Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 514 (N.L.R.B. 1965)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain , or refrain from becoming or remain
ing members of any labor organization
CERTAIN-TEED PRODUCTS CORPORATION,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Vance Kellum and Roger Omberg if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-x211, Extension 2131 , if they have any question concerning this notice or
compliance with its provisions.
Metropolitan Life Insurance Company and Insurance Workers
International Union, AFL-CIO. Case No. 7-CA-4636(2).
Jund 05, 1965
DECISION AND ORDER
On March 16, 1965, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings," conclusions, and recom-
mendations of the Trial Examiner as modified herein.
' The first two dates referred to In footnote 4 of the Trial Examiner's Decision should
read, respectively , "November 28, 1962" and "August 1963"
The Respondent urges us to overrule the Trial Examiner 's findings that District Man-
ager Speyer interrogated applicant Nunnally on December 12, 1963 , about his union activity
and told him that he would not be rehired by Respondent if he had signed a union card
As the Respondent correctly points out , the Trial Examiner 's summarization of Speyer's
testimony regarding this Interview is, in one respect , not wholly in accord with the record.
In view, however , of the weight given by the Trial Examiner to demeanor considerations
in his decision to credit Nunnally , whose testimony he considered "forthright and circum-
stantial," we do not find this minor factual discrepancy to be of sufficient importance to
warrant overruling the Trial Examiner on this point . Standard Dry Wall Products, Inc.,
91 NLRB 544 , enfd. 188 F. 2d 362 (C.A. 3).
153 NLRB No. 52.
METROPOLITAN LIFE INSURANCE COMPANY 515
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, as modified
herein, and orders that Metropolitan Life Insurance Company, New
York, New York, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1. The following is substituted for paragraph 2(a) of the Recom-
mended Order :
"(a) Offer to John Nunn ally immediate employment in a position
substantially equivalent to that at which he would have been employed
had he not been discriminated against, in the Gratiot district office or
any other district office of Respondent in the Detroit area, without
prejudice to any seniority or other rights and privileges he might have
acquired."
2. The following is substituted for the last indented paragraph of
the Appendix attached to the Trial Examiner's Decision :
WE WILL offer John Nunnally immediate employment as a debit
agent, and make him whole for any loss of pay suffered by reason
of the discrimination against him."
3. The telephone number for Region 7, appearing at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended
to read: "Telephone No. 226-3244."
TRIAL EXAMINER'S DECISION
The charge herein was served upon the Respondent on March 24 , 1964, the com-
plaint issued on May 14, and the case was heard before Trial Examiner Sidney
Sherman on October 15 , 1964, and January 19 , 1965. The main issue litigated was
whether the Respondent 's refusal on January 8, 1964 , to rehire Nunnally as an agent
was unlawful . After the hearing briefs were filed by the Respondent and the General
,Counsel.
Upon the entire record in this case ,' and my observation of the witnesses , I adopt
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Metropolitan Life Insurance Company, hereinafter called the Respondent, is a
corporation , organized under the laws of the State of New York, with its principal
office in New York City, and is engaged in the sale of various forms of insurance. It
annually receives at its New York office premiums from out-of -State policyholders
in excess of $1 million and annually remits to such policyholders from its New York
office more than $ 1 million, in payment of claims. The Respondent is engaged in
commerce within the meaning of the National Labor Relations Act, as amended.
i The transcript of testimony taken herein is hereby ordered corrected as follows:
1. At p. 143, 11 . 4 and 9 , change "activity" to "antipathy".
2. At p. 154, 1 5 "chance" should read "change".
All events hereinafter related occurred in 1963, unless otherwise Indicated.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Insurance Workers International Union, AFL-CIO, hereinafter called the Union, is
a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by
interrogating an applicant for reemployment about his attitude to the Union, and by
conditioning employment on such attitude. The complaint further alleges that on
January 23, 1964, the Respondent violated Section 8(a)(3) and (1) of the Act by
refusing to rehire Nunnally, a former agent, because of his union activity. The
answer denies any violation.
A. Sequence of events
Nunnally was originally hired by the Respondent as a debit agent in 1950, was so
employed in the Respondent's Eastgate district office in Detroit, Michigan, in March
1962, when the Union filed a petition for an election among the Respondent's Detroit
agents, and Nunnally about this time signed a card for the Union. An election held
in October 1962, was set aside by the Board and a second election, in June 1963,
resulted in certification of the Union as bargaining representative. At the second
election, Nunnally acted as an observer for the Union and, as such, signed the official
tally of ballots.
In the meantime, in November 1962, Nunnally had applied for a transfer to the
Respondent's agency in Huntsville, Alabama. This request was at first rejected, but
about 9 months later, in August 1963, the transfer was effected, and Nunnally worked
in Huntsville until early in the following December, when he resigned and returned
to Detroit. There, he had a job interview with Speyer, the manager of the Respond-
ent's Gratiot district office, who, on December 13 recommended to his superior,
Pate, that Nunnally be rehired. However, on January 8, 1964, Speyer was instructed
to reject Nunnally's application, and he has not been rehired.
B. Discussion
1. The8(a)(1) issues
The General Counsel bases his allegations of interrogation and coercion on certain
remarks attributed to Speyer in the course of his interview with Nunnally on Decem-
ber 12. On that occasion, according to Nunnally, Speyer, after indicating his willing-
ness to hire Nunnally, asked him how he felt about the Union, and, when Nunnally
answered that he had voted for the Union, asked how active he had been on behalf
of the Union, eliciting an admission by Nunnally that he had been a union observer in
the second election. Nunnally added that, when Speyer pressed him as to whether he
had signed a union authorization card, he falsely denied having done so, thereby
eliciting from Speyer the comment: . . that's good because if you signed a card you
would never come back to work for Metropolitan."
Although Speyer denied at first that he asked Nunnally on December 12, whether
he had signed a union card, at a later point in his testimony he gradually retreated
from his position, stating, at first, that he did not recall making any such inquiry, and
finally confessing that he was not sure that he had not done so. Speyer also professed
to be unable to recall whether he had asked Nunnally how he felt about the Union.
While admitting that he learned of Nunnally's role as an observer for the Union,
Speyer denied that he solicited this information, insisting that Nunnally volunteered
it in the course of a conversation late in December. Speyer denied, moreover, that
he told Nunnally that he would not be considered for rehire if he had signed a union
card.
On the basis of demeanor considerations, as well as Speyer's aforenoted retractions
and evasions, I am convinced that Speyer was not entirely candid regarding the con-
tent of his conversations with Nunnally, and I am constrained to credit Nunnally,
whose testimony on this point was forthright and circumstantial. Accordingly, I find
that on December 12, Speyer interrogated Nunnally about this union activity and
sentiments, and announced that it was Respondent's policy not to rehire former agents
who had signed union cards. I find further that the Respondent thereby violated
Section 8 (a) (1) of the Act.
2. The 8(a) (3) issue
As already related, Nunnally's application of December 12 for reemployment,
although endorsed by Speyer, was rejected by his superior, Pate,2 on January 8, 1964.
2 He was at that time superintendent of agencies for the Great Lakes Territory, which
included Detroit, Michigan, and as such had the final authority, at that time, with regard
to the hiring of agents.
METROPOLITAN LIFE INSURANCE COMPANY 517
The General Counsel contends that the Respondent refused to rehire Nunnally
because of his prior union activity. It has been found that Speyer in effect told
Nunnally on December 12 that it was the Respondent's policy not to rehire former
agents who had signed union cards, and Pate admitted at the hearing that he had
been informed in 1962 that Nunnally had signed a union card. Moreover, Pate did
not contradict Nunnally's testimony that, at meetings with the Respondent's Detroit
agents during the Union's election campaign, Pate had characterized the Union's
representatives as "thugs," and "strong arm men," who were "connected with the
rackets of all types," and had expressed strong views on the inutility and futility of a
union.3 And, at the hearing, Pate expressed the view that a district office manager
"that does not have union representation in his area can control his organization a
little better and has fewer problems" than a manager in an organized area .4
As against the foregoing evidence of discriminatory motivation, Respondent cites
the testimony of Pate that he decided not to rehire Nunnally because of (1) his "nega-
tive attitude," as attested by his excessive complaints regarding, inter alia, the reduc-
tion of his debit, the Respondent's sales policies and sales material, and the amount
of his commissions, (2) the fact that in 1961, 1962, and 1963 Nunnally's sales
declined to a point substantially below the average for all of the Respondent's agents,
and (3) his unsatisfactory sales record during his sojourn in Alabama. However, in
a letter of January 23, 1964, to Nunnally,5 Pate made no reference to production or
sales, but gave only the following reasons for the refusal to rehire Nunnally:
It is simply my belief that with your attitude and personal problems you are not
suited for the career of a dedicated life underwriter.
And, to an interoffice memorandum relating to the rehire of Nunnally, Pate
appended a notation, dated January 9, 1964, that he "would never consider Mr.
Nunnally-has an extremely negative attitude."
At the hearing, Pate explained that in his January 23, letter he gave only part of the
reason for the refusal to rehire Nunnally, asserting that he did not "see any point in
writing a long, lengthy letter." However, it is difficult to believe that, if, as Pate
claimed, Nunnally's production record influenced Pate's decision, he would have
neglected the opportunity to make at least some brief reference to such an important
and objective factor in his letter to Nunnally, or that he would have omitted any
mention thereof in his interoffice memorandum . For this reason , as well as certain
3 For the purpose of this Decision, there is no need to determine whether Pate also
knew of Nunnally's role as union election observer. (Pate denied having such knowledge,
although the Respondent stipulated that it duly received a copy of the official tally of
ballots, signed by Nunnally in his capacity as union observer )
4 Pate attempted at the hearing to minimize the significance he attached to Nunnally's
union activity, asserting that, although he had learned of Nunnally 's signing a union
card, he was not aware that Nunnally was a union member, and that, had he regarded
Nunnally as "a Union member and greatly sympathetic to the Union," Pate would not
have approved Nunnally's transfer to Huntsville, where there was no union organization.
But Pate was unable to explain convincingly why he delayed for 9 months approving
Nunnally's request for a transfer to Huntsville On this point, the record shows only
that in a letter dated November 28, 1963, Pate initially vetoed the transfer, asserting
that it would not be fair to the Huntsville office to foist upon it an agent with Nunnally's
allegedly poor production record. As Huntsville was outside Pate's supervision, he was,
thus, in effect, professing the rather altruistic position that he preferred to keep an un-
productive agent in his own territory rather than burden another office with him How-
ever when asked at the hearing why he finally approved Nunnally' s transfer in
August 1964, he answered, inter alia, that he was content to let Nunnally become the
responsibility of others, and did not offer to explain what caused him to abandon the
scruples expressed in his November 28 letter The foregoing conflicting positions taken
with regard to Nunnally's transfer attest to Pate's lack of candor in this area and to a
reluctance to disclose the considerations which actually motivated him in delaying ap-
proval of the transfer for 9 months.
In any event, even if it be assumed that Pate gave no weight to Nunnally's union
activity in acting on his request for a transfer that circumstance alone would not suffice
to negate the evidence cited above as to the Respondent's policy in acting on applications
by former agents for reemployment In this connection , It may be noted that at the hear-
ing Pate acknowledged that he applied stricter standards In hiring agents than he did In
dealing with agents already on the payroll.
5 This was In reply to an inquiry by Nunnally as to the reason for the rejection of his
application for reemployment.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence in the record regarding Nunnally's actual production record,6 I do not credit
Pate's contention that such record influenced his action. Moreover, Pate's efforts to
explain what "personal problems" of Nunnally he had reference to reflect seriously
on his candor. Pate stated that he had in mind, inter aha, Nunnally's marital and
financial difficulties. The record shows that Nunnally was divorced in 1961, and
remarried in 1962, and that his remarriage was noted on his personnel file, which
Pate admittedly reviewed before deciding not to rehire Nunnally 7 Yet, Pate admitted
that the only marital problem that he had in mind was Nunnally's divorce. Even if
one credits Pate's testimony that he was not aware of Nunnally's remarriage (see
footnote 7 above), the record affords no explanation for Pate's apparently arbitrary
assumption that Nunnally's divorce in 1961 still might have a deleterious effect on
his efficiency as an agent. As to Nunnally's alleged financial problems, Pate admitted
that he was "not sure" that Nunnally had told him of any financial problems,s but
asserted, nevertheless that he "thought" that Nunnally had such problems
As already related, Pate was more articulate about his reasons for imputing to
Nunnally a negative attitude; namely, his frequent complaints about matters affecting
his compensation and working conditions. Even if it be assumed that Nunnally's
complaints (some of which were admittedly voiced in the presence of fellow employ-
ees), did not constitute protected, concerted activities,9 and that such complaints were
a factor in Pate's decision not to rehire Nunnally, I would still find a violation here
That Nunnally's identification with the Union was at least a contributing reason for
the rejection of his application for reemployment, is clear from Speyer s admission
that it was against the Respondent's policy to rehire a former agent who has signed a
union card, coupled, with Pate's admission that he knew Nunnally had signed such a
card, and the implausibility of the bulk of the reasons assigned by Pate for not rehiring
Nunnally. I find therefore that, by refusing to rehire Nunnally, the Respondent
violated Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act, it will be recommended that it be
directed to cease and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
I shall also recommend that the Respondent be ordered to make Nunnally whole
for any loss of earnings he may have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to that which he normally would
have earned, absent any discrimination, from January 8, 1964, less his net earnings
(Crossett Lumber Co., 8 NLRB 440, 497-498) during said period. Such net back-
pay shall be computed on a quarterly basis in the manner established by the Board
6 It is not disputed that during his 13 years with the Respondent Nunnally had at least
6 years of above -average production . ( See Respondent 's Exhibit No 7.) While there
was a decline in his production after 1960 , the fact remains that Speyer, on whose judg-
ment Pate professed to place great reliance , recommended to Pate that Nunnally be re-
hired. Moreover , notwithstanding Greenstein ' s denial , I credit the testimony of other
witnesses that Greenstein , Nunnally 's former manager at Eastgate , expressed pique at his
failure to apply to Greenstein for rehire , and in May 1964 ( after district managers were
given complete autonomy in the hiring of agents ), made an effort to contact Nunnally
about reemployment. Thus , It is clear that Pate's ostensible dissatisfaction with Nun-
nally's production was not shared by other representatives of management , including
Greenstein , who was at least as familiar with Nunnally 's record as was Pate
In view of this admission , I do not credit Pate 's testimony that be was not aware of
Nunnally 's remarriage.
8 Nunnally credibly denied that he had ever advised the Respondent of any financial
problems.
8 Of. The Office Towel Supply Company Incorporated , 97 NLRB 449 , enforcement denial
201 F 2d 838 (C.A. 2).
METROPOLITAN LIFE INSURANCE COMPANY 519,
in F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent per
annum 'shall be added to backpay, in accordance with Isis Plumbing & Heating Co.,
138 NLRB 71610
As the Respondent 's unfair labor practices found herein go to the heart of the Act,
it will be recommended that the order contain a broad injunction against any form
of restraint or coercion by the Respondent.
Upon the basis of the above findings of fact, and upon the entire record, I adopt
the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2 ( 2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. By discriminating against John Nunnally because of his activities on behalf of
the Union , the Respondent violated Section 8 (a) (3) and (1) of the Act.
4. By interrogating an applicant for employment concerning his union activity
and by threatening reprisals for such activity , the Respondent has violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and conclu-
sions of law , and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that the Respondent , Metropolitan Life Insurance
Company, New York, New York, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Insurance Workers International Union, AFL-
CIO, or in any other labor organization , by discriminating against employees in
regard to their hire or tenure of employment or any term or condition of employment.
(b) Coercively interrogating employees or applicants for employment about their
union activity , and threatening reprisals for such activity.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join , or assist the above-
named Union , or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other 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 is affected by the provisos
in Section 8(a) (3) of the Act.
2 Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to John Nunnally immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority or other rights
and privileges.
(b) Notify the above-named 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 of
1948, as amended , after discharge from the Armed Forces.
(c) Make whole the said employee , in the manner set forth in the section of the
Trial Examiner 's Decision entitled "The Remedy", for any loss of pay he may have
suffered by reason of the Respondent 's discrimination against him.
(d) Preserve and, upon request , make available to the Board or its agents, for
examination or copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
10 While I credit the testimony of Hartley , one of the Respondent 's agents, that in
May 1964 , Greenstein asked him to contact Nunnally and invite him to see Greenstein
about reemployment and that Hartley called Nunnally's home and in his absence left
a message with a member of his family to call Hartley, I also credit Nunnally ' s uncon-
tradicted testimony that he did not receive this message. Moreover , it is clear that
Hartley was merely trying to arrange an interview between Nunnally and Greenstein,
which might lead to an offer of reemployment , and the message itself did not contain
an offer of reemployment , but merely a request that Nunnally communicate with Hartley.
Accordingly , I do not deem the foregoing circumstances to affect either Nunnally's right
to reinstatement or his right to backpay
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its offices in Detroit, Michigan, copies of the attached notice marked
"Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall, after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it for a
period of at least 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith 12
"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 be 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".
12 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
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 Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT discourage membership in Insurance Workers International
Union, AFL-CIO, or in any other labor organization, by discriminating against
employees in regard to their hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT coercively interrogate our employees or applicants for employ-
ment about their union activities, or threaten them with reprisals for such
activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist the aforesaid Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
right may be affected by the provisos in Section 8(a)(3) of the Act.
WE WILL offer John Nunnally immediate and full reinstatement to his former
or substantially equivalent position, and make him whole for any loss of pay
suffered by reason of the discrimination against him.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of Insurance Workers International Union, AFL-CIO, or any
other labor organization.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify the above-named 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 of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3210,
if they have any question concerning this notice or compliance with its provisions.