Fireman's' Fund Insurance Co.

FIREMAN'S FUND INSURANCE COMPANY 471 Fireman's' Fund Insurance Company and United Industrial Workers of North America, Pacific District, affiliated with Seafarers' International Union of North America, AFL-CIO. Cases 20-CA-4923-2 and 20-CA-5072 November 4, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On July 7, 1969, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board reviewed the rulings of Trial Examiner Wallace R. Royster made at the hearing' and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered Trial Examiner Paul E. Weil's Decision, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings,4 conclusions, and recommendations of Trial Examiner Weil. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor in many of the pleadings and in the Trial Examiner's Decision, "Fireman's" is incorrectly spelled "Firemen's " This inadvertent error is hereby corrected 'Subsequent to the close of the hearing but before briefs were filed, Trial Examiner Royster died Thereafter, on March 12, 1969, Chief Trial Examiner George Bokat issued an Order advising all parties that any party desiring a hearing de novo should notify him on or before March 24, 1969, and that if no such notification were received by that date further hearing would be deemed waived, and a new Trial Examiner would be appointed to prepare a decision on the basis of the existing record No parties responded to the Chief Trial Examiner's Order, and thereafter, on March 26, 1969, he designated Trial Examiner Paul E Wed to prepare and issue a Trial Examiner's Decision 'Respondent's request for oral argument is hereby denied as the record, including the exceptions and briefs, adequately sets forth the issues and positions of the parties 'Trial Examiner Wed inadvertently found that, during the past year, Respondent received premiums in excess of $50,000 from California branch offices from the sale of insurance to customers located in the State of California The complaint alleged, and Respondent's answer admitted, that, during the past year, Respondent received premiums in excess of $50,000 from its California branch offices from the sale of insurance to customers located outside the State of California, and the Trial Examiner's Decision is hereby corrected to so show Relations Board adopts as its Order the Recommended Order of Trial Examiner Paul E. Weil, as modified herein, and hereby orders that Respondent, Fireman's Fund Insurance Company, San Jose, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(c), and reletter the following paragraphs accordingly: "(c) Notify said employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 2. Add the following as the last indented paragraph of the Appendix: WE WILL notify John C. Jordan if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E WEiL, Trial Examiner On April 5, 1968, United Industrial Workers of North America, Pacific District, affiliated with the Seafarers' International Union of North America, AFL-CIO, hereinafter called the Union, filed a charge in Case 20-CA-4923-2 against Firemen's Fund Insurance Company, hereinafter called Respondent On June 27, 1968, the Union filed a charge in Case 20-CA-5072 against Respondent Both charges alleged that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discharges and other conduct The matters were consolidated by the General Counsel, by the Regional Director for Region 20, and the complaint issued on September 16, 1968, alleging the discharge of John C. Jordan as a violation of Section 8(a)(3) of the Act and two incidents, on January 22, 1968, of interrogation of employees by Claims Supervisor Roy Denman Thereafter, by its duly filed answer Respondent admitted various allegations of the complaint but denied the commission of any unfair labor practices. The matter came on for hearing commencing November 21, 1968, and at various dates thereafter and closed January 9, 1969, before Trial Examiner Wallace R Royster During the course of the hearing on January 7, 1969, Trial Examiner Royster dismissed the paragraphs of the complaint alleging independent violations of Section 8(a)(1) and any further reference thereto in the other paragraphs of the complaint This was done on the motion of Respondent but without objection from the Charging Party or the General Counsel in view of the fact that the allegations were not supported by evidence' The only issue remaining 'It appears that the witness upon whom the General Counsel relied for support of these allegations did not appear at the hearing 179 NLRB No. 78 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the complaint thus is the alleged discriminatory discharge of Jordan At the close of the hearing the parties waived oral argument and were given until February 15, 1969 , to file briefs Subsequent to the close of the hearing and before briefs were filed Trial Examiner Royster died The Trial Examiner having thus become unavailable to the agency within the meaning of section 554(b) of the Administrative Procedure Act (5 U S C Section 554( b)), Trial Examiner Paul E . Weil was assigned to consider the record and prepare a decision in accordance therewith Upon the entire record and in consideration of the briefs, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT It is alleged and admitted that Respondent is a California corporation with a branch office located at San Jose, California, engaged in the sale and service of life, casualty, auto, fire, and health insurance through branch offices located throughout the United States, that during the past year Respondent, in the conduct of its operations, received gross revenues in excess of $500,000 and that during the same period of time received premiums in excess of $50,000 from California branch offices from the sale of life, casualty, auto, fire, and health insurance to customers located in the State of California Respondent is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union at all times relevant hereto has been a labor organization within the meaning of Section 2(5) of the Act III THE EFFECT OF THE UNFAIR LABOR PRACTICES A Background The San Jose office of Respondent has some 140 employees , headed by Branch Manager Smyth Edward R Stern , the San Jose claims manager, has under his supervision five supervisors, a staff attorney , several inside adjusters , and 14 or 15 outside adjusters , one of whom was John C Jordan, the alleged discriminatee herein Prior to the incidents involved herein, the employees at the San Jose branch were unorganized. Around the first of the year in 1968 Jordan contacted the Insurance Workers Union in an effort to gain representation for the adjusters from that organization A meeting was arranged and held on January 181 at a San Jose motel . All the outside adjusters were present and signed cards authorizing the Insurance Workers Union to represent them. On February 20, Jordan , and other employees were notified by the Insurance Workers Union that it "felt they were not in a position to assist us [the employees] in organizing" and Jordan met with an AFL-CIO representative to attempt to find another union which would do so As a result of their consultation , another 'All dates hereinafter are in the year 1968 unless otherwise specified employee meeting was set up on February 22 with the Union This meeting was held at the home of one of the adjusters, Warren Stafford The record does not disclose whether the employees, other than Jordan, signed cards at this meeting, but shortly thereafter a representation petition was filed with the Regional Office of the Board The Respondent was aware of the union organization almost as early as the employees Stern testified that a meeting of Respondent's managerial staff, including Smyth, Stern, and the San Jose personnel officer, as well as regional and home office executive, was held on the same day as the initial employee organizational meeting, January 18, and the Union was a subject of discussion' On January 29 Branch Manager Smyth called a meeting of all the employees in the branch office at which he told them that the Company was aware of the union activities among the employees and that he wanted to state that the Company's position was that union organization was unnecessary and undesirable and that the Company was determined to fight and had retained one of the best labor lawyers in the country He added "I would like to warn you about these cards, and I am not sure I understand it myself, that I am advised that under certain circumstances the Union can go ahead and negotiate without an election ' Smyth also stated that Respondent would not recognize the Union and that undoubtedly there would be underhandedness by both sides. Following Smyth's meeting Stern called the claim adjusters together in the conference room where he asked whether he had ever tied to any of them Receiving no answer he stated that he was disappointed because there were problems and the adjusters had not come directly to him with them and then asked each of the individuals individually what their problem was, starting with Mr Stafford Stafford answered that he thought Stern's standards were too high and stated in effect that the last person who lived up to these standards was crucified on the cross Thereafter on various occasions various officers of the Respondent held meetings with the adjusters at which meetings Respondent offered to discuss the problems of the employees and indicated that promotions and salary increases were being considered. At one of these meetings Lambert, the western regional administrative executive, was asked what Smyth had meant by his reference to underhandedness Lambert stated that he was unaware that this statement had been made but Staff Attorney Glaspy confirmed that it had been made. At two of these meetings, February 19 and March 22, Jordan interrupted the discussion pointing out that the employees had a right to be represented and that they believed that discussions concerning their working conditions should be held with their representatives 5 B. The Discharge of Jordan On March 27 Claims Manager Stern called Supervisor LaRosa and Jordan into his office At this meeting apparently LaRosa said nothing. Stern asked Jordan if he 'It would appear that they met at the same motel for Jordan testified that he saw the branch personnel manager at the motel at the time of the union meeting 'This appears to be an obvious reference to the varying decisions of the circuits in regard to the Cumberland Shoe ( 144 NLRB 1268) line of cases with regard to representations that cards would be used only to secure an election The statement reveals that Respondent was indeed at this time advised by an experienced labor lawyer 'The complaint contains no allegations with regard to statements made at any of the meetings Accordingly , no findings are made with regard thereto FIREMAN'S FUND INSURANCE COMPANY would argue with him if Stern told him he was doing a good job and Jordan replied he would not. Stern then asked what his reaction would be if he told Jordan that he was not doing a good job. Jordan answered only "No comment." Stern responded "That's as good as a comment. So you admit you're not doing a good job." He warned Jordan that he had 30 days to clean up his files or Stem would resort to "drastic action" and then questioned Jordan about a charge filed by the Union the previous day.6 Stern also mentioned the representation hearing which had commenced the day before. He stated that it had been continued but could have been concluded if the Union's attorney had wished.' On April 2 Stern again called Jordan and LaRosa into his office and asked Jordan if he understood that by "drastic action" he meant "termination." Late in May, having heard nothing, Jordan asked Stern if a decision had been made. Stern replied that no decision had been made at that time. In early June LaRosa came to Jordan at his desk and said he had a few questions. Jordan asked about what and LaRosa said, "Well I would like to know what you think it would take to resolve the problems and the situation." Jordan asked what situation. LaRosa admitted that he was referring to the Union. Jordan answered, "Frankly Ralph I have been here 2 years. This is the first time anybody has ever asked me what I thought it would take to resolve some of the problems that we have got." Jordan went on to say that he thought the Company was simply attempting to disrupt union organization. LaRosa answered, "Well that's probably true but I've got a job to do. What do you think it would take to resolve it?" Jordan suggested that the Company recognize the Union and sit down and negotiate. LaRosa persisted "Well then what would you talk about?" Jordan answered that that would be determined when they commenced negotiating. On June 18 Jordan was called in Stern's office. LaRosa again was present. Stern stated that he and LaRosa had reviewed the files and feel that there was no improvement and terminated him as of the close of that day, giving him a check in lieu of notice. He asked Jordan if he had any comment. Jordan replied in the negative. Jordan asked whether he would receive his vacation pay and was told that he would not get the vacation pay because he was terminated. He answered "Well, we'll see." The Position of the Parties The General Counsel contends that Jordan was terminated because of his "continued and persistent efforts to bring in a union" and further contends that the alleged reason is implausible and incapable of standing scrutiny and accordingly as in Shattuck Denn Mining Corporation, 151 NLRB 1329, enfd. 362 F.2d 466 (C.A. 9), affords a reasonable basis for finding the discharge to be unlawful. Respondent contends that the General Counsel has not sustained a burden of proof that Jordan was discharged because of discrimination and contends that Jordan was terminated because "he was not doing that which he was being paid for." Respondent stated "When good cause for discharge appears, the General Counsel must do more than discover some evidence of improper motive ; he must 'Not one of the charges involved herein, 'Stem's account of this conversation omitted but did not deny reference to the charge and the representation hearing. In the absence of a denial I conclude that statements were made as reported by Jordan. 473 find an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one. The mere existence of anti-union animus is not enough. The fact that the employer may not be despondent over the discharge does not mean that his motive was a discriminatory one." It is of course no part of my function to determine whether a ground alleged by an employer for discharge is "good," "bad," or "unreasonable." As Respondent correctly points out, an employer may discharge an employee for any reason or no reason save that he may not discharge an employee to discourage union activities or to interfere with, restrain, or coerce employees in their exercise of union or concerted activities. The issue herein is not how "good" the ascribed cause may be but whether the discharge was consummated for discriminatory reasons. If the discharge was consummated for discriminatory reasons, it does not matter whether there was good cause or not, the discharge is violative, and if the discharge was not for discriminatory reasons, it does not matter whether the cause was good or reasonable, no violation is made out. The Board and the courts have recognized that it is seldom indeed that an employer admits discharging an employee for reasons prohibited by Section 8(a)(3). Almost invariably it is necessary to reach a conclusion with regard to the validity of a discharge by a consideration of all the elements in the record and by reaching a reasonable inference therefrom. This does not mean that the reason alleged by Respondent for the discharge is not to be considered. If the record reveals that Respondent's alleged reason is specious or discriminatorily applied this factor reasonably supports an inference that the reason is pretextuous and a further inference under some circumstances that the discharge is unlawful, In the instant case Respondent makes no secret of its animus with regard to the Union. It does not deny that it was prepared to and did fight the union organization. It admits that it knew of Jordan's involvement with the Union and that it was not "despondent over the discharge." In support of its defense Respondent produced and placed in evidence files of 46 claim investigations in which Jordan was involved contending that it was on the basis of all of them that Claims Manager Stern determined that Jordan must be discharged.' Respondent in its brief states "Jordan admitted that from August 1967 until the date of his termination he was producing less than prior to that period." This is a misstatement of the testimony. Jordan admitted that commencing in March 1968 until his termination his production was impaired. He stated that he believed that this was due to problems that he encountered that appeared to be peculiar to him and in explanation of that statement testified that he had difficulty in locating files that had been on his desk and appeared to have been The 46 files are constituted of some 3,500 Xerox copies of documents Relevant features thereon are not always easily read, in some instances because the photocopy process was inadequate, and in some few instances because pertinent markings do not appear due to the superimposition of another document in the Xeroxing process . In some instances the examination and cross-examination of the identifying witness, either Stern or LaRosa, based on the original documents reveals markings that do not appear on the Xerox copies. In such instances, there having been no challenge to the record as to the entries read into it, I concluded that the entries appear in accordance with the testimony I carefully perused each of the some 3,500 documents and my findings with regard to the exhibits are based upon this perusal as well as upon the record statements. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken therefrom Sometimes, he stated, he would find them on LaRosa's desk LaRosa testified that this was nothing peculiar to Jordan, that he took files from the desks of all of the men who worked for him in order to review them when it was necessary, and that he did this no more with Jordan than with other employees His explanation however fails to take into account the fact that during the months of March, April, and May it is clear that Stern, LaRosa, and a third man, Dittman, reviewed most if not all of the files handled by Jordan from the inception of his employment According to Dittman he also reviewed the files of Stafford and of one Brainard ' It would appear, therefore, that there must have been more instances of files being taken from the desks of Jordan, Stafford, and Brainard than of other claims adjusters at the San Jose office Also LaRosa said that his supervisory review of the investigative files generally took place as a result of an office procedure known as "diary," under which files were taken from the permanent files by the clerical employees and brought to him on dates established by the supervisor Accordingly, most such files would appear to come not from the adjuster's desk but from the claims file cabinets Additionally, Jordan testified that he encountered a problem of receiving requests in files for items not specifically necessary in his judgment or in what he conceived to be the general judgment of the average adjuster. I shall deal with this below. The record reveals that Jordan was one of the highest paid adjusters in the San Jose office He had come to the Respondent's employ with prior experience and, until February 1968 judging by the files which I have reviewed, encountered no substantial difficulty with his supervision. It is clear from the content of the files as well as from the testimony of Dittman that Jordan is an intelligent and well-educated man.10 Jordan testified that he carried a caseload in excess of 120 files at a time in an average month. It is apparent from the 46 files which I have reviewed that many of them necessarily would take many months to complete, as for instance in instances where claimants declined to consider settlement until their injuries were completely healed and they were released by their doctors or occasionally where they were represented by counsel who for one reason or another were in no hurry to complete action on a case. With reference to the files introduced in evidence by the Respondent a number of specific complaints recurred in a number of files. For example Respondent made much of Jordan's "custom" of putting undated memoranda in the files; in the 46 files considered 7 such memoranda were pointed out As the General Counsel pointed out in the same 46 files 6 undated memoranda written by persons other than Jordan including Stern and his supervisor LaRosa also appeared. Respondent complained that Jordan customarily took the file contents out of the office and introduced a number of memoranda indicating that when the files were reviewed they contained no contents. Jordan admitted that he had breached this rule on occasion stating that he took file contents home to work on them It appears in at least 'Brainard was named as an alleged discriminatee in the charge in Case 20-CA-4923- 2 However no allegation appears in the complaint with reference to him nor was any evidence concerning him adduced at the hearing "Dittman testified to his recollection of Stern stating that he thought Jordan may have more brains than both he and Dittman put together but he wasn't performing three of the exhibits that Jordan was engaged in settlement negotiations at the time the files were called for from which I deduce he took the contents with him for the purpose of the negotiations. Stern testified on direct examination that in September 1967 at a meeting of all claims adjusters he promulgated a rule that had not theretofore appeared either in the manual or otherwise, that file contents should not be removed from the office Under cross-examination Stern testified that the meeting at which he announced the rule was either late 1967 or early 1968 Jordan testified that he first learned of the rule at a meeting in February 1968 Admittedly thereafter on occasion he took the file contents from the office Respondent complained that Jordan "refused to acknowledge the appearance of attorneys" relying on a number of memoranda from LaRosa to Jordan telling him to acknowledge appearance letters of attorneys by letter. Jordan testified that he ordinarily acknowledged the appearance of attorneys by telephone but that when instructed by his supervisor to do so by letter he did. Warren Stafford, who was called by the General Counsel, testified that he had never acknowledged the appearance of attorneys by letter, always by telephone, although on one occasion he recalled LaRosa advising him to acknowledge an attorney's appearance letter by mail. Nevertheless he testified he continued thereafter to acknowledge such letters by telephone to the date of the hearing There is no contention that any rule has ever been promulgated with regard to acknowledging attorney's letters by mail Perhaps more basic is the complaint that Jordan was late in making investigations, in settling claims, and in reporting adequately or properly on the files. The files adduced indicated in some instances considerable periods of time when no action took place on them that are not otherwise accounted for by the contents of the file However in many instances the files themselves contain material that mitigates the complaint." An example is in Exh R-4 in which Jordan was criticized for his failure to contact claimant File reveals that claimant 's own attorney was unable to contact him from September 1967 until after Jordan's discharge The attorney finally resigned in October 1968 because of the failure of his client to cooperate with him Again in Resp Exh 6 Jordan is criticized for failure to contact an attorney between February and May 22, 1968 The file reveals however that he wasn't assigned the case until April 2 and that he contacted the attorney by letter on April 15 In Resp Exh 7 Jordan was criticized for his failure to contact the claimant The file reveals that after two other investigators had failed to contact and settle the claim, Jordan similarly failed One of the previous adjusters had been told by the claimant that she would not give a statement and Jordan's superior concurred in closing the file when the claimant could not be found and no claim had been filed Resp Exh 9 shows a criticism for Jordan 's delay in contacting the claimant The file reveals that the claimant was unknown when the case was filed in March 1968 Contact was finally made with the stepfather of the claimant , who was a minor He stated there were no damages and he would have his daughter fill out the claimant form which Jordan agreed to send to him The claimant was then out of town Resp Exh 15 contains a memo criticizing Jordan for doing nothing between November 21, 1967, and April 28, 1968 The file reveals that in August 1967 Jordan's then supervisor , Clark, told him to attempt to settle a case and if he failed to return it to Clark for "defense handling " On November 21 the claimant 's lawyer refused settlement and on November 29 Clark told the defense lawyer to proceed to take depositions There's no indication in the file that Jordan had it or had any responsibility for it until it was returned to him on April 24 by Supervisor LaRosa Respondent's Exhibit 16 contains a criticism that Jordan delayed initial contact The file reveals that the accident with which the file in the case is concerned involved a claimant who was a legal secretary and took place on the street in front of her place of employment Before the police arrived her employer, who subsequently appeared as her legal representative, was FIREMAN'S FUND INSURANCE COMPANY 475 The law does not require an employer to be reasonable or just As I have stated above, it is no part of my function to determine whether the complaints of Respondent were reasonable or just but when a review must be made of the alleged reasons for a discharge because they are placed in issue by the employer it is certainly relevant to note that the reasons advanced are not borne out by the facts That is not to say that I find that none of the complaints are valid. On the contrary, some of them are. Unquestionably in some of the files placed in evidence Jordan appears to have been dilatory, but the inference is forced upon me that the complaints did not result from normal supervision and resultant dissatisfaction with Jordan's work. Many of the files reviewed covered a period long preceding December of 1967 when LaRosa became Jordan's supervisor Some files were investigated by others than Jordan and given to him for some specific handling, as for instance to settle. Some of them were handled by other claim adjusters after Jordan's discharge and are presumably complete up to the time of the hearing. It is noteworthy that the respects in which Jordan's performance failed to satisfy his supervision appear also in the work of the other adjusters who handled these files Yet frequently no memoranda appeared critical of the "defects" of the other claims adjusters and when they do appear their tone and tenor is vastly different Stern, LaRosa, Jordan, and Stafford all testified in substantial agreement that almost any file would contain supervisory memoranda detailing additional investigation suggested by the supervisor, recommending courses of action to be taken, or giving instructions as to procedures to be followed The memoranda with which we are concerned in this case which form the basis of the testimony of Stern and LaRosa are of a different order. In the first place many of them are on a form entitled File Audit Check List. Stern was asked about the use of this form both on direct and cross-examination On cross-examination his testimony was marvelously evasive but he testified that he got the forms for his personal use, that he couldn't remember when, that he didn't always use them when he audited files, and that he didn't normally put them into the files Asked "Which files do you put them in" he answered, "The ones that I bring to the hearing is what I'm trying to explain to you " A number of the files contain such file audit check lists signed by R. A. Dittman. Stern testified that Dittman was sent to the San Jose office by the head office to help him out in overcoming a backlog of cases. Dittman testified that one of his functions was to assist Stern in reviewing the files of the adjusters. He testified on direct examination that he reviewed most of the adjusters including Jordan. On cross-examination however it appears that he reviewed files of only three adjusters, Jordan, Stafford, and Brainard. He testified that he reviewed 40-50 files of each of the 3 men and spent no more than 3 or 4 days, perhaps 8 to 10 hours on the job. He also testified that he commenced the reviewing task shortly after he arrived at San Jose in March and that the period during which he worked on reviewing was all in the month of March 1968. He also testified that he placed a written report in every file he reviewed, which he signed. The 46 cases which I reviewed contain 14 file audit check lists signed by Dittman. One of them was dated April 9, one April 13, three April 15, one April 17, one April 19, and seven April 22, 1968. It appears therefore that Dittman was in error in stating that he did all of his reviewing in March On the contrary it appears he did none of it in March I have referred above to Stern's evasive testimony with regard to use of the file audit check lists He was asked "Would it not be true, though, that you reviewed certain of his [Jordan's] files in March and placed file audit check lists in them" and he answered "No " The files that were reviewed contain one file audit check list signed by Stern dated March ll, three dated March 13, three dated March 14, and one dated March 17. 1 found no other check lists signed by Stern among the 46 files Stern also testified that he and Dittman sat together reviewing the files of Jordan at the same time but that neither signed check lists prepared by the other nor did either review the same file as the other although they conversed about the files they were reviewing. This testimony is incredible in view of the dates of the file audit check lists found in the files It is possible that Stern's testimony that he placed no file audit check list in the files in March resulted from his foolish attempt to fence with counsel for the General Counsel and that in fact he placed the check lists which are dated on four days in March in the files at a later time. The dates on which the reviewing was done appear to have significance in view of the timetable with which we are here concerned The first warning to Jordan came from Stern on March 27 and resulted allegedly from conversations between Stern and LaRosa in which Stern had indicated his dissatisfaction with Jordan's work The next conversation, other than that of April 1 where Stern took the occasion to make sure that Jordan knew that "drastic action" meant "termination," was at a date placed by Jordan as late May or early June and by Stern unequivocally on June 12. On this occasion Jordan asked Stern about his status and Stern stated he had not completed the review and he was not near enough completion to be able to give an estimate as to when the review would be completed. Then on June 18 Stern announced to Jordan that he had completed the review and found that Jordan had not improved wherefore he was terminating Jordan Stern testified that customarily any review of a man's files by a supervisor in which anything was found to be wrong resulted in a memorandum to the man. The files which are considered are replete with such memoranda, many of which were pointed to by Stern or LaRosa as containing the complaints upon which they determined that Jordan had to be discharged. From their testimony it would appear that the files must necessarily then contain memoranda dated sometime between June 12 and 18 the date of the discharge since on June 12 Stern admitted that he was not near enough the completion of his review to be able to even estimate when he would be able to finish. Only one memorandum appears dated within this period. That is to be found in Respondent's Exhibit 25 in which there is a memorandum from Jordan dated May 17 to issue a draft, close the file, and return it to him and a memorandum dated June 13 from LaRosa to the file stating "Where is content [sic] " A number of the files contain postdischarge memoranda critical of the work of Jordan, including Respondent's Exhibits 6, 25, 28, and 46. Stern was asked directly on cross-examination if he recalled reviewing any files between June 12 and 18, but he was unable to tell how many, or to identify any of photographing the accident It seems improbable that any initial contact them. with the claimant was possible 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From my review of the files I conclude that Stern made a close review of Jordan's files between March I1 and 17 Thereafter having warned Jordan he had files reviewed by Dittman during the period of 2 weeks in April.' z It is clear from the content of the check lists signed by Dittman that he did not approach his task in a dispassionate manner nor prepare his check lists in an effort to enlighten the reader. I deduce this from the fact that I found that many of the items checked as missing or unverified were in fact verified or present in the file at the time he reviewed them On one occasion (Respondent's Exhibit I) he checked boxes indicating that the damages were unverified and conditional handling neglected and supervision inadequate and then stated that there were no contents in the file. This is at least a redundancy. The same appears on the check lists found in Respondent's Exhibit 10 A number of the files reviewed by Dittman were already closed when he reviewed them although his review does not so indicate. Respondent's Exhibit 31 is an example of this. The case was settled on April 1, for a total of $25, he reviewed it April 22. Respondent's Exhibit 17 had been settled on April 19 and reviewed by Dittman on the 22d and Respondent's Exhibit 32, reviewed by Dittman on the 15th, contained an instruction to close the file dated April 12 Similarly Respondent's Exhibit 38 reviewed on the 22d of April by Dittman was closed on April 4. Dittman thought this was open too. Of course I cannot conclude that these files were not reviewed during the relevant period However it appears from the content of the files that any review made by LaRosa or Dittman resulted in a memorandum to the file unless they found nothing wrong with it. Stern testified that this was the case with regard to LaRosa, and Dittman testified that he put a signed memorandum in each file he reviewed. It is equally clear that LaRosa appeared to lose no opportunity to put a critical memorandum in any file of Jordan at any time after February 1968 Accordingly, I conclude that Stern's testimonial evidence to the contrary notwithstanding, little or no review was made after June 12 and in fact most of the review took place during the month of April by Dittman and in May by La Rosa. We are left then to wonder why if the review by Dittman and LaRosa disclosed in May that Jordan was a hopeless employee as Stern testified, he was not in a position on June 12 to say so. Conclusions I conclude that John Jordan was discharged because of his activities first on behalf of the Insurance Workers Union and then on behalf of the Charging Party. Bearing in mind Respondent's animus with reference to the union organization, both demonstrated and admitted on the record, and with regard to Jordan as the instigator and proponent of the Union; with its knowledge of Jordan's position with regard to the Union demonstrated and admitted on the record, I base my conclusion on the following factors: I Timing It is clear that from the inception of union organization Respondent was well provided with information with regard thereto The first union meeting on January 18, 1968, with the Insurance Workers Union coincided with a meeting of company officials on the same "While he testified that this review was completed on Sundays none of the audit review check lists are dated on Sundays The greatest number which appear were dated on April 22, a Monday date at which union organization was discussed. The "warning" delivered by Stern to Jordan on March 27 was the day following the representation hearing held in San Francisco and immediately succeeded the filing of a charge by the Charging Party concerning both of which Stern queried Jordan during the confrontation and finally the discharge on June 18 came shortly after LaRosa, apparently acting on instructions of his superiors, attempted to interrogate Jordan with regard to what issues existed between the Employer and the employees that would have to be resolved by the Company Jordan's answer left no doubt that his adherence to the Union continued and that he was not interested in side bar negotiations with a view to undercutting the Union's position 2. The inconsistencies in the testimony offered by Respondent with regard to the alleged reason for Jordan's termination, which I have spelled out above, convince me that Respondent is guilty of the unfair labor practice charged The failure of the documentary evidence to support the frequently conclusionary testimony of Stern, Dittman, and LaRosa not only as to dates, which in view of the timing aspect of the case are vital, but with regard to contents of the files which directly contradict the criticisms levied on the basis of those same files against Jordan, gives rise in my mind to an inference that the alleged basis for the discharge is pretextual and that the discharge was, as charged, because of Jordan's union activities. 3 The failure of the evidence to support the reason given for Jordan's discharge supports the inference that the reason given is not the truth For instance in Respondent's Exhibit 3 Stern testified that he was directed to the file by a phone complaint from the agent who wanted to know the status and had requested it several times. The file however contains no evidence of any requests for status by the agent and on cross-examination Stern testified that he never got a phone call on this case Stern testified that one of the complaints he had was that Jordan failed to contact an attorney from February until May 22 The file reveals that Jordan wasn't given the file until after April 2 and that he had contacted the attorney by letter on April 15. In Respondent's Exhibit 7 Jordan was criticized for failing to contact the claimant. The file reveals that Jordan's supervisor concurred in closing because the claimant couldn't be found either by Jordan or by the credit bureau through which Jordan had attempted to find the claimant. Respondent's Exhibit 20 contains an excellent example in point A memorandum dated May 7 from LaRosa asks for the police report to be obtained. However the police report was already in the file and its presence was noted in Jordan's memorandum of April 15. The memorandum also asks for photos of the cars involved. The file had contained, since January 25, photos of one of the cars and it appears that the other had been repaired prior to the assignment of the case to Jordan. Finally, the same memorandum requires that the investigation be completed on May 3, 4 days previous to the request. Respondent's Exhibit 29 shows criticism of Jordan for failure to take statements, supply pictures, and otherwise investigate. No claim was ever filed in this case and the adjuster was obviously aware of the fact that the damages were minimal On cross-examination Stern admitted that in this kind of a case the adjuster is warranted in paying for a small claim rather than spending time conducting,a full investigation. The example given above, as well as the examples given in the "discussion" section of this Decision reveal that FIREMAN'S FUND INSURANCE COMPANY many of the complaints against Jordan were specious in whole or in part While it appears that Jordan was by no means a perfect investigator it is clear, as Dittman testified, that flaws could be found in almost any investigation file of almost any investigator. The reliance herein of Respondent not only on such flaws as do appear but on concocted flaws is more consistent with the building of a defense than it is with a good-faith discharge for cause. My conclusion, based on the factors set forth above is corroborated by the actions of Stern and LaRosa on March 27 and in early June respectively. It appears from the fact that Stern attempted to interrogate Jordan at the time he gave him his "drastic action" warning that, as the General Counsel puts it, these subjects were uppermost in his mind when Jordan was called in that day and "that his admonitions to Jordan about his work were mere feints." Thereafter Respondent made no effort to apprise Jordan of the problems that they were allegedly having with his work or discuss them with him but again, as the General Counsel points out, the next time they sought him out was on the occasion of another interrogation in early June by LaRosa having to do with union matters but having nothing to do with Jordan's work. Based on all the considerations set forth above I conclude and find that Jordan was discharged in violation of Section 8(a)(3) and (1) of the Act in order to discourage his and other employees' activities on behalf of the Union. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent has discriminated in regard to the tenure of employment of John C. Jordan, it will be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and that he be made whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of the sum of money equal to that which he normally would have earned as wages from the date of the discrimination until the date of Respondent's offer of reinstatement, less his net earnings during such period. Backpay shall be computed in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co, 138 NLRB 716. The Respondent shall make available to the Board its payroll and other records to facilitate the checking of amounts due. Upon the basis of the foregoing findings of fact and upon the entire record in this case I make the following: 477 CONCLUSIONS OF LAW I Fireman's Fund Insurance Company is an employer engaged in commerce within the meaning of the Act 2. By discriminating in regard to the hire and tenure of employment of John C Jordan, Firemen's Fund Insurance Company has engaged in and is engaging in unfair labor practices within the meaning of the Act and by such discrimination thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that Firemen's Fund Insurance Company, its officers, agents, successors, and assigns, shall- 1. Cease and desist from (a) Discouraging union and protected concerted activities of its employees by discriminatorily discharging any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 agreement requiring membership in a labor organization as a condition of employment as authorized by Section 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 will effectuate the policies of the Act. (a) Offer to John C Jordan immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges discharging if necessary any employees hired to replace him (b) Make whole said employee in the manner set forth in the section of this Decision entitled "The Remedy" for any loss of pay he may have suffered by reason of Respondent's discrimination against him. (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 offices 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 authorized representative, shall be 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, "In the event that this Recommended Order is adopted by the Board, 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defaced, or covered by any other material (e) Notify the Regional Director for Region 20, in writing, within 20 days from the reciept of this Decision, what steps have been taken to comply herewith " the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "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 have been taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage union and protected concerted activities of our employees by discriminatorily discharging any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights 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 agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959 WE WILL offer to John C Jordan immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. Dated By FIREMEN'S FUND INSURANCE COMPANY (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