American Life and Accident Insurance Co. of Kentucky

AMERICAN LIFE AND ACCIDENT INS. CO . OF KENTUCKY 529 Attorney Adair's advice , and that, upon Adair's further advice, the Respondent Union entered upon its campaign solely for the purpose of protecting the working conditions of the union stations ' employees whom the Respondent Union still represents . Furthermore, it appears clear from the evidence that at no time since its loss of the representation election has the Respondent Union approached WKRG in an attempt to secure either recognition or a contract , that it has not attempted to organize or secure bargaining authorizations from WKRG's employees, and that it has taken no steps which could possibly be regarded as showing an interest in resuming its representation of WKRG's employees. Upon the foregoing considerations , the Trial Examiner finds and concludes that: (1) The evidence does not support the allegation of the complaint that the object or purpose of the Respondent Union 's picketing and advertising campaign was to force WKRG to recognize or enter into a contract with the Respondent Union as the exclusive bargaining representative of any of its employees. (2) On the contrary, the evidence shows that, faced with the threat that WKRG's nonunion operation would create pressure from the competing union stations in Mobile to lower the local level of working conditions , the Respondent Union's sole object and motive for its action was to protect its bargaining position with these competing union stations by increasing their advertising revenues through a transfer of WKRG's advertising and, by this showing of advantage in operating under union conditions , to enable the Respondent Union to preserve for the union stations ' employees their existing wages and working conditions. (3) Under the Board's decisions in the Curtis Brothers and Alloy Manufacturing Company cases (supra), the evidence does not warrant a finding or conclusion that the Respondents or either of them committed an unfair labor practice within the meaning of Section 8(b) (1) (A) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. WKRG-TV, Inc., an Alabama corporation , is engaged in a business affecting commerce within the meaning of the Act. 2. Radio Broadcast Technicians , Local Union No. 1264 of the International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of the Act. 3. Neither the aforesaid labor organization nor J . C. Burns, its business agent, has engaged in unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] American Life and Accident Insurance Company of Kentucky and Insurance Agents' International Union, AFL-CIO. Case No. 8-CA-1364. April 1, 1959 DECISION AND ORDER On October 15, 1958, Trial Examiner C. W. Whittemore 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, a supporting brief, and a request for oral argument.' Because in our opinion the record , exceptions , and brief adequately set forth the issues and positions of the parties, this request is hereby denied. 123 NLRB No. 64. 508889-60-vol. 12 3-3 5 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications and addi- tions hereinafter indicated. The Respondent contends that the Intermediate Report should be set aside because of bias and prejudice on the part of the Trial Examiner in that he assumed the role of an advocate rather than an impartial hearing officer, cut off lines of inquiry and limited the re- sponses of witnesses, and made gratuitous comments, thereby depriv- ing the Respondent of a fair hearing. Because of the seriousness of the charges leveled against the Trial Examiner, we have carefully scrutinized the record. We are satisfied that the Trial Examiner was concerned only with the fulfillment of the duty imposed on him by the Board's Rules and Regulations 2 to inquire fully into the facts of the case by questioning witnesses so that their credibility might be ascertained or their testimony clarified and in no respect did he associate himself with the prosecution of the case. In the conducting of a hearing the question of whether certain lines of inquiry or responses of witnesses should be curtailed rests within the sound discretion of the Trial Examiner. We find no abuse of that discretion in this case, as the record discloses that the particular matters to which the Respondent sought to address it- self were highly speculative in nature and not directly related to the specific issues being considered. While the Board does not condone some of the language used by the Trial Examiner during the hearing and believes that certain of his comments would better have been left unsaid, it recognizes that the remarks were caused to a certain extent by the testimony of Re- spondent's principal witness which was evasive, unresponsive, and circumlocutory. However, as we have had occasion to note,' we deem it both advisable and prudent that Trial Examiners who are hearing Board cases refrain from making unnecessary remarks or comments to the parties.4 2 Section 102.35 "Duties and powers of trial examiners-It shall be the duty of the trial examiner to inquire fully into the facts. . .. (f) To regulate the course of the hearing. . (j) To call, examine , and cross-examine witnesses and to introduce into the record documentary and other evidence ; . . . Aerosonic Instrument Corp ., 116 NLRB 1502. In this regard, the Board deems it unfortunate that 'he Trial Examiner in discrediting the testimony of Respondent's vice president, Lampton, made the unnecessary comment in AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 531 We conclude, after a detailed examination of each exception in Respondent's brief with respect to this issue and the record as a whole, that the Respondent's charges against the Trial Examiner are without merit and it was not denied a fair hearing. In addition, our independent analysis of the record convinces us that the Trial Examiner's unfair labor practice findings-with the modifications hereinafter indicated-which are substantially based upon admissions of officials and supervisors of the Respondent, un- denied testimony, and reasonable and logical inferences drawn from all the surrounding circumstances, are warranted by the record. Indeed, if we substituted our own findings and conclusions, as Re- spondent asks, we would, as we do, reach essentially the same results as the Trial Examiner. 1. We agree with the Trial Examiner that beginning with the Louisville meeting in mid-February 1957 the Respondent violated Section 8 (a) (1) of the Act by the following conduct : (a) by the means and methods described in the Intermediate Report, informing the agents that unless they withdrew from the Union their grievances could not be remedied, thus thinly veiling promises of benefit if they abandoned their rights under the Act; (b) threatening the agents with withdrawal of special help; (c) causing to be conducted a poll among the agents in an effort to obtain their withdrawal from the Union; (d) sponsoring and sanctioning the circulation of the with- drawal;5 and (e) causing the agents to sign the notice of withdrawal from the Union by implying promises of benefit. 2. The Trial Examiner found, and we agree, for the reasons indi- cated below, that the Respondent discharged Agents Boston and La Rocca in violation of Section 8 (a) (3) of the Act. his Intermediate Report that he could not place a higher evaluation upon such evidence than Lampton himself, who had said earlier that "Obviously I am not much of a wit- ness . . . Lampton 's remark appears to have been taken out of context. Apparently the witness was merely indulging in a gratuitous assumption as to the General Counsel's reaction to his testimony . However , it is well settled Board practice not to overrule a Trial Examiner's resolutions as to credibility , except where the clear preponderance of all the relevant evidence convinces us that the Trial Examiner's resolution was incorrect. Standard Dry Well Products, Inc., 91 NLRB 544, 545 , enfd . 188 F. 2d 362 ( C.A. 3) ; Universal Camera Corporation v. N.L.R.B., 340 U. S. 474, 492-497. No such conclusion is warranted in this case. 8 The record does not support the Trial Examiner's additional finding that the with- drawal notice was instigated and prepared by the Respondent . Accordingly, we do not adopt this finding. The Trial Examiner erred in granting the General Counsel's motion to strike the testimony of Respondent 's employee Jesse Hudgins , as it was relevant to one of the issues in this case. The testimony was offered by the Respondent to support its contention that the reason for the withdrawal petition 's circulation was the receipt of information by the agents that a bargaining unit limited to the Akron office was inappropriate . The Board has carefully weighed and considered Hudgins' testimony , and, itherefore, the Respondent's case has not been prejudiced . However, we find no merit in the Respondent ' s position and conclude that there is no basis for reversing the Trial Examiner 's findings that the circulation of the withdrawal notice was sponsored and sanctioned by the Respondent. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'The Respondent's chief contention advanced for discharging the two men is that their work records were poor.6 The Respondent claims, in effect that Boston and La Rocca had unsatisfactory col- lections for the 7-week period from December 31, 1956, to and includ- ing the week of February 11, 1957, and that although the decision to discharge them was based on the work reports for the full 7-week period, their poor performance in the final week, that of February 11, was the culminating factor leading to their termination. However, Respondent has presented records for only 6 of the 7 weeks, i.e., the b weeks during the month of January and the week of February 11, 1957, omitting the week of February 4, 1957. Moreover, in our -opinion the records which it has placed in evidence do not support its contention. Examination of the 6 weeks' records which Respondent contends it used reveals the following : First, with respect to the month of January, Boston and La Rocca, on the four criteria there set forth-collections, arrears, increases, and advances-had better work records than Steiner and Laudermilk on three of the four. Further, on three of the four criteria, three or more agents had poorer records than Boston , and four or more agents had poorer records than La Rocca.$ Moreover, it is noted that the January records do not contain information concerning the records of seven agents who were employed at that time. Accord- ingly, the positions of La Rocca and Boston in January 1957 relate to only 14 men rather than 21, and their actual standing cannot be said to be conclusively established. Indeed, it could be much higher than indicated by these comparisons. Looking next to the week of February 11, 1957, which was the week of the Louisville meeting, when all the men lost at least a day and a half's work, we find that only three criteria have been set forth in the Respondent's exhibit-collections, arrears, and voucher reserves. On these three, Boston and La Rocca had better records than Agent O'Neil in two of the three. In only one is Boston sec- ond from the bottom-in the other two he is no less than fourth from 0In the work records of the insurance agents certain terms are used, which are defined as follows : "Debit" is a geographic area in which an agent's accounts are located ; "Size of Debit" is the amount which a debit will yield in terms of dollars ; "Percentage of Collection" is the amount collected in a debit during a given period, translated into a percentage figure ; "Increase " is the amount of growth of the debit, in dollars, over a previous period ; "Percentage of Arrears" is the resultant figure arrived at by dividing the total dollar volume of premiums that are unpaid by the size of the debit ; "Percentage of Advances" is the resultant figure arrived at by dividing the total dollar volume of premiums that are paid in advance of their due date by the size of the debit ; and "Per- centage of Balance" is the amount of the total income that is allocated by the company for reserve , home office expense, etc. ' In the fourth criterion, Boston is second from the bottom and Steiner is lowest. S In the fourth criterion, La Rocca was third from the bottom, with Steiner one of the two lower men. AMERICAN LIFE AND ACCIDENT INS. Co. OF KENTUCKY 533 the bottom; in only one is La Rocca second from the bottom-in the other two he is no less than fifth from the bottom. It is thus clear that although Boston and La Rocca do not have the best work records for this week, upon which Respondent places so much em- phasis, their performance was superior to other agents. Moreover, in our opinion the Respondent's asserted reliance on the week of February 11 is unconvincing, since its records indicate that the performance of its agents varies considerably from week to week and from month to month. In view of this fluctuation, if Re- spondent had been motivated solely by normal business considera- tions, it would have awaited the reports covering at least the entire month of February to determine whether any particular agents, and specifically agents with a prior good record, as indicated below, were not meeting desirable standards. Examination of the February records, which are also in evidence, reveals that : La Rocca was at the top of the list of 21 agents in his percentage of collections and Boston was seventh from the top; in advances and in percentage of balance both were in the upper half of the list; on increases La Rocca was eleventh from the top and three agents had worse records than Boston; and on arrears Lauclermilk, Steiner, and O'Neil had worse records than the dischargees. From the above analysis of the Respondent's records it is clear that some of the agents had less satisfactory records on the whole than did Boston and La Rocca. In fact, the Respondent admits that it retained at least two men with worse records-Lauclermilk and Steiner-but alleges that the circumstances warranted this action. Thus, it alleges that Laudermilk was a new man on a new debit and Steiner was sick during the period under consideration, and therefore their low standings were excusable. However, this overlooks the fact that supervisors worked with new men like Laudermilk and made collections for employees absent because of illness, and with such assistance a higher production might have been expected. Under these circumstances, we reject Respondent's alleged reasons for retaining these men in preference to Boston and La Rocca. Finally, the Respondent's position that Boston and La Rocca were discharged because of their poor work records is also inconsistent with the fact that : (1) Boston was offered a promotion to "special agent" 9-a position of aiding agents in obtaining new business-in December of 1956 or January of 1957; and (2) La Rocca was awarded both. a watch and a silver bowl for his high production record in 1956. 91t is clear from the record that the most able men are assigned to the position of special agent. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of all the foregoing, we agree with the Trial Examiner's 'conclusion that the Respondent's claim that the poor records of Boston and La Rocca were the cause of their discharges has been amply refuted. Another reason given by the Respondent for the dismissal of Boston was that he had engaged in the allegedly illegal practice of back-dating the date of last payment on certain policies. We are unable to find anything in the insurance laws of the State of Ohio,'° of which we take official notice, which makes this practice unlawful. Moreover, although the Board would certainly not condone such conduct if it were illegal under State law, there is credible evidence, as found by the Trial Examiner, to indicate that (1) it was not an uncommon practice among the agents; (2) Respondent had long been aware of the practice by virtue of its supervisor's knowledge and its own records;h1 (3) neither Boston nor any of the other agents had ever been warned that back-dating would be cause for discharge; and (4) no other agent had ever been discharged for this reason. Under all the circumstances, the Board is persuaded and finds that there is no merit to the Respondent's claim that a reason for Boston's discharge was back-dating. It has been found that there is no merit to Respondent's claims as to its reasons for discharging these two agents. The Board con- eludes and finds, in agreement with the Trial Examiner, that con- trary to Respondent's contentions, both agents, known to be union adherents, were actually discharged in violation of Section 8(a) (3) of the Act in order to discourage further attempts to organize the Akron office. This conclusion rests on the following : (1) the undis- puted fact that Boston was the initial leader in the organization of the Akron agents, having made arrangements for the first meeting with the union organizer; (2) the credible testimony of Superin- tendents Black and Deagan that Lampton told his gathering of supervisors that a "couple" of discharges would be made; (3) the fact that it can readily be inferred from the record that Lampton, when ordering the discharges of Boston and La Rocca, had already been informed by Holman of Boston's vigorous objections to the signing by the agents of the withdrawal petition; (4) the fact that neither Black nor Deagan, the supervisors of Boston and La Rocca, were consulted about their dismissals, contrary to custom ; and (5) the fact that shortly after the dismissal of Boston and La Rocca, Agent Walker was told by Holman that he had gotten rid "of the trouble- makers." "Page's Ohio Revised Code Annotated ( 1953 ), Title 39 Insurance. "Respondent was able , from its records, to pinpoint all back-dating in which Boston was involved. AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 535 ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, American Life .and Accident Insurance Company of Kentucky, Louisville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening employees with economic reprisals or promising benefits to discourage membership in Insurance Agents' International Union, AFL-CIO, or in any other labor organization. (b) Unlawfully conducting polls among its employees to learn their union sentiments. (c) Sponsoring and sanctioning the circulation among its em- ployees of petitions or letters of withdrawal from the above-named or any other labor organization. (d) Discouraging membership in the above-named or any other labor organization by discharging or laying off any of its employees, or in any other manner discriminating against its employees in re- gard to their hire or tenure of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Insurance Agents' International Union, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to en- gage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from ,any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer George V. Boston and Frank P. La Rocca immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set.forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social .security payment records, timecards, debit collections, personnel records and reports, and all other records necessary to analyze the 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amounts of back pay due and the rights of George V. Boston and Frank P. La Rocca under the terms of this Order. (c) Post at its offices in its Akron, Ohio, district, copies of notice attached hereto marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any material. (d) Notify the Regional Director for the Eighth Region in writ- ing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply therewith. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Insurance Agents' International, Union, AFL-CIO, or any other labor organiza- tion of our employees, by discharging them, refusing to reinstate them, or discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten employees with economic reprisals or promises of benefit to discourage membership in Insurance Agents' International, Union, AFL-CIO, or any other labor organization. WE WILL NOT unlawfully conduct polls among our employees to learn of their union sentiment. WE WILL NOT sponsor and sanction the circulation among our employees of petitions or letters of withdrawal from the above- named or any other labor organization. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations to join or assist the above-named labor organization, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 537 from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8(a) (3) of the Act. WE WILL offer George V. Boston and Frank P. La Rocca immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay, salary, or commissions they may have suffered by reason of our discrimination against them. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act. AMERICAN LIFE AND ACCIDENT INSUR- ANCE COMPANY OP KENTUCKY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the Respondent, American Life and Accident Insurance Company of Kentucky, a hearing involv- ing allegations of unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), was held in Akron, Ohio, on July 8, 9, and 10, 1958, before the duly designated Trial Examiner. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. Counsel waived oral argument. Date for filing briefs was set at August 11, and thereafter was extended by the Chief Trial Examiner to October 8, 1958. Briefs have been received from General Counsel and the Respondent. At the conclusion of the hearing the Respondent had not yet received from the General Counsel in Washington a response to his request for permission to have certain affidavits produced by General Counsel's representative at the hearing. On August 20 the Trial Examiner received from counsel for the Respondent a written request that General Counsel's wired denial of such permission be in- cluded in the record of these proceedings. Said request is hereby granted, and General Counsel's telegram of August 1, 1958, above referred to, is hereby made a part of the official record. Also after the conclusion of the hearing, on August 1, the Trial Examiner re- ceived from all participating counsel a stipulation concerning the production and examination of one of the affidavits referred to above. Said stipulation provides that it be included in the record as General Counsel's Exhibit No. 10. In consonance with the Board's decision in Ra-Rich Manufacturing Corpora- tion, 121 NLRB 700, on September 15, 1958, the Trial Examiner issued an order 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reopening the record, reversing all rulings made at the hearing regarding the production of pretrial statements by General Counsel, and instructing General Counsel to make such statements available to the Respondent. The same order provided that unless within 15 days from its issuance a motion was received requesting further examination of witnesses the record would be closed without further order. No such motion has been received. Also after the hearing, on August 11, a stipulation by all counsel was received agreeing that Respondent's Exhibit No. 1, inadvertently not offered by the Re- spondent during the hearing, should be received in evidence. It is hereby received. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Kentucky corporation, with its principal office at Louisville, Kentucky. It is engaged in the States of Kentucky and Ohio in the sale of indus- trial, life, and accident insurance. It received premiums of more than $50,000 annually in Ohio and of more than $100,000 in Kentucky. It annually makes payments from its Louisville office to policyholders outside the State of Kentucky of more than $100,000, and annually pays claims to policyholders in the State of Kentucky of more than $100,000. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Insurance Agents' International Union , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues Dinwiddie Lampton, Jr., vice president of the Respondent, is the principal figure in the events here at issue. His admitted actions and own words-in copious. quantity-as a witness at the hearing make it clear that he is adamantly opposed to self-organization of his agents at the Company's many district offices. His expressed conviction is to the effect that while he heartily approves of "union activity" for men and women in "industrial plants" of his insurance "territory"- because it puts "more money" in their hands, he believes his own agents should permit him to represent them in employer-employee relations at the same time he represents management. Lampton's antipathy toward organization of his agents in the various districts- a competent factor in appraising certain issues in this case-is amply established by his testimony, as well as by the uncontradicted testimony of M. J. Turkall, a former agent employed by the Respondent. As a witness Lampton admitted the following that: (1) Although he had not previously visited his Akron office for many years, he had promptly flown there from Louisville upon being told over the telephone by his Akron manager, W. L. McDaniel, on January 24, 1957, that the Union claimed to represent a majority of the Akron agents and sought to meet with management to negotiate a contract; (2) after having had all agents assembled he "urged them to suspend their union activity, until they had tried' him, and told them that he could not do anything to take care of their grievances so long as they had signed cards for the Union; and (3) he told them if they wanted to withdraw from the Union an office girl and her typewriter were at their "disposal," and distributed among them a copy of a letter of such with- drawal as had been used by his Cleveland agents a year or so before then. Tur- kall's testimony is to the effect that after Lampton's visit to Akron, Walter Stout, manager of Lampton's Youngstown office (which was under Akron's district man- agement) and conceded by the Respondent to be a supervisor within the meaning of the Act, told an assemblage of all Akron agents that a union would not be good for them and declared that some years before he had tried to organize the agents at the Columbus office, had been called to Louisville headquarters to talk with Lampton, and that as a result he had withdrawn from the Union and had been promoted to special agent and finally to his job as manager of the Youngston area.' 1 The Trial Examiner makes no unfair labor practice findings as to Lampton's conduct in January or Stout's subsequent remarks to Akron agents. The initial charge was filed in this case on August 8, 1957, and General Counsel conceded that the January meetings- AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 539 A week after his January 25 exhortation to his Akron agents Lampton again and similarly urged them to withdraw from the Union. On one or the other of these occasions, according to his own testimony, he and other supervisors left the assemblage so the agents could discuss their next move. According to the credible testimony of former Superintendents George Black and Hubert F. Deagan, when Lampton had gathered his supervisors in another room he asked them what they were going to do "about the men signing union cards." After some discussion Lampton left the office briefly, was informed that the agents had voted unanimously not to withdraw from the Union, and upon his return informed his supervisors that while "most of the men could be salvaged, . . . there would have to be a couple of finals." (A term used by the agents to mean "discharge.") The vice president also told the supervisors that "if it had to be he would put the whole office on office pay," and that they "didn't need the agents." (Office pay, other evidence reveals, refers to premium payments made at the office, not collected by agents.) Upon being informed by the agents as to their voting action, Lampton told them they had made a mistake, and said that he did not need to give them the "special" help which had been accorded them by practice. (The Respondent employs a number of "special agents," who have no special territories or "debits" to service or collect from , but who assist agents in their collections and other duties.) 2 Stemming from the foregoing events are actions and conduct on the part of Lampton and other management representatives which are placed in issue by the complaint. Major issues include coercive threats of reprisal, effective coercion causing agents to withdraw from the Union , and the discharge of two agents, George V. Boston and Frank P. LaRocca. B. The Louisville meeting After the Akron agents had refused to withdraw from the Union during the latter part of January, Lampton summoned them all to Louisville, an action which he admitted never before having taken. These agents arrived by airplane, between 9 and 10 o'clock at night. Despite the lateness of the hour, they were brought to the headquarters office, where they were urged by both Lampton and his father (president of the company) to withdraw from the Union. Lampton (senior) told them he was "shocked" at their action, and declared that there was "no place" in the Company for a union. The Lamptons asked the men what their "gripes and troubles" were, and a list of them was then prepared, from which Lampton (senior) proceeded to read aloud. Having asked the men to reveal and present their grievances, the two Lampton's thereupon engaged in somewhat unique method of coercion. According to Lampton's (junior) own testimony as his father would read off a gripe and start to comment that maybe something could be done about it, he would interrupt and say "Dad, you can't say those things. That would be a threat or a promise or a bribe." Lampton admitted that he and his father made it clear to the agents that "we couldn't talk to them " about the grievances "as long as they had their cards in the union." Lampton (senior ) then urged the agents to reconsider the question of with- drawing from the Union, and the Cleveland withdrawal letter was again circu- lated among them by the Lamptons . Lampton (junior ) admitted that he told the agents that "after the Cleveland men had signed their withdrawals from the were outside the 6-month period provided by the Act. And Turkall's testimony places Stout's remarks as occurring after Lampton 's January 25 talk-in February , he believed. His testimony does not fix the date with sufficient accuracy •to support a finding that Stout's conduct occurred on or after the critical date of February 8, 1957. The evidence and findings of fact, however, are relevant as background , and serve to throw light upon the dispute as to Lampton 's actual motives for subsequent conduct. 2 Lampton's denial that he threatened to withdraw such "special help" is not credited. Not only did he admit having made "references to special help" during 'this meeting, but ,the Trial Examiner is unable to rely upon any part of Lampton's testimony where it is unsupported by credible evidence. As the record shows, Lampton 's testimony is replete with self-contradictions , evasions, 'and obvious efforts to color his account of events. In short, the Trial Examiner cannot place a higher evaluation upon such evidence than Lampton himself, who said early in his testimony , "Obviously, I am not much of a wit- ness . . . As in the case of events referred to in the footnote next above , the Trial Examiner makes no unfair labor practice findings concerning Lampton 's implied threats after learning of the agents ' decision not to withdraw from the Union . His remarks, however, both to the agents and to his supervisors , are relevant to the determination of his motives for later action which falls within the 6-month period. '540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union" he "had made some changes up there in the office." The Lamptons then passed slips around and withdrew while the agents voted. They again voted not to withdraw. Lampton (junior) expressed to them his disappointment, and told them that he had hoped that his "Dad could influence them" and they would withdraw. Both Lamptons then told the agents that they would not be given the "special help" as in the past, and that they would "fight the union with everything within their means." 3 The agents were finally-about 2:30 o'clock in the morning-permitted to go to their hotel. Lampton (junior) went to them at the Louisville airport later the same morning, and urged them to go back to Akron and reconsider their action. He warned them that they were all family men, and should consider the "conse- quences" that "could come out of this." C. The withdrawal Within a day or two after the above-described Louisville meeting, Lampton summarily removed Akron Manager McDaniel from that district and placed O. J. Holman, a special agent, in charge as his specific agent. On the basis of Lamp- ton's own testimony, it is concluded and found that during the period of the following 2 weeks, while he "gave the agents their orders," and served as the vice president's specific "agent," Holman's acts and conduct were attributable to the Respondent. Documentary evidence establishes that on February 21 Holman signed, as wit- ness to the signatures of all the Akron agents, a blanket withdrawal from the Union. The document is upon the Respondent's letterhead. The Trial Examiner concludes and finds that this letter of withdrawal was not only sponsored by the Respondent, but was instigated, prepared, and through coercion caused to be executed as well, by the Respondent. Previous findings establish that Lampton distributed among agents the Cleveland letter, made thinly veiled promises of benefits if agents withdrew and threatened reprisals if they did not. D. The discharge of Boston and LaRocca When the above-described withdrawal was presented to him, Agent George V. Boston protested against its circulation and at first declined, in Holman's presence, to sign. Later the same day Boston obtained the document from Holman and placed his signature upon it. A few days later he was summarily discharged, together with Agent Frank LaRocca, and Lampton's threat to his supervisors, quoted above, that there would be a couple of "finals," was fully effectuated. It is undisputed that Boston was the initial leader in the organization of the Akron agents, having arranged with an AFL-CIO representative for an organi- zational meeting. LaRocca also attended this meeting. It is likewise undisputed and found that Boston informed his supervisor, Superintendent Black, of the agents' dissatisfaction and the organizational campaign among them, and that Black reported to Boston and the other six men under him what Lampton had said at the meeting of management representatives about forthcoming reprisals to be visited upon the agents. On February 25 Holman summoned Boston and LaRocca to the office, and in- formed them of their discharge upon orders from Lampton in Louisville. Each was instructed that he could, and each did, sign a letter of resignation effective March 1. Neither Superintendent Black, Boston's superior, nor Superintendent H. F. Deagan, LaRocca's superior, were consulted about the discharges before made: Neither had recommended such action. Neither LaRocca nor Boston had previously been warned of their pending dismissal-except by way of Black's transmittal of Lampton's threat to "final" a couple of men because of the union activity. Shortly after taking this action Holman told Agent Walker that upon orders from Lampton over the telephone he had gotten rid of two "trouble- makers." 4 When dismissing the agents, Holman told Boston that he was being "finaled" because he had "back-dated" a new policy on his "lapse sheet." When LaRocca demanded a reason for his summary discharge, Holman told him it was because he had turned in only 60 percent of his collections that week, and apparently s The last quotation is from the credible testimony of Agent Boston. For reasons set forth above Lampton's denial is not credited. Lampton (senior) was not a witness, and no explanation for his absence was offered. 4 The finding is based upon Walker's credible testimony. Holman's denial is not credited. On cross-examination he said he could not recall any conversation with Walker. AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 541 was holding some back for the next week . LaRocca denied the accusation, asked for and was refused proof, and was then told by Holman that "he was sorry but that his instructions were from Louisville." 5 As a witness, Holman claimed that he told Boston that he was being dismissed "because of his record " and that during the discussion the question of back-dating came up. He did not testify as to what reason , if any, he gave LaRocca. As a witness , Lampton claimed that he instructed Holman to fire both Boston and LaRocca simply because of their "poor records." At the hearing , counsel for the Respondent at first claimed that Boston was discharged "because of two things": his poor work record and "the fact that he back-dated the date of last payment,"-"plus others," he added, which "would be developed." Shortly thereafter the same counsel declared: We are firing him because of his attitude towards his work because of his personal appearance , because of his failure to comply with the reasonable orders of his manager . . . he was not paying attention to his work during working hours . . . by refusing to have special help . taking off on business of his own . . . because of his work record . . . and because of back dating the date of last payment. As to LaRocca , the same counsel declared that while other of his prospective witnesses might have had "other reasons" in their minds , for purposes of cross- examination he would claim that this agent was dismissed because of his "work record with the company." Appraising first the possibility of merit in the claim of "poor work record" on the part of both Boston and LaRocca-this being the one claim which appears to possess at least the consistency of having been advanced at the hearing by both the Respondent's witnesses and its counsel . That this claim is in defiance of management 's own action , shortly before union activity and the discharges, is established as uncontradicted evidence . Akron Manager McDaniel offered Boston promotion to "special agent-a position of aiding and assisting agents in getting new business-in December of 1956 or January 1957, an offer which plainly would not have been made had Boston's own work record been "poor." And Lampton himself admitted that LaRocca was awarded both a watch and a silver bowl for his high production record in 1956. The Respondent's records establish that during the month of February-when the 2 were dismissed-both Boston and LaRocca were among the 7 agents (of 20 in the district ) who made "98 per cent collections"-a standard which Lampton made clear in bulletins to agents should be maintained . LaRocca topped the list-with better than 116 percent. The same records show that in other factors there were several agents retained who were of considerably lower standards. It is clear, and the Trial Examiner concludes and finds , that the Respondent's own records and the awards and offer of promotion amply refute the claim that "poor records" of LaRocca and Boston were the cause of their discharge. Nor is there more credible substance to the kespondent's claim that a reason for Boston's dismissal was his "back-dating" a policy lapse. The credible testi- mony of two former management representatives , Superintendents Black and Deagan, establishes beyond doubt that such back-dating was not an uncommon practice among the agents, and that no agent had ever been discharged for this reason . Their testimony also establishes that Manager McDaniel had long been aware of the practice . 6 There is no evidence that Boston or any other agent was ever warned that this practice would be cause for discharge . Under the fore- going circumstances the Trial Examiner is convinced and finds that there is no merit to the Respondent's claim that Boston was discharged for this reason. And no evidence at all was adduced to support most of the extravagant reasons for this agent's dismissal which the Respondent 's counsel said would be proven. The findings as to what Holman actually told the two agents is based upon their own credible testimony. 9 McDaniel 's denial that he had been informed of back-dating by both Black and Deagan is not credited . The record clearly demonstrates that McDaniel 's concern as a witness was not to give truthful answers, but to trim them in the direction indicated by leading questions . He even denied matters already admitted by Lampton . Records produced by the Respondent show that such back -dating had previously been made--records which were under McDaniel 's charge . The manager was thus placed in the position of either being unaware of what when on in his office, or of purposely denying knowledge as a witness. The Trial Examiner believes the latter to be the case. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Conclusions First: as to the Respondent's claim in one part of its answer that Boston and LaRocca were not "employees" within the meaning of the Act. The claim is negated elsewhere in the same answer by the allegation that both were discharged or "finaled" for cause, and is wholly abandoned in the Respondent's brief. The evidence submitted by the Respondent itself establishes beyond question that that Akron agents were and are employees within the meaning of the Act. (United In- surance Co., 108 NLRB 845.) Second: as to the claim in the answer that Superintendent Black was not a supervisor within the meaning of the Act. The Respondent offered no affirmative proof to support this claim, and it is obviously abandoned in its brief, since its counsel refers both to Black and Deagan as "supervisory personnel." The record is replete with evidence to support the conclusion, here made, that Black and other superintendents were and are supervisors within the meaning of the Act. (Home Beneficial Life Insurance Co., 98 NLRB 1054.) Third: as to the allegations of restraint and coercion. Beginning with the Louisville meeting in mid-February 1957, and upon the basis of the foregoing findings of fact, the Trial Examiner concludes and finds that the Respondent inter- fered with, restrained and coerced its employees in the exercise of rights guaran- .teed by Section 7 of the Act, by the following conduct: (1) by the means and methods heretofore described informing the agents that unless they withdrew from the Union their grievances could not be remedied, thus thinly veiling promises of benefit if they abandoned their rights under the Act; (2) threatening agents with withdrawal of special help; (3) causing to be conducted a poll among the agents in an effort to obtain their withdrawal from the Union; and (4) causing by cir- culation and implied promises of benefit the agents to sign a notice of withdrawal from the Union. (See, for example, Richards and Associates, 110 NLRB at 141; and United Biscuit Company of America, 101 NLRB at 1568.) Fourth: as to the discharges of Boston and LaRocca. It has been found that there is no merit to the Respondent's claims as to its reasons for discharging these two agents. The Trial Examiner concludes and finds that, contrary to the Re- spondent's contentions, both agents, known to be union adherents, were actually discharged in order to discourage further attempts to organize the Akron office. This conclusion rests upon the following: (1) the undisputed fact that Boston was the leader of the organization, having made arrangements for the first meeting with the union organizer; (2) the credible testimony of Superintendents Black and Deagan that Lampton told his gathering of supervisors that "a couple" of discharges would be made; (3) the admission by Manager McDaniel that all other dismissals except those of Boston and LaRocca had been made by him; (4) the fact that neither Black nor Deagan were consulted about their dismissals, contrary to custom; and (5) the fact established by the credible testimony of former Agent Robert E. Walker that shortly after the dismissals of the two agents he was told by Holman that he had gotten rid "of the troublemakers" upon orders given him by Lampton over the telephone.? Finally, it is concluded and found that by thus discriminatorily, and to dis- courage union membership, discharging Boston and LaRocca, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guar- anteed by 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 described 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 7 The Trial Examiner can place no reliance upon Holman's testimony. At first, in reply to a leading question, he denied having told Walker that he had gotten rid of the "troublemakers" or that he had received instructions to fire Boston and LaRocca from Lampton. His later testimony establishes that he did, In fact, receive such instructions, and on cross-examination he admitted he could not recall whether or not he had ever had .any conversation with Walker concerning the discharges. LAUNDRY OWNERS ASSOCIATION OF GREATER CINCINNATI 543 It has been found that the Respondent discriminatorily , and to discourage union activity and membership , discharged employees Boston and LaRocca. The Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions , without loss of seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered by payment to each of them of a sum of money he would normally have earned from the date of the discrimination against him to the date of the Respondent's offer of reinstatement , less his net earnings during said period, and in a manner consistent with Board policy as set out in F. W. Woolworth Com- pany, 90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440. It will further be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts due as back pay. Since the violations of the Act which the Respondent has committed are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is reasonably to be anticipated from its past conduct, the preventive purposes of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Insurance Agents' International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of George Boston and Frank P. LaRocca, thereby discouraging membership in, and activity on behalf of, the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of 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(a)(1) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Laundry Owners Association of Greater Cincinnati and AFL- CIO Laundry and Dry Cleaning International Union, Peti- tioner. Case No. 9-RC-3499. April 1, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Harry David Camp, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Fan- ning]. 1 The Intervenor , Laundry, Dry Cleaning and Dye House Workers International Union, Local 248, was permitted to intervene on the basis of its contractual interest. 123 NLRB No. 77.