Hardware Mutual Casualty Co.

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 709 (N.L.R.B. 1971)

HARDWARE MUTUAL CASUALTY CO.
Hardware Mutual Casualty Company and Francis P.
Hopkins. Case 1-CA-7291
June 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On April 14, 1971, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the unfair
labor practice alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the
Decision and a supporting brief and Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the cross-exceptions
and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before me on February
25, 1971, at Boston , Massachusetts , on complaint of the Gen-
eral Counsel against Hardware Mutual Casualty Company,
herein called the Respondent or the Company. The sole ques-
tion of the case is whether the Respondent discharged Francis
P. Hopkins, the Charging Party, in violation of Section
8(a)(3) of the Act. Briefs were filed by the General Counsel
and the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
191 NLRB No. 141
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
709
Hardware Mutual Casualty Company, a corporation or-
ganized under the laws of the State of Wisconsin, is licensed
to do and carries on a regular insurance business operation
in a number of States, selling, underwriting, and servicing
insurance policies. It maintains and operates a Regional
Office in Boston, Massachusetts. During the calendar year
1970, the Respondent sold insurance of a gross value in excess
of $500,000; during the same period it received in excess of
$50,000 from sales transacted in States other than the Com-
monwealth of Massachusetts. I find that the Respondent is
engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to exercise jurisdiction
herein.
II THE LABOR ORGANIZATION INVOLVED
I find that Communications Workers of America, AFL-
CIO, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The ultimate question to be answered in this case is
whether the record in its entirety warrants a finding that
Hopkins, 6 years an employee of the Respondent, was dis-
charged on September 22, 1970, because of his activities in
favor of the Union and therefore in violation of Section
8(a)(3) of the Statute. The government proved the face of
Hopkins' union activities, the Company's knowledge about it,
and the circumstances of the sudden dismissal without ad-
vance warning or notice. The facts of what happened at the
time of the critical events are not seriously in dispute. The
Respondent denies any illegal motivation in its action. In
affirmative defense it contends, and offered evidence in sup-
port of the assertion, that the man was released for just cause.
While decision on the question whether or not Hopkins
was in fact discharged because of his conduct on September
21 and 22, 1970, appears as in itself a major, factual issue, it
is not the heart matter of the case. For reasons set out below,
I find the evidence insufficient to prove that in fact he was
released for the reason advanced by the Respondent. I am not
persuaded he was discharged because of what happened that
day. Whenever a competent and otherwise desirable em-
ployee with years of service is suddenly cut off, without no-
tice, and the employer's ostensible reason is unconvincing, a
suspicion arises with respect to its true objective. And the
suspicion becomes greater when the employee is shown to
have been a union protagonist within the Company's knowl-
edge. It does not follow, however, in such circumstances,
either as a matter of law or of absolute logic, that the real
reason of necessity was to further an antiunion animus. The
burden of positive proof to show an unlawful purpose rests
always upon the General Counsel, whose duty it is to estab-
lish the conclusionary assertion of improper conduct alleged
in the complaint. And as has been stated too often to justify
extended discourse, the commission of any unfair labor prac-
tice under this Statute must be proved "by a preponderance
of the substantial evidence on the record as a whole." I am
of the opinion that in this case that burden has not been
sufficiently satisfied.
Hopkins' Union Activities
The Union's organizational campaign took place in the
spring of 1969. Hopkins signed a union card, went to union
meetings, solicited others to sign--at their homes, or his, at
the Company's offices, even in the presence of management.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An election took place in June of that year, and of the approx-
imately 80 employees in the unit, 40 voted in favor of and 38
against union representation. The Union was certified as bar-
gaining agent in August. In July, still in 1969, four union
officers were elected-Edward Pasquina, president; Donald
McAdam, vice president John O'Malley, treasurer; and Hop-
kins, secretary.
Hopkins testified there was a strike from October 28 to 31,
1969; how extensive the record does not show. He said he
himself did not picket and did not strike. There was a series
of bargaining sessions between a union committee and man-
agement, about 12. Hopkins was present only at the first. In
May 1970 'he attended two grievance committee meetings
concerned with the transfer of an employee. And in June 1970
he requested a change in his vacation arrangements so that
he could attend an out-of-town convention of the Union, with
the Company agreeing to the change knowing where he was
planning to go.
There were further attempts by the parties to come to
terms in 1970, they failed, and a decertification petition was
filed with the Board. The Union then disclaimed in writing,
its certification was revoked on September 3, and all further
union activities among the employees appear to have died.
Discharge and Affirmative Defense
Hopkins was a claims examiner working in the field; his job
was to investigate claims and to attempt to settle them as
quickly and as economically as possible. He telephoned into
the office every afternoon and spent 1 day every 2 weeks
inside at his desk working on necessary papers and record
files. Assignment of new claims for him to work on normally
went to him by mail, but some were given to him by telephone
when he called in. These telephone assignments are rushed to
the attention of outside investigators in this manner because
they are believed to involve "unrepresented claimants ," i.e.,
persons who have not yet retained representatives, lawyers,
and so on, with the thought that if the claimant is contacted
quickly a settlement might be effectuated before third parties
get into the picture.
In keeping with the system, Hopkins telephoned in about
3 p.m. on September 21. The girl said she had some messages
for him and a telephone assignment . He accepted the mes-
sages and told the girl he would be in the office the next day
and to hold the assignment until he arrived in the morning.
A big fuss was made at the hearing over the question whether
or not Hopkins "refused" to accept the assignment on the
telephone. The bickering that went on among the witnesses
quarreling about what constitutes a "refusal" was an irrele-
vant distraction from the reality of what happened. It was his
duty, as Hopkins conceded, to accept the assignment then
and there. Clearly he did not. At one point he testified he
"interrupted" Jennings, the correspondence telephone girl,
when she started to talk about what was in his bin for him.
Hopkins then said Jennings told him "do you want the tele-
phone assignment now ... ?" and that he answered "I'll get
it in the morning." Jennings denied she "asked" him did he
want it, and testified only she told him it was there and he
said "keep the phone assignment in the bin and he would be
in in the morning and take care of it then." Of course I believe
her. She had no authority to give the adjuster a choice in the
matter, Hopkins knew he was supposed to accept it immedi-
ately, and however the matter be phrased the fact is he did
not accept it. It was a violation of the practice and the rule
in effect.
Hopkins arrived in his office the next day shortly after 9
o'clock, more than 30 minutes later than usual because he
had to take his company car to the garage for servicing. He
started his ordinary desk work and in about 10 minutes
Thomas Coughlin, his supervisor, looked in at the door to the
room to ask did Hopkins have the phone assignment. At the
hearing Coughlin put it differently; as he recalled he told the
employee "to handle that file that was in his box right away."
Whatever the supervisor said, Hopkins' answer was he would
do it soon. Within 10 minutes Coughlin was back in the
doorway; Hopkins had not left his desk. Again, as to the
precise words used by each there is a variance between the
testimony of the two men, but Hopkins' version alone gives
the necessary flavor of what happened., The superior: "Frank,
are you going to do anything about this phone assignment
and when?" "Yes, I am. I am- on my coffee break now ,and
as soon as I finish I 'll get right on it." Hopkins continued to
testify that he was at that moment carrying on some social
chitchat with another employee at a nearby desk, that when
he was through with that he' went downstairs-10 floors be-
low-to have coffee, and that when he returned to his room
he went to the bin and started studying the claim file that
constituted the phone assignment in question. Without fur-
ther delay he twice telephoned the claimant but no one was
at home.
All this before 10:30 or so, when Coughlin returned to the
room and ordered Hopkins to come to the personnel office
later in the morning, where the usual acrimony that charac-
terizes discharge conversations took place. What had hap-
pened had happened, and no amount of haranguing between
them then could change one iota of the immediate past.
Coughlin accused Hopkins of having "refused" to accept an
assignment over the phone, of violating a fixed rule, of being
insubordinate that morning in the way he talked to his su-
perior. Hopkins denied all this, disclaimed any intention of
being disrespectful. Within the hour he was discharged, with
a quickly prepared written notice reading:
This is to advise you that you are being separated from
Hardware Mutual Casualty Company with 2 weeks pay
because of your refusal to obey a standing order on
September 21, 1970 when you would not accept an as-
signment from Claims Correspondent, Patricia Jen-
nings, involving an unrepresented Bodily Injury claim-
ant, and because of your further failure to comply with
dispatch with my orders to expedite handling of this case
on September 22, 1970.
In an effort to make Hopkins' failure to accept the tele-
phone assignment on the 21st appear as a more serious offense
than in reality it was, the Respondent offered a number of
documents-company prepared instruction sheets for em-
ployees-and oral testimony of several management repre-
sentatives, intended to prove that in the case of any claim
involving unrepresented claimants-and phone assignments
almost always are such-it is an absolute rule that the inves-
tigator or adjuster must make contact with the claimant "the
same day" he receives the assignment, or "promptly," or in
"lightning" fashion. Among the form exhibits received in
evidence are copies of a "24-hour contact report," which all
employees must fill in and file to show that a personal contact
was made within 24 hours and exactly when. The importance
of filing this form is stressed again and again in the various
instructions put in the hands of the investigators. If in fact the
employee has no choice but to contact the claimant, or at least
make his best effort to communicate with him "on the same
day" he receives the assignment, Hopkins' failure to accept
one on the 21st-whether or not called a refusal-would
seem to be a very grave dereliction indeed There is no gain-
saying the persuasive logic in the explanation offered by one
company supervisor after another of how much is to be
gained by reaching a claimant before he falls into the hands
of a personal representative-lawyer or not. For the least the
insurance company stands to be spared the additional cost of
HARDWARE MUTUAL CASUALTY CO
the representative, even paying the full loss suffered by the
claimant himself.
But no amount of repetition of the value of quick action
can serve to prove the existence of a "same day or else" rule.
Nor does the assertion become more persuasive because
Coughlin testified that in his mind "prompt action" means
"same day." Four or five separate instruction sheets, or-
dinarily placed in the hands of the adjusters for their working
kits, each at least once reminds them of the "24-hour contact
report," but none states clearly that contact must be made the
same day and only the report to the office within 24 hours.
One 4-page statement of general instructions does explain
forcefully the value of "same day" contact in unrepresented
claims, and urges upon all adjusters the desirability of doing
this if at all possible. Hopkins admitted he was aware of the
"substance" of these instructions. There nevertheless remains
an ambiguity on the pinpointed question in the testimony of
the witnesses. Thus, Fred Orlosk, a claims manager: "The
24-hour contact report came about only to confirm-and I
say the numbers "24" were put on there only to confirm-
that you made the contact on the date that you received it or
made a reasonable honest attempt."
The greatest doubt upon this contention that all employees
are absolutely required to make contact "the same day" arises
from the testimony of an investigator called by the Company
itself in support. Donald McAdam, 12 years a regular em-
ployee with the Respondent, said: "You are expected to make
a call on that as soon as you reasonably can.... But you are
not penalized if you don't get it the first day." There is record
evidence he was telling the true story. A random sample of
32 claims closed during September and October 1970 listed
on a document prepared by the company itself shows that in
eight of the cases contact was not made "the same day." And
Robert Savage, the general claims manager over all the inves-
tigators and supervisors, said at the hearing that while there
have been discharges without advance notice, he knew of no
one who had been dismissed or even disciplined because of
the late contacts made as reflected on the exhibit. And then
he added that "normally" a man who failed to make contact
within 24 hours would be warned, and not discharged.
Apart from the exaggeration by the various supervisors as
to what the proper contact rule did call for, the fact remains
Hopkins positively violated the rule that gave him no choice
but to accept the telephone assignment the moment he was
told it was there for him. I also think it of little consequence
exactly what words Coughlin used the second time he stepped
into the doorway to urge Hopkins to his duty. Hopkins would
have it that when he said he was going to have coffee first, the
supervisor answered: "Okay." Coughlin denied this, and tes-
tified he told the man to "do it right away," and that when
Hopkins spoke of having coffee first, he added "do it now."
One employee who chanced to be passing by said she heard
Coughlin say this, in a stern voice. Another, Kane, who was
working at a nearby desk inside the room, corroborated Hop-
kins on the minor point, but conceded the supervisor sounded
angry.
If the word "insubordination," used by Coughlin at the
time, seems strained in the circumstances, perhaps a slight
"arrogance" would be more fitting, or maybe just a little too
much "independence." Unless the relationship between su-
perior and subordinate today has lost all meaning, immediate
discharge because of Hopkins' attitude that morning could
not be called an irrational act, if in fact that was why Cough-
lin dismissed him. The difficulty with the entire assertion of
discharge for cause is that, considering other specifically per-
tinent factors, it is simply unconvincing. Coughlin made
much of Hopkins' failure to accept the phone assignment the
day before. He even testified that Maguire, the line super-
711
visor, had told him about the "refusal" the same day it had
happened, and that he had promised Maguire, apparently his
own supervisor, he would speak to Hopkins about it the next
day. But he did not. Twice he reminded the man of the claim,
but never mentioned what he now asserts to have been the
main dereliction. It could not have been so serious a matter
in Coughlin's opinion then. A greater weakness in the
affirmative defense, however, is the fact of Hopkins' excellent
work performance. His personnel record shows he was many
times, over the years, evaluated in complimentary phrases by
the supervisors; in a 6-year period he enjoyed one raise after
another; after hours he acquired a complete legal education,
the Company paying part of its cost and complimenting him
on his success only the year before the discharge. No need for
commenting that a finished lawyer is of necessity a more
valuable investigator than others lacking that special training.
With these the facts, one must ask why was not Hopkins, so
long a desirable employee, given the courtesy of a warning
like many others before him, or perhaps reprimanded with a
lesser form of discipline. With full appreciation of the impor-
tance of "prompt" contact with unrepresented claimants in
the insurance business, such summary discharge of a valuable
longtime employee is not the normal thing.
This is not to say Coughlin may not in fact have so resented
Hopkins' calm reference to his coffee time privilege at that
moment as to have reacted in the extreme with the sudden
dismissal. It means only that on this total record I do not
believe this was the Respondent's real reason for the dis-
charge. I also have in mind Coughlin's admission that he
could recall no other occasion when an employee was ter-
minated for reasons similar to Hopkins', and Orlosk's tes-
timony that in other cases when investigators did not make
"same day" contact, he only "indicated they were subject to
a disciplinary action if they do not follow the adjuster mini-
mum standards."
Conclusion
The General Counsel's Burden of Proof
My evaluation of the evidence on this point does not dis-
pose of the case. A respondent who advances an affirmative
defense assumes a voluntary burden, it is not forced upon
him. If he fails, the case falls back upon the general allegation
of the complaint and the ever-primary burden resting upon
the Government. Failure of the defense contention may leave
a void, but, as stated above, does there remain sufficient posi-
tive proof of illegal motivation?
The only direct evidence of union animus in any represent-
ative of management is the testimony of Raymond Gorman,
another employee, that one day the previous September, a
year before the Hopkins discharge, Coughlin then his super-
visor, told him: "I am going to bust you to an adjuster and
I am going to bust this union." This was the month after the
Union was certified as a bargaining agent. Coughlin denied
making the antiunion statement. In this entire record, the
only other testimony on the subject of the Respondent's atti-
tude toward the employees' desire for collective bargaining is
Coughlin's admission that at the time of the election in 1969
there was a "fairly intense campaign on both sides," and that
he, at least, was "opposed" to the Union. An employer has
a right to be opposed to unionism, and nothing tangible is
proved by the statement that the Company, like the Union,
pursued its privileged view in the matter "intensely."
Even believing Coughlin threatened "to bust" the Union in
1969, a year is a long time to hold a man to a single expression
of illegal intent. However minor the incident, it is also a fact
that in June of 1970 the Company did cooperate with Hop-
kin's desire to attend a union convention. It could have seized
upon the occasion to curb his activities, pro tanto, at least; it
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not. And by September, the Union had formally disa-
vowed any claim to representation. There was less reason,
therefore, for the Respondent to resort to harsh steps toward
a valuable employee in order to lessen a danger that had
virtually ceased to exist. Moreover, Hopkins was not shown
to have been a particularly outstanding union protagonist; he
was only 1 of 40 who voted in favor of the Union. As to how
many others also signed cards, solicited, went to union meet-
ings, etc., the record is silent.
There is a suggestion in the General Counsel's argument
that the case against the Respondent and in favor of Hopkins
is strengthened by the fact two others of the original four
officers of the Union are also gone from the Company's em-
ployment-Pasquina and O'Malley, both of whom ceased
working before September 1970. Absent a complaint and
sufficient supporting proof that their separation was the result
of unlawful discrimination in employment by the Respond-
ent, this fact no more adds to the burden of proof resting upon
the General Counsel than does the fact that he four times on
the record referred to complimentary remarks by company
supervisors as "accolades" upon Hopkins.'
I conclude that the record in its entirety does not prove
illegal discrimination in employment against Hopkins by the
Respondent, and I shall therefore recommend dismissal of
the complaint.
' As defined in The Winston Dictionary, College Edition, 1945• accolade
-the salutation used in admitting to knighthood, formerly a kiss or em-
brace, now a tap on the shoulder with the flat of the sword or, as in France,
when an award of honor is given, a kiss on each cheek.