Richard C. Knight Insurance Agency, Inc.

[).('CISIONS OF NATIO)NAI. ABO)R RA lIONS BOARD Richard C. Knight Insurance Agency, Inc. and Local 925, Service Employees International Union, AFI,- ('10. Case I CA 14646(2) July 20, 1979 DECISION AND ORDER BY MEMBERS JNKINS, MIIRPIIY, AND TRIUITSDAI.I: On April 25, 1979, Administrative Law Judge George F. Mclnerny issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Richard C. Knight Insurance Agency, Inc., Boston, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order as so modified: 1. Insert the following as paragraph I(b): "(b) In any like or related manner interfering with. restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. t Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge, apparently through inadvertence, failed to include in his recommended Order a provision requiring Respondent to cease and desist from in any like or related manner violating the Act. See Hickmott Foods, Inc., 242 NLRB 1357 (1979). The Order and notice are modified accordingly. APPEN DIX No Il( 1 To Eitl oYtl.l: S P()SII) BY ORI)IKR ()1 1111: NAII()NAI. LABOR R}It.A l()NS BO)ARI) An Agency of' the United States (iovernment After a hearing at which all parties had the opportu- nity to present their evidence, it has been decided that we violated the law, and we have been ordered to post this notice. WE Wi.t. NOI fail to reinstate employees who have been engaged in an economic strike upon their unconditional offer to return to work. WE wiL. N in anv like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE Witi.. offer John Harrison and Munson Bailey immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other benefits, and Wi W'I.l. make them whole fir ans losses they may have suffered because of the dis- crimination against them. RI('llARI) C. KNI(;li INSURAN(' AN( Y. INC. DECISION SII-MItNI Ot 1111t (CASL GIOR.(; F. M('INRNY. Administrative aw Judge: Pur- suant to a charge filed on June 21. 1978. by Local 925. Service Employees International Union. AFL CIO. herein referred to as the Union, the complaint in this matter was issued on July 31. 1978. the Regional Director for Region I of the National Labor Relations Board. herein referred to as the Board, alleging that Richard C. Knight Insurance Agency, Inc., herein referred to as the Company. or Re- spondent, violated Section 8(a)1) and (3) of the National Labor Relations Act, as amended. herein referred to as the Act. by failing to reinstate two employees. Pursuant to due notice, a hearing was held before me in Boston. Massachusetts, on December 18. 1978. at which all parties were represented, were afforded the opportunity to present testimony and documentary evidence, examine and cross-examine witnesses, argue orally, and file briefs. After the hearing, the General Counsel submitted a memoran- dum and Respondent a brief, both of which have been care- fully considered. Upon the entire record. including my observations of the witnesses and their demeanor, and the entire record in this case,' I make the following: Mr. Fremont-Smith. Respondent's Counsel. is consistently misspelled in the record as "Freemont-Smith." The record s accordingls amended to cor- rect the misspelling wherever it occurs. 243 NLRB No. 109 604 RI(CHARD C( KNIG;HT INSIRAN('E AGENCY. IN('. :INI)IN(S )F FA( I I liti- Il SINISS )01 RISP()NI):N I Respondent is a Massachusetts corporation which main- tains its principal place of business at 53 Beacon Stree!t. Boston. Massachusetts. where it is engaged in the business of selling and servicing of educational payment programs. including insurance. In the course and conduct of its busi- ness. Respondent receives annual gross revenues in excess of $500,000, and annually receives sales and services in ex- cess of $50.000 directly from points located outside the Commonwealth of Massachusetts. The complaint alleges. the answer admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. 11. IilE tlABOR (RG(ANIZAI I)N INX)1 INt ) The complaint alleges, the answer admits, and I find that Local 925. Service Employees International Union, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. Ilt-F AI itI(iID NFAIR I ABOR PRA(l I(CS A. Background In the spring of 19782 the Union began an organizing campaign among employees of Respondent. As the cam- paign proceeded, the Union filed a petition in Case I RC 15765 on May 18. An informal conference between Re- spondent and the Union took place about June 9 at which the parties failed to agree on the composition of the unit and the date for an election. After this, hearings were held in the representation case on June 13 and 20. and a Deci- sion by the Regional Director for Region I issued on July 27. In the meantime, after the failure to agree on election details at the informal conferences, and desiring quick rec- ognition, the Union called a strike on June 12. Employees who did go on strike picketed the front and rear entrances of the Company's offices on Beacon Street, using the Boston Common, a public park across the street, as a rest area and place to hold al fresco meetings during the course of the strike. There were no indications in the record that the pick- eting was not peaceful, but Respondent did hire an off-duty police officer to patrol the area during business hours. In any event, the strike was apparently only 50 percent effec- tive, employees continued to work, and the Company con- tinued to function. In the same period, the Company arranged with an em- ployment agency to begin recruiting new employees to re- place the striking employees. Prior to June 20. some em- ployees had already been replaced. This was the situation on June 20, when the operative events in this case took place. B. The Events of June 20 On the morning of June 20, the hearing in Case I -RC- 15764 resumed at the Board's Boston Regional Office. The 2 All dales herein are in 1978 unless otherwise indicated. hearing itself proceeded without incident. Company Pres- ident David H. Knight testified that at some point on that da, the parties met outside the hearing room in an attempt to resolve the issues informally. The participants were Knight. his attorney Thayer Fremont-Smith, Dorine I.evas- seur, the tInion's organizer. and Jonathan P. iatt. the Union's attorney.' Levasseur was acting as the Union's spokesman and said that the employees wanted to come back to work if. and only if. they could have immediate recognition. She further stated that there was no basis for compromise. and that the employees would stay out on strike) until the election. Despite Levasseur's militant posture, the strike was not going well. On that same day, June 20. at 10:10 a.m., a striking employee named Nancy Deegan had called Ken- neth A. Morris, her supervisor, expressing her desire to re- turn to work. She added that the striking employees were having a meeting that afternoon and that other employees were "wavering" but that there was still a "group of hot- heads." Knight received a memorandum containing this news when he returned, after the close of the hearing, at about 2:30 p.m. Respondent notified the employment agency not to fill Deegan's job4 and, while Knight was pleased with the information Deegan had relayed, there was no evidence that anything further was done about it. At about the same time that Knight returned to his office after the hearing, Levasseur arrived at the front of the building housing the Company's offices.' It was agreed that they should have a meeting. so the pickets put their signs either inside or leaning against Levasseur's car, which was parked about two doors up from the Company's offices, and repaired to the Common across the street. Levasseur first gave those employees who had not attended the hearing a report on what had occurred there. She informed them that it appeared as if the Company wanted to go through the formal proceedings and that it would be some time before they could have an election. According to the testimony of Levasseur. Deegan. and striking employee John Harrison, the discussion went on for quite some time, but the employees were discouraged. Ac- cordingly to Deegan, they knew that some of them had already been replaced, and. according to Harrison, much of the time was spent in convincing those who wanted to hold out and continue the strike to abandon that position. At length it was determined that they should abandon the strike and the employees should try to get their jobs back. The group went across the street a little after 4:30. rang the bell, and were met by Frank Kannegieser. Respondent's I My findings as to this meeting are based on the credited testimony of Knight. He impressed me as a candid and open witness whose testimony was consistent and logical throughout. Levasseur did not recall this conversation. but its substance as attributed to her by Knight, would not be inconsistent with a militant, still-hopeful union representative at this particular juncture. even though, within a couple of hours, the pressure of events forced her to revise that position 4Deegan reported for work on the morning of June 21 and was rehired. I note that the buildings of Beacon Street where Respondent's offices are located were once private residences of some antiquity and considerable architectural merit. The approach to Respondent's premises would e di- rectly from the sidewalk, up a short flight of steps to the front door 605 I)6F('ISIONS ()1: NAI IONAL IABOR R:EA I IONS BOARI) treasurer.' evasseur stated that "he employ ees want to go back to work. We would like to talk about the conditions under which he ('ompany will take them back." Kanne- gieser replied that he could not talk to them without his attorney being present. ? Upon request. he agreed to try to reach Fremont-Smith and went hack inside to call him. lie returned to tell the delegation that lie could not reach his attorney because he was at a ballgame. At this point, liar- rison said, "Frank, we want to go hack to work." There is no record of a reply by Kannegieser to this statement. Levasseur urged that he continue to try to reach Fremont- Smith and informed him that they would be back in the morning and that the "employees would he ready to go to work then." Kannegieser went hack inside and the employees re- turned once again to the ('ommon. Levasseur reported on what had occurred and informed the employees to he there in the morning and to come dressed ready to go to work.' At 6:30 p.m. that evening. Respondent hired one Deb- orah Curtis as a permanent replacement for the position formerly held by John Harrison.' Kannegieser testified as to telephone calls allegedly re- ceived from l evasseur on the evening of June 20. ILevasseur denied that the calls were made and I credit her denial. I do not credit any of Kannegieser's testimony unless it is in- dependently corroborated. 6 Kannegieser testified that he did not recall this meeting. I find that state- ment unbelievable, in view oft' Kannegieser's admitted close connection with David Knight and Attorney Fremont-Smith during this period and his awareness of the information supplied by Deegan that the strikers were wa- vering. In these circumstances it is wholly improbable that he would not recall an encounter which could mean the end of the strike and the return of the employees. I conclude and find that Kannegieser was not candid when he stated that he did not remember the meeting for the reason that he hoped thereby to avoid any liability to Respondent which might accrue as a result Levasseur's credible account of the meeting is corroborated to a certain ex- tent by Deegan who, called as a witness by Respondent. testified that she observed Kannegieser talking with evasseur and the others at about 4:30 on June 20. 7 It was admitted that none of Respondent's representatives wanted to talk to L.evasseur lest such contact give rise to the impression that Respondent was thereby extending recognition to the Union. I The employees had been dressed informally while picketing, in raiment apparently considered inappropriate for work at Respondent's Beacon Street, Boston, location. 9 There is no evidence in this record on the details of this action However. the complaint alleges that Curtis was hired "on or about June 20 at 6:30 p.m." The Respondent's answer denies this allegation, but asserts that "On June 20 Curtis accepted the offer of employment to the position frmerly held by John H. Hamson, which offer had been tendered earlier by RCKIA (Respondent) via its personnel agency." It is apparent from an examination of these pleadings that there is no substantive issue of fact here. While the Respondent denied the allegation of the complaint, it admitted that the em- ploying process it was using to replace the strikers had culminated at 6:30 p.m. on June 20 in the hinng of a replacement Ibr Harrison. Whether that process was a single action, as seems from the bare allegation in the com- plaint, or an employment contract finalized by an acceptance of a previously tendered offer of employment as asserted in the answer, makes no substan- tive difference. Both parties agree that the action was completed and final- ized at 6:30 on June 20, and there is, thus, no issue which needs to be determined by testimony or other evidence. I can and do find as a fact that Harrison was replaced at 6:30 p.m. on June 20, 1978. Respondent has not raised the issue which appears to be framed by the answer, that its offer to Curtis was made prior to the actions which took place on the afternoon of June 20. But in any case, any such offer would be revocable at Respondent's option until accepted, and the time the offer was made would be irrelevant to the issue here. ('. 7The' E''c' i o/l'Jlunl 21 At about 8:15 on the morning of June 21."'" evasseur arrived in front of the ('ompany's offices. Most ofi the em- ployees were already there, dressed up and ready to go to work. She approached Kannegieser, who was standing out- side and said "The employees are ready to g to wsork. Are you going to take any of them hack?'" Kannegieser replied that he was sorry that he couldn't talk to her because of his attorley was not there, and that he couldn't reach him. At the same time, some of the striking employees spoke to Kannegieser. John Harrison went up to the door and was told by Kannegieser that he had been replaced. Other em- ployees who spoke to Kannegieser were told the same thing. Munson Bailey, the other alleged discriminatee, was present that morning, hut there is no evidence that he spoke to Kannegieser or that Kannegieser spoke to him. After this. I.evasseur attempted to call Fremont-Smith, explaining that it wras an emergency and that she wanted to talk about a strike settlement. IFremont-Smith was in con- ference and could not be disturbed. In fact he was in con- ference with Kannegieser and Knight. who had arrived at his office about 8:30 a.n. that morning. After attempting to reach Fremont-Smith l.cvasseur and the employees went to the offices of the Union where she drafted a form letter for them to till out. The employees. including Harrison and Munson Bailey, filled out the let- ters, dated them June 20. and mailed them to the Company, where they were received on June 22. Meanwhile, at 9:15 a.m., one Mark Hargin was hired to replace Munson Bailey through the same process outlined above. Levasseur finally got through to Fremont-Smith at about 3 o'clock that afternoon. They had an extended conversa- tion about whether employees had been replaced; questions as to profit sharing, savings accounts, and vacation pay. but, significantly. Levasseur did not raise the issue of the employees' wanting to come back to work, nor did she men- tion that the strike was over. l.evasseur's explanation f)or not mentioning these matters was that she assumed (rightly) that Kannegieser and Fremont-Smith had talked. and that Fremont-Smith knew about the conversations on the after- noon of June 20 and the morning of June 21. D. Analyvsis and Conclusions The key to a determination of the issues in this case is whether or not the conversation between Kannegieser, Levasseur and several employees on the afternoon of June 20 contained within it an unconditional offer by the striking employees to return to work. Considering first the persons who participated in this in- cident, it is clear that both Kannegieser and Levasseur were responsible representatives clothed with real as well as os- tensible authority to convey to others, or to each other. statements of position or binding commitments. Kanne- gieser identified himself in the record as Respondent's trea- 1u By this time the picket signs had been put away and were not visible at the Company's premises. n See fn. 9, supra. 606 RI('HARI) C. KNIGIIT INSt RAN( A.N(C'Y. IN(C surer. Through his own testimony and that of Knight. he is seen to have been involved throughout at the highest leel and in meetings with Respondent's attorney. in discussions, and in planning Respondent's policy elative to the strike and the disposition of Respondent's striking employees. Further, while the record is not entirely clear, it ma be inferred from the testimony of Knight and Kannegieser that the latter knew about the defection of Nainc [)eegan on June 20 and that he had contacted the employment agency to hold up on the replacement process in Deegan's case. Similarly. Levasseur had been closely identified. as the responsible union representative, with the meetings and hearings on the representation case. Indeed, there is no question in the record that l.evasseur was considered by Respondent to be a responsible union official, to the extent that Respondent's officials, and its attorney, were reluctant even to talk to her lest this be viewed as legally binding recognition of the Union. Respondent cannot now be heard to say that Levasseur had no authority to convey anll uncon- ditional offer to return to work on behalf of the employees. In these circumstances, I find that both Kannegieser and Levasseur were responsible representatives of their respec- tive principals on the afternoon of June 20. Turning, then, to the meeting on the doorstep of Respon- dent's premises that afternoon, it is evident to me that tak- ing Levasseur's statement that "'he employees want to go back to work. We would like to talk about the conditions under which the Company will take them back" in isola- tion, I could find it so equivocal as not to constitute an unconditional offer to return. Certainl the first sentence is not. But the second sentence seems to imply that the Union contemplates that there will be some discussion of the con- ditions, and. perhaps, disagreement. or the transmission of counterproposals to those conditions. An invitation to dis- cussion in this context may well modil and condition the apparently unconditional initial statement. However, that is not all that was said at that time. When Kannegieser reappeared after calling his attorney. he w;as told by Harrison that "we want to go back to work." and by Levasseur that they would be back in the morning and that "the employees would be ready to go to work then." It then appears to me that if there were any lingering ambiguity remaining after the initial phase of the con'ersation. that ambiguity was removed by this last portion of the meeting. Thus, I find that as of the conclusion of the meeting an unconditional offer to return to work had been made by Levasseur. a responsible agent of the U nion, on hehalf of all the striking employees, including Harrison and Bailey. to Kannegieser, a responsible agent of Respondent. At that point Kannegieser apparently did nothing. He did talk to Fremont-Smith late that evening. but the con- tent of this conversation is not recorded here. Ile did speak to Knight on the morning of June 21. w hen they were on the way to Fremont-Smith's office. but he apparently did not reveal to Knight': what had happened. and. although 1 Or. apparently. to anyone else. ha hd occurred here n the doorrslep the previous aterncxon. Indeed. it appears from the record. and from Re- spondent's brief, that Kannegieser never told anyone at an\ lune hall had happened in Ihal meeting Nonetheless. I find that Respo,ndenl is hound h, his actions. or failure to act. n his maiticr neither the tenor nor the substance of the conxersations in the lawNer's office was revcaled. there is no indication that Frcmonlt-Smiith knew anything about the icident. In view of the fact that there was a clear and unanlbigu- ous offer to eturn. the dilemnia considered in Searingen A,iation Corporation . .\'..R.B . 568 [.2d 458 (5th Cir. 1978) really does not arise here. ' A\ccordingly. since Respondent was ree. after the offer to return, made between 4:30 and s:1X) p.m. on June 20. to withdraw its offers to prospective replacements. since those offers had not been accepted and no contracts of ernplo- ment had been made, Respondent was not entitled to re- ceive acceptances of those offers which were made after the unconditional offer to return had been tendered. Therelfre. I conclude and find that the replacements of John Harrison and Munson Bailey were unlawfully accomplished and that Harrison aind Baile s are entitled to reinstatemlent as of June 21, 1978. c'( Or/eains Rooite/tI (' r/oratlio. 132 NI.RB 248 ( 1961): 4 merwan ited Inns. I. d/h Ia Ramada I/nn. 201 NRB 431 (1973): KenIron ,/ llita lid., Suh.sidiar' of 1.7'1 .cropacl Ce (or/toralin. 214 N L.RB 834 (1974). See. generally . L. R.B. . Flets ood railer (o.. Inc.. 389 U .S. 375 (1967): 71he l.aid/lil (Corloramii. 171 NLRB 1366 1968). I\. 1I1' RtlMII)Y Hasing found that Respondent has engaged in certain unfair labor practices. I shall recommend that it be ordered to cease and desist therefrom and to take certain atlirmative action. including the reinstaitemenit of John larrison anid Munson Bailey to their former or substantially equivalent positions with no loss of seniority or other benefits and the pay ment to them of hackpay together with interest thereon to be computed in the n;lanner prescribed i It f. 'oo .l- worth ( iptluiv. 9 NRB 289 (1950) and Ir'/iridi teel (orpor'atiot. 231 N l.RB ( 51 (1 977). CiN I SiNS M)[ A.V 1. Respondent is an emploer engaged in commerce within the meantlig of Section 2(6) and (7) of the Act. 2. I'The nion is a labhor organization within the meaning of Section 2(5) of the Act. 3. By failing to reinstate economic strikers John Hlarri- son and Munson Baile, on their unconditional offer to re- turn to w ork. Respondent has violated Section 8X(.)(I) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices aflcting commerce within the meaning of Section 2(6) and (7) of the Act. L'pon the foregoing findings of ict. conclusions of law. and the entire record in this matter. and pursuant to the pixOisiOns of( Section IO(c) of the Act. I herebh issue the lllowi ng reci mmlenlided: Slnilrls. the other c. xc ited hs Respondenl nare iRapposillc o the tacs In this cse a Se. generlls. /.s Pllitrhtl t, //alloin (i,,. 16 NI RH 716 (19'62) 607 DI)t('ISIONS OF NATIIONAL ABOR REL.AI'IONS BOARI) ORDER'" 'he Respondent. Richard C. Knight Insurance Agency, Inc., Boston. Massachusetts, its officers, agents, successors, and assigns. shall: 1. ('ease and desist from refusing to reinstate employees who have been engaged in an economic strike. upon their unconditional offer to return to work. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to John Harrison and Munson Bailey immedi- ate and full reinstatement to their former jobs or, if they no longer exist, to substantially equivalent positions, and make them whole for any loss of pay which they may have suf- fered as a result of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll 1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relatilns Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. records, social security payment records, timecards, person- nel records. and all other records necessary for determina- tion of the amount of backpay due under the terms of this Order. (c) Post at its place of' business in Boston, Massachusetts, ccpies of the attached notice marked "Appendix.' (Copies of such notice, on forms provided by the Regional Director for Region 1,. after being signed by an authorized represent- ative of Respondent, shall be posted by Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. in conspicuous places, includ- ing all places where notices to emplovees are customarily posted, Reasonable steps shall be taken by Respondent to insure that such notices are not altered. de!faced. or covered by any other material. (d) Notifl the Regional [)irector for Region 1. in rit- ing. within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. I In the event hat this Order is enforced b a Judgmenl of the I nited States Court ot Appeals, the words in the notice reading "Ptostcd h) Order ol the National Labor Relations Board" shall read "Posled Pursuant lo a Judg- ment of the United States Court of Appeals nlorcing an ()rder ot the Na- tional Labor Relations Board." 608