CNA Financial Corporation

CNA FINANCIAL CORPORATION CNA Financial Corporation' and Warehouse, Mail Order, Office, Technical and Professional Em- ployees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 13-CA-20876 and 13-CA-21005 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On February 8, 1982, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in opposition to the General Counsel's exceptions and alternative cross-excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. This case involves two 8(a)(1) complaints against Respondent that were consolidated for hearing, both of which the Administrative Law Judge dis- missed. We would not dismiss the complaint in Case 13-CA-21005. The first complaint (Case 13-CA-20876) alleged 8(a)(1) interference with employees' Section 7 rights by reason of Respondent's lawsuit concern- ing the use of Respondent's logo, CNA, "lifted" from Respondent's official stationery and used on a letter signed "CNA Organizing Committee." This letter urged that employees organize and seek better working conditions. In the lawsuit the Fed- eral district court held that it was not preempted by Federal labor law from considering the case. On March 3, 1981, it awarded damages of $2,500 to the plaintiff (Respondent) based on the use in the letter of its registered service mark, CNA, and en- joined use of the name "CNA Clerical Committee" that had appeared at the bottom of the letter invit- ing employees to organize. The Administrative Law Judge found no 8(a)(1) coercion of employees by reason of this lawsuit for infringement of the CNA trade name and service mark, and recom- It appears that in his Decision the Administrative Law Judge inad- vertently captioned the case as "CNA Insurance Corporation." We note that, after the cases were consolidated, Respondent referred to itself as "CNA Financial Corporation." 264 NLRB No. 80 mended dismissal of the complaint in that regard. We agree. However, the second complaint (Case 13-CA- 21005) alleged unlawful employer interrogation and surveillance of employees within the meaning of the Act incident to management's attempts to as- certain which employees were responsible for ob- taining and using Respondent's employee lists, as well as to its reading to employees from a prepared set of questions and answers that included a bar- gaining-from-scratch statement, and emphasizing Respondent's desire to know who was responsible for disclosing employees' names and addresses to the Union and who were members of the CNA Clerical Committee. Without making credibility findings, the Administrative Law Judge assumed that these interrogations occurred, found that they were "for a legitimate business purpose" in support of Respondent's litigation, and concluded that they were "not coercive in character." 2 Under Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146 NLRB 770 (1964), and its progeny, the Board has long held as it recently did in Kyle & Stephen, Inc., 259 NLRB 731 (1981), that, in preparing its defense in an unfair labor practice proceeding: . . .the employer must follow specific guide- lines in questioning the employee to avoid in- curring 8(a)(1) liability. Among other require- ments, an employer must tell the employee the purpose of the questions, assure the employee freedom from reprisal, and secure the employ- ee's voluntary participation. These safeguards are designed to minimize the coercive impact of employer interrogation and . . . are applica- ble irrespective of the employer's intent to coerce, the extent of the questioning or number of employees so interrogated, or the remoteness of the interrogation to alleged un- lawful conduct. Here, the employer gave no assurance of free- dom from reprisal. Since Respondent's trademark inquiry was inextricably intertwined with the em- ployees' union activity, Respondent's failure to ap- prise the employees that the purpose of its interro- gation related only to that inquiry and not to their union activity, and to state that there would be no reprisals for such activity, interfered with the Sec- tion 7 rights of its employees in violation of Sec- tion 8(a)(1) of the Act. z The Administrative Law Judge cited on a cf. basis only Mineola Ford Sales. Ld., 258 NLRB 406 (1981), concerning legitimate questioning on interim employment in anticipation of a backpay proceeding, a proceed- ing in which assurances that furnishing the information is voluntary are not required 619 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. CNA Financial Corporation is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Warehouse, Mail Order, Office, Technical and Professional Employees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(l) of the Act when it filed its lawsuit for infringement of the CNA trade name and service mark in Federal district court. 4. Respondent violated Section 8(a)(1) of the Act by interrogating employees without apprising them that the purpose of its interrogation related only to Respondent's trademark inquiry and not to their union activity, and without stating that there would be no reprisals for their union activity. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We shall order Respondent to cease and desist from interrogating its employees concerning their protected concerted activities. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, CNA Financial Corporation, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their concerted activities without apprising them that the purpose of its interrogation does not relate to their union activity for which there would be no repri- sals. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in Chicago, Illi- nois, copies of the attached notice marked "Appen- dix." 3 Copies of said notice, on forms provided by s 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 Pursu- the Regional Director for Region 13, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint alle- gations in Case 13-CA-21005 not specifically found herein be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the complaint in Case 13-CA-20876 be, and it hereby is, dismissed in its entirety. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NA1IONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees con- cerning their concerted activities without ap- prising them that the purpose of our interroga- tion does not relate to their union activity for which there would be no reprisals. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, as amended. CNA FINANCIAL CORPORATION DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed in Case 13-CA-20876 on February 26, 1981, by Warehouse, Mail Order, Office, Technical and Profes- sional Employees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, was served on CNA Financial Corporation, herein called Respondent, on February 27, 1981. A complaint was issued on August 7, 1981, wherein it was alleged that Respondent filed a law- suit against the Union and others "where an object of the 620 CNA FINANCIAL CORPORATION lawsuit was and is, to coerce employees in the exercise of their rights guaranteed in Section 7 of the Act." On April 7, 1981, the Union filed a charge against Re- spondent in Case 13-CA-21005 which was served on Respondent on April 10, 1981. A complaint and notice of hearing was issued on May 15, 1981. In the complaint it was alleged that Respondent unlawfully interrogated employees, created an impression that its employees were under surveillance, and unlawfully threatened its employees with loss of benefits, all of which was in vio- lation of Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act. Thereafter on August 14, 1981, an order consolidating cases and order scheduling hearing was issued in which Cases 13-CA-20876 and 13-CA-21005 were consoli- dated. The consolidated cases came to hearing before me in Chicago, Illinois, on October 27, 28, and 29, 1981. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and con- clusions of law, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT, CONCILUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation and at all times material herein has maintained an office and place of business at CNA Plaza, Chicago, Illinois, where it is en- gaged in the operation of an insurance company. During the past calender or fiscal year, a representa- tive period, Respondent, in the course and conduct of its business operations described above, received from poli- cyholders insurance premiums valued in excess of $500,000, of which is excess of $50,000 represented pre- miums received from policyholders located outside the State of Illinois. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES First: As noted above in the complaint in Case 13- CA-20876 it is alleged that Respondent interfered with the employees' rights by filing a lawsuit where an object was to coerce employees in their rights guaranteed by Section 7 of the Act. The General Counsel in his brief has apparently abandoned this claim. Nevertheless, the Charging Party urges that an affirmative finding be en- tered on said complaint. On or about February 20, 1981, a number of Respond- ent's employees received a typewritten organizational letter which was signed "CNA Clerical Committee." In a postscript at the bottom of the page it was stated that the Union had agreed to underwrite the mailing cost. The "CNA" logo, Respondent's trade name and service mark, was affixed to the upper right-hand corner of the letter, in the same manner as on the stationery of the CNA Financial Corporation. The reproduced CNA logo had been lifted from Respondent's official stationery. The letter disclosed no return address nor did it identify the membership of the committee.' Some employees who received the letter noted and reported to Respond- ent that the names and addresses on the envelopes dis- closed the same idiosyncratic features, such as misspell- ings, which only mailings by Respondent revealed. Thus the inference was that the senders of the organizational letter had had access to Respondent's confidential em- ployee list. Respondent became concerned. It addressed a letter dated February 20, 1981, to its employees disavowing any participation in the composition or distribution of the letter 2 and instituted an action in the United States district court on February 25, 1981, against the Union, and others, as defendants, seeking to protect its federally registered service mark and logo and the integrity of its confidential files. The defendants denied the allegations in the complaint and contested vigorously Respondent's claim. The defendants maintained, among other things, that the Federal court had no jurisdiction to adjudicate the matter due to the primary jurisdiction of the National Labor Relations Board. Overruling the defendants, the court held that it had jurisdiction and was not preempted by Federal labor law from considering the case. The case finally resolved by a consent order on October 15, 1981. Among other things, the defendants were enjoined from using or displaying the CNA service mark and from using the name "CNA Clerical Committee"; the de- fendants were also ordered to pay $2,500 in damages. While the above action was pending Respondent took depositions of Rosemary Ortega Gonzalez, an employee of the Union, on April 28 and June 8, 1981. Among other things, she was asked" by Respondent's counsel concerning matters in connection with the distribution of the organizational letter and the identity of persons in- ' Enclosed with the letter was a business reply card addressed to the Technical Office and Professional Employees, Division of l.ocal 743, IB. of T., 300 South Ashland Avenue. Chicago, Illinois The card recited: "I am interested in further information on how Local 743 can help improse my wages, benefits and working conditions." Space was provided for name and address and telephone number. 2 The first paragraph of the letter read Some employees received a letter at home February 19 from Team- sters Union representatives on stationery using a fake CNA emblem That letter was not from CNA. It was from a Teamsters organiza- tion on Ashland Avenue I personally want to apologize to you for this invasion of your pnvacy. I also want to assure you that CNA does not have a CNA Clerical Committee. In fact, as you know, we encourage every employee to come forward with their concerns. We do not know how your name and address were obtained by this group and we are pursuing this issue. You should know that CNA did not make your name and address available, and is going to sue to prevent the unauthorized use of the CNA emblem 3 Among the question, Respondent's counsel asked: "Who prepared the letter?"; "Of these people how many were employees of CNA?"', "Who was it that cut the letters off of the letter from CNA and put them on this letter?"; and "Who was it that did the Xeroxing'I" 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volved in its distribution.4 Gonzalez refused to answer on advice of counsel. Her refusal was submitted to the court; Gonzalez was ordered to answer the questions. When the questions were again put to Gonzalez on June 8, 1981, she refused to answer by invoking the fifth amendment against self-incrimination. From the foregoing facts (as apparently conceded by the General Counsel) it is clear that the General Counsel has not established by a preponderance of the evidence that Respondent coerced any employee (Gonzalez was not an employee within the meaning of the Act) in viola- tion of Section 7 of the Act by filing the aforesaid suit for infringement of its trade name and service mark, "CNA." The complaint in Case 13-CA-20876 is dis- missed. Second: In respect to the complaint in Case 13-CA- 21005 the General Counsel's sole claim in his brief is that "Respondent violated Section 8(a)(1) of the Act by inter- rogating employees about union and other protected ac- tivities, and inducing or attempting to induce, employees to engage in surveillance of union or other protected concerted activities .... At the very least, Respond- ent's conduct, if not constituting surveillance in fact, un- lawfully created the impression of surveillance." To support these contentions the General Counsel pointed to Respondent's letter of February 20, 1981, in which it disavowed involvement in the above-mentioned 4 Gonzalez revealed that eight persons were involved in the prepara- tion of the letter of February 8, 1981; that the CNA logo was lifted from a "piece of company literature" and then Xeroxed; and that the mailing was effected from the Union's offices. organizational letter and he quoted therefrom, "If you have any information as to how your name and address were obtained, because they were not furnished by CNA management to this group, please tell your supervisor or call Bob Keith on Ext. 7446." Additionally, the General Counsel cites testimony of employee Arinez Gilyard to the effect that on February 20, 1981, Richard Hoskins, property manager of Columbia Casualty Company, met with employees and stated management wanted to know who was responsible for obtaining lists that had been used to mail the letter to employees. Such remark was made after Hoskins had displayed a copy of Respond- ent's disavowal letter and told the employees that Re- spondent intended to file a lawsuit because the CNA Clerical Committee had no official standing under the CNA name. Again on February 23, 1981, Hoskins met with employees at which meeting Hoskins read from a prepared set of questions and answers. Hoskins said that Respondent still wanted to know who was responsible for disclosing employees' names and addresses to the Union and who the people were on the CNA Clerical Committee. Assuming arguendo that the foregoing interrogations occurred as claimed by the General Counsel, in that the interrogations were for a legitimate business purpose, i.e., in support of the litigation above detailed, and under the circumstances were not coercive in character, their utter- ance did not offend Section 8(a)(1) of the Act. Cf. Min- eola Ford Sales, Ltd., 258 NLRB 406 (1981). [Recommended Order for dismissal omitted from pub- lication.] 622