Metropolitan Life Insurance Co.

METROPOLITAN LIFE INSURANCE 553 Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Cases 8-CA-3486 and 8-CA-4085 June 30, 1967 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On December 30, 1966 , Trial Examiner Robert Cohn issued his Decision in the above -entitled proceeding. finding that the Respondent had not en- in conduct violative of gaged (a)( 1) of the Act subsequent to the execution of a settlement agreement warranting the issuance of a remedial order, and recommending that the complaint be dismissed in its entirety and further recommending that the settlement agreement in Case 8--CA-3486 be reinstated. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed cross-ex- ceptions, and supporting and answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision , the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The Trial Examiner found that District Manager Demski 's interrogation of Agent Boyd as to why he was wearing a union button . Demski's direction to remove the button, and his subsequent interroga- tion of Boyd concerning union visitors to Boyd's house constituted interference and restraint within the meaning of Section 8(a)(1) of the Act.'' He con- cluded, however, that in view of the isolated nature of the violation , a remedial order was not war- ranted. However , we conclude that Demski's con- duct in several instances noted hereinafter also vio- lated Section 8(a)(1) of the Act and, together with the violation involving Boyd , warrants the issuance of a remedial order. In September 1965, Demski was in a night club with Agent Robert Joseph , leader of the union or- I The Trial Examiner denied a motion of the General Counsel to ad- journ the hearing and resume in Los Angeles , California, for the purpose of receiving testimony of a witness who had moved there. As we do not believe the alleged violation about which this particular witness would have testified, even if proved, would materially affect the nature of our Order, we find it unnecessary to decide whether a violation was therein in- volved, and accordingly we deem it unnecessary to pass upon the validity or the basis of the Trial Examiner's ruling ganizational campaign, and another agent when Joseph remarked that he was disappointed at the benefits paid his father-in-law, a retired employee of the Respondent. According to the credited testimony of Joseph. Demski stated, "if you really want to know why [the Respondent] did not pay more ... it is because of all the things you have been doing here in Toledo concerning the union." The remark was clearly intended to warn Joseph and the other agent present of the potential con- sequences of union support.3 We do not accept the Trial Examiner's characterization that this was an offhand remark of a minor supervisor or that the coercive impact of such statement was substantially diluted because of the setting in which it occurred. Demski was the office manager over some 25 em- ployees, including Joseph, and it is unlikely a pru- dent employee would lightly disregard such warning wherever made. On October 8, 1965, Demski threatened Joseph with the abolishment of his agency assertedly because of the lapse of some policies involving some $45.38 worth of premiums. However, a week or two prior to the threat to discharge, Demski had complimented Joseph, an employee of 17 years, on his outstanding job of placing over $100,000 of in- surance in a month. In view of Demski's continuing antipathy to union organizational attempts, and his previous night club remark to Joseph, we find that Demski's threat to abolish Joseph's agency was in fact motivated by Joseph' s union activities. We conclude, therefore, that the separate in- cidents involving Demski and Boyd, and the two in- cidents involving Demski and employee Joseph, are each separate violations of Section 8(a)(1). In view of these findings, Demski's conduct cannot be categorized as isolated and we will, therefore, issue the usual remedial order. REMEDY Having found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order it to cease and desist therefrom and from all other 8(a)(1) violations, and take certain affirmative action. However, as the violations herein occurred nearly 18 months after the settlement agreement in Case 8-CA-3486, and as the broad order we are issuing would not be materially changed by any finding of these earlier violations, as alleged, we shall affirm the Trial Ex- aminer's recommendation that the settlement agree- ment in Case 8-CA-3486 be reinstated. 3 The Trial Examiner rejected the General Counsel's effort to amend the complaint to allege similar restrictions by the other supervisors of Respondent. We find it unnecessary to pass on this ruling , because the ad- ditional violations if proven would be merely cumulative and would not materially affect our order. 3 While this incident was not specifically alleged in the complaint, the matter was fully litigated without objection or exception thereto. 166 NLRB No. 53 554 DECISIONS OF NATIONAL AMENDED CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) 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. 4. The unfair labor practices herein found are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Metropolitan Life Insurance Company, Mau- mee District Office, Toledo , Ohio , its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening employees with discharge or abolishment of their agencies , or other economic reprisals because of union membership, activities, and sympathies ; interrogating employees concern- ing union activities and sympathies and refusing employees permission to wear union insignia under threat of discharge ; and threatening employees or their relatives with lower or reduced retirement or other benefits because of union activities and sym- pathies. (b) In any other manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization , to form labor or- ganizations , to join or assist Insurance Workers In- ternational Union , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose 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 agree- ment requiring membership in a labor organization as a condition of employment , as authorized in Sec- tion 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Post at its Maumee District Office, Toledo, Ohio , copies of the attached notice marked "Appen- dix." 4 Copies of said notice , on forms provided by the Regional Director for Region 8, after being duly signed by the Company's representative, shall be posted immediately upon receipt thereof, and be LABOR RELATIONS BOARD maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the settlement agreement in Case 8-CA-3486 be reinstated. " 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing 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 threaten employees with discharge or abolishment of their agencies or other economic reprisals because of union membership, activities, and sympathies; inter- rogate employees concerning union activities and sympathies and refuse employees permis- sion to wear union insignia under threat of discharge; and threaten employees or their relatives with lower or reduced retirement or other benefits because of union activities and sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist In- surance Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of 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 authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. METROPOLITAN LIFE IN- SURANCE CO. (Employer) Dated By (Representative) (Title) METROPOLITAN LIFE INSURANCE 555 This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Ave., Cleveland, Ohio 44115, Telephone 621-4465. TRIAL EXAMINER'S DECISION At the hearing, all parties were afforded full opportuni- ty to present evidence, examine and cross-examine the witnesses, to argue orally at the close of the hearing, and to file briefs. Oral argument was waived by all parties. Briefs had been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been duly considered.2 Upon the basis of The entire record, including my ob- servation of the demeanor of the witnesses while testify- ing, and the arguments of counsel, I hereby make the fol- lowing: STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This consolidated proceeding, with all parties represented,' was heard be- fore me in Toledo, Ohio, on July 11 and 12, 1966. Case 8-CA-3486 arose upon a charge filed by In- surance Workers International Union, AFL-CIO (herein the Union), on April 23, 1964, alleging, in substance, that Metropolitan Life Insurance Company (herein the Com- pany or Respondent) had committed various unfair labor practices at its Maumee District Office in Toledo, Ohio. After investigation, that charge was resolved by an all- party settlement agreement, approved by the Regional Director for Region 8 of the National Labor Relations Board (herein the Board) on June 15, 1964. Said settle- ment agreement provided, in essence, that the Company would cease in any manner interfering with, restraining, or coercing its employees in the rights guaranteed by Sec- tion 7 of the National Labor Relations Act, as amended (herein the Act), and that it would post a notice to all em- ployees at its Maumee office to that effect. Case 8-CA-4085 arose upon a charge filed by the Union against the Company on November 23, 1965, which charge alleged substantially that the Company was continuing to coerce and discriminate against its em- ployees, members of the Union, at its Maumee District Office. On January 6, 1966, the Regional Director for Region 8 of the Board, by letter, notified the Company that he was vacating the approval of, and setting aside, the settle- ment agreement of June 15, 1964, because the terms of said settlement agreement had not been complied with, and that he was therefore reinstating the charge in Case 8-CA-3486. On January 11, 1966, the Regional Director issued an order consolidating the two aforementioned cases, along with the complaint and notice of hearing in the instant matter. By its duly filed answer, the Company generally denied the commission of any unfair labor pratices and affirmatively pled that several of the allega- tions in the complaint were barred by the statute of limita- tions contained in Section 10(b) of the Act; and that, further, the Respondent had complied in all respects with the said settlement agreement of June 15, 1964, which constituted an accommodation of all violations alleged in certain other paragraphs of the complaint. ' Although an appearance was made on behalf of Leonard Greenwald, Esq, of New York, New York, for the Charging Union, he was not per- sonally present at the hearing. 2 Prior to and at the hearing, counsel for the General Counsel made a motion to remove the hearing from Toledo, Ohio, to Los Angeles, Califor- nia, for the purpose of taking the testimony of a witness who resided at the latter location I took the matter under advisement, and, by order dated August 15, 1966, denied the same. By order dated September 29, 1966, the Board denied the General Counsel's request for special permission to FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues3 The principal issue in this case is whether the Respond- ent, subsequent to the execution and approval of the set- tlement agreement in Case 8-CA-3486, by its officers -and agents, engaged in conduct inconsistent with, and violative of, the commitments made therein. If this query be answered in the affirmative, the issue arises as to whether the Respondent, by its officers and agents, en- gaged in conduct prior to and subsequent to the execution of said settlement agreement which interfered with, restrained, and coerced employees in the rights guaran- teed in Section 7, thereby violating Section 8(a)(1) of the Act. The settlement agreement provided, inter alia, that the Company would comply with all of the terms and provi- sions of a notice which states as follows: WE WILL NOT interrogate our employees or prospective job applicants for the purpose of interfer- ing with, restraining, or coercing them in any manner in regard to their activity or membership. WE WILL NOT take nor will we threaten reprisals against our employees because of their union sym- pathies, membership, or attitudes. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist Insurance Workers In- ternational Union, AFL-CIO, or any other labor or- ganization, to bargain collectively through represent- atives of their own choosing, or to engage in con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of 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 authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. All our employees are free to become or remain members of this Union, or any other labor organization. appeal my ruling without prejudice to the General Counsel's right to raise the issue in any exceptions filed to this Decision. i I here is no issue as to the Board's jurisdiction or labor organization The complaint alleges sufficient facts which are undenied upon which I may, and do hereby, find that the Respondent is an employer engaged in commerce , and that the Union is a labor organization, within the meaning of the Act. The Board has, in prior cases, so found see Metropolitan Life Insurance Company, 146 NLRB 967, 972 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Alleged Postsettlement Unfair Labor Practices As previously noted, the settlement agreement which resolved the charges in Case 8-CA-3486, was approved on June 15, 1964. The complaint, as amended at the hear- ing, contains three allegations of conduct allegedly viola- tive of Section 8(a)(1) which occurred subsequent to said date, and upon which the Regional Director presumably based his setting aside of the settlement agreement. They will be discussed seratim, as follows: 1. "On or about September 1965, and continuing to date, at the Maumee District Office, [Respondent] refused to permit an employee to utilize office secretarial assistance and the use of office machines, because of his union membership, activities, and sympathies." The ob- ject of the alleged conduct is Agent Robert A. Joseph. Joseph had worked for the Company for 17 years, and at all times material herein was an office account or "D.O." agent.' There is no question but that Joseph was a known leader in the Union 's organizational campaign which culminated in the NLRB election in October 1963, which the Union won.5 Indeed, District Manager Chester Demski admitted that he knew "pretty well" who was in the Union and who was not, and that in April 1964 he spoke to Joseph concerning the latter's solicitation of em- ployees into the Union.6 The evidence shows that in September 1965 Joseph noticed a newspaper article concerning group life and hospitalization insurance which the city of Toledo was apparently considering for its employees. Joseph clipped the article from the paper and wrote a letter in longhand to the Respondent's Cleveland Regional Office (which encompassed the Maumee district). He requested one of the office secretaries, a Mrs. Linda Parker, to type it for him. However, Parker, who was primarily Demski's secretary, requested of the latter that she not be required to type the letter because (1) Joseph's handwriting was il- legible, and (2) she did not have the time due to a shortage of clerical help.? Joseph testified that after Parker refused to type the letter, he asked if he could use an office typewriter to type it himself and she replied in the negative - that she had or- ders that he could not use an office typewriter. Joseph claims that this conversation with Parker was overheard by Mrs. Jean Latak, the supervisor of the office force. Both Parker and Latak denied that they ever advised Joseph that he could not use the office equipment, although Latak testified that while some of the agents oc- casionally use a typewriter for addressing envelopes, they were not supposed to.8 Demski denied instructing Parker never to type any let- ters for Joseph or to deny Joseph the use of the Com- pany's office equipment. He instructed Parker to tell Joseph to write this kind of letter on a form 29A as the other agents did.9 2. The complaint alleges that "on or about October 8, 1965, and continuing to date, at the Maumee District Office, [Respondent] threatened an employee with discharge, the abolishment of his agency and other economic reprisals because of his union membership, ac- tivities, and sympathies." The evidence shows that on or about the stated date, Manager Demski wrote a note to his assistant, John Zuelke, pointing out that Joseph's agency had been doing quite poorly recently respecting lapsed policies and "premium growth," ending the note with the question, "Can we afford this agency or should it be abolished?" 1 0 Although, as stated, the note was addressed to Zuelke, it came to the attention of Joseph who asked Zuelke what it meant. The latter replied that Joseph could become just an ordinary insurance representative, or he could take an open agency if one became available, or he could quit. Joseph retorted that he was not prepared to do any of those things at that time. Whereupon, Zuelke said they would get together with Demski and discuss it. Ac- cordingly, a day or two later the three men met in Dem- ski's office. According to Joseph's testimony, Demski claimed that because there had been too many policyhol- ders who had either allowed their policies to lapse or who had cashed in their insurance, he was planning to abolish Joseph's agency. Joseph expressed shock and surprise at this since, at the previous regular office meeting, which occurred only a week or so previously, Demski had com- plimented him on the outstanding job he had done in plac- ing over $100,000 worth of insurance that month. At that point, Demski had an office clerk bring in a large stack of cash surrender files. Joseph questioned whether all of them were his, to which Demski replied that they were "almost all of yours anyway." The discussion continued respecting the number of cash surrenders, Joseph inquir- ing whether Zuelke was still making a personal inspection of the policyholders in this regard as he had done in the past. Zuelke admitted that he had, but that he was unable to save any of the policies. Joseph suggested that perhaps the time might better be spent producing other business instead of worrying about business that the Company could not save. After some more discussion on the question of lapses, Joseph said that he was going to write a letter concerning this matter to "both the Union and to the NLRB" to which Demski replied, "Well, you always had a good record. Let's just forget about the whole thing." Demski's version of the conversation is somewhat at variance with the foregoing. He testified that he called Joseph and Zuelke in because Joseph had been making a "big to do out of nothing" and he wanted to get the matter straightened out. He attempted to put Joseph at ease by reminding the latter that he was a good salesman and "secondly, if I was trying to get rid of you,'do you think 4 In this position he serviced insurance policies upon which payments were made at the office rather than collecting premiums in the field as do some other agents (sometimes called field or regular agents). ' The Respondent initially refused to bargain with the Union as the ex- clusive collective-bargaining representative of the employees (in this as well as other areas of the country), contending that the unit found by the Board for that purpose was inappropriate . However, I have been adminis- tratively advised that after litigation, which ultimately reached the United States Supreme Court (see 380 U.S 438, 523, and 525) the Respondent has since acquiesced on this issue. ', Demski claimed that some other agents had complained to him that Joseph was pressuring t'iem into joining the Union There is undemed evidence that during the months immediately prior to this incident, the employee complement of stenographers and clerks in the Maumee office declined numerically from eight to five " Joseph testified that thereafter he saw Burt Plettner, another agent, using a typewriter in the office Plettner stated that he occasionally used office typewriters and could not recall any supervisor denying him use of such equipment when it was available " Form 29A is a snapout carbon form which is used for interoffice com- munication. " See G C Exh 2. METROPOLITAN LIFE INSURANCE 557 less than a year ago that I would have recommended that the Company double the size of your agency?"11 Demski's testimony corroborated that of Joseph with respect to the clerk bringing in the stack of cash surrender files and with respect to Zuelke's investigating cash sur- renders. However, he did not "recall" Joseph's threaten- ing to write letters to the NLRB and to the Union. There is no evidence that the subject matter of this meeting was raised by anyone subsequent to October 1965.12 3. The complaint alleges that "on or about November 1, 1965, and continuing to date, at the Maumee District Office, [Respondent] interrogated an employee concern- ing his union membership, activities and sympathies, and refused to permit said employee to wear a union insignia under threat of discharge."13 The evidence shows that in September or October 1965, union buttons were distributed to the agents in the Maumee office who had signed authorization cards.14 Agent Tommie Boyd testified that on election day in November 1965, he had a conversation with Manager Demski concerning the button. Although the office was officially closed due to the election, he was there when Demski came in and said that he heard that Boyd had joined the Union. Boyd admitted that he had, and, in response to Demski's question of why he had done so, Boyd replied that he had been connected with unions be- fore. Demski then advised Boyd that the Union had not been recognized by the Company at that time, and he (Boyd) was therefore not permitted to wear the union but- ton on company premises. Demski requested boyd to remove it from his lapel; however, Boyd did not remove it at that time. Later in the day, according to Boyd, Dem- ski advised that he was "not kidding," and that Boyd would have to remove the button. At that time Boyd removed it. Boyd further testified that about a week later, Demski approached and said that he had heard Boyd had had some visitors from the Union, and asked him what tran- spired. Boyd admitted that he had, in fact, had visitors from the Union and that the discussion centered around the incident about the union button. On cross-examination Boyd admitted that he had told Assistant Manager Suter that the Union had been to his home the previous weekend. Additionally, Boyd testified that he did not stop wearing the union button after the in- cident in November, but in fact he continued wearing the button while at work until he left the Company in Janu- ary, and that other employees also wore their buttons while at work. Demski's version of the conversation is not substan- tially dissimilar from Boyd's. He admitted asking Boyd why the latter joined the Union, to which Boyd stated that he had always been a union man, that he believed in unions, and that he would join the Union at the Respond- ent's. Demski replied that his personal life was his own but that he would prefer that Boyd not wear the button around the office - that if he wished to wear it in the field and risk public antagonism, that was up to him. Boyd then asked why the Company was fighting the Union to which Demski replied that the Company was not fighting the Union but merely awaiting the final decision respecting the bargaining unit.15 Demski did not "recall" directing Boyd to remove the union button, and testified that Boyd did not take it off at that time. He conceded having a con- versation with Boyd about a week later concerning the "union visitors" substantially as related by Boyd. C. Analysis and Concluding Findings on Postsettlement Conduct In assessing whether a preponderance of the evidence shows that the postsettlement conduct of Respondent, through its agent, Demski, interfered with, restrained, and coerced employees in the exercise of Section 7 rights, thereby violating Section 8(a)(1), and was in derogation of its commitments under the settlement agreement, it seems significant that the first two allega- tions discussed above deal exclusively with Demski's relationship vis-a-vis Joseph, while the third does not in- volve Joseph at all. Stated another way, it is apparent that the first two allegations of postsettlement conduct are couched in terms of discriminatory action against Joseph because of his union activities whereas the third allega- tion rests upon the coercive impact of Demski's alleged remarks to Boyd respecting removal of a union button.16 I do not believe that, considering the evidence in the record as a whole, the General Counsel has sustained his burden in this case. In the first place, the undenied testimony of Demski shows that although Joseph was a known leader of the Union during the organizational cam- paign in 1963 and Demski was opposed thereto, the latter was, in large measure, directly responsible for Joseph's securing a substantial part of Huntsinger's agency in Au- gust 1964. Moreover, Demski's testimony that in the September 1965 conversaion with Joseph, he (Demski) I I The record establishes that in August 1964 there were two office ac- count or "D 0 " agents in the Maumee office; i.e, Joseph and one Harry Huntsinger When Huntsinger resigned, the question arose as to what to do with his accounts and it is undemed that Demski recommended that most of them go to Joseph although this was contrary to company policy which directed that the agency be distributed among "regular" as opposed to "office account" agents. This recommendation was followed by the Company, and, as a result, Joseph's annual income increased some $3,000 to $4,000. 12 Although not alleged in the complaint , another postsettlement in- cident involving Joseph was litigated by the parties In September 1965, Joseph, Demski, and another agent named Shible (who was not called as a witness) were together at a local nightclub. During the course of the con- versation, Joseph told of the disappointment of his family at the fringe benefits paid to his father-in-law, a retired Metropolitan agent, during the latter's stay at a resthome According to Joseph, Demski stated "that if you really want to know why Metropolitan in this case did not pay more of Mr. Bronawicz payment, it is because of all the things you have been doing here in Toledo concerning the Union " Demski denied making the statement attributed to him, claiming that he offered to-and did-intercede with the home office on Joseph's father- in-law's behalf, but to no avail. 13 A proposed amendment to this allegation by counsel for the General Counsel at the hearing was denied by me on the grounds of untimeliness and undue hardship on the Respondent. 14 The buttons were of the type which could be worn in the lapel of a business suit, see G C. Exh. 3 There is also evidence that some agents wore the union button in 1964. I> It is to be recalled, as previously noted, that at that time the Respond- ent was, in fact, contesting in the courts the appropriateness of the bargaining unit which had been found by the Board. 1" There is also some testimony in the record by witness Plettner that he had been directed on some occasion by Demski to remove his union but- ton. However, Plettner was so vague as to circumstances and time (he could not say whether the incident occurred in 1964 or 1965) that I am unable to accord any probative value to such testimony. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered to intercede with the home office in the matter of Joseph's father-in-law was not denied by Joseph although he took the stand on rebuttal. This conduct of Demski's does not reflect that of a person bent upon harassment or discrimination against an employee because of union ac- tivities (although it is obvious that Demski was originally- and remained - antagonistic to the Union). General Counsel argues that Demski's largess towards Joseph in 1964 is not significant because the Union's campaign was quiescent at that time , but was rekindled in September 1965 when Joseph distributed the union but- tons. While this theory had a certain initial attractiveness, the facts simply do not, in my judgment, substantiate a conclusion that such activity of Joseph's was a causative factor in Demski's subsequent actions. Thus, there is not the proverbial scintilla of evidence in the record that Demski (or any other management representative) men- tioned this fact in any conversation with Joseph or any other agent.17 Secondly, the nature of the occurrences themselves and the manner in which they arose do not reflect a predetermined and calculated campaign by Dem- ski to retaliate for Joseph's button-distributing activities. Thus the typewriter incident, which arose as a result of Joseph's initiative, is a circumstance ' involving a profes- sional-clerical relationship which could - and does-arise in practically any commercial office of the size and nature of Respondent's. There is not the slightest intimation in the record that this incident was related to Joseph's union activities, nor is there supporting evidence that Parker did not refuse to type other agents' letters during this period, nor is it shown that Joseph's production or efficiency was deleteriously affected by any such deprivation in the use of secretaries or office equipment. In short, this incident strikes me as being of a quibbling nature, unrelated to the union activities of Joseph.18 The "abolishment of agency" incident, while poten- tially more dangerous to Joseph's working conditions and tenure of employment , likewise seems lacking in sub- stance when related to the probative value of proof of violation. Again there is no contention or proof that any representative of management uttered one word about the Union or Joseph's activities therein during the discus- sions. Although this, of course, is not critical to a finding of illegal motivation, there is no denial by Joseph that the facts contended by Demski concerning the poor showing of Joseph 's agency respecting "lapses" and "cash-ins" were valid. In other words, there was good and sufficient cause for the issue of the productivity of Joseph's agency to be raised at this time. The fact that the matter was dropped after Joseph threatened to take up the issue with the Union and the N LRB does not prove discriminatory motivation of the Company.is Demski's staement at the Toledo nightclub concerning the reason for the poor treatment accorded Joseph's father-in-law, taken in vacuo could certainly be construed to have a restraining effect on the exercise of employees' Section 7 rights. However, when considered in context and setting, the coercive impact is substantially diluted. Thus, (1) it occurred in a nightclub after all parties had been imbibing, as contrasted with the solemn milieu of Respondent's office; (2) the utterance was in the nature of an offhand opinion by a relatively minor supervisor of the Respondent; and (3) the supervisor offered to -and presumably did- seek to intercede on the employee's be- half. Under these circumstances, considered in the absence of other threatening or intimidatory statements, I do not believe a violation should be concluded. The Union Button Incident: It is well established that the interrogation of agent Boyd by Manager Demski as to why the former was wearing a union button and the direction by Demski to remove it, constitutes inter- ference with, restraint, and coercion of employees' rights under the Act.20 However, the Trial Examiner does not believe that the settlement agreement should be set aside and/or an inde- pendent order issue based upon this incident (which in- cludes the subsequent instance of interrogation related thereto) for the following reasons : (1) It is an isolated event;21 (2) although I am aware of the rule that a Section 8(a)(1) violation turns not upon whether the coercion suc- ceeded or failed, but upon the reasonable tendency of the language to interfere with employee rights (American Freightways, Co., Inc., 124 NLRB 146, 147), it is deemed appropriate in determining whether to recom- mend an order to point out that Boyd admitted that he continued to wear the button after the incident and testified that other employees wore union buttons while at work with no evidence of recrimination or retaliation;22 and (3) it is unlikely that there will be a recurrence of the violation since Demski's action apparently stemmed from his legally erroneous rationale that the agents were not privileged to wear the buttons until the Union's certifica- tion was finally up held by the courts. Since, as previously noted, the Company has receded from that position, Demski's position is no longer tenable (even to him) and, as the record shows, there have been no subsequent in- cidents of this nature. 11. THE REMEDY Having found that the proof of alleged unlawful post- settlement conduct of Respondent is sufficiently lacking in substance to warrant the issuance of a remedial order, I find it unnecessary to consider the evidence adduced as to presettlement conduct.23 Accordingly, I will recom- 17 Demski's conversation with Boyd respecting the union button took place 2 months later in November , and did not relate to Joseph's distribu- tion of the buttons 10 For the purposes of discussion of this incident , I have assumed the veracity of Joseph's testimony to the extent that it conflicts with Parker and Latak (although all of them appeared to me demeanorwise as credible witnesses), since, as indicated, I find no violation in the incident even as- suming the correctness of Joseph's testimony 14 For purposes of this and subsequent discussions between Joseph and Demski , I have credited the former to the extent that the testimony con- flicts. In addition to demeanor considerations , I regard with disfavor the Respondent's failure to call Zuelke as a witness to this incident. 20 See, e g , Cannon Electric Company, 151 NLRB 1465, and Floridan Hotel of Tampa, Inc, 130 NLRB 1105, as supplemented 137 NLRB 1484, and cases cited therein. For purposes of this discussion, I credit Boyd's testimony to the extent it differs from Demski's, although I would find the violation based upon Demski's admissions 21 As previously noted, Plettner's testimony, vague and indefinite as it is, and assisted by leading questions from the General Counsel, has been given no probative weight by me The record does show that Demski ad- jured Plettner not to wear the button if he and his wife ever came to the Demskis' house on a social visit 22 Another of General Counsel 's witnesses, Agent Curicio, testified that he had worn the union button at work for several years without adverse comment or direction from Demski. 23 Conroe Creosoting Company, 149 NLRB 1174, at footnote 2. METROPOLITAN LIFE INSURANCE 559 mend that the settlement agreement in Case 8-CA-3486 be reinstated and that the complaint in Case 8 -CA-4085 be dismissed.224 3. Respondent has not engaged in unfair labor prac- tices sufficient in nature or extent to warrant the setting aside of the settlement agreement of June 15, 1964. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 24 /bid In addition to the other reasons mentioned above , I have con- sidered as bearing on my recommendation , the fact that 15 months elapsed between execution of the settlement agreement and the date of the first allegation of a commission of subsequent unfair labor practices While I reject the Company's contention that this lapse of time ". con- clusively establishes that the Settlement agreement has been honored and has succeeded in its purpose and that the Regional Director 's actions in setting aside that agreement is an abuse of discretion ," I do think this fac- RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety , and the settlement agreement in Case 8-CA-3486 be reinstated. tor should be weighed in determining whether the setting aside of the agreement should now be sustained. (Cf. Wooster Brass Company, 80 N LRB 1633, 1635.) In the light of the relative unsubstantial nature of the alleged violations themselves , and undemed evidence that none of them are continuing, plus the fact that circumstances have now altered , i.e , the Company is no longer contesting the certification , I am constrained to hold that it was an error to set aside the settlement agreement, and, as previously noted, I will recommend that it be reinstated.