Allstate Insurance Co.

ALLSTATE INSURANCE CO. Allstate Insurance Company and Local 365, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, International Union. Case 29-CA-3099 March 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 3, 1973, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions, a brief, and a letter modifying the brief; the General Counsel filed exceptions and a brief; the Charging Party filed exceptions and a statement in lieu of a brief; and the Respondent filed a brief in answer to the General Counsel's exceptions. 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 only to the extent consistent herewith.' Employee Edgar Hansen worked as a claims adjuster for Respondent for almost 12 years until his discharge on August 28, 1972. The Union began its organizational campaign in the fall of 1971. At this time the Respondent held meetings with employees to hear complaints about working conditions or company policy. Hansen spoke up regarding the lack of a manual of rules and what he viewed as an inadequate pension plan. Hansen signed an authorization card in April 1972, and attended three or four meetings in May, June, and August 1972. The Respondent learned of Hansen's attendance at the union meetings. 1. According to Hansen's testimony, during the 3 months prior to his discharge, supervisors made several statements which amounted to coercive interrogations regarding union activities, threats of discharge, or other reprisals for joining or assisting the Union, and creating an impression that union meetings and activities were kept under surveillance. The Administrative Law Judge credited this testimo- ny of Hansen over the denials of the supervisors allegedly involved, and, based on such testimony, she i We find without merit Respondent's allegations of bias, prejudice, and incompetency on the part of the Administrative Law Judge. We have fully considered the entire record and the Administrative Law Judge 's Decision, and perceive no basis for finding that she prejudged this case, made prejudicial rulings, or demonstrated either bias or incompetency in her 565 found that the Respondent violated Section 8(a)(1) of the Act. We attach great weight to the credibility findings of the Administrative Law Judge who had the opportunity to observe and judge the witnesses as they testified, and, unlike our dissenting colleague, would not reverse her credibility resolutions as to these matters. 2. We do not agree, however, with the Adminis- trative Law Judge's findings that the discharge of Hansen violated Section 8(a)(1) and (3) of the Act. In August 1971, Hansen bought a mink coat on sale for $844.82. The coat had been custom made, but the customer for whom it was intended had ultimately refused to purchase it. The seller gave Hansen an apprisal certificate stating the coat's replacement value was $1,800. The record shows that appraisals of this kind are frequently inflated. In September 1971, Hansen arranged a floater to his homeowner insurance policy with the Respondent and insured the coat for $1,800. Several weeks later the coat was lost or stolen while in the possession of a carrier hired by the seller in connection with some repair work ordered by Hansen. The seller advised Hansen to place a claim under his insurance policy rather than against the carrier because recovery against the carrier would take approximately a year. Hansen accordingly made a claim against the Respondent on September 30, 1971. When asked to produce the bill, he replied he did not have it. When asked for a canceled check, he said he paid cash. When asked how much he paid, five employer witnesses agreed that he replied he had paid $1,800; Hansen testified he never said he paid $1,800, he only said that it was worth $1,800. This testimonial conflict is discussed in detail infra. The seller refused to disclose the purchase price to Respondent. Based on Hansen's description of the coat as a long or full-length coat, an investigator determined for the Respondent that the replacement value of the coat was $1,370. This figure represents the replacement value of a long coat. However, it is clear that the coat was a less valuable short coat. The issue regarding the length of the coat is discussed in detail infra. Hansen accepted $1,370 on his claim on October 19, 1971. On June 5, 1972, the Respondent recovered only $844.82 in subrogation proceedings against the seller. At this time the Respondent discovered for the first time that Hansen had actually paid only $844.82 for the coat, $500 less than the Respondent had paid him for the loss of the same coat based on his representa- analysis or discussion of the evidence . Accordingly, we reject these contentions. The Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 209 NLRB No. 68 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of its worth. At the same time, the Respondent discovered that the coat was only a short coat and therefore clearly worth less than $1,370. Hansen's claim file was then investigated by a series of officials and, on August 28, after finding the claim to have been misrepresented, Zone Vice President Patterson gave approval for Hansen's discharge. He was discharged by Division Manager Mannerino on the ground of misrepresenting the price he had paid for the coat. Regional Claims Manager Cartiglia explained at the hearing that the discharge was because "Hansen had lied" regarding the purchase price of the coat and "therefore, was no longer to be considered a trusted employee." The Administrative Law Judge, however, found that the discharge was actually for Hansen's union activities, and in violation of Section 8(a)(1) and (3) of the Act. The Administrative Law Judge found that Cramer, the Respondent's initial claim investigator, said that Hansen had given her the figure of $1,800 as the value of the coat, and when she asked him what he paid for it, he stated only that it was insured for $1,800. However, it is significant to note other important portions of Cramer's testimony not reflect- ed in the Administrative Law Judge's Decision. Cramer also testified that she again asked how much he paid for the coat, and he replied that he paid $1,800. She further testified that, when District Claims Manager Belger later told her Hansen was fired because of the claim, she again said that Hansen had told her that the coat cost him $1,800. Cramer's testimony thus is either inaccurately sum- marized in the Administrative Law Judge's Decision or she failed to consider this additional record evidence. In either case, serious doubt is cast on the realiability of her conclusion that "Hansen did not, in filing or pressing his claim . . . speak . . . in terms of what he paid" for the coat. This doubt is reinforced by her further failure to note and discuss the unequivocal testimony of Investigator Schachner that Hansen said that he paid $1,800 for the coat. Hansen never denied this statement. He did testify that he told Schachner the coat was worth $1,800, but this is not inconsistent with also having told Schachner that he paid $1,800. The Administrative Law Judge also failed to give full consideration to the evidence regarding Hansen's statement at the October 19, 1971, meeting where the Respondent offered, and Hansen accepted, $1,370 on the claim. The conversation occurred largely between Belger and Hansen, and concerned problems such as the absence of any receipt for the purchase of the coat and Hansen's claim that he paid $1,800 for the 2 Cramer testified that Hansen said he did not have a copy of the bill of sale Schachner testified that Hansen told him he did not have the bill and coat while the most expensive coat on the rack at the store where he purchased it cost only $1,370. Belger testified that Hansen said he paid $1,800 for the coat. Supervisor Kane, who was also at the meeting, agreed that Hansen said that he paid $1,800, in cash. Supervisor Hicks, who also was at the meeting, agreed that Hansen said that he paid $1,800 for the coat. While at one point he denied that he told Belger what he paid for the coat, and insisted he referred only to the replacement value of the coat, neverthe- less his own affidavit, made under oath to a Board agent during the investigation of this charge , states: "Don [Belger] asked me what the value or puce on the coat and I told him $1,800." At the hearing, Hansen testified that his answer meant the replace- ment value was $1,800. But testimony as to subjec- tive intent is of dubious value. And, at another point, Hansen testified that he could not recall if he answered Belger's question as to the price of the coat. In light of Hansen's confused and inconclusive testimony, we believe greater weight should be afforded to the clear and consistent testimony of Schachner, Cramer, Belger, Kane, and Hicks. Such a reweighing of evidence, in our view, compels a factual finding that Hansen did misrepresent to Respondent that he paid $1,800 for the coat. We further note that the Administrative Law Judge did not adequately consider whether Hansen misre- presented the length of the coat in pursuing his claim. The Respondent argues that Hansen deliberately represented to Cramer and Investigator Schachner that the coat in question was a full-length coat, when in fact, as the record shows, it was fingertip length, i.e., a short one, and thus was worth less because it involved fewer skins and less labor. Mac Miller, the salesman who sold the coat to Hansen, testified that Hansen got a three-quarter-length coat and the sales receipt2 describes the coat as being a short coat. Nevertheless, Cramer testified without contradiction that when she asked Hansen for a description of the coat he described it as a full-length coat. Hansen merely testified that "I gave her the details." Investigator Schachner similarly testified that Hansen told him it was a full-length coat, and, on the basis of that representation, Schachner recommend- ed a settlement for $1,370. Hansen's testimony, on this point, taken in toto, is of dubious weight, for although he testified on two occasions that he told Schachner it was a short coat he later testified that he could not recall if he told anyone it was not a short coat. The preponderance of the evidence, therefore, appears to us to establish that Hansen purchased a short coat but that he told both, Cramer and did not know what he did with it Respondent obtained a copy of the sales receipt during the subrogation proceedings. ALLSTATE INSURANCE CO. Schachner that he had purchased a full-length coat. Thus we are led to the ultimate factual finding that Hansen misrepresented the price he had paid for the coat, and, in an effort to bolster that misrepresenta- tion, further misrepresented the nature of the garment. Notwithstanding our affirmance of the Administra- tive Law Judge's 8(a)(I) finding, therefore, we must consider whether the record here will support the conclusion that Hansen was discharged, not by reason of the misrepresentations which we have found he made and the resultant impairment of his trustworthiness, but rather because of the antiunion attitude evidenced by the 8(a)(1) conduct which we have found. Hansen conceded that he played no leadership role in the Union and that he was not a particular advocate for or against the Union. Hansen testified only that he told the Respondent that he had received union literature and had attended some meetings. Indeed, because of this limited knowledge of Hansen's union involvement, the Administrative Law Judge found it necessary to infer knowledge on the part of the Respondent that Hansen had signed an authorization card for the Union and had distributed cards to other employees-an inference which is itself questionable upon these facts. Against this highly doubtful inference, we must balance the seriousness with which we would reasonably expect Hansen's offense to be regarded by the Respondent. In his capacity as a claims agent, Hansen was responsible for investigating and proc- essing claims filed with the Company and against it. Consequently, the Respondent had to have complete confidence not only in his ability and judgment competently and fairly to handle such claims, but by the very nature of its operations also had to repose its full trust in his honesty and integrity in acting in its behalf. In these circumstances, Hansen stood in a fiduciary relationship to Respondent. It is reasonable to expect that an employer in this industry would demand and hold such an employee to the highest standards of trustworthiness. That being the case, Respondent could be expected to look with apprehension at the incidents surround- ing Hansen's claim over the lost coat. It is clear that those incidents indicated to the Respondent that Hansen had acted with probable deceit, and surely less than total honesty and candor' in pursuing his claim. Under these circumstances, in our opinion, there is strong support for Respondent's contention that the cause of his discharge was his conduct which reasonably led Respondent to doubt his integrity, rather than his minimal union activity, of which we are less than sure that Respondent had knowledge. In view of the foregoing, we deem the evidence, on 567 the record considered as a whole, insufficient to support a finding that the reasons advanced by Respondent for Hansen's discharge were pretextual, or that he was discharged in violation of Section 8(a)(1) and (3) of the Act. Accordingly, we shall dismiss the 8(a)(3) allegation of the complaint relating to the said discharge. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III of the Decision of the Administrative Law Judge, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Edgar Hansen. REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Allstate Insurance Company, Baldwin, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities and the union activities of other employees. (b) Threatening employees with discharge or other reprisals if they join or assist Local 365, United Automobile, Aerospace and Agricultural Implement Workers of America, International Union, or any other labor organization. (c) Giving employees the impression that their union meetings and union activities are being kept under surveillance. (d) Requiring or attempting to require employees to report on union meetings and activities. (e) In any like or related manner interfering with, coercing, or restraining employees in the exercise of their rights guaranteed them in Section 7 of the Act. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and facilities in Long Island, New York, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representa- tive of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. MEMBER KENNEDY, concurring in part and dissenting in part: I would dismiss the complaint in its entirety. I believe that the credibility findings of the Adminis- trative Law Judge are not supported by the relevant evidence4 and that careful consideration of all the testimony in the record requires findings of fact and conclusions of law different from those made by the Administrative Law Judge. The Board must place heavy reliance on its Administrative Law Judge's evaluation of the truth or falsity of testimony. As the resolution of credibili- ty conflicts often determines the final outcome of the issues in cases before the Board, the Board expects the Administrative Law Judges to indicate carefully and specifically how they arrive at their credibility conclusions.5 Failure to do so here, in my judgment, requires rejection of the Administrative Law Judge's conclusions as to credibility. The Administrative Law Judge failed to mention the large body of testimony supporting Respondent's position with respect to Hansen's discharge. More- over, a careful analysis of the record indicates that there are serious inconsistencies and contradictions in Hansen's testimony which she did credit. All testimony must be considered before findings of fact and conclusions of law can be made. Respondent's defense to the alleged discrimination is that employee Hansen was discharged, after an exhaustive investigation, for defrauding it of hun- dreds of dollars on an insurance claim. In particular, Respondent argues that Hansen lied about the a In the event that this 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 purchase price of the insured property. The Adminis- trative Law Judge brushed aside this defense by virtually ignoring the extensive supporting testimony, based largely on her reasoning that "as a knowledga- ble claims adjuster, Hansen did not, in filing or pressing his claim as an insured party, speak of the [insured] coat in terms of what he paid for it, but rather, as he testified, referred to its insured value or its replacement value." Viewing the total record, I do not believe this conclusion can withstand scrutiny, and find that Hansen was untruthful about the purchase price of the coat. Moreover, he misrepre- sented the facts with respect to the description of the coat. The Administrative Law Judge found that when Hansen discussed his claim with Cramer, Respon- dent's claim investigator, Hansen had given her the figure of $1,800 as the value of the coat, and when she asked him what he paid for it he stated that it was insured for $1,800. However, the Administrative Law Judge failed to set forth other important portions of Cramer's testimony: Cramer also testified that she again asked him how much he paid for the coat, he replied that he paid $1,800. She further testified that, when District Claims Manager Belger later told her Hansen was fired because of the claim, she again said that Hansen had told her that the coat cost him $1,800. I believe the Administrative Law Judge inaccurately summarized all of Cramer's testimony on this issue. Investigator Schachner testified unequivocally that Hansen said that he paid $1,800 for the coat. Hansen never denied this statement. He did testify that he told Schachner the coat was worth $1,800. But this is not inconsistent with also telling Schachner that he paid $1,800. The Administrative Law Judge's Deci- sion fails to reflect any of the representations Hansen made to Schachner about the coat. Even more critical is the conspicuous absence of a full discussion regarding Hansen's statement at the October 19, 1971, meeting where Respondent of- fered, and Hansen accepted, $1,370 on the claim. The conversation occurred largely between Belger and Hansen, and concerned problems such as the absence of any receipt for the coat and Hansen's claim that he paid $1,800 for the coat while the most expensive coat on the rack at the store where he purchased it cost only $1,370. Belger testified that Hansen said he paid $1,800 for the coat. Supervisor Kane, who was also at the meeting, twice corroborat- ed Belger, testifying that Hansen said he paid the full amount, $1,800, in cash. Supervisor Hicks, who also National Labor Relations Board." 4 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). 5 See M & S Company, Inc., 108 NLRB 1193. ALLSTATE INSURANCE CO. was at the meeting, agreed that Hansen said that he paid $1,800 for the coat. If an Administrative Law Judge is to reject the testimony of all five witnesses who testified that Hansen said he paid $1,800 for the coat, the Administrative Law Judge is obliged to state the reasons for such rejection. The Administrative Law Judge cannot discredit the testimony of five witness- es on this critical issue by giving it the silent treatment. Hansen's own affidavit, made under oath to a Board agent during the investigation of this charge, states: "Don [Belger] asked me what was the value or price on the coat and I told him $1,800." At the hearing, Hansen tried to mitigate the effect of this crucial admission, not by disputing the use of the word "price," but only by testifying he meant the replacement value was $1,800. But his subjective intent cannot qualify his objective statement to Belger. Next, Hansen testified that he could not recall if he answered Belger's question as to the price of the coat. Still later he finally denied that he told Belger what he paid for the coat, and insisted he referred only to the replacement value of the coat. In light of Hansen's equivocal and inconsistent testimony and the contrary consistent testimony of Schachner, Cramer, Belger, Kane, and Hicks, I would find that Hansen told Respondent that he paid $1,800 for the coat. Since he actually paid $844.82 for the coat, there is merit to Respondent's defense that Hansen attempted to defraud Respon- dent in connection with his claim. The Administrative Law Judge made no findings regarding the description of the coat which Hansen gave to Cramer and investigator Schachner. Respon- dent argues that Hansen deliberately inflated the description as part of his fraudulent plan. The record shows that a full-length coat is one which goes below the knees and a short coat is one which is only fingertip length. Al:other things being equal, a short coat is worth less than a full-length coat simply because it involves fewer skins and less labor. A short coat is sometimes referred to as a three-quarter- length coat. Mac Miller, the salesman who sold the coat to Hansen, testified that Hansen got a three- quarter-length coat and the sales receipt describes the coat as being a short coat. Nevertheless, Cramer testified that when she asked Hansen for a descrip- tion of the coat he described it as a full-length coat. Hansen merely testified that "I gave her the details." Hansen did testify that he and his wife did not consider it a short coat because she was short and the coat went down to her knees. When he gave a description of the coat to Respondent, he should have given an accurate description, not a fanciful 569 description of what he and his wife secretly consid- ered it to be. Again. Investigator Schachner testified that Han- sen told him it was a full-length coat. Schachner investigated and recommended a settlement for $1,370 on the basis that the coat was a full-length coat. Again, Hansen's testimony is suspect for he testified on two occasions that he told Schachner it was a short coat. He later testified that he could not recall if he told anyone it was not a short coat. I would find that Hansen purchased a short coat and that he told both Cramer and Schachner that he purchased a full-length coat. There is no dispute on the record that he did purchase a short coat. Cramer's testimony that Hansen told her the coat was full length is uncontradicted. Hansen's and Schachner's testimony regarding what Hansen told Schachner directly conflict. I would credit Scha- chner. In my view, the chain of unusual circum- stances surrounding Hansen's claim compelled in- quiry of him by Respondent's agents as to the price paid and the description of the coat. I am satisfied that if Hansen had answered the inquiries truthfully he would not have received $500 above his purchase price. In my view, it makes no difference that the reason for the discharge occurred in connection with Hansen's role as a policyholder of Respondent rather than as a trusted claims adjuster for Respondent. Hansen falsified information in the processing of a claim. Respondent has a lawful right to terminate an adjuster whose conduct raises grave doubts concern- ing his trustworthiness. Hansen conceded that he played no leadership role in the Union and that he was not a particular advocate for or against the Union. Other than Hansen's testimony that he told Respondent that he had received union literature and had attended some meetings, there is no other evidence or reason to believe that Respondent was aware of any union activity by Hansen. I agree with the majority that Respondent was not motivated by union considera- tion in discharging Hansen and the 8(a)(3) allegation of the complaint should be dismissed. The only evidence of the alleged 8(a)(1) violations is the uncorroborated testimony of Hansen. Respon- dent's witnesses categorically denied making any of the statements violative of Section 8(a)(1) attributed to them by Hansen. As I have stated and my colleagues in the majority concede, Hansen's testi- mony was inconsistent and contradictory on several points. Contrary to the majority which accepts the Administrative Law Judge's crediting of Hansen's testimony over the denials of supervisors allegedly involved, I would discredit Hansen's testimony completely. I am unwilling to predicate an 8(a)(1) 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding supported solely by the testimony of Hansen and no other witness. From the foregoing facts, I would conclude that no unfair labor practices have occurred and I would dismiss the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT coercively interrogate employees concerning their union activities and the union activities of other employees. WE WILL NOT threaten employees with dis- charge or other reprisal if they join or assist Local 365, United Automobile. Aerospace and Agricul- tural Implement Workers of America, Interna- tional Union, or any other labor organization. WE WILL NOT require or attempt to require employees to report on union meetings and activities. WE WILL NOT give employees the impression that their union meetings and union activities are being kept under surveillance, or in any like or related manner interfere with, restrain, or coerce employees in the exercise of their protected rights. All employees are free to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities. ALLSTATE INSURANCE COMPANY (Employer) DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: Upon due notice this proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq. ), hereinafter referred to as the Act, was tried before me at Brooklyn, New York, on April 3 through 6, and May 1 and 2, 1973,11 pursuant to a charge filed on November 6, 1972; a complaint issued January 15 and amended February 23, presenting allegations that Allstate Insurance Company, hereinafter referred to as the Respon- dent, committed unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act; and Respondent's answer denying that it committed any violation of the Act. Representatives of all parties were present and participated in the hearing. Based on the entire record , including my observation of witnesses, and after due consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent, a wholly owned subsidiary of Sears, Roebuck and Company, is an Illinois corporation with principal office and place of business at Northbrook, Illinois and branch offices at Baldwin, New York, and various other places of business throughout the United States and Canada, where it is engaged in the sale of insurance. During the past year, a representative period, Respondent sold insurance valued in excess of $50,000 through its various offices . Respondent admits, and I conclude, that it is now, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION Respondent admits, and I find, that the Charging Party, Local 365, International Union United Automobile, Aerospace and Agricultural Implement Workers of Amen- ca, is a labor organization within the meaning of Section 2(5) of the Act. Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues It is alleged in the complaint that Respondent violated Section 8(a)(1) of the Act by interrogating its employees; warning them to refrain from union membership or activity; threatening employees with discharge or other reprisal if they engaged in such activity ; requiring employees to report on union meeting places, meetings, and activities and on the concerted activities of other employees ; and conveying the impression to employees that it was keeping under surveillance the union meeting places, meetings , and activities and the concerted activities of its employees. It is further alleged that Respondent I Unless otherwise indicated. all dates are in 1972 ALLSTATE INSURANCE CO. 571 violated Section 8(a)(3) and (1) of the Act by discharging employee Edgar Hansen and failing and refusing to reinstate or offer reinstatement to him because he joined and assisted the Union and engaged in other protected concerted activity. Respondent denied engaging in any unlawful conduct, and asserted that Hansen was dis- charged for cause. B. The Alleged Violations of Section 8(a)(1) of the Act 1. Background Before the Charging Party commenced organizing efforts, another union was conducting a campaign to represent the employees in the various claims offices of Respondent in the Long Island area. Respondent's opposition to unioniza- tion and its counteruiuon campaign included the formation of a reporting network to carry out instructions from the personnel department of Respondent to keep it informed. This network utilized the established structure from the lowest supervisor through channels to John Cartiglia, the regional claims manager and thence to Zone Personnel Manager Dufford and Employee Relations Director Owens in the Chicago home office. Nor was the character of this network confined to supervisors merely reporting the unusual. Cartiglia as the hub of this system issued directives on how information concerning union activity should be gathered and what actions to avoid, and held several conferences with his managers, the purpose of which was to exchange and discuss organizational mforma- tion and coordinate opposition to unionization. The policy and method of administering this union opposition network became a continuing procedure existing through- out the time relevant herein. When reports of union activity became widespread and numerous Cartiglia, with the advice and approval of Owens and Dufford, wrote the October 5, 1971, letter which each of his managers distributed to all their employees. In this letter Cartiglia made many representa- tions about the ineffectiveness of the Union elsewhere, and questionable motives of those connected with the Union then involved, made several unfavorable commentaries on the effects of unionization and of signing a union card, and announced that Cartiglia would visit each claims office within the next few weeks for the purpose of talking over employee problems without a union, stating "this is too important for us to stand idly by and let . . . Allstate people be led by" the Union. Beginning in mid-October, and continuing into Novem- ber 1971, as promised, Cartiglia made his unprecedented 2 As the letter and meetings which followed fall outside the 10(b) period no conclusions are reached as to whether the letter exceeded the limits of the free speech proviso or whether the meetings or any statements made constituted interference , restraint, or coercion 3 Respondent's knowledge of the efforts of this small group is indicated by the testimony of employee Greene, which I credit, that in a conference with his two supervisors in late November 1971, held to discuss the terms of his raise. Greene was told they wanted a commitment that he would support the Company rather than Local 365. i The first communication by the Union for general distribution among the Respondent's Long Island employees was prepared and dated in February 1972 but was not sent out until early May because of delays in receiving lists of names and addresses from some offices However, in visits to each office to speak with employees. With the manager at each location present, he talked with employ- ees in small groups gathered around a conference table. The format of these meetings was designed to encourage individual participation by employees. Their reports of working conditions which were the source of employee discontent and their views were solicited. Cartiglia rectified some situations mentioned, made notes of other employee comments, and promised to return in December.2 Local 365, the Union herein , was engaged in organizing efforts among Respondent's employees in other nearby areas. Around the time of Cartiglia's visits the Union received inquiries from a small group of Respondent's employees about organizing the Long Island territory. Accordingly, preliminary meetings with the interested groups were held at three different Long Island locations on November 7, 19, and 26, 19713 All communications by the Union with Respondent's Long Island employees were mailed to them at their homes. 4 Meetings were conducted by the Union with employees of the Respondent on May 4 or 5, June 5, and August 3, 1972, with appropriate advance announcements made to employees through the postal service. Copies of such announcements and communica- tions to employees, as well as information concerning union activity, were supplied Cartiglia through the supervi- sory network. 2. The conduct involved Employee Hansen attended the June 5 meeting after which he went to the East Bay Diner where he met Edwin Fowler, his former manager. Hansen disclosed he had just come from the union meeting and Fowler informed him "You know, the Company knows who is going to those meetings and as soon as the Union folds their tent everybody is going to be fired." I do not credit Fowler's denial that he made this statement, and find that Respondent thereby engaged in unlawful interference, restraint, and coercion by giving the impression of surveillance, warning against supporting the Union and threatening retaliation by discharge of employees who engage in union activity. The following morning Hansen was at his office in Baldwin where unit Supervisor Hicks asked him who was at the union meeting the previous night, then commented "We know who was there." Hicks asked Hansen how the meeting went5 and Hansen asked how Hicks had learned about the meeting. Hicks replied, "We know." I do not credit Hicks' denial that he had any conversation with Hansen involving the Union from April through December 1972, or that he made the inquiries and statements March 1972, Cartiglia dispatched a letter to employees noting the change in the identity of the organizing union, asserting that the same small self- seeking few were behind it, reminding employees of his October 1971 letter and the meetings which followed, and endorsing the statements and positions advanced at the earlier date. This communication also indicates the efficiency and depth of the Respondent's information -gathering arrangement s The evidence establishes that a similar incident took place the morning after Hansen attended the May union meeting. As this would have occurred on a date beyond the 10(b) period, the incident may not be found to have constituted a violation of Section 8(a)(1) of the Act However, it is relevant evidence relating to Respondent's knowledge concerning Hansen 's union activity and to the extent of Respondent's opposition to unionization. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attributed to him. I find that in this conversation Respondent, through Supervisor Hicks, engaged in unlaw- ful interrogation and conveyed the impression that umon meetings and activities of employees were under surveil- lance, both in violation of the Act. Hansen, whose work involved investigations conducted outside the office, had lunch at Nathan's Restaurant in Oceanside, Long Island, and was reading the Union's July 26 letter announcing the forthcoming meeting which he had picked up in. his morning mail when Fowler, manager of the Hollis, Long Island, office and LaStella, his casualty unit supervisor, appeared. Fowler asked Hansen if he was going to attend the union meeting announced in the umon flyer and Hansen indicated he was uncertain. Fowler denied making this inquiry and asserts that Hansen voluntarily informed him of receipt of a union meeting announcement which Hansen said he had in the car. LaStella, who was present, testified Hansen mentioned the notice and commented he wondered how the Union got his name and address to which Fowler replied that the names and addresses of employees were readily available in the office records. Fowler, however, fixed the time and place of the conversation concerning the availability of employees' names and addresses as having occurred on June 21, at the East Bay Diner in Bellemore and indicated that he and Hansen were alone on that occasion. I credit Hansen and find that Fowler's inquiry on or about July 28, as to whether Hansen was going to attend the union meeting constitutes unlawful interrogation. During that afternoon Hansen called his home and was given a message to call his supervisor, Larry Deaner. Hansen did so and Deaner asked him where he had been for lunch, who he had been with, and what they had discussed. When Hansen told him, Deaner demanded "Who the hell are you working for, Eddie-Fowler, Belger or me?" Deaner told Hansen that Fowler had called Cartigha who had called Belger (manager of Hansen's office) who had come to Deaner demanding to know why Hansen was attending and participating in those union meetings. Deaner advised Hansen that if he was going to be with the Union he could forget the outside job with the company car. Fowler admitted calling Cartiglia and reporting both the encounter with Hansen and the information obtained. Deaner testified that his call to Hansen was on a matter of personal good will and that the report to him by Belger of Fowler's conversation with Hansen that noon was brought up only incidentally when he inquired why Hansen had not told him of the Union's flyer. By way of explanation Deaner indicated that what he had objected to was the fact that Hansen told Fowler rather than him and he had to hear about it from someone outside his unit. I credit Hansen's version of this conversa- tion and find that, through Supervisor Deaner, Respondent attempted to require employees to report on union meetings and activities, unlawfully interrogated Hansen, and threatened to change his job assignment in retaliation for his union activities, each in violation of Section 8(a)(1) of the Act. C. The Alleged Violation of Section 8(a)(3) of the Act. Edgar Hansen was employed by Respondent in Novem- ber 1960. For the entire period of his employment with Respondent Hansen worked as a claims adjuster. During this period various supervisors have evaluated his job performance as excellent and superior and he received intermittent promotions and raises. His reputation for honesty and integrity was attested to by witnesses who had worked with him. Hansen attained the position of senior casualty adjuster in 1971, and at the time of his discharge on August 28, 1972, he was one of the highest paid in that classification. Hansen was among the small group of employees who met with the Union at one of the preorganizing meetings in November 1971 and he attended each of the open meetings conducted by the Union. In such meetings Hansen spoke of his support for the Union. Hansen signed a union authorization card in April 1972, and distributed union cards to some of his fellow employees, and talked about the Union with them. Hansen also was one of the employees who spoke up at the meetings conducted by Cartiglia in the fall of 1971 when Cartiglia asked employees to bring up any problems they had with working conditions or company policy. Hansen specifically men- tioned the lack of a manual of rules from which employees could ascertain what was expected of them and discussed what he viewed as an inadequate pension plan. Respondent asserts that Hansen was discharged for cause-namely, because he "lied to his office manager Belger, supervisors Kane and Hicks, employee Cramer and an independent fur investigator, Schachner, telling them that he `paid $1,800' for a lost or stolen fur coat or that the coat `cost $1,800,' for the purpose of inducing the Company to pay Hansen substantially more money on his fur claim than he actually paid for the coat. On this basis alone, Regional Claims Manager Cartiglia authoritatively recommended dismissal and received authorization to terminate Hansen's employment with Respondent." In August 1971, responding to an advertised half-price sale by S. Klein's Store in West Hemstead, New York, Hansen purchased a mink coat represented by Mac Miller, manager of the fur department, as a garment which had been specially designed and made from selected skins for the assistant manager who had since ordering it decided to retire and move to Florida. The coat was offered to Hansen, and purchased, for $800 plus tax. Hansen charged a $50 deposit, and paid cash for the balance when he picked up the coat for his wife on their 25th wedding anniversary. Miller gave Hansen an appraisal certificate dated September 7, stating the coat's replacement value was $1,800. On September 14, Hansen returned the coat for pocket alterations and on the advice of Miller, arranged for a "floater" to his homeowner policy carried with Respondent to cover the coat. Supplying the appraisal certificate from S. Klein's, Hansen insured the coat for $1,800, and paid the required additional premium. Several weeks later Miller informed Hansen the coat had been lost or stolen while being transported for adjustment. Miller suggested Hansen place a claim under his floater policy for reimbursement rather than against the carrier where ALLSTATE INSURANCE CO. 573 recovery would take approximately a year. Although he expressed doubt that he would be able to duplicate the skins in the lost coat, Miller indicated his willingness to make the effort to replace the coat if this was Mrs. Hansen's desire. Thus, on September 30, 1971, Hansen, as a policyholder of Allstate, verbally made a claim for recovery of the loss of the coat with Property Claims Examiner Cramer, located in the Baldwin office where he worked. At that time he advised Cramer he had recently taken out the supplemental policy un the amount of $1,800, and if there was any trouble verifying his coverage by computer she could talk to O'Neil through whom he had secured the floater. Cramer testified she asked Hansen to bring his bill and he told her he did not have it. She asked for a canceled check and he told her he had paid cash. Cramer told Hansen she would turn the claim over to the fur investigator to establish the replacement value. Cramer called Schachner and supplied him with the name, the alleged value, and the basic details. Another adjuster who had supplied Schachner's telephone number also spoke with him on the telephone as did Hansen. When Scha- chner's report was received Cramer passed the file on to her supervisor, Kane, as the amount involved was above that which she could approve and, in any event, claims by an employee were required to go to Manager Belger for approval of payment. She did tell Hansen of Schachner's recommendation for payment of $1,370. Cramer warned him this information should not be construed as an offer but added that since he did not have a receipt or bill this was probably the best the Company would do on his claim. Cramer testified that Hansen had given her the figure of $1,800, as the value of the coat, and when she asked him what he paid for it he stated that it was insured for $1,800. Cramer testified she had not seen Miller's appraisal certificate when the file was placed on Kane's desk, and no one asked her about her conversation with Hansen relevant to his claim until Belger advised her that Hansen had been removed from his job as a result of this claim file. Schachner called Miller who stated that the appraised value of the Hansen coat was $1,800. Miller refused to tell Schachner what the purchase price was because it was against store policy to make such disclosures. Miller testified he refused to replace the coat for the $1,200 suggested by Schachner and indicated he believed the replacement value of the Hansen coat to be around $1,500, the price Schachner reported Miller as stating. On October 19, 1971, Kane took Hansen's claim to Belger pointing out what he believed to be an inadequacy in the file-specifically, the absence of a bill of sale or some other proof of ownership. With Kane and Hicks, the intermediate superv.sor present, Belger called Hansen to his office, queried him about a bill of sale or canceled check and, when Hansen indicated he had neither and had paid cash, Belger asked, "Don't you have any kind of proof of ownership?" Hansen replied he had already told Cramer he no longer had the sales slip and could not get another. Belger then asked why Hansen had not proceeded against Klein's and Hansen told him it was because of the length of time which would be involved. When Hansen pointed out that Allstate was going to recover from Klein's and voiced his displeasure about the questioning, Belger indicated he was not trying to be difficult but merely trying to document the file, whereupon he offered Hansen, as settlement, the $1,370, recommended by Schachner. Hansen accepted and signed a waiver of any claim against subrogation proceedings. Hicks testified that it was about a year later, after Hansen's discharge, that Belger next mentioned the Hansen claim. On June 5, 1972, a release of claim against S. Klein's Department Store was executed by Allstate on the basis of a subrogation settlement of $844.82, the amount Hansen had actually paid for the coat. Sometime in June the Hansen claim file was purportedly by the subrogation supervisor brought to the attention of Property Claims Director Minelli whose responsibility involves security, including defalcations. Minelli immediately conferred with Cartiglia in the adjoining office with respect to it before even seeing the file. After he received the file, Minelli called Belger because the latter had approved the payment to Hansen, then again reported orally to Cartiglia informing him of the conversation with Belger. Cartiglia asked Minelli to document the case. Minelli obliged with a written report dated June 9. Admittedly Minelli did not make notes of any of the alleged phone calls or oral conversations and instituted no investigation, a departure from his usual practice of in depth and lengthy investiga- tions where job-related dishonesty is involved, sometimes requiring as long as 4 or 5 months. With respect to Hansen's claim, Minelli testified that it would not have mattered if Hansen had paid only $40; if the coat was in fact worth $1,370 in the replacement market that would be the amount of his recovery. He also indicated that the Company almost always received evasive answers if it asked what an insured had paid for a lost item and that claimants come in with appraisals instead. Minelli asserted his belief there was information in the file that Hansen had purchased the coat on sale at a reduced price. Stating that inflated appraisals are "part of the business," and these occasionally are double the actual value, Minelli added he has never known of S. Klein's issuing such exaggerated appraisals. Although Minelli generally makes recommen- dations in cases of impropriety, he made no recommenda- tion with respect to Hansen, but merely passed the file on to Cartiglia because Hansen was a long term employee and had made only this one claim. Sometime in June 1972, Cartiglia spoke to Division Claims Manager Mannarino, who had originally hired Hansen and had been his manager for several years. This inquiry related to Hansen's reputation for honesty. Then in mid-July Cartiglia again mentioned Hansen and his fur coat claim, asking Mannarino to acquaint himself with the situation as Cartiglia might decide to terminate Hansen. Mannarino commenced his vacation July 16 and returned August 2, Belger then went on vacation and returned on August 17. At that time Mannarino spoke with Belger who stated he was told by Hansen the latter had paid $1,800, for the coat, and that Hansen should be terminated. Mannerino reported this conversation to Cartiglia and concluded Hansen had lied and should be discharged. Belger testified he received a phone call from Minelli in early June 1972, regarding the Hansen claim in which 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Minelli indicated dissatisfaction with the way the claim had been handled. Later that month he received a call from Cartiglia who told him Hansen's file, received from subrogation, showed Hansen had paid only $840, for the coat. Cartiglia asked Belger what Hansen had told him in this respect and Belger advised that Hansen said he paid $1,800. Cartiglia then asked Belger to search his mind and to speak with whoever was involved and report back. Belger consulted no one and when he called back some time later he learned Cartiglia had gone on vacation, so he just "tossed it" in his mind without speaking to anyone until July 19 when he received another call from Cartiglia. This time he asked to see the file and thereafter spoke to Kane, who recalled that Hansen had said he paid $1,800 but had no receipt. After receiving a third call from Cartiglia on July 27, Belger gave his written recommenda- tion that Hansen be discharged. In August, Belger had a conversation with Mannarino at which time he told his then new division manager that Hansen had said he paid $1,800 for the coat. On July 28, Cartiglia forwarded the written recommen- dations of Belger and Minelli which he had solicited along with his endorsement of their recommendation to Vice President Amis for approval of the proposed discharge action. On August 28, while Mannerino was in the Baldwin office, Cartiglia called and told Mannerino authorization had been received, and he should terminate Hansen. Hansen was summoned and accused of misrepresenting the price he paid for the fur coat. He denied he had ever said he paid $1,800 insisting he had said it was worth that figure, but he was given the election of resigning or being terminated. Hansen refused to resign and requested an opportunity to discuss the matter with his wife. This was denied on the basis that it was too lath, and he was terminated. Hansen protested his not being given a hearing and as a "matter of courtesy," with his wife, was granted an interview by Cartiglia who made it clear at the outset that his decision was irreversible. Maimarino testified that in such situations he would ordinarily investigate thoroughly and analyze the facts including the length of service and past record of the employee but in this situation the matter was presented to him by his superior rather than by a subordinate and the only time Cartiglia told him to speak to Hansen was after the decision had been made by Cartiglia to discharge Hansen. Mannarino made no written record of any of the conversations except for the report of the discharge after it had been accomplished. However, this also had been reported to Cartiglia by phone immediately after the event. A substantial volume of testimony was presented relating to how values of furs are determined, marketing practices generally, and in particular stores including S. Klein's, style changes in lengths by years and the nomenclature attached thereto, etc. Similarly, great detail was presented with respect to the various phases in the processing of a claim with emphasis upon the significance of the absence in the Hansen file of the original sales slip for the coat. There was also noticeable carelessness in the use of such phrases as fraud, etc. On the preponderance of credible testimony, the record establishes, and I find, that the price paid for an insured item is in no way determinative of the amount the insured is entitled to recover under a loss claim; nor does the amount an insurer is able to recover through subroga- tion affect the amount an insured is entitled to under his insurance policy. Instead, the amount recoverable for the lost item is based on current replacement value , less any depreciation. Thus, the purpose of a record of purchase such as a sales slip is to establish ownership of the item insured and to supply an accurate description useful in fixing the current replacement value. However, this is not the only source for such information. Thus, an official appraisal certificate rather than a purchase record is generally used as the basis for issuing the insurance rider covering a particular piece of personal property and to determine the amount of coverage allowed . Such certificate contains a description of the item appraised and insured. But Respondent's witnesses agree that appraisals are notoriously inflated, and the value stated thereon cannot be utilized in determining the replacement value which would be paid to an insured for a loss. It is inconceivable in such circumstances that anyone handling the claim could have understood or believed that Hansen was claiming he actually paid the amount carried on the certificate of appraisal which he submitted when he obtained the added coverage. Indeed, Belger indicated that he never believed that Hansen had actually paid $1,800 for the coat. The insignificance of the price paid for an insured item is further demonstrated by the absence on Respondent's printed claims form of any question requiring disclosure of the purchase price, and the fact that no one, in the course of handling Hansen's claim, required him to state in writing the amount he had paid for the lost fur coat further diminishes this as a significant consideration. Moreover, although Hansen's work had primarily involved automo- bile accident casualties, it is clear he was fully aware of the considerations which entered into the valuation of a personal property loss, and despite the testimony to the contrary, I conclude that, as a knowledgable claims adjuster, Hansen did not, in filing or pressing his claim as an insured party, speak of the coat in terms of what he had paid for it, but rather, as he testified, referred to its insured value or its replacement value. If information as to the original cost of the insured item was in fact needed to establish a basis for payment of the claim, clearly several individuals including at least two supervisors were remiss in permitting settlement of Hansen's claim, yet no one was even investigated-much less reprimanded-for the purported overpayment which allegedly cost Hansen his job. The same applies to those who handled the subrogation phase of the loss, for Respondent failed even to investigate why settlement for the sale puce paid by Hansen was accepted rather than requiring from S . Klein's the replacement value of the item lost through their agent, in view of the $1,800 valuation certificate issued by Miller and Schachner's report that S. Klein's would replace the coat for $1,500, an amount in excess of what had been paid Hansen on his claim. Further, if fraud was in fact suspected it is strange that no steps were taken to recover any part of the money paid Hansen, although that is the procedure where fraud is believed to exist, and Respondent would stand to gain ALLSTATE INSURANCE CO. financially since by the terms of its policy Respondent is relieved of any liability whatsoever, in cases where fraud exists. Considering all the evidence presented, I am convinced and find that Hansen was not, in fact, paid any amount in excess of the true replacement value of the coat which was lost. Clearly, no one including the fur investigator took into account that the coat purchased by Hansen was not an off- the-rack S. Klein's coat but was a special design custom item, the value of which was much higher than those used by Schachner to determine replacement value. Finally, it is significant that Cartiglia, who alone made the discharge decision, subject only to approval by higher officials because o- Hansen's long service with the Company, testified that he decided to discharge Hansen because he "felt that Mr. Hansen had lied to Mr. Belger and, therefore, was no longer to be considered a trusted employee"; not because he supposedly lied to anyone else, or because he attempted to collect more than he was entitled to as asserted by Respondent. Even in this posture, reason would suggest that an offense so grave as to completely strip and old and reliable employee of any further trust would also require a prompt investigation and speedy removal. This is especially so when the employee involved is one who had received steadily increasing authority to commit the company funds and who had never even been suspected of defalcations in any form although such were the temptations and hazzards of his particular job. Instead, the matter was put aside, not only for other job commitments but also for consecutive vacations, without any attempt to remove the cloud or establish Hansen's guilt. Hansen was not even given an opportunity to deny that he told a falsehood. If the reason for such a casual regard for any possible dangerous effect of this alleged dishonesty on Hansen's job performance was due to the fact :.hat the incident involved was not job related, it is difficult to accept the conclusion that the suspected conduct suddenly became so job related as to require his discharge. In view of all the foregoing, I must conclude that the reasons advanced by Respondent for Hansen's discharge were pretextual. There remains the question of whether, as contended by the General Counsel, this record established that the real motive behind Hansen's discharge was retaliation for his union activity. Respondent's knowledge of the union activities of its employees is clearly established, not only by admissions of its various supervisors that they received and passed on to Cartiglia the literature sent out to the employees by the Umon, but also by the fact that in its March 1972 letter Respondent announced that the Charg- ing Party herein was the currently interested union even before the Union had dispatched its first general communi- cation to employees. The unlawful interference and coercion by supervisors found above demonstrate Respon- dent's specific knowledge with respect to at least some of Hansen's union activity. And in light of the demonstrated effectiveness of Respondent's information network it may reasonably be inferred that Respondent also knew that Hansen had signed an authorization card for the Umon and had distributed cards to other employees. 575 As the time of the settlement of the subrogation of his claim is not substantially remote from the time of the discharge decision it would not appear that Respondent resurrected the old insurance claim to rid itself of an active union adherent. However, this is not to say that it did not seize upon that claim as a pretext for accomplishing the same result. The delay in even investigating Hansen's conduct from early June when the union activity appeared to be persistent until mid-July when it was clear the Union had not held a meeting for that month is consistent with Fowler's statement that "as soon as the Union folds their tent everybody (who attends union meetings) is going to be fired." On the basis of the entire record, I find that Respondent discharged Hansen, not because of any conduct connected with his claim as an insured customer, but for engaging in union activity as an employee, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Edgar Hansen for engaging in union activity, Respondent has discriminated against him with respect to terms and conditions of employment, thereby discouraging membership in the Union, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 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. And, as the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that it cease and desist from in any other manner infringing upon rights guaranteed in Section 7 of the Act. Having found that Respondent unlawfully discharged Edgar Hansen on August 28, 1972, 1 shall recommend that Respondent offer him immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position without prejudice to any seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him, by payment to him of a sum of 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money equal to that which he normally would have earned, absent the unlawful discrimination , with backpay and interest computed under the established standards of the Board, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recom- mended 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 right of reinstatement under the terms of these recommendations. [Recommended Order omitted from publication.]