Fireman's' Fund Insurance Co.

National Labor Relations Board - Board Decisions

Nov 4, 1969

179 N.L.R.B. 471 (N.L.R.B. 1969)

FIREMAN'S FUND INSURANCE COMPANY 471
Fireman's' Fund Insurance Company and United
Industrial Workers of North America , Pacific
District , affiliated with Seafarers ' International
Union of North America , AFL-CIO. Cases
20-CA-4923-2 and 20-CA-5072
November 4, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On July 7, 1969, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board reviewed the rulings of Trial Examiner
Wallace R. Royster made at the hearing' and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered Trial
Examiner Paul E. Weil's Decision, the exceptions
and briefs, and the entire record in this case,' and
hereby adopts the findings,4 conclusions, and
recommendations of Trial Examiner Weil.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
in many of the pleadings and in the Trial Examiner's Decision,
"Fireman's" is incorrectly spelled "Firemen's " This inadvertent error is
hereby corrected
'Subsequent to the close of the hearing but before briefs were filed, Trial
Examiner Royster died Thereafter, on March 12, 1969, Chief Trial
Examiner George Bokat issued an Order advising all parties that any party
desiring a hearing de novo should notify him on or before March 24, 1969,
and that if no such notification were received by that date further hearing
would be deemed waived, and a new Trial Examiner would be appointed to
prepare a decision on the basis of the existing record No parties responded
to the Chief Trial Examiner's Order, and thereafter, on March 26, 1969,
he designated Trial Examiner Paul E Wed to prepare and issue a Trial
Examiner's Decision
'Respondent's request for oral argument is hereby denied as the record,
including the exceptions and briefs, adequately sets forth the issues and
positions of the parties
'Trial Examiner Wed inadvertently found that, during the past year,
Respondent received premiums in excess of $50,000 from California
branch offices from the sale of insurance to customers located in the State
of California The complaint alleged, and Respondent's answer admitted,
that, during the past year, Respondent received premiums in excess of
$50,000 from its California branch offices from the sale of insurance to
customers located outside the State of California, and the Trial Examiner's
Decision is hereby corrected to so show
Relations Board adopts as its Order the
Recommended Order of Trial Examiner Paul E.
Weil, as modified herein, and hereby orders that
Respondent, Fireman's Fund Insurance Company,
San Jose, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph 2(c), and
reletter the following paragraphs accordingly:
"(c) Notify said employee if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces."
2. Add the following as the last indented
paragraph of the Appendix:
WE WILL notify John C. Jordan if presently
serving in the Armed Forces of the United States,
of his right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act,
as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E WEiL, Trial Examiner On April 5, 1968,
United Industrial Workers of North America, Pacific
District, affiliated with the Seafarers' International Union
of North America, AFL-CIO, hereinafter called the
Union, filed a charge in Case 20-CA-4923-2 against
Firemen's Fund Insurance Company, hereinafter called
Respondent On June 27, 1968, the Union filed a charge
in Case 20-CA-5072 against Respondent Both charges
alleged that Respondent had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, by
discharges and other conduct The matters were
consolidated by the General Counsel, by the Regional
Director for Region 20, and the complaint issued on
September 16, 1968, alleging the discharge of John C.
Jordan as a violation of Section 8(a)(3) of the Act and
two incidents, on January 22, 1968, of interrogation of
employees by Claims Supervisor Roy Denman
Thereafter, by its duly filed answer Respondent admitted
various allegations of the complaint but denied the
commission of any unfair labor practices. The matter
came on for hearing commencing November 21, 1968, and
at various dates thereafter and closed January 9, 1969,
before Trial Examiner Wallace R Royster During the
course of the hearing on January 7, 1969, Trial Examiner
Royster dismissed the paragraphs of the complaint
alleging independent violations of Section 8(a)(1) and any
further reference thereto in the other paragraphs of the
complaint This was done on the motion of Respondent
but without objection from the Charging Party or the
General Counsel in view of the fact that the allegations
were not supported by evidence' The only issue remaining
'It appears that the witness upon whom the General Counsel relied for
support of these allegations did not appear at the hearing
179 NLRB No. 78
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the complaint thus is the alleged discriminatory
discharge of Jordan At the close of the hearing the
parties waived oral argument and were given until
February 15, 1969 , to file briefs Subsequent to the close
of the hearing and before briefs were filed Trial Examiner
Royster died The Trial Examiner having thus become
unavailable to the agency within the meaning of section
554(b) of the Administrative Procedure Act (5 U S C
Section 554 ( b)), Trial Examiner Paul E . Weil was
assigned to consider the record and prepare a decision in
accordance therewith
Upon the entire record and in consideration of the
briefs, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
It is alleged and admitted that Respondent is a
California corporation with a branch office located at San
Jose, California, engaged in the sale and service of life,
casualty, auto, fire, and health insurance through branch
offices located throughout the United States, that during
the past year Respondent, in the conduct of its operations,
received gross revenues in excess of $500,000 and that
during the same period of time received premiums in
excess of $50,000 from California branch offices from the
sale of life, casualty, auto, fire, and health insurance to
customers located in the State of California Respondent
is engaged in commerce and in activities affecting
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
The Union at all times relevant hereto has been a labor
organization within the meaning of Section 2(5) of the
Act
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
A Background
The San Jose office of Respondent has some 140
employees , headed by Branch Manager Smyth Edward
R Stern , the San Jose claims manager, has under his
supervision five supervisors, a staff attorney , several inside
adjusters , and 14 or 15 outside adjusters , one of whom
was John C Jordan, the alleged discriminatee herein
Prior to the incidents involved herein , the employees at
the San Jose branch were unorganized.
Around the first of the year in 1968 Jordan contacted
the Insurance Workers Union in an effort to gain
representation for the adjusters from that organization A
meeting was arranged and held on January 181 at a San
Jose motel . All the outside adjusters were present and
signed cards authorizing the Insurance Workers Union to
represent them.
On February 20, Jordan , and other employees were
notified by the Insurance Workers Union that it "felt they
were not in a position to assist us [the employees] in
organizing" and Jordan met with an AFL-CIO
representative to attempt to find another union which
would do so As a result of their consultation , another
'All dates hereinafter are in the year 1968 unless otherwise specified
employee meeting was set up on February 22 with the
Union This meeting was held at the home of one of the
adjusters, Warren Stafford The record does not disclose
whether the employees, other than Jordan, signed cards at
this meeting, but shortly thereafter a representation
petition was filed with the Regional Office of the Board
The Respondent was aware of the union organization
almost as early as the employees Stern testified that a
meeting of Respondent's managerial staff, including
Smyth, Stern, and the San Jose personnel officer, as well
as regional and home office executive, was held on the
same day as the initial employee organizational meeting,
January 18, and the Union was a subject of discussion'
On January 29 Branch Manager Smyth called a
meeting of all the employees in the branch office at which
he told them that the Company was aware of the union
activities among the employees and that he wanted to
state that the Company's position was that union
organization was unnecessary and undesirable and that the
Company was determined to fight and had retained one of
the best labor lawyers in the country He added "I would
like to warn you about these cards, and I am not sure I
understand it myself, that I am advised that under certain
circumstances the Union can go ahead and negotiate
without an election ' Smyth also stated that Respondent
would not recognize the Union and that undoubtedly there
would be underhandedness by both sides. Following
Smyth's meeting Stern called the claim adjusters together
in the conference room where he asked whether he had
ever tied to any of them Receiving no answer he stated
that he was disappointed because there were problems and
the adjusters had not come directly to him with them and
then asked each of the individuals individually what their
problem was, starting with Mr Stafford Stafford
answered that he thought Stern's standards were too high
and stated in effect that the last person who lived up to
these standards was crucified on the cross Thereafter on
various occasions various officers of the Respondent held
meetings with the adjusters at which meetings Respondent
offered to discuss the problems of the employees and
indicated that promotions and salary increases were being
considered. At one of these meetings Lambert, the western
regional administrative executive, was asked what Smyth
had meant by his reference to underhandedness Lambert
stated that he was unaware that this statement had been
made but Staff Attorney Glaspy confirmed that it had
been made. At two of these meetings, February 19 and
March 22, Jordan interrupted the discussion pointing out
that the employees had a right to be represented and that
they believed that discussions concerning their working
conditions should be held with their representatives 5
B. The Discharge of Jordan
On March 27 Claims Manager Stern called Supervisor
LaRosa and Jordan into his office At this meeting
apparently LaRosa said nothing. Stern asked Jordan if he
'It would appear that they met at the same motel for Jordan testified
that he saw the branch personnel manager at the motel at the time of the
union meeting
'This appears to be an obvious reference to the varying decisions of the
circuits in regard to the Cumberland Shoe ( 144 NLRB 1268) line of cases
with regard to representations that cards would be used only to secure an
election The statement reveals that Respondent was indeed at this time
advised by an experienced labor lawyer
'The complaint contains no allegations with regard to statements made
at any of the meetings Accordingly , no findings are made with regard
thereto
FIREMAN 'S FUND INSURANCE COMPANY
would argue with him if Stern told him he was doing a
good job and Jordan replied he would not. Stern then
asked what his reaction would be if he told Jordan that he
was not doing a good job. Jordan answered only "No
comment." Stern responded "That's as good as a
comment. So you admit you're not doing a good job." He
warned Jordan that he had 30 days to clean up his files or
Stem would resort to "drastic action" and then
questioned Jordan about a charge filed by the Union the
previous day.6 Stern also mentioned the representation
hearing which had commenced the day before. He stated
that it had been continued but could have been concluded
if the Union's attorney had wished.'
On April 2 Stern again called Jordan and LaRosa into
his office and asked Jordan if he understood that by
"drastic action" he meant "termination."
Late in May, having heard nothing, Jordan asked Stern
if a decision had been made. Stern replied that no decision
had been made at that time. In early June LaRosa came
to Jordan at his desk and said he had a few questions.
Jordan asked about what and LaRosa said, "Well I would
like to know what you think it would take to resolve the
problems and the situation." Jordan asked what situation.
LaRosa admitted that he was referring to the Union.
Jordan answered, "Frankly Ralph I have been here 2
years. This is the first time anybody has ever asked me
what I thought it would take to resolve some of the
problems that we have got." Jordan went on to say that
he thought the Company was simply attempting to disrupt
union organization. LaRosa answered, "Well that's
probably true but I've got a job to do. What do you think
it would take to resolve it?" Jordan suggested that the
Company recognize the Union and sit down and
negotiate. LaRosa persisted "Well then what would you
talk about?" Jordan answered that that would be
determined when they commenced negotiating.
On June 18 Jordan was called in Stern's office. LaRosa
again was present. Stern stated that he and LaRosa had
reviewed the files and feel that there was no improvement
and terminated him as of the close of that day, giving him
a check in lieu of notice. He asked Jordan if he had any
comment. Jordan replied in the negative. Jordan asked
whether he would receive his vacation pay and was told
that he would not get the vacation pay because he was
terminated. He answered "Well, we'll see."
The Position of the Parties
The General Counsel contends that Jordan was
terminated because of his "continued and persistent efforts
to bring in a union" and further contends that the alleged
reason is implausible and incapable of standing scrutiny
and accordingly as in Shattuck Denn Mining
Corporation , 151 NLRB 1329 , enfd . 362 F.2d 466 (C.A.
9), affords a reasonable basis for finding the discharge to
be unlawful.
Respondent contends that the General Counsel has not
sustained a burden of proof that Jordan was discharged
because of discrimination and contends that Jordan was
terminated because "he was not doing that which he was
being paid for." Respondent stated "When good cause for
discharge appears, the General Counsel must do more
than discover some evidence of improper motive ; he must
'Not one of the charges involved herein,
'Stem's account of this conversation omitted but did not deny reference
to the charge and the representation hearing. In the absence of a denial I
conclude that statements were made as reported by Jordan.
473
find an affirmative and persuasive reason why the
employer rejected the good cause and chose a bad one.
The mere existence of anti-union animus is not enough.
The fact that the employer may not be despondent over
the discharge does not mean that his motive was a
discriminatory one."
It is of course no part of my function to determine
whether a ground alleged by an employer for discharge is
"good," "bad," or "unreasonable." As Respondent
correctly points out, an employer may discharge an
employee for any reason or no reason save that he may
not discharge an employee to discourage union activities
or to interfere with, restrain, or coerce employees in their
exercise of union or concerted activities. The issue herein
is not how "good" the ascribed cause may be but whether
the discharge was consummated for discriminatory
reasons. If the discharge was consummated for
discriminatory reasons, it does not matter whether there
was good cause or not, the discharge is violative, and if
the discharge was not for discriminatory reasons, it does
not matter whether the cause was good or reasonable, no
violation is made out.
The Board and the courts have recognized that it is
seldom indeed that an employer admits discharging an
employee for reasons prohibited by Section 8(a)(3).
Almost invariably it is necessary to reach a conclusion
with regard to the validity of a discharge by a
consideration of all the elements in the record and by
reaching a reasonable inference therefrom.
This does not mean that the reason alleged by
Respondent for the discharge is not to be considered. If
the record reveals that Respondent's alleged reason is
specious or discriminatorily applied this factor reasonably
supports an inference that the reason is pretextuous and a
further inference under some circumstances that the
discharge is unlawful, In the instant case Respondent
makes no secret of its animus with regard to the Union. It
does not deny that it was prepared to and did fight the
union organization. It admits that it knew of Jordan's
involvement with the Union and that it was not
"despondent over the discharge." In support of its defense
Respondent produced and placed in evidence files of 46
claim investigations in which Jordan was involved
contending that it was on the basis of all of them that
Claims Manager Stern determined that Jordan must be
discharged.'
Respondent in its brief states "Jordan admitted that
from August 1967 until the date of his termination he was
producing less than prior to that period." This is a
misstatement of the testimony. Jordan admitted that
commencing in March 1968 until his termination his
production was impaired. He stated that he believed that
this was due to problems that he encountered that
appeared to be peculiar to him and in explanation of that
statement testified that he had difficulty in locating files
that had been on his desk and appeared to have been
The 46 files are constituted of some 3,500 Xerox copies of documents
Relevant features thereon are not always easily read, in some instances
because the photocopy process was inadequate , and in some few instances
because pertinent markings do not appear due to the superimposition of
another document in the Xeroxing process . In some instances the
examination and cross-examination of the identifying witness, either Stern
or LaRosa, based on the original documents reveals markings that do not
appear on the Xerox copies. In such instances , there having been no
challenge to the record as to the entries read into it, I concluded that the
entries appear in accordance with the testimony I carefully perused each
of the some 3,500 documents and my findings with regard to the exhibits
are based upon this perusal as well as upon the record statements.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken therefrom Sometimes, he stated, he would find
them on LaRosa's desk LaRosa testified that this was
nothing peculiar to Jordan, that he took files from the
desks of all of the men who worked for him in order to
review them when it was necessary, and that he did this
no more with Jordan than with other employees His
explanation however fails to take into account the fact
that during the months of March, April, and May it is
clear that Stern, LaRosa, and a third man, Dittman,
reviewed most if not all of the files handled by Jordan
from the inception of his employment According to
Dittman he also reviewed the files of Stafford and of one
Brainard ' It would appear, therefore, that there must
have been more instances of files being taken from the
desks of Jordan, Stafford, and Brainard than of other
claims adjusters at the San Jose office Also LaRosa said
that his supervisory review of the investigative files
generally took place as a result of an office procedure
known as "diary," under which files were taken from the
permanent files by the clerical employees and brought to
him on dates established by the supervisor
Accordingly, most such files would appear to come not
from the adjuster's desk but from the claims file cabinets
Additionally, Jordan testified that he encountered a
problem of receiving requests in files for items not
specifically necessary in his judgment or in what he
conceived to be the general judgment of the average
adjuster. I shall deal with this below.
The record reveals that Jordan was one of the highest
paid adjusters in the San Jose office He had come to the
Respondent's employ with prior experience and, until
February 1968 judging by the files which I have reviewed,
encountered no substantial difficulty with his supervision.
It is clear from the content of the files as well as from the
testimony of Dittman that Jordan is an intelligent and
well-educated man.10
Jordan testified that he carried a caseload in excess of
120 files at a time in an average month. It is apparent
from the 46 files which I have reviewed that many of
them necessarily would take many months to complete, as
for instance in instances where claimants declined to
consider settlement until their injuries were completely
healed and they were released by their doctors or
occasionally where they were represented by counsel who
for one reason or another were in no hurry to complete
action on a case.
With reference to the files introduced in evidence by the
Respondent a number of specific complaints recurred in a
number of files. For example Respondent made much of
Jordan's "custom" of putting undated memoranda in the
files; in the 46 files considered 7 such memoranda were
pointed out As the General Counsel pointed out in the
same 46 files 6 undated memoranda written by persons
other than Jordan including Stern and his supervisor
LaRosa also appeared.
Respondent complained that Jordan customarily took
the file contents out of the office and introduced a number
of memoranda indicating that when the files were
reviewed they contained no contents. Jordan admitted that
he had breached this rule on occasion stating that he took
file contents home to work on them It appears in at least
'Brainard was named as an alleged discriminatee in the charge in Case
20-CA-4923- 2 However no allegation appears in the complaint with
reference to him nor was any evidence concerning him adduced at the
hearing
"Dittman testified to his recollection of Stern stating that he thought
Jordan may have more brains than both he and Dittman put together but
he wasn't performing
three of the exhibits that Jordan was engaged in
settlement negotiations at the time the files were called for
from which I deduce he took the contents with him for the
purpose of the negotiations. Stern testified on direct
examination that in September 1967 at a meeting of all
claims adjusters he promulgated a rule that had not
theretofore appeared either in the manual or otherwise,
that file contents should not be removed from the office
Under cross-examination Stern testified that the meeting
at which he announced the rule was either late 1967 or
early 1968 Jordan testified that he first learned of the rule
at a meeting in February 1968 Admittedly thereafter on
occasion he took the file contents from the office
Respondent complained that Jordan "refused to
acknowledge the appearance of attorneys" relying on a
number of memoranda from LaRosa to Jordan telling
him to acknowledge appearance letters of attorneys by
letter. Jordan testified that he ordinarily acknowledged the
appearance of attorneys by telephone but that when
instructed by his supervisor to do so by letter he did.
Warren Stafford, who was called by the General Counsel,
testified that he had never acknowledged the appearance
of attorneys by letter, always by telephone, although on
one occasion he recalled LaRosa advising him to
acknowledge an attorney's appearance letter by mail.
Nevertheless he testified he continued thereafter to
acknowledge such letters by telephone to the date of the
hearing There is no contention that any rule has ever
been promulgated with regard to acknowledging attorney's
letters by mail
Perhaps more basic is the complaint that Jordan was
late in making investigations, in settling claims, and in
reporting adequately or properly on the files. The files
adduced indicated in some instances considerable periods
of time when no action took place on them that are not
otherwise accounted for by the contents of the file
However in many instances the files themselves contain
material that mitigates the complaint."
An example is in Exh R-4 in which Jordan was criticized for his
failure to contact claimant File reveals that claimant ' s own attorney was
unable to contact him from September 1967 until after Jordan 's discharge
The attorney finally resigned in October 1968 because of the failure of his
client to cooperate with him Again in Resp Exh 6 Jordan is criticized for
failure to contact an attorney between February and May 22, 1968 The
file reveals however that he wasn ' t assigned the case until April 2 and that
he contacted the attorney by letter on April 15 In Resp Exh 7 Jordan
was criticized for his failure to contact the claimant The file reveals that
after two other investigators had failed to contact and settle the claim,
Jordan similarly failed One of the previous adjusters had been told by the
claimant that she would not give a statement and Jordan's superior
concurred in closing the file when the claimant could not be found and no
claim had been filed Resp Exh 9 shows a criticism for Jordan 's delay in
contacting the claimant The file reveals that the claimant was unknown
when the case was filed in March 1968 Contact was finally made with the
stepfather of the claimant , who was a minor He stated there were no
damages and he would have his daughter fill out the claimant form which
Jordan agreed to send to him The claimant was then out of town
Resp Exh 15 contains a memo criticizing Jordan for doing nothing
between November 21, 1967, and April 28, 1968 The file reveals that in
August 1967 Jordan's then supervisor , Clark, told him to attempt to settle
a case and if he failed to return it to Clark for "defense handling " On
November 21 the claimant 's lawyer refused settlement and on November
29 Clark told the defense lawyer to proceed to take depositions There's no
indication in the file that Jordan had it or had any responsibility for it
until it was returned to him on April 24 by Supervisor LaRosa
Respondent's Exhibit 16 contains a criticism that Jordan delayed initial
contact The file reveals that the accident with which the file in the case is
concerned involved a claimant who was a legal secretary and took place on
the street in front of her place of employment Before the police arrived
her employer, who subsequently appeared as her legal representative, was
FIREMAN'S FUND INSURANCE COMPANY 475
The law does not require an employer to be reasonable
or just As I have stated above, it is no part of my
function to determine whether the complaints of
Respondent were reasonable or just but when a review
must be made of the alleged reasons for a discharge
because they are placed in issue by the employer it is
certainly relevant to note that the reasons advanced are
not borne out by the facts That is not to say that I find
that none of the complaints are valid. On the contrary,
some of them are. Unquestionably in some of the files
placed in evidence Jordan appears to have been dilatory,
but the inference is forced upon me that the complaints
did not result from normal supervision and resultant
dissatisfaction with Jordan's work. Many of the files
reviewed covered a period long preceding December of
1967 when LaRosa became Jordan's supervisor Some
files were investigated by others than Jordan and given to
him for some specific handling, as for instance to settle.
Some of them were handled by other claim adjusters after
Jordan's discharge and are presumably complete up to the
time of the hearing. It is noteworthy that the respects in
which Jordan's performance failed to satisfy his
supervision appear also in the work of the other adjusters
who handled these files Yet frequently no memoranda
appeared critical of the "defects" of the other claims
adjusters and when they do appear their tone and tenor is
vastly different
Stern, LaRosa, Jordan, and Stafford all testified in
substantial agreement that almost any file would contain
supervisory memoranda detailing additional investigation
suggested by the supervisor, recommending courses of
action to be taken, or giving instructions as to procedures
to be followed The memoranda with which we are
concerned in this case which form the basis of the
testimony of Stern and LaRosa are of a different order.
In the first place many of them are on a form entitled File
Audit Check List. Stern was asked about the use of this
form both on direct and cross-examination On
cross-examination his testimony was marvelously evasive
but he testified that he got the forms for his personal use,
that he couldn't remember when, that he didn't always use
them when he audited files, and that he didn't normally
put them into the files Asked "Which files do you put
them in" he answered, "The ones that I bring to the
hearing is what I'm trying to explain to you "
A number of the files contain such file audit check lists
signed by R. A. Dittman. Stern testified that Dittman was
sent to the San Jose office by the head office to help him
out in overcoming a backlog of cases. Dittman testified
that one of his functions was to assist Stern in reviewing
the files of the adjusters. He testified on direct
examination that he reviewed most of the adjusters
including Jordan. On cross-examination however it
appears that he reviewed files of only three adjusters,
Jordan, Stafford, and Brainard. He testified that he
reviewed 40-50 files of each of the 3 men and spent no
more than 3 or 4 days, perhaps 8 to 10 hours on the job.
He also testified that he commenced the reviewing task
shortly after he arrived at San Jose in March and that the
period during which he worked on reviewing was all in the
month of March 1968. He also testified that he placed a
written report in every file he reviewed, which he signed.
The 46 cases which I reviewed contain 14 file audit
check lists signed by Dittman. One of them was dated
April 9, one April 13, three April 15, one April 17, one
April 19, and seven April 22, 1968. It appears therefore
that Dittman was in error in stating that he did all of his
reviewing in March On the contrary it appears he did
none of it in March
I have referred above to Stern's evasive testimony with
regard to use of the file audit check lists He was asked
"Would it not be true, though, that you reviewed certain
of his [Jordan's] files in March and placed file audit check
lists in them" and he answered "No " The files that were
reviewed contain one file audit check list signed by Stern
dated March ll, three dated March 13, three dated
March 14, and one dated March 17. 1 found no other
check lists signed by Stern among the 46 files Stern also
testified that he and Dittman sat together reviewing the
files of Jordan at the same time but that neither signed
check lists prepared by the other nor did either review the
same file as the other although they conversed about the
files they were reviewing. This testimony is incredible in
view of the dates of the file audit check lists found in the
files It is possible that Stern's testimony that he placed
no file audit check list in the files in March resulted from
his foolish attempt to fence with counsel for the General
Counsel and that in fact he placed the check lists which
are dated on four days in March in the files at a later
time.
The dates on which the reviewing was done appear to
have significance in view of the timetable with which we
are here concerned The first warning to Jordan came
from Stern on March 27 and resulted allegedly from
conversations between Stern and LaRosa in which Stern
had indicated his dissatisfaction with Jordan's work The
next conversation, other than that of April 1 where Stern
took the occasion to make sure that Jordan knew that
"drastic action" meant "termination," was at a date
placed by Jordan as late May or early June and by Stern
unequivocally on June 12. On this occasion Jordan asked
Stern about his status and Stern stated he had not
completed the review and he was not near enough
completion to be able to give an estimate as to when the
review would be completed. Then on June 18 Stern
announced to Jordan that he had completed the review
and found that Jordan had not improved wherefore he was
terminating Jordan
Stern testified that customarily any review of a man's
files by a supervisor in which anything was found to be
wrong resulted in a memorandum to the man. The files
which are considered are replete with such memoranda,
many of which were pointed to by Stern or LaRosa as
containing the complaints upon which they determined
that Jordan had to be discharged. From their testimony it
would appear that the files must necessarily then contain
memoranda dated sometime between June 12 and 18 the
date of the discharge since on June 12 Stern admitted that
he was not near enough the completion of his review to be
able to even estimate when he would be able to finish.
Only one memorandum appears dated within this period.
That is to be found in Respondent's Exhibit 25 in which
there is a memorandum from Jordan dated May 17 to
issue a draft, close the file, and return it to him and a
memorandum dated June 13 from LaRosa to the file
stating "Where is content [sic] " A number of the files
contain postdischarge memoranda critical of the work of
Jordan, including Respondent's Exhibits 6, 25, 28, and 46.
Stern was asked directly on cross-examination if he
recalled reviewing any files between June 12 and 18, but
he was unable to tell how many, or to identify any of
photographing the accident It seems improbable that any initial contact them.
with the claimant was possible
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From my review of the files I conclude that Stern made
a close review of Jordan's files between March I1 and 17
Thereafter having warned Jordan he had files reviewed by
Dittman during the period of 2 weeks in April.' z It is clear
from the content of the check lists signed by Dittman that
he did not approach his task in a dispassionate manner
nor prepare his check lists in an effort to enlighten the
reader. I deduce this from the fact that I found that many
of the items checked as missing or unverified were in fact
verified or present in the file at the time he reviewed
them On one occasion (Respondent's Exhibit I) he
checked boxes indicating that the damages were unverified
and conditional handling neglected and supervision
inadequate and then stated that there were no contents in
the file. This is at least a redundancy. The same appears
on the check lists found in Respondent's Exhibit 10 A
number of the files reviewed by Dittman were already
closed when he reviewed them although his review does
not so indicate. Respondent's Exhibit 31 is an example of
this. The case was settled on April 1, for a total of $25, he
reviewed it April 22. Respondent's Exhibit 17 had been
settled on April 19 and reviewed by Dittman on the 22d
and Respondent's Exhibit 32, reviewed by Dittman on the
15th, contained an instruction to close the file dated April
12 Similarly Respondent's Exhibit 38 reviewed on the 22d
of April by Dittman was closed on April 4. Dittman
thought this was open too.
Of course I cannot conclude that these files were not
reviewed during the relevant period However it appears
from the content of the files that any review made by
LaRosa or Dittman resulted in a memorandum to the file
unless they found nothing wrong with it. Stern testified
that this was the case with regard to LaRosa, and
Dittman testified that he put a signed memorandum in
each file he reviewed. It is equally clear that LaRosa
appeared to lose no opportunity to put a critical
memorandum in any file of Jordan at any time after
February 1968 Accordingly, I conclude that Stern's
testimonial evidence to the contrary notwithstanding, little
or no review was made after June 12 and in fact most of
the review took place during the month of April by
Dittman and in May by La Rosa. We are left then to
wonder why if the review by Dittman and LaRosa
disclosed in May that Jordan was a hopeless employee as
Stern testified, he was not in a position on June 12 to say
so.
Conclusions
I conclude that John Jordan was discharged because of
his activities first on behalf of the Insurance Workers
Union and then on behalf of the Charging Party. Bearing
in mind Respondent's animus with reference to the union
organization, both demonstrated and admitted on the
record, and with regard to Jordan as the instigator and
proponent of the Union; with its knowledge of Jordan's
position with regard to the Union demonstrated and
admitted on the record, I base my conclusion on the
following factors:
I Timing It is clear that from the inception of union
organization Respondent was well provided with
information with regard thereto The first union meeting
on January 18, 1968, with the Insurance Workers Union
coincided with a meeting of company officials on the same
"While he testified that this review was completed on Sundays none of
the audit review check lists are dated on Sundays The greatest number
which appear were dated on April 22, a Monday
date at which union organization was discussed. The
"warning" delivered by Stern to Jordan on March 27 was
the day following the representation hearing held in San
Francisco and immediately succeeded the filing of a
charge by the Charging Party concerning both of which
Stern queried Jordan during the confrontation and finally
the discharge on June 18 came shortly after LaRosa,
apparently acting on instructions of his superiors,
attempted to interrogate Jordan with regard to what issues
existed between the Employer and the employees that
would have to be resolved by the Company Jordan's
answer left no doubt that his adherence to the Union
continued and that he was not interested in side bar
negotiations with a view to undercutting the Union's
position
2. The inconsistencies in the testimony offered by
Respondent with regard to the alleged reason for Jordan's
termination, which I have spelled out above, convince me
that Respondent is guilty of the unfair labor practice
charged The failure of the documentary evidence to
support the frequently conclusionary testimony of Stern,
Dittman, and LaRosa not only as to dates, which in view
of the timing aspect of the case are vital, but with regard
to contents of the files which directly contradict the
criticisms levied on the basis of those same files against
Jordan, gives rise in my mind to an inference that the
alleged basis for the discharge is pretextual and that the
discharge was, as charged, because of Jordan's union
activities.
3 The failure of the evidence to support the reason
given for Jordan's discharge supports the inference that
the reason given is not the truth For instance in
Respondent's Exhibit 3 Stern testified that he was directed
to the file by a phone complaint from the agent who
wanted to know the status and had requested it several
times. The file however contains no evidence of any
requests for status by the agent and on cross-examination
Stern testified that he never got a phone call on this case
Stern testified that one of the complaints he had was that
Jordan failed to contact an attorney from February until
May 22 The file reveals that Jordan wasn't given the file
until after April 2 and that he had contacted the attorney
by letter on April 15. In Respondent's Exhibit 7 Jordan
was criticized for failing to contact the claimant. The file
reveals that Jordan's supervisor concurred in closing
because the claimant couldn't be found either by Jordan
or by the credit bureau through which Jordan had
attempted to find the claimant. Respondent's Exhibit 20
contains an excellent example in point A memorandum
dated May 7 from LaRosa asks for the police report to be
obtained. However the police report was already in the file
and its presence was noted in Jordan's memorandum of
April 15. The memorandum also asks for photos of the
cars involved. The file had contained, since January 25,
photos of one of the cars and it appears that the other had
been repaired prior to the assignment of the case to
Jordan. Finally, the same memorandum requires that the
investigation be completed on May 3, 4 days previous to
the request. Respondent's Exhibit 29 shows criticism of
Jordan for failure to take statements, supply pictures, and
otherwise investigate. No claim was ever filed in this case
and the adjuster was obviously aware of the fact that the
damages were minimal On cross-examination Stern
admitted that in this kind of a case the adjuster is
warranted in paying for a small claim rather than
spending time conducting,a full investigation.
The example given above, as well as the examples given
in the "discussion" section of this Decision reveal that
FIREMAN'S FUND INSURANCE COMPANY
many of the complaints against Jordan were specious in
whole or in part While it appears that Jordan was by no
means a perfect investigator it is clear, as Dittman
testified, that flaws could be found in almost any
investigation file of almost any investigator. The reliance
herein of Respondent not only on such flaws as do appear
but on concocted flaws is more consistent with the
building of a defense than it is with a good-faith discharge
for cause.
My conclusion, based on the factors set forth above is
corroborated by the actions of Stern and LaRosa on
March 27 and in early June respectively. It appears from
the fact that Stern attempted to interrogate Jordan at the
time he gave him his "drastic action" warning that, as the
General Counsel puts it, these subjects were uppermost in
his mind when Jordan was called in that day and "that his
admonitions to Jordan about his work were mere feints."
Thereafter Respondent made no effort to apprise Jordan
of the problems that they were allegedly having with his
work or discuss them with him but again, as the General
Counsel points out, the next time they sought him out was
on the occasion of another interrogation in early June by
LaRosa having to do with union matters but having
nothing to do with Jordan's work.
Based on all the considerations set forth above I
conclude and find that Jordan was discharged in violation
of Section 8(a)(3) and (1) of the Act in order to
discourage his and other employees' activities on behalf of
the Union.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that Respondent has discriminated in
regard to the tenure of employment of John C. Jordan, it
will be recommended that the Respondent offer him
immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges and that he be
made whole for any loss of pay he may have suffered by
reason of the discrimination against him by payment to
him of the sum of money equal to that which he normally
would have earned as wages from the date of the
discrimination until the date of Respondent's offer of
reinstatement, less his net earnings during such period.
Backpay shall be computed in the manner established by
the Board in F W. Woolworth Company, 90 NLRB 289,
plus interest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co, 138 NLRB 716. The
Respondent shall make available to the Board its payroll
and other records to facilitate the checking of amounts
due.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case I make the following:
477
CONCLUSIONS OF LAW
I Fireman's Fund Insurance Company is an employer
engaged in commerce within the meaning of the Act
2. By discriminating in regard to the hire and tenure of
employment of John C Jordan, Firemen's Fund Insurance
Company has engaged in and is engaging in unfair labor
practices within the meaning of the Act and by such
discrimination thereby interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act and has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
RECOMMENDED ORDER
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that Firemen's Fund
Insurance Company, its officers, agents, successors, and
assigns, shall-
1. Cease and desist from
(a) Discouraging union and protected concerted
activities of its employees by discriminatorily discharging
any of its employees or by discriminating in any other
manner in regard to their hire or tenure of employment or
any term or condition of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized by Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2 Take the following affirmative action which will
effectuate the policies of the Act.
(a) Offer to John C Jordan immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges discharging if necessary any employees
hired to replace him
(b) Make whole said employee in the manner set forth
in the section of this Decision entitled "The Remedy" for
any loss of pay he may have suffered by reason of
Respondent's discrimination against him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its offices in San Jose, California, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
"In the event that this Recommended Order is adopted by the Board,
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defaced, or covered by any other material
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the reciept of this Decision,
what steps have been taken to comply herewith "
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"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 20 , in writing, within 10 days from the date of this Order, what
steps have been taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage union and protected
concerted activities of our employees by
discriminatorily discharging any of our employees or by
discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any or all such activities
except to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized by Section 8(a)(3) of the Act as modified by
the Labor-Management Reporting and Disclosure Act
of 1959
WE WILL offer to John C Jordan immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other
rights and privileges and make him whole for any loss
of pay he may have suffered by reason of our
discrimination against him.
Dated By
FIREMEN'S FUND
INSURANCE
COMPANY
(Employer)
(Representative) (Title)
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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 415-556-3197