Trader Horn of New Jersey, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1995

316 N.L.R.B. 194 (N.L.R.B. 1995)

194
316 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge, under the section of his decision entitled ‘‘The Dis-
charges,’’ inadvertently stated in the first paragraph that ‘‘Lucas de-
nied any knowledge’’ of the union activity. Although it is clear that
the judge meant to attribute the denial to Store Manager Bialek, we
do not find that correction of this misstatement affects the judge’s
ultimate conclusions here.
1 All dates hereafter are in 1993 unless otherwise stated.
2 References hereafter to events which occurred relate to the Route
17 Paramus store.
Trader Horn of New Jersey, Inc. and Robert Wax-
man and John Kurdziel. Cases 22–CA–19283
and 22–CA–19285
January 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On August 5, 1994, Administrative Law Judge Ste-
ven Davis issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Trader Horn of New Jer-
sey, Inc., Paramus, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Bert Dice-Goldberg, Esq., for the General Counsel.
George L. Schneider, Esq. (Lorber, Schneider, Nuzzi,
Vichness & Bilinkas, Esqs.), of Fairfield, New Jersey, for
the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on June 23, 1993, in Case 22–CA–19283 by
Robert Waxman, an individual, and a charge filed on June
24, 1993, in Case 22–CA–19285 by John Kurdziel, an indi-
vidual, a complaint was issued against Trader Horn of New
Jersey, Inc. (Respondent) on August 6, 1993.1 The complaint
alleges essentially that on June 16, Respondent discharged
salespeople Mark Avrin, John Kurdziel, and Robert Waxman
because they joined or assisted Local 1262, United Food and
Commercial Workers Union, AFL–CIO (the Union), and en-
gaged in concerted activities, and to discourage employees
from engaging in such activities. Respondent’s answer denied
the material allegations of the complaint, and on February 8
and 10 and March 18, 1994, a hearing was held before me
in Newark, New Jersey.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation having an office and place of
business in Paramus, New Jersey, has been engaged in the
retail sale of appliances and electronic products. During the
past 12 months, Respondent derived gross revenues in excess
of $500,000, and during that time, it purchased goods and
materials valued in excess of $5000 directly from suppliers
located outside New Jersey. Respondent admits, and I find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent’s Structure and Hierarchy
Respondent operates a chain of 17 retail stores, selling
household appliances, such as refrigerators and stoves, and
electronic items such as televisions and stereo systems. It
employs 400 people, of whom about 185 are salespeople,
and the rest are cashiers and stockpersons.
Respondent’s owner is Eddie Navlian. Its sales manager is
John Kalainikas, who is responsible for the overall operation,
performance, and profitability of all its stores. Joseph Lucas,
who reports to Kalainikas, is Respondent’s general manager.
He is in charge of six stores, including the Route 17 Paramus
store at issue here.2 He visits that store at least once per
week. Lucas is the immediate supervisor of Michael Bialek,
the store manager of the Paramus store.
The Paramus store employs 25 full-time and part-time em-
ployees, including eight full-time salespeople. Bialek was al-
leged as a supervisor and agent of Respondent. Respondent
admits that he has some supervisory responsibility, including
hiring and firing stock clerks and cashiers, maintaining order
in the store, ensuring that the employees under his super-
vision are performing their duties ‘‘most effectively and effi-
ciently and working their proper hours, and ensuring that in-
ventory is stocked to capacity, is clean, up to date and prop-
erly displayed.’’ However, Respondent denies that it is re-
sponsible for Bialek’s actions or words inasmuch as what he
said or did was ‘‘anti-company,’’ and because he is subject
to the supervision of others, such as Kalainikas.
Bialek is the sole management person on duty on a daily
basis at the Paramus store. When new hires were needed, he
called Kalainikas, who placed an advertisement in the news-
paper. Bialek then interviewed for hire part-time salespeople,
and had the authority, which he exercised, of recommending
their hire. He told Lucas of his decision regarding the hire
of an individual. Although security checks were done on ap-
195TRADER HORN OF NEW JERSEY, INC.
plicants prior to Bialek’s notifying them of their hire, his rec-
ommendations for their hire were never overruled. He also
had the authority, which he exercised, of hiring stock clerks
and cashiers. Kalainikas interviewed and hired the full-time
salespeople.
Bialek imposed discipline on the employees, which was
verbal and informal. He possessed the authority, which he
exercised, to discharge the part-time stock clerks and cash-
iers. In addition, his recommendations that two or three full-
time salespeople be terminated were not overruled. However,
his recommendation that a part-time stock clerk be fired was
overruled as the stock clerk’s father was a friend of Lucas.
If sales people were not selling enough items, Bialek
spoke with them, in an effort to improve their sales tech-
niques. He trained employees as to new products and new
directives from management. Bialek set the schedules for the
employees, and had authority to grant time off if an em-
ployee needed to take a day off or had to exchange his work-
day off with another employee. These matters were resolved
in the store. However, he needed approval from Lucas as to
the granting of vacation time to the workers.
Each salesperson was assigned a section of the store to
work in. Bialek made sure that each salesperson knew what
his responsibilities were, and that he serviced his area cor-
rectly. Bialek checked the areas and if he observed an im-
proper practice he told the employee to correct it.
Bialek directed the stock clerks to arrange the stock and
to clean the store. Bialek also was responsible to ensure that
merchandise was ordered and being received promptly, and
that the sales staff was performing its job correctly.
Bialek receives medical and hospitalization benefits which
other employees do not receive.
Based on the above evidence, it is clear that Bialek, the
only management representative in a store having 25 em-
ployees, is a supervisor of Respondent within the meaning of
the Act. He effectively recommends the hire of stock clerks,
cashiers, and part-time salespeople, he discharged those em-
ployees, and effectively recommended the discharge of full-
time salespeople. He set employees’ schedules, granted time
off, and trained the staff as to new techniques and new prod-
ucts. The Board has found that store managers exercising
less authority are supervisors. Colorfax Laboratories, 248
NLRB 439 (1980); Lipman’s, 227 NLRB 1436, 1437 (1977);
Jackson’s Liquors, 208 NLRB 807, 808 (1974).
I accordingly find and conclude that Bialek is a supervisor
and agent of Respondent within the meaning of Section 2(11)
of the Act, and that Respondent is responsible for his actions.
Section 2(13) of the Act makes it clear that an ‘‘employer
is bound by the acts and statements of its supervisors wheth-
er specifically authorized or not.’’ Dorothy Shamrock Coal
Co., 279 NLRB 1298, 1299 (1986).
The Nascent Attempt at Union Organization
Mark Avrin, a salesperson, testified that employees were
unhappy with a change in the commission structure which
led to lower earnings, and with the fact that employees had
no medical or other benefits. Avrin stated that in late 1992,
or early 1993, he had at least six ‘‘surreptitious’’ conversa-
tions with four to six employees in the store concerning these
problems. He had been employed by a competing company,
Newmark & Lewis, which, at the time he worked there, had
defeated an attempt at organization by the Union. He offered
to contact the Union, suggesting that perhaps the Union
could help them.
In February 1993, Avrin called the Union. Union Agent
Patrick Purcell offered to help, but said that he was busy
with a supermarket strike at the time, but would call when
he was available.
Waxman testified that in March 1993, he was solicited by
his fellow employees regarding his views of the Union. Wax-
man told them that he was not interested, and had opposed
the Union when he was employed at Newmark & Lewis.
By May 1993 apparently Purcell had not contacted Avrin.
Arvin reported this to his colleagues, and fellow employee
John Kurdziel offered to call the Union. In late May, an ap-
pointment was made with Purcell, which Purcell did not
keep.
In June, Kurdziel spoke to another union representative,
Marge Rhea, who suggested that he contact the employees
in Respondent’s other stores. Kurdziel stated that he spoke
on nearly a daily basis with about six coworkers at the store
regarding a proposed meeting with Rhea. Avrin stated that
his conversation with Kurdziel concerning Rhea becoming
involved was ‘‘very discreet.’’ All his discussions with those
employees took place in the store’s loading area. Kurdziel
also spoke to one ‘‘key’’ employee in each of two other
stores that he formerly was employed in. Kurdziel told those
two people about the plan to organize a union. He wanted
to see if there was any interest in those stores in becoming
represented by the Union. All of his discussions with those
employees took place over the Respondent’s tie line—a di-
rect telephone line between the stores.
During the first week in June, Kurdziel arranged a meeting
with Rhea for June 10, and spoke to his coworkers, and the
two individuals in the other stores about that meeting. How-
ever, the employees were told that they had to work late on
June 10, and thus canceled the meeting.
The meeting with Rhea was rescheduled for June 17.
Kurdziel informed the same people about the new date. His
last conversation with the other stores’ employees was on
June 14.
The Discharges
Bialek testified that in the afternoon of June 16, Lucas,
Respondent’s general manager, entered the store loudly com-
plaining about the garbage strewn about behind the store.
Bialek left the store with Lucas to explore the situation.
When they were outside, Lucas explained that his mention
of the garbage was a ruse to speak to Bialek out of the store.
Lucas then asked Bialek if he knew anything about union ac-
tivity ‘‘going on’’ in the store. Lucas denied any knowledge,
and asked who Lucas thought was ‘‘involved.’’
Bialek further testified that Lucas said that he believed that
Kurdziel, Avrin, and Waxman, some management personnel,
and other stores were involved as well. Lucas added that he
believed that Kurdziel was involved because of his unhappi-
ness with the new commission and warranty sales structures.
Lucas further said that he believed that Avrin and Waxman
were involved because they came from Newmark & Lewis,
which at the time that it closed was undergoing a unioniza-
tion effort by the salespeople.
They then returned to the store, and at about 4:30 p.m.
Lucas received a phone call. He told Bialek that the main
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office told him that there would be a meeting ‘‘specifically
about the union problem’’ that evening. Lucas did not testify.
About 8 p.m. that evening, Kalainikas and Lee Delamarca,
Respondent’s director of security, came to the store.
Kalainikas told Bialek that he was terminating Avrin, Robert
Johnstone, Kurdziel, and Waxman. Bialek asked why they
were being discharged, and Kalainikas replied, ‘‘inadequate
performance.’’
Kurdziel testified that Kalainikas told him that Respond-
ent’s president, Navlian, was ‘‘not happy with your num-
bers’’ and that he was being terminated for that reason.
Waxman testified that Kalainikas told him that he was ter-
minated. The reasons given were that he did not maintain his
area, did not have ‘‘decent’’ productivity, and did not meet
Respondent’s requirement that 5 percent of his gross sales be
in sales of extended service or warranty contracts (contracts).
Avrin, who was not at work, was phoned at home by
Kalainikas that evening. Avrin testified that Kalainikas told
him that he was terminated because Respondent was not sat-
isfied with his performance. Avrin asked if he could elabo-
rate, and Kalainikas said he could not.
Johnstone was also discharged that evening. However, he
was reinstated the next day. No charge alleging his discharge
was filed.
Following the discharges, Kalainikas told Bialek to close
the store for the evening, which he did. As they left,
Kalainikas told Bialek that he (Bialek) was ‘‘part of the
problem too,’’ and that he was being discharged because of
inadequate performance. Bialek conceded that he became
upset, but could not remember what he said. Kalainikas testi-
fied that Bialek came at him with his hands clenched and
raised and threatened to kill Kalainikas and his family.
Delamarco approached them, and Bialek shouted: ‘‘It’s not
worth it, is it?’’ and then left. Kalainikas did not call the po-
lice or file a formal complaint.
Bialek testified that as he was entering his car to leave the
area, Lucas was waiting for him. Lucas approached and told
Bialek that he (Lucas) did ‘‘not want it to be this way,’’ that
he tried to save Bialek’s job, but could not because Navlian
and Kalainikas wanted him terminated.
The following day, June 17, Avrin and Kurdziel went to
the store. Kurdziel testified that while they were there, Lucas
asked them if they were aware of activities such as drug use
or gambling in the store, or anything which could have
caused the mass discharges the prior evening. Kurdziel re-
sponded that he knew of no reason. Avrin testified that
Lucas told them that Navlian was upset because business
was slow, and that Navlian ‘‘went crazy,’’ by discharging
many employees from other stores. Lucas said he did not
know why he took such action.
Also that day, Bialek met with Kalainikas and discussed
the reasons for his termination. Bialek stated that he was told
that Lucas was in the store that day, and reported that the
merchandise did not have proper tags on them, the store was
dirty, and products were not properly and most effectively
displayed.
Waxman testified that, on June 18, he asked Lucas why
he was discharged. Lucas replied that he knows nothing
more than Waxman knows, adding ‘‘what were you fellows
up to?’’
Respondent’s Defenses
Respondent asserts that it had no knowledge of any union
activity engaged in by anyone at the store, there has been no
showing of any antiunion animus, and that Avrin, Kurdziel,
and Waxman were discharged for cause. In its position letter,
Respondent stated that Lucas spoke ‘‘in very general terms
regarding a rumor he heard on one occasion regarding un-
specified ‘union activity.’ He very briefly discussed the
rumor with . . . Bialek, and sales persons John Kuba and
John Post. They all responded saying they knew nothing
about any ‘union activity.’’’ Nothing further on that issue
was discussed with those persons or anyone else.
Bialek testified that he was not aware of any union activity
at the store. He had no conversations with anyone concerning
a union, and never saw any union-related documents at the
store. Similarly, Kalainikas testified that in the period in-
volved here, he was unaware of any union activity engaged
in at the store. He stated that in the past he has heard rumors
concerning unions and dissatisfied employees, but he took no
action against or toward any employee as a result of such ru-
mors. Kalainikas further stated that he had no knowledge of
any conversation Lucas might have had with store personnel
in which union activity was mentioned.
As set forth above, Respondent asserts that the three sales-
people were discharged for cause. The General Counsel as-
serts that Respondent gave inconsistent and shifting reasons
for discharging them.
Avrin
Avrin was employed by Respondent for 2 years. As set
forth above, on June 16, Avrin was told by Kalainikas that
Respondent was not satisfied with his performance.
In its position letter submitted in connection with the in-
vestigation of this case, Respondent stated that Avrin had a
bad attitude toward his colleagues and toward customers, and
possessed a ‘‘negative, anti-company attitude.’’ It stated that
his ‘‘nasty demeanor’’ adversely affected his sales perform-
ance, and the sales efficiency of the store. Customers asked
not to be helped by Avrin because of his attitude.
At the hearing, Kalainikas testified that Avrin was very
nasty and curt with customers, and that if he did not ‘‘get
his way’’ he would ignore them. He was grating, discour-
teous, and very negative with customers and to Respondent.
He contributed to poor morale in the store.
Bialek testified that Avrin was a ‘‘little harder to manage’’
and had to be dealt with more differently than other sales-
people. Bialek described Avrin as ‘‘very opinionated’’ and
verbose, having a personality which is a ‘‘little grating.’’ He
was an average salesperson. In 1993, of the eight full-time
salespeople, he was fourth in merchandise sales, fifth in con-
tracts, and fourth in total sales.
Avrin testified that he was never disciplined for his atti-
tude or demeanor and, in May or June 1993, Respondent did
not speak to him concerning such matters. He stated that dur-
ing his tenure one customer sent a letter complaining about
him, as to which Lucas told him that he had no problems
with Avrin regarding customer complaints, so this letter must
be from a ‘‘nut.’’
Regarding his sales performance, Avrin further stated that
Respondent continuously urges its salespeople to make more
sales of merchandise and contracts. About 1 year prior to his
197TRADER HORN OF NEW JERSEY, INC.
discharge, Avrin was told by Lucas to increase his sales of
contracts. A couple of months before his discharge, at a
meeting in the store, Bialek told the salespeople that anyone
who did not meet the 5-percent quota of contracts would be
terminated.
Kurdziel
As set forth above, Kurdziel was told by Kalainikas that
Respondent was not happy with his ‘‘numbers.’’
In its position statement, Respondent stated that Kurdziel
was ‘‘a good salesman with good potential,’’ but due to a
‘‘significant alcohol problem’’ his personality was offensive
and contributed to a discourteous attitude to customers on a
regular basis.
At the hearing, Kalainikas testified that Kurdziel was ter-
minated due to his drinking problem, attitude toward cus-
tomers, and his failure to ‘‘turn over’’ a customer to the
manager or another salesperson when he could not close a
sale. Kalainikas stated that in 1993, he may have spoken to
Kurdziel once about alcohol use.
Bialek described Kurdziel as one of the highest-producing
salespeople. In 1993, of the eight full-time salespeople,
Kurdziel was second in sales, third in contracts, and second
in total sales. Kurdziel stated that he was complimented for
his sales, and was always among the top 10 to 15 percent
of sales writers in the entire Company. Bialek stated that
when Kurdziel became employed in the store, he told him
that he would be discharged if he drank on the job. Shortly
thereafter, in the fall or summer of 1992, Bialek noticed that
Kurdziel had alcohol on his breath, and he was warned.
Bialek further stated that, thereafter, he had no problem with
Kurdziel’s drinking.
Kurdziel became employed by Respondent in 1986. Dur-
ing his tenure, he was not individually criticized for the
amount of sales of merchandise or contracts.
Kurdziel conceded having a problem with alcohol. He was
discharged in 1989 for alcoholism which played a part in an
argument he had with a coworker. Following his discharge,
he worked for another company for 3 months and requested
reinstatement. He was reinstated in May 1990 with the warn-
ing that if a complaint was received about his drinking, he
would be discharged. Kurdziel was suspended for 2 days in
the fall of 1992 following an argument with a cashier. Fol-
lowing his discharge in 1989, he was not disciplined for
drinking. Moreover, Kurdziel stated that he quit Respond-
ent’s employ in April 1993 because of the change in the
commission structure. Lucas asked him to stay, saying that
he was a good salesman, and that things would change for
the better. Kurdziel agreed to stay.
Waxman
As set forth above, Kalainikas told Waxman that he was
discharged because he did not maintain his area, did not have
‘‘decent’’ productivity, and did not meet Respondent’s re-
quirement that 5 percent of his gross sales be in sales of ex-
tended service or warranty contracts.
Respondent’s statement of position states that Waxman
failed to ‘‘turn over’’ his customers, his attitude toward cus-
tomers was ‘‘indifferent and overall very negative,’’ and he
was a ‘‘chronic complainer’’ concerning company policies
and pay structure which caused the demoralization of the en-
tire staff.
Bialek described Waxman as an average salesperson and
an above average contract writer. He was seventh in mer-
chandise sales, second in contract sales, and sixth in total
sales. Bialek stated that Waxman always made sure that his
area was clean and tagged and arranged properly. Bialek did
not notice that Waxman had a negative or indifferent atti-
tude, except when Waxman and the other salespeople were
upset about Respondent’s plan to reduce their commissions.
Bialek further stated that Waxman made turnovers of cus-
tomers when needed.
Waxman became employed by Respondent in September
1991. He stated that prior to his discharge, he received no
complaints regarding his work area, attitude toward cus-
tomers, sales production, or failure to turn over customers.
About 4 to 6 weeks prior to his discharge, he was asked by
Bialek to increase his sales of contracts. He stated that he
frequently turned over customers, and did so to Lucas. On
one such occasion, Lucas told him that he did such a good
job with the customer that there was nothing left for Lucas
to work with.
Waxman testified that he believed that he was discharged
because Respondent thought that he was involved with the
Union. However, following his discharge, he filed a charge
with the EEOC alleging that he was discharged because of
his age and religion.
The Termination of Bialek
Kalainikas, employed by Respondent for 13 years, could
not recall an instance where half the full-time sales staff and
the store’s manager were discharged at one time. He stated
that on occasion, two to three salespeople are discharged in
1 week, and then the manager is terminated, or a manager
is discharged, and then two to three salespeople are sepa-
rated. However, Kalainikas explained that such drastic action
was necessary because Bialek could not ‘‘control the store,’’
and described the situation on June 16 as a ‘‘condition, like
an infection,’’ ‘‘you just really had to clear it up.’’ He de-
scribed the store as in total disarray: merchandise tags were
faded, curled, or missing; goods were very dusty and dirty,
and had scratches and missing knobs; and the stockrooms
were messy.
Kalainikas explained that the information he received con-
cerning the store’s condition was received from supervisors
and customers. However, Bialek testified that Lucas, who
was his immediate supervisor, and visits the store at least
once per week, never complained to him about the store’s
condition. Occasionally, he told Bialek to take care of certain
minor problems, such as a tag missing from a television,
which was remedied immediately. Bialek denied that the
store was in the condition described by Kalainikas.
Analysis and Discussion
The General Counsel’s Case
Avrin and Kurdziel were active union supporters who
made contact with the Union, and actively promoted it
among their coworkers at the store. In addition, Kurdziel
spoke to employees at Respondent’s other stores concerning
the Union. It is clear that their activities in behalf of the
Union came to the knowledge of Respondent.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent asserts that it had no knowledge that any of
its employees were interested in the Union or engaged in any
union activities at all. It correctly notes that no meetings had
been held between its employees and the Union, and the em-
ployees received no literature concerning the Union.
However, Bialek’s credited testimony quoting Lucas’ June
16 remarks establishes that Respondent was aware that em-
ployees at the store were engaging in union activity. On that
date, Lucas asked Bialek if he was aware that union activity
was ‘‘going on’’ at the store, and identified Avrin, Kurdziel,
and Waxman as those involved. It is clear that Respondent
bore animus toward the Union as exemplified in Lucas’ com-
ment that there would be a meeting concerning the union
‘‘problem’’ that evening. Of course, that evening, the three
people identified with the Union were discharged.
The fact that Waxman was opposed to the Union, and
rebuffed his colleagues’ attempts to interest him there, does
not mean that a prima facie case has not been established.
A prima facie case does not fall if Respondent was mistaken
as to an employee’s interest in the Union. If an employer
suspects, but does not know for certain, that an employee has
engaged in union activities, knowledge of his union activities
has been established. Respond First Aid, 299 NLRB 167, 169
fn. 13 (1990). Here, Waxman was identified by Lucas as
being one of the men involved with the Union.
Further, Lucas’ question to Waxman shortly after his dis-
charge, ‘‘[W]hat were you fellows up to?’’ adds support to
a finding that they were involved in some conduct detrimen-
tal to Respondent which caused their termination.
The manner and timing of discharges of employees permit
an inference that the Respondent knew that the dischargees
had engaged in union activity. Knoxville Distribution Co.,
298 NLRB 688 fn. 1, 696 (1990), where the Board found a
violation in the simultaneity of the discharges of three em-
ployees for unrelated reasons 1 day before a union meeting.
Such a coincidence in time between Respondent’s knowledge
of its employees union activities and their discharges is
strong evidence of an unlawful motive for their discharges.
‘‘Timing alone may be sufficient to establish that antiunion
animus was a motivating factor in a discharge decision.’’
Sawyer of NAPA, 300 NLRB 131, 150 (1990).
Here, the manner and timing of the discharges lends strong
support to the General Counsel’s prima facie case. The dis-
charges occurred after an aborted first meeting with the
Union, and a round of discussions setting up a new date, and
1 day before the rescheduled meeting was to be held. In ad-
dition, on the same day that the three employees were identi-
fied as being involved with the Union, they were discharged
in a summary manner.
Based on the above, and the discussion, infra, of Respond-
ent’s reasons for the discharges, I find that the General
Counsel has established a prima facie showing that the union
activities of Avrin and Kurdziel, and the believed union ac-
tivities of Waxman were motivating factors in their dis-
charges by Respondent. Wright Line, 251 NLRB 1083
(1950).
Having found a prima facie case for unlawful motivation
in the discharges of Avrin, Kurdziel, and Waxman, the bur-
den shifts to Respondent to prove that it would have dis-
charged them even in the absence of their union activities.
Wright Line, supra. I find that Respondent has not carried its
burden.
Regarding Avrin, as set forth above, he was told at dis-
charge that Respondent was not satisfied with his perform-
ance. Respondent also maintained that his attitude was bad,
and he was nasty to customers. Although Bialek conceded
that he was a little grating; nevertheless, he was not warned
about his personality, and the only customer complaint cited
was a letter from someone who Lucas termed a ‘‘nut.’’ Ac-
cordingly, Respondent tolerated Avrin’s personality until he
engaged in activities in behalf of the Union.
As to Kurdziel, the reason given at his discharge, that Re-
spondent was not happy with his numbers, was clearly erro-
neous. He was one of the top producers. Additional reasons,
that Kurdziel had a problem with alcohol, did not seem to
be a serious situation at the time of his discharge. Although
he had been discharged for alcoholism in 1989, he was rein-
stated after 3 months with a warning of immediate discharge
if he drank on the job. Thereafter, he was warned once for
drinking, but not disciplined. Respondent was anxious to
keep Kurdziel in its employ, successfully urging him to re-
main employed by it after he quit for 1 day only 2 months
before his discharge. Apparently, Respondent was satisfied
with Kurdziel’s performance, and overlooked his prior drink-
ing difficulties, until he became interested in the Union.
Churchill’s Supermarkets, 285 NLRB 138, 156 (1987).
With respect to Waxman, Kalainikas told him at his dis-
charge that he was being fired for less than adequate produc-
tivity, failure to sell a sufficient amount of contracts, and not
maintaining his area. Waxman was second in the sale of con-
tracts, and there was no evidence that he did not maintain
his area. He was seventh in sales in 1993, but John Kuba,
who was not discharged, was eighth. Kalainikas gave uncon-
vincing evidence at hearing regarding specific instances of
Waxman not turning over customers in the past, finally con-
ceding that such instances could not be attributed to Waxman
and also admitting that the one instance in which he alleg-
edly observed such malfeasance was after he had decided to
discharge him.
The fact that Waxman filed charges with the EEOC alleg-
ing other reasons for his discharge does not detract from his
testimony that he believed that he was discharged for union
activities. An employee cannot be held to know the real rea-
son for his discharge. That is for the Board to decide.
Respondent argues that its lack of discriminatory motiva-
tion in discharging Avrin, Kurdziel, and Waxman is dem-
onstrated by the facts that other employees who were en-
gaged in union activities, as testified by Avrin and Kurdziel,
were not discharged, and that Johnstone, as to whom there
was no evidence that he engaged in such activities, was dis-
charged. Respondent thus argues that it did not single out
Avrin, Kurdziel, and Waxman for discriminatory treatment.
As to those who engaged in union activities but were not
discharged, an inference may be drawn that Respondent was
not aware of their activities. Such an inference is warranted
here, where the three individuals who were identified as hav-
ing been involved with the Union were discharged imme-
diately and summarily.
As to Johnstone, it is clear that Respondent realized its
mistake in discharging him. It reinstated him the day follow-
ing his termination. The fact that the person who was not
identified as being involved with the Union was discharged
and immediately reinstated, while those who were believed
to be engaged in union activities were discharged and re-
199TRADER HORN OF NEW JERSEY, INC.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If 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.’’
mained discharged, establishes that Respondent sought to dis-
criminate against those who engaged in union activities.
Kalainikas’ explanation that Johnstone was reinstated be-
cause he was the only one who asked for his job back, and
expressed a desire to meet Respondent’s standards, does not
explain why the others could not have been spoken to and
asked to do the same.
As set forth above, Respondent’s reasons for the dis-
charges of the three employees given them at discharge var-
ied from the reasons set forth in its position statement and
at hearing. ‘‘When an employer vacillates in offering a con-
sistent explanation for its actions, an inference is warranted
that the real reason for its actions is not among those as-
serted.’’ Robin Transportation, 310 NLRB 411, 417 (1993).
Rather than supporting Respondent’s case, its dismissal of
Bialek detracts from it. Lucas told Bialek that it was believed
that some management was involved in union activities at
the store. Kalainikas testified that Bialek was discharged be-
cause he could not ‘‘control’’ the store, and that the condi-
tions at the store were like an ‘‘infection’’ which must be
cleared up. It is thus clear that Respondent held Bialek re-
sponsible for his employees’ interest in the Union, and their
dissemination of such interest to other stores. The summary
dismissal of Bialek, a 13-year employee who was promoted
consistently, demonstrates that Respondent was aware of its
employees’ union activities, bore animus toward them for en-
gaging in such activities, and toward its supervisor for not
preventing or stopping such activity.
For the above reasons, I find and conclude that Respond-
ent has not met its burden of proving that it would have dis-
charged Avrin, Kurdziel, and Waxman in the absence of their
union activities. Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent, Trader Horn of New Jersey, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 1262, United Food and Commercial Workers
Union, Local 1262, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Mark Avrin, John Kurdziel, and Robert
Waxman, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall recommend that Respondent offer reinstatement to
Mark Avrin, John Kurdziel, and Robert Waxman to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority and
any other rights and privileges enjoyed, and to make each of
them whole for any loss of earnings and benefits suffered be-
cause of their unlawful discharges, less any net interim earn-
ings, to be computed in the manner established by the Board
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 233 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Trader Horn of New Jersey, Inc.,
Paramus, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees in order to discourage them from joining or support-
ing Local 1262, United Food and Commercial Workers
Union, AFL–CIO or because its employees engaged in ac-
tivities protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Mark Avrin, John Kurdziel, and Robert Wax-
man immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
each of them whole, with interest, for any loss of earnings
and benefits each of them may have suffered as a result of
its unlawful discharges of them on June 16, 1993, as set
forth in the remedy section of this decision.
(b) Remove from its files any memoranda, records, or
other references to the unlawful discharges of Mark Avrin,
John Kurdziel, and Robert Waxman, as set forth above, and
notify each of them, in writing, that this has been done and
that the discharges will not be used against them in any way.
(c) Preserve and, on 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 analyze the
amount of back pay due under the terms of this Order.
(d) Post at its facility copies of the attached notice marked
‘‘Appendix.’’4 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
200 DECISIONS 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 has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate against
our employees in order to discourage them from joining or
supporting Local 1262, United Food and Commercial Work-
ers Union, AFL–CIO or because our employees engage in
activities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer to Mark Avrin, John Kurdziel, and Robert
Waxman, immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, and make
each of them whole, with interest, for any loss of earnings
and benefits each of them may have suffered as a result of
our unlawful discharges of them on June 16, 1993.
WE WILL remove from our files any memoranda, records,
or other references to the unlawful discharges of Mark Avrin,
John Kurdziel, and Robert Waxman, as set forth above, and
notify each of them, in writing, that this has been done and
that the discharges will not be used against them in any way.
TRADER HORN OF NEW JERSEY, INC.