General Adjustment Bureau, Inc.

GENERAL ADJUSTMENT BUREAU, INC. 723 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT unlawfully lock out any of our employees or in any other 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 International Union of Operating Engineers, Local No. 1, AFL-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, or to refrain from any and all of such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT refuse to bargain collectively with the above-named labor organization as the exclusive representative of all the employees in the unit which has been found to be appropriate with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. WE WILL make whole all the employees whom we unlawfully locked out of our Pueblo, Colorado, plant from February 23, 1962, until April 9, 1962, for any loss of pay suffered by them as a result of our discrimination against them, together with interest at the rate of 6 percent per annum. All our employees are free to become or remain 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 amended Act. 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 organization. AMERICAN STORES PACKING CO., ACME MARKETS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 609 Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, 80202, Telephone No. Keystone 4-4151, Extension 513, if they have any question concerning this notice or compliance with its provisions. General Adjustment Bureau, Inc. and Insurance Workers Inter- national Union, AFL-CIO. Case No. 6-CA-2507. May 23, 1963 DECISION AND ORDER On January 10, 1963, Trial Examiner Rosanna A. Blake issued her 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the 142 NLRB No. 85. 712-548-64-vol. 142-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report, and a supporting brief.' The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' I The Respondent's request for oral argument is hereby denied as the record, the excep- tions, and the briefs adequately present the issues and positions of the parties. 2 For the reasons set forth in his dissent in Isis Plumbing & Heating Co, 138 NLRB 716, Member Rodgers would not grant interest on the backpay award in this case. The notice is hereby amended to include the following statement immediately below the signature line at the bottom of the notice: NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Insurance Workers International Union, AFL-CIO (herein called the Union) on May 14, 1962, the General Counsel, through the Acting Regional Director for the Sixth Region, issued a complaint on July 20, 1962, alleging that General Adjustment Bureau, Inc. (usually referred to herein as the Bureau), had engaged in conduct which violated Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act. In its answer, Respondent admitted certain allegations of the complaint, such as the commerce allegations, but denied the commission of any unfair labor practice. Thereafter, pursuant to due notice, a hearing was held before Trial Examiner Rosanna A. Blake at Pittsburgh, Pennsylvania, on September 5, 6, 7, and 8, 1962. All parties appeared and were represented by counsel and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to present oral argument. Having considered the entire record in the case, the oral argument by counsel for the General Counsel, the briefs filed by all parties, and from my observation of the witnesses while testifying, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF GENERAL ADJUSTMENT BUREAU AND THE LABOR ORGANIZATION INVOLVED General Adjustment Bureau, Inc., is a New York corporation with its offices in various States of the United States, including several in Pittsburgh, Pennsylvania, and vicinity. It performs services involving the adjustment of fire, casualty, and other claims for various insurance companies which are directly engaged in inter- state commerce. During the 12 months prior to the issuance of the complaint, the Bureau received more than $500,000 for its services, of which over $50,000 repre- GENERAL ADJUSTMENT BUREAU, INC. 725 sented payments from companies doing business in more than one State. During the same period, Respondent furnished services in excess of $50,000 outside the State of New York and furnished services in excess of $50,000 outside the Common- wealth of Pennsylvania wherein its offices in Pittsburgh and vicinity are located. Upon the foregoing facts, Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent also admits, and I find, that Insurance Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICE A. The issue The issue in this case is whether a preponderance of the evidence supports the allegations of the complaint that Larry Lefkowitz was "constructively discharged" by Respondent because of his union activity and because he testified in two Board proceedings. Respondent contends that Lefkowitz resigned voluntarily. B. Introduction At the outset of the hearing, counsel for the General Counsel asked the Trial Examiner to take official notice of the record in an earlier unfair labor practice proceeding (Case No. 6-CA-2285) in which the same parties were involved and were represented, primarily, by the same counsel. The issues in that case were whether the Bureau engaged in conduct which violated Section 8(a)(1) of the Act and violated Section 8(a) (3), (4), and (1) of the Act by discharging employee Bradley. Counsel for Respondent opposed the request and stated that Respondent would not contest the following facts: (1) Respondent knew that Lefkowitz was an "insti- gator" of the union campaign and was extremely active on the Union's behalf; (2) Lefkowitz testified "avidly" in support of the Union's position in the representa- tion case (Case No. 6-RC-2831) and in support of the case of the General Counsel in the unfair labor practice proceeding; (3) after the two cases were concluded, certain management representatives asked other management representatives, "When are we going to get rid of Larry Lefkowitz?" (4) if Management Representatives Searles and Critton had possessed the authority to discharge Larry Lefkowitz (which they did not), they would have done so on November 17, 1961, after Management Representative Searles examined Supervisor Mason's report (dated November 15, 1961) on Lefkowitz' files and after Searles had himself examined the files on or about November 15 and 16, 1961. Counsel also noted that the Trial Examiner in the prior case found that Respond- ent had engaged in conduct which violated Section 8(a)(1), (3), and (4) of the Act, adding that Respondent had thereafter complied with the order recommended by the Trial Examiner, including the reinstatement of Bradley with backpay. At the close of counsel's statement, counsel for the General Counsel stated that he believed it to be his duty to attempt to show something more, namely that there was "some union animus on the part of the Respondent." Although the Trial Examiner stated that in her view it would be wiser to have any evidence which she was asked to consider introduced de novo, the parties thereafter agreed that "for the purpose of this proceeding only, the transcript of evidence taken in the prior hearing, along with any exhibits introduced at the hearing, will be incorporated into the record of this proceeding in exactly the same manner as if the testimony had been taken in the instant proceeding." It was also agreed that the earlier Inter- mediate Report would be made a part of the record in the instant proceeding and that the Trial Examiner in the instant case is "free to make whatever findings of fact and conclusions of law she deems proper from the transcript [in the prior case], be they the same or different from those arrived at in the [prior] intermediate report." I The Trial Examiner has read the Intermediate Report issued in the prior case but has not read the testimony nor examined the exhibits. Her decision not to read the record in that case was based in part on the fact that the Intermediate Report disclosed numerous conflicts in the evidence which she might be unable to resolve properly without having observed the demeanor of the witnesses while testifying. However, it is based primarily on her opinion that the testimony of the witnesses and the exhibits introduced in the instant hearing are sufficient to enable her to reach 1 The Trial Examiner does not understand that the above agreement constituted a with- drawal of the "concessions " previously made by Respondent's counsel . In any event, Respondent's counsel would certainly not "concede," under any circumstances , facts which were not true. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a decision. Accordingly, the findings of fact and conclusions of law set forth below are based entirely upon the testimony and exhibits introduced in the instant proceeding. C. Lefkowitz' work, his union activity, and his resignation 1. The nature and quality of Lefkowitz' work Lefkowitz began working for the Bureau in April 1958. He was an adjuster, primarily of casualty claims, and during the relevant period was assigned to the Bureau's Greentree branch in Pittsburgh.3 The Bureau is owned by a number of insurance companies and investigates and adjusts claims against policyholders of these and numerous other insurance com- panies. Apparently some of the adjusters handle fire claims primarily while others, including Lefkowitz, handle casualty claims. According to Regional Manager Eblin, routine claims are usually handled by the insurance company's own adjusters which means that the claims referred to the Bureau are "complicated, difficult to handle and [require ] a great deal of investigation." When a claim is assigned to an adjuster, he first checks the insurance policy to determine whether it covers the type of loss claimed. He then investigates the in- cident out of which the claim arises. His investigation includes, inter alia, inter- viewing the insured, the claimant, and witnesses , and the obtaining of copies of police and medical reports. He submits reports to the insurance company, including a final report in which he sets forth the facts disclosed by his investigation, the result of his efforts to adjust the claim , and his recommendations with respect to the action which the insurance company should take. Manager Eblin testified that throughout Lefkowitz' term of employment, his "production . was on an average with others handling like types of claims, if not a little higher." In either 1960 or 1961, Lefkowitz was the highest producer in dollar volume income among the Greentree casualty adjusters. Although he op- erated at a loss in 1961 insofar as "a profit for individual production" was concerned, so did all of the other casualty adjusters except one. His number of cases handled was "on the average with everybody else, if not a little more." In 1961, Eblin sug- gested to Casualty Supervisor Mason that Lefkowitz be given a "special" assignment which meant that he had 1 ,000 claimants to contact . Lefkowitz was given the assignment. Based on his personal observation , Eblin stated that in his opinion Lefkowitz "proceeded with the proper know-how in his investigating work. His reports were factual. He proceeded with better than the average ability for a man with his years of experience in adjusting work." It was also Eblin's opinion that Lefkowitz was "the type of individual that given an assignment , he attempts to fulfill it to the best of his ability. I don't think he needed watching." At no time did Eblin sug- gest to his superiors in New York that Lefkowitz was an "undesirable " employee and one "worthy of discharge." In May 1961, and again in September 1961, Casualty Supervisor Mason prepared reports on Lefkowitz . Although both were critical of Lefkowitz in some respects (chiefly his attitude ), the first characterized him as an "excellent student of claims and an adjuster of above average ability." According to the September report, Lefkowitz had "demonstrated that he is a good student of claims" and had "demon- strated exceptional ability in the investigation and settlement of difficult claims." The September report also stated that there was "little complaint" concerning Lefkowitz' production and that "there have been no major complaints in the last few months concerning his investigation or the contents of his reports." Mason's reports, both of which concluded with the suggestion that Lefkowitz might prove more satis- factory in a one-man office, are discussed more fully infra. 2 Unless otherwise noted, the findings in this section are based on the testimony of Lefkowitz which I credit generally. I was impressed by his demeanor while testifying and am convinced that he was a truthful witness Moreover, there are comparatively few conflicts between his testimony and that of Respondent's witnesses All credibility determi- nations made in this report are based in part upon my observation of the demeanor of the witnesses on the stand. 3In the spring of 1961, the Bureau had three branch offices in or near Pittsburgh, another at New Castle, Pennsylvania, and another at Washington, Pennsylvania. The five were designated collectively as region 12. At the time of the events here in issue, Clark A Eblin was regional manager and Walter H. Mason, Ji, was regional casualty supervisor Both had their offices at Greentrep GENERAL ADJUSTMENT BUREAU, INC. 727 2. Lefkowitz' union activity and his work assignment In February 1961, Lefkowitz and Earl K. Bradley instigated a campaign to or- ganize the Bureau's approximately 26 adjusters in region 12. The Union filed its representation petition in March and Lefkowitz testified on its behalf at the hearing on the petition which was held on April 25.4 For some time prior to June, Lefkowitz had been assigned a territory which will be referred to as Allegheny County.5 On or about June 1, Bradley was discharged and his work was transferred to James Sullivan who had been handling casualty claims in what will be referred to as Washington County.6 In early June, Casualty Supervisor Mason assigned the Washington County casualty work to Lefkowitz which meant that he would be working two territories. The assignment included not only the handling of all new casualty cases in Washington County, which might number 10 or more a month, but the transfer to Lefkowitz of most, if not all, of Sullivan's 20 or more pending cases.? It is undisputed that Lefkowitz told Mason that it would be "almost impossible" for him to work both counties. He pointed out that the "casualty claims business" in Washington County is "extremely difficult," not only because of its geographical location but because of the "claims' consciousness of the area." Mason replied that Lefkowitz had to get the work done even if it meant that he had to work nights and weekends. During this period, Supervisor Mason reported to Eblin that Lefkowitz had talked to him about the Washington County assignment. Among other things, Mason told Eblin that Lefkowitz had stated that he would resign if he had to work the Wash- ington County area. Eblin told Mason to give the area to Lefkowitz "anyway," adding, "Let's see if he will resign." 8 In early June, Lefkowitz spoke directly to Regional Manager Eblin about his new assignment. Lefkowitz reminded Eblin that the Sullivan files were new to him and that some of them were quite detailed .9 Lefkowitz also pointed out that he had to divide his time between the two territories and that he could not give proper attention to all of his files. Eblin told Lefkowitz to do the best job he knew how. According to Eblin's testimony (which I credit), he was aware that Lefkowitz was "pretty busy servicing" Allegheny County.10 Eblin also testified that at the ' Unless otherwise indicated, all dates are in 1961 1 Lefkowitz' territory was in fact only a portion of the county 8 The Washington County territory also includes Fayette County and other counties 7 The above finding is based on the credited testimony of Lefkowitz and Regional Manager Eblin I do not credit the testimony of Branch Manager McCoy that, on his instructions, some of Sullivan's cases were transferred to Mason and others to adjusters Garshak and Cordisco At the time of the assignment McCoy had just become branch manager, having previously been in the Bureau's Erie office Moreover, casualty assign- ments were made by Regional Casualty Supervisor Mason, not by McCoy, who was the manager of only one of the five branches in the region. Furthermore, it is undisputed that casualty claims, at least, were assigned by territories to avoid duplication of travel time and costs In any event, McCoy conceded at one point that "substantially" all new cases in the Washington County territory were assigned to Lefkowitz 8 The findings in the above paragraph are based upon the undisputed testimony of Eblin which I credit Eblin's testimony concerning what Mason reported to him was admitted over Respondent's vigorous objection It was admitted not to prove the truth of Mason's statement to Eblin but to explain the background of Eblin's instructions to Mason. Mason, who had left the Bureau at the time of the hearing, was called by Respondent only for the purpose of identifying a document He was later called by counsel for the General Counsel but was not cross-examined by counsel for Respondent. The record discloses that Mason furnished Respondent's counsel a copy of an affidavit which Mason gave an agent of the Board and had talked with Respondent's counsel prior to the hearing 8 Lefkowitz' testimony that all of Sullivan's files were delinquent and in very bad condi- tion is undenied. "At the time of the hearing, Eblin had left the Bureau and was operating a competing business Kenneth Critton, a bureau official whose office is in New York, testified that he talked to Eblin on or about May 1, 1962, in connection with Eblin's resignation. Accord- ing to Critton, whose testimony I credit in this respect, Eblin requested that his salary continue for a period after his resignation and indicated that if it did not, "there may be reprisals." Although Critton's testimony and certain letters introduced by Respondent suggest that there was some unpleasantness at the time of Eblin's resignation, it does not follow that he would or did testify falsely under oath. That he did not do so is evidenced by the fact that even those portions of his testimony most damaging to Respondent, such as his statements to Mason , are undenled. 7728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time Lefkowitz was assigned Washington County, his Allegheny County "investiga- tion work, field work, contact work was current" but that he was "delinquent in some files in reporting." 11 In mid-summer 1961, Lefkowitz, Supervisor Mason, and Branch Manager McCoy had a conference at which McCoy asked Lefkowitz why the latter's files were "be- coming delinquent," that is, why he was not completing his reports on time. Lefkowitz explained the difficulty of handling both counties but Mason said it was something that had to be done because of a shortage of personnel. Mason also repeated his statement that Lefkowitz had to get the work done even if he had to work weekends to do so. Sometime in September, Lefkowitz was relieved of the Washington County work but it was reassigned to him about 30 days later. According to his undisputed testi- mony, many of the files had had no work done on them since they were taken from him the previous month and, as a result, were more delinquent than ever. Also according to Lefkowitz' undisputed testimony, in the 30 days in which he had no Washington County work, he was able to "catch up" on his Allegheny County work, to "perform some needed investigation and to get out some reports." 3. The events leading up to and following Lefkowitz' resignation On November 15, Manager Eblin told Lefkowitz that Stanwood R. Searles, eastern department manager of the Bureau's casualty division, and Kenneth G. Critton, one of the department's executive managers, were coming from New York to review the casualty operation and that Lefkowitz was to make himself available to them on November 17 12 Searles came to Pittsburgh, talked to Supervisor Mason, Regional Manager Eblin, and Branch Manager McCoy, and reviewed Lefkowitz' files. Searles re- ported his conclusions to Lefkowitz at a meeting on the morning of November 17. Also present were Executive Manager Critton and Supervisor Mason. Searles told Lefkowitz that he had examined Lefkowitz' files and that his con- clusions were "very unfavorable" and also referred to complaints which had been made against Lefkowitz by clients of the Bureau. Searles informed Lefkowitz that his work was "far below the standard which [the Bureau] could live with or accept," that he had "outlived his usefulness" with the Bureau, and that he would have to make a report to General Manager Leach "in the same tone" When Lefkowitz commented that such a report "might be tantamount to termination," Searles replied that he did not have authority to discharge. As Mason expressed it at the hearing, Searles told Lefkowitz that he could be of no further service to the Bureau and that when Lefkowitz remarked that the "die was cast," Searles told him, "You can draw your own conclusions." 13 Lefkowitz asked Searles to be more specific about his criticisms but Searles said that he "didn't intend to be more specific." Lefkowitz also explained to Searles that he was assigned two territories, that the second territory involved considerable travel, and that the files were lengthy. Lefkowitz also told Searles that he felt that the state of his files was due to the "unusual situation imposed on [him] by the Bureau," namely his additional caseload. Lefkowitz said that he had reported to Regional Manager Eblin that "the quality of his work was suffering owing to this additional work .. ." Searles commented that Lefkowitz might be with the Bureau after Searles was gone but that he frankly doubted it. 11 Both Lefkowitz and Eblin testified without denial that at times the typing of reports was delayed as much as 3 weeks. The record, however , does not indicate whether or not there was a time lag in June 1961. 13 Region 12 is included in the Bureau 's eastern department which covers 13 States and has approximately 100 branches. Earl F. Leach is general manager of the eastern depart- ment and also has his office in New York. "The above findings are based on the testimony of Lefkowitz, Searles, and Mason which I credit in these respects . Lefkowitz testified that Searles told him he would recommend that Lefkowitz be asked for his resignation or, in the alternative , that be be dismissed. I am convinced that Lefkowitz believed that he was quoting Searles accurately and it may well be that he was in fact doing so. Indeed , when Searles was asked if he told Lefkowltz that he would recommend his termination , Searles answered , "Not to the best of my memory, I did not." However, Lefkowitz may have substituted , unknowingly, his bona fide interpretation of what was said for what was actually said. Under these circum- stances , I do not find that Searles used the conclusionary words attributed to him by Lefkowitz. GENERAL ADJUSTMENT BUREAU, INC. 729 Later that day, Lefkowitz called Maynard Whitelaw, Respondent's secretary and personnel manager, in New York. Lefkowitz told Whitelaw what Searles had said and stated that as a result he "saw no alternative but to resign and protect [his] employment record." Whitelaw asked if Lefkowitz' files were in bad condition and Lefkowitz replied that he sup- posed they were by "ordinary" standards but not if the conditions under which he had been working were taken into consideration. In the course of the conversation, Lefkowitz said he would resign, effective March 1, 1962, "rather than be terminated." 14 Whitelaw asked Lefkowitz if he thought that he could do better work some place other than Pittsburgh but Lefkowitz preferred to remain in the area. On November 20, Lefkowitz wrote Whitelaw as follows: In keeping with our telephone conversation of November 17, 1961, I hereby tender my resignation, to be effective March 1, 1962.15 In the event of any Bureau exigency, I would willingly extend this for a period not to exceed thirty days (March 31, 1962). Lefkowitz received a call from Whitelaw on November 22. The main subject of their conversation was the date on which Lefkowitz had made his resignation effective-i.e., March 1. Whitelaw said that he had not heard a date mentioned in their November 17 conversation but that no harm had been done. Whitelaw explained that he did not have the authority to accept that date but that this did "not mean it might not be accepted." 16 On November 28, Executive Manager Critton met with Lefkowitz in Pittsburgh. McCoy, Mason, Critton, and Eblin were also present. The meeting was held in the conference room at the Greentree office and Lefkowitz was carrying his briefcase when he entered the room. Someone commented that Lefkowitz probably had a tape recorder in his briefcase. If so, Critton said, he would tear it apart and then tear Lefkowitz apart. Critton handed Lefkowitz a copy of the latter's letter to Whitelaw which bore the notation "Resignation accepted" followed by the signature of General Manager Leach. Critton then informed Lefkowitz that he was to turn in his keys to the company car immediately and that he was to do no more work. Lefkowitz protested that he understood that his resignation was not to be effective until March 1, 1962. Critton agreed that Lefkowitz' pay would continue to that date, but that he was to turn in his car keys. Lefkowitz commented that he did not think it "fair" to the Bureau to continue receiving pay without working. Critton replied, "Oh, you don't give a damn about the Bureau. You have shown that through your actions with Bradley." Lefkowitz did no work for the Bureau after his meeting with Critton and the others on November 28. 1a The above finding is based on the testimony of Lefkowitz which I credit. Although Whitelaw denied at the hearing that Lefkowitz mentioned the March date on November 17, when Whitelaw talked to Lefkowitz on November 22, he did not deny Lefkowltz' assertion that be had mentioned a March date but stated only that he "didn't hear" It and com- mented, "That can happen in a conversation." These statements are taken from the notes which Whitelaw's secretary, Mrs. Quinn, took of his side of the November 22 conversation and Whitelaw testified to the same effect at the hearing. According to the Quinn notes, which I believe are basically accurate, Whitelaw did not agree to the March date even during the second conversation although he did concede that his remarks did "not mean it might not be accepted," as it in fact was. Under these circumstances, I am convinced that Lefkowitz mistakenly, but honestly, believed at the time of the hearing that the March 1 date was accepted when it was first mentioned. I am equally sure that any other mistakes which he may have made when testifying concerning the two conversations were the result of poor memory. Since Lefkowitz apparently did not take notes on his conversations with Whitelaw, he was unable to refresh his recollection about what was said and when it was said as were Respondent's witnesses. 15 This statement certainly indicates that Lefkowitz suggested the March 1 date in his conversation with Whitelaw on November 17 and it refutes Respondent's claim in its brief that his letter "speaks of the tender of resignation as being made for the first time instead of confirming a tender previously made in the November 17 conversation " le I do not credit Wbitelaw's testimony that Lefkowitz told him that he had selected the March 1 date because it "fit in" with his political plans. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. A preponderance of the evidence establishes that Lefkowitz' resignation was caused by Respondent 1. Respondent's contention that Lefkowitz resigned because he had decided to be a candidate for the State Legislature At the hearing, Respondent contended that Lefkowitz resigned not because of anything it did or said but because he had decided to be a candidate in the Penn- sylvania primary the following May.17 Lefkowitz was in fact a candidate for the Democratic nomination for the State legislature in the May primary. In support of its contention, Respondent introduced a letter headed "Lefkowitz for Legislature Committee." In it, the committee supported the "candidacy" of Lefkowitz and solicited contributions to his campaign fund. The letter is undated but bears a handwritten notation "Displayed on bulletin board in Greentree abt Nov. 15th, '61." The writer of the notation was never identified. According to Lefkowitz, he had long been interested in politics and he admitted that at the time of the events here in issue he was considering being a candidate in the May primary He insisted, however, that he did not decide definitely to run until long after November 1961. The gist of his testimony was that the committee letter was a trial balloon and the response to it would be a fact to be considered when making up his mind. Although he was a candidate, he did not file for the nomination until March 12, 1962. It is undisputed that after the committee letter was posted on the bulletin board, Manager Eblin jokingly remarked that the Bureau had a political candidate in its midst and Lefkowitz replied, "Well, not yet. We will have to see what we shall see. We have to raise a little money . . . there are a lot of things to be considered." 18 Moreover, neither the testimony of Personnel Manager Whitelaw nor the Quinn notes concerning Whitelaw's statements during the latter's November 17 conversation with Lefkowitz contains any reference to politics In fact, Whitelaw testified that Lefkowitz told him: Well, I think the best thing I could do is to resign because of the fact Mr. Searles has told me that my files are not in good condition. In addition, it is clear from the Quinn notes of Whitelaw's statements to Lefkowitz on November 22 that it was Whitelaw-not Lefkowitz-who introduced the subject of politics into their conversation on November 22.19 It is thus apparent that Lefkowitz was seriously considering being a candidate in the May primary and accepted, without protest, activity on his behalf. I find, how- ever, that he had not made a definite decision. But even if I were to find-which I do not-that he had firmly decided to enter the primary, it does not follow that his decision was responsible, even in part, for his resignation. On the contrary, it is incredible that Lefkowitz' political plans, however definite, would have caused him to resign in November 1961. The primary was nearly 6 months off and Lefkowitz is a young married man with financial obligations and little income other than his salary. The district for which he would have been (and actually was) a candidate was comprised of only 17 At the hearing, Respondent appeared to take the position that it was sorry that Lefkowltz resigned and that it tried to interest him in another assignment 1s The only testimony adduced by Respondent concerning Lefkowitz' political plans before he resigned was that of Branch Manager McCoy Although McCoy first testified that sometime during warm weather in 1961, Lefkowitz told him he would be a candidate, almost immediately thereafter, McCoy testified: Q Did he tell you whether or not he was going to run A I cannot recall whether he told me specifically that he was going to run He was talking of entering that campaign Q. Did you have occasion to discuss Mr. Lefkowltz' political plans with him after that day's A Not that I recall 19 Whitelaw testified: A. . . . He [Lefkowltz] said, "Well, I sure hope you can do it soon [notify Lefko- witz concerning action on his resignation ]. I am anxious to be sure about my plans." I said, "By the way, what is this I hear about your-I think I was the one who used the words "political aspirations ," I said, "I understand that you are going into politics . . " He said "Well, the campaign won't start until about March 1 ." He mentioned that he was planning to enter politics .. . GENERAL ADJUSTMENT BUREAU, INC. 731 two wards in the city of Pittsburgh and there is no evidence that Lefkowitz planned to campaign full time for 6 months, even if he decided to become a candidate. On the contrary, the record shows that he was thinking in terms of a 2 to 3 weeks' campaign immediately preceding the primary. Thus, Lefkowitz testified without denial that in early November 1961, he asked Manager Eblin if the Bureau would have any objection if he should decide to cam- paign for the State legislature and, if he did become a candidate, if it would be possible for him to arrange to take his vacation the first 2 weeks in May and perhaps to take an additional week without pay. Eblin replied that he did not believe that Lefkowitz' candidacy would have "much bearing on [his] status with the Bureau" and that he believed that it could be arranged for Lefkowitz to take his vacation in May. Although Eblin made no firm promise, his statement that if Lefkowitz was a candidate he and Lefkowitz could "take about" his request for time off "when the time [came]," clearly implied that Eblin thought it probably could be arranged. In view of the foregoing facts, I find that the record does not support Respondent's contention that Lefkowitz resigned because he had decided to be a candidate in the May 1962 primary.20 Respondent's contention that the fact that Lefkowitz made his resignation effective March 1, 1962, proves that he resigned to enter politics is discussed infra. 2. A preponderance of the evidence establishes that Lefkowitz resigned because of the statements made to him by Searles Having determined that Lefkowitz did not resign because he had decided to be a candidate in the May primary, the question becomes, Why did he resign? Lefkowitz had been employed by the Bureau since 1958 and there is not a scintilla of probative evidence that he had ever considered resigning before his meeting with Searles on the morning of November 17. Searles admittedly told Lefkowitz at that meeting that his work was "far below the standard which [the Company] could live with or accept" and that he would so report to General Manager Leach. [Emphasis supplied.] Searles likewise admitted that Lefkowitz commented that such a report "might be tantamount to termination." Supervisor Mason quoted Searles as having told Lefkowitz that he could be of "no further service to the Bureau." When Lefkowitz commented that the "die was cast," Searles replied, "You can draw your own conclusions." Mason's testimony also reveals that Lefkowitz was "upset" by the meeting, that Mason told him "not to do anything rash" but to wait and see what happened in New York, adding "perhaps it wasn't as black as [Lefkowitz] guessed it was going to be." Although Mason "may" also have remarked that he "did not think" Lefkowitz would be "fired," his testimony discloses that at the close of the meeting Lefkowitz was convinced that he was going to be discharged. And Respondent conceded at the outset of the hearing that Searles and Critton would have discharged Lefkowitz on November 17 had they had the authority. Finally, as previously noted, Whitelaw testified that Lefkowitz told him that afternoon, Well, I think the best thing I could do is to resign . because of the fact Mr Searles has told me that my files are not in good condition In view of all of the foregoing facts, I find that Lefkowitz was in fact convinced that he was going to be discharged and that the reasons that would be given were that his files were in very poor condition and that complaints concerning him had been made by Bureau clients. In view of all of the circumstances, I further find that his belief was not only reasonable but fully justified, having been told that his useful- ness was at an end and to "draw" his "own conclusions" when he commented that the "die" had apparently "been cast." In reaching this conclusion, I am aware that neither Searles nor Critton had the authority to discharge Lefkowitz and that the latter knew that the final decision would be made by General Manager Leach in New York The fact remains, how- ever, that Searles was the "expert" who had been sent to Pittsburgh to examine Lefkowitz' work and to make a report to Manager Leach. Moreover, Leach has about 850 adjusters in 100 branches under his jurisdiction and it is obvious that he must rely primarily on the reports of his experts concerning their competence. 20I attach no significance to the fact that Lefkowitz told various people that he resigned to run for office As Lefkowitz explained, "I was job hunting and you don't tell a prospec- tive employer, I am afraid, that you are involved in union difficulty That isn't a very good recommendation for future employment 11 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although it was possible that Leach would disagree with Searles' conclusions, the probabilities were that he would agree with them and take action consistent there- with. In fact, Searles admitted that he would expect Leach to take action "as indi- cated" by the information furnished by him. In short, it was wholly reasonable for Lefkowitz to fear-as he clearly did-that this is what would happen. Since Lefkowitz is a young man who is interested in getting ahead in the world, he obviously would not want his record to include a discharge for gross incompetence and would try to avoid such a discharge. And both Whitelaw's testimony and the Quinn notes concerning Whitelaw's statements to Lefkowitz on the afternoon of November 17 indicate clearly that this was Lefkowitz' purpose in resigning 21 On the basis of the foregoing facts, I find that Lefkowitz resigned because of Searles' statements during their meeting on November 17 and that, therefore, Re- spondent caused his resignation. E. Respondent violated Section 8(a) (1), (3), and (4) of the Act by causing Lefkowitz to resign Although Respondent caused Lefkowitz to resign, if he did so to avoid being dis- charged for good cause, Respondent did not thereby violate the Act. On the other hand, it is not enough that some grounds for criticism existed if Lefkowitz' defi- ciencies were caused by a situation created by Respondent so that it would have apparently good cause for discharging him when its real reason was his union activity. See, for example, Putnam Tool Company, 127 NLRB 1111, 1122, enforced 290 F. 2d 663 (C.A. 6) in which the Board found that the Company devised a "technique" for providing ostensibly valid grounds for discharge, namely, the assignment of unfamiliar work followed by discharge for inability to perform. As stated above, Lefkowitz conceded that his files were not in good condition but claimed that this was caused by his heavy workload which made it impossible for him to keep his work up to Bureau standards. And it is the theory of the General Counsel that Respondent assigned Lefkowitz extra work and that when his work suffered as a result, caused him to resign by indicating that he would be discharged for unsatisfactory performance. It must now be determined whether a preponder- ance of the evidence supports each of the basic elements in the General Counsel's case. 1. The Mason reports concerning Lefkowitz In support of its contention that its criticisms of Lefkowitz were justified, Re- spondent introduced, inter alia, three reports on Lefkowitz which Supervisor Mason prepared at the request of Regional Manager Eblin. The first is dated May 19 and, as indicated supra, begins by praising Lefkowitz' ability as an adjuster. It then goes on to describe him as "somewhat head-strong, foreward in personality, unable to work under a heavy load and pressure" and possessed of a "faculty" for "agitating assureds, claimants, and agents in an un- favorable manner." The report also accused Lefkowitz of "shortcutting" investi- gations and asserts that his shortcomings had caused two companies to request that none of their claims be assigned to Lefkowitz. Another company was said to have indicated that it would prefer that he not handle its work. None of the three companies was named. The report also criticized Lefkowitz' attitude toward his superiors and accused him of being reluctant to accept help or criticism. The final paragraph of the report reads: In my opinion there is a possibility that Mr. Lefkowitz has outlived his use- fulness in the Pittsburgh office. He is ambitious and desirous to move ahead with having authority. It is possible that Mr. Lefkowitz might be a good ad- juster in a one man office or possibly in an office operating in metropolitan New York. His attitude, personality and indifference to procedure as well as his open remarks concerning personal views on the handling of claims are detrimental to this office. Mason's second report on Lefkowitz is dated September 22. As before, Mason began by commenting upon Lefkowitz' "exceptional ability in the investigation and settlement of difficult claims." He also stated that there had been no major com- plaints in the last few months about Lefkowitz' investigations or reports and that there was little complaint concerning his production. On the other hand, Mason u The Quinn notes quote Whitelaw as having said: If you would like to do that, we will review it and it will show on our records that we took no action toward bringing this termination about. There will be nothing on it to show anything else. GENERAL ADJUSTMENT BUREAU, I\N C. 733 commented on Lefkowitz' "aggressive personality" which, he said, caused constant trouble with clients (not named ) and resulted in requests from the Springfield In- surance Company and the Loyalty Group that he not work on their claims. He added, however, that assignments of business by "that company " had ceased. Ac- cording to the report , "Our main difficulty with Mr. Lefkowitz is his attitude par- ticular[ly] since January 1961." Among the matters specifically mentioned by Mason in this connection was Lefkowitz ' refusal to follow company procedures and orders, including the requirement that claimants be "contacted " immediately. In sum, Mason charged that Lefkowitz "feels that he is being overworked , under-paid and should have a voice in questioning management policies." The final paragraph of the report reads: To summarize, Mr. Lefkowitz is an able adjuster in comparison with the average adjuster in the Pittsburgh area. It is our suggestion that Mr. Lefkowitz be considered for transfer to an office that is in need of a single , experienced casualty adjuster and an office where the adjuster will have the challenge of developing casualty business . Certain areas serviced by the Bureau might well be able to use his services. At the hearing, Mason was asked the reason for his statement in the September report that Lefkowitz felt he should have a voice in management . Mason replied: The union was very active at that time and Mr . Lefkowitz was talking about it. Sometime in October, Executive Manager Critton asked Manager Eblin to observe Lefkowitz' work and "report anything that he was not doing properly." There- after, Eblin directed Mason to review Lefkowitz' files and, according to his un- disputed testimony , "instructed Mr. Mason to find something wrong with Mr. Lefkowitz' files." In a report dated November 15, Mason reviewed Lefkowitz' files. In it he listed and commented on 64 cases in which he had found something wrong-such as a delay in making the first contact with the claimant and in reply- ing to clients' requests for information. Although the Mason reports constituted an important part of Respondent 's case and although Mason was clearly not hostile toward Respondent , it did not question him about the contents of his reports. The first of the reports is dated May 19, which was 31/z weeks atter the hearing on the representation petition. The second is dated September 22, or 3 days be- fore the hearing in the unfair labor practice proceeding opened. Both reports were prepared at the specific direction of Eblin . Even more significantly, both emphasize Lefkowitz' "attitude" and the September report states that the "main difficulty" with Lefkowitz was his "attitude particularly since January ," a date only shortly before he and Bradley initiated the union activity among the Bureau's employees . And Mason admitted that his comment that Lefkowitz believed that he should have a "voice" in management referred to Lefkowitz' union activity. Finally, both reports close with the suggestion that Lefkowitz might be used satisfactorily in a "one man" office. Although transfer to a one-man office would scarcely correct Lefkowitz' (alleged ) tendency to be late in contacting clients and making reports and his (alleged ) tendency to irritate clients, it would certainly reduce or eliminate entirely his opportunity to initiate and support a union campaign. In view of these facts , I find that Mason's May and September reports indicate that the "main difficulty" with Lefkowitz, in Respondent's eyes, was that he was seeking to organize the adjusters and that Respondent was well aware that the "difficulty" would continue as long as Lefkowitz remained in region 12. The third report , which was submitted after Manager Eblin instructed Mason "to find something wrong" with Lefkowitz ' files, is discussed infra. 2. Searles' criticisms of Lefkowitz' files According to General Manager Leach , business in region 12 was steadily de- clining and the "barrage" of complaints concerning its operations was increasing in tempo. The complaints , Leach asserted , concerned Lefkowitz primarily if not exclusively. In early November, he discussed the situation with Executive Manager Critton and Casualty Manager Searles and plans were made for Searles and Critton to investigate the casualty situation in region 12 with particular attention to Lef- kowitz. Searles was informed that this was the region which was having "union difficulty" and that Lefkowitz was one of the leaders in the union movement. Searles and Critton arrived in the Greentree office on November 15. Searles told Regional Manager Eblin , Branch Manager McCoy , and Supervisor Mason that his purpose was to "analyze the casualty service rendered by Region 12," adding that he would like to review the files. Eblin replied that Mason had prepared a report '734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Lefkowitz' files but Eblin or one of the others commented that no other ad- juster's files had been analyzed Searles was given Mason's report and asked Mason to provide him with a good cross sample of Lefkowitz' files so that he [Searles] could make his own examina- tion. Thereafter, Searles reviewed "approximately 30" of Lefkowitz' files 22 According to Searles, when he examines a file, the first thing he determines is how soon, after being assigned to a case, the adjuster contacted the claimant, for failure to contact the claimant immediately is the "cardinal sin." He also deter- mines the depth or thoroughness of the investigation, the adjuster's attitude as reflected in his correspondence with the Bureau's clients, the promptness with which he answers inquires and makes his reports, and the adequacy of those reports. Searles said that he found that a "large percentage" of Lefkowitz' files were in "deplorable condition." In a "strong percentage" of cases, he went on, Lefkowitz had not contacted the claimant for 2 weeks or even longer after he received the as- signment. In addition, clients' requests for information were ignored, and Lefko- witz' letters to clients were frequently argumentative. Finally, Searles asserted that he found proof that two companies, Springfield Fire Marine and the Imperial Insurance Company, refused to let Lefkowitz handle their cases. As Respondent recognized at the hearing, the bona fides of Searles' criticism of Lefkowitz' files is material to this proceeding. And the only way in which counsel for the General Counsel could adequately test Searles' good faith was to examine the files reviewed by Searles and then challenge his conclusions by referring to the con- tents of the files. This was not possible, however, because Respondent produced only five files which were probably (although not certainly) among those listed by Mason and/or examined by Searles According to Searles, Branch Manager McCoy told him the week before the hearing that he [McCoy] had not been able to locate Lefkowitz' files and McCoy apparently had made a similar statement to Respondent's counsel. But McCoy's statements to Searles and Counsel are not evidence and, as noted infra, Respondent failed to produce other documentary evidence upon which its officials purportedly relied in evaluating Lefkowitz' value to the Bureau 23 Furthermore, Respondent did not offer either the notes which Searles testified he made during his examination of the files or the report he submitted to Leach. Under these circumstances, I am not persuaded that McCoy or any other Bureau official made a genuine effort to produce Lefkowitz' files. Moreover, Searles' testimony disclosed a number of facts which made the absence of the files particularly unfortunate. For example, Searles testified that six of the files he examined were not Lefkowitz' files. And since Searles did not examine all of the files on Mason's list or even all of those furnished by Mason, it is possible, as Searles admitted, that other files listed by Mason may have belonged to other adjusters. Furthermore, one of the five files Respondent produced at the hearing showed that the case was closed on May 2, 1961. Yet it appeared on Mason's list with the following comment: It appears that this claim is in litigation, but being held by the adjuster. It appears that there has been no follow through since April of 1961. [Emphasis supplied.] Still another of the files produced at the hearing and listed on Mason's report shows that the case was assigned to Lefkowitz on June 7, 1961, and that his first report was dated June 27. According to Searles, this was "not too bad, absolutely not. I wouldn't be critical of that." A second report was dated July 27 and a third report was dated August 8, 1961. Nevertheless Mason's list states that "Company requests for reports have been ignored." Notwithstanding the questions raised by the foregoing facts concerning the accu- racy of the Mason report (which was prepared by him pursuant to Eblin's instruc- tions to find something wrong), Searles testified that in a meeting on the morning of November 17 with Executive Manager Critton, Regional Manager Eblin, Branch Manager McCoy, and Supervisor Mason, he stated that his examination of the files disclosed that Mason's "findings were in order" and that he "would have to support "This was the number first testified to by Searles. He later indicated he had "30 or 35" files At another point, Searles stated he looked at "about 30 cases " 13 Compare also statements by Respondent's counsel, obviously based on representations by McCoy, that certain documents were "the copies that Mr. McCoy works with every day" with McCoy's testimony on cross-examination that the documents were prepared the week before the hearing. GENERAL ADJUSTMENT BUREAU, INC. 735 what [Mason] had reported." According to Eblin, Searles commented that "from Mr. Mason's report . and from information that he had gathered from other sources, where I don't know, that he felt that we should get rid of Mr. Lefkowitz." It will be recalled that Searles' major criticism of Lefkowitz' files was that they disclosed that he did not contact claimants promptly. However, Searles testified as follows on cross-examination: Q. First, as to these files . so far as I can see, there is nowhere on any of them . . . where the Bureau has provided a date or a space or some way for the adjuster to note when he first contacts the plaintiff. Is there a way for him to note that? A. No, not from the file. That is included in the report, whether the plaintiff or the doctor was contacted. Q. Was this a matter of a requirement of the Bureau . ? A. Yes, because on our examination files we have a form to fill in which indicates the date the case was assigned, the first date the plaintiff was contacted, and as a consequence, it is a part of the format that this information be included. Q. Well, in other words, if a case had not progressed to a report at the time of your looking at this file, you couldn't possibly tell whether the plaintiff had been contacted or not, is that correct? A That is very correct. Q. There could have been cases, then, where [Lefkowitz] had contacted the plaintiff promptly but had not yet written a report. A That is true. Q. Did you by asking Mr. Mason, or in any other way, endeavor to find out whether any of these cases were just cases as I have described? A. Not specifically. Moreover, if Searles had ample objective proof of the poor condition of Lefkowitz' files, it is difficult to understand why he admittedly refused to cite examples when requested to do so by Lefkowitz. Thus, according to Searles himself, he told Lefkowitz that he "didn't feel that that was the time to go into specific cases." When Lefkowitz asked about the companies which had made complaints concerning his work, Searles admittedly told him: I was not in a position to go into individual cases and that he was aware of the . names of the companies . that were involved, which I preferred not to divulge on that occasion. [Emphasis supplied.] His reason for taking this position, Searles said, was that he "didn't care to get into any argument of that nature which would develop on a case to case basis." Moreover, Searles' testimony discloses that he was not aware of many material facts when he reached his conclusions concerning the condition of Lefkowitz' files. For example, he was not aware that Lefkowitz had been assigned an additional territory for the past several months although he conceded that extra territory would affect an adjuster's ability to "perform properly." Searles also admitted that it is often especially difficult for an adjuster to handle a case which is seriously delinquent at the time it is assigned to him. However, Searles was "not prepared to say" the percentage of the cases he reviewed which had initially been assigned to someone other than Lefkowitz It is also clear that Searles made no effort to determine why certain of Lefkowitz' reports were "late" although it could have been because of delay in typing or because he was working on a special assignment.24 And he frankly admitted that he made no distinction between cases which were relatively difficult and those which were relatively easy. Although Searles testified that Lefkowitz' reports lacked "depth," it is not clear how he could determine the adequacy of the reports from the four corners of the file. Be that as it may, the absence of the files makes it impossible to determine whether or not his conclusion was justified. In any event, Searles admitted that the quality of Lefkowitz' reports was "pretty close" to average for the Pittsburgh office. In evaluating Searles' testimony, it is also necessary to bear in mind that he was well aware before he left New York that Lefkowitz was persona non grata in the eyes of Searles' superior, Leach. Thus he had been directed by Leach "to pay partic- ular attention to [Lefkowitz'] operation, that obviously there must be something about this or these things wouldn't be filtering back of improper handling of cases, 24 It is undisputed that reports bear the date on which they are typed, not the date on which they are prepared , and that at times reports were not typed for 2 or 3 weeks after they were prepared. 736 DECISIONS OP NATIONAL LABOR RELATIONS BOARD dissatisfaction from our patrons." And when commenting upon the fact that Critton, on his return to New York after the November 15 to 17 visit to Pittsburgh , reported only on Lefkowitz, Leach testified that- this was also in keeping with the instructions I had given him, inasmuch as it seemed to me that this should be the point at which they should first direct their attention . No need of researching the whole field if this is the corner that is in trouble, let's get that cleared up and everything else will go along 25 In view of the foregoing facts, I am unable to accept at face value Searles' testi- mony that Lefkowitz' files were in a "deplorable " condition. Although his files were not in good condition, it does not follow that they were in poor condition if evaluated in the light of the fact that since June (except for 1 month ) Lefkowitz had been assigned the work of another adjuster in addition to his own. Obviously an adjuster who is carrying a double caseload can spend less time on each claim than he could if he was assigned a normal caseload , even if he worked nights and weekends . Under these circumstances, the adjuster would have to choose between spending less time than he should on each claim and spending the required time on half of them and little or no time on the others. If he chose the first alter- ,native, all of his cases would show neglect ; if he chose the second, many would show little or no work. Apparently, Lefkowitz chose the first alternative and tried to work on all of his files with the result that few of them could be said to be in good shape if by that is meant the condition they should have been in if he had been assigned -a normal number of cases. And this clearly was the "standard" used by Searles in evaluating Lefkowitz' files for he admitted that he was unaware of Lefkowitz' -double assignment. In my opinion, one of the most significant facts in the record is the failure of management to inform Searles of Lefkowitz ' double caseload. Needless to say, in the absence of such information Searles could not make a "fair " evaluation of Lefkowitz' work. No explanation was given for the withholding of material in- formation from Searles but the most obvious is that management wanted to assure a critical report by him . This and other facts previously mentioned convince me, and I find . that Respondent did not seek or obtain an objective evaluation of Lefkowitz' work by Searles but that its purpose was the same one which Regional Manager Eblin disclosed when he instructed Supervisor Mason to review Lefkowitz' files and to "find something wrong" with them. 3. The alleged complaints by insurance companies As indicated supra, one of the matters mentioned by Searles in his meeting with Lefkowitz on November 17 was complaints by Bureau clients concerning Lefkowitz. Searles did not name them at the meeting but testified that he had found letters from Springfield Fire Marine and Imperial Insurance Company "both patrons of ours in [ the Pittsburgh] area." It will also be recalled that Mason's May report stated that two companies- which he did not name-had requested that Lefkowitz not work on their claims, and another-also unnamed-had expressed a desire that he not handle its work. The first two companies were identified in Mason's September report as the Spring- field Insurance Company and the Loyalty Group . He added, however, that "assign- ments from that Company have now ceased." McCoy referred to the Springfield complaint in his testimony but explained that he did not know the details because it occurred before he came to Pittsburgh which was in May 1961 . After testifying that he could not recall any other complaints, he was asked by Respondent's counsel if Mason had called his attention to a com- plaint by the Pearl Assurance Company , Ltd. in October or November 1961. McCoy answered, "If I recall, there was a Pearl Insurance Company that registered a complaint. I can't tell you right now what the nature of it was." When asked when it occurred , McCoy replied, "It would strike me as in the fall period . This is the only reference to a complaint by Pearl and even if one was made, which I seriously doubt, it cannot have been very serious if the branch manager would recall so little about it. w Under these circumstances , it would require an extraordinary degree of objectivity on Searles' part to enable him to make an objective appraisal of Lefkowitz' work. I am of the opinion , therefore, that he examined Lefkowitz ' files with a hypercritical eye and that his conclusions were influenced by the instructions he had received and the comments he had heard before he even looked at the files GENERAL ADJUSTMENT BUREAU, INC. 737 Critton referred to complaints from Springfield (which in fact occurred many months earlier) and the Atlantic Companies. The latter, Critton said, wrote Searles in "July or August of 1961, perhaps." Counsel for Respondent stated on the record that he was offering opposing counsel "for the purpose of aiding in his examination, the correspondence with the Atlantic companies." The record discloses, however, that the letter from the Atlantic companies was dated December 6, 1961, i.e., after Lefkowitz was gone, that it did not refer to Lefkowitz but did refer in critical terms to another adjuster and to Supervisor Mason. Leach asserted that there were "several" companies which had instructed the Bureau not to permit Lefkowitz to handle their cases and named the Springfield Monarch Group, the American Fore Loyalty Group, and the Centennial. The latter, however, is one of the Atlantic companies whose letter was not received until after Lefkowitz was gone and did not refer to Lefkowitz. When asked when the other complaints occurred, Leach replied that while Lefkowitz' files were being examined, "letters perhaps were being received which came to [his] attention before the 27th of November." When the Trial Examiner asked if copies of the letters were available, Leach appeared annoyed and replied ". . . I haven't committed file numbers to memory. I mean, I am not attempting to collect all of this stuff. I mean, there are people on the scene . . . [who] need this to work with." The Trial Examiner then asked if the letters could be obtained and Leach answered, "An effort could be made, I suppose." No letter or memorandum from any company was produced despite the Trial Examiner's further observation that they would be helpful.26 In view of the foregoing facts, I am convinced that two or perhaps three insurance companies had made serious complaints about Lefkowitz. But I am equally con- vinced and find that these occurred prior to Mason's first report in May and that no serious complaints were received thereafter. 4. Analysis and concluding findings The discharge of Bradley about June 1 eliminated one of the two leaders of the union campaign.27 But as Respondent well knew, as long as Lefkowitz re- mained, the possibility of union representation continued. Searles admitted that the Company was not in favor of union representation and Mason admitted that one of his criticisms of Lefkowitz in his September report referred to the latter's union activity. In the same report, Mason stated that the "main difficulty" with Lefkowitz was his "attitude particularly since January" and I have found that this and Mason's other comments on Lefkowitz' "attitude" and his suggestion that Lefkowitz might be satisfactory in a one-man office were like- wise based upon Lefkowitz' union activity.28 Furthermore, as found supra, Respondent did not make an objective evaluation of Lefkowitz' files but, instead, examined them with the preconceived purpose of finding "something wrong." I am also convinced that Respondent created, or at least continued, a situation which it well know would, in due course, enable it to charge that Lefkowitz' work was unsatisfactory. Thus, when Bradley was discharged on June 1, his territory was transferred to Sullivan and Sullivan's territory (including his pending cases) was assigned to Lefkowitz. Since Respondent does not contend that either Lefkowitz or Sullivan had been carrying less than a full caseload, this meant that Lefkowitz was required to do the work of two full-time employees-himself and Sullivan. When Lefkowitz protested that he could not do both territories, he was told that he had to get the work done even if it meant that he had to work nights and weekends 29 And when Supervisor Mason reported to Regional Manager Eblin that Lefkowitz had z, Searles testified that Mason had told him that he had received "complaint letters and . memos from companies." 27 This is equally true, as a practical matter, whether Bradley was discharged for cause or because of his union activity. 2B According to Searles, Mason told him that "Lefkowitz was his complete trouble, period " Since Respondent's own witnesses conceded that whatever Lefkowitz' deficiencies were, he was not the sole cause of region 12 's difficulties businesswise , I find that this too was a reference to Lefkowitz' sole leadership of the union campaign after the discharge of Bradley. 29 One result of the assignment was to reduce the amount of his own time which Lefkowitz could spend campaigning for the Union. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he would quit if given the extra territory , Ebltn directed Mason to assign it to him anyway, adding, "Let's see if he will resign." Concededly , an employer may find himself in a situation which makes it neces- sary for an employee to take over the work of another employee temporarily. But in Lefkowitz' case, the double assignment was continued indefinitely although Re- spondent itself does not contend that it normally assigned an adjuster two territories. Moreover, if a valid reason existed for its departure from its customary practice, it was not disclosed at the hearing30 Furthermore, Respondent thereafter criticized Lefkowitz severely for failing to do his work promptly and thoroughly although Searles himself admitted that the assignment of extra territory would affect an ad- juster's ability to "perform properly." I am persuaded by the foregoing facts-and find-that Respondent's purpose in assigning Washington County to Lefkowitz originally or, at least, in continuing the assignment indefinitely was to create a situation which would provide it with an apparently valid reason for discharging him. Under the circumstances , it is wholly immaterial that Lefkowitz did not wait to be discharged but "jumped the gun" as Respondent's counsel expressed it in his opening statement. In its brief, Respondent argues that Lefkowitz' setting of March 1 as the effective date of his resignation proves that he resigned to enter politics. Respondent claims that March 1 was the date on which Lefkowitz had decided to begin his campaign for the State legislature and also argues that his setting of a date more than 3 months in advance is wholly inconsistant with his claim that he resigned in order to avoid discharge?i Admittedly, there is some force in what Respondent says. However, Respond- ent ignores two aspects of the March 1 date which, in my opinion, are wholly in- consistent with the significance given it by Respondent . The first is that Respond- ent accepted the March 1 date with relatively little protest . The second , and more significant, is that Respondent actually paid Lefkowitz until March 1 ( or through February) although it did not permit him to do any work after November 28. Respondent's only explanation for its action is that it decided that acceptance of Lefkowitz' resignation as tendered was "in the best interest of the company." As for the decision to relieve Lefkowitz of his duties nonetheless , Critton testified that the Company did not feel that he was handling the Bureau's business properly and "we would rather have him be removed from the office and his cases removed from him." [Emphasis supplied.] Respondent 's action is not only contrary to its general policy but is so contrary to normal business practice that in my opinion , the real significance of the March 1 date is to be found not in Lefkowitz' selection of it as the effective date of his resignation but in the Company's acceptance of it in the light of its concurrent decision not to permit him to continue to work. It is incredible that Respondent would pay Lefkowitz for not working if he had resigned to go into politics or be- cause of his disappointment at the Union 's defeat in the election , an explanation advanced for the first time in Respondent 's brief and one which is wholly without support in the record. It is even more incredible that Respondent could pay Lefkowitz for not working if he had resigned because of justified criticism of his work. As one court has said , direct evidence of an intent to violate the Act is rarely obtainable . Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4). It is therefore necessary to consider Respondent 's entire course of conduct with respect to Lefkowitz which began in May, shortly after he was a witness for the Union in the representation proceeding. At that time, Regional Manager Eblin asked Supervisor Mason to submit a report on Lefkowitz. The record contains no evidence of any criticism , other than routine, of Lefkowitz' work, and no criticism of his attitude or his personality prior to May 19. On the contrary , he was ap- parently regarded as one of Pittsburgh 's most promising young adjusters. About June 1, contrary to normal practice , he was assigned an additional territory and when it was reported that he would resign if he had to work both counties, Eblin remarked, "Let's see if he'll resign." After Lefkowitz had been carrying a double caseload for about 3 months, and shortly before the hearing in the Bradley case , Eblin asked Mason for another 30 Although the discharge of Bradley reduced the number of adjusters, Respondent did not explain why it did not hire another adjuster to take his (or Sullivan's) place 31 A major link in Respondent's chain of reasoning is that the charge which resulted in the instant proceeding was not filed until after Lefkowitz lost his bid for nomination and needed a job. However, the charge was filed the day before the primary. GENERAL ADJUSTMENT BUREAU, INC. 739 report on Lefkowitz. The report, on the whole, was more complimentary than otherwise with respect to Lefkowitz' work, and stated that the "main difficulty" with Lefkowitz was his "attitude," especially "since January." Furthermore, one of the critical portions of the report admittedly referred to his union activity. In the period following the Bradley hearing, Bureau officials in New York began to concern themselves with the Lefkowitz problem and, thereafter, the tempo and severity of the criticisms of Lefkowitz increased.32 The Bradley hearing closed on September 28, and in October, Executive Manager Critton directed Eblin to report anything that Lefkowitz was not doing "properly." Eblin subsequently directed Mason to review Lefkowitz' files and instructed him "to find something wrong" with them. In early November, a conference was held in New York at which Lefkowitz was the chief subject of conversation. Critton and Searles arrived in Pittsburgh on November 15, Searles reviewed Lefkowitz' files, and on November 17 indicated that he would make a report to New York which was "tantamount" to discharge. Lefkowitz promptly resigned. Thus, 2 months after the Bradley hearing, Lefkowitz was "removed from the office" although he continued on the payroll for 3 months, a situation which in itself goes far toward establishing that the Lefkowitz case was not a "normal" resignation to serve his own purposes, be they to enter politics or to avoid a dis- charge for cause. And when Lefkowitz observed that he did not think it "fair" to the Company to receive pay for not working, Critton replied, "Oh , you don't give a damn about the Bureau. You have shown that through your actions with Bradley." On the basis of the entire record, I find that a preponderance of the evidence sup- ports the allegations of the complaint that Respondent constructively discharged Lefkowitz by causing him to quit by threatening him with discharge for incompetence. I also find that to the extent that its criticisms (other than routine) of Lefkowitz' work had merit, they were caused by a situation either created or continued by Respondent in order to provide itself with apparently valid grounds for terminating him or causing him to quit, and that Respondent's real reason for wishing to elimi- nate Lefkowitz from the Pittsburgh region was not the quality of his work but his active role in the union campaign and his giving of testimony in the representation proceeding and the Bradley hearing. It follows, therefore, and I find, that Respond- ent thereby violated Section 8(a)(3), (4), and (1) of the Act III. THE REMEDY My Recommended Order will contain the conventional provisions entered in cases involving a discharge (constructive or direct) in violation of Section 8(a) (3), (4), and (1) of the Act: cease and desist from the unfair labor practice found and from in any other manner infringing upon the statutory rights of its employees, reinstate Lefkowitz and reimburse him for any loss suffered as a result of his dis- charge in the manner set forth in F W. Woolworth Co., 90 NLRB 289, 291-293, and Isis Plumbing & Heating Co., 138 NLRB 716; and post appropriate notices. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2 By causing Lefkowitz to quit because he engaged in union activity, and be- cause he gave testimony in Board proceedings, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3), (4), and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: RECOMMENDED ORDER General Adjustment Bureau, Inc., its representatives, agents, successors, and assigns, shall: 32A comparison between the charges made against Lefkowitz by Mason, Eblin, and McCoy and those made by Leach and Searles shows that the latter were much more critical of Lefkowltz than the former, including McCoy who was still the branch manager at Greentree at the time of the hearing. In fact, McCoy's testimony is almost devoid of criticism of Lefkowltz' work 712-548-64-vol. 142-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in Insurance Workers International Union, AFL- CIO, or in any other labor organization, by threatening to discharge or by dis- charging any employee or in any other manner discriminating in regard to the hire or tenure or any term or condition of employment of any employee. (b) Discouraging the giving of testimony in any Board proceeding by threaten- ing to discharge or by discharging any employee for testifying in such a proceeding. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Larry Lefkowitz immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him, in the manner set forth above in the section entitled "The Remedy." (b) Upon request, make available to the Board and its agents, for examination and reproduction, all payroll and other records containing information concerning Respondent's backpay obligation under this Recommended Order. (c) Post at its offices in region 12, copies of the attached notice marked "Appendix." 33 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, after being duly signed by an authorized representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof and maintained by them for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps they have taken to comply herewith.34 as In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 34 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner 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 threaten to discharge, discharge, or take any other discrimina- tory action against any employee because of activity on behalf of Insurance Workers International Union, AFL-CIO, or any other labor union, or because he gives testimony in one or more Board proceedings. WE WILL reinstate Larry Lefkowitz to his former position or to a substantially equivalent position, and will make him whole for any loss he may have suffered by reason of the discrimination against him GENERAL ADJUSTMENT BUREAU, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, 15222, Telephone No. 472-2977, if they have any question concerning this notice or compliance with its provisions.