Great Central Insurance Co.

National Labor Relations Board - Board Decisions

Jun 9, 1969

176 N.L.R.B. 474 (N.L.R.B. 1969)

474 GREAT CENTRAL INS. CO.
Great Central insurance Company and Vickie
Schneider , Case 38-CA-547
June 9, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 19, 1969, Trial Examiner Benjamin A.
Theeman issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, a supporting brief, a
response brief, and two motions to introduce
additional evidence ; the General Counsel filed
limited exceptions , a supporting brief, a brief in
support of the Trial Examiner's Decision, and
responses to Respondent ' s motions to introduce
additional evidence.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended , the National Labor
Relations Board has delegated its powers in
connection with this case to a three- member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , the exceptions, the briefs, the
motions to introduce additional evidence,' the
responses thereto, and the entire record in the case,
and hereby adopts the Trial Examiner's findings,
conclusions , and recommendation S.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , Great Central Insurance
Company, Peoria, Illinois, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.'
'Respondent 's motions to introduce additional evidence concerning an
alleged offer of reinstatement made after the issuance of the Trial
Examiner 's Decision are hereby denied as raising issues more appropriate
for consideration in the compliance stage of this proceeding.
'Although we agree with the Trial Examiner's conclusion that
Respondent terminated Mrs. Schneider in reprisal for her union activity,
we note that, even if her discharge were motivated by her having discussed
salary with other employees , the discharge would be violative of Sec.
8(aXI), since discussing salary or other terms and conditions of
employment is protected activity under Section 7 of the Act. The remedy
for such violation would be the same as for the violation of Sec. 8(aX3).
'We find no merit in Respondent 's exception to the broad cease and
desist order. The broad order recommended by the Trial Examiner is
appropriate herein since the discharge of an employee for engaging in
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Trial Examiner: The
complaint , as amended , alleges that Respondent, Great
Central Insurance Company, had engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as
amended , 29 U.S.C. 151, et seq. (the Act) by discharging
and refusing to reinstate the Charging Party , Mrs. Vickie
Schneider , because she engaged in union or concerted
activities . Respondent by its amended answer denied the
commission of any unfair labor practices.
Pursuant to notice , a hearing was held before me on
November 13 and 14, 1968 , in Peoria , Illinois . All parties
appeared and were represented by counsel. They were
given full opportunity to participate , adduce evidence, and
examine and cross-examine witnesses . The General
Counsel and Respondent have filed briefs which have been
carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. BUSINESS AND COMPOSITION OF RESPONDENT
Respondent is, and has been at all times material
herein , an Illinois corporation with its office and place of
business located at Peoria , Illinois . It is engaged in the
business of selling and issuing various types of insurance
policies including , but not limited to, burglary insurance.
During the past 12 months , which period is representative
of all times material herein , Respondent (a) sold and
issued from its Peoria office, insurance policies valued in
excess of $500,000 to its policyholders ; (b) received
premiums in excess of $500,000 from its policyholders; (c)
received in excess of $50,000 in premiums at its Peoria,
Illinois office from policyholders located outside the State
of Illinois ; and (d) in the course and conduct of its
business operations , has paid claims from its Peoria office
in excess of $50,000 to claimants located outside the State
of Illinois.
In accord with the foregoing , it is found that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
Mrs. Vickie Schneider was employed by Respondent as
an accounting clerk on July 17, 1967. She was discharged
on September 5, 1968 . Harold E. Florey , manager of the
accounting department , testified he discharged Mrs.
Schneider for (a) "talking too much away from [her]
desk," (b) "discussing salary [which ] is against company
policy. We don't want people discussing salary,"' (c)
"[having ] resigned on two [previous] occasions [so that he,
the manager of the accounting department ] don't know
from one week to the next if she 's going to be there or not
and the only thing [he] could do is let her go," and (d) "I
have a replacement for you." The General Counsel
union activities goes to the very heart of the Act. N.L.R.B. v. Entwbtle
Mfg. Co.. 120 F.2d 532 (C.A. 4).
176 NLRB No. 59
GREAT CENTRAL INS . CO. 475
contends Mrs. Schneider was discharged for attempting on
and after August 28, 1968, to bring a union into the plant
and for her concerted activities in respect to that action.
The correctness of these contentions is in issue. A
subissue which directly affects the main issue is whether
Florey at the time of discharge had knowledge of Mrs.
Schneider ' s union or concerted activities . Respondent
contends that Florey had no knowledge of her interest in
bringing a union into the plant , or that she had been
talking to other employees about having a union.
B. The Scene of the Action
The accounting department of the Respondent occupies
part of a large open room . Manager Florey occupies an
enclosed office, the upper part of the partitions being of
clear glass . The other employees including three
supervisors are seated at flat-topped desks in the open
area in front of Florey's office. Each desk is
approximately 60 inches in length and 30 inches in width.
There are approximately 20 inches between desks from the
side of one to the side of the other and approximately 40
inches between the front edge of one desk and the back
edge of the next . The occupant sits in the middle area of
the desk.
The accounting department is divided into three
sections headed by a person entitled "Supervisor." During
the period in question they were : Agent Account Section,
Supervisor Arthur Schnebly with five people; Direct Mail
and Home Office Building Section, Supervisor William
Reames with eight people; and General Accounting
Section , Supervisor William Eagleson with three people.'
The supervisor of each section was responsible only to
Florey. The supervisors had no authority to hire, fire,
suspend , or otherwise discipline employees or to grant
them raises , time off, or to adjust their grievances. In
addition to sitting at similar desks the supervisors , like the
other employees, performed actual clerical work, punched
the timeclock , worked the same daily hours , were paid
time and one-half for hours worked over 40 in a week and
were paid on a salary basis . Eagleson received $525 per
month . The salaries of the employees in his section range
from $300 to $330. Schnebly received $500 per month.
The salaries among the employees in his section range
from $250 to $400. The salaries of the employees in the
third section are not of record.
C. Eagleson and Schnebly are Supervisors
The General Counsel contends that Eagleson and
Schnebly are supervisors within the meaning of Section
2(11) of the Act. Respondent contends they are not; that
they are highly skilled and experienced employees who
bear the title "supervisor"; and that they are supervisors
in "title" or "name" only but actually have no supervisory
"authority" as mentioned in Section 2(11). The record
shows that Eagleson and Schnebly are highly skilled and
experienced but it also contains other evidence to show
they are supervisors.
It is now well established that Section 2 ( 11) speaks in
the disjunctive ' and that to constitute a person a
'Respondent 's brief does not mention that talking salary was one of the
causes of the discharge nor that "discussing salary" is against company
policy.
'Including supervisors , the total is 19 persons . Florey testified that the
accounting department contained 24 persons . The difference is not
explained.
supervisor it is sufficient to show that the person performs
any one of the functions , or in the performance of his
duties possesses one of the enumerated powers and
responsibilities set forth in Section 2(11). N.L.R.B. v.
Metropolitan Life Insurance Co., 405 F. 2d 1169 (C.A. 2),
and cases cited therein . It serves no purpose to emphasize
or list the supervisory powers that Eagleson and Schnebly
do not have . In keeping with Metropolitan Life Insurance
Co., supra, this discussion will be limited to those
management powers exercised or possessed by Eagleson
and Schnebly.
The accounting department of Respondent as above
stated is headed up by Harold E . Florey , whose title is
manager . He also is assistant treasurer to the board of
directors . Prior to September 1966, Florey ' s second in
command was known as assistant manager .' In September
1966, the accounting department was reorganized. The
change abolished the job of assistant manager . The three
operating sections were established , each headed by a
supervisor . They were : ( 1) Agent Account Section,
Supervisor Harold Glass;' (2) Direct Mail and Home
Office Billing Section , Supervisor William Reames; and
(3) General Accounting Section , Supervisor William
Eagleson.'
The purpose of the change was "to make the work load
easier by having a little more supervision within the
department . . . by . . . experienced people [who] could
look after some of the problems of those particular
sections." (Emphasis supplied .) As admitted by Florey,
the assistant manager was directly responsible to him but
had responsibility over the entire department and its
operation in Florey ' s absence . It is evident that the
Company 's intention was not to diminish responsibility of
the assistant manager even though it was distributed
among the three section supervisors.
The above changes were contained in a document dated
September 15, 1966 , from Florey to the accounting
department . The subject was "Accounting Department
Organization Changes ." Set out therein were the three
new sections and the work by jobs done within each
section. The document among other things stated:
The following supervisory and responsibility areas
have been assigned in an effort to operate the
department in a more efficient manner.
The work assignments in the various sections are
subject to change as the work load changes.
Due to the nature of our work load and peak
periods, some personnel assigned to one section will be
working in another section under different supervision.
It is hoped that problems arising from this can be kept
to a minimum.
'Sec. 2 (11) defines a "supervisor":
any individual having authority , in the interest of the employer, to
hire, transfer , suspend , lay off, recall , promote, discharge , assign,
reward , or discipline other employees , or responsibly to direct them, or
to adjust thew grievances , or effectively to recommend such action, if in
connection with the fc regoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
judgment.
'This job was filled by William Eagleson, who later became supervisor of
the General Accounting Section.
'Succeeded by Francis Reliford in February 1967, who in turn was
succeeded by William Schnebly in August 1968.
'As conceded by Respondent, Reames. Schnebly. and Eagleson
performed the same functions and had the same authorities. The following
discussion does not differentiate among them A finding made as to one is
applicable to the other except where otherwise specified.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Supervisors of the above operating sections will
report directly to the Manager of the Accounting
Department.
The document was exhibited to all the employees in the
accounting department. In practice, thereafter, new
employees were hired to do a specific type of work or
types of work. They were informed at hiring that if they
were not busy they should look to the section supervisor
or to Florey for reassignment . Similarly, if overburdened,
they should seek relief or assistance from the same
sources. In practice the supervisor of a section had
authority and responsibility within his* section without
referring the matter to a higher authority to assign
employees who were not busy to help one who was. In
practice, each of the supervisors obtained employees from
another section dependent on the workload and the peak
periods to work his section. Sometimes a supervisor would
go through Florey to accomplish the shift. At times on his
own initiative he requested the supervisor of the other
section to make the assignment ; or he spoke to the
employee directly. The fact that the employee so shifted
was advised when he was hired that he may be shifted,
does not in any way lessen the effectiveness of the
assignment or reassignment, or diminish the authority of
the supervisor to so assign.
Under the Company's work flow system, some of the
work went directly to the person performing the work.
Some of the work was routed through the supervisor for
direction and checking. The supervisor has the
responsibility that the work in his section is performed
correctly and by certain cutoff times. To locate errors, the
supervisor spot checks the work before it leaves the
section. Where he finds an error he sees to it that the
employee corrects them or he may make the correction
himself. As stated above, the supervisor has the authority
to and does get assistance from other employees to meet
cutoff times . Any of the three supervisors is authorized to
and has broken up groups of employees whether of his
section or not who gather together for a "gab session,"
and is authorized to ask them if they have anything to do.
The Respondent has a policy of granting scheduled
increases to employees after a review of the employees'
work. The first review occurs 90 days after the employee
starts . Thereafter the increases are given on an annual
basis except as Florey testified, "We do give some in 6
months," and in fact in several instances had done so.
Before each raise the supervisor is consulted to determine
the progress of the employee. As to the 90-day raise, if
the supervisor gives a satisfactory report, the raise is
automatic. Subsequent raises are dependent upon the
supervisor's report. There is no evidence that Florey
independently checks these reports.
The supervisor also reports to Florey with regard to
employee competency. Two employees who did not work
out well after being hired were discharged solely on the
reports of Supervisor Reliford (see footnote 5) that the
employees were incompetent . In a similar fashion it is
noted that Florey claimed he discharged Mrs. Schneider
as a result of Eagleson's report that she "had been away
from her desk quite a bit and talking to other people and
wasn 't doing her work."'
It is clear from the foregoing, the action of the
supervisor relative to the employees he supervises and the
reports he gives to Florey materially affect the job status
of the employees. Florey relies upon the supervisor as a
'Although as found hereafter the report was not the true reason for the
discharge, it clearly evidences Eagleson 's supervisory status.
source of information upon which he may exercise his
final authority. In many instances he accepts the report
without a further check. Though the supervisor may not
use the word "recommend" in his reports, he effectively
recommends action to Florey. Further, each supervisor
responsibly directs the work activities of the employees of
his section. The, exercise of authority by the supervisor is
neither routine nor merely clerical, but requires the use of
his independent judgment. Accordingly, on the record as a
whole, it is found that Eagleson, Schnebly, and Reames,
the respective supervisors of the three sections, are
supervisors within the meaning of Section 2(11) of the
Act.'
The record contains statements and actions by
Respondent that support the conclusion of supervisory
status.' Respondent concedes that Reames could be a
Section 2(11) supervisor "Because of the number of
employees involved . but surely neither Eagleson nor
Schnebly could be." By "number of employees involved"
Respondent undoubtedly is referring to the number each
supervisor has under his supervision. Respondent gives no
authority for this distinction, nor does it show why the
"number of employees" creates a difference in status
among the three supervisors." Section 2(11) does not
speak of nor establish "number of employees" as a
criterion.
In the instant case the disparity in number of
employees in the three sections is not so great as to
constitute a substantial difference. As of August 1968,
Eagleson had three people in his section, but this number
is increased from time to time by employees from other
sections who are brought over temporarily to assist
Eagleson. When Reliford was in charge of the Agent
Account Section, he had seven employees under him. As
of August 1968, this section (Schnebly, supervisor)
contained six or seven employees. As of August 1968,
Reames' section contained eight employees but in 1967 it
had only five or six employees. On the other hand the
record clearly shows that the functions, responsibilities,
and authorities of the three supervisors are equal and it
was intended by the Respondent that they should be
equal. It follows from the foregoing that a concession that
Reames is a Section 2(11) supervisor also concedes that
Eagleson and Schnebly are Section 2(11) supervisors.
'See Lyon . Incorporated , 145 NLRB 54, 73.
'In its original answer to the complaint, which answer is an exhibit in
this proceeding , Respondent admitted that Eagleson is a Sec. 2(11)
supervisor. Subsequently, at the hearing , Respondent amended its answer
and denied that Eagleson was a supervisor. No reasons were given for the
change of position . Normally, when a pleading is amended the superseded
portion ceases to be a conclusive judicial admission . Where it remains as
part of the record it still remains as a statement once seriously made by an
authorized agent and is competent evidence of the facts so stated. See
Kunglig Jarnvagsstyreb en v. Dexter & Carpenter , 32 F.2d 195, 198 (C.A.
2), cert. denied 280 U .S. 579 . Under these circumstances , it is considered
that the admission supports the conclusion that Eagleson was a Sec. 2(11)
supervisor.
"In cases where the Board considered "numbers of employees" as a
factor in the determination of supervisory status other special
circumstances were present. See Remington Rand Corporation, 141 NLRB
1052, 1054, wherein the Board stated:
In our opinion , the record adequately supports the conclusion that
Lercher responsibly directs the work of the approximately 25 employees
working on the night shift. Further , to find that Lercher is not a
supervisor would result in approximately 25 employees working the night
shift without any responsible supervisory representative of Respondent
present during the major portion of the shift . In such circumstances, we
find that Lercher is a supervisor within the meaning of the Act.
Also Vega v. N.L.R.B., 341 F.2d 576 (C.A. I), cert. denied 382 U.S. 862.
GREAT CENTRAL INS. CO. 477
D. The Company Personnel Policy and Practice
The Company has no stated policy, written or
otherwise, setting standards for employee behavior.
Generally, the practice has been to give the employees as
much leeway as possible and to work with them. The
person who hired Mrs. Schneider told her that there was
no company policy on "breaks"; that the Company was
very lenient; and that an employee was free to take a
break if she needed one. The normal work of the
employees required them and Respondent permitted them
to go from the employee's own desk to consult with a
supervisor or another employee at the other's desk. Florey
testified that while visiting it was not unexpected that the
employees would discuss nonwork subjects as well as work
subjects and laugh and joke with each other.
Continuing personnel problems in the accounting
department were: (I) girls staying in the ladies' restroom
for too long a period of time; and (2) excessive talking
between girls who visited each other. Discipline of
offenders was lax. For example:
As to item (1): In the early part of 1968 several of the
female employees including Mrs. Schneider would stay in
the ladies' restroom for about 10 or 15 minutes about 4
p.m. How long this continued is not shown. In the spring
of 1968," Florey spoke to Mrs. Schneider and another
employee about it. He told them that they were spending
too much time as a group in the ladies' restroom; that the
Company had no "break as such"; and that if a cup of
coffee or a cigarette was wanted they should have them at
the desk. The problem, however, was not resolved. The
ladies desisted for a while but the practice started over
again a little while later and has continued since. The
record does not show who the later malingerers were.
Florey has rebuked no one since he last spoke to Mrs.
Schneider and the other employee. The latter is still an
employee of the Respondent.
As to item (2): From time to time, employees were
admonished verbally for behavior disruptive of normal
working conditions. Instances of such admonition were as
follows: "Sippy" Brooks, an employee since December
1966, worked in the same section as Mrs. Schneider. Six
months after she was hired, Florey called her into his
office, advised her she was being given a raise and then,
with regard to her talking, told her to "hold it down to a
small roar back there in the corner." Sippy Brooks is a
baseball fan . In the spring of 1968, she was in the
company vault listening to a ball game on a radio. Florey
was also there. He told her she "couldn't do it." She was
upset but she stopped. In the early part of August 1968,
Sippy Brooks' talking was still a problem. In an attempt
to resolve it, Florey rearranged the seating plan of the
accounting department to bring Sippy Brooks near his
office. A few weeks later, about a week or two before
Mrs. Schneider's discharge, Sippy Brooks received
another warning from Florey. He told her that talking
was to be held to a minimum; anything related to work
was to be discussed in a low voice so as not to disturb the
other employees; "and this was how it was or else."
About this time, Florey also warned employee Harris
about talking. Sippy Brooks and Harris are still
employees of Respondent.
About the same time as this last warning to Sippy
Brooks, Florey spoke to Mrs. Schneider. Florey told Mrs.
Schneider that he knew that she was a good friend of
"Mrs. Schneider sets the time in April or May; Florey in May or June
1968.
Sippy Brooks, but that he would like them to keep their
conversations down to "a small roar." Around this time,
Florey warned another employee, Dave Harris, about
talking. This conversation was part of a discussion
between Florey and Mrs. Schneider in which she revoked
her 3-week notice to quit and Florey told her that her
planned replacement would be placed elsewhere and that
she would get a raise about the end of September or the
first of October.12
Incompetence was a cause for discharge as shown by
the fact that several employees had been terminated for
that reason. As to excessive talking or other disturbing
behavior, the record contains no instance where an
employee had been terminated, punished, suspended, or
otherwise penalized on that account. As Florey testified,
"I have tried to work with the people as much as possible,
giving them as much leeway as I can; thinking they will
respond to talk rather than suspending them, rather than
firing them."
E. Mrs. Schneider's Employment Record
Mrs. Schneider was employed as an accounting clerk in
the General Accounting Section of Respondent's
accounting department. Her supervisor was Bill Eagleson.
Her duties were to process all the new insurance issues,
renewals, and cancellations that were paid on a monthly
basis. She also worked the finance journal. Her duties
required her to leave her desk from time to time to
consult with other employees about the work to be done.
When hired in July 1967, her salary was $270 a month.
In November 1967, after 90 days, Mrs. Schneider received
an automatic increase making her pay $285 a month. In
March 1968, an employee quit. Mrs. Schneider told
Florey that if she did both jobs she would have enough
work to keep her busy all the time and asked him not to
get a replacement. Florey agreed. Then, Mrs. Schneider
received a raise of $25 a month, making her pay $310 a
month.
In the morning of August 8, 1968," Mrs. Schneider
spoke to Florey and asked him for a raise in pay. She
advised him she had just been married and needed more
money. Florey promised to look into the matter. She
spoke to him again about 4 or 5 days later. After being
told by him that she was not yet due for another raise, she
told him to "forget it" because she would be quitting in
October. That afternoon, Florey called Mrs. Schneider
into his office to try to change her mind about quitting.
He told her that she was being well paid for an
inexperienced girl, having already received two raises; that
she could not work elsewhere and advance as rapidly; and
that as she desired she would be given work that would
use her typing skills. The discussion ended when Florey
told her the Company was satisfied with her work and if
she changed her mind to let him know. About a week
later she advised him she wished to stay. Florey
responded, "That's fine. We would like to keep you."
About August 26, in the morning, Mrs. Schneider
talked with Florey again. She asked him if she could be
allowed to work part time at the same salary,
guaranteeing that she would get all the work done. He
stated he wanted no part-time workers. She then advised
him that she wanted to give him 3 weeks' notice so that
"See fn . 14, infra
"The findings in the remainder of this section for the period from
August 8 to Mrs. Schneider 's discharge are a composite of the credited
portions of the testimony of Mrs. Schneider and Florey.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he might get a replacement . Florey thanked her and
advised the personnel department . On August 28 he
interviewed an applicant for the job . He told the applicant
she could begin working the Monday of the last week of
Mrs. Schneider ' s employment so that the latter could help
break her in.
On August 30, Mrs . Schneider saw Florey again to tell
him she had changed her mind and wished to stay. He
said , "Fine , I'm glad ." He told her of the arrangements to
hire another girl as her replacement , but that he would
check with personnel about placing the new girl in another
department . The raise was again mentioned and Florey
stated she would get one at the "end of September or the
first of October because I usually try to review the pay
every six months."" Later that afternoon he stopped at
Mrs. Schneider 's desk to tell her that arrangements had
been completed and she could stay.
On September 3" and the morning of September 4,
Florey noticed that Mrs . Schneider was away from her
desk on several occasions . He observed her talking to
Sippy Brooks. The afternoon of the 4th, Florey attended a
meeting away from the accounting department. On his
return , Eagleson reported to him that Mrs. Schneider
"had been away from her desk quite a bit and talking to
other people and wasn 't doing her work at that point."
Florey decided to arrange for her discharge the next
morning.
F. Mrs . Schneider 's Union Activities
Late in the afternoon of August 28, Mrs. Schneider and
three other employees were in the ladies ' restroom. They
discussed salaries paid by the Respondent and the
behavior of the accounting department supervisors to the
employees . As a result , they decided to get a union started
in the plant to help them better salaries and working
conditions. Mrs. Schneider volunteered to get the
information "on how to organize a union ." That evening
and the next day Mrs . Schneider contacted several
sources , including a member of the general executive
board of the Insurance Workers International Union. On
August 29 and 30, September 3 and 4, at the desks of
employees in the accounting department , when visiting
other employees in other departments , at lunchtime, and
in the Company ' s parking lot , Mrs. Schneider solicited
employees in an attempt to gain support for union
organization . As in the first conversation , the discussions
included mention of wages and the relationship between
supervisor and employee . Mrs. Schneider spoke to
approximately 16 different employees " in this manner and
to several more than once . The conversations were in a
low tone in order that they should not be overheard.
Several were in the presence of Eagleson and Schnebly but
Mrs. Schneider was not certain that either overheard what
was said . On September 4, in the accounting department,
Mrs. Schneider held a conversation with Peggy Grimm at
the latter 's desk . Schnebly was seated at his desk about 3
to 5 feet away and Eagleson at his about 25 feet away.
Mrs. Schneider in a low voice asked Grimm if she would
support a union . In a loud voice Grimm responded, "No,
I won ' t because you ' ll never get a union out here."
"It was in this conversation that Florey told Mrs. Schneider to keep the
conversations with Sippy Brooks down to a small roar . See In. 12.
"August 30 was a Friday. The following Monday was Labor Day.
September 3, a Tuesday, was the next working day.
"Linda Ashenbrenner, Collette Ludwig , Sharon Holliday, Ruth Riesen,'
Sippy Brooks , "Mary" Mullin , Dave Harris, Mike Baker , Pat Bower,
Mrs. Schneider testified she did not know whether
either Schnebly or Eagleson heard Peggy Grimm. She did
state that in her opinion Grimm's voice could have been
heard for a distance of about 40 feet . Eagleson was not
called as a witness by the General Counsel or Respondent.
Schnebly testified that he did not overhear the
conversation with Grimm and that he had a perforated
right eardrum. Schnebly testified that he had no difficulty
hearing questions put to him by Respondent 's counsel;
and that the counsel had a loud voice. The parties
stipulated that that distance from counsel to the witness
was approximately 15 feet.
G. The Discharge
About 11:30 a.m. on September 5, 1968, Florey
discharged Mrs. Schneider . Earlier he had requested her
final checks from the payroll department . During the
discharge conversation , Florey told Mrs. Schneider she
was being discharged,
For talking too much away from your desk and talking
to other people and discussing salary and so forth-and
this is against company policy. We don't want people
discussing salary. And in view of the fact that she had
resigned on two occasions , I don 't know from one week
to the next if she's going to be there or not and the only
thing I could do is let her go. I have a replacement for
you.
Mrs. Schneider responded that he was being unfair that
she was not the only employee who talked and listed four
or five others including Sippy Brooks . Florey agreed that
"she was not" the only talking employee and that he had
talked to other people about the same problem. Mrs.
Schneider went on to say that if he wished to fire all the
people who were talking he wouldn't have anyone left.
Florey responded, "If that's what it takes, that is what
will happen."
Sometime after her discharge Mrs. Schneider requested
her job back. She received no reply from Respondent nor
has she been since reinstated by Respondent.
H. Company Knowledge of Mrs. Schneider 's Union
Activities
In accord with the General Counsel's contention it is
found that Eagleson" and Florey were aware of Mrs.
Schneider ' s union activities before the time of her
discharge.
As to Eagleson: This finding is made without reliance
on the testimony that Eagleson was within hearing
distance of the conversation between Peggy Grimm and
Mrs. Schneider . The finding is based on the
uncontroverted testimony of Baker and Reliford.
Baker testified that before the discharge he was at
Eagleson's desk having a general conversation and in
passing Baker "mentioned that Vickie had been discussing
the starting of a union at Great Central ." Eagleson said,
"He was unaware of the fact ." Baker testified that to his
best estimate the conversation occurred 2 weeks before
Mrs. Schneider's discharge. The latter occurred on
September 5. Thus, if the "2 weeks" were strictly
construed the conversation would have occurred on
Jack Henson, Alan Goble , Peggy Grimm, Judy Gardner , and three other
people identified as " Bobbie," "Thelma," and an "IBM clerk."
"In view of the finding as to Eagleson it is unnecessary to make a
finding with regard to Schnebly 's knowledge.
GREAT CENTRAL INS. CO. 479
August 22 , 6 days prior to August 28 when Mrs.
Schneider first started her union campaign . Despite this
date discrepancy, Baker 's testimony that the conversation
took place is credited . When asked when the conversation
took place Baker responded , "Dates I couldn ' t give you."
He then stated it was before the time of the discharge and
then placed it about 2 weeks before . His error is in
placing the time of the conversation . He was not in doubt
that the conversation took place . Under the circumstances
in this case the conversation could only have taken place
on or after August 28 . It is so found . There was no doubt
that Baker knew what Mrs. Schneider was doing because
she testified that she had spoken to Baker about the
Union.
Reliford was a supervisor formerly employed by
Respondent . He left voluntarily . On September 5, the
night of Mrs. Schneider ' s discharge he visited
Respondent ' s office about 7:30 or 8 p . m. where they were
"doing the collection reports ." This was something
Reliford customarily did. He met Schnebly, Baker, and
Eagleson . After Schnebly and Baker left, Reliford talked
with Eagleson . The latter told him that Mrs. Schneider
had been terminated that day,
And we talked about it and he said - well, I asked him
why, and he explained to me that she had been showing
a bad attitude in approximately the last three weeks or
month and that it was hurting her in regards to how
they felt about her and her employment and she was -
I asked Mr. Eagleson what he was referring to and he
said she had gone into Mr. Florey and turned in her
notice to quit and then had gone back in and asked to
keep her job and then asked for part time or a
three-day week or something of this nature, that she
could work at her present salary and still get her job
done , and that this was ridiculous , and that she had
been talking with the employees in the department and
that she - in that he had heard that she was talking to
employees about forming a union.
On cross-examination , Reliford ' s qualification, if any,
of the above statement was that Eagleson did not say that
her union activities was one of the reasons why she was
terminated but that Eagleson "simply stated he heard she
was talking to other employees about the union."10
As to Florey : In accord with the General Counsel's
contention , it is found that Florey , prior to the time he
discharged Mrs. Schneider , had knowledge of her
attempts to unionize the employees . In making this
finding I do not rely solely on the fact that Florey is
chargeable with knowledge of the union activities of Mrs.
Schneider acquired by Eagleson as a supervisor. See
Montgomery Ward & Company, 115 NLRB 645, 647,
affd . 242 F.2d 497, 501 (C.A. 2); Arlington Hotel
Company, Inc., 127 NLRB 736; Owens-Corning
Fiberglass Corp., 146 NLRB 1492; Alabama Textile
Products Corp ., 164 NLRB No. 15; Stewart & Stevenson
Services , Inc., 164 NLRB No. 100 , enfd . 414 F.2d 232
February 12 , 1969, (C .A. 5); N.L. R.B. v. Transport
Clearings , Inc., 311 F . 2d 519 , 523 (C.A. 5); N.L. R.B. v.
Abbott Worsted Mills , 127 F.2d 438, 440 (C.A. 1).
Rather greater weight is given as a basis of Florey's
knowledge to the conclusions drawn from his testimony.
The record clearly shows that from the start , as part of
her union campaign, Mrs. Schneider consistently
'sit is significant that Eagleson was not called upon to deny the
statement of either Baker or Reliford though he was present at the
hearing.
mentioned salaries, supervisor-employee relationship, and
the Union when she talked with the other employees.
Florey on direct examination and under cross consistently
stated that he had no knowledge of the subject of Mrs.
Schneider's conversations. However, one of the reasons
for her discharge was that she was "discussing salary....
We don't want people discussing salary...." When asked
how he know "she was talking salary if you didn't know
what she was talking about. " he responded that
someone unknown had told him about it . It is immaterial
for the purposes of this Decision to determine who that
person was. The material fact is that Florey was told. It is
not unreasonable to conclude that under the circumstances
of this case, that when Florey was told Mrs. Schneider
was discussing salary, he was also told she was attempting
to unionize the employees. That an informant to an
employer of an employee's activities in the volatile area of
union activities would reveal only the discussion about
salaries and not reveal the attempt to unionize is highly
improbable. In view of the foregoing it is not reasonable
to accept Florey' s sweeping denial of knowledge of Mrs.
Schneider's union activities. On the contrary, it is
reasonable to conclude that when Florey admitted to
knowledge that Mrs. Schneider was discussing salary, he
also knew that she was discussing union organization. It is
so found."
Analysis and Conclusions
Florey gave four reasons for discharging Mrs.
Schneider: (1) talking too much away from her desk; (2)
discussing salary which is against company policy; (3) two
previous resignations; and (4) he had a replacement for
her. Under other circumstances, it might be held that her
discharge for these reasons would not be violative of the
Act. But under the circumstances of this case it is found
that none of the four reasons is creditable, and that none
of them was the cause of her discharge.20
1. Talking too much
Respondent openly has practiced the policy of neither
suspending or firing its employees for excessive talking.
Florey testified that when the problem occurs he prefers
talking to them and giving them leeway. This liberal
policy has been consistently applied." It was used with
Sippy Brooks who received several warnings and whose
behavior was the cause of the rearrangement of the desks
in the accounting department. At the time of the hearing,
she was still an employee of the Company though she had
received another warning about talking in August about
"On the basis of the foregoing and observation of Florey's demeanor on
the stand when cross-examination dealt with this subject, so much of
Florey' s testimony that states he did not have knowledge of Mrs.
Schneider's union activities prior to the time of her discharge is not
credited.
"The existence or assertion of a valid reason for discharge does not
necessarily indicate that this reason constituted the real cause for
discharge, nor does the existence of a valid cause provide a defense unless
it is the moving cause for the termination . Samuel B. Gass. 154 NLRB
728, 741, enfd . 377 F.2d 438 (C.A. 1); N.L.R.B. v. Superior Sales, Inc.,
366 F 2d 229, 233 (C A. 8); Socony Mobile Oil Co. v. N.L.R.B., 357 F 2d
662, 663-664 (C.A. 2), Thor Power Tool Company. 148 NLRB 1379, enfd.
351 F.2d 584 (C.A. 7); Duo-Bed Corp. v. N.L.R B.. 337 F.2d 850, 851
(C.A. 10), cert denied 380 U.S. 912; N L R.B. v. National Food Stores.
332 F.2d 249 (C.A. 4); N L.R.B. v. Solo Cup Co., 237 F.2d 521, 525 (C.A.
8), N.L.R.B. v. Texas Independent Oil C 232 F 2d 447, 450 (C A. 9);
N.L.R.B. v C. A J Camp. Inc.. d/ a Kibler-Camp Phosphate
Enterprise , 216 F.2d 113, 115 (C.A. 5).
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same time that Mrs. Schneider had. It is significant
that the August warning was Mrs. Schneider's first. No
reason is shown by Respondent for the difference in
treatment between Sippy Brooks and Mrs. Schneider.
Mrs. Schneider was an excellent employee , one that
Florey had made a special effort to retain and induce to
remain with the Company . She had received an increase
automatically after 90 days with the Company . She was
given another increase 4 months thereafter even though
the Company's policy was to have annual increases but
Florey tries "to review the pay every six months." In view
of the foregoing it is concluded that "talking too much"
though advanced by Florey as a reason for the discharge
of Mrs . Schneider does not stand scrutiny and in fact was
not a reason at all.
2. Discussing salary
Other than the statement made by Florey at the time of
the discharge of Mrs . Schneider , the record is bare of any
evidence to show that the Company had any policy
concerning the discussion of salary among employees. If
there was such a policy, there is no evidence that it was
communicated to the employees . The use of a nonexistent
policy, or the sudden exhumation of a noncommunicated
company policy as a cause for discharge does not convince
one that an alleged breach of such a policy was a cause
for the discharge of Mrs. Schneider . Accordingly, it is
found that Respondent 's assertion that "discussing salary"
was a cause of the discharge of Mrs. Schneider was sham
and not the true cause of the discharge.
3. Two previous resignations
This stated reason is palpably untrue. After Mrs.
Schneider's first resignation Florey sought her out to
induce her to remain . At her second resignation and
recantation, Florey had full opportunity to reject the
recantation if he considered her undependable. This he did
not do . Instead , he told Mrs. Schneider he was "glad" she
was staying , made arrangements that her proposed
replacement should be used in another department, and
promised her a raise in or about a month 's time. Such
actions are not normally exhibited to an employee that is
considered flighty and undependable . In view of the
foregoing it is concluded that the two previous
resignations though one of the stated causes of the
discharge of Mrs. Schneider was not in fact the true
cause.
4. He had a replacement for Mrs. Schneider
Florey's actions with regard to the replacement showed
a desire to keep Mrs. Schneider rather than to let her go.
By the time of the discharge Florey had already arranged
for the transfer of the replacement to another section.
Thus, there no longer was a replacement for Mrs.
Schneider . Under these circumstances , it is concluded as
with Florey ' s other statements that "a replacement" was
in fact not a contributing cause to the discharge.
The total circumstances of Mrs. Schneider's discharge:
Respondent 's knowledge that she was agitating for a
union among the employees ; the timing of the discharge
almost immediately after the union organization campaign
started; the absence of any warning that discharge would
"This is further emphasized by the nondisciplinary treatment of the
employees in taking extended restroom breaks.
result if she continued excessive talking ; the disparity of
treatment between her and other more frequent offenders
who had been more frequently warned ; the abrupt change
in the Company 's attitude , from a special effort to keep
her as an employee to discharging her for actions that had
been already condoned in her or in other employees; the
pretextual reasons advanced by Florey for her discharge, 22
leave no doubt that Respondent discharged Mrs.
Schneider because of her efforts to organize a union
among the employees." It is so found.
In summary , it is found, on the entire record and for
the reasons stated , that the Company discharged Mrs.
Schneider becasue she advocated and sought to bring
about union organization of the Company' s employees;
that by discharging her for that reason , Respondent
violated Section 8 (a)(3) of the Act , and interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thus violating
Section 8 (a)(1) of the statute.24
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
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.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Great Central Insurance Company is, and has been
at all material times, an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discriminatorily discharging Vickie Schneider, as
found above, the Company has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(aX3) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by,
Section 7 of the Act, as found above, the Company has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
11The pretextual nature of the reasons given by the Company to justify
the discharge is further evidence of discriminatory motivation and lends
support to the finding that the discharge was for her union activities. See
N.L.R B. v. American Carting Service Inc., 365 F. 2d 168, 172 (C.A. 7);
Shattuck Denn Mining Corp. v. N.L R.B., 362 F.2d 466, 470 (C.A. 9);
N.L.R.B. v. Griggs Equipment . Inc., 307 F.2d 275. 278 (C.A. 5); N L R.B.
v. Dant . 207 F.2d 165, 167 (C.A. 9).
"See Great Atlantic and Paces Tea Co v. N.L R.B., 354 F.2d 707, 709
(C.A. 5); N.L R.B. v . Longhorn Transfer Service, 346 F.2d 1003, 1006
(C A. 5); N. L.R.B. v . Griggs Equipment . Inc., 307 F.2d 275, 278 (C.A. 5);
and N. L.R.B. v Georgia Rug Mill, 308 F . 2d 89 , 91 (C.A. 5); N.L.R B. v.
West She Carpet Cleaning Co.. 329 F.2d 758, 761 (C.A. 6), N.L R.B. v.
Tennessee Packers , Inc., Frosty Morn Division 390 F.2d 782 (C.A 6).
34 In view of these findings , Respondent ' s motion to dismiss the
complaint made during the hearing on the ground that the General
Counsel had failed to prove a violation is denied.
GREAT CENTRAL INS. CO. 481
THE REMEDY
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(3) and (1) of the
Act, I shall recommend that the Company cease and
desist from the unfair labor practices found, and take
certain affirmative actions found to be necessary to
remove the effects of the unfair labor practices and
designed to effectuate the policies of the Act, as provided
in the Recommended Order below.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following:
Copies of said notice, on forms provided by the
Officer-in-Charge for Subregion 38, after being duly
signed by an 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 the
said Company to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply.26
RECOMMENDED ORDER
Great Central Insurance Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in
any labor organization, by discharging or otherwise
denying employment to, any employee, or in any other
manner discriminating against any employee with respect
to hire, tenure of employment, or any term or condition
of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of any rights
guaranteed them by Section 7 of the said Act.
2. Take the following affirmative action:
(a) Offer to Vickie Schneider immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of
earnings she may have suffered by payment to her of a
sum of money equal to that which she would have earned
from the date of her discharge to the date of the offer of
reinstatement , less her net earnings during such period.
Said backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, together with interest thereon at
the rate of 6 percent per annum. Isis Plumbing & Heating
Co., 138 NLRB 716.
(b) 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 a determination of the amount of
backpay due, and to the reinstatement and related rights
provided in such order.
(c) Post at its place of business in Peoria , Illinois,
copies of the attached notice marked "Appendix.""
"In the event that this Recommended Order is adopted by the Board,
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."
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 membership of any of our
employees in any labor organization, by discharging or
otherwise denying employment to, any employee, or in
any other manner discriminating against any employee
in regard to his hire, tenure of employment, or any
term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of their right to
self-organization to form, join, or assist any labor
organization , to bargain collectively through
representatives of their own choosing, 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.
WE WILL reinstate Vickie Schneider and reimburse
her for any loss of pay as a result of her discharge.
All our employees are free to join, and remain
members of, any union of their choice.
GREAT CENTRAL
INSURANCE COMPANY
(Employer)
Dated By
(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 compliancce •with its provisions, they may communicate
directly with the Board ' s Subregional Office , Fourth Floor
Citizens Building , 225 Main Street , Peoria, Illinois 61602,
Telephone 309-673-9282.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer-in-Charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."