Allstate Insurance Co.

National Labor Relations Board - Board Decisions

Mar 12, 1974

209 N.L.R.B. 565 (N.L.R.B. 1974)

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.]