Monumental Life Insurance Co.

• In the Matter of MONUMENTAL LIFE INSURANCE COMPANY and UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA (CIO) Case No. 8-C-1783.-Decided April 11, 1946 DECISION AND ORDER On November 20, 1945, the Trial Examiner issued his Intermediate Report in the* above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On April 2, 1946, the Board at Washington, D. C., heard oral argument in which the re- spondent and the Union participated. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions-of the respondent, the contentions advanced at the oral argument before the Board and in the brief submitted by the respondent and the entire record in the case, and hereby adopts the find- ings,' conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 1 The Trial Examiner started in Section III C 1, paragraph 3, of the Intermediate Report that Walther "did much organizational work at the Akron and other Ohio offices as well." Walther testified that he only went to Akron "while he was connected with the Company " The above quoted sentence of the Intermediate Report is hereby corrected by omitting from it the words "and other Ohio offices as well " In Section III C 2 , paragraph 4, of the Intermediate 'Report the Trial Examiner found that "simultaneously with his beginning to work for the Union, the respondent began gathering evidence against Walther which it subsequently used in discharging him " The Trial Examiner then refers to the Peeler case. However, as the Trial Examiner stated in footnote 30 of the Intermediate Report, the Peeler case was not included in the respondent's particulars against Walther. The phrase "which it subsequently used to discharge him" in the above quoted sentence is hereby corrected so as not to include the Peeler case. 67 N. L. R. B., No. 35. 244 MONUMENTAL LIFE INSURANCE COMPANY . 245 Board hereby orders that the respondent, Monumental Life Insurance Company, Baltimore, Maryland, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Office and Professional Workers of America (CIO), or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition thereof ; (b) Discharging any of its employees or otherwise discriminating against them because they file charges or give testimony under the Act; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Office and Professional Workers of America (CIO), or any other labor organization, to bar- gain collectively through representatives of their -own choosing, and to engage in concerted activities, for the purpose of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Julius J. Walther immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Julius J. Walther for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Post in its Cleveland, Akron, Canton, Toledo, Lorain, Zanes- ville, Newark, Dayton, Cincinnati, Columbus, and Youngstown, Ohio offices, copies of the notice, attached to the Intermediate Report herein, marked .`Appendix A." 2 Copies of said notice to be furnished by the Regional Director for the Eighth Region, shall, after being signed by the respondent's representative, be posted by the respondent immedi- ately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; 2 Said notice, however, shall be, and it hereby ,is, amended by striking from the first paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting in lieu thereof the words "A DECISION AND ORDER." 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Louis Belkin, for the Board. Mr. J. W. Havighurst, of Cleveland, Ohio, for the respondent. STATEMENT OF THE CASE Upon a charge duly filed by United Office & Professional Workers of America (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated July 25, 1945, against Monumental Life Insur- ance Company, Baltimore, Maryland, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices , within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) since December 1, 1944, urged, persuaded, and warned its employees against joining or remaining members of the Union and threatened them with discharge if they did so, inquired of its employees as to their union membership, and made disparaging remarks to them respecting the Union and its objectives; (2) on March 10, 1945, discharged and thereafter refused to rein- state Julius J. Walther because of his union membership and activities, and because he gave testimony under the Act; (3) and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated August 6, 1945, admitting certain allega- tions of the complaint with respect to its business but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Cleveland , Ohio, from August 18 through 22, 1945, before the undersigned , Josef L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner . The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties . At the close of the hearing, the motion of counsel for the Board to conform the pleadings to the proof in formal matters was granted without objection, and counsel for the Board and the respondent argued orally upon the record . No briefs have been received although the parties were afforded the opportunity of filing them with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Monumental Life Insurance Company, is a Maryland corpora- tion engaged in the business of writing life insurance, maintaining its principal office at Baltimore, Maryland. As of September 30, 1944, the respondent main- tained 58 district offices in 13 States and the District of Columbia and had MONUMENTAL LIFE INSURANCE COMPANY 247 1,213,270 policies with a total value of $448,426,274, in force ; it had admitted assets consisting principally of bonds, stocks, mortgages on real estate, real estate, loans, interest, uncollected premiums, and cash in banks, to the value of $60,604,385.20. The respondent admits that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Office & Professional Workers of America (CIO), is a labor organiza- tion admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The sequence of events On April 9, 1943, after hearing, a Trial Examiner of the Board issued his Inter- mediate Report in Case No. 8-C-1407, finding that the respondent at its Cleveland #2 office, had committed unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) of the Act, by acts of interference by President L. P. Rock, William J. Biehl, then agency manager, Joseph A. Niehaus, then assistant agency manager, and District Managers Sam Berman and Joseph Demjanovic, and by discharging and refusing to reinstate two agents on account of their union membership and activity.' The Trial Examiner recommended that the respondent cease and desist from such activities and take the usual affirm- ative action, including reinstatement with back pay of those discriminated against, and the posting of notices. During August 1943, the respondent complied with said recommendations. No union activity in Cleveland is thereafter revealed by the record until December 1944, when the Union began an organizational drive. Julius Walther, whose discharge is separately hereinafter discussed, took a leading role in its activities in Cleveland and other Ohio offices of the respondent. The respondent countered with acts of interference, detailed, infra. On January 15, 1945, the Union filed a petition for investigation and certification of representatives 2 covering the industrial insurance agents in the respondent's Cleveland offices, and on February 8, an amended petition covering all of the respondent's Ohio offices. On February 17, the Board conducted a hearing thereon before a Trial Examiner. Agent Walther, called by the Board, was the only witness who appeared. He testified respecting the respondent's business and its employees. On March 10, 1945, the respondent discharged Walther and on March 12, the Union filed a charge of unfair labor practices based thereon against the respondent! The case was closed on March 23, the Union and the respondent having theretofore entered into discussions respecting the possibility of a nation- wide consent election agreement. The representation case was closed on March 29, the Union having withdrawn its petition, apparently on the same basis. On April 19, 1945, such discussions having been unproductive, the Union filed charges of unfair labor practices against the respondent on which the complaint in the instant proceeding is based and on the same day, a petition for investigation and certification of representatives, alleging that all industrial insurance agents 1 American Federation of Industrial and Ordinary Insurance Agents' Union No. 23270 (A. F of L.), which was then seeking to organize the respondent's agents in Cleveland, was the charging union. 2 Docketed as Case No 8-11-1746. 3 Docketed as Case No. 8-C-1767. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the respondent in the State of Ohio constituted an appropriate unit.4 On July 9, 1945, the Board issued its decisio l and direction that an election of the employees in the unit alleged by the Union to be appropriate, be conducted. Such election was duly conducted by mailed ballots in offices outside Cleveland and by manual vote on August 2, in Cleveland. The Union lost the election, 78 votes to 55. B. Interference, restraint, and coercion 1. The respondent's interference with the Union's efforts prior to Walther's discharge Agent Julius Land berg testified that in January 1945, manager Joseph Niehaus asked him what the agents wanted and stated that the Union's campaign appeared to be a reflection on Niehaus who had, in August 1944, returned to Cleveland as manager of the #2 office there.' Landberg replied that the fact of the Union's presence in the office did not reflect adversely on Niehaus and that it "was out to organize" the agents regardless of who the manager might be. Niehaus stated that the Union could get the men no more than the respondent would itself give them, whereupon Landberg told him that the agents objected to being separately questioned regarding the Union and suggested that an open meeting of all the agents be held for the purpose of ventilating the subject. Niehaus testified that he met with Landberg in February and denied asking him about the Union at that time. The undersigned finds the conversation to have transpired as testified by Landberg. During early February a meeting of the agents was conducted by Niehaus. According to Landberg and Walther, Niehaus asked the assembled agents "just exactly what they wanted" ; Landberg spoke of the desirability of the agents' having an agreement with the respondent; Niehaus stated that he was unable to see how the Union would benefit the agents since it was a "big business" with its sole interest in obtaining their dues payments, and that "the Company doesn't want the Union." Niehaus did not specifically deny making these remarks but testified that he had told the agents that the respondent did not deny the agents "any democratic right or any other right as a citizen." The undersigned finds that the events transpired as testified by Landberg and Walther. Landberg further testified that during February, Niehaus told him that the respondent, "As far as the Union is concerned, . . . can find enough on practically any man in the office to get rid of him" and cited agent Walther as an example, stating that the latter was "just hanging on by his shoe strings . . . We can let him go anytime " Niehaus testified that he had never "discussed discharge with any man in my organization or in any meeting" and that he had never spoken about Walther to Landberg. Niehaus, who refused to answer a question as to why he had been discharged by another insurance company, was a singularly unimpressive witness. He gave contradictory testimony on a number of points .6 The undersigned discredits his denials and finds that he spoke to Landberg as the latter testified. Agent Eugene Moebius testified without denial and the undersigned finds, that during February 1945, Manager Joseph Demjanovic in addressing a meeting of ' Docketed as Case No 8-R-1825 6 As related above, in 1942, Niehaus was assistant agency manager at the respondent's home office He became agency manager in January 1943, continuing as such until his return to Cleveland as office manager, a position be had held for a number of years prior to September 1936 6 For example, he first testified that he had never had a policy-holder telephone him because of misunderstanding as to the provisions of a policy. Upon further questioning, he testified that he had received such calls and that his previous statement was "Incorrect." MONUMENTAL LIFE INSURANCE COMPANY 249 his staff at Cleveland on the occasion of Moebius' receiving a button for his out- standing sales record with the respondent, stated that Moebius could wear it in place of the union button he had been affecting. Moebius replied that he would thereafter have two buttons to wear. Moebius testified without denial, and the undersigned finds, that Assistant Manager Sam Berman, who did not appear as a witness, was in the habit of repeatedly asking him how the Union was getting on, and whether it had "much hope, and so forth." Agent Frank Williams, of one of the two Youngstown staffs of the respondent, testified without denial and the undersigned finds, that during February, Manager Georges asked him what he thought of the Union and whether he believed that it would help the agents. Williams replied that he thought the Union "ought to be all right" and that it would help the men. According to Williams' undenied testimony, which the undersigned accepts, during February Assistant Manager Lester Deckman conducted a meeting of both Youngstown staffs at which he stated that he understood the agents were organizing and asked if they thought it "fair" to Georges that they do so, adding that Georges had been decent to them, that they should drop the Union to protect him from the fate of several other managers who had been demoted or discharged by the respondent on account of union activity in their offices. After this meeting, both Georges and Deckman fre- quently asked Williams as to the Union's progress. On March 10, the respondent discharged Walther, the leading union protagonist, because, as is hereinafter found, of his role as such and because he gave testimony under the Act. 2. Interference continues after Walther's discharge During March, Georges, according to the undenied testimony of Williams, which the undersigned accepts, read a lengthy document from the respondent's home office to a meeting of the Youngstown agents informing them that Leon Berney, vice-president of the Union, had met with L. P. Rock, president of the respondent, and had stated that the Union was interested solely in collecting dues and was not concerned with the Walther discharge case.' On April 18, after the discussions regarding a nation-wide election had broken clown,s the respondent abruptly ceased its "highly controversial morning board-call and the equally debatable Company-determined district and individual allot- ments, quotas or objectives." ° The matters referred to formed a part of the respondent's technique of engendering enthusiasm and productivity among its agents but often resulted in disgruntlement, bitterness, and resentment on the part of the latter. Their cessation was obviously a major concession by the respondent, the timing of which has much significance. Agent Howard Leisinger, of the respondent's Akron office, testified without denial and the undersigned finds, that during April or May, Manager Leroy Baxter told a meeting of the agents there that the Union had submitted a form of proposed contract to the respondent's home office the terms of which were not as favorable to the agents as the plan under which they were currently working, that the Union was not interested in the discharge case of agent Walther, and that the Union's r Berney testified, and the undersigned finds, that he informed the respondent that his primary interest was mutual agreement and harmony between the Union and the re- spondent and that he therefore did not desire to get side-tracked on the Walther case at that time • It will be remembered that the Union renewed its charges and petition on April 19. Y The matter quoted is from an announcement of this fact appearing over President Rock's signature in the respondent's house-organ, "The Old Black Hen," for June 1945. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officials were interested solely in entering into a contract with the respondent and procuring the dues payments of the agents. 3. Pre-election interference; the Union loses the election Shortly before the election scheduled for August 2, the respondent conducted three luncheon meetings of its Ohio agents at Columbus, Akron, and Cleveland, respectively. Food and drink were provided and paid for by the respondent. The first, held July 24 at Columbus, was attended by agents from the respondent's offices there and at Zanesville, Dayton, Newark, and Cincinnati It was addressed by President Rock who told those present that they were employing the Union on its representation to them that it could accomplish something for their betterment, recited the manifold benefits granted them without the Union by the respondent in the past, and urged the agents that when contemplating joining the Union, they should carefully consider the type of men who would represent them.10 The Cleveland and Akron meetings were held on July 26. agents from Lorain and Toledo also attending the former, and those from Canton and Youngstown, the latter. Rock addressed the Cleveland meeting. He was introduced by Vice- President Loweree, of the respondent, who told of Rock's having achieved his high office on "his own individual ability and that he didn't need any organization to further his progress." Rock advised those present that a state-wide election of the agents of the respondent would be conducted on August 2; asked them to vote; pointed out the benefits granted the agents by a sympathetic respondent during the difficult early depression period of 1931-2; questioned whether, in the light of President Merrill's having "put a picket line around the White House before Russia's entry into the War with Germany, and after Russia's entry" advocating that of this country, thereby, according to Rock's testimony, implying that Merrill was an "avowed" Communist," the Union, in their opinion had the same interest in their welfare ; and adverted to the visit of Berney to his office and stated that Berney had expressed interest only in obtaining a contract and none in the Walther case. Rock further stated that the local Cleveland firm of Jack and Heintz, which he said operated under a labor relations contract with the C. I. O.,'Z had been severing employees from its rolls despite this fact, while the respondent, on the other hand, far from thinking in such terms, was con- templating expansion involving the employment of additional hundreds of agents. Rock further mentioned that an A. F. of L. union of the respondent's home office employees had dropped in membership from about 65 to 20 and stated that in his talk with Berney, the latter had told him that the respondent's agents in Missouri13 were earning sufficient for their needs and that the Union was inter- ested in a contract covering them so as to be able to share in their earnings The Akron meeting, held the same day as that at Cleveland, was addressed by William Keidel, home office executive in charge of all agencies. He opened the meeting by stating, "We all know what we are here for We are here to discuss this Union business." He then informed those present that the A F. L. union at the home office of the respondent had won an election there by only three votes and had subsequently suffered a precipitate decline in membership. He also told them that in the Missouri election, the Union had won by only three votes. 10 Rock asked , "Who is Louis Merrill? [president of the Union] Who is Leonard Berney? And who is Julius Walther?" 11 Rock testified that his information was obtained from "The Daily Mirror of New York. It is not my paper " 11 It is common knowledge and the undersigned finds, that an A F of L union was the representative of the Jack and Heintz employees Rock testified that he subsequently so .learned. 13 The Union had recently won a Board election at St. Louis. MONUMENTAL LIFE INSURANCE COMPANY 251 Like Rock, he stressed the many ameliorative steps taken by the respondent for its agents in the past, pointed out that whether the agents paid their union dues or not, they would benefit from anything that was gained for them by the Union from the respondent, adverted to Merrill's alleged activities, and stated that Berney (who he said had changed his name from Bernstein) had told the home office executives that the Union's real aim was to benefit from the agents' dues. Keidel, according to Williams, upon whose undenied testimony and that of Keidel himself these findings are made, emphatically told those present that Walther would never under any circumstances be reinstated by the respondent and wound up the meeting by a vigorous presentation of his reasons for consider- ing that the Union did not belong "in this set up at all," epitomized by his state- ment that "this Company is headed by experienced, qualified men who have heads and hearts, have the best interests of the field force in mind at all times ; and the record proves it"; and by asking that the agents vote according to their best judgment. He explained at the hearing that "if the Union has got to win it [the election] I would like to see it win one by 40 to 50 If they did I would be inclined to go to the officers of the Company and say, come on, let's quit. But you have got to win one by more than three as far as I am concerned." On July 31, Manager Niehaus conducted a meeting of the agents in his Cleve- land office, told them that this was his last opportunity to speak to them prior to the election, that he felt that they had a duty to vote for honest leadership, and stated that despite the respondent's 87 years of existence, the Union with a history of but 13 years, was "trying to tell the Company how to run its business." On August 2, the Union lost the election by 23 votes. 4. Interference in connection with the instant hearing Agent Moebius testified, and the undersigned finds, that on August 14, Manager Demjanovic told him that the instant hearing was scheduled for Friday, August 17," and that since President Rock and other home officials were going to be present, it would be advisable for Moebius to stay away because he might other- wise "get hurt." Moebius replied that Walther "had gone out on the limb for the men" and that he did not consider it fair to absent himself. Demjanovic replied that he would not "get in Mr. Walther's position." On the morning of August 18, according to Moebius, Demjanovic spoke to him about attending to an inspection on that day. Moebius replied that he would be unable to do so because he had been subpoenaed to attend the hearing as a witness the same day." Demjanovic thereupon took Moebius into his office, told him he knew :Moebius was to be married shortly, that his testimony might create "unhar- monious circumstances in the office," and warned him that Moebius would there- afier have to be particularly careful to "dot [his] is and cross [his] is around here." Demjanovic testified that having found out that "unbeknownst" to him, Moe- bius was going to attend the hearing, on the morning of August 18, he upbraided Moebius for a short time previously having allegedly been partially responsible for another agent's losing his account book and stated, with respect to the hearing, "I wouldn't stop you from going over but we think you should take " The hearing was scheduled to commence on this date. Because of complications at- tendent upon the cessation of hostilities with Japan during the week, it did not commence until August 18 ''- Moebius reported his first conversation with Demjanovic to counsel for the Board and was reassured that he would be protected as a witness He appeared at the place of the bearing on August 17. Niehaus, aho was present, reported this fact to Demjanovic. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this up with us. If all this foolishness doesn't stop in a hurry, someone is going to get hurt." The undersigned accepts Moebius' version of his conversations with Demjanovic. 5. Conclusions The respondent began its counter-measures against the Union early in 1945. Through Niehaus, it made plain to the agents that the respondent resented the Union and would have none of it and warned Landberg that it could discharge any agent whenever it desired in order to resist the Union. Demjanovic and Berman, as well as Manager Georges and his assistant, Deckman, also explicated the respondent's opposition to the Union to the agents under them. After the February hearing in the representation case, Managers Georges and Baxter quoted to their agents unfavorable comments on the Union and its officials pre- pared by the respondent's home office. In April, the respondent precipitately ceased the unpopular board-call and allotment procedures. When the election of August 2 was scheduled, the respondent gathered all Ohio agents at luncheon meetings 18 and, as related above, through Rock and Keidel again drove home to them the respondent's opposition to the Union, its low opinion of the Union's leadership, performance, and prospects, and, although it urged them to vote at the election, left no room for doubt that it expected them to vote against the Union. Three days before the election, Niehaus reiterated the substance of their speeches to the agents under him. That the respondent had not relaxed its opposition to and campaign against the Union even after the results of the election became known, is demonstrated by the efforts of Demjanovic, on the morning of the opening of the instant hearing, to interfere with or prevent the appearance of Moebius as a witness for the Board by threatening that he would get hurt if he did not cease his "foolishness." All of the remarks and activities of the officials of the respondent, as found above, reveal a pattern and course of action designed to frustrate the organiza- tional desires of its employees Considered in such a light, it is clear that the remarks of Rock and Keidel at the luncheon meetings went beyond the permissible limits of free expression. Walther's discharge constituted a cogent warning against disregarding the wishes of the respondent and supporting the union. In this context, the respondent's remarks to the compulsory audience of its agents were Intended to be, and necessarily were in fact, coercive and therefore unprivi- leged. It is clear, and the undersigned finds, that the complex of these happenings, many per se violative of the Act, interfered with, restrained, and coerced the respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharge of Julius Walther 1. Events leading to the discharge Walther was first employed in 1932 as an agent in Cleveland, remained in that position for 4 or 5 months, and thereafter successively served as assistant mana- ger at Cleveland for 2 years, as home office representative for 10 or 11 months, as assistant manager in Cleveland for a year, as manager at East St. Louis for 9 months, as manager at St. Louis for 2Y/_ or 3 years, as manager at East St. Louis for 6 months, as home office representative for 6 or 8 months, as manager at Evansville, Indiana, for 6 months, as assistant manager at Cleveland for a year, and finally from November 28, 1942 to March 10, 1945, when he was discharged, as an agent at Cleveland. 16 They were the 19rst such meetings held since February 1943. MONUMENTAL LIFE INSURANCE COMPANY 253 Walther was discharged in the 1942 upheaval in the Cleveland office of the respondent which led to the subsequent hearing and finding of unfair labor prac- tices, as above related .17 He was rehired shortly thereafter, however, without any loss of pay. In December 1944, Walther assumed the leading role in organizing the Union. He organized his own office, assisted in the organizing of the two other Cleveland offices of the respondent, and did much organizational work at the Akron and other Ohio offices as well. He wore a union button at work and, as related above, on February 17, 1945, testified for the Board in the representation proceeding and was the only witness therein called. In December 1944, according to Walther, Manager Niehaus called him to his private office and inquired, "Are you doing the same thing as you did here two years ago?" When Walther asked Niehaus what he had in mind, the latter replied, "You know what I mean. You are asking the fellows how they are getting along and stuff of that kind I think we might as well call it quits." Niehaus denied talking of the Union to any agent with the exception of Landberg He had been found an unreliable witness. The undersigned accepts Walther's testimony and finds that Niehaus had reference to the Union in the quoted conversation. In January, according to Walther's undenied testimony which the undersigned accepts, Assistant Manager Louis Ebosh l" asked him if he was "fooling around with that Union again." Walther replied, "I'm not fooling around with the Union again. I have joined up with the Union this time to stay with the Union." On March 10, Niehaus, acting on orders from the home office of the respondent, discharged Walther and stated that if the latter returned on March 14, be would receive information explanatory of the respondent's action. Walther did so, and Niihaus then read him a 5-page communication from Agency Manager Keidel containing 19 specifications in unidentified cases in which Walther had allegedly acted in contravention of the respondent's rules. Some 2 or 3 weeks after he was discharged, Assistant Manager Ebosh, according to Walther's undenied testimony which the undersigned accepts, told him that all agents and officials of the respondent had committed "crimes" of the sort Walther had been charged with and that any and all of them could be dismissed therefor. 2. The respondent's contentions respecting the discharge and the evidence with respect thereto The respondent's answer states that : it discharged Walther for "repeated and extreme misrepresentations of fact . . . to prospective policy-holders and . . . other flagrant violations of respondent's rules governing the conduct of its agents." In support of its position, the respondent adduced documentary evidence that (1) in 1937, when he was manager at St. Louis, Walther admitted in writing that he had misrepresented to William Biehl, then agency manager of the respondent, the "amount of expected lapse" in his office; (2) in 1940, the chief of home office inspectors wrote Walther that certain business the latter had written was being rejected and urged that he thereafter concentrate upon a better class of prospect, (3) in 1941, the home office assistant agency manager wrote Walther that certain of his selling methods were such as to get Walther "into hot water" and were "poor advertising to the insurance public and poor instructions for the agents," certain of whom Walther was then instructing in salesmanship; (4) on May 25, 1844, H. M. Smyrk, manager of inspection, wrote Joseph Demjanovic, then Wal- 17 He was not alleged to have been discriminated against in that proceeding. "Although Ebosh was in the respondent's employ at the time of the bearing, he was not called as a witness. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ther's manager, that Walther had misstated an infant's age by one year and had omitted from his inspection report that the infant had a history of ptomaine poison- ing; 1B and (5) on July 18, 1944, a home office inspector wrote Demjanovic that Walther had incorrectly stated the height and weight of a boy of 10, probably as a consequence of his having failed to personally view the insured as required by the respondent's rules, and that he had incorrectly stated like information and the date of birth in the case of another insured.20 No discipline, other than verbal or written criticism, was ever meted out to Walther by the respondent before his discharge. On the contrary, the evidence reveals that he was held in highest esteem by its executives. Thus; on March 1, 1943, President Rock wrote him complimenting him "on the outstanding job" he had performed as agent during the previous several months ; on January 3, 1944, Agency Manager Keidel wrote Walther extending congratulations on his being first among all of the respondent's agents 21 in "Monthly Ordinary increase," eleventh in "Industrial increase," and "among that coveted group of fifty leading agents" for the year 1943; and on January 9, 1945, the respondent's assistant agency manager wrote him complimenting him on being third and sixteenth in ordinary and industrial increase, respective, during the year 1944. Walther was leading his office in the industrial department when discharged. Simultaneously with his beginning to work for the Union, the respondent began gathering evidence against Walther which it subsequently used in dis- charging him. The first "break" occurred when A. C. Jacoby, manager of the respondent's Detroit #1 office wrote Niehaus, then Walther's manager in Cleve- land, that one Lenore Peeler, a Cleveland insured who had been "sold" by Walther and had subsequently moved to Detroit, was under the erroneous impression that the policy she had bought contained a separate savings account subject to withdrawal. On December 6, a copy of this letter, written on Novem- ber 17, found its way to the respondent's home office and late in the month through Manager of Inspection Smyrk, to the desk of Agency Manager Keidel. It was determined to investigate furtherr2 On February 14, 1945, Smyrk, having on February 5, written that he would do so, with Keidel's approval, sent for "re-inspection" to Inspector R. B. West 109 applications obtained by Walther and constituting all, or substantially all applications obtained by the latter during the preceding several months." West spent between 2 and 3 weeks on his assignment` and the respondent, purportedly upon the basis of his reports thereon, on March 9 determined to 19 Demjanovic replied to Smyrk that he had personally adjusted the matter and spoken sharply to Walther respecting his "misconduct." 20 Demjanovic replied that he had adjusted the matters and again sharply spoken to Walther and told him that if he did not thereafter follow instructions, it might be necessary that he seek other employment 2' The respondent employed about 800 agents u On December 16, Jacoby wrote Niehaus that while he did not accuse Walther of misrepresentation, the insured definitely misunderstood the policy and that he (Jacoby) had been "unsuccessful in reselling the business." He attributed this to the fact that Walther had urged the insured in writing to resist efforts by the Detroit office to "knock" the policy and thereafter substitute another to its own credit. 22 Prior to 1942, when inability to staff the force caused the respondent to abandon the system, the agents filled in only the face of the application, while medical history, height, weight, and other pertinent information was gathered by salaried application inspectors. With the abandonment of this system, the agents were compelled to themselves obtain such information, and eight home office Inspectors were assigned to inspect business after issue by a system of spot-check investigations Such spot checks normally covered about 10 percent of the business written by a given agent and occurred at approximately semi- anhnual intervals. West's 100-percent inspection of Walther's business is the only such eomplete investigation of an agent's business revealed by the record. u Smyrk's letter had informed him that the assignment was for the period February 19 to 24, inclusive. MONUMENTAL LIFE INSURANCE COMPANY 255 discharge Walther and instructed Niehaus accordingly. Walther was dismissed on March 10 and as related above, on March 14, Niehaus read him the particulars upon which the respondent took this action. The complaints against Walther were that he : (1) paid premiums on a policy ; (2) took an application without premium deposit; (3) stamped a receipt book "$1.00 class" and misrepresented the consequences of being in that class to the insured; (4) failed to accurately state the height and weight and medical his- tory of an insured: (55) failed to unearth the presence of kidney disease and "a bad knee" in another; (6) stated that an applicant had had an operation for "female trouble" whereas she had had a goitre excision ; (7) failed to unearth a history of heart disease ; (8) sold five policies as a "savings plan" and mis- represented the facts with respect to withdrawal privileges and charges for insurance and in one case failed to explain the "war clause" in the contract; (9) failed to record statements to the effect that the insured suffered from a punctured ear drum and nasal obstruction; (10) failed to record statements to the effect that the insured had suffered from stomach ulcers and used alcohol to excess; (11) failed to unearth a history of nervous collapse and tuberculosis and to record statements to the effect that the insured had been a sanitarium patient; (12) failed to unearth a history of periodic "iron lung" confinements and treatment at the Mayo Clinic although the applicant "had informed neigh- bors of her illness and treatment"; (13) sold a policy as a savings account subject to premium withdrawal after 10 months and failed to unearth the fact that the applicant had undergone a thyroid operation in 1941; and (14) rewrote two policies in such fashion that the premium payers "did not understand the procedure" and became dissatisfied. Respecting these complaints the respondent adduced direct evidence as to only one, that of Helen Shyler, adduced evidence through West as to 7 or 8 (including that of Shyler) and none as to the remaining 11 or 12 although Walther was cross-examined with respect to them by counsel for the respond- ent. The record discloses that Walther was never consulted nor asked for his side of the story respecting any of the complaints As to the Shyler case, the evidence indicates that in August 1944, Walther, who was servicing a policy for her brother who lived at the same address, interested Shyler in a policy of her own. According to her testimony, he stated that of the $4.23 monthly premium on a $1000 20-year endowment policy, $4 constituted "a savings fund" subject to withdrawal at any time, while 23 cents was the charge for coverage, and that the policy had been prepared by the respondent at the request of the Government to fill the need of servicemen's w rves who, like Shyler, were working. She read and investigated the policy thoroughly and in February 1945, was paying premiums on it when West appeared and after inquiries informed her that she misconceived its provisions. She testified that Walther at no time mentioned that the policy provided that payments must be made for 3 years before its cash value could be drawn upon, but in a statement taken by West dated February 23, and signed by Shyler, she stated that "even though it was paid for a few months, the money would be returned with interest in 3 years." Walther testified that he did not misrepresent the policy's provi- sions and made clear to Shyler its provisions On cross-examination Shyler admitted that although she could not remember his having done so, he might have explained its terms to her and stated that she had owned a similar policy in another company. The evidence shows that although she did not request that it do so, the respondent, through West, refunded the premiums she had paid and cancelled the policy. From the evidence, the undersigned is convinced and finds that Walther doubt- less stressed the "savings " feature or the policy and perhaps actually technically 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misinformed Shyler respecting it when he first "sold" her. The evidence reveals, however, that in the course of a thorough investigation of his accounts conducted by Assistant Manager Louis Ebosh just before Walther's discharge, Ebosh and Walther visited Shyler and that Ebosh told her that "If you carry through for 20 years you will have a thousand dollars saved up which you won't save other- wise. If you run short or need money any time after three or four or five years you have the liberty to cash that policy or borrow on it." The evidence further reveals that the savings aspect of the policy was stressed by the respondent in its literature and,promotional activites. Thus, President Rock admitted that all policies of the respondent were "special" and as to premiums paid by an insured, stated, "You never pay, you deposit" and that "Endowment insurance is a savings plan." That officials of the respondent were also in the habit of going rather far in their efforts to sell is demonstrated by the uridenied testimony of John D. Kish, a witness for the Board. His testimony, which the undersigned accepts, shows that in August 1944, Assistant Manager Louis Ebosh, accompanied by Walther, who had previously sold Kish a 20-year endowment policy, spoke to him respecting certain additional policies, the premiums on which aggregated some $22 00 per month. 1 Ebosh told him, "You haven't got anything to lose. The small carrying charges that is extra, that is the only thing you would lose if you ever decided to drop the policy. And you get every cent of yours back-Any time you want your money you will get it back." n Kish took the proposed additional policies and paid premiums thereon until shortly before the hearing when, being "a little hard up for money" he sought to cancel. He was informed by Ebosh that he could not do so before 3 years after the date of issuance. Ebosh sought "to put the blame on Walther," whereupon Kish "got hot," and told Ebosh, "-you were the one telling me everything " The matter had not been adjusted at the time of the hearing. As to the remaining cases, the evidence reveals that in making his reports West relied on hearsay,' accepted statements by the insured against Walther without further investigation,v` and inspected cases in which the application had already been withdrawn or the policy cancelled." Demonstrative of how mistakes in applications may occur is the evidence with respect to policy-holder Hazel Alexander, who testified without denial, and the undersigned finds, that in November 1944, when Walther took her application for a policy, she unintentionally misinformed him respecting her weight and height. During February or early March , Inspector West called on her and inquired as to her height and weight. He returned the same evening or the next day with a scale and weighed her. West thereafter returned on several occasions on one of which he told Alexander, "We are going to get rid of Mr. Walther" for misrepresentation. The policy was eventually cancelled on account of Alexander's being overweight. Walther emphatically denied any misrepresentation to prospective policy- holders and admitted making several mistakes such as in the Alexander case, related above. He admitted using the "$1.00 class" stamp as a sales device and 23 Walther did not enter into the conversation since, as Kish stated, "He was playing with the kids " 26 E. g., the Smith case in which he based his report on the purported statements of a friend, the insured being in California. 21E. g., the Panco case in which the insured purportedly told West that Walther had paid premiums in contravention of the respondent's rules. 28 E g., the Rufng and Johnson cases. MONUMENTAL LIFE INSURANCE COMPANY 257 testified, and the undersigned finds, that he had done so without reprimand dur- ing substantially his entire employment by the respondent 29 3. Conclusions The chronology of events is of paramount importance in resolving the question of the respondent's motive in discharging Walther. It will be remembered that during the summer of 1944, Demjanovic, in consequence of communications from the home office, had twice had occasion to speak to Walther respecting his having overstepped the respondent's rules and that no other discipline was administered to Walther. In December, Walther became the organizer of the Union and freely told his superior, Louis Ebosh, that he intended to stay with it. At about the same time, Manager Niehaus sent the letter respecting Walther's purported activities in the Peeler case to the home of&ce.3° Toward the end of the month it was brought to Agency Manager Keidel's attention and it was determined to investigate fur- ther The record is silent as to what occurred between that time and February 5, 1945, when Smyrk wrote Inspector West that he would shortly send him a number of applications in the Cleveland office in which Walther worked. The Union had meanwhile on January 15, filed its petition for investigation. It filed an amended petition on February 8, and on February 17, Walther was the sole witness at the hearing on the petition. At about the same time, West received the 109 Walther applications and rather than the 6 days scheduled therefor, de- oted 2 to 3 weeks to an intensive investigation thereof. At its conclusion, the respondent hastily and without warning or interviewing him, discharged Walther. The respondent, having had previous experience with representation cases, must be found to have been aware of the fact that an election is normally ordered within a short time after hearing therein. No more potent warning to its Employees against voting in favor of the Union than discharging its leader, a man of 13 years' tenure with the respondent and one of its leading agents, could well have been devised. As to Walther's violations of rules, the contrast between the respondent's tol- erant reaction thereto before he espoused the cause of the Union and its intensive unearthing of evidence thereof thereafter, has been remarked. As Niehaus and Ebosh stated, almost anyone in the respondent's employ, subjected to similar investigation, could have been discharged. The undersigned is convinced, and upon the entire record finds, that in the period before his union activity, while the respondent no doubt had reason to criticize Walther, it was content to tolerate or overlook his shortcomings because of his great sales ability and the consequent material benefit to itself and to his immediate superiors. The evi- dence reveals that other agents overstepped the bounds of officially permissible conduct in selling and so also, as exemplified by the activities of Ebosh in the Kish case, did supervisors of the respondent. While the undersigned does not approve of nor condone many of Walter's activities, he is convinced that they 29 The respondent adduced direct evidence through policy -holder Charles Carte of a purported dereliction by Walther which was not discovered until after his discharge. Carte, although he was planning to be married and was basing his economic scheme of life in large part upon the policy which Walther sold him, testified that its actual value was $1,000. The evidence, however, discloses that its actual value was $2,500. Under these circumstances, the undersigned rejects Carte 's testimony . West testified to another alleged irregularity not listed by the respondent as a reason for discharging Walther, and based his statements upon those purportedly given him by the step -mother of the insured. The undersigned gives little weight to his testimony in this regard. e9 It is significant that the Peeler case was not included in the respondent's particulars against Walther. 692148-46-vol. 67-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were characteristic of the operations of top-flight industrial insurance agents and as such, were accepted by the respondent, which, but for his union member- ship and activity, would not have discharged him therefor" The entire record, particularly the chronology of events, the respondent's abiding anti-union animus both before and after Walther's discharge as found above, the aura of purposeful special effort surrounding the West investigation, as well as its timing, Niehaus' February statement to Landberg that the respond- ent could let Walther go at any time, as well as the haste with which it dis- charged him, convince the undersigned that the respondent did not dispense with Walther's services because of his derelictions, evidence of which it gathered in order to justify the action, but rather because his union membership and strenu- ous activity, climaxed by his testimony at the representaiton case hearing, ren- dered him a too potent menace to the success of its fixed purpose and plan of frustrating the efforts of its agents to self-organization to be longer tolerated It is so found. It is further found that the respondent has thereby, and by the acts and state- ments of Niehaus and Louis Ebosh, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed In Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commercet among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has discriminated in regard to the hire and tenure of Julius J. Walther. It will therefore be recommended that the respondent offer him immediate and full reinstatement to his fsriuer or substan- tially equivalent position, without prejudice to his seniority and other rights and privileges. The undersigned will further recommend that the respondent make him whole for any loss of pay he may have suffered by reason of its discrimina- tion against him, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of such discrimination to the date of the offer of reinstatement, less his net earnings " during said period. The respondent's whole course of conduct discloses a purpose to defeat self- organization and its objects among its employees, and the culmination of its activities to achieve that purpose, the discharge and refusal to reinstate Walther, "goes to the very heart of the Act." " Because of the respondent's unlawful 31 Cf Matter of Davis Precision Machine Company, 64 N. L. R. B. 529, decided October 29, 1945. 32 By "net earnings" is meant the definition of the term in Matter of Crossett Lumber Company, 8 N. L R B 440, and Republic Steel Corporation v. N. L. If. B., 311 U. S. 7. 'SN. L. If. B. v. Entwistle Mfg. Co, 120 F (2d) 532, 536 (C. C. A. 4). Cf. N. L. If. B. v. Automotive Maintenance Machinery Co , 116 F. ( 2d) 350, 353 (C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed' "No more effective form of Intimidation 'nor one more violative of the N L. R Act can be conceived than discharge of an employee because he joined a union MONUMENTAL LIFE INSURANCE COMPANY '259 conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past 31 The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat . In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of tact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Office & Professional Workers of America (CIO), is a labor organiza- tion, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Julius J. Walther, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) and ( 4) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent , Monumental Life Insurance Com- pany, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Office & Professional Workers of America ( CIO), or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discrimi- nating in regard to their hire and tenure of employment, or any term or condition thereof ; (b) Discharging any of its employees or otherwise discriminating against them because they file charges or give testimony under the Act ; (e) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist United Office & Professional Workers of America ( CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes for collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Julius J. Walther immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; as S- N L. B B v L 3 pirss Puhhshing Company, 312 U S 426 260' DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole said Julius J Walther for any loss of pay he may haw suffered by reason of the respondent's discrimination against him , in the manner set forth in the Section entitled "The remedy" above; (c) Post in its Cleveland , Akron, Canton, Toledo , Lorain, Zanesville, Newark, Dayton, Cincinnati, Columbus , and Youngstown, Ohio, offices , copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall , after being signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted . Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material ; (d) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10 ) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section ^2 of Article II of said Rules and Regulations, file with the Board, Rochambeau Build- ing, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections) as he relies upon , together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board request therefor must be made in writing to the Board within ten ( 10) days from the date of the order transferring the case to the Board. JosEF L. HE$TOEN, Trial Emaminer. Dated November 20, 1945. APPENDIX A NoTIOE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist United Office & Professional Workers of America ( CIO) or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to MONUMENTAL LIFE INSURANCE COMPANY 261 any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. JULIUS J. WALTHER All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organi- zation or because be has filed charges or given testimony under the Act. MONUMENTAL LIFE INSURANCE COMPANY, Employer. Dated ------------------ By ------------------------ ------------------ (Representative ) ( Title) Nam.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatmeut upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by any other material.