Kennedy & Cohen of Georgia, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1175 (N.L.R.B. 1975)

KENNEDY & COHEN OF GEORGIA, INC. 1175
Kennedy & Cohen of Georgia, Inc. and Faye Keenum,
Robert Lee Andrews, III, Donald Paden, and
Wayne Albright. Cases 10-CA-10769, 10-CA-
1L0807, 10-CA-10826, and 10-CA-10850
June 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 23, 1974, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 brief
and finds merit in Respondent's exceptions. Accord-
ingly, the Board adopts the findings, conclusions,
and recommendations of the Administrative Law
Judge only to the extent consistent with the follow-
ing:
1. We disagree with the Administrative Law
Judge's finding that ° Respondent discriminated
against certain former strikers in failing to reinstate
them after termination of a strike. Respondent
operates two retail appliance stores in the Greater
Atlanta, Georgia, area. Both stores are identical in
operation and are under the supervision of the
Atlanta general manager. Sales personnel are nor-
mally assigned to one of the two stores, but they are
interchanged between them depending on needs.
On June 6, 1974, some of the sales personnel of
both stores went out on an economic strike and
began picketing the two stores. On June 8, Respon-
dent sent telegrams to all strikers notifying them that,
if they did not return to work by June 12, they would
be replaced. On June 9, Respondent's national
headquarters in Miami, at the request of the Atlanta
general manager, placed an advertisement in a local
Atlanta newspaper; inviting applications for sales
positions. The advertisement was headed "National
Expansion Program," but it made no reference to a
strike. Only one striker offered to return to work
before the June 12 deadline and he was reinstated.
On June 13 and 14, Respondent interviewed appli-
cants for sales positions to replace strikers. Reginald
Ardrey was hired as a replacement for striker Robert
Andrews; Bill Conovor was hired as a replacement
for striker Faye Keenum; David Massey was hired as
a replacement for striker Ray Stanalle; and Bruce
Davis was hired as a replacement for striker Arthur
Stanalle. Each of the replacements was hired as a
permanent employee and each was told the name of
the striker whom he replaced. Respondent also made
notations on the application forms indicating the
striker who was being replaced by the new hire. As
each replacement was hired, he was told to report to
work on June 17.
On June 17 the strikers abandoned the strike and
thereafter former strikers Keenum, Andrews, and
Paden made applications for reinstatement.' Kee-
num and Andrews were denied reinstatement- upon
the ground that they had been replaced, and Paden
for the reason that his former position was not being
filled.
The Administrative Law Judge concluded that the
three named strikers who were not reinstated after
the termination of the strike were discriminated
against.? Apparently one factor relied on by the
Administrative Law Judge was the wording of the
help-wanted advertisement. According to the Ad-
ministrative Law Judge, the wording indicated that
Respondent was seeking not striker replacements,
but additional employees to handle an expanding
business. However, the facts are, regardless of the
wording of the advertisement, that Respondent's
business was not expanding and Respondent was not
intent on increasing its sales force. On the contrary,
because of the business slowdown, Respondent's
business was contracting and its sales force was in
the process of being reduced from 70 at the start of
the strike to 56 at the time of the hearing in this case.
More important, the individuals who responded to
the advertisement were told that they were being
hired as replacements for strikers. Finally, at the time
of the trial no new employees had been hired since
the termination of the strike. We therefore reject the
conclusion of the Administrative Law Judge that the
individuals hired on June 13 and 14 were 'not
intended to replace strikers.
The Administrative Law Judge also seems to have
believed that Respondent was obligated to reinstate
strikers in the order of their applications for
reinstatement regardless of whether they had been
specifically replaced. ^ There is no contention and no
evidence that in designating particular strikers for
replacement Respondent was discriminatorily moti-
vated. The designations appear to have been made
on a random basis. Accordingly, strikers who had
1 Respondent contended that Paden did not make an unconditional offer remained unfilled after the strike's termination , we find it unnecessary to
to return to work after the termination of the strike and, therefore, it was not pass on this contention.
obligated to reinstate him. In view of our finding that Paden's position 2 There is no complaint allegation of discrinunation against strikers Ray
and Arthur Stanalle.
218 NLRB No. 178
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been replaced were not entitled to reinstatement in
preference to other strikers not replaced because of
the former's earlier application for reinstatement.3
Reginald- Ardrey, who was hired as a replacement
for striker Andrews, quit his employment a week
later. However, because of the decline in business no
replacement . for Ardrey was hired; the position
remained vacant. Similarly, striker Paden's former
position was never filled after the termination of the
strike. Under these circumstances, there was no
discrimination in the failure to recall one of the
strikers' to fill the position vacated by Ardrey, or to
reinstate Paden.4
The Administrative Law Judge concluded that
there was, in fact, one new hire after June 1974 and
that striker Keenum was entitled to reinstatement in
place of this new hire. The individual involved,
Sharp, was a supervisor who tendered his resignation
on May 27, 1974, but, according to the uncontradict-
ed testimony of Respondent, his resignation was not
accepted and he was never terminated. In July 1974,
Sharp began functioning as a salesman . The Admin-
istrative Law Judge concluded that Sharp was a new
hire in July and therefore striker Keenum was
entitled to the position which he filled. In view of the
Respondent's uncontradicted evidence, it appears'
that Sharp was not a new hire, but an old employee
who was shifted from a supervisory position to a
nonsupervisory sales position for a nondiscriminato-
ry reason. Respondent was not required to prefer a
striker to Sharp in making the transfer.5
2. The Administrative Law Judge found that
Respondent violated Section 8(a)(I) by discharging
employee Wayne Albright for engaging in protected
activities . We do not agree.
Albright, who did not participate in the June strike,
became an assistant manager in May or June 1974.
Shortly after the termination of the strike the
assistant manager position was abolished and Al-
bright reverted to his former position of salesman.
On July 25 a meeting of 'sales personnel was
conducted by General Manager Tamargo during
which he announced a change in the commission
structure. Albright vocally objected to the change. At
another meeting a few days
j t
Albright criticized
management for its constantly changing policies and
suggested that the employees needed a union. On
July 29 Supervisor Bohmar held a meeting at which
he explained the new commission system which
would be tried out for a month. Apparently, Bohmar
made a statement which some employees construed
as a guarantee that existing commissions would be
kept at their current level despite the change.
Albright asked Floor Manager Bolton that the
guarantee be reduced to writing. At first, Bolton
agreed, but the following day said it would not be
done.
On July 31 Albright became involved in a
discussion of commission rates with Supervisors
Bohmar and Couch. During the discussion which
took place during customer hours and while custom-
ers were in the store, Albright, as found by the
Administrative Law Judge, became "loud and
disruptive" and said that he _did not trust Bolton and
wanted everything in writing. Couch reported the
incident to Tamargo. Also on the same day,
apparently after the altercation incident, Albright
was given a written reprimand for "insubordination,
and solicitation . `.. of a union on Company
grounds." 6 He was also told that he would be
terminated if he received a third reprimand.
That same evening, while Albright was cleaning his
station in preparation for an expected visit by a
company official, he was_ told by his supervisor to
leave the cleaning work- and attend to customers
because the store was busy. Albright ignored the
request. When this was reported to Bolton, he went
to Albright and told him to take a customer. Albright
refused. According to Couch, Albright replied in a
sarcastic tone, "Mr. Bolton, I have to clean my
section." Bolton and 'I amargo decided that night to
terminate Albright. The following day Bolton told
Albright he was terminated for. insubordination,
disrespect to supervisors, and disobedience.
Although finding the two incidents of dereliction of
duty, and stating that the incident in which Albright
refused to drop his cleaning duties to attend to a
customer might have warranted his discharge, the
Administrative Law Judge concluded that these were
pretexts and the real reason for the discharge was
Albright's protected activity. As support for the
pretext theory,- the Administrative Law Judge re-
ferred to the alleged failure to warn Albright that he
risked discharge or some lesser form of discipline,
and the alleged, precipitous discharge. We find
neither of 'these alleged grounds justify the pretext
finding. As to the first, Albright himself testified that
at the July 31 meeting, the day before his discharge,
he was given a written reprimand and told that he
would be discharged for a third reprimand. The
refusal to tend to a customer occurred, on the evening
following this reprimand and warning. As to the
second incident relied on by the Administrative Law
Judge, we perceive no justification for characterizing
3 Laidlaw Corp, 171 NLRB 1366 ( 1968), enfd. 414 F.2d 99 (C.A. 7, 1969), Pillows of Califorma, supra.
cert. denied 397 U.S. 920 ( 1970). The quoted words are from the testimony of Albright. There is no
4 N.L.R.B. V. Fleetwood Trader Company, 389 U.S. 375 (1967); Pepe's contention that the reprimand was unjustified or unlawful.
Inwood Packing Co., Inc., 206 NLRB 642 (1973); Pillows of Californu; 207
NLRB 369 (1973). '
KENNEDY & COHEN OF GEORGIA, INC.
the discharge as precipitous in view of the two
serious incidents of disobedience and disrespect to
supervisors which occurred on the same day. There is
no evidence that Respondent tolerated similar
conduct on the part of other employees or that it
would have been less prompt in taking similar
disciplinary action against any other employee who
engaged in similar obstreperous and insubordinate
conduct.
The fact that Albright ' had engaged in protected
activity or that Respondent welcomed the oppor-
tunity to terminate him did not insulate him from
ordinary disciplinary measures for misconduct. As
the Board said, in Mate Holt Company, 161 NLRB
1606 at 1612 (1966):
The mere fact that an employer may desire to
terminate an employee because he engaged in
unwelcome concerted activities does not, of itself,
establish the unlawfulness of a subsequent dis-
charge. If an employee provides an employer with
a sufficient cause for his dismissal by engaging in
conduct for which he would have been terminated
in any event, and the employer discharges him-for
that reason, the circumstance that the employer
welcomed the opportunity to discharge does not
make it discriminatory and therefore unlawful.
We fmd that Respondent established cause for the
discharge of Albright; and the General Counsel has
not established by a preponderance of the evidence
that this cause was a ;pretext and that except for his
protected activity Albright would not have been
terminated. We therefore do not adopt the Adminis-
trative Law Judge's findings that Respondent dis-
charged Albright in violation of Section 8(a)(1) of the
Act.
As we have reversed the Administrative Law
Judge's finding of violations of the Act, we shall
dismiss the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 2 and 3:
"2. Respondent has not engaged in unfair labor
practices within the meaning of Section 8 (a)(l) of the
Art."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
1177
JAMES V. CONSTANTINE, Administrative Law Judge:
These are four unfair labor practice cases litigated
pursuant to Section 10(b) of the National Labor Relations
Act, herein called the Act, 29 U.S.C. 160(b). They were
consolidated for the purpose of trial. The charge in Case
10-CA-10769 was filed on June 20, that in Case 10-CA-
10807 on July 15, that in Case 10-CA-10826 on July 22,
and that in Case 10-CA--10850 on August 2, and amended
on August 20, 1974. In each case the Respondent is
Kennedy & Cohen of Georgia, Inc. On August 19, 1974,
the General Counsel of the National Labor Relations
Board, herein called the Board, through the Regional
Director for Region 10 (Atlanta, Georgia), consolidated
the above cases and issued a consolidated complaint based
on all the charges. On August 20 said complaint was
amended. In essence said complaint, as amended , alleges
that Respondent has violated Section 8(a)(1), and that such
conduct affects commerce within the meaning of Section
2(6) and (7), of the Act. Respondent has answered
admitting some facts but denying that it committed any
unfair labor practices.
Pursuant to due notice, this consolidated case came on to
be heard, and was tried before me, at Atlanta, Georgia, on
September 19 and 20, 1974. All parties were given full
opportunity to adduce evidence, examine and cross-exam-
me witnesses, file briefs, and offer oral argument. Briefs
have been received from the General Counsel and the
Respondent.
This consolidated case presents the following issues:
1. Whether employees Keenum, Andrews, and Paden
participated in an economic strike against Respondent,
and whether they made an unconditional application to
return to work.
2. Whether Respondent failed and refused to reinstate
the aforesaid employees, and, if so, whether it was because
they engaged in concerted activities protected by the Act.
3. Whether Respondent discharged employee Albright
and, if so, whether it was because he engaged in concerted
activities protected by the Act.
Upon the entire record in this case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent , a Georgia corporation , is engaged at
College Park and Doraville , Georgia, in selling at retail
household goods and appliances . During 1973, a represent-
ative period , it had a gross volume of business exceeding
$500,000, and purchased and received goods valued in
excess of $50,000 directly from suppliers located outside
the State of Georgia. I fmd that Respondent is an employer
within the meaning of Section 2(2), and is engaged in
commerce within the meaning of Section 2(6) and (7), of
the Act, and that it will effectuate the purposes of the Act
to assert jurisdiction over Respondent in this proceeding.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
testified that sales persons Stewart, Phillips, and Drake
were still working for Respondent after the strike notwith-
standing they had joined the strike and she had not seen
them on the morning of June 17 applying at Respondent's
store to be taken back to work.
An adequate summary of the testimony of Ronald
Phillips is set forth at this point. At the time of the trial he
had been employed by Respondent for 15 months at its
Doraville retail outlet. He picketed Respondent during the
strike which ended on June 16, 1974.
On -June 17, he returned to work as usual on the
afternoon shift under Supervisor Peter Bohmar; but no one
from Respondent called him back, and he asked no one if
he could come back to work. Rather, he merely returned to
his job "and everybody welcomed me back to work and
told me they were glad to see me back." Among those
welcoming him back were Supervisor Bohmar, Chuck
Couch, Ronald's former supervisor, and Sales Manager Bo
Bolton. But Bolton said nothing to Phillips about any one
on strike- being replaced. Other strikers who returned to
work on June " 17, according to Phillips, were Timothy
Stewart and Jimmy Drake, whom he saw at work on that
day.
Phillips further testified that he was competent as a
salesman for Respondent and, if it was sales work, he was
able to do it. Salesmen were not limited as to what items
they could sell. In fact he "could sell anything" such as
washers, dryers, ranges, refrigerators, consoles, portable
TV's, and audio equipment. Customers are first asked by a
female receptionist what they wish to see and then she
assigns them to the salesman at the head of the "waiting
line." But customers were not permitted 'to "wander
around in a department." The foregoing comments of
Phillips, he said, applied to Don Paden, Faye Keenum, and
Robert Andrews, so that they not only were capable of
selling "anything" in the store but they were not prohibited
by Respondent from selling anything.
When Phillips returned to work on June 17, 1974, he
asked Supervisor Chuck Couch "where were some of the
people, that was out on strike." Couch answered that Faye
Keenum "had been replaced." Finally, Phillips testified
that on June 17 he saw only Stewart and Drake "working
that afternoon." And on cross he conceded that since he
returned on June 17 management has not made any threats
or taken reprisals against him.
Another witness for the General Counsel was Jimmy
Drake, one of Respondent's salesmen. His testimony may
be adequately summarized as follows. He works in the
Doraville store where his supervisor is Peter Bohmar. In
June 1974, he participated in the strike and also picketed,
returning to work on June 17. However, no one from
Respondent told him to return and he said nothing to
anybody at Respondent that he was returning. No one told
him "about anybody else being replaced." When he came
in on June 17, Bo Bolton welcomed him back. After Drake
returned to work no official of Respondent informed him
that Andrews and Keenum had been replaced.
Continuing, Drake testified that after June 17 he
attended two meetings at which employee Albright "was
engaged in conversation" with a supervisor or official of
the company concerning a proposed change in the method
1. William Emory Grizzad, Jr., gave substantially the
following evidence on behalf of the General Counsel. He
was hired by Respondent about May 10, 1971, and was
discharged about May 31, 1974. About the end of June
1974, he was rehired at a time when some employees were
on an economic strike and picketing Respondent. Said
picketing continued until Sunday, June 16, at both stores.
He observed employees Keenum and Andrews on that
picket line. A week or two after said strike ended Grizzard
attended a sales meeting between employees and manage-
ment concerning commissions on sales. Employee Albright
spoke on behalf of employees.
At another sales meeting, Grizzard spoke to Bohmar,
who is conceded to be a supervisor within the meaning of
Section 2(11) of the Act, concerning the return to work of
striker Keenum. Bohmar replied in the negative. When
someone at the meeting asked Bohmar to explain why
some strikers such as Tim Stewart, were allowed to return
to work while other strikers were not, he replied that
Respondent "pulled names from a hat."
Another witness for the General Counsel was Faye
Keenum. Her testimony may be condensed as follows. She
was hired by Respondent to work in its Doraville store in
November 1972. Until May 27, 1974, her immediate
supervisor was Don Sharp, who left Respondent's employ
on that day. Thereafter her immediate supervisor was Sales
Manager Bolton. From June 5 to 16, 1974, she and other
sales employees, including Andrews and Paden, struck and
picketed Respondent.
At 9:30 a.m. on Monday, June 17, she offered Respon-
dent to return to work by speaking to Mr. Tamargo, its
general manager . He informed her that she would not be
taken back because she had been replaced. Continuing he
told her that "you waited too long to come back to work"
and that he had made a decision on the previous Saturday,
which was not "finalized [until] Sunday night," June 16.
He informed her that such "decision was made based on
the advice of... company attorneys." When she inquired
if she was the only striker who was replaced, he replied that
others, whom he refused to identify, also were replaced.
Then she asked him "how the decision was reached." He
responded, "At random" and, although he was sorry, "now
it was out of his hands and in the hands of the law"
whether she was entitled to her job. When she asked him
what he meant by this he merely said "the company
attorneys." Although she requested him to give such
answer in writing, he assured her that she could obtain it in
writing "from the attorneys." At this point she asked him
what she should "put down on the application . . . in the
event I should seek other employment." But he merely
replied, "Just ask them to contact me or Bo Bolton and
... I will explain to them about the picketing." As she left
she told him her next step "would be to go to the Labor
Board."
It was stipulated that Respondent has not recalled
Keenum, Andrews, and Paden. However, Keenum testified
that Respondent hired a Mr. Sharp, her former supervisor,
in July 1974, as an employee, i.e., as a salesman . She also
KENNEDY & COHEN OF GEORGIA, INC. 1179
of pay of a salesman . Albright argued that such change was
not fair and that if management did nothing Albright
"thought it would be important if we got a union going." A
"bunch of guys said that they agreed with him and they
wanted a union there," as Drake put it.
In fact Drake testified that supervisor "Bolton didn't like
the way [Albright] was carrying on there as far as the
Union is concerned," according to Drake, and Bolton told
Albright, in the presence of Drake, not to engage in union
activity "on company property or on the premises or
something." But Bolton said nothing about doing this on
company time . Continuing, Drake testified that supervisor
Bohrnar was always criticizing Albright "as far as trying to
get the people together to get a union. He [Bohmar ] did not
like it at all [and told (Albright) if (Albright) ] wanted his
job he should go ahead and work without trying to create
problems." But Albright was never criticized for his work.
Donald Paden, testified substantially as follows. While
employed at the Company's College Park store, he went on
strike and picketed in June 1974. On or about June 19,
after the strike had ended, he talked to Ken Watts, his
intermediate supervisor, who it was stipulated is a
supervisor under the Act, about returning to work. But
Watts told him "to see somebody else," i.e., Manager
Tamargo, as Watts "couldn't tell [Paden] anything."
Tamargo is manager of both the Doraville and College
Park stores.
So Paden contacted Tamargo on June 19 by telephone.
In this conversation Tamargo insisted that "everyone who
had not returned back to work on June the 17th . . . were
considered replaced." But: Tamargo did not disclose who
replaced Paden. Nor did Tamargo mention whether Paden
would be recalled if an opening occurred. And although
Paden does not know whether Respondent has hired any
employees for its College Park establishment, he asserted
that it placed an ad in the newspaper on June 9, 1974, "for
replacement salesmen" during the strike. (See G.C. Exh. 2.)
Nathen Williams, another witness for the General
Counsel, gave testimony the essential import of which is set
forth at this point. As an employee of Respondent's
Doraville store he struck and picketed in June 1974. On
June 12, during the strike, he returned to work. He did so
because he had received a telegram advising him that
strikers had to return to work by June 12 or be replaced.
There were no new employees when he went back on June
12 but later he observed "some new salesmen in training
... about four."
During the strike Woods, the floor manager under whom
Williams worked, told Williams that several salesmen
would be transferred from College Park to work at
Doraville. About a week after the strike ended at least one
employee at College Park, Louis Fewhaufer, had left its
employ. Also, Woods asked Williams on June 12 whether
Andrews and the other strikers were coming back to work.
Williams replied that he did not know.
However, Williams saw that Andrews had come back to
work on June 19 and Andrews served a customer. When
that customer left Andrews was called to the office. When
Andrews came out of the office he told Williams that he,
Andrews, "had been terminated, or replaced."
Henry Dorsey, Jr., testified for the General Counsel. His
testimony may be summarized as follows. He worked in
Respondent's College Park store from April to July 28,
1974. Although he participated for 2 days only in the strike
heretofore described he returned to work on the last
Saturday in June 1974, after the strike had ended, because
illness prevented his coming back sooner. But he was not
"aware" of any new employees at the College Park store
when he resumed work after the strike. He returned to
work after telephoning his supervisor, Watts, if he, Dorsey,
still had a job and Watts answered affirmatively. On July
28, 1974, he and four other employees were transferred to
the Doraville store, the reason therefore given by his
superiors being that "they needed some more salesmen" at
Doraville.
One of those seeking reinstatement is Robert L.
Andrews, III. An adequate abridgment of his testimony is
set forth here. He was hired in July 1973, to work under
supervisor Link Woods in Respondent's Doraville store. In
June 1974, he participated in both the strike and picketing
heretofore mentioned. He was not scheduled to work on
June 17 and 18. On June 19, following the termination of
the strike, he reported for work and put on his working
coat. Supervisor Woods welcomed him back. During the
day he served two customers, a husband and wife, when
Woods directed him to do so, and sold them a washer and
dryer, after which he attended a team meeting at which,
among other things, the salesmen in his group, or team,
welcomed him back. Although Andrews, while wearing his
working coat or uniform, saw Manager Tamargo twice on
that June 19, the latter said nothing to him.
Later in the afternoon on said June 19, while performing
his "regular duties," Andrews was summoned to the office
where he encountered Supervisors Woods and Couch. First
Woods said he had some bad news for Andrews. Then
Couch told Andrews that Andrews had been replaced by
"some more salesmen in training." When Couch inquired
of Andrews if the latter had received a telegram which
Respondent had sent, Andrews replied that he had not. As
Andrews left Woods expressed regret that Andrews had
been replaced.
Since Andrews had not received a telegram from
Respondent, he checked with Western Union on June 21
about it. The latter informed him that they had one for him
at its office. Although Andrews had moved in January
1974, he gave his new address "to the team and the store
about three or four times. They had my address."
Andrews further testified that when he went back to
work on June 19 he saw "four guys . . . in training" whom
he did not recognize as employees before the strike.
Finally, Andrews testified that, although he was told he
had been replaced, he was not at that same time informed
that he would be recalled if an opening becaue available.
Another one of those for whom reinstatement is sought is
Wayne Albright. A conspectus of his testimony follows. He
started working at Respondent's Doraville store about
December 3, 1973.. In May or June 1974, he continued as a
salesman but also became assistant manager to Floor
Manager Beau Bolton. The latter supervised sales people.
Shortly after Jtine 17 his job as assistant manager was
abolished, so that Albright became only, another salesman;
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he interviewed applicants about once a month or less
often. Albright did not go on strike or engage in picketing
which took place in June 1974.
According to Albright, Respondent hired four new
people during the strike. And during the strike Respondent
advertised for new hires. (See G.C. Exh. 2.) After the strike
he learned from management, i.e., Mr. Bolton, that some
strikers would be replaced. Albright also contended that a
sales person at Respondent's "is capable of selling
everything except audio equipment. You have to be
especially trained to sell audio equipment"; but "over half'
of Respondent's sales people had been so trained. He
actually saw Keenum and Andrews sell such audio
equipment.
On July 25, 1974, Manager Tamargo held a meeting with
sales employees at which he announced Respondent was
going to change its commission system the next day. After
that meeting Albright spoke to Tamargo opposing said
changes after he ascertained "the feelings" of the sales
persons. Tamargo held another such meeting on June 28.
At this meeting, at which 20 to 25 persons were present,
Albright read a statement in which he stated that he had
discussed some of Respondent's policies with some of the
other salesmen "only to find out that they are unhappy
with some of them," particularly "the new un-equitable
commission structure ." Continuing reading from said
written statement Albright stated , "The only way we can
have say-so about the policy of constantly changing
policies is to organize together to form a legal union of the
salesmen." (See G.C. Exh. 3.)
After said meeting of July 28 Supervisor Bohmar asked
Albright why the latter had not informed Bohmar that
Albright "was going to do that ," and Bohmar also
expressed that he was "shocked that [Albright] felt that
way." Albright had discussed organizing a union with
employees prior to and during the strike. Then later that
day another meeting was held at which salesmen were
present and in which Tamargo told the salesmen that
Respondent "would definitely fight" a union. Albright told
Tamargo that the former "had full intentions of proceeding
with a legalized union."
The next day, July 29, another meeting was held by
Supervisor Bohmar at which he explained that a new sales
commission system would be tried out for a month.
Albright requested Bolton later that day that this be
reduced to writing for the sales people. Although Bolton
agreed at first, he later on July 30 stated to Albright that it
would not be embodied in any writing. Thereupon
Albright retorted that he "would proceed with the legalized
union."
Then on July 31 Albright was called to the office, where
he met Bolton and Couch. They gave him a written
reprimand "for insubordination and . . . solicitation of a
union on company grounds." (But Albright testified he
never did so solicit.) At such meeting he was also informed
that he "would be severed from the company ... on the
third reprimand ." But on the stand he insisted there had
not been such a rule or even that there was such a thing as
a written reprimand prior to this. Actually, he had in the
past "received compliments from a considerable amount of
the management there," and was told he was "supposedly
next in line for a managerial job."
Albright was off on August 1. That day a fellow
employee telephoned him of an important meeting to be
held the next day. So he went to the store on August 2, but
ascertained that no such meeting would be held. Since
there turned out to be no meeting Albright visited the
break room. Soon Bolton came in and informed Albright
that a meeting would "probably be in a short while," asked
the latter why he was not wearing a tie "because Mr.
Welman was in town," and directed Albright to place a
kick plate on the front end of a refrigerator in the
showroom. Yet it was Albright's day off.
In a few moments Bolton requested Albright to accom-
pany him upstairs. So the two went up to Tamargo's office,
where they found Tamargo waiting for them. Bolton then
gave Albright "notice of severance" of the latter. When
Albright asked for the reason for taking such action,
Bolton replied because of "insubordination, disrespect for
supervisor, disobedience towards a supervisor," and a
fourth reason which Albright was unable to recollect.
(However , Albright testified denying that he had commit-
ted any of the acts attributed to him by Bolton, and that he
had not received the second reprimand.) Although Al-
bright requested Bolton for a written "copy of the charges"
Bolton replied that since he was under no obligation to do
so he refused to give one to Albright. On his way out
Albright stopped to chat with employee Stewart but the
former was immediately "ushered . . . out of the store" by
two policemen whom he had seen in the reception area.
Continuing, Albright testified that prior to this no
employee had ever received a written reprimand, but three
others received such written reprimands at the same time
as he. And he never learned what insubordination he
engaged in, although he asked for, but was not given, an
explanation.
On cross Albright admitted to attending meetings for
managers , but he also insisted that he no longer attended
them, although they were regularly held, after he was
deprived of his duties as assistant manager shortly after the
1974 strike. Also, he only interviewed a few applicants for
work, but notwithstanding he recommended four or five of
them not one was hired. And he was only once asked for
his opinion of an employee, one Don Clark, but only after
Clark "had already been terminated." But he never has
been "consulted" on or recommended anyone to be ,
assigned to another floor team, or another shift, or the
other store of Respondent. However he was sometimes
used to "take over" on sales. On cross he averred that
Bolton occasionally praised him "ui front of the other
salesmen" for doing a good job. Finally, on redirect,
Albright stated that if the assistant floor managers were
supervisors it would mean that each group of eight
employees would have two supervisors , i.e., a floor
manager and his assistant floor manager.
An employee of Respondent since about August 17,
1971, Charles Terry testified for the General Counsel. The
essential import of his testimony follows. His supervisor
since about July 1974 is Peter Bohmar. Prior to that his
supervisor was Chuck Couch. He joined in the strike of
June 1974, but, although it ended around June 16, he
KENNEDY & COHEN OF GEORGIA, INC. 1181
returned to work about July 1. His "vacation went into
effect" by consent of the Company on June 17, the day
after his baby was born. Couch, his supervisor, granted him
said vacation when Terry asked for it on June 17. When he
returned to work about July 1 Terry noticed"approximate-
ly four" new employees in the store, but did not see
employees Robert Andrews and Faye Keenum there.
Terry attended two meetings in July 1974, which
management had with the salesmen about the proposed
changes in their commissions. He heard Albright speak
"about a union" at one of these meetings . About 2 weeks
after that Supervisors Bolton and Tamargo each told Terry
that Albright was terminated for insubordination and
disrespect for authority. Terry insists he never observed
Albright being insubordinate or disrespectful, that Albright
was a "very likable person," and that Albright was
"respected highly by his supervisor." Finally, Terry on
direct claimed that he had never received a reprimand
prior to the strike, and that he was never notified that three
reprimands would cause an employee to be fired.
On cross Terry testified that he asked both Bolton and
Tamargo whether Albright had been discharged for union
activities and that each replied in the negative. Each also
told him that Albright was fired for insubordination and
"disobeying of authority." Terry also said on cross no
reprisals were taken against him by management although
he picketed during the strike. Finally on cross, he said that
although he once held thg title of assistant manager he
never interviewed job applicants.
On redirect Terry said he was reprimanded after a
management meeting in which he concurred in Albright's
speaking for a union, but that Terry had never been
reprimanded before this.
B. Respondent's Evidence
Respondent's first witness was Manny Tamargo, its
general manager over both stores in Atlanta since May 14,
1974. His testimony may be summarized as follows.
Respondent is "the major appliance, audio, T.V., retail."
When a customer enters the store he is greeted by an
"escort salesman" who shows him around other depart-
ments and then takes him into the showroom. It has a total
of '10 salesmen in Atlanta, 32 in the north store and 38 in
the south store.
On June 6, 1974, 11 or 12 employees, all of them sales
personnel, went on strike. On June 8 he sent a telegram to
each striker requesting they come back to work "without
delay," and, among other things, stating that "unless you
return to work by Wednesday, June 12, 1974 we will have
to hire replacements." (See Resp. Exh. la-k.) Nathen
Williams was the only one who returned on June 12 in
response to that telegram. Following June 12 he asked
Respondent's national headquarters in Miami, Florida, to
place ads in newspapers for help wanted, and said
headquarters did so.
Later, i.e., on June 13 and 14, four replacements were
hired by Tamargo, i.e., Bruce Davis, David Massey, Bill
Conover, and Reginald Ardrey. He told each of these that
,.we were hiring replacements for people out on strike."
According to Tamargo, Ardrey replaced Robert Andrews,
Conover replaced Faye Keenum, Massey replaced Ray
Stanalle, and Davis replaced Arthur Stanalle. Each of said
replacements was first interviewed by a sales manager or a
floor manager and then approved by Tamargo. (See Resp.
Exh. 2, 3, and 4.) Each had a "reporting date" of June 17.
Ardrey quit the week after June 17, having worked only 1
week. For the "exit interview" of Robert Andrews see
Respondent's Exhibit 5.
About 10 a.m. on the morning of June 17, 1974, striker
Faye Keenum was told by Tamargo that she had been
replaced. He denies that he had told her that the decision
to replace her was finalized on June 16. He also saw
Andrews in the store on June 19. Since Andrews had been
replaced Tamargo called one of the floor managers and
explained to such manager that Andrews had been
replaced. Tamargo also explained that, although an
employee in Atlanta may be terminated by him, such
employee "remains on our payroll until he is officially
terminated [by] . . . the president of our company."
Tamargo and Beau Bolton made the decision to
terminate Wayne Albright, and Tamargo then took up this
matter with his superior, Vice President Williman, who
happened to be in Atlanta for a meeting. In Tamargo's
opinion Albright "was a very good salesman ... up until
the week prior to Albright's termination." In that final
week, however, Albright "wasn't fired up . . . his attitude
had changed . . . I witnessed a manager [Bolton] going to
him and he refusing to take an order on the floor."
Tamargo also testified that "corrective interviews" are
given to employees, i.e., "we counsel them as to how to
change, what they can do to change it . . . . This is done
whenever somebody breaks a policy." An example of such
is a corrective interview given to David Massey. (See Resp.
Exh. 3.) However, such a form as Respondent's Exhibit 3
was not seen by Tamargo until May or June 1974. The
present complement of salesmen at Atlanta is 56, accord-
ing to Tamargo. Finally, on direct Tamargo testified that
about July 25, 1974, Respondent announced a revision of
the commission schedule for its Atlanta salesmen.
On cross Tamargo said that Albright_refused to take an
order from Bolton because Bolton so informed him, and
Tamargo did not hear Albright so refuse. Some other
salesman, according to Tamargo, took that order. At the
time of such refusal Albright was "cleaning his section" as
part of his regular duties, and other salesmen were
available to-take said order.
Further, on cross, Tamargo testified that, notwithstand-
ing he noticed a change in Albright, an exceptional
employee and a "real go-getter," after the revision of
commissions on July 25, Tamaargo did not discuss such
with Albright and told no supervisor to do so as Tamargo
"would assume the sales manager would have done it."
Supervisor Bolton told Tamargo that Bolton,, before
Albright was terminated, held a corrective interview" with
Albright on "subordination . . . . And there was some-
thing else."
Beau Bolton, sales manager of Respondent's Doraville
store, gave the following testimony as its witness. He
interviewed employees Conover and Massey on their initial
interview, and in such conversation told them they were
replacing people who were on strike.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bolton holds a "normal Sunday morning meeting" with
his salesmen every Sunday. He allows comments or
questions at the end of such meetings. At the one held on
Sunday, July 28, 1974, between 23 and 25 persons
attended. When the meeting ended Albright read from a
piece of paper. This paper is General Counsel's Exhibit 3.
Then Albright took a vote to ascertain "the people who
were in agreement with him." Pouncey, another salesman,
also made some remarks after Albright.
Prior to July 28 Albright was an "excellent" employee,
according to Bolton, and "was the best salesman I had
working under my [Bolton's] employment." In addition,
Albright "was highly respected by everyone" of the sales
personnel. But after July 28 Bolton noticed that Albright
"was a completely different individual .... [Albright
was] arrogant." Such arrogance was displayed by Al-
bright's addressing Bolton "in a sarcastic manner" as Mr.
Bolton, whereas all the other salesmen called him Beau.
And Albright also called him Beau prior to July 28. I doubt
if sarcasm justifies discharge under the circumstances. Cf.
Browning Industries, 213 NLRB No. 51 (1974).
On a July 1974 Sunday evening when a meeting was held
Bolton "mentioned to Albright that we could not have
solicitation on the premises, company premises, any time."
On this occasion Bolton observed him "talking to other
employees, other sales persons." On a Monday and
Tuesday following this Bolton again so admonished
Albright, this time in the showroom where Drake was
"soliciting." Bolton mentioned that Drake was violating
the rule against "soliciting on company premises during
company time." Albright "admitted [Bolton] was absolute-
ly right" and "would have Mr. Drake ... stop at that
time."
On July 31, 1974, "an incident was reported to [Bolton]
involving Albright and [Sales Supervisor] Chuck Couch."
Later, at or about 7 or 8 that evening Bolton requested
Albright "to take care of a customer" at a time when "we
had a lot of customers waiting" but the latter refused in
order "to get my section clean." Just prior to this Bolton
had instructed a supervisor to tell Albright to take a
customer, but Albright refused. On the first occasion
Albright was not doing anything. But when Bolton spoke
to Albright the latter "was cleaning, had his coat off and
cleaning the section with rags." " According to Bolton;
Albright was cleaning "in the proper team area for his
team" and "each team is responsible for keeping its section
clean and tagged, price tagged." But such cleaning "would
be one of the last priorities . . . . The first priority is taking
care of customers." Further, Albright was not wearing his
yellow blazer as required by the Company, but, instead,
had his sleeves rolled up in order to perform said cleaning
at "the busiest time when commission salesmen would be
making his best earnings during that time."
As a result of Albright's above refusal to serve a
customer Bolton was forced to direct Floor Managers
Bohmar and Couch to do so as all other salesmen were
occupied with customers. After the store closed that night
Bolton discussed "Mr. Albright's arrogance and reluctance
to take the customer" with General Manager Tamargo.
(Upon being led by counsel Bolton defined "reluctance" as
"disobedience and insubordination.") On July 31 Tamargo
and Bolton decided to terminate Albright. Then Bolton
had an "exit interview" with Albright which Bolton wrote
out. (See Resp. Exh. 6.) But said exhibit discloses that,
although Bolton recommended "involuntary termination,"
Tamargo recommended "resignation" and their superior,
Landau, "approved above action." (See Resp. Exh. 6.)
The next day, August 1, Bolton informed Albright of the
decision to terminate the latter. This was announced in
Tamargo's office to which Bolton escorted Albright. On
this occasion Bolton showed Albright a copy of said
Respondent's Exhibit 6, and also informed Albright that
the latter was being discharged for the reasons written on
said exhibit. Finally, on direct Bolton maintained that
Albright was fired for "disobedience, insubordination,
disrespect for the supervisors," that his "attitude was
disrupting the rest of the sales department," and that "the
refusal to take a customer" is "what brought the thing to a
head."
On cross Bolton admitted he did not know what Drake
was writing down on a pad but "assumed" that Drake was
"soliciting" Dave Massey. Bolton also on cross asserted
that he did not consider Albright a supervisor when Bolton
made out Respondent's Exhibit 6. On cross Bolton also
conceded that a salesman would be "in the hole" in
earning commissions against "their draw" if they refused to
take a customer when such customer's purchase resulted in
a commission; in fact by such refusal "he [would] be
cutting his own nose off to spite his face." Further, on
cross, Bolton related an incident involving Albright
reported to him by Tamargo. On this occasion Albright
"had caused quite a scene, shouting and yelling at" Floor
Managers Bohmar and Couch "during customer hours
when there were customers in the store."
Also on cross Bolton conceded that he never personally
heard Albright solicit any employee to join or aid in
forming a union or labor organization. Yet he did on two
different occasions tell Albright that Bolton "couldn't have
[Albright] soliciting on company premises and time."
Although Bolton was prompted "to mention this" to
Albright as "a company policy throughout our chain,"
Bolton did not call it to the attention of any other
employee.
Finally, on cross, Bolton described Albright's demeanor
as sarcastic and rude, and asserted that Albright's "overall
performance, quality of his performance," as well as his
sales, were "down, as compared to just before prior" to
July 28, 1974; his "enthusiasm with customers" was
lacking; and Bolton reported to Tamargo, Albright's
speech as described above.
Another witness for Respondent, Chuck Couch, gave
testimony substantially as follows. He is a, floor manager
for Respondent. On July 31, 1974, Bohmar, another floor
manager, called him to the sales office, where Albright and
Jimmy Drake were also present. In said office Albright
asked Couch if the latter knew of "an agreement that the
company had made if the salesmen were losing money that
they would be reimbursed." Couch expressed lack of
knowledge of any such agreement. Then Albright stated
that Bohmar had promised the former "that they would be
reimbursed and that he [Albright] wanted it in writing."
Again Couch stated he was ignorant of it but that "if
KENNEDY & COHEN OF GEORGIA, INC. 1183
Bolton had said that then I [Couch] am sure that is the way
it would be."
At this point Albright "got very loud and said that Mr.
Bolton's words was not good enough for him [and] wanted
everything in writing." When Albright left Couch reported
this incident to Tamargo. Couch also described Albright as
"a leader on the sales floor" but "a week prior to his
discharge" as one whose "attitude went down."
Couch saw Robert Andrews, a striker, on the sales floor
at the store at or about 2:30 p.m. on the Wednesday
following the end of the strike. Couch was "amazed" at this
because Couch "knew he [Andrews ] should not have been
there." As a result Couch asked Personnel Supervisor Link
Woods if Woods had informed Andrews that Andrews
"had been replaced." Receiving a negative reply, Couch
told Woods to get hold of Andrews and accompany
Andrews to the sales office. When they arrived at the office
Couch expressed sorrow to Andrews that the latter's "job
was no longer there, he [Andrews] had been replaced."
Manny Tamargo, who had been previously called as a
witness by the General Counsel, also testified for Respon-
dent. A summary of his testimony in the latter capacity
follows. Tamargo claims that he "communicated" the facts
"with relevance to the replacements, particularly with
Andrews . . . the fact that Andrews had been replaced
specifically to every floor manager," including Link
Woods. However, he found out only in "the last few days"
that "Link Woods did not carry out the instructions" and
that "it was Couch that actually gave Andrews the word."
Tamargo also testified on cross that although Respon-
dent's national headquarters in Miami, Florida, placed a
help-wanted ad in the Atlanta paper (see G.C. Exh. 2)'for
help in Atlanta, he considered it "unreasonable" that they
did so "without even consulting with their manager
[Tamargo] of the stores in Atlanta" and without even
notifying him of said ad. Yet this ad was inserted in the
paper for Sunday, June 9, 1974, during the time the strike
was continuing. And this notwithstanding that he "conf-
erred with Miami about hiring replacements [and] got their
approval to hire replacements."
C. General Counsel's Rebuttal
As recited above Wayne Albright testified that he was
engaged in cleaning up his area. On rebuttal he testified as
follows. The day before Williman was expected to visit the
Atlanta stores of Respondent Bolton instructed Albright
"either two or three times that the store must be cleaned
up, that it had to be `spic and span' for Williman. So
Albright complied with this order of Bolton. While
Albright was so engaged in cleaning, with his "coat off
[and] sleeves rolled up," Bolton told him "there were
customers" waiting. Although Albright asked if Bolton
"would rather [have the team] clean up or go ahead" and
serve a customer, Bolton "remarked" that "there are
customers waiting" and walked away.
On the foregoing occasion four or five other salesmen
who were "the rest of [Albright's] team" also were cleaning
up around that area, but Bolton did not ask any of them to
serve any customer. Albright also asserted that during the
week he was discharged his sales were "near average, if not
possibly a little bit above average" judging from a
"commission sheet" which he received from Respondent.
Further, Albright insisted that he never refused to take a
customer when asked to do so by a supervisor, he has never
been insubordinate or disrespectful to a supervisor, he has
never disobeyed a supervisor, he was never asked to resign
as recommended by Respondent's Exhibit 6, he was never
informed "as to what events" the "remarks" in said
Respondent's Exhibit 6 referred to, he was never accused
by a supervisor of being arrogant, and he was never told
that he was standoffish or was upsetting the entire sales
force.
Finally, Albright claims that on July 31 he became
"upset" in the presence of Drake and Bohmar when he
learned that the promise to incorporate the "commission
change in writing" was withdrawn. Because he was upset,
Albright testified, "I possibly did raise my voice [but] there
were not customers" in the vicinity. However, he did not
curse or "make any kind of gestures towards these people."
D. Concluding Findings and Discussion
1. As to the termination of Faye Keenum
It has been stipulated that some of Respondent's
employees at its Atlanta stores engaged in an economic
strike and picketed said stores from June 5 to 16, 1974.
Keenum was one of those on strike and also picketed. On
June 17 she made an unconditional application to return to
work but Tamargo, the general manager, declined to take
her back because he claimed she had been replaced. I fmd
this was an unconditional offer to return to work. Since it
was an economic strike Respondent lawfully could hire a
replacement for Keenum. However, since there were 11
strikers and but 4 alleged replacements had been hired I
find that at least seven sales jobs for which she was
qualified were available on June 17. And I further find
that, "if and when a job for which the striker is qualified
becomes available, he is entitled to an offer of reinstate-
ment." N.L.R.B. v. Fleetwood Trailer Company, Inc., 389
U.S. 375, 381 (1967); Servico Protective Covers, Inc., 199
NLRB 977,980 (1972).
In addition, I find, crediting Keenum, that Sharp, a
supervisor, resigned as of May 27, 1974, but was hired as a
salesman, i.e., an employee, in July 1974. It is my opinion,
and I find, that Keenum on and after June 17, 1974, had to
be hired before an outsider like Sharp could be hired.
Hence I further find that the job given to Sharp should
have been offered to the economic strikers, including
Keenum, who offered to return to work when the strike
ended.
Also, I find, again crediting Keenum, that strikers
Stewart, Phillips, and Drake were taken back by Respon-
dent after the strike although she did not see them at the
store in the morning of June 17 when she asked to return to
work. They probably were taken back after June 17. This is
some indication that returning strikers like Keenum were
not taken back at a time when vacancies still were
available. And I credit Grizzard that Respondent told him
it "pulled names from a hat" to determine which strikers
could return to work. While this may not be objectionable,
I find that such names could not be so taken from a hat
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Keenum's application to return on June 17, and that
Keenum should have been taken back before the hat
incident occurred.
In this connection I fmd that employee Ronald Phillips
returned to-work on the afternoon of June 17 , notwith-
standing that no one from Respondent called him to do so.
Since no one called him I find that Keenum , who returned
in the morning of June 17 , had a better right to being taken
back . I also find that striker Drake returned after June 17
but no- one called him back . It would seem that Keenum
should - have been taken back as she probably returned
before Drake.
Finally, I rule that economic strikers continue to be
employees under the Act after they have been replaced and
must be taken back as vacancies occur. Little Rock
Airmotives Inc. v. N.L.R.B., 455 F.2d 163 (C.A. 8, 1972);
New Orleans Roosevelt Corp., 132 NLRB 248 , 250 (1961).
See N. L.R.B. v. Shreveport Engraving Co., 503 F.2d 821
(C.A. 5, 1974). And I find that Respondent has failed to
prove as an affirmative defense , upon credited evidence,
that jobs were unavailable when Keenum applied to return.
2. As to the termination of Donald Paden
It is conceded, and I find, that Paden participated in the
economic strike which terminated on June 16, 1974.
Respondent manifestly could lawfully replace him at any
time before he offered to return to work; but even if he had
been lawfully replaced he had to be taken back whenever a
job became, available which he was qualified to perform.
See N.L.RB. v. Mackay Radio & Telegraph Co., 304 U.S.
333, 345-346. It is true that Respondent claims it took on
four new employees, one of which no longer worked for it
after 1 week's employment . But still there were jobs to
which Paden could have been assigned.
On June 19, 3 days after the strike ended, Paden sought
to return to work by communicating with his immediate
supervisor, Ken Watts, but Watts told him to speak to
General Manager Tamargo because Watts "couldn't tell
[Paden] anything." L find that this constituted an uncondi-
tional application to return to work. It is significant that
Watts did not say that Paden had been replaced. When
Paden spoke to, Tamargo the latter informed Paden that
Paden had been' replaced. However, employee Phillips,
whom I credit, testified that he saw only employees Stewart
and Drake working on June 17 . But Stewart and Drake
were regular employees, so that they may not be consid-
ered as replacements for Paden.
Drake, a returning striker whom I credit, testified that he
returned to work on his own and without being recalled
and that no official of Respondent told him that anybody
had been replaced. I find that Drake's foregoing testimony,
when appraised along with Paden's testimony that no one
instructed Paden not to return because Paden had been
replaced , strongly indicates, and I find, that no new
employee was hired to replace Paden . In addition, the
failure of the help-wanted ad (G. C. Exh. 2) to mention
that replacements were being sought suggests , and I find,
that Respondent was looking for more salesmen to enlarge
is sales force and that those hired pursuant to said ad were
'not replacements for economic strikers.
In any event I fmd that, even assuming that Paden had
been validly replaced, the Act imposes upon Respondent
an obligation to place him on a preferential hiring list
whereby he must be taken back for any job for which he is
qualified before any nonemployee is hired for such work.
In this connection I find, crediting Nathen Williams, that
at least one employee at Respondent's College Park store,
Louis Fewhaufer, had left its employ about a week after
the strike ended. It would seem that Paden is entitled to
preference over outsiders to fill the vacancy caused by
Fewhaufer's said leaving . And Henry Dorsey, Jr., whom I
credit, testified that he knew of no new employees at the
College Park store, and that on July 28, 1974, he and four
other employees at said store were transferred to the
Doraville store because more salesmen were needed there.
This points to the conclusion that Paden should be
immediately called back to work pursuant to his preferen-
tial status.
3. As to the termination of Robert Lee Andrews, III
Andrews participated in the strike which ended June 16,
1974. Since he was not scheduled to work on June 17 and
18 he reported for work on June 19, at which time
supervisor Woods welcomed him back. Then he started to
work when Woods soon directed him to do so, served two
customers by selling a washer and dryer, and then attended
a team meeting at which fellow salesmen in his team
welcomed him back. In addition, although General
Manager Tamargo saw him twice on June 19 while
Andrews was working, Tamargo said nothing to him. It is
difficult to ignore or overlook the action of Woods and the
inaction of Tamargo in determining whether Andrews had
been replaced prior to assuming his regular duties on June
19.
Although Woods in the afternoon of June 19 passed on
to Andrews that Woods had bad news, and Couch
described said bad news by saying Andrews had been
replaced, neither Woods nor Couch explained why they
did not call this to the attention of Andrews in the morning
when Andrews actually worked. This convinces me, and I
find, that Andrews had not properly been replaced when
he commenced work on the morning of June 19.
It is true that on June 19 Andrews observed "four guys
... in training," but on the credited evidence I am unable
to find that they were hired as replacements for strikers.
Instead I fmd that they were additional salesmen taken on
to increase the sales force . In part this last finding is based
upon the help-wanted ad (G.C. Exh. 2) of June 9, 1974,
announcing "immediate openings in our Atlanta complex-
es." But this could not have referred to jobs as replace-
ments for economic strikers for two reasons . (1) The ad
fails to allude to the strike as generating such openings. (2)
Respondent contended at the trial that it sent telegrams to
the strikers that they were given until June 12, 1974, to
return to work before they would be replaced. Hence an ad
on June 9 must have meant additional openings were
available since it was not known on that date how many
strikers would come back to work by June 12.
It is true that Respondent claims that it hired replace-
ments for Keenum , Andrews , and Paden , and that business
KENNEDY & COHEN OF GEORGIA, INC. 1185
conditions did not warrant taking them on after June 17.
But I do not credit this testimony. As shown above the ad
was dated June 9 but strikers were given to June 12 to
return, as testified by Respondent's witnesses. And no
credible evidence was introduced warranting the inference
that sales had so declined that no strikers could be
reinstated after June 17. Hence I fmd this argument not
supported by the testimony I have credited.
4. As to the termination of Wayne Albright
Upon an appraisal of the entire record I am of the
opinion, and fmd, that Respondent discharged Albright for
discriminatory reasons forbidden by the Act, and that the
justification offered at the trial is a pretext to conceal the
real motive for such termination. Although this ultimate
finding is based on the entire record it is also derived from
the following subsidiary findings which I hereby find as
facts.
a. Initially I find that shortly after June 17, 1974,
Albright's job as assistant floor manager under Floor
Manager Bolton was abolished, that thereafter he became
a salesman , and that as a salesman he interviewed
applicants for employment not more than once a month
and sometimes less often than that. Hence I find that as a
salesman after June 17 he was an employee, and not a
supervisor, as defined by the Act.
b. Until July 28, 1974, Albright, according to. General
Manager Tamargo, "was a very good salesman," an
"exceptional" employee, and a "real go-getter"; and,
according to Floor Manager Bolton, Albright was an
"excellent" employee, "was the best salesman I had
working under my employment," and "was highly respect-
ed by everyone" of the sales personnel. And I find that
these descriptions of Albright by Respondent's officials are
accurate. I find that in but 1 week following June 28 (the
last week of Albright's employment) Respondent not only
found fault with anything Albright did at work, no matter
how insignificant it was, but yet did not effectively warn
him that he risked discharge or some lesser form of
discipline. Failure to warn, especially in so short a period
as a week preceding discharge, has probative weight in
ascertaining the true reason for a termination. Hence I
infer-and find-that Albright was dismissed for engaging
in activity protected by the Act. E. Anthony & Sons, Inc. v.
N.LRB., 163 F.2d 22, 26-27 (C.A.D.C.); N.LRB. v.
Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8 1965).
In this connection courts have emphasized that "Direct
evidence of a purpose to discrimi nate 'is rarely obtained,
especially as employers acquire some sophistication about
the rights of their employees under the Act; but such
purpose may' be established by circumstantial evidence."
Cowie Corporation v. N.LRB., 375 F.2d 149, 152 (C.A. 4,
1967). "Nowadays it is usually a case of more subtlety."
N.LRB. v. Neuhoff Brothers Packers, Inc., 375 F.2d 372,
374 (C.A. 5, 1967).
c. I recognize , and have followed, the rule that I may
not question the severity of discipline for minor offenses, as
the penalty to be imposed for infractions of working rules
may not be reviewed by me. N.LRB. v. Georgia Rug Mill,
308 F.2d 89, 92 (C.A. 5, 1962). And I have not overlooked
the principle that engaging in protected activity is not a
guarantee or shield against being discharged for lawful
cause. N.LRB. v. McGahey, 233 F.2d 406, 413 (C.A. 5,
1956).
Upon this aspect of the case Respondent introduced
some evidence that in that last week Albright had changed
his working habits for the worst. But I credit Albright and
accept all his versions except two. Except for those two
occasions I find that Albright was not derelict in the
performance of his duties. One occasion is when Albright
was asked to drop some cleaning he was performing and
attend to a customer, he failed to do so. While this may
have warranted Albright's being discharged, I find that
Respondent used this as a pretext to disguise the true
reason prompting his dismissal.
I also credit Respondent that Albright became loud and
disruptive concerning a conversation relating to his
attempt to obtain a statement in writing from a supervisor
relating to the new sales commissions adopted, as such
supervisor, according to Albright, had agreed to reduce
said statement to writing. However, I find that this incident
was not the true' cause for discharging Albright, but that it
was resorted to as a pretext to conceal the true reason for
letting him go, i.e., his protected activity. While not
carrying much weight in leading me to infer pretext in this
instance, it is significant that Albright's said conduct did
not occur in the presence of customers and did not disrupt
Respondent's business.
d. At this point it is well to point out that the burden of
proof is upon the General Counsel to establish the
allegations of the complaint and that .no onus is placed
upon Respondent to disprove those allegations. Further, I
have followed the rule of law that even though I may reject
Respondent's defense this will not aid the General Counsel
in supporting his case. This is because nonacceptance of a
defense or noncrediting of Respondent's evidence does not
amount to affirmative evidence capable of sustaining the
General Counsel's obligation to prove his case. Council of
Bagel and Bialy Bakeries, 175 NLRB 902, 903 (1969). See
N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1,
1966).
e. Albright engaged in conduct protected by the Act,
and Respondent had knowledge thereof. At a meeting of
employees held by Tamargo, Albright read a statement in
which he mentioned that he, Albright, talked to employees
about some of Respondent's policies and that said
employees were unhappy with some of said policies.
Continuing, he read from said statement that it was
necessary to organize a "legal union of the salesmen" in
order to have some say about policies. (See G.C. Exh. 3.)
Tamargo was present at said meeting. Later that day, at
another meeting of employees held by Tamargo, Albright
informed Tamargo that Albright "had full intentions of
proceeding with a legalized union ." At this latter meeting
Tamargo informed the salesmen attending it that Respon-
dent "would definitely fight a union." Hence I find that
Albright by such statements engaged in activity protected
by Section 8(a)(1) of the Act, that Respondent had
knowledge thereof, and that Respondent entertained union
animus.
Of course I recognize that antiunion hostility not only is
lawful but expressions thereof are protected by Section 8(c)
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof. But I further rule that hostility to unions is a factor
which may be taken into consideration in evaluating the
actual motive behind a discharge. N.L.R.B. v. Georgia Rug
Mill, supra at 91. And elsewhere herein I have found that
Respondent discharged Albright for conduct vouchsafed to
him by the Act and that explanations given for such
dismissal are pretext.
Albright also engaged in protected conduct when on July
30, 1974, following 'a meeting of employees held by
Supervisor Bohmar, the former requested Supervisor
Bolton to "reduce to writing the new sales commission
system announced by Bohmar at said meeting. After
Bolton failed to keep his promise to embody said new
system in writing Albright told him that Albright "would
proceed with the legalized union." I find that this too
constitutes protected activity by Albright and that Bolton's
knowledge thereof may be ascribed to Respondent.
f. When Albright came to the store on his day off,
August 2, 1974, Bolton informed him there probably would
be a meeting in a short while. In fact Bolton even directed
Albright to do a small job. Nevertheless, a few moments
later Bolton brought Albright to Tamargo's office where
Tamargo fired Albright on the spot. I find that thereby
Albright was precipitously discharged. This fact makes
operative the rule that abruptness, manner, and timing (i.e.
firing concurrently with the discovery that an employee is
engaged in protected activity) cast light in assessing the
legality of Respondent's conduct. "The abruptness of a
discharge and its timing are persuasive evidence as to
motivation." N.L.R.B. v. Montgomery Ward & Co., Inc.,
242 F.2d 497, 502 (C.A. 2, 1957), cert. denied, 355 U.S. 829
(1957); Arkansas-Louisiana Gas Co., 142 NLRB 1083, 1085
(1963)
g. Nor is it necessary that activity protected by the Act
be the only prerequisite for Albright's discharge in order to
render it unlawful. If his termination was inflicted
substantially because of his protected activity such conduct
transgresses the Act notwithstanding that a valid postulate
for discipline may exist. N.L.R.B. v. Murray-Ohio Mfg. Co.,
358 F.2d 948, 950 (C.A. 6, 1966); N.LRB. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1); N.L.R.B. v.
Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A.
5, 1965). And I expressly find that Albright's protected
activity was a substantial or motivating-but not necessari-
ly the only-reason for his discharge. Cf. N.L.R.B. v.
Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4, 1966). See
N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91, 92 (C.A. 5,
1962); N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d
758, 761 (CA. 6, 1964).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take specific action,
as set forth below, designed to effectuate the policies of the
Act.
In view of the findings that Respondent unlawfully (a)
refused to take back Keenum, Andrews, and Paden,
following the strike's end and (b) terminated Albright, it
will be recommended that Respondent be ordered to offer
each immediate and full reinstatement to his or her former
position, or, if such is not available, one which is
substantially equivalent thereto, without prejudice to the
seniority and other rights and privileges of each. It will
further be recommended that each be made whole for any
loss of earnings suffered as a consequence of his or her
being terminated.
In view of the finding that Respondent unlawfully
terminated Keenum, Andrews, Paden, and Albright, it will
be recommended that Respondent be ordered to offer each
immediate and full reinstatement to their former positions,
or, if such is not available, one which is substantially
equivalent thereto, without prejudice to the seniority and
other rights and privileges of each. It will further be
recommended that each be made whole for any loss of
earnings suffered by reason of his termination.
In making whole these four persons Respondent shall
pay to each a sum of money equal to that which he or she
would have earned as wages from the date he or she was
terminated to the date he or she is reinstated or a proper
offer of reinstatement is made, as the case may be, less his
or her net earnings during such period. Such backpay, if
any, is to be computed on a quarterly basis in the manner
established by F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at 6 percent calculated
according to the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). It will also be
recommended that Respondent preserve and make avail-
able to the Board or its agents, upon reasonable request, all
pertinent records and data necessary to aid in analyzing
and determining whatever backpay may be due. Finally, it
will be recommended that Respondent post appropriate
notices.
In my opinion Respondent's unfair labor practices found
herein do not go to the very heart of the Act or
demonstrate a general disregard or hostility to the Act, and
I so find. Accordingly, I find that a broad remedial order
against Respondent is not warranted. Rather, I find that it
will effectuate the policies of the Act to enjoin Respondent
from repeating the type of unfair labor practices found
herein and any like or similar conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
KENNEDY & COHEN OF GEORGIA, INC. 1187
2. By the following conduct Respondent has commit-
ted unfair labor practices within the scope of Section
8(a)(1) of the Act:
(a) Discharging Wayne Albright for engaging in protect-
ed activity under the Act; and
(b) Failing and refusing to reinstate the following
employees upon their unconditional application to return
to work after the strike in which they participated ended:
Faye Keenum, Robert Lee Andrews, III, and Donald
Paden.
3. The foregoing unfair labor practices affect com-
merce within the purview of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]