Hi Fi Buys

National Labor Relations Board - Board Decisions

Sep 14, 1981

257 N.L.R.B. 1250 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookline Corporation d/b/a Hi Fi Buys and Rich-
ard Nussbaum. Case 22-CA-10136
September 14, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 30, 1981, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Brookline Cor-
poration d/b/a Hi Fi Buys, Trenton, New Jersey,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
' The General Counsel 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 Prod-
ucts. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
In concluding that Janice Abrahams' second discharge was not in
violation of the Act, the Administrative Law Judge found that the dis-
charge of Abrahams was not due to her intervening concerted activity.
We find it unnecessary to pass on this finding, inasmuch as the finding
that Abrahams was a supervisor within the meaning of Sec. 2(11) of the
Act is sufficient to support the Administrative Law Judge's dismissal of
that portion of the complaint.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard before me in Newark, New Jersey, on
February 23, 1981. The complaint in this case was issued
on August 22, 1980, by the Regional Director for Region
22 based on a charge filed by Richard Nussbaum on July
8, 1980.' In substance, the complaint alleges that, on July
'Unless otherwise indicated, all dates are in 1980.
257 NLRB No. 166
I, the Respondent discharged employees Janice Abra-
hams, Richard Nussbaum, Bruce Abrahams, Lee Paixo.
and David Kimbrough because they "concertedly com-
plained to Respondent regarding the wages, hours and
working conditions of Respondent's employees." In addi-
tion, the complaint alleges that, on or about June 30, the
Respondent interrogated an employee about the employ-
ees' protected concerted activities.
The Respondent asserts, in essence, that it discharged
Janice and Bruce Abrahams prior to the concerted activ-
ity, that the other employees involved were essentially
interested in the rehire of Janice Abrahams, and that
they quit their employment when the Respondent re-
fused to retract its decision to discharge her. The Re-
spondent also asserts that, as a store manager, Janice
Abrahams was employed in a supervisory capacity.
In relation to this case, it is noted that all parties
agreed that Bruce Abrahams was told that he was dis-
charged on June 27 and that Janice Abrahams was noti-
fied of her discharge on June 29. In both instances, it is
conceded by the General Counsel that the discharges, at
those times, were not motivated by any discriminatory
reasons and therefore were not violative of the Act. The
General Counsel nevertheless asserts that, as a result of
the concerted action by the employees, the Respondent
rehired these two employees on June 30 and thereafter
redischarged them on July I because of this concerted
action.
Upon the entire record, including my observation of
the demeanor of the witnesses and after reviewing the
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
It is conceded that the Respondent is a Massachusetts
corporation which operates retail stores throughout Mas-
sachusetts, New Jersey, and Pennsylvania, including the
stores involved herein which are located in Princeton
and Trenton, New Jersey. It also is admitted that the Re-
spondent's gross sales of audio and related equipment for
the past year exceeded $500,000 and that it sold and
shipped from its Massachusetts facilities products, goods,
and materials valued in excess of $5,000 which were
shipped directly to points located outside the State of
Massachusetts. I therefore conclude that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
It also was agreed and I find that Robert Lockwood,
Respondent's president, and Jim Hardy, its district man-
ager, have been at all times material herein supervisors
within the meaning of Section 2(11) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
The two stores involved herein were part of a group
of 10 stores in New Jersey and Pennsylvania which were
acquired by the Respondent from another company
which was in bankruptcy proceedings. In connection
with the acquisition, the Company hired a number of
people including Janice Abrahams who was appointed as
the store manager of the Princeton and Trenton stores
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HI F BUYS
which are about 6 minutes distant from each other. She,
in turn, was instructed to assemble a sales staff for these
stores as quickly as possible, which she did by contacting
a group of people with whom she was friendly. These
people were thereafter hired by the Company basically
on her recommendation and without further screening or
interviewing.
According to Abrahams she continued to be the man-
ager of the two stores for the first month of their oper-
ation, after which she managed only the Princeton store,
which in June was manned by three sales people plus
herself. In June all the stores in the New Jersey and
Pennsylvania, areas were supervised by Hardy as the dis-
trict manager and a man named Mark Leotta who had
supervisory responsibilities over the two stores in ques-
tion. In relation to the duties of the store managers, the
Respondent offered credible evidence that their authority
included the power to hire and fire. Also, the evidence
discloses that the store managers are responsible for the
general operations of their stores, including the training
of all store personnel and the scheduling of their hours
of employment. Additionally, the store managers are au-
thorized to issue warnings to employees and are respon-
sible for evaluating the performance of each employee.
Accordingly, it is concluded that Janice Abrahams, as a
store manager, was a supervisor within the meaning of
Section 2(11) of the Act.
In June, after Hardy was promoted to district man-
ager, he embarked on a program to assess the perform-
ance of the stores under his supervision. As part of his
review, he assessed, inter alia, the relationship between
each store's sales and its payroll expenses. As a result of
this review, a sales employee at the Princeton store, Lisa
Crites, was dismissed. Also on June 27, Bruce Abrahams
was notified by Mark Leotta that he was terminated as
of Monday, June 30. It appears, however, that the notifi-
cation to Bruce Abrahams was made without Hardy's
knowledge.
On June 28, Hardy met with Janice Abrahams and
told her that, because payroll costs were still too high at
the Princeton store, she would have to choose one of her
other salespeople to be let go. He also told her that she
would have to take a cut in pay or alternatively transfer
to another store, if one were available, which could sup-
port her salary. Abrahams responded that she would not
make a decision as to who to lay off and she also told
Hardy that she would not accept a salary cut. At this
point, Hardy told Abrahams to think it over and that he
would call her on Sunday, June 29, for her decision. On
Sunday, Hardy called Abrahams, asked for her decision,
and, when she stated that she refused to take a salary
cut, he told her that, as there were no stores available
which could support her salary, she was fired. At or
about the same time, Lee Paixo was transferred from the
Princeton store to the Trenton store and a Rosenberg
was transferred into the Princeton store as its manager.
On Monday morning, Janice Abrahams went to the
Trenton store where she met with her brother, Bruce
Abrahams, and Lee Paixo who were the only employees
working there that day. They thereupon agreed to go see
Howard Pinkston2 at his office in Feasterville, Pennsyl-
vania, and they therefore closed the store and journeyed
to his office that morning. While at Pinkston's office, the
three employees protested the discharges of Bruce and
Janice Abrahams and also pressed for improved wages
for employees Lee Paixo and Richard Nussbaum. Pink-
ston's response was that he had no authority to deal with
their demands, but that he would arrange a meeting be-
tween the employees and Hardy for that evening. At the
close of the meeting, Pinkston asked Paixo and Abra-
hams to return and reopen the Trenton store and told the
latter to forget about being laid off.
On Monday afternoon, after being informed of the
visit to Pinkston's office and the concomitant closure of
the Trenton store, Hardy visited the Princeton store and
had a conversation with David Kimbrough. According
to Kimbrough, Hardy said that he was having trouble
with the people at the Trenton store and that he could
not run a business with people acting together that way.
He stated that Hardy asked him if he were with him or
with the others and further asked if he were going to
work the next day. Hardy concedes that he asked Kim-
brough if he were with the Company or with the other
employees.
On Monday evening, Hardy arrived at the Trenton
store where Bruce Abrahams and Lee Paixo were pres-
ent. At this meeting, the two employees presented their
plan which proposed, inter alia, the rehiring of Bruce
and Janice Abrahams and improvement in the wages of
Paixo and Nussbaum. Also, Paixo told Hardy that he
would quit unless the employees' plan was accepted.
There is no dispute that. during this meeting, Hardy
agreed to rehire Bruce and Janice Abrahams, although
he states that his reasoning was based, in part, on the as-
sertion by these employees that Rosenberg did not wish
to work in the Princeton store.
According to Hardy, he later found out that Rosen-
berg was not unhappy about being transferred to the
Princeton store and that he therefore changed his mind
about rehiring Janice Abrahams. He also testified that he
then assumed that, if he revoked his agreement to rehire
Janice Abrahams, the other employees would leave their
jobs. However, as to Bruce Abrahams, it appears from
Hardy's testimony that he did not change his mind about
rehiring this employee.
On Tuesday morning, July 1, Hardy visited the Tren-
ton store where Richard Nussbaum, Lee Paixo, and
Bruce Abrahams were present. Based on the record as a
whole and my observation of the demeanor of the wit-
nesses, the following is my conclusion as to what took
place at that time. When Hardy entered, the first thing
he said to the assembled employees was that he was
going back to his original plan and that, if they did not
want to stay because Janice Abrahams was not being re-
2Although the General Counsel argues that Pinkston was at this time a
supervisor and agent of Respondent, the evidence does not prove this
contention. At the time of these events. Pinkston was responsible for the
computer and inventory functions but did not have supervisory authority
over any employees Although it appears that he hired Lisa Crites to
work in his office after she had been discharged from the Princeton store,
that decision was quickly revoked by John Lockwood as being beyond
Pinkston's authority and Crites was let go.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instated, they could leave and that they should hand in
their keys. This statement then engendered a reluctance
to turn in the keys unless an explanation was given.
After some give and take, the keys were returned but,
when Hardy still refused to give an explanation, the em-
ployees asked if this meant that they were fired. To this,
Hardy's response was that they were acting too much
like a union. At this point the employees left the store.
Although it is evident that, during the Tuesday meet-
ing, Hardy never told any of the employees (except as to
Janice Abrahams) that they were discharged, it also is
evident that an ambiguous situation was created. Hardy
testified that after the meeting he telephoned Rosenberg
at the Princeton store with instructions to tell the three
employees, when they arrived there, that they were not
discharged. However, it does not appear from this
record that this message was conveyed to these employ-
ees either on that day or at any time thereafter. Thus,
from Hardy's own testimony it is apparent that he under-
stood that the events which had transpired on that morn-
ing could reasonably have led Nussbaum, Paixo, and
Bruce Abrahams to believe that they were discharged,
an impression which was never corrected by the Compa-
ny. There is, of course, no ambiguity as to the fact that
Janice Abrahams was discharged.
Also, on Tuesday afternoon Hardy called David Kim-
brough at the Princeton store. In this conversation,
Hardy asked Kimbrough if he was going to stay at work
or leave with the other employees. When Kimbrough
stated that he did not know what he was going to do be-
cause he had heard that Janice Abrahams had been fired
again, Hardy told him that, since he could not make up
his mind, he would call Kimbrough back to find out
"where it was at." Hardy did not call back and Kim-
brough decided that he too would leave the store be-
cause he had previously agreed with Janice Abrahams
that, if either were discharged, the other would quit.
Thereafter, sometime in July, Hardy called Kimbrough
and asked if he wanted to come back to work. This offer
was declined.
ll1. CONCLUDING FINDINGS
There is no doubt in my mind that, when employees of
the Company concertedly protested the discharge of
Bruce Abrahams and also sought improvements in their
wages and hours, they were engaged in protected con-
certed activities within the meaning of Section 7 of the
Act. N.L.R.B. v. Washington Aluminum Company, Inc.,
370 U.S. 9 (1962); United Merchants and Manufacturers,
Inc. v. N.L.R.B., 554 F.2d 1276 (4th Cir. 1977); Auto-
Truck Federal Credit Union, 232 NLRB 1024 (1977);
James R. McCaffey and Edward A. Cook, a partnership,
d/b/a ABC Concrete Company, 233 NLRB 1298, 1304
(1977).3 It also is concluded that, by July 1, Hardy be-
lieved that all of the employees at both stores including
Nussbaum and Kimbrough, but except for Rosenberg,
were involved together in the concerted action and
would leave the stores if their demands were not met.
:' It therefore is not necessary to decide whether the concerted protest,
insofar as it related to the discharge of Janice Abrahams, was protected
by Sec. 7 of the Act.
Therefore, the fact that Nussbaum and Kimbrough did
not directly participate in the protest on Monday, June
30, is not really relevant to my ultimate conclusions in
this case. For if they were discharged because the Em-
ployer believed, even mistakenly, that they were en-
gaged in protected concerted activity, such discharges
would be unlawful. The more difficult question here is
whether four of the five employees involved herein were
in fact discharged and if so were they all discharged for
discriminatory reasons.
The evidence discloses that Bruce and Janice Abra-
hams were discharged, respectively, on June 27 and 29.
Further, their discharges, at that time, were concededly
not unlawful as they were motivated by legitimate busi-
ness reasons. It also is established that following these
discharges Hardy had a discussion with Bruce Abrahams
and Lee Paixo on the evening of June 30 in which he
was told of the employees' demands and where he
agreed to rehire Bruce and Janice Abrahams.
It nevertheless is apparent that, when Hardy arrived at
the Trenton store on Tuesday morning, he had again
changed his mind, at least as to Janice Abrahams. This
was manifested in his initial statements to the employees
present (Nussbaum, Bruce Abrahams, and Paixo) when
he told them that he had decided to go back to his origi-
nal plan. It further is evident that, in anticipation of a
cessation of work by these three employees, 4 Hardy
asked for their keys. When the employees asked Hardy if
they were fired, Hardy's response was that they were
acting too much like a union.
With respect to Janice Abrahams it has already been
noted that her initial discharge on June 29 was for legiti-
mate business reasons. Thus, when Hardy announced
that he was going back to his original plan, this state-
ment was indicative of his intention to return to the
status quo prior to the concerted activity and does not,
at least in my opinion, give rise to the inference that his
decision on Tuesday morning to redischarge Abrahams
was motivated by the intervening concerted activity.
That is, although the concerted activity on Monday led
Hardy to retract his initial nondiscriminatory discharge
of Abrahams, this does not compel the conclusion that
he was thereafter precluded from again changing his
mind, if his change of mind did not encompass discrimi-
natory considerations. As it is my opinion that Hardy de-
cided to return to his original plan of discharging Abra-
hams, which was itself motivated by legitimate reasons, I
do not conclude that the reaffirmance of her discharge
on July I violated the Act as I do not believe that this
second decision was motivated by discriminatory rea-
sons.
As to Bruce Abrahams, Nussbaum, and Paixo, the situ-
ation is somewhat different. Specifically as to Abrahams,
although I have concluded that on Tuesday morning
Hardy had decided, for nondiscriminatory reasons, to
reaffirm his original decision to discharge Abrahams, it is
my opinion that he had not changed his mind regarding
4 Although there was some testimony that Nussbaum was, at this time,
a co-manager of the Trenton store, it was not established in this record
that he exercised the powers of a store manager and the Respondent did
not assert that he was a supervisor.
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HI FI BUYS
his agreement to rehire Abrahams. The next question,
therefore, is whether by his actions or words Hardy dis-
charged Bruce Abrahams, Richard Nussbaum, and Lee
Paixo on Tuesday morning.
As I have noted above, it certainly is plausible that,
when Hardy announced his decision to go back to his
original plan, he had good reasons to believe that the
employees would leave the store. Therefore, from his
point of view, he would have had reason to ask for the
keys without intending to discharge the employees pres-
ent. On the other hand it is also plausible that these em-
ployees could reasonably have construed Hardy's state-
ments as indicating his intent to discharge them. Thus, it
is possible that each side hearing the same words could
have reached different perceptions of what was intended.
Nevertheless, I am of the opinion that this ambiguity was
effectively resolved when the employees asked Hardy if
they were discharged and he replied that they were
acting too much like a union instead of saying no. Indeed
Hardy's own testimony indicates that he realized that he
may have given these three employees the impression
that they were discharged because he states that, after
they left the store, he made a call to Rosenberg at the
Princeton store telling him to notify the employees in
question that they were not discharged. Unfortunately
for the Respondent, there is no evidence in this record
that this message was transmitted. Therefore, based on
the record as a whole, I conclude that on Tuesday, July
i, the Respondent discharged employees Bruce Abra-
hams, Richard Nussbaum, and Lee Paixo. Pennypower
Shopping News Inc., 253 NLRB 85 (1980).5 It also is con-
cluded that the motivation for these discharges was due
to the Employer's belief that the employees in question
were involved in protected concerted activity. Accord-
ingly, I find that by discharging these employees the Re-
spondent violated Section 8(a)(1) of the Act.
In the case of David Kimbrough, however, it is con-
cluded that the General Counsel has not made out a
prima facie showing that he was discharged at any time.
Rather, it appears from the evidence that he left the
Company of his own accord pursuant to a preplanned
agreement with Janice Abrahams to quit if she were ter-
minated. Accordingly, I find that the complaint, insofar
as it alleges that he was unlawfully discharged, should be
dismissed.
The final issue in this case is whether the Respondent
illegally interrogated Kimbrough. On this subject, the
facts which are not in substantial dispute establish that
on Monday afternoon, June 30, Hardy having been faced
with the closing of the Trenton store by the employees
that morning, asked Kimbrough if he was with the other
employees or with him and if he was going to work the
next day. If the question were merely an attempt to as-
certain whether Kimbrough also intended to leave his
store it would not, in these circumstances, be unlawful.
' In Pennypower Shopping News. Inc.. supra, the Board concluded that
where "a climate of ambiguity and confusion which reasonably caused
the employees to believe that they had been discharged, or at the very
least. that their employment status was questionable because of their
strike activity," the "burden of the results of that ambiguity must fall on
Respondent" The Board also concluded that, in such circumstances, the
employees were under no obligation to seek reinstatement.
Mosher Steel Company, 220 NLRB 336 (1975): Roadhome
Construction Corp., 170 NLRB 668 (1968). However, the
question was broader than this, and would reasonably
have been construed as an interrogation of Kimbrough's
position on the concerted protest by the others. Accord-
ingly, it is my opinion that the interrogation of Kim-
brough violated Section 8(a)(1) of the Act.
Based on the foregoing, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Brookline Corporation d/b/a Hi
Fi Buys, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, by interrogating an employee re-
garding his support for the concerted protected activities
of other of the Respondent's employees, violated Section
8(a)(l) of the Act.
3. The Respondent, by discharging its employees
Bruce Abrahams, Richard Nussbaum, and Lee Paixo be-
cause of their protected concerted activities, violated
Section 8(a)(1) of the Act.
4. Except to the extent heretofore found, the Respond-
ent has not violated the Act in any other manner.
5. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having concluded that Bruce Abrahams, Richard
Nussbaum, and Lee Paixo were unlawfully discharged
on July 1, 1980, I shall recommend that the Respondent
offer them immediate and full reinstatement to their
former jobs and make them whole for any losses they
may have suffered from that date. Backpay shall be com-
puted in the manner set forth in F. W Woolworth Compa-
ny, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), with interest as prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). Addi-
tionally, it is recommended that Respondent post the at-
tached notice.
Based on the above findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER6
The Respondent, Brookline Corporation d/b/a Hi Fi
Buys, Trenton, New Jersey, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or causing employees to reasonably
believe they were discharged for engaging in concerted
protected activity.
(b) Interrogating employees regarding their sympathies
or support for protected concerted activities.
I 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 find-
ings, conclusions, and recommended Order herein shall, as pros ided in
Sec 102.48 of the Rules and Regulations. be adopted h the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act:
(a) Offer Bruce Abrahams, Richard Nussbaum, and
Lee Paixo immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed,7 and make them whole for any loss of earnings
they may have suffered as a result of the discrimination
practiced against them, plus interest.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Trenton, New Jersey, and Princeton,
New Jersey, stores copies of the attached notice marked
"Appendix." 8 Copies of said notice, on forms provided
by the Regional Director for Region 22, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
7 In view of the fact that Paixo is currently serving in the United
States Navy, if this Order becomes effective before he has left the serv-
ice, an offer of reinstatement shall be made to him effective upon comple-
tion of his present tour of duty.
8 In the event this Board's 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 Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPILOYEE-S
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees or cause em-
ployees to believe that they were discharged be-
cause of their protected concerted activities.
WE WILL NOT interrogate our employees about
their sympathies or support for protected concerted
activity.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL offer Bruce Abrahams, Richard Nuss-
baum and Lee Paixo immediate and full reinstate-
ment to their former positions or, if their former po-
sitions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges previously enjoyed.
WE WILL make the aforesaid employees whole
for any loss of earnings they may have suffered as a
result of the discrimination practiced against them,
with interest.
BROOKLINI CORPORATION D/B/A H Fl
BuYs
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