The Hartford Insurance Group

THE HARTFORD INS. GROUP 579 The Hartford Insurance Group and United Industrial Workers of North America, Pacific District, affiliated with Seafarers' International Union of North America, AFL-CIO. Cases 20-CA-5071 and 20-CA-5113 September 24, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCii AND MEMBI RS JENKINS AND ZAGORIA On June 9, 1969, Trial Examiner Benjamin K. Blackburn, issued his Decision 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 Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of these allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, The Hartford Insurance Group, San Jose, California, its officers, agents, successors, and assigns. shall take the action set forth in the Trial Examiner's Recommended Order. the Charging Party, filed unfair labor practice charges against The Hartford Insurance Group, referred to herein as Respondent, in Case 20-CA-5071 on June 27, 1968,' and in Case 20-CA-5113 on July 22. On September 6 the Charging Party filed an amended charge in the latter case. On December 12 the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 20 (San Francisco, California), consolidated the two cases for hearing and issued a consolidated complaint in which he alleged that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent's answer, duly filed on December 18, admits certain allegations contained in the consolidated complaint, denies others, and denies that Respondent committed any unfair labor practices. I heard these cases, pursuant to due notice. in San Francisco, California, on February 27 and 28 and March 31 25. 26, and 27, 1969. At the outset of the hcarng I granted the General Counsel's motion to amend the complaint in various respects, as a result of which some alleged unfair labor practices were stricken. Consequently, the issues litigated were (1) whether words allegedly spoken by Respondent's admitted Supervisors John Clark and Carlin P. Christensen on various occasions violated Section 8(a)(l) of the Act and (2) whether the admitted discharges of outside adjusters Robert E. Shea on June 18 and Robert E Dilley on August 30 violated Section 8(a)(3) and (1). All parties appeared at the hearing and were given lull opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record,' including briefs filed by Respondent and the General Counsel, and from my observations of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS Oi• FACT I.'i Hr BUSINESS 01 RESPONDENT Respondent, a Connecticut corporation, is engaged in the insurance business throughout the United States. Its home office is located in Hartford, Connecticut It has branch offices scattered over the country, including several in California One of these is located in San Jose. During the year just prior to issuance of the consolidated complaint herein, Respondent received more than $1 million in premiums and paid out more than $1 million in benefits which crossed State lines in getting to or coming from its home office During the same period the San Jose office grossed more than $500,000, more than $50,000 of which was remitted to the home office. On the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THi. LABOR ORGANIZATION INVOLVED TRIAL EXAM [NER'S DECISION STATEMbNT OF THE CASi, BENJAMIN K. BLACKBURN, Trial Examiner. United Industrial Workers of North America, Pacific District. affiliated with Seafarers' International Union of North America, AFL-CIO, referred to herein as the Union or The consolidated complaint alleges . the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 'All dates are 1968, unless otherwise spcLified. 'The General Counsel's motion to correct the transcript in various respects is granted 178 NLRB No.96 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE UNFAIR LABOR PRACTICES These cases grow out of an organizing campaign. The Union petitioned (Hartford Insurance Group, Case 20-RC-8037) March 11 for an election in a unit composed of adjusters and appraisers at Respondent's San Jose branch office A hearing was held on that petition on April 19. On June 17 the Regional Director issued his decision that a unit of claims department employees at the San Jose office was appropriate and directed an election. The election was held on July 15. The Union was certified as collective-bargaining representative of the San Jose claims department employees on July 23. During the course of the campaign conversations took place in which, the General Counsel contends, John Clark, manager of the San Jose claims department, and Carlin P Christensen, a supervisor of outside adjusters at the next lower level in Respondent's supervisory hierarchy in San Jose, violated Section 8(a)(1). I deal with these various incidents here before turning to the major issue Respondent's motive for discharging Robert Shea and Robert Dilley in the interest of simplicity. Although I pass on them separately, 1 have considered each in the context of the total situation set forth in detail below. A. The Independent 8(a)(1) Issues 1. John Clark Just after the election on July 15, an adjuster named Philip Reinheimer had occasion to go into Clark's office. Clark was admittedly upset at the time. He said, referring to the Union's victory, "I suppose congratulations are in order for you." Reinheimer said. "Thank you, we are pretty sure that we have done the right thing, at least 80 percent sure." Clark said, "You'd better be real sure because your career depends on it."' I agree with the General Counsel that Clark thereby threatened Reinheimer with reprisal because of his adherence to the Union. I find, therefore, that Respondent violated Section 8(a)(1) of the Act in this episode. 2. Carlin Christensen a. Interrogation The complaint alleges that Christensen "during March 1968, and on or about July 21, 1968,4 . . interrogated employees regarding their membership in or activities on behalf of the Union." This portion of the complaint is based on the testimony of the two discriminatees. Shea and Dilley testified that, from the time union activities became a topic of common knowledge and interest in the office, Christensen asked them casual questions about what was going on. Shea said, for example, "On several occasions he asked me what was going on in the union. . . On several occasions he asked me what was going on and I would just give him negative answers. I didn't give him any information " A typical part of Dilley's testimony reads: 'The only discrepancy between Reinheimer's version and Clark's version is Clark's assertion that his closing remark was " i hope you know what you have done " If this is a credibility conflict, I credit Reinheimer over Clark In any event, I think the words Clark admitted speaking are as much of an implied threat as the words attributed to him by Remheimer. I would find a violation of Sec 8(a)(1) in this incident even it I credited Clark over Reinheimer 'There is no evidence of any specific incident on or about July 21 which Q. What would he say to you? A. Well, "What' s going on with the union? What's happening?" questions like you might have a problem as far as classification of th4 girls This type of thing. Christensen admits that this sort of exchange went on during the preelection period . Christensen works in a large room alongside nonsupervisory employees The desks are only a few feet apart Conversations among the employees about the union campaign and such details as whether certain job classifications would be in or out of the unit were carried on freely and openly in front of Christensen There is no evidence that Christensen sought to learn any secrets about the Union for Respondent 's benefit , that any of the employees were, in fact, interfered with , restrained, or coerced by Christensen ' s casual remarks, or that the conversations differed in any respect from the passing comments on other topics of general interest which were a daily occurrence between Christensen and the persons working around him. I find, therefore, that the questions asked by Christensen on these occasions were not of the sort which would reasonably be found to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights and that Respondent did not thereby violate Section 8(a)(1). b. Threat of blacklisting The complaint alleges that Christensen "threatened employees with blacklisting or loss of employment in the insurance industry " Dilley testified that in May or June, before the discharge of Shea, Christensen "informed me that insurance companies keep or blacklist people that are involved in union activity and that I was either on the blacklist or would be because of my activities. . . I agreed that I probably would be." Christensen denied making any such statement. I credit Dilley. This statement was obviously made during one of the conversations rife in the office while the Union's petition was pending. Unlike Christensen's casual inquiries considered just above, this remark was, considering the context in which it was made, reasonably calculated to coerce Dilley. Dilley was a leader in the organizing campaign. Even if Christensen meant it only as a joke. the spirit in which lie says he made many of his comments about the Union, mention of a blacklist could not have been funny to an employee in Dilley's position. I find, therefore, that Respondent violated Section 8(a)(1) of the Act in this espisode. c. Threat of discharge The complaint alleges that Christensen "threatened employees with discharge" between June 18 and July 15 Dilley testified that, sometime in late June. Somebody had made a comment about something [-] one of the girls said something and I jokingly said that it would be in the budget for next year and as I walked toward my desk Mr. Christensen said that I wasn't in the budget for next year. . . As I recall he said that if the union loses the election that I would be around for a couple of weeks at best - or something like that. . . . I replied that it would probably be shorter than that. Christensen was asked whether he ever threatened employees with discharge between June 18 and July 15. could be interpreted as an interrogation Shea was discharged more than a month before and was no longer on the premises Dtlley was on vacation at that time THE HARTFORD INS. GROUP 581 He answered that he had one conversation with Dilley in which he said, "Mr. Dilley, I don't care about your union activities, but we still have to get the work done here regardless. That is what we are hired for, to get the work done." It is obvious that Dilley and Christensen are talking about two different conversations I take Christensen's response to the question put to him to be a denial that he ever spoke the words attributed to him by Dilley I credit Dilley. Even though Dilley himself puts the beginning of this exchange in a joking context, Christensen's remark is the same as the blacklist incident considered just above. To a man in Dilley's shoes, whether he would be in next year's budget if the Union lost the election was no joking matter. I find, therefore, that Respondent violated Section 8(a)(1) of the Act in this episode d. Jobs for anti a ion votes The complaint alleges that Christensen "advised an employee that the Respondent had assured employees permanent employment upon condition they would vote against representation by the Union." The only evidence offered in support of this allegation is Dilley's testimony that, on June Rl, Christensen told him "that an adjuster by the name of Bud Mohn was being transferred to the San Jose office from the Oakland office, that he was a long time employee of the Hartford, some 15 years, and that he had been interviewed by people in San Francisco as far as management of the Hartford and probably would have no choice but to vote against the union . . I said something about `Here come the transfers,' or something like that " There is no support for the precise allegation of the complaint in this testimony nor do the words allegedly spoken by Christensen in this conversation establish, by any reasonable interpretation, that Respondent did, in fact, predicate Mohn's transfer to San Jose or his future with the Company on Mohn's promise to vote against the Union. I find, therefore, that Respondent did not violate Section 8(a)(l) of the Act in this episode. B The Discharges 1 Facts The claims department of Respondent's San Jose branch office employs both outside and inside adjusters. A case is assigned to an outside adjuster when, in the judgment of a claims supervisor, work is required outside the office in order properly to investigate, evaluate, and settle the claim Robert Dilley went to work for Respondent as an outside adjuster in September 1966, Robert Shea, in March 1967. Dilley had 8 year.' prior experience in claims work. Shea had 10 John Clark came to the San Jose office as manager of the claims department in July 1967. William Dugan came to the San Jose office as a claims supervisor in late August 1967 Dilley, Shea. Stallcup, and Mackey were assigned to him for supervision Respondent review's each employee's work on the anniversay date of his hiring and grants or withholds an annual raise. When Dilley's anniversary date came up in September 1967 Clark withheld his raise and placed him on a month's probation. No formal notice was taken of the end of the probation At the end of the month Dilley continued to work for Respondent Ife did not receive a raise. Carlin Christensen came to the San Jose office as a claims supervisor in July 1967. Gilbert Cooper and Donald Smith were originally assigned to him for supervision. Around January 22 Dilley was transferred from Dugan's supervision to Christensen's ' On December I, 1967, Shea was involved in a minor accident while driving his company car Shea had been drinking at the time, a fact reflected in the police report. Driving a company car while drinking is a firing offense under Respondent's rules. Shea reported what had happened to Clark. Clark told Shea, "Well, I don't think that's any problem. We'll work that out all right." Clark talked to higher management about the accident. Shea was not discharged In February, Shea's company car was damaged on two more occasions In one incident the front end was damaged when Shea pushed his wife's car In the other, a fender was dented while the car was parked on a parking lot. Shea did not report either accident because he considered the first his fault and had the damage from both repaired at the same time at his own expense. None of the accidents was mentioned in any of Shea's subsequent dealings with Respondent leading up to his discharge. They were first raised by Respondent in cross-examination of Shea during the hearing before me Several material incidents took place in January in addition to the transfer of Dilley from Dugan's to Christensen's supervision Dilley received a raise It was smaller than the annual increase he would have received on the occasion of his anniversary in September 1967 if Clark had not found him wanting at that time. Dugan told Dilley he was being transferred to Christensen because Respondent needed someone who was reliable to handle the Santa Cruz territory Clark told Dilley he appreciated the way Dilley had worked with Dugan and recognized Dilley's ability to deal with people effectively. Clark discharged Mackey on Dugan's express recommendation Clark ordered adjusters to give priority to new cases Shea complained about and was taken off subrogation cases. a special responsibility he had handled up until that time in addition to his other duties. In late February or early March Christensen recommended that Clark fire I)illcy. Dilley was not discharged. From February 19 through March 1 a team composed of two men from Respondent's home office and Marvin Franklin,' a Pacific Department field supervisor, audited the San Jose office. The audit consisted, in part, of inspecting the files of all cases "created" in November 1967, that is. all files which had come into existence because of claims filed in November A written report the auditors prepared at the end of their inspection rated Shea. "Aptitude good. initiative fair. ability as negotiator and investigator is fair Has tendency to short-cut investigations and documentation of files. Potential is limited at the present time." It rated Dilley. "Aptitude is fair, initiative is fair, ability as negotiator and investigator is fair. Files disclose late reporting and attempts to short-cut investigation 'This shill was caused by Dilley's assignment to the Santa Cruz territory Donald Smith quit on December 18, 1967 . at which time the Santa Cruz territory was assigned to Lee Purycar Although the record is not completely clear on the point, I gather that Purycai, if he was not already under Christensen's supervision , came under it at that point The Santa Cruz territory came open again on January R2 when Puryear became Respondent's resident claims adjuster in Monterey Assignment to the Santa Cruz territory simply meant that Dilley was assigned all claims requiring outside work which originated in and around Santa Cruz 'During the summer of 1967 Franklin performed a 6-week temporary tour of duty in the San Jose office as a fill-in claims supervisor Dilley was under his supervision at that time 1-ranklm was not happy with Dilley's work because he felt that Dilley did not get enough information in his 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime in December 1967 or January 1968 union activity began among adjusters employed in San Jose by Fireman's Fund Insurance Company. The activity was common knowledge in the industry. In February Clark was instructed by his superiors in Respondent's Pacific Department. located in San Francisco, not to discharge anyone without clearing it with them. This order was issued because Respondent anticipated unfair labor practice charges if it discharged employees during an organizing campaign. Shea initiated union activities in Respondent's San Jose claims department in the latter part of February He began by telephoning Sal Lopez, AFL-CIO representative for Santa Clara County. He told Lopez that he had heard that Fireman's Fund's adjusters were organizing and that he was interested in organizing Respondent. Lopez referred him to a representative of Insurance Workers International Union, AFL-CIO. When Shea called that man he learned that the Insurance Workers were no longer interested. Shea then telephoned a friend who worked for Fireman's Fund. Fhe friend put him in touch with Dick Nyburg. an organizer for the Charging Party. The net result of all these telephone calls was a meeting on February 26 in a San Jose restaurant of Shea, Lopez, Nyburg, John Salazar, the Union's attorney, and Jack Jordan, an adjuster who worked for 1-ireman's Fund. Shea left the meeting with a supply of the Union's authorization cards. Sometime between February 26 and March 7 Shea recruited Dilley. They jointly started to sound out other adjusters. The result was a meeting in another San Jose restaurant on March 7 arranged and conducted by Shea and Dilley and attended by other adjusters employed by Respondent. On March 9 Nyburg met with Shea. Dillcy, and the other adjusters at the restaurant where Shea had first gotten together with representatives of the Union. At the end of this meeting the adjusters named Shea and Dilley as their in-plant representatives for purposes of the organizing campaign. On March Il the Union filed the petition in Case 20-RC-8037, supported by authorization cards obtained by Shea and Dillcy. The petition was received in Respondent's San Jose office the same day. Dugan criticized Shea's work from the beginning of their supervisor-employee relationship. This was not unusual, for the nature of Dugan's job required him to oversee closely the work of several adjusters all of whom he criticized from time to time He was especially concerned that Shea missed appointments This caused extra work for Dugan because persons called up to complain or inquire, thus putting Dugan to the extra task of straightening the matter out with Shea On several occasions Dugan discussed his concern about the way Shea was doing his job with Clark He never recommended that Clark discharge Shea. Clark initiated a conversation of this type with Dugan in early March. Dugan did not recommend that Clark lire Shea on this occasion. Clark decided to discharge Shea on March S. Pursuant to his instructions, he telephoned Rufty, claims manager of the Pacific Department, to report his decision. In a return call that day from Robert Harkins, personnel director of the Pacific Department, Clark was authorized to discharge Shea on March 11. When the petition in Case 20-RC-8037 was received in the San Jose office on March 11, Jack Carlson, manager of the office, called Harkins to report. He reminded Harkins that Shea was scheduled to be fired that day and asked whether Clark investigations for Dilley and Franklin to be able to do their jobs properly should go ahead as planned . Harkins told Carlson to hold up until he heard from San Francisco . The Pacific Department consulted Wesley Sizoo, Respondent 's lawyer. Later in the day, Harkins called Clark and, pursuant to Sizoo's advice , revoked the decision to discharge Shea. A few days after March 11 Dilley learned that Christensen had been talking to some of the girls in the office about the organizing campaign Dillcy told Christensen to ask him or Shea. not the girls, it he had any questions about the Union . Christensen reported this conversation to Clark. Sometime around this date Christensen wrote a note to Clark in which he stated that Dilley was spending too much time on union activities and not enough time on his work This followed a conversation with Dilley in which Christensen told Dilley the same thing When the anniversary date of Shea's hiring came up in March, he was passed over for a raise It was during this period following the filing of the petition in Case 20-RC-8037 that general conversations about the organizing campaign, what was going to happen next, and who would be included in the unit were particularly common in the otlice. These conversations are treated in greater detail in section A, 2 , a, above. On April 19 the hearing in Case 20-RC-8037 was held at the Board' s office in San Francisco to resolve disputes over who should be included in the unit. Clark testified for Respondent . Dilley and Karen Shiraki, an inside adjuster, testified for the Union. In early May, while Dugan was on vacation, Clark reviewed Shea's case files with him, pointing out areas in which Shea' s work was deficient . The deficiencies consisting of not having done things which ought to have been done such as interviewing a witness to an accident or, if the thing had been done, not properly reducing it to some tangible form such as a memorandum or a photograph which was present in the file. These criticisms were similar to those voiced by Dugan to Shea throughout their relationship . Shea conceded that Clark's criticisms were justified and promised to try harder . In late May Dugan again came to Clark and discussed Shea's shortcomings Again, Dugan did not recommend that Clark discharge Shea Shea was on vacation the week of June 9-15. On June 8 Clark again decided to discharge Shea. He wrote to Rusty, his superior in San Francisco , that day pursuant to his standing instructions about clearing discharges during this period of union activities On June 17 Rufty telephoned Clark and authorized him to fire Shea. That same day the Regional Director for Region 20 issued his Decision and Direction of Election in Case 20-RC-8037 A copy was received in the San Jose office on June 18. Despite receipt of the decision , Clark called Shea in and discharged him as planned around 5:30 p.m that day. Clark told Shea he had to let him go because his work was not up to par and Dugan had to supervise his files too closely Shea asked whether receipt of the decision in the office that day had anything to do with the decision to terminate him. Clark replied that he did not know what Shea was talking about. Sometime shortly before Shea's discharge the Dilley-Christensen conversation about blacklisting set forth in section A , 2. b. above. occurred. Sometime shortly after Shea's discharge the Dilley-Christensen conversation about next year' s budget set forth in section A, 2, c, above , occurred . On June 21 the Dilley -Christensen conversation about adjuster Bud Mohn set forth in section A, 2, d, above, occurred Sometime during June, at a biweekly adjusters meeting, Clark THE HARTFORD INS. GROUP 583 complimented Dilley on the manner in which he had handled a particular case. Sometime between June 18 and July 15 Christensen told Miss Shiraki, "Dille} better watch it. You know what happened to Shea,' and it's a funny thing, Shea was terminated the same day that NLRB election date was sent down."' Dilley began a 2-week vacation on July 15 That day he acted as the Union's observer in the election in Case 20-RC-8037 Following the election, which the Union won by a margin of 19 to 3, the Clark-Reinheimer conversation set forth in section A, 1. above, took place In July, apparently after July 15 and before July 19. Christensen again recommended to Clark that he discharge Dilley.' On July 19 Jack Birkland, Rufty's assistant in the Pacific Department, inspected the San Jose office Clark asked him to review Dilley's work. Birkland audited all of Dilley's files created in June He told Clark that, if the work prior to June was as bad as it was in June, Dilley probably should be terminated. Dilley returned from his vacation on July 29 That afternoon he was summoned to a meeting with Clark, Harkins, and Christensen. He was told by Clark that Respondent was not satisfied with his work, especially the manner in which he was investigating claims and placing documentation of his work in the files. He was placed on 30-day probation. He was told that if his work did not improve in that time he would he discharged. Christensen suggested that he plan his work more efficiently by coming to the office early each morning and by keeping a log, known as an adjuster's route sheet. of his daily activities. Dilley refused to sign some notes of the meeting which were prepared by Harkins. Dilley did his best to impiove his work during the month of August. He came early to the office most mornings to plan his day's activities and get an early start on carrying out those plans He worked some evenings and Saturdays He kept a daily route sheet and turned it '7 he record is hereby corrected to remove the quotation mark which appears at this point on line 17 of page 162 of the transcript I heard no close quotation mark at this point in the inflection of Miss Shiraki's answer to the General Counsel's request , "Please tell us what was said" Miss Shiraki was not examined further or cross-examined after this question and answer 'As indicated in section A, 2, above, I credit Christensen only where his testimony is corroborated by another witness I found him a superficially frank and candid witness who became extremely evasive whenever the examination, whether direct or ,cross, got into areas dangerous for Respondent His testimony on this episode is illustrative He first denied categorically saying to Miss Shiraki " Dilley better watch it, look what happened to Shea " He was then asked the same thing about the second half of the statement Miss Shiraki attributed to him His reply was that he may have made such a statement in a jovial context to a group of people in the office but not particularly to Miss Shiraki Later, on redirect examination . he was asked , "Did you discuss the union with [Miss Shirakil" Mr Dilley with her7" lie replied , " I may have said , 'What is cooking''' or "What are you people up to" " Then, still on redirect after a long effort to elicit from him what he remembered about his conversations with Miss Shtraki , he was asked, "Are you saying this, that Miss Shiraki might have participated as an observer in some group discussion'"" He replied, "That's correct " Finally, on recross examination , after his recollection was refreshed by an affidavit given to the General Counsel during the investigation of these cases, he acknowledged making "an offhand remark to an employee that it was peculiar that Shea was terminated the same day that the National Labor Relations Board election decision was received " lie went on, "As to whether it was to Miss Shiraki or not, I couldn't answer that " 'The record is unclear on precisely when this happened I gather, however, that it formed a part of Clark's thinking on July 19 when he asked Birkland's opinion about Dilley's work in to Christensen in order to keep his supervisor apprised of what he was doing. On August 29 Clark reviewed Dilley's files which had been created in July He decided to fire Dilley. On the morning of August 30 Dilley was summoned to 'a meeting with Clark and Christensen Clark told Diller that he had reviewed his ides and had come to the conclusion that Dilley had not put forth the effort he said he would and that his work did not show any improvement during the probation period. After a discussion of Dilley's work and shortcomings , Clark discharged Dilley, In November Clark and Reinheimer had a second conversation about Reinheimer's career with Respondent. Clark told Reinheimer that he did not understand why a man with Reinheimer's management potential wanted to get involved in union activities. 10 He pointed out that Rcinheimer s identification with the Union could tip the scales against him it, in the future, he was competing against another employee for promotion to a management position and their qualifications were equal in all other respects. 2 Conclusions First, I do not credit Clark's testimony that he first learned of union activity among employees in Respondent's San Jose office on March II when the petition in Case 20-RC-8037 was served on Respondent Efforts to organize insurance workers in San Jose were admittedly common knowledge as early as January, if not before The situation was sufficiently serious to cause Respondent to take official cognizance of it by instructing Clark to check with his superiors in San Francisco before discharging anyone during this perilous period Therefore, I find that Clark knew full well that Shea and Dilley were the coleaders of the move to organize his adjusters when, on March 8, he made his initial decision to fire one of them i i But to find that Clark knew of Shea's and Dillcv's union activities when he first began thinking of getting rid of them is not to find that he was necessarily motivated by their union activities. It is clear that Respondent's niotite in these cases is Clark's motive. Therefore. whether the discharges of Shea and Dilley violate Section 8(a)(3) and (1) of the Act must turn on an inquiry into the state of Clark's mind "At the time Rcinheimer was active in negotiations between Respondent and the Union as a member of the Union's negotiating team He is still employed as an outside adjuster in Respondent s San Jose office There is no indication that he has been discriminated against in any way because of his union activities "Respondent's brief, in effect , concedes this point It first states, "Clark had no knowledge of the union 's activity in the office until March 11. 1968 This stands unchallenged in the, record and is very significant " However, a page later, in discussing Respondent 's reason for canceling its decision to discharge Shea at that time the brief states, "Shea had announced his advocacv of the union and his work for the union lie had been warned about the low quality of his work for months He was aware his employment was in jeopardy To be discharged on the day an RC petition was received would virtually constitute a threat, defiance and gesture of contempt to the union - even though the two events were pure coincidence, as was the case here For these very obvious and elementary reasons, it was decided on Mr. Harkins' instructions upon consultation with counsel to cancel the plans of discharge on March 11, 1968 A wise and practical decision , forming no basis for inference, innuendo or suspicion (as Mr Orenstem suggested by question) that Respondent had decided to wait until things cooled off" (Emphasis supplied ) 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is much uncontradicted evidence in the record to show that Respondent's incompetence defense is not a blatant pretext. This evidence is particularly strong in Dilley's case. Marvin Franklin, the fill-in supervisor in the summer of 1967, tiled a written report dated August 9. 1967, on the San Jose office with Jack Birkland when he returned to San Francisco. It contains a passage which is especially critical of Dilley '= Dilley was passed over for a raise by Clark in September 1967. Both events took place long before Dilley became involved in any union activities and are, therefore, above the suspicion which attaches to evidence of dissatisfaction with his work growing out of incidents coining after Respondent knew he was trying to bring in the Union. Moreover, all the evidence which dates from the period of Shea's and Dilley's known union activities is not unworthy of belief for that reason. I credit the testimony of Respondent's witnesses, even Clark, when they detail their reasons for concluding that Shea and Dilley were less than outstanding in their work as claims adjusters. A key exhibit in Respondent's case is a stack of more than 125 memoranda written to Dilley by Christensen between January and August in connection with various cases assigned to Dilley. Each one is critical, in some degree, of the work Dilley was doing on the case. A major part of the hearing was devoted to examination and cross-examination of Christensen on the files which gave rise to these memoranda. The General Counsel's point is that the exhibit cannot be taken at face value to throw Dilley out of court It is a point well taken. However, when all the points scored by both sides about all of Dilley's cases, points which I find it unnecessary to detail here, are thrown into the scale, the exhibit does establish that Christensen had grounds for being.crittcal of Dillev's work. But to find that Clark may have had sufficient reason for deciding that Shea and Dilley were not doing their work well enough to continue in Respondent's employ is not to find that he, in fact, reached that decision without being swayed materially by their known union activities The answer still requires a finding as to what was going on in Clark's mind when he decided to discharge them. Two brief excerpts from Clark's testimony especially reveal his state of mind. Neither relates directly to his motive Clark was asked when he found out about Shea's December 1967 automobile accident and under what circumstances. His answer was: I believe on the Monday following the accident, Bob came to me first thing in the morning and told me about it. He told me he had a problem because the police report indicated that there had been some drinking involved and I told him that we had a little problem here because this was a direct violation and he knew it. that I would do what I could to help him out. 1="Bob Dilley was almost completely non-productive in the older cases and Suit files in the hands of our attorneys. He has a mental block in opening these old cases to determine what he should do to move them to closing or pricing Supervisory memorandums failed to secure a proper response Both Dilley and Attorney Chadwick were aware that I desired to set up a conference to compare the Company file with the attorney's file for necessary investigation and pricing However I was unable to make an appointment because Dilley shuns these files as well as the older non-suit files Our attorneys still control the Suit files too much "in newer files, it was noticeable that Dilley suffers from indecision. His background is such that we should not expect this trait Frankly . I doubt that he will remain under John Clark's management . I think he will hang on as long as he can but, if he does not change, John will terminate him when aware of the foregoing shortcomings " I do believe that I spent most of that day in that regard. I felt that at that time that Bob Shea showed a potential to be a very good adjuster. That maybe this would stimulate-him - it is a problem, but,"We will go to bat for you if you will go to bat for me." 1 hoped that Bob would go to bat for us. Clark was asked whether he told Reinheimer, in their November conversation, that his membership or activity in behalf of the Union would interfere with his promotion or progress His answer was No, only to the extent I said, "It will be very possible that if two people of equal ability and equal stature were sitting here and a decision had to he made and everything else was equal, that possibly it could go the other way " Now, this was a very logical statement. The questions were put to Clark by Respondent's counsel. The answers show that Clark thought in terms of loyalty to himself as the personification of Respondent and a penalty to be paid if employees placed any other interest before that loyalty Clark went to bat for Shea because Shea was doing his best to do a good job as an adjuster for Clark at a time when Shea had not turned to the Union to help him in his dealings with Clark. It is logical to Clark that an employee should be denied promotion to management level for turning to a union to help him in his dealings with Clark. Therefore, I find, for the following reasons, that but for their union activities Shea and Dilley would not have been discharged by Clark: 1. Both Shea and Dilley had long experience in claims adjusting While both had been with Respondent only a relatively short time and there is evidence that criticism of their work began early in their employment and bel'ore their union activities, neither was so had before his union activities began that Respondent could not use him. 2. Neither Shea nor Dilley was the worst outside adjuster on the San Jose staff. In fact. Dugan testified that Shea's work was about on a par with the work of other adjusters under his supervision. All of them, as Dugan pointed out, have their good points and their bad points, and both Shea and Dilley carried approximately 150 cases up until their discharges, the workload of a fully qualified journeyman adjuster. 3. Shea and Dilley were not unique in the particular shortcomings pointed to by Respondent. All adjusters tail to meet their 15-day and 90-day report deadlines from time to time. All adjusters have to be prodded by their supervisors from time to time to perform various chores. That is the nature of the supervisor's job and one of the main reasons for his existence. And memoranda from supervisor to adjuster are a normal way of applying that prod, so that the fact that Christensen wrote numerous critical memoranda to Dilley is of no special significance. even if the number is greater than he wrote to any other adjuster under his supervision, as Christensen claimed. 4. Clark discharged Shea despite the fact that Dugan thought Shea was good enough to work for Respondent and did not recommend his discharge even though Dugan did complain to Clark about Shea's work Yet Mackey, the only adjuster who was discharged by Clark other than Shea and Dilley insofar as this record reveals, was discharged on Dugan's express recommendation. 5. Respondent condoned Shea's violation of a strict rule against driving a company car while drinking prior to Shea's union activities 6. Both Shea and Dilley were assigned new cases just before they went on vacation. Shea was discharged soon alter he returned, Dilley was placed on the probation which led to his discharge. In each case a significant THE HARTFORD INS. GROUP 585 development in Case 20-RC-8037 took place in the interim. In Shea's case Clark learned that an election was going to be held. In Dilley's case Clark learned that an overwhelming majority of the employees in his department wanted to be represented by the Union. 7. Christensen told Miss Shiraki, in effect, that Shea had been discharged for his union activities and Dilley was in the same danger. While I do not inter from this conversation that Clark had taken Christensen into his confidence or that Christensen was making a confession of motive which is binding on Respondent, I think that Christensen's remark accurately reflects the atmosphere prevalent in the San Jose office during the organizing campaign and that Christensen, as a supervisor, was in a position to be aware of Clark's attitudes and opinions. 8 Franklin's report dated August 9, 1967, on his brief tour as a claims supervisor in the San Jose office does not establish Dilley's incompetence. The fact that Dilley lasted moie than a year after Franklin made his observations, standing alone, might be attributed to Clark's forbearance. However, immediately following the part of Franklin's report which I have quoted in footnote 12 above appears the following paragraph: Gil Cooper is working but you cannot tell how effectively. His files are very poorly documented. During his two-week vacation, it was almost impossible to take action on his files, because we never knew where he stood His "Full Cap." Report is not supported by documentation. He carries too much in his head There are frequent complaints that he fails to contact on schedule or return telephone calls. His future is also in doubt in my personal opinion. Cooper was promoted in February to the managership of Respondent's office in San Luis Obispo 9. The records of the home office audit of the San Jose office carried out in late February do not support Respondent's position that Shea and Dilley were discharged solely because of their incompetence. Notes made on the various files created in November 1967 show that every adjuster was criticized for his handling of cases. Lloyd Stallcup's cases are especially noteworthy in this respect. For example, the auditor's remarks on case AL79966, show Christensen as Stallcup's supervisor. indicate that Stallcup's 15-day report was late and then continue, "no claimant statement; no interview form or authorization or verification of medical." This is precisely the point Respondent was making as its reason for finding Shea and, especially, Dilley incompetent, i.e.. that they did not place in the files sufficient documentation of the work they had done to permit others to pass on the claim and their work in connection with it. Moreover, the field inspection report from which I have extracted comments about Shea and Dilley set forth above contains more derogatory comments about other adjusters, especially Stallcup. There are 9 "code 12" adjusters listed in this report. Three of them, Reinheimer, Fred Samler, and Norman Womack, are deemed "too new to evaluate." George Lucero is rated good in all aspects of his job. Puryear would seem to be rated a little higher than Shea and Dilley since the comments on him read, "Aptitude is good, initiative is fair, ability as negotiator and investigator fair, but improving in more recent assignments. Present assignment as a resident adjuster should reveal his further potential." But the comments on Smith place him at best on a par with Shea and Dilley in the opinion of the inspectors ("Aptitude is fair. Initiative is fair. Ability as negotiator and investigator is fair, prior to leaving us. Improvement noted since return in February"). And their comments on Stallcup place him well below Shea and Dilley ("Aptitude is fair: initiative is poor; ability as negotiator is poor with attorneys, fair with general public: ability as investigator is poor. Potential is limited"). Yet Smith was rehired by Clark in February after quitting in December 1967, and Stallcup is apparently still employed by Respondent in the San Jose office 10. Shea was discharged despite the lailure of his immediate supervisor, Dugan, to so recommend. In fact. firing Shea was so far from Dugan's mind that, when Shea returned from vacation on June 17, Dugan reviewed Shea's files with him and gave him 2 weeks in which to correct deficiencies Dugan found in them. Dilley, on the other hand. was placed on probation and ultimately discharged shortly alter his immediate supervisor, Christensen. recommended his discharge. The fact that their cases differ in this normally significant respect does not establish that Clark was differently motivated in the one case than in the other The distinction grows out of a difference in the personalities of Dugan and Christensen, not out of any significant difference in the level of Shea's and Dilley's competence. Dugan is a somewhat phlegmatic pragmatist, as evidenced by his ability to get along with Shea despite the fact that Shea's shortcomings sometimes annoyed him. Christensen is an abrasive supervisor frequently at odds with those under him. Smith quit in December 1967 because he could not get along with Christensen. When he returned in February after discovering that the job he had gone to was not as good as the one with Respondent he had quit, Clark assigned him to Dugan's supervision. Cooper took umbrage at the style and tone of a memorandum Christensen wrote to him in December 1967 or January 1968. Clark reprimanded Christensen Clark was fully aware of Christensen's propensity for alienating those under him when Christensen came to hint about Dilley. For these reasons, therefore, 1 find that, despite grounds he may well have had, Clark would not have fired Shea and Dilley if they had not been the leaders in the Union's drive to organize the employees under him When Clark discharged Shea on June 18 and Dilley on August 30 for that reason, Respondent violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, and on the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. The Hartford Insurance Group is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 United Industrial Workers of North America, Pacific District, affiliated with Seafarers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 By threatening employees with reprisals, including discharge and blacklisting in the insurance industry, for their union activities, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act. 4. By discharging Robert E. Shea on June 18, 1968, and Robert E. Dilley on August 30, 1968, because of their union activities, Respondent has discriminated with respect to their hire and tenure of employment, discouraging membership in the above-named labor 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, and thereby has violated Section 8(a)(3) and (I) of the Act. 5. The aforesaid unfair labor practices arc unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The allegations of the consolidated complaint that Respondent violated Section 8(a)(1) of the Act by Claims Supervisor Carlin P. Christensen's interrogations of employees during March 1968 and on or about July 21, 1968, and by Christensen's advising an employee on June 21, 1968, that Respondent had assured employees permanent employment upon the condition they would vote against representation by the above-named labor organization have not been sustained THE REMEDY Having found that Respondent has engaged in unfair labor practices, L will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent has discriminated against Robert E. Shea and Robert E. Dilley Therefore, I will recommend that Respondent otter each immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make each whole for any loss of earnings he may have suffered as a result of his discharge by paying to him a sum of money equal to that which he normally would have earned as wages from the date of his discharge until the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F W Woolworth Company. 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716 Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following' RECOMMENDED ORDER The Hartford Insurance Group, its officers , agents, successors, and assigns, shall 1. Cease and desist from: (a) Threatening its employees with reprisals for their union activities (b) Discriminating against its employees in order to discourage membership in United Industrial Workers of North America, Pacific District, affiliated with Seafarers' International Union of North America, AFL-CIO, or any other labor organization (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2 rake the following affirmative action which is necessary to effectuate the policies of the Act (a) Offer to Robert E. Shea and to Robert E. Dilley immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and prn ileges previously enioycd and make each whole for any loss of pay suffered as a result of Respondent's discrimination against him in the manner set forth above under "The Remedy." (b) Notify Robert E. Shea and /or Robert E. Dilley if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request. make available to the Board or its agents. for examination and copying, all payroll records, social security payment records, timecards. personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its office in San Jose, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 20. after being duly signed by Respondent's representative, shall he posted by it immediately upon receipt thereof, and be 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith." I FURTHFR RECOMMEND that the complaint be dismissed insofar as it alleges that Carlin P. Christensen interrogated employees during March 1968 and on or about July 21, 1968, regarding their membership in or activities on behalf of the Union and that Christensen advised an employee on June 21, 1968, that Respondent had assured employees permanent employment upon the condition they would vote against representation by the Union "in the event that the Recommended Order is adopted by the Board, the words "this notice is posted by order of the National Labor Relations Board alter a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, the Hartford Insurance Group, violated the National Labor Relations Act, and ordered us to post this notice," shall be substituted for the words "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 Relations Ac,t, as amended, we hereby notify our employees that." in the notice In the further event that the Board's order is enforced by a decree of the United States Court of Appeals, the words "this notice is posted by order of the United States Court of Appeals" shall he substituted for the words "this notice is posted by order of the National Labor Relations Board " "In the event that this Recommended Order is adopted by the Board this provision shall be modified to read. "Notify the Regional Director for Region 20, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMI'LOYEFS 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 Relations Act, as amended, we hereby notify our employees that The Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection, and To refrain from any or all of these things. THE HARTFORD INS. GROUP WE WILL NOT threaten to fire you or blacklist you in the insurance industry if you take part in union activities. WE WILL immediately offer to reinstate Robert E. Shea and Robert E. Dilley to their former or substantially equivalent jobs %k ithout any change in the seniority or other privileges they enjoyed before we discharged them and we will pay to them any money they lost as a result of our discrimination against them with interest at 6 percent. WE wli.i notify Robert E. Shea and/or Robert E. Dillcy, if either or both of them are presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to join or not join United 587 Industrial Workers of Forth America, Pacific District, affiliated with Seafarers' International Union of North America, AFL-CIO, or any other labor organization. Dated By THE HARTFORD INSURANCE GROUP (Employer) (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197.