut to 30 hours per week. Gabrielsky protested
that he had been hired in a slow season with a guarantee of
35 hours minimum and an assurance of more, and could
not live on 30 hours work per week. Riggio replied, "Get a
job driving a cab," and left.
Twenty minutes later, according to Gabrielsky, Manager
Riggio came back to the same three employees and
repeated that the cutback for Gabrielsky and Bolling
remained at 30 hours per week, but that each would get a
50-cent-per-hour increase to compensate for the loss of
time. (Riggio conceded that, even with the increase in
hourly pay rate, the cut from 40 to 30 hours still meant a
$15-per-week net loss in pay to Gabrielsky).
The same day (September 2) employee Gabrielsky had a
talk with Manager Ziggy Lubazka of the annex shipping
and receiving department. Gabrielsky told Lubazka that he
was depressed because his wages had been cut back.
Lubazka, an admitted statutory supervisor, told Gabrielsky
that management knew he was active for the Union and
that was why he was being harassed. (Lubazka did not
testify).
Later in the day (September 2), employee Gabrielsky had
a conversation with Steve Einscig, manager of the phono-
graph record department, also an admitted statutory
supervisor. Einscig asked Gabrielsky how he was doing.
Gabrielsky said he felt harassed and intimidated, explain-
ing the cutback in his hours. Einscig said he could not
understand it, why was it so. Gabrielsky replied, "Because
management thinks I'm involved in union activities."
Einscig asked, "Are you?" Gabrielsky answered that he
signed a union card and attended meetings but did not
regard himself as the leadership. Einscig said he was
against the Union, it was not a good idea at Respondent's
stores, that he was taking it on himself to discourage a
union coming in, and recommended that Gabrielsky have a
talk with General Manager Goldsmith. (Einscig did not
testify). I agree with General Counsel, that Manager
Einscig's inquiry of employee Gabriclsky concerning his
union activities, in an atmosphere of hostility to the Union,
was coercive interrogation forbidden by and in violation of
Section 8(a)(l) of the Act.
The following day (September 3) employee Gabrielsky
went from the main store to the annex on his lunch period
and had his lunch in the basement. Employee George
Arthur, who was employed at the outdoor book kiosk in
Central Park under the supervision of Manager Janette
Limondjian of the scholarly and trade book department of
the annex, was there, as was Manager Limondjian (a
statutory supervisor), a few feet away, while the two
complaints against Respondent, she also said that he prefaced his
questioning by saying she had been a good worker and he was not going to
fire her. I do not regard this encounter between Riggio and Northrup as a
threat to discharge Northrup for engaging in union activities or implying
such a threat to Northrup. Accordingly, I dismiss this allegation of the
complaint as unsupported by the evidence.
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees conversed briefly. After an exchange of pleasan-
tries, Arthur asked Gabrielsky how the Union was going,
and Gabrielsky answered it was not a good idea to talk
about it there. Later that afternoon on the fourth floor of
the main store, Manager Jimmy Riggio called together
employees Gabrielsky, Arthur, and Bolling and told them,
as Gabrielsky and Arthur testified, that there was to be no
conversations between employees on company time or
property, that an employee on breaktime was not to
communicate with an employee who was working, and that
Gabrielsky and Bolling had no place in the store other than
the third and fourth floors of the main store and were to
stay out of the annex except to sign in or out. When
Gabrielsky commented that Bolling and he sometimes had
business with Riggio and Paperback Manager Neubauer at
the annex, Riggio replied that the two employees should
use the telephone, that they had no business being in the
annex. Riggio said he told the three employees there was
too much talking, but he did not deny imposing the
restrictions.
The restriction on movement was a newly invoked
restriction on the movements of Gabrielsky, whose duties
theretofore took him into various places in both the main
store and annex. As a result, said Gabrielsky, his duties
changed substantially.
The restriction imposed on communication between the
employees was obviously especially aimed by Manager
Jimmy Riggio at Gabrielsky, Arthur, and Bolling, who
were known or suspected to be union sympathizers. As
many of the employees testified, Respondent had no such
general rule against employee conversations. President
Leonard Riggio testified that Respondent did not have
such a rule or a no-solicitation rule either before or after
September 1975. As Gabrielsky put it, the rule before
September had been a commonsense rule that permitted
talking provided it was not abused, and he now understood
from Manager Riggio that passing comments between
employees was forbidden. In the context of when and why
it was imposed, the restriction was a special and discrimi-
natory no-talking rule leveled against the three employees
and (though not alleged as a violation in the complaint, but
fully litigated, see Monroe Feed supra, 112 NLRB at 1337)
was a violation by Respondent of Section 8(a)(1) of the
Act. King Radio Corp., 166 NLRB 649, 652 (1967), 172
NLRB 1051, 1056 (1968), enfd 416 F.2d 569, 571 (C.A. 10,
1969), cert. denied 397 U.S. 1007 (1970).
Again, in the same day (September 3), Manager Riggio
spoke to employee Gabrielsky and told him that, in the
rush period for a week or so until the expanded annex was
opened, he could work 40 hours per week. Riggio said he
had consulted with President Leonard Riggio and Mer-
chandising Manager Wogman and decided to extend
Gabrielsky and Bolling on a 40-hour basis for getting the
expanded annex ready.
On September 10, employee Gabrielsky talked with
General Manager Goldsmith. Gabrielsky complained that
his movements had been severely restricted and he was
having meetings with supervisors twice a day. Goldsmith
asked Gabrielsky what he thought was going on. Gabriel-
sky replied he thought he was being restricted because he
was suspected of engaging in union activity. Goldsmith
inquired, was he engaged in union activity? Gabrielsky
answered it was no longer a secret that he had signed a
union card and attended union meetings, but that he did
not engage in union activity on the job. Goldsmith replied,
it was a management decision and in the best interests of
management that Gabrielsky's movements be restricted.
Goldsmith contended that he did not ask about Gabriel-
sky's union activities, that the information was volun-
teered, but I do not credit the claim. In the total
circumstances, the inquiry was coercive interrogation in
violation of Section 8(aXl) of the Act.
On September 15, employee Gabrielsky was told by
Manager Riggio that his hours were cut back to 30 hours
per week; they remained at that level until he left
Respondent's employment in late 1976. The expanded
annex opened on September 15, 1975, and Respondent
hired additional hourly employees to open and staff the
expansion.
In 1976, after the union campaign had died, Respondent
offered employee Gabrielsky some occasional additional
hours. However, he said, he had taken another part-time
job elsewhere to bolster his earnings, and so told his
department manager, Neubauer; hence he declined the
additional hours. Besides, it appeared, he said, that the few
added hours would only be for a brief period. Later in
1976, Gabrielsky changed jobs, leaving Respondent's
employment to take a full-time job with a classical record
concessionaire who leased space in Respondent's main
bookstore. President Riggio claimed that Respondent
recommended Gabrielsky to the concessionaire.
Notwithstanding this belated show of alleged good will,
the fact remains that in September 1975 (and thereafter),
when Respondent was both rushed and expanding and
taking on additional help, Respondent discriminatorily
reduced employee Gabrielsky's hours of work and duties
because of his sympathies and support for the Union. Such
action was in violation of Section 8(aX3) and (1) of the Act,
N.L.R.B. v. My Store, Inc., 345 F.2d 494, 497 (C.A. 7,
1965), cert. denied 382 U.S. 927.
H. Discriminatory Discharge of Employee Romeo
and Related Misconduct
Paula Romeo began working for Respondent in Septem-
ber 1972 as a cashier, and in other capacities thereafter. In
1975, from January through September 26, when she was
discharged, she worked as a book clerk in the textbook
department, where Raymond Fiechter was manager and
Jerry Rosenbaum was assistant manager (both admitted
supervisors within the meaning of the Act).
As Manager Fiechter indicated, the full-time (salaried)
employees in the department were the five or six aisle
chiefs, each of whom was responsible for certain subject
areas. All others were the part-time (hourly) employees, of
whom there were 50 to 60 in the summer of 1975, and of
whom employee Romeo was one. She worked at least 30
hours per week.
Sometime after mid-June 1975, employee Romeo asked
for and received permission of Manager Fiechter to leave
for July and August (without pay) to work on a farm in
Vermont. She did so, she said, because July and August
were "slow" time at the store and the department, she
1336
BARNES AND NOBLE BOOKSTORES
would be back for the September rush, and she would not
have left without Fiechter's assurance that she could return
in September.
Employee Romeo reported for work on September 2,
1975, the day after Labor Day, and was put back to work
by Manager Fiechter with a 50-cent-per-hour pay raise.
Fiechter had also given similar permission to employees
Bruce Fenton and Isaac Starker, to take off the 2 summer
months, and they were put back to work when they
returned in September.14
According to employee Romeo, before she resumed work
on the morning of September 2, Manager Fiechter
questioned her, asking if she knew about the unionizing
going on at the store and if she knew about the unionizing
of fellow employee Gary Jaye, who had been her aisle chief
in June. Romeo responded that she did not know about
either, but wondered if that was the reason for Jaye's
transfer to another store. Fiechter replied no. Romeo
commented that she could understand why unionizing was
going on, that there existed certain unfairnesses, such as a
promise of a cafeteria for the employees that had not been
kept. Fiechter responded that unions were business, and
she replied she thought there were some good unions.
Fiechter then said, "You don't understand what I'm trying
to tell you." Employee Romeo answered, "I understand,
you are saying if I am pro-Union you won't take me back."
Manager Fiechter indicated his assent. (I do not credit
Fiechter's assertion that he did not discuss the Union with
Romeo.)
In my view, Manager Fiechter's questioning of employee
Romeo about her knowledge of the union activity and the
union activity of a fellow employee was coercive interroga-
tion in violation of Section 8(aXl1) of the Act. Not only was
there no indication of a legitimate purpose for the
questioning or assurance against reprisal, but the interroga-
tion was accompanied by an implied threat to employee
Romeo that if she supported the Union she would be fired.
Such threat was itself a further violation of Section 8(a)(1)
of the Act.
On September 4, employee Romeo signed a union card
given her at lunch by Billy Belniw. Between then and
September 26, she attended three or four employee
meetings at the union hall. She testified that she talked to
about seven or eight employees on lunchtime about the
Union, naming two who did not sign cards, Steve Felder
(General Manager Goldsmith's cousin) and Isaac Starker.
On some of the occasions John Friedson was present.
Respondent was aware of her activities for the Union as
shown by President Riggio's statement to Belniw in mid-
September (see sec. F above) concerning his disappoint-
ment with Romeo for signing up people in the little
lunchroom (snack machine room) of the textbook depart-
ment, and connecting her with John Friedson, whom
Riggio had fired on September 10 (see sec. J, infra).
On September 26, 1975, Manager Fiechter told employee
Romeo that the rush was over and she was discharged. She
testified that she was shocked and said this was not the
4 I find incredible Manager Fiechter's claim that he did not assure her
of her job on her return, when he gave her permission in June to leave; and
his further claim that when she resumed her job in September he told her it
was only on a temporary basis for the few weeks of September. Both claims
reason for letting her go; then, after calming down, she
came back to Fiechter and accused him of firing her
because of her union activities. Fiechter denied it. Fiechter
said at the hearing that others he had hired for the
September rush were also dropped at the same time, and he
fired her because he was angry with her for having taken
off the summer months (July and August) and because his
assistant manager, Jerry Rosenbaum, told him she had bad
work habits.
These were palpably false reasons. If Fiechter had been
angry because of Romeo taking off the summer months it
is hardly likely that he would have taken her back and
increased her pay on September 2. Moreover, he had given
employees Fenton and Starker similar permission to take
off the 2 summer months and had taken them back along
with Romeo. Significantly, Romeo and Fenton, both of
whom signed union cards and attended union meetings,
were dropped from employment, whereas Starker, who had
not aligned himself with the Union, was retained and was
employed by Respondent at the time of the hearing.
Concerning her alleged poor work or work habits, there
were no complaints about employee Romeo before or after
her return to work on September 2, 1975; she testified that
Assistant Manager Rosenbaum complimented her on her
work in September; and Rosenbaum, who testified, had
nothing derogatory to say about her work performance or
habits at any time. Feichter claimed he did not discuss
firing Romeo with President Riggio before doing so, but
Riggio testified that they did discuss it.
Shortly after Romeo's discharge, on October 4, General
Manager Goldsmith, in a conversation with employee
Susan Turk (with whom Goldsmith said he had conversa-
tions about store matters about once a month) discussed
employee firings, working short-handed, and the effect on
employee morale. Turk said Goldsmith told her the Union
had him in a bind on replacements, he could not hire
anyone new because he could not guarantee against their
signing union cards. Employee Turk said she was con-
cerned about the firing of Paula Romeo, particularly since
Romeo had worked for Respondent for a long time and
there had been no complaints about her work. Goldsmith
told employee Turk that with the union drive in progress he
could not help employee Romeo, whom he believed was a
member of the Union. (Goldsmith admitted the conversa-
tion and saying he was not going to let the Union tell him
how to run the store, but claimed he said he would have
kept Romeo regardless of union affiliation if she had been
a good worker. Goldsmith was obviously hiding behind the
unfounded allegation of poor work by employee Romeo,
and I credit employee Turk's version of the conversation.)
Respondent's alleged reasons for firing Romeo were
pretext to disguise the real reason.
As in the case of Mary Mowery, Respondent discharged
employee Romeo, because of her support for and activities
on behalf of the Union, in violation of Section 8(a)(3) and
(1) of the Act.
were in contrast to his other testimony that he had told her he needed her
experienced help when he (reluctantly, he said) gave her permission to leave
for the 2 months, and his volunteering a pay raise on her return in
September.
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Discriminatory Discharge of Employee Arthur
At the time of the hearing, George Arthur was employed
by the Seattle Washington Post Intelligencer. He had
begun his employment with Respondent in 1974, hired by
then General Manager Morris Wogman. In spring and
summer he worked at Respondent's kiosk operation, which
was an out-of-doors booth or stall bookstore at Fifth
Avenue and 61st Street in Central Park, and in fall and
winter worked at the annex and in the New Jersey
warehouse.
Arthur was a good employee who received five rapid
wage increases from his $2.75-per-hour start to the $4 per
hour he was receiving at the time of his termination.
Wogman told employee Arthur he was doing good work
and wanted to develop him in the warehouse operation
following Arthur's first summer at the kiosk. However,
after the kiosk reopened in the spring-summer of 1975 a
new clerk had not worked out and Wogman (reluctantly,
he told Arthur) sent him back to operate the kiosk.
The kiosk was a good advertisement for Respondent,
said Annex Manager Jimmy Riggio, under whose jurisdic-
tion the kiosk fell in the summer of 1975. According to
President Leonard Riggio, the city of New York had
franchised three book stalls or booths at this Central Park
location. Respondent had one of them, and Strand
bookstore and another bookstore had the other two.
The kiosk was a 7-day-per-week operation, manned by
two employees who worked interchangeably at the kiosk
but almost never at the same time. As employee Arthur
said, he worked 3 and 4 days per week alternately, as did
the other kiosk clerk (first, Tracy Churchill, followed by
Ross Scoggard). When there was an occasional overlap, it
usually occurred on a Thursday or Friday and not on
weekends, said President Riggio; and at such times, said
Arthur, who was the senior clerk, he would spend his time,
as well as certain additional time, at the annex or the main
store replenishing the kiosk inventory of books. According
to employee Arthur, the kiosk hours were 10 a.m. to 7 p.m.,
however, he was in charge of his own hours and
occasionally opened later or closed earlier to allow for
going down to the main store with cash receipts or doing
the paperwork on accounts. There were no business
machines at the kiosk, and sales and accounts and
inventory were done in longhand.
Employee Arthur's immediate supervisor was Janette
Limondjian, manager of the scholarly and trade book
department located in the annex. Arthur testified without
contradiction (and Manager Limondjian did not testify)
that Limondjian taught him in the summer of 1974 how to
perform his duties at the kiosk. Since he had to operate the
kiosk alone on his duty days, she told him he was permitted
to leave the kiosk unattended, when he needed to use a
lavatory or obtain a bite of food or make a phone call, but
to ask a close-by Strand bookstore employee to look after
the kiosk and if need be handle a book sale and give a
receipt to the customer for him. Since the booths were
"open air" operations close to each other, 8 to 10 feet apart,
this courtesy help was apparently feasible, and, according
to Arthur, the Strand clerk would occasionally handle a
sale and give a receipt for him, and turn over the money
and copy of the receipt to him. There were also rush
periods at the kiosk, Arthur testified, when issued with the
sale of each book (requiring six handwritten notations on
each receipt) or sometimes to even issue a receipt at all.
The latter, failure to give any receipt, was not authorized,
he said, but was an unusual occurrence and happened in
less than 1 percent of the sales. However, said Arthur, there
were days when he turned in money in excess of the dollar
total of sales receipts issued.
Employee Arthur handled the replenishment of the kiosk
book inventory. According to Annex Manager Jimmy
Riggio, this meant picking up and taking from the annex
and main store two or three cartons of books several times
each week; and less frequently, perhaps once or twice a
month, doing a major restocking, by pulling between 20
and 30 cartons of books. For each pickup Arthur would
compile a list of the books taken. He had engaged in such a
major pickup on September 3, 1975, the day he was fired.
Prior thereto, at the end of August 1975, employee
Arthur attended two employee meetings at the Union's hall
on Astor Place, and signed a union card given him by
employee Robert Gabrielsky. On September 3, he worked
at the annex picking up stock for the kiosk, and talked to
several employees including Gabrielsky about the union
drive and literature, some of which had been distributed
that day. Arthur's noontime discussion with Gabrielsky in
the annex basement occurred within the nearby presence
and hearing of Manager Limondjian (see sec. G, above),
and obviously came to the immediate attention of Annex
Manager Jimmy Riggio, who later that afternoon imposed
the special and discriminatory no-talking rule on employ-
ees Arthur, Gabrielsky, and Bolling (see sec. G, above).
Later in the same day, September 3, at or about 7 p.m.,
employee Arthur was summoned to President Leonard
Riggio's office by Annex Manager Jimmy Riggio. In a
brusque, unpleasant, and accusing manner, said Arthur,
President Riggio told him that there had been a loss of
$2,000 in operation of the kiosk, that he was fired, that the
alternate worker at the kiosk, Ross Scoggard, was also
fired, and that the kiosk was being closed immediately and
permanently. (Respondent resumed operations of the kiosk
in the spring and summer of 1976.)
Employee Arthur testified that he was so shocked at this
abrupt denunciation and termination of his job that he
could only think to ask was he being called a thief.
President Riggio answered, said Arthur, that Arthur was
not being called a thief, that although Riggio had not
conceived of the kiosk as a moneymaking venture,
Respondent could not afford a $2,000 loss. Arthur said he
denied the loss. He noted that he and Manager Limondjian
checked periodically about how the business was going,
that the volume of business, between $80 and $160 gross
per day, was not big enough for a $2,000 loss and such a
loss was unlikely in the 3 1/2 months of operation. The
allegation veered, said Arthur, to an implication that the
loss or shortage was between the value of the books he took
for the kiosk and the receipts turned in. Riggio mentioned
the list of books put in boxes that day for the kiosk and
indicated that there were books taken from the annex that
were not recorded on Arthur's list. He was not shown the
list or any record of the alleged shortages in connection
with it, nor was there any oral recitation of the alleged
1338
BARNES AND NOBLE BOOKSTORES
shortages. President Riggio told Arthur that Respondent
had been keeping an eye on the kiosk and referred to a
shopping or buying service report in terms of his not being
at the kiosk at all times, said Arthur. There was a reference
to violation of company policy, said Arthur.
President Riggio testified that he had been aware of a
shopping service report on the kiosk that Respondent
obtained 3 or 4 days before employee Arthur was fired on
September 3. This was obviously not the case, since the
report, Respondent's Exhibit 8a-k, purports to cover
alleged purchases from (Sunday) August 31 through
(Wednesday) September 3, and could not have reached
Riggio before September 3. The report was the work of a
private investigator, Gaylen and unidentified assistants,
and records a number of book purchases in those 4 days
and observations of the purchasers. Gaylen testified that he
made one of the purchases on Sunday August 31 (and
assistants made the others) and that the sales clerk did not
issue a receipt, but it was recorded on the clerk's list of
sales. The shopping report for that day, from 2:30-4 p.m.,
Respondent's Exhibit 8a, noted six book purchases by the
investigators with only one receipt issued, but also noted
that five of the six sales were listed by the clerk. Gaylen
testified that this was the Sunday before Labor Day and he
observed a constant stream of people shopping and
purchasing at the kiosk, and at the Strand kiosk 8 to 10 feet
away, and that the clerks had only time for collecting
money and putting the books in shopping bags for the
purchasers. Gaylen also testified that he observed the kiosk
unattended at one point and saw people walking over to
the Strand kiosk and paying for their books. The remainder
of the report, for the other 3 days, indicated for the most
part compliance, by whichever clerk was in attendance,
with the procedures for issuing receipts, recording the sales,
and putting books and receipts in shopping bags for
customers.
President Riggio further testified that toward the end of
August his brother, Annex Manager Jimmy Riggio, began
checking books about to be taken in cartons by employee
Arthur to the kiosk and found that there were books in the
cartons that were not charged on the inventory lists or
invoices for the kiosk. Again, this was not the case. Annex
Manager Jimmy Riggio testified that in the late afternoon
of September 3 (when he was admittedly aware of the
union organizing), after the conversation in which he
restricted Arthur's communications with fellow employees
at the annex and main store, he had talked with his brother
about the kiosk operation and made a check of Arthur's
inventory list of books he had put in cartons that day for
delivery to the kiosk (a six-page list, Resp. Exh. 7), and
concluded that there were about 70 books in the cartons
that were not on the list. These were, he said, mostly
multiple copies of like paperbacks and were books that
usually sold for under $1 each. Manager Riggio said he
went to President Riggio with the alleged discrepancy.
However, Manager Riggio admitted that Arthur had made
mistakes against himself and had listed about 50 books that
were not in the cartons. Whether Jimmy Riggio also
reported Arthur's mistakes against himself to Leonard
Riggio was not clear; in any event, it was clear that these
balancing mistakes were not mentioned in the discharge
interview with Arthur that followed shortly at 7 p.m. Most
importantly, as Manager Jimmy Riggio stated, employee
Arthur was not present when the cartons were opened and
Riggio made his count, and the count and alleged
discrepancies were not discussed with Arthur.
President Riggio testified that, in the discharge meeting
that followed almost immediately, he told employee Arthur
he was fired because he violated procedures by not
recording sales transactions, by incorrectly reporting
invoices (presumably for books intended for kiosk invento-
ry), and for signing out as of 7 p.m. on occasions when the
kiosk was not kept open until 7 p.m. In his testimony,
President Leonard Riggio did not refer, as employee
Arthur said he did, to a $2,000 loss as the alleged main
cause for discharge; however, Manager Jimmy Riggio
testified that his brother telephoned Merchandising Man-
ager Wogman just before the discharge meeting, and
allegedly he came up with the $2,000 shortage figure. I
credit employee Arthur's testimony as to what transpired at
the discharge meeting. (In this connection I also note that
Manager Jimmy Riggio estimated the discrepancy he
claimed he uncovered on September 3, between books and
list, at $75.)
Immediately following his discharge, employee Arthur
indignantly pursued President Riggio's charge that he,
Arthur, had been responsible for a $2,000 loss to the
company, and sent letters to President Riggio on Septem-
ber I and 16, 1975 (G.C. Exhs. 3a and 3b), asking for an
opportunity to see certain identified business records that
would have a bearing on the matter. Respondent received
these requests, as General Manager Goldsmith acknowl-
edged to Arthur, but declined to respond. It is also useful
to observe that, in response to the request for information
by the New York State Department of Labor on George
Arthur's claim for unemployment compensation, Respon-
dent's report of September 11, 1975, stated that it had laid
him off indefinitely for lack of work (see G.C. Exh. 4).
Conclusion
There were no complaints voiced about employee
Arthur's work until the moment he was peremptorily fired
on September 3, 1975. Prior thereto he had been praised for
his work and had received five rapid wage increases.
What the complaints were at discharge was elusive and
shifted with passage of time. Apart from the allegation,
there was no $2,000 loss or shortage in operating the kiosk
as charged by President Riggio on September 3, and
Respondent declined to give evidence of the allegation to
Arthur and dropped mention of it at the hearing.
In the two seasons of employee Arthur's operation of the
kiosk, his was a solo performance, except on the days that
the alternate clerk tended the open air book stall.
Respondent, through his supervisor and instructor Li-
mondjian, was well aware that Arthur operated without
relief help and that it was necessary on occasions to leave
the kiosk untended to refresh himself and make telephone
calls; that to keep up with responsibility for keeping his
accounts, turning in cash receipts to the main store or
annex, and replenishing inventory there, he would on
occasion vary the 10 a.m. to 7 p.m. hours by either closing
early or opening late, and that, on rush days, when the park
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was thronged with shoppers and buyers at the book stall,
the one clerk was not able to do all of the handwritten work
involved in giving receipts and recording sales while taking
money, making change, and putting books in shopping
bags. Actually, the 4-day shopping service report that
President Riggio had in hand on the night of September 3
largely confirmed that Arthur or the alternate clerk
followed the sales procedures except on the rush Sunday,
August 31.
Lastly, Respondent's allegation, that employee Arthur
incorrectly reported invoices or lists of inventory taken
from the main store and annex for the kiosk, is based on
the one check made by Manager Jimmy Riggio during the
hour before the discharge, out of the presence of employee
Arthur. The check is suspect for a number of reasons. By
this point in the day, Manager Riggio had concluded that
employee Arthur was under the influence of union activist
Gabrielsky (and Bolling), if not an activist himself, and had
restricted their communications with each other. The
decision to close the kiosk and fire the two clerks, Arthur
and Scoggard, had already been made, indeed Scoggard
had been fired earlier unknown to Arthur. Manager Jimmy
Riggio made the last minute check of the book list and
books outside of Arthur's presence or knowledge, and at no
time did he or President Riggio tell Arthur of what was
allegedly short or otherwise erroneous on the list or give
him an opportunity to check it in the same manner as
Manager Riggio said he had done. In sum, the allegation
respecting inventories was another unsustained allegation
against employee Arthur.
By September 11, 8 days after the discharge, Respondent
was still not sure of its reasons for having fired employee
Arthur, and notified the New York State Department of
Labor that it had laid him off for lack of work.
Respondent's explanations for the discharge, that have
failed to stand scrutiny, N.L.R.B. v. Griggs Equipment, Inc.,
307 F.2d 275, 278 (C.A. 5, 1962), and Respondent's shifting
explanations for the discharge, N.L.R.B. v. Georgia Rug
Mill, 308 F.2d 89, 91 (C.A. 5, 1962), strengthen the
conclusion I reach that Respondent's true reason for the
discharge of employee Arthur at the height of the union
campaign was his support of and activity for the Union.
The discharge was a violation of Section 8(a)(3) and (I) of
the Act.
J. Discriminatory Discharge of Employee Friedson
John Friedson began his employment with Respondent
in February 1974, in the textbook department of the main
store. He was a part-time clerk, paid $2.50 per hour, was
raised in June 1974 to $3 per hour, and in October 1974
became a full-time employee at $160 per week. In April
1975, he received a raise to $180 per week and in July 1975,
on recommendation of Textbook Manager Fiechter, for
whom Friedson worked as an aisle chief at that time, was
moved to the Columbia Medical Center bookstore, one of
Respondent's leased stores.
His Status
According to Vice President Carlo Lattinelli, director of
Respondent's leased stores, and to Friedson, Friedson was
to work into becoming manager of the Columbia store to
take the place of its then Manager Steve Lorenzo, who was
to take over the Cornell Medical bookstore for which
Respondent was negotiating. For this purpose, Friedson
was to be given the title of assistant manager, though there
was no assistant manager's job at Columbia, said Lattinel-
li; and, said Friedson, Lattinelli told him he could become
the manager eventually, if he proved himself.
Friedson was sent to the Columbia store on June 30,
1975, to see if he liked the store and for the first 2 weeks of
July remained at his salary of $180 a week. When he said in
mid-July that he liked the store and would take the job, his
pay was raised to $240 per week or $12,500 annually, said
Lattinelli. In the ensuing 7 or 8 weeks of Friedson's
employment with Respondent until discharge on Septem-
ber 10, it is not clear, from the circumstances, whether
Columbia Bookstore Manager Steve Lorenzo was aware
that he was supposed to be training Friedson to become his
successor, or if aware, made any effort in that direction.
(Store Manager Lorenzo did not testify). According to
Friedson, he spent 98 percent of his time in setting up
display areas, ordering trade or general books (as distinct
from medical textbooks), waiting on customers in the small
general book reading area of the store, and filling shelves.
Although Store Manager Lorenzo was away about 50
percent of the time (on negotiations for and setting up the
Cornell Medical bookstore), he remained totally in control,
said Friedson, by coming in for several hours at the
beginning and end of the days he spent time away, and
when away, by telephone. Lorenzo made no changes in his
existing delegation of certain supervisory or managerial
functions, performed by two senior full-time employees,
Ms. Arroyo and Ms. Padmore. Ms. Arroyo (Lorenzo's
cousin) did the buying of the medical textbooks and dealt
with the deans or administrative personnel of Columbia
University, handled the store employees' time and some-
times grievances, and interviewed prospective employees.
Ms. Padmore was in charge of the cashiers, cash, and cash
reports, opened the store, scheduled employees' lunches,
and, like Arroyo, interviewed prospective employees. Store
Manager Lorenzo elicited the opinions of Arroyo and
Padmore, and when he communicated with the store by
telephone he called either or both of them (and not
Friedson); and neither Arroyo nor Padmore reported to
Friedson in Lorenzo's absence. The situation, and these
actions, were in sharp contrast to Lorenzo having men-
tioned to Friedson once that he was in charge in Lorenzo's
absence. Vice President Lattinelli never told him he was in
charge in Lorenzo's absence, said Friedson.
Friedson was given no authority to hire, fire, transfer,
suspend, lay off, or recall employees, and no authority over
employee hours, overtime, or vacation schedules.
On the other hand, Friedson did participate twice in
interviewing prospective employees, and recommended
hiring of two part-time clerks, Curiel and Dawson. Both
were hired by Lorenzo. However, when it appeared that
Dawson was having difficulty in arriving at work on time,
Lorenzo directed Friedson to give Dawson a warning, and
when that did not work a cure, directed Friedson to write
up a termination (Resp. Exh. 5a). Friedson testified that he
had not recommended terminating employee Dawson.
1340
BARNES AND NOBLE BOOKSTORES
Friedson further testified that he did not initiate other
personnel actions on which his name appears, but did so at
Store Manager Lorenzo's direction, such as Respondent's
Exhibit 5b, request to move employee Ciuoderis to the
Columbia store, and Respondent's Exhibit 5c, request to
move employee Curiel to the Cornell store, both of which
have key notations in Lorenzo's handwriting; or Respon-
dent's Exhibits 5e and 5f, requests for raises for employees
Marin and Paz respectively, which have Lorenzo's writing
on it or his comments dictated to Friedson.
In his relationship with the part-time employees, Fried-
son testified that he issued an occasional order to a clerk to
open a box of books and get the books out, and sometimes
directed in which area of the store to put the books, but
beyond this made no decisions of his own. He had a store
key, but Ms. Padmore was responsible for opening and
closing the store. It was Friedson's belief, he said, that
various of the part-time employees regarded Arroyo,
Padmore, or himself as supervisors; but among the three of
them who were full-time employees (Arroyo, Padmore, and
Friedson) there was no such relationship or regard.' 5
In my view employee Friedson was not a supervisor
within the meaning of the Act. He principally performed
rank-and-file duties working side by side with other clerical
employees. The minor authority he exercised, such as
direction of one or more part-time employees to do such
things as unpack and place books on shelves, or signing
personnel actions at direction of the manager, was hardly
the exercise of independent discretion. Rather, Friedson's
was no greater authority that that exercised by a leadman
who "merely operates as a conduit for orders and
directions from higher management," Victory Electric
Coop., 230 NLRB 1201 (1977), where a general foreman
was found not to be a statutory supervisor. In this
connection, bestowing the title "foreman" or, as here,
"assistant manager," does not make a rank-and-file
employee a supervisor; the important thing is possession
and exercise of actual supervisory duties and authority and
not the formal title, N.LR.B. v. Southern Bleachery & Print
Works, Inc., 257 F.2d 235-239 (C.A. 4, 1958).
A second question is whether or not Friedson was a
managerial employee or trainee. Respondent's top manage-
ment intended to have him train and try out for the
supervisory job of manager of the Columbia store in the
course of working at the store, and Friedson so understood
it. There was no formal training program undertaken,
rather, the training was left to the discretion of the store
manager. Unfortunately for Respondent's plan, in the less
than 2 months of Friedson's stay at the Columbia Medical
Center bookstore, the store manager made little effort to
involve him in the principal supervisory and managerial
work of the store. Friedson was kept away from the major
store function of acquiring and selling medical textbooks
15 Vice President Lattinelli, who was director of Respondent's 16 or more
leased stores in various parts of country but spent scarcely any time at each
of them, including the Columbia Medical Center bookstore, was the only
person for management who testified as to Friedson's alleged authority and
duties. Lattinelli claimed that Friedson was given and exercised complete
supervisory authonty over the part-time and full-time employees. I regard
this claim as a fiction. uncorroborated by anyone who spent time at the
store, particularly Store Manager Lorenzo. who was either not aware of any
such alleged bestowal of authority on Fnedson if given or who, in any event,
gave no effect to it. Latinelli's claim, that Friedson shared Manager
and the development of relations with the school officials
in that connection, and was kept away from the handling
of cash and supervision of cash reports of the store; he was
confined largely to the minor store function of selling
general books, in which he was used almost entirely in the
work of a full-time clerk.
Friedson was paid a higher salary than the average full-
time clerk, according to Vice President Lattinelli, but
Friedson's future as a manager was uncertain. He had no
special educational background for the post. He had been
sent from the main store, where he was a clerk, to the
branch store in July 1975 on the understanding that he
would have to prove himself to become manager. This was
underscored in further conversation with Lattinelli and
President Riggio on September 6, when Riggio asked
Friedson did he want to resume his job as clerk or was he
still interested in becoming store manager.
The Board has held that, when a combination of
conditions are present, it will treat management trainees as
management employees normally excluded from the
protection of Sections 7 and 8 of the Act, Curtis Industries,
Division of Curtis Noll Corporation, 218 NLRB 1447 (1975),
see in particular 1447 and 1452. The conditions relate to a
programed and limiting approach by the employer that
tends to align the trainees with management rather than
with regular employees. Here, as already discussed, most of
those conditions did not exist or apply in Friedson's case.
He was not recruited and hired because of any special
educational background. He was not required to advance
into the management position or leave Respondent's
employ if he did not. He was not part of, or given, a
planned management-trainee program. While his salary
was a little higher than the average salary of full-time
clerks, his benefits were the same.
Additionally, using for a trainee, as for other employees,
the job analysis test, as was advocated by dissenting then
Member Fanning in Curtis, supra, 1448-49, Friedson did
not perform duties in July-September 1975 justifying his
classification as managerial. His day-to-day work bore all
the indicia of employee status-he worked side by side
with rank-and-file bookstore clerks, performing the same
work and subject to the same supervision. He was not
locked into a course of study that at some date certain
would result in his graduation into the ranks of manage-
ment. His few duties that might be characterized as
managerial were minor and routine and were far less in
scope and importance than those performed by full-time
clerks Arroyo and Padmore, who are not claimed to be
supervisory or managerial employees by Respondent.
I find, therefore, that Friedson was neither a supervisory
nor managerial employee or trainee within the meaning of
the Act. On the contrary, within the meaning of the Act he
Lorenzo's authority to approve payment for book purchases, was purported-
ly illustrated by several invoices signed for payment by Friedson. the highest
of which was for $131. In view of the fact that Friedson did exercise limited
purchasing authority to buy trade books, within Respondent's controlled
practice of buying by list and prices preset by the sellers (see discussion
above under sec E on the status of assistant buyer Nicolas), Friedson's
approval of payment of the books received was no less routine than his
purchase orders, even where Lorenzo might not have specifically directed
Friedson to sign each bill for payment.
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was an employee whose interests were aligned with rank-
and-file employees rather than with management.
His Discharge
On September 4, 1975, employee Friedson came down to
the main store about 7 or 7:30 p.m. and visited with his
former supervisor, Textbook Manager Fiechter. He told
Fiechter there were labor relations problems at Barnes and
Noble, and Fiechter suggested they talk about it in his
office. In the office was General Manager Goldsmith and
he also listened to what Friedson had to say. In the course
of talking Friedson said that he favored unionizing the
main store and the branch stores. He received no comment
to that expression of opinion.
That same day or evening Friedson signed a union card,
given him by Union Organizer Nattman, and attended a
union meeting, He attended further union meetings that
month and talked to other employees about the organiza-
tional campaign alone or in company of employee Paula
Romeo.
On Saturday, September 6, at or about 5 p.m., Friedson
came into Vice President Lattinelli's office at the main
store for a talk. Friedson discussed certain inequities
affecting some of the part-time employees at the Columbia
store. According to Friedson, Lattinelli said he was aware
of these matters; Lattinelli claimed he told Friedson he
should correct the inequities when he found them;
nonetheless, as discussed in section F above, on the
following Tuesday, September 9, Lattinelli came to the
Columbia store and had Store Manager Lorenzo announce
a wage increase for the part-time employees. Resuming
with the conversation between Friedson and Lattinelli on
September 6, President Riggio joined them about this time
and some of the discussion was repeated. Riggio told
Friedson that he was working against rather than for the
Company, and asked if he wanted to resume his job as
clerk or was he still interested in becoming a store
manager. Friedson said he was content with his position.
Riggio said he had been discussing with Lattinelli whether
Friedson should be allowed to return to the Columbia store
or report to the main store. According to Friedson,
Lattinelli persuaded Riggio that Friedson should be
permitted to return to the Columbia store on Monday,
whereupon Riggio said he did not mind working out things
internally but that he was not going to condone any outside
bargaining agent like District 65 (the Union).' 6
On Wednesday, September 10, after the Columbia store
closed, employee Friedson came down to the main store
about 6:30-7:00 p.m. bringing dinner for employee Paula
Romeo. The two went into the small lunchroom or snack
machine room near the textbook section and, said
Friedson, were discussing Columbia Store Manager Loren-
zo's announcement of the pay raise to the part timers on
the previous day. General Manager Goldsmith came by
and asked Friedson what he was doing there. Friedson
replied, he had brought dinner for a hard working
employee; to which Goldsmith retorted, why hadn't
te Latlinelli and Riggio denied that Riggio mentioned the Union at this
meeting, but I do not credit the denial.
Friedson brought dinner for all of Respondent's hard
working employees.
A little later, Friedson went into the sales area of the
store and bought several books at his employee's discount.
He carried them out in two paper bags. It was then about
7:45 p.m., said Friedson, and he went out the main store,
crossed the street, close to the entrance of the annex, where
he was met by two friends (who were not store employees),
and waited briefly for and was joined by employee Paula
Romeo who was leaving the main store for the night.
Apparently employee Friedson had been closely watched
by Respondent. Annex Manager Jimmy Riggio testified
that he received a phone call from Tibor Kalman, one of
Respondent's top management (in charge of advertising
and construction), that employee Friedson had just been
observed buying two bags of books at the main store at the
employees' discount and was handing the books to two
other persons in front of the annex. Manager Riggio
dashed out the annex door and snatched the books from
Friedson or his friends, angrily and in foul language
berating Friedson for violating company policy (that
allegedly permitted employee discount book purchases
only for the employee and his immediate family). Friedson
responded angrily to the verbal assault and book snatch-
ing, but Manager Riggio insisted on taking the books back
to the main store for refund. Friedson followed him into
the main store which, said Friedson, was now closed to
customers, but President Leonard Riggio and several
others of management were there.
Friedson readily admitted to President Riggio that he
had bought the books for friends but that it was a regular
practice for the store's managers to mark down books for
employees' friends and that Manager Ray Fiechter (who
was among those present) had willingly marked down
books that he knew were for friends. As the discussion
proceeded, President Riggio accused Friedson of stealing
(in the context of violating the discount policy), voices
became louder, and angry words and names were ex-
changed on both sides, including President Riggio and
employee Friedson. President Riggio told Friedson he was
fired for insubordination, said Friedson. President Riggio
testified he fired Friedson for being abusive before others,
and not for violating the book buying policy.
On Friday, September 12, Friedson saw Vice President
Lattinelli after being told that President Riggio might be
interested in reinstating him. He told Lattinelli he was
sorry he raised his voice even though he had been
slandered and called names. Lattinelli arranged for a
meeting on Saturday, September 13. At the meeting, with
President Riggio present, Lattinelli told Friedson that
Respondent wanted a cooling-off period of two weeks, that
it might provide a helpful solution, that Friedson was not
to work for the next 2 weeks but would be paid. Riggio said
he approved the cooling-off period and payment to
Friedson. Friedson testified that he did not work and was
paid for the September 13-26 period, but that he continued
to talk to employees about union organization outside and
away from the stores, and attended union meetings.
1342
BARNES AND NOBLE BOOKSTORES
On Saturday, September 26, Friedson again met Latti-
nelli in his office. Lattinelli told Friedson he would not fit
into Respondent's management team, that after the
previous difficulty with Leonard Riggio they could not get
along, and that the firing of September 10, 1975, remained.
Friedson asked the reason for the firing and Lattinelli
replied, insubordination.
Friedson went to the textbook department to tell his
friend employee Paul Carlson the result that had been
reached. General Manager Goldsmith was present. Fried-
son asked Goldsmith the reasons for the discharge.
Goldsmith replied, "On or off the record?" Friedson
answered off the record. Goldsmith then stated, as he
admitted, that the reason for Friedson's termination was
not insubordination and not the book incident but an
idealogical rift between management and Friedson.' 7
General Manager Goldsmith's plain speaking for Re-
spondent's management, in this case, clearly stated the
antiunion motive for Friedson's discharge (that can be
inferred, without the statement, from all of the circum-
stances surrounding the discharge). However, what Gold-
smith said was also an admission that the Respondent was
not above inventing reasons for discharge to conceal the
true reason, and in this instance goading the employee by
virulent language and conduct into making himself
vulnerable to the invention. The physical force by Jimmy
Riggio and harsh words of both Riggios accompanying the
fuss over the employee book discount policy (a policy
apparently honored in the breach and the alleged violation
dropped by Respondent as cause for the discharge)
brought on responsive harsh words by employee Friedson
laying him open to the claimed charge of "insubordina-
tion," used as a pretext for his discharge.
Goldsmith's willingness to speak plainly to Friedson
following his discharge rested no doubt on confidence that
Respondent was legally immune under the Act for
discharge of a supervisor or management employee. As has
been determined, Friedson was neither, but was an
employee within the meaning of the Act entitled to the
protections of Section 7 and 8. His discharge, because of
his union activities, was a violation of Section 8(a)(3) and
(I) of the Act.'r
K. Threats To and Discriminatory Transfer and
Discharge of Employee Scarcella
Mike Scarcella began his employment with Respondent
in October 1974 in the medical book department of the
main store where he remained until his discharge on June
I 1, 1976.
Scarcella was a part-time employee who worked 37-1/2
hours per week, Monday through Friday. He began at
$2.75 per hour and received periodic raises so that by
August 1975 his wage rate was $3.50 per hour.
i7 Goldsmith added that he explained to Fnedson that Friedson had
organized for the Union and in Goldsmith's view Friedson had been part of
Respondent's management.
"s However, even if Friedson were held to have been a statutory
supervisor or management employee it would appear from the collective
facts of this case that his discharge was a violation of Sec. 8(aX I) of the Act,
because it was part of a pattern of conduct by Respondent aimed at
penalizing employees for their union activities with the object of discourag-
ing membership in the Union. His discharge along with the discharges of
In all this time (and until September 10, 1975), employee
Scarcella had worked in the stockroom of the medical book
department, and had become the leadman in charge of the
stockroom, where two other employees John McCaulley
and Mike Huey (or Hughey) worked regularly with him.
The medical book stockroom was very large, covering
rooms on the second, third, and fourth floors of the main
store. Also, as General Manager Goldsmith noted, the
basement wholesale inventory was supplemental stock. In
addition, as Medical Book Department Manager Doug
Purington pointed out, the medical book department was
one of the few departments that did its own shipping and
receiving. Hence, said Purington, there was a need every
day for stockroom personnel. The department comprised
15-20 employees in August-September 1975, including the
3 employees regularly assigned to the stockroom.
Employee Scarcella's duties as the man in charge of the
stockroom included processing the mail, bringing books to
the stockroom, recording them, pricing them, and sending
them to the retail sales floor on the second floor. He was
responsible to keep track of the several rooms of the
stockroom and to see that they were filled and neat. Only
in exceptional circumstances did he work on the sales floor,
such as an occasional overtime Saturday in the rush period,
or a few hours other days to fill in for someone out sick. As
both General Manager Goldsmith and Manager Purington
testified, from the start Scarcella did his work well, he was
good at it, he became experienced, and there were no
complaints about his work. Rather, he was complimented
by Purington on the quality of his work.
In early August 1975, employees Mary Mowery and
Scarcella took the leadership among Respondent's employ-
ees in organizing employee meetings and then employee
support for the Union, see sections B and D above. When
Mary Mowery was abruptly fired on August 25 (sec. C
above), Scarcella continued his organizing efforts, includ-
ing holding some of the employee meetings at his home as
well as at the union hall. He had already been active in
getting union cards signed and he testified that by
September 4 or 5 he obtained 15-20 signed cards, mostly
from employees of the medical book department and some
few others. Scarcella testified that he warned employees
not to talk Union on the job and to sign their cards on the
lunch period and return them to him.
On August 26, in the morning after Mowery's discharge
on August 25, President Riggio sent for employee Scarcella
and discussed full-time and part-time work, indicating that
he wanted either full-time workers, or part-time workers
who worked no more than 30 hours per week. (Riggio
noted in his testimony that Scarcella had an exception as a
part timer, with his 37-1/2-hour week.) Scarcella said he
was not interested in being a full timer because of the
responsibility to work extra time without compensation.
others had the tendency to cause employees to avoid union membership for
fear of being subjected to the same reprisal, Fairview Nursing Home, 202
NLRB 318, 324, fn. 34 (1973), enfd. 486 F.2d 1400 (C.A. 5. 1973), cert.
denied 419 U.S. 827 (1974); and was motivated by a desire to discourage
union activities in general among employees rather than a concern that he,
as an asserted supervisor, had engaged in union activities, Heck's, Inc., 170
NLRB 178, 184, fn. 8 (1968), enfd. 418 F.2d 1177, 1181 (C.A.D.C., 1969).
And see Krebs and King Toyota Inc., 197 NLRB 462, 463, fn. 4 (1972): and
General Nutrition Cemer, Inc., 221 NLRB 850, 858-859( 1975).
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riggio told Scarcella that if he did not like the work he
could leave.19 Scarcella replied he liked the people but that
there were problems about wages and job security. This led
to reference by Scarcella to Mary Mowery's firing; but
Riggio turned off the discussion by saying he had
responsibilities as president to make certain decisions. The
meeting was interrupted and ended but, about 10 minutes
later, said Scarcella, Riggio came by the stockroom and
told Scarcella that he (Riggio) was going to take actions to
push things along and divide things up.
On September 9, President Riggio called Scarcella to his
office again and told him, "Things are clear now, we both
know where we stand, it is illegal to organize for the Union
on the job." (Riggio agreed essentially that this is what he
said.) Scarcella answered that he knew that. Riggio told
Scarcella to make a full assessment of his situation because
he did not want to make a martyr of him. Riggio added he
should have fired him the "first time" (referring to an
occasion in early summer, before the union campaign,
when Riggio's father Steve Riggio was beating a customer
accused of stealing a book, and Scarcella intervened to stop
the beating; Leonard Riggio had not liked Scarcella's
intervention and said he was fired but changed his mind
and sent Scarcella back to work).20
The next day, September 10, three additional employ-
ees-Felder (General Manager Goldsmith's cousin), Alten-
haus, and Ruis-were brought into the medical book
department and displaced the three stockroom employees,
Scarcella, McCaulley, and Huey, for the balance of the
calendar year. Scarcella was transferred at once to the sales
floor. Employee Felder already had sales experience
elsewhere in the store; nevertheless, according to General
Manager Goldsmith, he wanted an experienced person on
the sales floor, such as Scarcella, though Goldsmith
admittedly knew that Scarcella had not done much sales
work and preferred to do the stockroom work. Interesting-
ly, employee Hilmantel testified that the stockroom
employees were kept primarily in the stockroom and not
rotated out because under the prescribed system there were
details to learn in the receiving, checking, and pricing of
medical books that once learned made the employee more
valuable and efficient if he were kept at it. As employee
McCaulley's testimony showed, Respondent followed that
practice, first with Scarcella, McCaulley, and Huey, and
later with Felder, Altenhaus, and Ruis.
Employee Scarcella testified that, in being transferred on
September 10, he was also told he was not to leave the sales
floor without express permission, which was a condition
not imposed on other sales people. On September 17, 1
week later, he had an opportunity to ask Manager
Purington for a clarification of his status. Purington told
him he was to work on the sales floor at all times and not to
leave the floor without explicit permission from Purington
or Assistant Manager Barros, and, specifically, he was not
to go to the stockroom. When Scarcella asked, why the
'5 In the light of President Riggio's knowledge of employee Scarcella's
union activity, the invitation to leave if he didn't like his work was an
implied threat of discharge or other reprisal, Robert D. Loggins, et a., d/b/a
Loggins Meat Co., 199 NLRB 291, 294 (1972), in violation of Sec. 8(aXI) of
the Act.
20 Riggio's statement on September 9 was an implied, if not a direct,
threat to fire Scarcella, if he continued to engage in union organizing, in
confinement, Purington replied that Scarcella had been
overheard talking about union activities in the stockroom
and the purpose was to prevent this. Scarcella testified that
Purington and he then engaged in a conversation about the
pro's and con's of unionizing, Scarcella taking the position
that the Union was needed because of working conditions,
low wages, and job security, Purington arguing that the
Union was not needed, that Respondent was a generous
employer and President Riggio's door was always open.
Manager Purington conceded that he limited Scarcella to
the sales floor area, and told him so. Purington said this
was because of Scarcella's "inefficient manner" and not
because of the Union. However, I do not credit this
assertion, and there are good corroborating reasons to
credit Scarcella's version of what he was told.
Thus, as related in section E above, in his conversation
on September 2, 1975, with employee Julia Nicolas,
President Riggio, while attempting to have her persuade
the active employees to abandon the Union for a
management-employee committee, told her that they could
not expect management to stand by and do nothing, and
while management might not take harsh action it would
take soft measures such as transferring people. Two weeks
later, on September 18, when Riggio told Nicolas that he
was upset that many employees had left the annex opening
party the night before to attend a union meeting, he also
told her that he believed some employees were using the
Union as an excuse to slough off work, that he thought
employee Scarcella was one, and that he had moved
Scarcella to the medical book sales floor from the
stockroom because he had been using the stockroom as a
union organizing headquarters. Riggio testified he also told
Nicolas that Mike Scarcella should be fired for openly
organizing during working hours, but that he could not fire
him then without creating an issue and destroying his
credibility with the employees.2 '
I think it is fairly evident that employee Scarcella was
transferred out of his job in charge of the stockroom to a
place on the sales floor that was of lesser importance, with
humiliating and discriminatory conditions of confinement
to that place, intended as reprisal for and to discourage his
support of the Union, in violation of Section 8(a)(3) and (1)
of the Act. N.LRB. v. Lowell Sun Publishing Company, 320
F.2d 835, 840 (C.A. 1, 1963).
Employee Scarcella worked on the sales floor from
September 10, 1975, to mid-January 1976, and did no work
in the stockroom in this period. His duties on the floor were
to answer the telephone, talk to customers, file cards, and
keep the book shelves filled. Manager Purington claimed
that his performance was inconsistent in this period.
violation of Sec. 8(aXI) of the Act, N.LR.B. v. Gladding Keystone Corp.,
supra, 435 F.2d at 130-131.
21 It should be noted, in passing, that there was no evidence of these
assertions by Riggio that employee Scarcella was using the stockroom as a
Union organizing headquarters, or had sloughed off in his work before the
transfer.
1344
BARNES AND NOBLE BOOKSTORES
In mid-January 1976, without discussion or reason given
employee Scarcella was transferred back to the stock-
room.2 2 Manager Purington said he initiated the move. It
turned out that when Scarcella returned to the stockroom
he found it in disarray, and Manager Purington conceded
this was so. Scarcella's successors in the September-
January period (from among employees Felder, Altenhaus,
and Ruis) had engaged in experimentation and left
confusion, according to Scarcella, and he proceeded, in the
period from mid-January through April 1976, to reorganize
the stockroom, categorizing books by authors and subjects,
improving the method of receiving books, improving the
appearance of the stockroom, and training three new
employees who came in. Manager Purington admitted that
Scarcella did all these things and observed that it was
Scarcella who came up with the new ideas that were put
into effect.23 Scarcella testified that Purington compliment-
ed him on the improvements. Scarcella had not had a pay
raise since before August 1975, and in April 1976 he asked
Assistant Manager Barros about it and was told Purington
had recommended him for a raise. At the hearing
Purington denied having made such a recommendation. In
any event, Scarcella did not receive a pay raise.
Again, without discussion or notice, employee Scarcella
was reassigned from the stockroom to the sales floor about
the end of April 1976. He asked General Manager
Goldsmith why, and was told he had a "bad attitude."
Scarcella commented that it appeared to be part of a
general pattern of harassment.2 4 Manager Purington
testified that, although he got along with Scarcella, he knew
then that Scarcella had to be fired.
When he was reassigned to the sales floor, said Scarcella,
he was limited to doing only certain things, and when he
asked to be allowed to do other things done by the other
clerks was told he could not.
Early in June 1976, employee Scarcella was taken from
his limited duties on the sales floor and put solely on the
menial task of going through every used book in the
medical book department-there were 12,000 titles, said
Manager Purington-to see that each was properly
processed; i.e., all previous prices removed and used
stickers in place. This was work normally shared and done
by all sales people in the department but Purington singled
out Scarcella as responsible for some mistakes that showed
up and assigned him the task of checking all the books,
despite Scarcella's protest that everyone on the floor had
had a hand in the processing. Purington testified that he
made this assignment in consultation with General Manag-
er Goldsmith, and President Riggio testified he had already
given Goldsmith permission to fire Scarcella.
On June 11, 1976, while employee Scarcella was engaged
in his new task, President Riggio came by and said, hello.
Scarcella did not respond and when Riggio asked couldn't
22 It is noteworthy, as Scarcella testified, that the union campaign waned
in December 1975, and by January 1976 the last of the employee meetings
had been held.
23 This testimony came in on cross-examination of Manager Purington,
contradicting his direct testimony that employee Scarcella performed poorly
in the January-April 1976 period and appeared to have lost his touch with
the processing procedures.
24 Scarcella testified that, a few days before, he and employee Walter
Williams had been pricing some new books with a pricing "gun" which was
he be friendly, according to Scarcella, he answered how
could he be friendly when Riggio was arguing with him in
the department. Riggio testified that he replied, it would be
easier to say goodbye, and fired Scarcella. Scarcella said he
did not deserve this, it was all part of the harassment for
engaging in union organizing. Riggio then called in
General Manager Goldsmith, telling Goldsmith that he
had fired Scarcella but that Goldsmith should handle it.
Goldsmith testified that Scarcella was using abusive
language and he told him he had to go. In response to a
question from Scarcella, Goldsmith said he told Scarcella
he was fired for insubordination and foul language to
supervisors.
From the evidence it was obvious that President Riggio
wanted to fire employee Scarcella at the height of the union
organizing campaign in September 1975, because of his
leadership in the organizing, and threatened to do so; but
as Riggio said, Respondent did not want to give the Union
an issue by firing Scarcella then, with the probability, as
General Manager Goldsmith put it, of charges filed with
the Labor Board or a walkout by employees.
Respondent chose the "softer" measure (Riggio's word)
of reprisal and discouragement by transferring Scarcella
from the lead job in the stockroom that he was good at to a
lesser job on the sales floor hemmed in with restrictions, in
the expectation, no doubt, that the effect might break his
resolution to persist in the union cause or humiliate him
into leaving.
When the union campaign ended in January 1976,
Manager Purington, who needed help to restore order from
the chaos in the stockroom, succeeded in getting Scarcella
back in the stockroom. Scarcella performed well and
creatively, as Purington conceded, but by the end of April
it was clear that top management had not changed its mind
about getting rid of Scarcella. He was not given the
periodic pay raise or raises usually awarded and, again, he
was transferred out of his lead post in the stockroom to a
specially limited and restricted job on the sales floor, and
ultimately to the sole and menial task of checking price
marks in used medical books. He did not quit under the
obvious pressure to make him quit, and so he was fired.
The pretext for firing employee Scarcella, on June 11,
1976, was insubordination and use of foul language in
connection with his firing. Assuming that Scarcella was
insubordinate or used foul language, it had nothing to do
with the firing, which had already been determined upon
by Respondent well before that date. The discharge was
made in reprisal for Scarcella's persistence in his union
activity after Respondent's warnings and earlier disciplin-
ary action because of it.
Even if Respondent had valid reasons for discharging
employee Scarcella, since the discharge was at least partly
motivated by his union activity, the discharge violated
ovennked, resulting in ink marks on the covers of a number of books that
detracted from their sale as new books. Manager Purington said that the
guns were new but claimed this had nothing to do with the matter. Scarcella
testified he spoke to Purington about it, said it was the first and only mistake
he had been involved in since returning to the stockroom in January, and
that it would not happen again. In their testimony, General Manager
Goldsmith and Manager Purington claimed that it was this incident that
caused the April transfer to the sales floor, but did not tell Scarcella that.
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) and (I) of the Act, N.L.R.B. v. Great
Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A. 2,
1962), cert. denied 373 U.S. 950 (1963); N.L.R.B. v. Dazzo
Products, Inc., 358 F.2d 136, 138 (C.A. 2, 1966).25
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning
their interest or the interest of other employees in the
Union, by making threats to transfer or discharge employ-
ees or to sell the business if employee organizing or support
for the Union continued, by creating the impression of
surveillance of employees' union activities, by imposing a
discriminatory no-talking rule on certain employees, and
by promising medical benefits for part-time employees and
giving a pay raise to part-time employees of a branch store
while the union organizing campaign was in progress,
Respondent has committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. By discriminatorily reducing the hours of work and
duties of employee Gabrielsky, by discriminatorily trans-
ferring employee Scarcella to a lesser job, and by
discriminatorily discharging employees Mowery, Romeo,
Arthur, Friedson, and Scarcella, because they engaged in
organizing for the Union or supported the Union and in
order to discourage employee activity and support for the
Union, Respondent has committed unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent (1) cease
and desist from its unfair labor practices; (2) offer to
reinstate employee Mowery, Romeo, Arthur, Friedson, and
Scarcella with backpay from the time of discharge of each,
namely, Mowery, August 25, 1975; Romeo, September 26,
1975; Arthur, September 3, 1975; Friedson, September 10,
1975; Scarcella, June 11, 1976; backpay to be computed on
a quarterly basis as set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with
interest at 7 percent per annum as provided in Florida Steel
Corporation, 231 NLRB 651 (1977), and provide backpay
with interest at 7 percent also computed on a quarterly
basis to employee Gabrielsky for the hours of work lost by
reason of the discriminatory reduction in his hours
beginning in September 1975 and continuing into 1976; (3)
post the notices provided for herein; and, because the
Respondent violated fundamental employee rights guaran-
teed by Section 7 of the Act, and because there appears
from the manner of the commission of this conduct an
attitude of opposition to the purposes of the Act and a
proclivity to commit other unfair labor practices, it will be
further recommended that the Respondent (4) cease and
25 The fact that Respondent did not discharge, or otherwise directly
retaliate against. other active adherents of the Union than the group dealt
with in this case, as Respondent urges in its defense, does not disprove
Respondent's discriminatory motive, Nachman Corp. v. N.L.R.B., 337 F.2d
421, 424 (C.A. 7, 1964), nor absolve Respondent, The Rust Engineering
Company et al. v. N.LR.B., 445 F.2d 172, 174 (C.A. 6, 1971). The concern Is
with the in terrorem effect on other employees of the discriminatory
discharge of anyone of them, Id at 174.
desist from in any manner infringing upon the rights
guaranteed by Section 7 of the Act. N.LRB. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P.R. Mallory &
Co., Inc. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968),
cert. denied 394 U.S. 918 (1969); N.L.R.B. v. The Bama
Co., 353 F.2d 320, 323-324 (C.A. 5, 1965).
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 26
The Respondent, Barnes and Noble Bookstores, Inc.,
New York, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their interest or the interest of other employees in the
Union.
(b) Threatening to transfer or discharge employees if
they organize for or support the Union.
(c) Threatening to sell the business if employees continue
to support the Union.
(d) Creating the impression of surveillance of employees'
union activities.
(e) Imposing any discriminatory no-talking rule on
employees.
(f) Promising medical or other benefits, or granting wage
increases, to employees to discourage their support of the
Union.
(g) Discharging or transferring employees, or reducing
their hours of work, because they engage in activities for or
support of the Union.
(h) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge
or other discrimination affecting their tenure or conditions
of employment.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make employees Mary Mowery, Paula Romeo,
George Arthur, John Friedson, Mike Scarcella, and Robert
Gabrielsky whole, in the manner set forth in the section of
the Decision entitled "The Remedy," for any loss of
earnings incurred by each of them as a result, in the cases
of the first five, of their discharges in 1975 and 1976,
respectively, and, in Gabrielsky's case, as a result of the
reduction in his hours of work in 1975 and 1976.
(b) Offer to employees Mowery, Romeo, Arthur, Fried-
son, and Scarcella immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to the
seniority or other rights and privileges of each.
26 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1346
BARNES AND NOBLE BOOKSTORES
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this recommended Order.
(d) Post in the main store, annex, and Columbia
University Medical Center bookstore in New York City
copies of the attached notice marked "Appendix." 27
Copies of said notice, on forms provided by the Regional
Director for Region 2 (New York, New York), the
Respondent shall cause the copies to be after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
27 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the National Labor Relations
Act:
WE WILL NOT coercively interrogate you concerning
your interest or the interest of other employees in the
Union.
WE WILL NOT threaten to transfer or discharge you if
you organize for or to support the Union.
WE WILL NOT threaten to sell the business if you
continue to support the Union.
WE WILL NOT create the impression of surveillance of
employees' union activities.
WE WILL NOT impose any discriminatory no-talking
rule on employees.
WE WILL NOT promise medical or other benefits, or
grant wage increases, to discourage your support of the
Union.
WE WILL NOT discharge or transfer you or reduce
your hours of work because you engage in activities for
or support the Union.
WE WILL NOT discourage you from support of or
membership in the Union or other labor organizations
by discharge or other discrimination affecting your
tenure or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights to
belong to or be active for a labor union or to engage in
concerted activities, or to refrain therefrom.
Because the Board found that we unlawfully dis-
charged employees Mary Mowery, Paula Romeo,
George Arthur, John Friedson, and Mike Scarcella.
WE WILL offer them their former or like jobs, and
WE WILL give each backpay with interest from the
time of their discharges in 1975 and 1976, respectively;
and
Because the Board found that we unlawfully reduced
the hours of work of employee Robert Gabrielsky,
WE WILL give him backpay with interest for his loss
of hours in 1975 and 1976.
BARNES AND NOBLE
BOOKSTORES, INC.
1347