National Grange Mutual Insurance Co.

NATL. GRANGE MUTUAL INSURANCE CO. 431 National Grange Mutual Insurance Company and Henry Wilga. Case 3-CA-5079-2 November 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 26, 1973, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, the Charging Party, and theIntervenor filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, National Grange Mutual Insurance Company, Poughkeepsie, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. 1 The General Counsel and the Charging Party excepted to the Administrative Law Judge's failure to find that Respondent violated Sec. 8(a)(3) of the Act by discharging employee wilga. Since we have decided to affirm the Administrative Law Judge's finding that the discharge violated Sec. 8(a)(I) and inasmuch as the possible finding of an 8(a)(3) violation could add nothing to the remedy of reinstatement and backpay herein provided for Wilga, we do not find it necessary to consider whether Respondent additionally violated Sec. 8(a)(3) in discharging Wilga. DECISION FRANK H..ITKIN, Administrative Law Judge: This case was tried before me at Poughkeepsie, New York, on May 18, 1973. The unfair labor practice charge was filed on October 24, 1972, and the complaint issued on April 17, 1973. The issue presented is whether Respondent Company violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging and refusing to reinstate employee Henry Wilga because Wilga had engaged in 1 General Counsel's motion to correct the record, dated June 11, 1973, is granted. 2 Wilga was an alternate to the representative from the Poughkeepsie office. 3 The complaint alleges, the answer admits, and I find andconclude that George Clark was at all times material manager of the Company's union and protected concerted activities. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by counsel, I make the following: FINDINGS OF FACT I. JURISDICTION The complaint alleges, the answer admits, and I find and conclude that Respondent Company, a corporation of the State of New Hampshire, has maintained at all times material its main office and place of business in Keene, New Hampshire; that Respondent also has ' operated approximately 45 district service offices throughout the eastern portion of the United States including its district service offices in Poughkeepsie and Syracuse, New York; that Respondent has been engaged in the property-casualty insurance business; that Respondent, in the course and conduct of its business operations, annually receives gross revenues valued in excess of $500,000 and receives premium payments from several States other than New Hampshire in excess of $50,000; and that Respondent is and has been at all times material an employer engaged in commerce -within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, the answer admits, and I find and conclude that the National Grange Mutual Employees Association (the Employees Association) and Insurance Workers International Union, AFL-CIO (the Internation- al Union) are and have been at all times material labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES Henry Wilga testified that he was employed by the Company for over 14 years as a claims ' adjustor in its Poughkeepsie office; that during November 1971 the Company recognized the Employees Association as bar- gaining agent for its claims adjustors; and that on March 11, 1972, Wilga attended a meeting of the Employees Association in Syracuse with some 15 other representatives and alternate representatives from the Company's district offices.2 Wilga testified that there was discussion at this meeting about the January bargaining session between the Company and the Employees Association. Wilga explained that, at this time, the parties had made "no progress" in their bargaining. In addition, Wilga testified that he was elected chairman of the Employees Association's bargain- ing committee by his fellow representatives. Wilga testified that about March 13, 1972, George Clark assumed the duties of branch manager for the Company's Poughkeepsie office.3 Thereafter, on or about March 20, Clark had a discussion with Wilga in ' Clark's office. According to Wilga, "there was a general discussion about procedures and [Clark's] inquiry as to tWilga's] feelings Poughkeepsie office; that Charles Murphy was vice president in charge of claims for the Company's New York region; that Bradford Mitchell was general counsel, vice president, and secretary at the Company's main office; and that at all times material Clark, Murphy, and Mitchell were agents of the Company acting on its behalf and supervisors within the meaning of the Act. 207 NLRB No. 74 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about [his ] future relationship within the Company....; [Wilga's ] desires for continuation and advancement and [his] overall attitude and thoughts." Wilga recalled that Clark, in describing how the Poughkeepsie office was going to be run, said : "It was going to be by the book or turn in your ball point pen time." Following this meeting, Clark instituted a number of changes in procedures at the Poughkeepsie office. Wilga testified: We were advised that effective almost immediately there would be a cessation of all dictation , that the adjustors would henceforth do all correspondence in long hand. Previously, the adjustors had dictated into dictaphone machines and the secretaries transcribed their material. Further, Wilga testified: ... the diary systems were changed in that each individual adjustor, prior to this time, had his own diary pad on his desk and he would, at his discretion, change the diaries as the files came across his desk. . . . This was changed in that those diary systems for each individual adjustor were eliminated [and] we then compiled two sheets of paper ... a blue sheet was made ' out containing the same information for Mr. Clark's benefit . . . . Those sheets . . . were filed in separate folders in a file cabinet. And Wilga recalled: There began to be a concentration of ... minor files being given to some of the female clerical help for certain aspects of claims work. This had . . . to some degree existed prior to Mr. Clark's arrival, but it was noticeably increased after his arrival. In addition, Wilga noted that "on a gradual basis we were asked to travel beyond our normal territory to do work in other adjustors' areas." Previously, according to Wilga, adjustors worked the same area except for "extremely extenuating circumstances ." Further, Wilga related that the "days in the office" for the adjustors were changed: that the procedure for responding to outside correspond- ence was changed; and that Clark did not consult in advance with the Employees Association prior to making any of these or related changes. Wilga testified that on April 13 and 14, 1972, the Company and the Employees Association held bargaining sessions in Albany; that Wilga attended as chairman for the Employees Association; 4 and that Bradford Mitchell, Charles Murphy, and Darwin Whitney attended as representatives for the Company. Wilga testified that shortly prior to these bargaining sessions , about March 22, he had composed and caused a letter to be mailed to Company Vice President Mitchell, stating, inter alia: At a recent meeting of the National Grange Mutual Employee's Association held in Syracuse, New York, on Saturday March 11, 1972, the 12 representatives present agreed wholly that the Association has been successful in making Management realize the fact that substandard wages and benefits were of concern to ALL employees. This is obvious by the sudden interest shown by Management in their offering of increased benefits to Associates other than Members of this Association, and Management's sudden concern to provide all Associations with composite information of benefits which form an "invisible part of their pay check" (to quote from a recent offering dated March 3, 1972) is we feel further evidence of our efforts. The pattern, timing and manner of presentation of such programs and benefits which were offered in the past and currently, have been presented to the National Labor Relations Board which expressed sincere interest in your approach because the equivalent of such benefits were not offered to this Association at the bargaining table. We were advised by the National Labor Relations Board that to date our organization had not violated any standard, regulation or law set by their department but expressed the opinion that some of our rights may have been violated by Management. We have not, to date, asked that department to actively aid us in our efforts because we are still of the belief that REASONABLE MEN WILL ACCOMPLISH REASONABLE THINGS for the Mutual benefit of all. Being reasonable men we also agreed that it was most unfortunate that our course of action in forming an Association was obviously a direct result of lack of communication, sincere interest and concern for men and women who, in many cases, have had a long, sincere and pleasant working relationship with the Management of the National Grange Mutual Insur- ance Company. According to Wilga, "at the opening of the session on the morning of April 13, the first item on the agenda was that particular letter. Mr. Mitchell demanded to know the origin of that letter and we, as a committee , objected to that demand because we felt it was not a fair and reasonable request for collective bargaining." Wilga recalled that "we were advised by Mr. Mitchell that there would be no bargaining that day unless [the] information [requested by Mitchell was] forthcoming from our commit- tee." Wilga acknowledged that his committee furnished Mitchell with the requested information "because we did not want to leave the bargaining session under those conditions." " Wilga testified that the parties thereafter bargained on April 13 and 14 and that no agreement was reached. Subsequently, on April 24, 1972, Wilga wrote the International Union in order "to solicit information." As Wilga explained, "our Association because of its size was weak in numbers and knowledge and financial back- ground. Additionally, it was the committee's feeling that 4 Also present for the Employees Association were John Knight and Joseph Rossomano NATL. GRANGE MUTUAL INSURANCE CO. 433 after the bargaining session . . . no progress seemed to be in the offing and we felt that we should give the membership an alternative ..., either there was to be a continuation of the Association under the current structure or give them the opportunity to explore expanding our Association and affiliation." Wilga testified that he also spoke on the telephone with Robert Nicklson, vice president of the International Union; that Wilga requested Nicklson to attend the Employee Association's meeting in order to "give us a personal summation of what his organization could offer us in the way of support, knowledge and anything else that might be of benefit to us in our particular situation"; that Nicklson in fact did appear before the Employees Association on May 13; and that at this meeting the membership voted to affiliate with the International Union. At the May 13 meeting, according to Wilga, it was also decided that Wilga would continue as chairman of the bargaining committee with the assistance of International Union Representative Rongione.5 Wilga related that during late May 1972 he met with Clark in Clark's office. According to Wilga, the purpose of this meeting was to present to Clark the "various grievances among the employees." 6 The "grievances" came from the "staff men" in the Poughkeepsie office as well as from the "female clerical help." Wilga testified that he "told [Clark] that there were various grievances in various fields," and they "discussed them quite frankly." Wilga recalled that the grievances included, inter alia, the "factor of dictation"; the use of "diary systems"; the use of "men in and out of other terntories"; and an incident involving Clark's "confrontation with the female clerical help ...."7 Wilga testified that on June 19, 1972, he decided to present these grievances to higher authority. As Wilga stated: Without . . . noticeable response from Mr. Clark, I felt it necessary, as did the members of the office, that someone present our grievances to someone else in a higher capacity . . . the regional manager, Mr. Charles Murphy. Wilga testified that on June 19, which was the first day of his vacation, he visited Murphy in Syracuse. According to Wilga: I [Wilga] gave him [Murphy] the same grievances that I had presented to Mr. Clark and I gave to Mr. Murphy copies of some documents to support my contentions and our contentions .... He [Murphy] said that he was aware that there existed a problem in the Poughkeepsie office and that that following week he 5 On August 11, 1972, Company Counsel Mitchell wrote Union Representative Rongione that, in response to the Union's letter of July l0, 1972, the Company agreed "to substitute the Insurance Workers Interna- tional Union AFL-CIO for the National Grange Mutual Employees Association as the recognized bargaining agent for the Company adjustors working out of the offices . ." as enumerated The parties executed a collective-bargaining agreement during early 1973. 6 Wilga explained some 10 years ago he had worked with Clark and, "It was decided that since I do know him personally I would probably be more easily received in presentation of those grievances .. " z This latter incident, according to Wilga, concerned the release of paychecks directly to employees As Wilga testified. "Mr. Clark confronted was going to confer with Mr. Mitchell and Mr. Whitney and Mr. Clark.8 Subsequently, Wilga telephoned Murphy in order to ascertain "what had transpired at his meeting with Mr. Whitney, Mr. Mitchell and Mr. Clark concerning the grievances that [Wilgal had presented to him." Murphy then apprised Wilga: Management will continue to be management... . That's the way it is. About 4:30 p.m. on July 13, 1972, as Wilga testified, Clark asked, Wilga at the Poughkeepsie office, "what he [Clark] could do to correct the situation that existed." Wilga "reiterated" his previous grievances concerning, inter alia, "men going out of their territories"; "the fact that Mr. Clark had from time to time gone to attorneys without advising the adjustors of these contacts"; "the unreasonable conditions that were being impressed upon us. We were doing a great deal of clerical work" .. . placing incoming material in the files which had not been the case prior to that . . ."; and "the diary system was a problem." Clark told Wilga "that he wished [WiIga] had come to him before [Wilga] went to Syracuse ...." Wilga stated that he "didn't feel [he] owed [Clark] any courtesy since he [Clark], after this specific instance involving the paychecks with the females, didn't show the decency to those people to at least apologize for those actions." Seven days later, about 4:15 p.m. on Thursday, July 20, Wilga received a telephone call from Clark. Clark asked Wilga to leave the office and go to the Camelot Inn in Poughkeepsie in order to meet with Clark and Murphy. At this meeting, according to Wilga, Murphy stated that "management had become aware that there was a personality conflict between Mr. Clark and [Wilga], that the Poughkeepsie office was overstaffed and that [Wilga I was the least competent adjustor in that office." Murphy, as Wilga testified, "offered" Wilga "a transfer to Water- town, New York"; Wilga "was to report in Watertown, New York, on the following Monday at 8:30 a.m."9 Wilga testified that he has lived in Poughkeepsie all of his life; that he owns a home in the Poughkeepsie area; that his wife works as a nurse in a hospital in the area; and that he refused the transfer. Wilga had never been warned or advised of a transfer or termination because of his alleged incompetency. Wilga explained to Murphy: If I [Wilga] had a personality conflict with Mr. Clark, everyone else in the office had a personality conflict also. However, I may have been more vocal about two of the females ... at which time he accused those females of removing those checks from the incoming envelope and giving them to. .. employees without his permission . . It involved two females to such a point that they were reduced to tears, and after the interjection of one of the other male members of the office staff the matter came to a halt." 8 Wilga identified G.C Exh. 4 as the handwritten memorandum which he handed to one of the girls in Murphy's office later that day. Wilga explained that he wrote down "several items [he] had forgotten to mention ... in [their ] personal conversation." 9 Watertown, as Wilga testified, is approximately 300 miles from Poughkeepsie. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. . . . In addition, I challenged his allegation about competency. Clark asked Wilga to "reconsider" his refusal to accept the transfer, whereupon Wilga responded that "under the conditions that were set forth [Wilga] could not accept the offer of transfer on a lateral basis." Wilga was then told that he "would have to consider [himself ] terminated"; he "was told by Mr. Murphy that [he] was to surrender [his] Company car and Company property at 8:30 or 9:00 a.m. the following morning," Friday.10 Linda Schad testified that she had been employed by the Company as a clerk-typist and, later, as a speed-serve claim processor from about May 1970 until early 1973. From January to July 1972, Schad's duties included typing, bookkeeping, setting reserves on insurance files, filing, closing files, and related services. Schad testified that Clark came to the Poughkeepsie office about March 1972 and that, as a consequence, "The men were to do more of the work that the girls had been doing, such as . . . cut-ins,[a form of filing]. They weren't supposed to dictate as much or not at all if possible...." Schad testified that other changes were also made by Clark. Schad testified that thereafter the adjustors and female office employees talked among themselves about these and other changes instituted by Clark. According to Schad: . we didn't like them, which was probably normal because we weren't used to them.... It was just the way we were told to do them, it just kind of put us in a bad mood against Mr. Clark. Schad spoke with Wilga and others about Clark's changes in office procedures.11 Arthur Bouchard testified that he was employed by the Company from December 1962 to December 1972 as a claims adjustor. Bouchard related that Clark instituted various changes in the Poughkeepsie office. Bouchard explained that Clark "took the dictaphone machines and stored them in the storage room ..."; "we started answering memos on letters that we had received"; "we also had territorial changes, assignments other than in our territories"; adjustors were "told" to "cut down" on dictation; and Clark did not consult with the Employees Association about these changes prior to putting them in effect. Bouchard also recalled that "the clerical employees" "started to do more of the claims work" under Clark. Bouchard explained that he and his, coworkers were unhappy about these changes, stating: "I think probably the rudeness and the pressure of being forced into it as such a quick change." Bouchard testified that during May 1972, claims,adju- stors Antalek, Wilga, and Bouchard discussed their complaints and grievances at lunch. Bouchard explained: . we were talking about our grievances, gripes in the office... . The three decided that Wilga would "approach Mr. Clark with these problems" that same day. Wilga was selected because he knew Clark. Later that day, Bouchard observed Wilga go into Clark's office. Further, Bouchard testified that during June 1972 Wilga went to Syracuse in order to speak to Murphy. Bouchard added: He [Wilga] had some,grievances and some problems that couldn't be ironed out in our office staff. He went to the next person in charge. Bouchard contributed to the list of complaints that Wilga was to relate to Murphy. Other employees complained to Wilga about office problems and Clark's newly instituted programs. Charles Murphy testified that he first became associated with the Company in September 1971 as resident vice president in charge of claims administration for the New York region.12 Murphy testified that during February 1972 he served as "a member of an evaluation committee evaluating adjustors in the New York region." Murphy claimed that Crapser, who was then Poughkeepsie office manager, "evaluated [Wilga] as the least competent in his office." Murphy further testified that on June 19, 1972, Wilga visited him in his office in Syracuse; that Wilga "men- tioned that the morale situation at the Poughkeepsie office was deteriorating and that there was dissension and 10 On cross-examination, Wilga acknowledged, inter aka, that he did not regard Clark as "a good manager"; that Clark was inefficient "in certain respects", that Clark "was unable to run the office in a sensible, efficient manner"; and that the Poughkeepsie "office girls" are not represented by the International Umon. Wilga acknowledged that, prior to Clark's arrival at Poughkeepsie in 1972, Douglas Crapser was office manager; that Crapser was thereafter demoted to adjustor's status, that Assistant Manager William McKeffrey was also demoted to adjustor; that other personnel in other offices were transferred about March 1972, and that the Company closed or moved certain of its offices about this time demoting and transferring personnel involved. Wilga explained that at the June 19 meeting with Murphy, Wilga "was delegated as spokesman for the group ...." Wilga admittedly told Murphy at the June 19 meeting "that [he] disagreed with Mr Clark and the disagreements were honest between [them] both." Wilga admittedly did not "personally" like Clark. Wilga acknowledged that in July 1967 he had received a written memorandum from Office Manager Crapser criticizing his work (see, Resp. Exh. 3). Wilga also acknowledged that, after he left the Poughkeepsie office in July 1972, there were six adjustors remaining and Clark; that three have since left (Antalek, Brady, and Bouchard); that there are presently three adjustors remaining in the Poughkeepsie office (Burnett, McKeffrey, and Crapser); and that the remaining three have more seniority than Wilga did upon his termination. Wilga also acknowledged that during 1967 he failed to pass a course with the Insurance Institute and declined to take or retake courses; that all the supplements of his "policy reference book" were not placed in the book; and that he had told Clark on an occasion that he, Wilga, had not read the claims adjustors' manual "in its entirety." Finally, Wilga acknowledged that on July 20, 1972, there "was a statement made at his interview that once I got [to Watertown ] I would have time to settle my own personel affairs, but I [Wilga ] don't recall any specific conversations concerning expenses." There was also a comment made at this interview in effect that Wilga could "live" in a motel in Watertown "for a certain period of time." On redirect examination, Wilga testified that Clark's treatment of clerical employees would affect the working conditions of adjustors in the office because "the girls were most reluctant and unhappy to perform what was normally required of them . " as a result of "harassment." u Schad also recalled witnessing an incident between Clark and employee Alice Rogers According to Schad, Clark "came out of his office .. he looked mad or perturbed." Schad observed Clark confront and question office girls about passing out checks to personnel . Schad observed that two of the office girls were in tears after the incident 12 The New York region includes the Company's offices in Syracuse, Rochester, Buffalo, Jamestown. Utica, Watertown, Ithaca. Albany, and Poughkeepsie NATL. GRANGE MUTUAL INSURANCE CO. 435 resentment by reason of Clark's assuming the post of manager." Murphy claimed that Wilga also "began an attack on Mn Clark's competency as a manager. He [Wilga] cited instances which he had withdrawn from the files, xeroxed documents, et cetera, of examples to show what an incompetent manager Mr. Clark was." Murphy claimed that he "concluded that the [cited] examples were following the procedures outlined in our manuals and were following good claims practice in the industry" and that Wilga "didn't know what he was talking about when he criticized Mr. Clark for using these procedures." Murphy testified that Wilga had said at the meeting that he "did not like [Clark] as' a person" and that "he could have and did have no respect for [Clark] as a manager." Murphy recalled that he and Wilga also discussed employee Alice Rogers; that Wilga "objected to her being assigned typing duties ..."; and that, in fact, "It turned out that [Murphy] was the one [who ] told George Clark that she should be assigned typing duties...." Murphy recalled that Wilga "pointed out about being assigned claims out of his territory," and that Murphy, "in fact, ... had directed Mr. Clark to start knocking down territorial boundaries ... . Murphy noted that the "diary system," the "filing system" and "less dictation" procedures were "standard procedures in other New York area offices," however, it "just had not been used" in the Poughkeepsie office. Murphy acknowl- edged that Wilga complained to him about these proce- dures at the June 19 meeting.13 Murphy testified that "after Mr. Wilga's visit, George Clark came. up to our Syracuse office. It so happened that it was a coincidental visit and I talked this over with George Clark." Murphy added that he "also reported the matter to Mr. Whitney and Mr. Mitchell about Wilga's visit and his varying complaints." According to Murphy, "After we had a discussion on the options open to us, he [Mr. Mitchell] made the ultimate decision to transfer Mr. Wilga." Murphy claimed that before this decision was made, he spoke "at length with Mr. Mitchell and Mr. Whitney, that in view of a strong personality conflict between Clark and Wilga, something had to give." Murphy added: "Since obviously Wilga would have no loyalty toward his immediate superior, [Murphy] made a recom- mendation that some changes be made" and that, as a result, Wilga was offered a transfer to Watertown. Murphy further claimed: At that time, we were analyzing the work load of these men and it was determined we had too many adjustors at the Poughkeepsie office. So, we were putting into effect the reduction in force to get the numbers down. And, according to Murphy, "at the same time" a determination was made that the Company could use an "additional adjustor" in the Watertown office. Murphy testified that on July 20, 1972, he asked Clark and Wilga to his hotel room in Poughkeepsie. According to Murphy: - Well, I had received instructions from Mitchell to transfer Wilga to the Watertown office. It was for this purpose I called Wilga in. I reviewed with him the reasons why he was being transferred, and that was a personality conflict between him and George Clark. That we were overstaffed at the Poughkeepsie office and understaffed by at least one man at the Watertown office. That all that being the case, I told him that as of that day or the next day, he would be terminated as an adjustor [at the Poughkeepsie] office and reassigned as of Monday to the Watertown office After I made the statement, Wilga said that he would not accept the transfer. Murphy claimed: "We were trying to convince [Wilga] it would be in his best interest to go to Watertown." On cross-examination, Murphy explained that present at the Company's "evaluation meeting" in February 1972 were Mitchell, Whitney, Dan Collins, Michael Tufts, Edward Hancock, Norman Bailey, and Murphy; that Office Manager Crapser said that Wilga was "the least competent adjustor in the office"; and that Hancock "reported that Wilga in his reports became so verbose and irrelevant that he would not forward them to the home office . . . :.14 In addition, Murphy acknowledged on cross-examination that, at the June 19 meeting in Syracuse, Wilga's "complaints were complaints against our standard Company procedures"; that he, Murphy, is unaware whether anyone ever filled the vacancy at Watertown after Wilga declined the transfer; and that the alleged "over- staffing" at Poughkeepsie had existed "ever since our evaluations in February" 1972. Later, Murphy testified: Well, let's put it this way. We became aware of an overstaffing in the Poughkeepsie office in February. Then, in March and April and May, when George Clark was taking hold in the Poughkeepsie office, he then concurred with this opinion.... Murphy then added: This was "during April, May and June of 1972" and for "a continuing period." 15 And, Murphy testified that at the close of his meeting with Wilga 13 Murphy acknowledged that Wilga left with his secretary that day a memorandum, G C. Exh. 4, concerning "paychecks" and employee Alice Rogers. Murphy explained, inter alia: With respect to the paychecks Alice Rogers received the checks from the home office that day. Several of the men did not receive their paychecks for distribution at the district office, but in fact received them at their homes. Mr Clark had asked Alice Rogers where the missing checks were and he [Clark] had misunderstood that she had passed them out to the men instead of having George Clark pass them out. Murphy added: The second paragraph [G C Exh 4] had to do with the complaint about the agency girl ... Apparently, Mr. Wilga didn't understand the arrangement concerning this girl. 14 Crapser, as noted, is still employed by the Company in Poughkeepsie as an adjustor. He did not testify. And, although the recording secretary admittedly recorded comments made by the evaluation committee during February 1972 and these forms are kept by the Company in its home office, the forms or notes pertaining to Wilga were not produced. 15 At the hearings, counsel for Respondent asserted that "them was a reduction in force" at the Poughkeepsie office It was undisputed that (Continued) 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Syracuse during June 1972, "some comments were passed about the Union activities at that time" and Murphy said to Wilga, in effect, the Employees Associa- tion "wasn't strong enough or it didn't have enough muscle." George Clark testified that he became district claims manager in the Company's Poughkeepsie office on March 13, 1972; that he was first employed by the Company in 1954; and that he has served as, inter alia, manager in the Company's Long Island office and assistant division manager in the Syracuse office. Clark testified that, about I week after he became manager in Poughkeepsie, he spoke with Wilga in the office "to see what his [Wilga's] career goals were [and] what he had in mind for his own career." Clark also testified that he instituted, inter alia, changes in the diary system, eliminating the adjustors' territorial boundaries and made changes in dictation procedures. Clark explained that the changes were "needed" and "part of our Company policy." Clark testified that Wilga "was not following the proper procedures . . ." of the Company, including the "advance money system to claimants on a need basis." Clark claimed that Wilga was using that system "indiscriminately"; "he wasn't taking receipts." Clark testified that he called this to Wilga's attention but there was no improvement. Clark placed this, "After the time I arrived" in March 1972. Clark also testified that Wilga had acknowledged to Clark that he "had read some of" the insurance adjustors' manual, but "not the entire book" as assertedly required. Clark testified that Wilga failed to keep his policy reference book current with inserts and supplements as assertedly required. Clark testified that about July 13 he "asked [Wilga] to come to the office. It was after closing time and I [Clark] indicated that I understood he went to Syracuse and I wanted to know what it was all about " Clark testified that Wilga "proceeded to tell" Clark that "he had a discussion with Mr. Murphy..... Clark claimed that Wilga had "never" complained to him about the changes in the office procedures prior to going to talk to Murphy in Syracuse. Clark also testified that on July 17, 1972, he "overheard a conversation" between Wilga and an unidentified person in the office. According to Clark, Wilga "was talking about [Company examiner Tufts'] inability to know what he was doing on examining files and, in general, his ability to know what he was doing in his job." Clark added that Wilga did not "refer to" Tufts by name. Clark testified that on July 20, he heard Murphy tell Wilga to think over his refusal of the transfer to Watertown. Clark also asked Wilga "to think it over." Clark testified that on the next day, Friday, July 21, Wilga did not get to the Poughkeepsie office until 1 p.m. because of an illness in his family. Clark agreed to drive Wilga adjustor Adams quit on June 23; Wilga was terminated on July 21; Antalek was terminated on July 26; Brady quit on November 3; and Bouchard quit on December 8, 1972. Murphy also testified that, during March 1972, the Ithaca district office was closed and the office manager, McGill, was demoted to adjustor, the Rochester district office was closed and the manager, Robinson, was demoted to adjustor; the Albany office manager, Myers, was transferred and demoted to adjustor, the Poughkeepsie office manager, Crapser, was demoted and his assistant manager, McKeffrey, was demoted: Clark was transferred from the Long Island office to Poughkeepsie and promoted; across town after Wilga turned in his car. Clark claimed that Wilga "indicated to [Clark] in the office at that time that he was sorry for what had taken place the past four months or so, the way he had acted toward me ...." Clark claimed that he later asked Wilga to think it over again. Wilga "said he couldn't transfer... . On cross-examination, Clark acknowledged that the adjustors' reference book had nothing to do with the transfer which was offered to Wilga. Clark also explained that the claims adjustors' manual covers about 100 pages and he is "not sure" whether "all the employees" have read it in its entirety. Clark also claimed that he overheard remarks by Wilga "critical of the way I was assigning cases and the way in general the office was run." Clark acknowledged that he had never warned Wilga that he might be discharged or some action might be taken against him because of his failure to follow company policies. Darwin Whitney testified that he is vice president in charge of claims for the Company. Whitney testified that about July 6, 1972, he received a confidential memoran- dum from examiner Tufts concerning Wilga. The memo- randum, dated July 6 and referring to Wilga as, inter alia, an "incompetent adjustor," was prepared by Tufts-16 Whitney also testified that he was present at the "evalua- tion committee meeting in February 1972 where, asserted- ly, "it was the consensus" that "Wilga was the least competent of the adjustors in the Poughkeepsie office." On cross-examination, Whitney acknowledged that he "did nothing further" about Wilga in February 1972 after attending the "evaluation committee" meeting; "We took no action." Whitney recalled that 6 months prior to July 1972 Tufts also sent in reports on the performance of adjustors in the Poughkeepsie office and that such reports were prepared periodically over the years. Whitney could not "recall" receiving a separate report or memorandum concerning Wilga prior to July 1972. Bradford Mitchell, vice president, secretary, and general counsel for the Company, testified that he was part of the February 1972 "evaluation committee." Mitchell, however, "was not present during all sessions." Mitchell testified that during late June or early July 1972 "when the question of overstaffing and who was to be eliminated from the Poughkeepsie office . . . that was the first time I [Mitchell] had occasion to look at the particular evaluations of the individuals involved." Mitchell allegedly received Tuft's "confidential memoranudm" to Whitney regarding Wilga. Mitchell claimed that he relied upon this report in determining to offer Wilga a transfer to Watertown. "i7 Mitchell testified that, although Wilga was told on Thursday, July 20, that he would be assigned to Watertown the following Monday, "this doesn't necessarily mean [Wilga] had to be there Monday morning at 8:30." Mitchell claimed that if Wilga had "asked for some time to and, subsequently, the entire Albany office was moved to Saratoga Springs. 16 Tufts, although employed by the Company at the time of the hearing, was not called as a witness. The files and documents referred to in the memorandum, although available to the Company, were not produced. The memorandum, Resp Exh. 5, was not received into evidence to prove the truth of the matter recited therein. 17 Mitchell also explained that, as a result of the February 1972 evaluations, substantial changes and transfers were made in the Company's operations, including transferring Clark to Poughkeepsie in March 1972 NATL. GRANGE MUTUAL INSURANCE CO. 437 make family arrangements, the Company would have afforded" him time. Mitchell claimed that "the moving of household goods, et cetera, were at Company expense." Further, Mitchell testified that, in offering a transfer to Wilga, he also relied upon, as "an additional factor," Murphy's report to him regarding Wilga's June 19 visit. Mitchell claimed: ". . . [Wilga's visit to Murphy and what was said] seemed to quite clearly indicate a conflict of personalities" between Clark and Wilga. On cross-exami- nation, Mitchell acknowledged that the vacant Watertown position offered to Wilga was never filled. The testimony of Henry Wilga as stated above is corroborated in large part by the testimony of Linda Schad and Arthur Bouchard. The testimony of Wilga is also substantiated in part by the testimony of Charles Murphy, George Clark, Darwin Whitney, and Bradford Mitchell. Relying upon the demeanor of the witnesses, I find that the testimony of Wilga-as corroborated by Schad and Bouchard and substantiated by Murphy, Clark, Whitney, and Mitchell-is a truthful and reliable account of the particular events recited herein. Insofar as the above testimony of Wilga, Schad, and Bouchard conflicts with the testimony of Murphy, Clark, Whitney, and Mitchell, I credit the testimony of the former as more reliable, accurate, and trustworthy accounts of the events recited herein. In particular, I do not credit Clark's assertion to the effect that Wilga did not speak directly with Clark about the employees' grievances before Wilga complained to Murphy in Syracuse. I find instead that Wilga in fact presented these grievances to Clark and then took the grievances to Murphy after Clark failed to deal with them. III. DISCUSSION The principal question raised here is whether Respon- dent Company-in offering employee Wilga a transfer to its Watertown office and then discharging Wilga upon his refusal to accept the transfer-was motivated at least in part by an unlawful purpose. Section 7 of the Act "is designed to guarantee to employees the fundamental right to present grievances to their employer to secure better terms and conditions of employment.... " Hugh H. Wilson Corporation v. N.L.RB., 414 F.2d 1345, 1347-50 (C.A. 3, 1969), cert. denied 397 U.S. 935 (1970) (and cases cited). "In short, the law recognizes that employees have a legitimate interest in `acting concertedly to make their views known to management without being discharged for that interest' . ..." Hugh H. Wilson, supra.18 And, "a discharge motivated only in part by" unlawful reason "is similarly illegal." J. P. Stevens & Co. v. N.L R.B., 380 F.2d 292, 300 (C.A. 2, 1967), cert. denied 389 U.S. 1005 (1967). The credited evidence of record shows that Wilga, prior to his sudden discharge on Thursday, July 20, 1972, had worked for the Company as a claims adjustor for some 14 years in the Poughkeepsie office. During March 1972, Wilga was elected chairman of the Employee Association's bargaining committee. Wilga composed and caused to be sent to Company Counsel Mitchell a letter critical of management's conduct in dealing with the Employees Association. Wilga was present at the April 13 bargaining session where Mitchell voiced his concern over this letter. Thereafter, during April and May, Wilga was instrumental in getting the members of the Employees Association to affiliate with the International Union because the Associa- tion was "weak" and "no progress" had been made at their bargaining sessions. In addition, during May, Wilga met with Poughkeepsie Office. Manager Clark to discuss with him "various grievances" concerning office personnel. These grievances included, inter alia, Clark's recently instituted changes in the utilization of dictation services by the adjustors ; changes in the use of the diary system by the adjustors; changes in the assignment of claims to adjustors beyond their territorial boundaries; and Clark's confronta- tion with female clerical help concerning their distribution of paychecks . Thereafter, on June 19, because Wilga could detect no "noticeable response from" Clark, Wilga presented these and related grievances to Murphy, Clark's superior. Murphy subsequently rejected the grievances presented to him by Wilga, stating that "management will be management" and "that's the way it is." And, on July 13, Clark questioned Wilga about the employee's visit with Clark's superior in Syracuse. Seven days later, on Thurs- day, July 20, Wilga was summarily offered a transfer to Watertown some 300 miles away effective the following Monday. When Wilga refused, he was terminated. On this record, I find and conclude that Respondent Company-in summarily offering Wilga on July 20 a transfer to a job some 300 miles away and discharging him upon his refusal to accept the transfer-was motivated at least in part by an unlawful purpose . Respondent Compa- ny engaged in this conduct in retaliation against Wilga because be had presented to management the grievances of his coworkers. Wilga, in presenting these complaints to management, was reasonably and properly exercising his Section 7 right "to present grievances to [his ] employer to secure better terms and conditions of employment . . . and, consequently, was unlawfully discharged for "acting concertedly to make [the employees ] views known to management .. ," in violation of Section 8(a)(1) of the Act. Hugh H. Wilson, supra. In short, as the Board stated in Eastern Illinois Gas and Securities Company, 175 NLRB 639, 640 (1969), "the evidence set forth above clearly indicates, regardless of what other grounds Respondent may have had, at least one of the moving factors entering into its decision to terminate the [employee ] was his role in grieving about a working condition on behalf of himself 18 Further, as the Supreme Court stated in N.L R.B. v. Washington not . . ." And, as the court of appeals noted in Hugh H. Wilson Aluminum Co, 370 U.S. 9, 16 (1962), " . . it has long been settled that the Corporation v. N L.R.B., supra, 414 F 2d at 135i, fn. 12: "whether or not the reasonableness of workers' decision to engage in concerted activity is [employee] complaint . . was legitimate also is not material" (and see irrelevant to the determination of whether a labor dispute exists or cases cited). 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and his fellow employees. In so doing, [the employee] was engaged in protected concerted activity" (footnotes omit- ted).19 Moreover, this finding of unlawful purpose is buttressed by the timing of management's conduct as well as the belated, shifting, and inconsistent reasons asserted by management for offering Wilga a transfer and then discharging him. Thus, at the hearing, the Company's representatives claimed that Wilga had been called "least competent" by his office manager during February 1972. Respondent Company took no action on Wilga's alleged incompetency until some 5 months later, shortly after Wilga had presented employee grievances to upper management. Company representatives also cited a written warning issued to Wilga by Crapser in 1967, over 5 years earlier, and no action was taken on that memorandum. Clark claimed that he overheard Wilga in some vague way criticizing Clark and an examiner; however, Wilga was never warned about a transfer or discharge because of this claimed conduct. Likewise, the Company gave no warnings to Wilga that his conduct or work were less than satisfactory and might result in discharge or transfer. Respondent claimed that the Poughkeepsie office was "overstaffed" and Watertown was "understaffed." The credited evidence of record fails to support this assertion. In fact, the claimed vacancy at Watertown offered to Wilga was never filled and the alleged overstaffing at Poughkeepsie only became important after Wilga present- ed the employees' grievances to upper management. Further, I do not find on this record that Wilga, in presenting the employees' grievances, created a "personali- ty conflict" or was disloyal to his employer. Rather, I find and conclude that the foregoing claimed reasons culminat- ing in Wilga's firing are pretextual and that the real reason was the employee's exercise of his Section 7 rights. In sum, I find and conclude that Respondent thereby violated Section 8(a)(1) of the Act. See Pacific Electricord Company, 153 NLRB 521 (1965), enfd. 361 F.2d 310 (CA. 9, 1966). However, I am not persuaded that on this record Respondent also violated Section 8(a)(3) and I would therefore dismiss that portion of the complaint. See, Eastern Illinois Gas and Securities Company and Pacific Electricor4 supra. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Employees Association and the International Union are labor organizations within the meaning of Section 2(5) of the Act. 19 The Company argues in its brief that Wilga was engaged in "individual griping" which "is not, by itself, protected concerted activity." However, the credited evidence of record is to the contrary And, as the court stated in Hugh H Wilson, supra, 414 F.2d at 1348 "Mere griping" about a condition of employment is not protected, but when the "griping" coalesces with expression inclined to produce group or representative action, the statute protects the activity; Mushroom Transportation Co v N L R B, supra The stimulus which caused the coalescence of a grievance and concert of action may, of course, be initiated by the employee, but the coalescence may also be triggered by an action of or a failure to act by management. 3. Respondent violated Section 8(a)(1) of the Act by discharging employee Henry Wilga on July 20, 1972, and thereafter failing and refusing to reinstate him because he had engaged in protected concerted activities. 4. Respondent did not violate Section 8(a)(3) of the Act as alleged and that portion of the complaint is dismissed. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it, cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that it cease and desist from in any like or related manner infringing upon rights guaranteed employees in Section 7 of the Act. It has been found that Respondent, in violation of Section 8(a)(1) of the Act, unlawfully discharged employee Henry Wilga on the date indicated above. It will therefore be recommended that Respondent offer to employee Wilga immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful discharge, by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Decision. ORDER 20 Respondent, National Grange Mutual Insurance Com- pany, Poughkeepsie, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because of their protected concerted activities, or in any like or related manner discriminating against them in regard to hire or tenure of employment, or any term or condition of employment. Cf. Continental Manufacturing Corp, 155 NLRB 255 (1965) (cited by Respondent), where the Board noted that the employee "did not consult with . . any other employees or the Union about the grievances .. or his intention of sending the letter . . . 20 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes NATL. GRANGE MUTUAL INSURANCE CO. 439 (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to employee Henry Wilga immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for his loss of earnings, in the manner set forth in this Decision. (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in this Decision. (c) Post at its offices and facilities in Poughkeepsie, New York, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 3, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that-notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. present their evidence, the National Labor Relations Board has found that National Grange Mutual Insurance Company violated the National Labor Relations Act and ordered us to post this notice. We therefore notify you that: WE WILL NOT discharge employees because of their protected concerted activities or in any like or related manner discriminate against them in regard to 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 employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer employee Henry Wilga immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for his loss of earnings, as provided in the Board's Decision and Order. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to Dated By NATIONAL GRANGE MUTUAL INSURANCE COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, Ill West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.