Allstate Insurance Co.

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 955 (N.L.R.B. 1970)

ALLSTATE INSURANCE COMPANY
Allstate Insurance Company and General Sales Drivers
& Allied Employees Union , Local No. 198, an
affiliate of the International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America . Cases 12-CA-4568 and 12-RC-2792
November 30, 1970
DECISION, ORDER , AND DIRECTION
OF THIRD ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 4, 1970, Trial Examiner Lloyd S. Greenidge
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found merit in certain objections to the
election in Case 12-RC-2792 and recommended that
the election be set aside and a new election be
directed. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner except as modified below.
In adopting the Trial Examiner's findings that the
interview held by Livingstone and Harris with Bregoff
was coercive, we rely upon the remarks directed at
Bregoff and not upon the "interviewing technique"
employed.
We further do not adopt the finding of the Trial
Examiner that Magnum created the impression that
the Respondent was keeping the union activities of its
employees under surveillance when he told Cline,
. . we kinda felt that you voted for the Union the
last time, you being from the coal fields of Eastern
Kentucky and an area where labor has played an
important role among the United Mine Workers,"
and Cline volunteered that he had so voted. No
impression of surveillance is indicated by this state-
ment of Magnum.
ORDER
955
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Allstate Insurance Compa-
ny, Miami, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
June 26, 1969, among the Respondent's employees be,
and it hereby is, set aside, and that Case 12-RC-2792
be remanded to the Regional Director for Region 12
for the purposes of conducting a new election at such
time as he deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Third Election 2 omitted from pub-
lication.]
i These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted After a careful review of the record, we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, Inc, 9l NLRB 554, enfd 199
F 2d 362 (C A 3) The Respondent has requested oral argument This
request is hereby denied because the record, the exceptions, and the briefs
adequately present the issues and positions of the parties
The Board has taken note of the opinion of the Court of Appeals for the
Seventh Circuit in Lake City Foundry Company, inc, v NLRB, 17354
and 17429, October 12, 1970, in which that Court denied enforcement of
the Board's Order in 173 NLRB No 159 However, we are still persuaded
as to the validity of the Trial Examiner's findings in the instant case, except
as modified herein
2 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear, Inc 156 NLRB 1236; N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 12 within 7
days after the date of issuance of the Notice of Third Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This consolidated
proceeding was heard at Miami, Florida, on January 27, 28,
and 29, 1970. It arises out of efforts by General Sales
Drivers & Allied Employees Union, Local No. 198, an
affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, to obtain recognition as the
majority representative of certain employees of Allstate
Insurance Company, herein called the Respondent, the
Employer, or the Company.
On May 3, 1967, the Union filed a representation petition
in Case 12-RC-2792 seeking an election in a unit of all
186 NLRB No. 139
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance agents employed by the Employer in Dade
County, Florida, which embraced Districts 1, 2, and 3 of
the Employer's Division 1, including eight sales locations in
Dade County and two in Broward County. Later, it filed
three additional petitions in Cases 12-RC-2886,
12-RC-2889, and 12-RC-2897 for elections among agents
in other sales districts in Division 1. Following a
consolidated hearing, the Board, on May 1, 1968, found,
inter alga, that Districts 1, 2, and 3 could be combined to
form a single appropriate unit for the purposes of collective
bargaining and directed an election therein' On May 22,
1968, elections were conducted in the four units and the
Union failed to obtain a majority in any of the units.
Thereafter, the Union filed timely objections to the
elections. In a Supplemental Decision, dated September 26,
1968, the Regional Director overruled certain challenges
filed in Case 12-RC-2792, recommended that the chal-
lenged ballots be opened and counted, and provided that if,
after they are counted and a revised tally of ballots is
issued, it appears that the Union has secured a majority of
the votes cast, it be declared the winner and a certification
be issued to it. If, on the other hand, the revised tally shows
that the Union has not secured the required majority, the
Regional Director also provided, on the basis of having
found merit in a single objection filed in Case 12-RC-2792,
that the results of the election in that case be set aside and a
second election be ordered At the same time , the Regional
Director overruled the objections filed in the other cases
and issued a certification of the results of elections therein.
On October 24, 1968, the Employer filed a request for
review of the Regional Director's findings with respect to
the objection in Case 12-RC-2792 and his conditional
direction of a second election The Board, on November 26,
1968, granted the request, ordered that the challenged
ballots be opened and counted and, in the event the Union
does not obtain a majority in the revised tally, stayed the
conduct of a second election pending a resolution of the
objection. The Union failed to achieve a majority in the
revised tally and, on December 19, 1968, the Regional
Director issued an order scheduling hearing. During the
course of the hearing, the parties entered into a stipulation
whereby they agreed that the election in Case 12-RC-2792
should be set aside and a new election ordered in a unit of
"all insurance agents within District I, District II, District
III, and District IV of Division 1, of the Employer's
operations in the State of Florida, excluding all claim
adjusters, clerical workers and supervisors, and all other
employees as provided under the Act " In its Decision on
Review, Order, and Direction of Second Election, dated
May 21, 1969, the Board approved the stipulation after
rejecting certain contentions of the Petitioner, set aside the
first election and directed a second election.2 The results of
the second election, conducted on June 26, 1969, were that
44 votes were cast for the Union and 48 votes were cast
against the Union. There were no challenged ballots. On
July 1, 1969, the Union filed timely objections to conduct
affecting the results of the second election.
The complaint in Case 12-CA-4568 issued on October
20, 1969 on a charge filed on July 7, 1969 by the Union.
1 171 NLRB No 29 The Board also found, in the other three cases,
that individual districts qualified as separate appropriate units
Subsequently, on October 22, 1969, the Regional Director
issued a Second Supplemental Decision on Objections in
which he (1) found that certain allegations in the Union's
objections 1, 2, 3, and 5 and objection 8 in its entirety raised
substantial and material issues of fact which can best be
resolved by a hearing; (2) overruled the other objections;
and (3) issued an order consolidating cases and notice of
hearing thereby consolidating Case 12-RC-2792 with Case
12-CA-4568 for hearing herein, and transferring and
continuing Case 12-RC-2792 before the Board. The
questions presented are (1) whether the Respondent has
engaged in conduct which warrants setting aside the
election; and (2) whether the Respondent, in violation of
Section 8(a)(1) of the Act, interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights.
Respondent's answer puts in issue all of the foregoing
allegations. The Trial Examiner requested all parties to file
briefs but neither the General Counsel nor the Union filed a
brief A brief was received from the Respondent and it has
been carefully considered.
Upon the entire record in this proceeding, his resolution
of issues of credibility based upon his observation of the
attitude and demeanor of the witnesses , and the brief filed
by the Respondent, the Trial Examiner makes the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits and it is hereby
found, that Allstate Insurance Company, the Respondent
herein , is an Illinois corporation engaged in the sale of
insurance in the United States and Canada. At all times
herein material, Respondent has maintained its principal
office and place of business at Northbrook, Illinois, and
division and district offices in the State of Florida.
In the course and conduct of its business , Respondent
derives annually , from the interstate sale of insurance, an
amount exceeding $1 million, of which more than $50,000 is
remitted to its home office from its officers in Florida. It is,
therefore, found that the Respondent is now, and at all
times material herein has been , an employer within the
meaning of Section 2(2) engaged in commerce, and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
General Sales Drivers & Allied Employees Union, Local
No. 198, an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, the Union herein, is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
2 176 NLRB No 4
ALLSTATE INSURANCE COMPANY 957
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
1. Respondent's operations
The State of Florida is a single administrative region
under the Employer's organizational structure . Within that
region are two or three divisions and a number of districts.
These proceedings involve only Division 1 in the Florida
region . At times material , Dwight Livingstone has been the
regional manager for Respondent 's Florida region , Dale B.
Harris has been personnel manager for the region , and Jack
B. Magnum has been the district sales manager for the Fort
Lauderdale and Hollywood Retail Sales Locations and the
1631d Street office in Miami. The complaint alleges,
Respondent admits in its answer , and I find that, at all
times material herein , Livingstone , Harris, and Magnum
have been and are agents of the Respondent acting in its
behalf and supervisors within the meaning of Section 2(11)
of the Act. During relevant times , there were approximately
94 insurance agents in Division I employed at district sales
locations at Miami , Coral Gables, Hollywood, and Fort
Lauderdale.
ny employees concerning the union activities of other
employees. Thus, Harris was aware of the current feelings
of each agent with regard to the Union, was apprised of
scheduled union meetings and of the employees who had
attended such meetings.
It is abundantly clear from the record that the
Respondent conducted a vigorous and undisguised antiun-
ion campaign. Although free to exercise to the fullest extent
its rights of free speech guaranteed by Section 8(c) of the
Act, Respondent necessarily assumed the risk of overstep-
ping the narrow line between permissible and impermissi-
ble conduct.
B. Interference, Restraint, and Coercion
There are 10 specifications of conduct alleged to be in
derogation of Section 8(a)(1) of the Act, five of which are
attributable to Personnel Manager Harris, four to District
Sales Manager Magnum and one to Regional Manager
Livingstone, occurring on various dates from on or about
June 5 to June 23. The evidence related to each of these
matters is considered chronologically.
1. The facts
2. The Campaign
There is no evidence of a history of union organization or
labor relations before the appearance of the Union at
Respondent's places of business in Florida indicated above.
Prior to the second election in Case 12-RC-2792,
Respondent undertook an extensive campaign to defeat the
Union at the polls. The allegations of the General Counsel
concern events which transpired in the period immediately
preceding the holding of the second election on June 26,
1969.3 Dwight Livingstone, the top management represent-
ative in the Florida region, had many lengthy conversations
with his superiors about the campaign. His instructions
were to run an efficient operation and, hopefully, by
examples of integrity in management and fair and
honorable treatment toward all employees, win support for
the Employer in the election.4 However, Livingstone
admitted that he harbored a distinct union animus,5 and
actively campaigned against the Union. Further, he
conceded that he discussed his views concerning the Union
with every manager and many, if not all, of the agents. In
his "face to face" conversations with the agents, singly or in
small groups and usually in coffee shops or restaurants,
Livingstone reviewed the problem of job security with them
and advised on the "long range impact of a union vote."
Further, in these conversations, Livingstone attempted to
ascertain how the agents would vote in the election and
then passed on his assessment or impression to an
unidentified third person. The technique was employed,
with certain variations, by Dale B. Harris, the personnel
manager and by Jack B. Magnum, the district sales
manager. Harris discussed the "issues" with each and every
agent in the voting unit, not once but several times, and
received and accepted intelligence reports from procompa-
3 Unless otherwise noted, all dates hereinafter are in 1969
4 There is no contention that Livingstone's statements to the employees
during the campaign were in contravention of any of the instructions he
About 10 a.m., June 5 or 6, Harris arrived at the Miami
Beach sales location. He had called the office shortly before
then to alert agents Newton A. Baker and Jay Martin
Wordes of his visit. After Harris arrived, the men withdrew
to Molnar's Restaurant, a local establishment. At the outset
of the meeting, Harris told Baker and Wordes that the
Company was going to win the election and related that
many agents had informed him that they regretted having
voted for the Union and were now prepared to vote for the
Company. He pointed out that, after the first election, the
Company added about 19 agents to the voting unit and
declared that they too would vote against the Union. Harris
then disclosed that the Company was concerned about low
morale and a deep division among the agents on the
question of union representation. At about this point,
Wordes and Baker inquired why Harris was talking to them
and he replied that it was because they appeared to be
neutral. They then asked what could be done about the
problem. According to Wordes, Harris said "there is a
procedure whereby if the Union feels that they are going to
lose the election then they can withdraw the petition to hold
it." Asked to explain further the mechanics of withdrawing
a petition, Harris went on to say that the action should be
initiated by Eli Schutzer, the Union's business agent, but
that Schutzer would only act if the members of the Allstate
Information Committee, the prounion group, were con-
vinced that the Union could not succeed in the election. At
the request of the agents, Harris detailed the advantages
and disadvantages to the employees, the Union, and the
Company that would flow from a withdrawal of the
petition. Wordes and Baker entertained mixed feelings
about presenting the proposal to the Committee and asked
whether Harris had any objection to them telling the
members that the proposal emanated from him and he said,
had received from management
5 Livingstone testified that he would have resigned from Allstate had
the Union won the second election
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no. After this, Wordes and Baker announced that they
would get in touch with the Committee and Harris agreed
that they should do so. The meeting lasted more than 2
hours and, in the end, Harris wrote his home number on a
business card and gave it to Wordes.6 Sometime between
5:30 and 6 that evening Harris received a telephone call
from Wordes 7 in which Wordes informed Harris that he
and Baker had contacted the Committee and the members
had agreed to meet with them the following Tuesday
evening, June 10. Baker then told Harris that they needed
more information, specifically, the names and locations of
the 19 agents the Company had brought into the region
since the first election. Harris replied that he would be in
Miami on Monday June 9 and, at that time, would provide
the data requested. As promised, Harris appeared at the
Miami office on June 9 with a current roster and went
down the list giving Wordes and Baker the names and work
locations of every agent in the region. The day following the
Committee meeting, June 11, Harris called the Miami
Beach office. Wordes answered the telephone and Harris
asked what had taken place at the meeting. Wordes replied
that the Committee had rejected the proposal because it
believed it would win the election. Harris thanked them but
expressed regret that they had not succeeded in their effort.
Either during this telephone conversation or a meeting in
Molnar's Restaurant the next day, June 12, Harris asked
Wordes and Baker if anyone from Broward County was at
the union meeting and they replied in the negatives
Sometime between 3 and 3:30 p.m., June 12, Harris
visited the Coral Gables store where he engaged Joan
Hoyal, an agent stationed at that location, in a conversa-
tion. It began in Hoyal's booth and, at Harris' suggestion,
the situs moved to a nearby coffee shop. After an exchange
of the usual amenities, Harris asked Hoyal whether she had
seen any of the Allstate agents during a recent vacation in
St. Louis, whether she had discussed the pending union
election with them, and whether she had signed up any of
the agents there for the Union. Hoyal replied that she did
not go to St. Louis for that purpose. Pressing his inquiry,
Harris went on to ask how many agents Hoyal had talked
to, what they had to say about the Union, and whether she
had heard anything about the Florida issue. Hoyal
answered that she had stopped at only one location where
she left a card with her cousin's name and address on it and
a statement that the agents might call Hoyal if they so
desired .9
Late in the morning of June 17, Regional Manager
Livingstone and Harris arrived at the Fort Lauderdale
Sales Location. According to agent Donald Bregoff,
Livingstone and Harris approached him while he was in his
booth and, at Livingstone's invitation, Bregoff accompa-
nied them to a coffee shop close to his work station.10 After
6 Harris testified that Wordes suggested that they assemble at Molnar's
Restaurant Although not controverted by Wordes or Baker, i do not
accept this testimony of Harris. The meeting was initiated by Harris, it
lasted in excess of 2 hours, and was devoted almost exclusively to
antiunion talk by Harris It is, therefore, unreasonable to believe that
Wordes, a neutral in the election at the time the invitation was extended by
Harris, would have had any interest in an informal setting away from the
office for an extended discussion about the election and the Union On the
contrary, considering all the circumstances attendant to the meeting and its
purpose as well, it is more reasonable to believe, and I do and find, that the
locale was proposed by Harris, an active and vociferous advocate of the
a brief discussion, general and friendly in nature,
Livingstone announced that he was "waging the campaign,
and [he'd] like to talk with them about the union
campaign." At this point, Scott left the group. Immediately
thereafter either Livingstone or Hams waved a finger in
Bregoff's face and Livingstone said, "Don this is a serious
matter coming up. It's serious to the company and I think
it's serious to you as an an individual and I want to know if
you have had the opportunity to look at all of the
issues-give all the issues good thought and consideration."
After this, Livingstone asked Bregoff how the campaign
was going, why he wanted a union, and what was the "big
issue." Bregoff retorted that the issue was job security and
stated that if a provision for compulsory arbitration was
written into a contract the employees would have no need
for a union. Harris then said that Bregoff should be the last
person to raise the subject of arbitration as he was an
example of the protection the Company already provides its
employees under its existing personnel policy. About this
juncture, Harris reminded Bregoff of past events, namely,
that a number of applications processed by Bregoff
contained inaccurate information and informed him that
management had considered terminating him for that
reason. Continuing Harris went on to say that the problem
presented by mistakes of the kind Bregoff had made would
have been handled differently under a union contract
because, in such a circumstance, there would be no room
for latitude based on personal considerations. At this point,
Livingstone or Harris stated that he had discussed Bregoff's
mistakes with Ken Worrow, a member of the Allstate
Information Committee, and Worrow had told him that
mistakes of the kind Bregoff had made would be cause for
discharge even under a union contract, and that the Union
would not condone the practice. Bregoff protested, in
effect, charging Harris with bad faith in resurrecting his
mistakes after the Company had promised the matter
would be forgotten and accused Livingstone and Harris of
"leaning on him pretty hard." Livingstone rejoined saying
that it was simply a matter of business integrity. Harris
replied that he did not care what Bregoff thought, that "the
very fellows that you think are going to back you up, would
sell you down the river." About this point, Bregoff got up to
leave and Livingstone and Harris did the same. As they
were walking out of the coffee shop, Livingstone put his
arm around Bregoff and said, "Don I don't want you to
think we've been leaning on you too hard. We'rejust trying
to get a point across." Bregoff asked if one vote was worth
an hour of Livingstone's time. Livingstone answered in the
affirmative and then advised that the election was "a
crucial matter," predicted it would be a "cliff hanger," and
cautioned Bregoff to think "seriously about these things."
Harris' parting comments and suggestions were that
Company's cause
7 Both were on the same line but one or the other used an extension
a The facts above are found from a synthesis of the credited testimony
of Wordes and Baker, as corroborated in part by admissions of Harris.
Testimony of the latter in conflict with the findings is not credited
9 1 find this discussion from the credited account of Hoyal, as
corroborated in part by admissions of Harris Testimony of Harris at
variance therewith is not credited
10 Harris testified that Bregoff and agent Ben Scott were in the coffee
shop when Livingstone and Harris entered but I find Bregoff s recollection
of the encounter to be more accurate
ALLSTATE INSURANCE COMPANY 959
Bregoff should ask himself "very carefully at the ballot box
as to whether or not [he] will ultimately have greater
security under a fixed, binding union contract that will be
administered by Hoffa, Schutzer, Worrow, Keiser . . . or
the existing personnel policy of Allstate, which has already
provided you protection with Livingstone, Harris, and
Bain." ii
Either the following day, June 18 or the next, Jack B.
Magnum, the district sales manager, encountered agent
James Evan Cline in the coffee shop at the Fort Lauderdale
location and asked how the election was going. Cline
replied that he did not know and Magnum said, "well I
think there's going to be 54 votes for the Company and 40
votes for the Union." Continuing Magnum asked how the
election was going at Fort Lauderdale and again Cline said
he did not know. Magnum then predicted a 6 to 4 vote in
favor of the Company at Fort Lauderdale and Cline
observed that it could go the other way. About this point,
Magnum declared, "well, we kinda felt that you voted for
the Union the last time, you being from the coal fields of
Eastern Kentucky and an area where labor has played an
important role among the United Mine Workers." Cline
acknowledged that he had voted for the Union but
requested that management not "lean" on him for this
reason. Later the same day, Magnum asked Cline if he
knew anything about a union meeting scheduled to be held
at Hollywood, Friday night, June 20. Cline answered in the
negative but promised to apprise Magnum of the meeting in
the event he received an invitation.12
About 1:30 p.m., June 20, Kenneth A. Worrow, an agent
assigned to the Northside Shopping Plaza and a member of
the Allstate Information Committee, drove to the Holly-
wood location for the purpose of urging the employees
there to attend a union meeting set for 9 p.m. that evening.
Worrow arrived at Hollywood sometime between 2:30 and
3 p.m. and left about 6 p.m. During the entire period
Worrow was in the Hollywood office, Magnum remained in
the area. At some point, Worrow asked Magnum when he
was leaving and Magnum said, "you know we can't leave
when you guys are around." Worrow testified that his
efforts to encourage the employees to attend the meeting
were impeded by Magnum's presence. At approximately 5
p.m., the same day, Magnum asked agent Everett Eugene
11 The foregoing findings are based on a reading of the composite
testimony of Bregoff, Livingstone, and Harris, much of which was
undisputed and undenied Where there is conflict, I credit the testimony of
Bregoff over that of Livingstone or Harris Bregoff impressed me favorably
as a truthful witness and gave me no reason to doubt his veracity in its
brief, Respondent appears to contend that Bregoff should not be credited
because of his "prounion position" and "his animosity toward the
Company for having permitted the application falsification issue to become
widely known " In openly advocating the desirability of union
representation Bregoff was merely exercising a statutory right which would
be meaningless if it implied a bias reflecting adversely on his credibility As
to the alleged falsification issue , the contention here is grounded in
assumptions unsupported in fact It is true that Bregoff complained at the
June 17 meeting about being singled out for criticism but the complaint
was only voiced because Bregoff had been assured, after corrective action
was taken by the Company, that the matter of his past transgressions had
been properly interred and forgotten Further, the offense was that of
making mistakes, a failing not peculiar to Bregoff as acknowledged by
Livingstone, not dishonesty, fraud, or falsification indeed, Livingstone
candidly admitted that he did not use the word "dishonesty" or "fraud"
during the meeting as it was not sought for the purpose of discussing any
of Bregoff's mistakes but, instead, was initiated for the purpose of winning
Sheridan if he was going to the meeting. Sheridan answered
in the affirmative but then inquired if Magnum saw
anything improper in this. Magnum replied, "No but I'd
rather you didn't go." Still later the same day, Harris called
the Fort Lauderdale office and Cline answered the
telephone. Initially, Harris asked for Magnum and then for
Calvin Morris Vest, an agent assigned to that office.i3
Harris' first inquiry of Vest was, "what does it look like for
a union meeting up there?" Vest did not understand the
question so Harris asked, "well, does it look like it's going
to be a pretty good turnout in Fort Lauderdale?" Vest
replied that he did not know and had not planned to attend
but that several agents (referring to Bregoff and Cline) had
gathered in the office and were suggesting that they attend
together. At this point, Harris said, according to Harris,
"Cal, you've indicated to me that you don't plan to attend,
and let me say that based on what you told me the other
day concerning your position relative to that issue, I
wouldn' t see a great deal of purpose in your attending this
meeting. And I do think that if you wentjust as a spectator,
it would well be misinterpreted by other agents attending
and leave the impression that there is more strength or
interest in the Union than truly exists up there."
Continuing, Harris said, "Cal you go to the meeting if you
want to. But if you're just going as a spectator, I think it
could be misinterpreted." Vest's final response was that he
did not know what he would do. Cline and Bregoff, who
were present at the conclusion of the conversation, testified
that Vest appeared to be a little flushed and excited.14
Early the following morning, June 21, Magnum called
Sheridan at his home and inquired as to whether he had
attended the union meeting the night before. Sheridan
answered in the affirmative noting that there had been a
good turnout. Magnum expressed surprise and stated that,
only the day before, many agents had told him they were
not going to attend. At some point, Magnum mentioned the
name of agent Brigho. Magnum then asked whether other
agents from Hollywood and agents from Fort Lauderdale
and Dade had also attended. Sheridan evaded and said that
the only agents he recognized were those from Hollywood.
Finally, Magnum asked how many employees had attended
the meeting but Sheridan disclaimed knowledge. While
having coffee with Hoyal, about 11 a.m. the same day,
Bregoff over to the Company's side Finally, the fact that Bregoff testified
adverse to the Respondent , at a time when he was still employed by the
Respondent and under recurring criticism for his past performance, serves
to reinforce the finding with regard to his credibility See Federal Envelope
Co, 147 NLRB 1030, 1036 , citing Georgia Rug Mill, 131 NLRB 1304, 1305,
fn 2. modified on other grounds 308 F 2d 89 (C A 5)
Ruling was reserved on a motion by the General Counsel to strike all
testimony with respect to conversations between Bregoff and management
representatives on April 25 and 30 concerning Bregofrs mistakes on the
ground that it is not relevant to any issue in this proceeding and cannot be
used for the purpose of impeachment After careful consideration of the
arguments of all parties, I now grant the motion
12 1 find these facts on the credited and essentially undisputed testimony
of Cline
13 Magnum was not present at the time and Harris was so advised by
Cline
14 The findings of fact regarding the events on June 20 are based on a
synthesis of the credited testimony of Worrow and Sheridan, as
corroborated in part by admissions of Magnum, and on a synthesis of
credited testimony of Cline, Vest and Bregoff, as corroborated in part by
admissions of Harris Testimony of either Magnum or Harris in conflict
with the findings is not credited
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harris asked how things had gone at the union meeting the
night before and whether there had been a good turnout.
Hoyal retorted that it was an interesting meeting. Harris
then said that he had heard it was not much of a meeting
and told Hoyal that she had made a mistake because the
Union was going to lose. Hoyal disagreed and, at some
point in the conversation, offered to bet Harris on the
outcome of the election.15 In the meantime , a customer had
walked up to Hoyal's booth and she left the area where they
were having coffee. Harris followed. After Hoyal had taken
care of the customer, Harris pulled out a list of the Allstate
agents and asked, "how is this man going to vote in this
election?" Hoyal said she did not know the man and Harris
rejoined, "Yes, you do. He was at the union election last
night. He was the tall guy that came with Bregoff and
Cline." Harris went on to say "I know exactly who was at
the meeting-at the union meeting last night. And in
addition to Mr. Bregoff and Mr. Cline, and Mr. Vest, the
only agents from the Lauderdale, Hollywood area were Mr.
Brigho and Mr. Sheridan, Everett Sheridan." Hoyal
testified that Harris' information was correct. Finally,
Harris told Hoyal that she would be surprised at the
outcome of the election because "somebody, who [she has ]
an awful lot of faith in . . . is going to vote against the
Union." 16
Monday morning, June 23, Sheridan greeted Magnum as
he (Sheridan) was going on duty and apologized to
Magnum for not being more specific in their telephone
conversation on June 21 about who had attended the union
meeting. Magnum told Sheridan not to be concerned
because he knew who was there anyway, that two
employees from Hollywood and a few from Fort Lauder-
dale had told him they were going to attend the meeting.17
2. Concluding Findings
I find from the credited testimony that the following
conduct, committed by the Respondent's agents, interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed by Section 7 of the Act, particularly
their right to support the Union and to participate in its
campaign for selection, in the June 26, 1969 election, as the
bargaining representative of the Respondent's employees:
a. The statements of Personnel Manager Dale B. Harris
on June 5 or 6 in which he counseled employees Baker and
Wordes as to a petition withdrawal procedure, suggested
how they could induce other employees to get the Union to
withdraw its representation petition, and discussed the
consequences of such action with them; his conduct on
June 9 in supporting and assisting Baker and Wordes in
their effort to obtain a withdrawal of the petition by
providing them with a list of the names and work locations
15 Hoyal testified that Harris accepted her offer but he denied this
testimony of Hoyal As there is no allegation in the complaint that Harris.
or any other representative of the Respondent, wagered on the outcome of
the election, it is unnecessary to resolve the conflict
16 The above facts with respect to the events on June 21 are found on
the credited testimony of Sheridan and Hoyal Both impressed me as
truthful witnesses whose testimony is entitled to full credence The
testimony of Magnum or Harris at variance with the findings is not
credited
17 The facts above are found on the credited testimony of Sheridan The
testimony of Magnum in conflict with the findings is not credited
of all employees in the voting unit including recent
accretions to the unit; 18 and his interrogations of Wordes
on June II and Wordes and Baker on June II or 12 as to
whether anyone from Broward County had attended a
union meeting , which were coercive because they exceeded
permissible limits of legitimate inquiry.19
b. The interrogation of employee Hoyal by Harris on
June 12 concerning her union activity while in St. Louis,
asking Hoyal whether she had signed up any of the agents
for the Union, and questioning her as to the number of
agents she had talked to, and what they had had to say
about the Union.
c. The remark to employee Donald Bregoff by Harns
on June 17 that "the very fellows that you think are going to
back you up, would sell you down the river." The remark
was calculated to dissuade Bregoff from support of the
Union in the election because it implied that if the Union
had been the employees' representative Bregoff would have
been discharged.20 It was also coercive in that it carried a
warning to Bregoff as to the consequences of unionism,
specifically, a warning as to what might befall him if he
continued in his support of the Union. In like manner,
Respondent interfered with the Section 7 rights of its
employees by Livingstone or Harris waving a finger in
Bregoff's face at the outset of the June 17 meeting, by
Livingstone's admonition to Bregoff to think "seriously"
about the matters discussed because they were important to
him, and by Harris' suggestion that Bregoff ask himself
"very carefully at the ballot box whether he will ultimately
have greater security" under a union contract or under the
Company's existing personnel policy which had already
provided him protection.
But quite apart from the foregoing considerations, the
conduct of Respondent's agents, on this occasion, was in
itself unlawful. Bregoff was taken from his place of work by
Respondent's top representative in the region and its
personnel manager to a coffee shop where he was
bombarded with antiunion propaganda, his leaders were
disparaged, and he was urged to vote against the Union in
language with ominous overtones as to his future with the
Company should he disregard a clear and explicit warning.
The Bregoff interview was not an isolated incident for the
record shows that Harris conducted similar interviews with
Baker, Wordes, Hoyal, and Vest. Indeed, Harris frankly
admitted having discussed "the issues" with every agent in
the unit, not once but several times. It is reasonable to infer,
therefore,-and I do-that the interview with Bregoff was
only an example of the interviewing technique generally
employed by Harris throughout the region. In view of the
aforementioned conduct, I find that Respondent interfered
with the conditions necessary to a free choice by the
employees in the selection of a bargaining representative.21
IN See Trey Packing, inc , et a! , 172 NLRB No 42, Action Wholesale
Co, Inc, d/b/a A L. French Co, 145 NLRB 627, 634, enfd 342 F 2d 798
(C A 9), Movie Star, inc, etc, 145 NLRB 319, enfd in part and denied in
part 361 F 2d 346 (C A 5). Winn-Dixie Stores inc, et a! , 128 NLRB 574,
580, 588, Edward Fields, Inc v N L R B, 325 F 2d 754 (C A 2) enfg as
modified 141 NLRB 1182
i9 Bourne Co v N L R B 322 F 2d 47 (C A 2), Johnnie's Poultry Co,
146 NLRB 770, 775
20 See Reno 's Horseshoe Club, Inc, 162 NLRB 268, 273
21 See The Great Atlantic & Pacific Tea Co, Inc, 140 NLRB 133, 134,
ALLSTATE INSURANCE COMPANY 961
Further, I find that the said conduct was coercive and,
therefore, violative of Section 8(a)(1)
d. The interrogation of employee James Evan Cline by
District Sales Manager Magnum on June 18 or 19 as to how
he felt about the election and his knowledge of a union
meeting. The remark by Magnum to Cline the same day in
effect that "we" believed he had voted for the Union in the
last election which created the impression that the
Respondent was keeping the union activities of its
employees under surveillance.22
e. Magnum's conduct on June 20 in remaining in the
Hollywood office during the entire period of Worrow's
presence there observing Worrow as he exhorted employees
to attend a union meeting. The facts amply demonstrate
that Magnum did not stay to oversee any legitimate
company activity. Rather, it is clear from the credited and
undisputed testimony that it was a normal and customary
practice for a management representative to remain in an
area whenever a union leader was present. To be sure,
Magnum carried on this activity on Company property, at a
place where he had every right to be, and was not required
to close his eyes to union activity conducted in his presence
However, I am persuaded and thus find that Magnum
engaged in the aforementioned conduct with the intent and
purpose of demonstrating to the employees that manage-
ment was observing Worrow in his appeals to them to
attend a union meeting, and to discourage their attendance.
Accordingly, I further find that Magnum's conduct
constituted surveillance violative of the Act.23
The interrogation of employee Everett Eugene Sheridan
by Magnum, the same day, June 20, concerning his
attendance at a scheduled union meeting; the interrogation
of Calvin Morris Vest by Harris as to whether there would
be a good turnout among the Fort Lauderdale employees at
a union meeting, coupled with suggestions to Vest that he
not attend the meeting.24
f. The interrogation of Sheridan by Magnum, early
June 21, concerning his and other agents attendance at a
union meeting the night before and the number of
employees who had attended the meeting coupled with
expressions of surprise when told that there had been a
good turnout.
Harris' inquiries of Hoyal, later the same day (June 21),
as to how things had gone at a union meeting, whether there
was a good turnout, and how an agent was going to vote in
the election. Further, his remarks to Hoyal that he knew the
identity of the employees who had attended a union
meeting and that someone she had a lot of confidence in
would vote against the Union created the impression that
the Respondent was engaging in surveillance of its
employees union activities. I do not find, however, that
Harris' statement that the Union would lose the election to
be violative of the Act as it was essentially a prediction as to
the outcome and understood to be just that by Hoyal.
g. Magnum's statement to Sheridan, on June 23, in
effect that he knew who had attended a union meeting
made in response to an apology from Sheridan that he had
National Caterers of Virginia, inc, 125 NLRB 110, 112, cf Peoples Drug
Stores, inc, 119 NLRB 634, 636
22 See Big Y Supermarkets, 173 NLRB No 67, Ainsworth Manufacturing
Company, 131 NLRB 273, 274
been unable to furnish Magnum the information he had
requested. The statement created the impression of
surveillance and constituted interference with the rights of
employees guaranteed in Section 7.
iV. THE OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE JUNE 26 ELECTION
The evidence upon which the Union relies to sustain the
objections is the same as that offered by the General
Counsel in support of the Section 8(a)(l) allegation. On the
basis of the findings in section III, B, 1, and B, 2, above, it is
recommended that the objections be sustained. And, as it
has been found that Respondent interfered with the
employees' free choice in the election and engaged in
conduct which tended to affect the results of the election, it
is further recommended that the results of the election be
set aside and a new election be ordered at the earliest date
consistent with administrative convenience.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing the free flow
thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
Because Respondent by its conduct violated fundamental
employee rights guaranteed by Section 7 of the Act, and
because there appears from the manner and extent of the
commission of this conduct a disposition to commit other
unfair labor practices, it will therefore be recommended
that the Respondent cease and desist in any manner from
infringing on the rights guaranteed employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Allstate Insurance Company is an employer within
the meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. General Sales Drivers & Allied Employees Union,
Local No 198, an affiliate of the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
2t See Tex Manufacturing Company, 180 NLRB No 128. Certain-Teed
Products Corporation . 153 NLRB 495 , 498, 507
24 See G F A Transportation Company. 169 NLRB No 72, enfd 410
F 2d 457 (C A 5)
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act in the manner hereinabove found, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The objections, as set forth in the Union's objections
to the election in Case 12-RC-2792, are supported by the
evidence submitted at the hearing and should be sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that
Allstate Insurance Company, Northbrook, Illinois, its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their own and other employees' union activities and
sympathies; suggesting to employees how to induce
other employees to get the Union to withdraw its
petition for an election; dissuading employees from
supporting the Union by telling them the union leaders
would sell them down the river; telling employees not to
engage in union activities; telling employees not to
attend union meetings; asking employees how other
employees would vote in the election; engaging in
surveillance of the union activities of employees; and
creating the impression among employees that their
union activities are under surveillance.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist General Sales
Drivers & Allied Employees Union, Local No. 198, an
affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activity for the purpose of
collective bargaining or other mutual aid or protection
or to refrain from engaging in such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Post at each of the sales locations within District
I, District II, District III, and District IV of Division I
of its operations in the State of Florida copies of the
attached notice marked "Appendix."25 Copies of said
notice to be furnished by the Regional Director for
Region 12, shall, after being duly signed by an
authorized representative for the Respondent, be posted
by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, or defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision
and Recommended Order what steps it has taken to
comply herewith.26
25 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 . 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
26 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 12, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
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 evidence, the National Labor Relations Board has
found that we, Allstate Insurance Company, violated the
National Labor Relations Act and has ordered us to post
this notice telling our employees what we have been
ordered not to do in the future.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of their right to support
General Sales Drivers & Allied Employees Union,
Local 198, an affiliate of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein at times called the Union, or any
other labor organization, as their collective-bargaining
representative by-
Coercively interrogating them concerning their
own and other employees union activities and
sympathies.
Suggesting to our employees how to induce
other employees to get the Union to withdraw its
petition for an election.
Dissuading them from support of the Union by
telling them the union leaders would sell them
down the river.
Telling them not to engage in union activities.
Telling them not to attend union meetings.
Asking them how other employees would vote
in the election.
Engaging in surveillance of the union activities
of our employees.
Creating the impression that we are keeping
the union activities of our employees under
surveillance.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
ALLSTATE INSURANCE COMPANY 963
to join or assist the above-named or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or mutual aid or protection , or to refrain
from engaging in any or all such activities.
All of our employees are free to become, remain, or to
refrain from becoming or remaining members of any labor
organization.
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 compliance with
its provisions , may be directed to the Board's Office, Room
706 Federal Office Building , 500 Zack Street, Tampa,
Florida 33602, Tel. 813-228-7227.
ALLSTATE INSURANCE
COMPANY
(Employer)
Dated By
(Representative ) (Title)