John Hancock Mutual Life Insurance Co.

National Labor Relations Board - Board Decisions

Nov 17, 1950

92 N.L.R.B. 122 (N.L.R.B. 1950)

In the Matter of JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
and SAMUEL KOHEN , AN' INDIVIDUAL
Case No. 2-CA-6920.Decided November 17, 1950
DECISION AND ORDER
On April 19, 1950, Trial Examiner John H. Eadie issued his Inter
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices alleged!
in the complaint, and recommending that it cease and desist therefrom:
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain.other alleged unfair
labor practices. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed- the rulings of the Trial Examiner and
finds that no projudicial error was committeed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and- hereby
-adopts the findings, conclusions, and recommendations of the-Trial
Examiner, with the following additions and modifications.- A:
1. We-agree with the Trial Examiner's conclusion that on Febru-
ary 12, 1949, the -Respondent refused to employ !Cohen as an agent
because he had testified in a Board proceeding, and thereby discrimi-
nated againt him in violation of Section 8 (a) (4) of the Act. In
rejecting, as did the Trial Examiner, the Respondent's contention that
Kohen was denied his old rank-and-file job because he lacked the req-
uisite qualifications for that position, we rely on the following facts
shown in the record, in addition to those set forth in the Intermediate
Report :
Between 1937 and 1944, while Kohen worked as an agent for the
Respondent, about 30 other agents were similarly employed in the
same district office, District number 5, with him. He testified without
contradiction, and like the Trial Examiner we credit his testimony,
'As the record and exceptions and briefs fully present the positions of the parties, the
Respondent ' s request for oral argument is hereby denied.
92 NLRB No. 27.
122
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY 123
that from 1941 through 1944-the years immediately preceding. his
promotion to assistant manager-he was one of only 8 or 10 agents
in his office who received the Maxima Peragenda award, giveli for
general performance. He also testified, and the Respondent's records
show, that in the years 1942, 1943, and 1944 he was one of only 2 'or
3 agents who won the Century Club award, based on the sale of
ordinary life, as distinguished from industrial, insurance. The record
also shows, and we find, contrary to the Trial Examiner's Report, that
in 1944, on the occasion of Kohen's promotion, the Respondent's New
York regional manager, Butts, concurred in the favorable recom-
mendation of Kohen's immediate superior, Office Manager Winkel.2
. The Respondent pointed to only one weakness in Kohen's earlier
record as the basis of its rejection of his application for an agent's
job: Kohen's production of industrial (weekly premium) insurance
'was•below,average before 1944, when he brought it above average. The
Respondent asserts that this was a critical phase of the agent's duties.
However, the Respondent's efficiency rating chart for agents shows
that industrial work and ordinary life work rank of equal importance,
each having an equivalent of 3 points. Nor is the paramount im-
portance 'of industrial insurance necessarily established by the fact
that' 70 percent of the Respondent's business is done through the dis-
trict offices, for the record' also shows that in District number 5, at
least, approximately. three-fourths of the business-in dollar value=
is in ordinary life' and only one-fourth is in industrial insurance.
We also deem it significant in this respect that of the District number
5-agents who -ranked below Kohen in industrial work in 1944. and for
several earlier years, 10 or 12 are still employed by the Respondent'.
Whether these agents were retained despite their industrial work
standing, or because they later improved in this work, the Respond=
ent could not know whether Kohen, as an agent, would not have been
equally satisfactory. In view of these facts, and on the record as a
whole, we .are convinced that the Respondent did not deny Kohen
reemployment as an agent because it believed him to be unfit for that
job.
We are equally persuaded that the reason for its action, as alleged
in the complaint, was Kohen's earlier activity in testifying at a Board
hearing. Manager Winkel's statements to Kohen , while rejecting
the latter's request for a job, leave no doubt as to the Respondent's
discriminatory motive.. As set forth in' the Intermediate Report,
2 Butts testified both that he had objected to the promotion and that he had concurred
in Winkel's recommendation . However, the record contains a letter written at the time
by the Respondent's manager of district agents to Kohen, stating that Butts concurred in'
the action.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winkel said that Kohen "had made him look silly in the testimony,"
and that the higher officers of the Company had said that they could
have no respect for him if he did not get rid of Kohen. Kohen's
testimony, attributing these statements to Winkel, is undenied.3
We find no merit in the Respondent's contention that because
Winkel was ill and unable to appear in court, Kohen's testimony as
to this conversation should not be credited. For aught that appears
in the record,' Winkel's testimony could have been taken at his home,
an opportunity which the General Counsel offered with the Trial
Examiner's apparent agreement, but which the Respondent declined.
No request was made to offer Winkel's testimony by deposition.
Finally, the Trial Examiner offered to adjourn the. hearing to afford
the Respondent further opportunity to present Winkel's testimony.
Again, the Respondent, declined. the offer.5 Under these circumstances,
we perceive no persuasive reason for discrediting Kohen, whose credi-
bility on other matters satisfies our usual appraisal, and whose testi-
mony, after withstanding the test of the Trial Examiner's personal
observation of the witness, was credited by him s
2. The complaint alleges that by refusing to hire Kohen as an agent
the Respondent also violated Section 8 (a) (3) of the Act. The Trial
Examiner found that the record did not support this allegation,'and
the General Counsel excepts to this finding. As the policies of the Act
will as well be effectuated by a remedial order based upon a limited
finding that the Respondent in this case violated Section 8 (a) (4)
of the Act, we find it unnecessary to determine whether or not the
refusal to hire Kohen also violated Section 8 (a) (3). Accordingly,
we do not adopt the Trial Examiner's findings and recommendation
respecting the 8 (a) (3) allegation, but we shall, nevertheless, dismiss
the complaint to that extent.
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer Kohen immediate employment as an insurance
3Kohen ' s failure to mention Winkel ' s statement to Butts and Mahr when complaining
about his treatment by the Respondent is not particularly significant , in view of the fact
that Kohen filed his charge with the Board in this case on the same day he conferred with
Butts and some time before his letter to Mahr.
' The record contains only a brief statement , by Winkel 's physician , that Winkel 's condi-
tion prevented his appearance in court. We deem untimely , and have therefore not con-
sidered, further statements relative to Winkel 's condition submitted after issuance of
the Intermediate Report. In any event , these statements relate to his state of health
during the period following the date of the hearing.
At the close of the Respondent' s. case, its attorney stated : "I think we would waive
calling Mr . Winkel, insofar as we are concerned."
6 See Quarles Manufacturing Company, 83 NLRB 697.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY 125
agent in its Bronx, New York, District number 5 office, with back
pay from the date of the discrimination against him. Since the issu-
ance_of the Trial Examiner's Intermediate Report, however, the Board
has adopted a method of computing back pay different from that
prescribed by the Trial Examiner.7 Consistent with the new policy,
we shall order that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from
the Respondent's discriminatory action to the date of a proper offer
of employment. The quarterly periods, hereinafter called "quarters,"
shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to
that Which-the employee would normally have earned for each quarter
or portion thereof, less his net earnings,8 if any, in other employment
during that period. Earnings in one particular quarter shall have
no effect upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due .9
ORDER
Upon the entire record of the case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, John
Hancock Mutual Life Insurance Company, New York City, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from :
Discriminating with regard to the hire and tenure of employment
of any employee because he has filed charges or given testimony un-
der the Act, or in any other manner interfering with the rights of
employees to file and prosecute charges and to give testimony under
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the.policies of the Act:
(a) Offer Samuel Kohen immediate employment as an agent in its
District number 5, Bronx, office;
F. W. Woolworth Company, 90 NLRB 289.
By "net earnings " is meant earnings less expenses , such as for transportktion, room,
and board , incurred by an employee in connection with obtaining work and working else-
where , which would not have been incurred but for this unlawful discrimination and
the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal, state , county, municipal,
or other work-relief projects shall be considered earnings. Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
5F. W. Woolworth Company, supra.
126. DECISIONS: OF NATIONAL LABOR 'RELATIONS BOARD
,(b`) . Make whole Samuel .Koheri in the manner set forth in the see-.
tion.:entitled The Remedy, for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records, and reports, and all other
records necessary to analyze the amounts of back pay due and the.
right of employment under the terms of this Order;
(d) Post at its District number 5 office, Bronx, New York City,,
copies. of the notice attached to the Intermediate Report, marked
Appendix.10 Copies of said notice shall be furnished to the Respond-
ent by the Regional. Director for the Second Region, and shall, after
being duly signed by a representative of the said Respondent, • be
posted by it immediately upon. receipt thereof, and maintained by it
for a period of sixty (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 Respondent to
insure that said notices are not altered, defaced, or covered by any,
other material ;
Notify the Regional Director for_.the Second Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the, complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8
(a) (3) of the Act.
MEMBER REYNOLDS, dissenting :
As, my colleagues..have made' no finding relative to the 8. (a) (3)
allegation in this ease, I find no necessity for commenting on that
issue. I do not believe, however, that the evidence in this case sup-
ports a-finding that the Respondent violated Section 8. (a) (4) of the
Act. In.so concluding, I am not unmindful of the necessity of pro-
tecting to the limits of our power the complainants and witnesses
who appear before us. This section of the Act has, however, a specific.
and limited application.. The sole issue before .us is whether or not
the Respondent's refusal to employ Kohen was motivated by Kohen's
testimony in the prior representation proceeding before the Board:
The only evidence supporting the finding of the majority is the
statement of Kohen.that Winkel had told him that he (Kohen) had
10 Said notice , however , shall be, and it hereby is, amended by striking from line 3.
thereof the' words' "The recommendations of a. Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order." In the event that this order is enforced by
a decree of a United States Court of Appeals, there shall be inserted before the words,
"A Decision and Order," the words, "A Decree of'the United States Court of Appeals
Enforcing."
JOHN HAN COCK MUTUAL LIFE INSURANCE COMPANY 127
made him "look silly" at the hearing and that the superior officers of
the Respondent had told Winkel that they could have no respect,
for him if he-did not discharge Kohen. While such evidence,.even
in the face of Winkel's illness and consequent inability to appear at
the hearing, is admissible, such evidence must be carefully weighed.
As opposed to Kohen's self-serving and uncorroborated statement, of'
controlling significance, in my opinion, is the fact that in his appeals
to higher authority for reinstatement Kohen did not advert to Winkel's.
alleged statement to him concerning the reason 'for his. discharge.'
Neither in his appeal to Butts, Winkel's superior, nor in his letter to,
Mahr, Butts' superior, did he urge Winkel's statement as revealing the
motive for his discharge. It is incredible that an individual who has
been told that he is being unlawfully denied reemployment and who
relies on such a statement before this Board would make no reference
to such a statement in appealing to the officials of his former employer'
for reinstatement. Under the foregoing circumstances, I would find
that the General Counsel has not sustained the burden of the proof,
and I would dismiss the complaint in its entirety.
INTERMEDIATE REPORT
Mr. Bernard L. Balicer, for the General Counsel.
Oeland & Kuhn , by Mr. George W. Riley, of New York, N. Y., and Mr.
Lawrence B. Gilman, of Boston; Mass ., for the Respondent.
Mr. Walter Colleran, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Samuel Kohen, an individual, the
General Counsel of the National Labor Relations Board, respectively called
herein the General Counsel and the Board , by the Regional Director for the
Second Region ( New York, New York ), issued a complaint dated January 3,
1950, against John Hancock Mutual Life Insurance Company, herein called the
Respondent , alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (a) (1), (3), and (4)
and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the complaint, charges, and notice of hearing
were duly served upon the Respondent , the charging party, and Insurance Super-
visors Union No: 24221, AFL, herein called the Union.
With respect to the unfair labor practices, the complaint alleges that the Re-
spondent (1) on or about February 12, 1949, and thereafter refused to hire
Samuel Kohen as an insurance agent for the reason that he joined oe assisted
the Union, or engaged in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and for the further reason that
he gave testimony under the Act; and ( 2) by such . conduct interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
in-Section 7 of the Act.
128 DECISIONS. OF, NATIONAL LABOR RELATIONS BOARD
The Respondent filed an answer in which it admitted the jurisdictional alle-.
gations of the complaint, but denied the commission of any unfair labor prat.
tices.
Pursuant to notice, a hearing was held at New York, New York, from January
24 to 31, 1950, inclusive, before the undersigned Trial Examiner. The Generall-
Counsel, the Respondent, and the Union were represented by counsel. Full
opportunity to be heard, to examine and cross-examine witnesses and to intro-
duce evidence bearing on the issues was afforded all parties. At the close of the
whole "case, the General Counsel moved to conform the pleadings to the proof,
as to names, dates, and other minor variances. The motion was granted with-
out objection. Ruling was reserved on a motion of the Respondent to dismiss
the complaint for lack of proof. The motion to dismiss is disposed of as here-
inafter indicated.
None of the parties presented oral argument at the hearing. The General
Counsel and the Respondent have filed briefs with the undersigned. The Re-
spondent also filed proposed findings of fact and conclusions of law'
After the close of the hearing, the General Counsel and the Respondent made
separate motions to correct the transcript of the, record. Thereafter all parties
entered into a stipulation to correct the record as indicated in the motions, of
the General Counsel and the Respondent. Accordingly, it is ordered that the
record be and hereby is corrected so as to conform with said motions and stip-
ulation. The motions of the General Counsel and the Respondent and the stip-
ulations are received in evidence and marked as Trial Examiner's Exhibits Nos. 1,
2 and 3, respectively.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under and existing by virtue of
the laws of the Commonwealth of Massachusetts, with its principal or home
office in Boston, Massachusetts. It is engaged in the business of selling various
types of life insurance throughout the United States, Hawaii, Alaska, and Canada.
The Respondent has more than 200 district offices and approximately 50 general
agents in various cities of almost all the States of the United States, the District
of Columbia, and Hawaii. This proceeding is concerned only with the district
office located at 2449 Morris Avenue, New York, New York, herein called the
Bronx office. °
. The Respondent's operations are divided for administrative purposes into
3 departments : district agencies, general agencies, and group departments. A
director of agencies, located at the home office, is in charge of the district agency
department, which geographically, is divided into 10 regional territories, covering
the entire United States. The territories are in turn divided into numerous
districts, each containing a district office. The personnel of each district office
generally consists of a district manager, 4 to 6 assistant district managers,
, The Respondent's proposed findings of fact and conclusions of law are in the form
of a 'proposed Intermediate Report. There are four numbered conclusions of law at the end
thereof. Of these, the undersigned accepts those numbered "2" and "3," and rejects those
numbered "1" and "4." It is impractical to rule on the other findings and conclusions as
they are in the body of the proposed Intermediate Report and are not separately
enumerated.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY 129
approximately 45 agents , an office supervisor or cashier , and various clerical
employees.
. On December 31, 1948, the Respondent had more than S million policies in
force, with a total face amount of more than $6,000 ,000; and its policy holders,
who resided in all the States of the United States and in many foreign countries,
numbered approximately 8 million. On the same date the Respondent 's assets,
consisting in part of cash, bonds of the United States Government and its political
subdivisions , railroad equipment bonds, public utility bonds , industrial bonds,
stocks, notes secured by mortgages on real estate , real estate and loans to,policy
holders, amounted to more than $2,000,000 in value . During the year 1948,
the Respondent had available funds amounting to more than $161,500,000 in
value, and it invested daily an average of $466,000.
II. THE ORGANIZATION INVOLVED
Insurance Supervisors Union No. 24221 , AFL, is an organization whose mem-
bership is confined to assistant district managers of the Respondent. It was
the petitioner for certification in Case No . 2-R-7772,2 which was dismissed by
the Board for the reason that it was found that assistant district managers were
supervisors within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to hire Samuel Kohen as an insurance agent
The:Respondent`hi'red Kolieh as an`iusurance agent in June 1937 for the.Brons,
office. The district manager for the office was Walter Winkel . As an agent,
Kohen was under the immediate supervision of an assistant district manager.
An assistant district manager is assigned to work with a group of approxi-
mately seven agents, each of whom has a "debit," which consists of a group of
weekly premium policy holders , located in a specific part of the district. An
important part of an agent's duties is to solicit and service weekly premium or
industrial insurance ; and his compensation consists of a commission based, in
part, on the dollar amount of the debit , the lapses in the debit , and the writing
of new business . Agents also are paid commissions for the writing of ordinary
life insurance.
In November 1943, Winkel wrote a letter to Malcolm C. Young, director of
agencies , recommending that Kohen be promoted to assistant district manager.
In the letter he praised Kohen highly , citing various achievement awards earned
by him,3 and offered reasons for Kohen 's below average production of industrial
insurance. By letter dated December 2, 1943, Young rejected Winkel 's recom-
mendation for promotion because of Kohen's poor industrial record. However,
Kohen was promoted to assistant district manager on November 8, 1944, upon
the recommendation of Winkel and over the objection of Regional District
Manager Victor J. Butts.' In his letter of recommendation to Young, dated
2 John Hancock Mutual Life Insurance Company , 78 NLRB 1073.
3 Kohen earned a number of awards and citations from 1937 until 1946 , inclusive, such
as the $50 ,000 and $ 75,000 " Merit Class" awards , the "Century Club," and the "Maxima
Peragenda . b For the most part, these awards were made by the Respondent for the writing
of ordinary insurance.
d Butts also objected to Kohen's promotion in 1943. His objections to Kohen.were;based
on his poor industrial record.
129979-51-vol. 92-10
130DECISIONS- OF '.NATIONAL LABOR RELATIONS BOARD
.October 23, 1944, Winkel again stressed Kohen's achievement awards and called
.attention to the fact that his industrial production had increased.
Beginning in January 1947,'Kohen became active in the organization of the
-Union among the Respondent ' s assistant district managers . He was instru-
mental in securing a charter from the American Federation of Labor and became
the president and most active member of the Union, soliciting members among
the assistant district managers and arranging meetings of the Union.
Concerning events on February 7, 1947, Kohen was questioned and testified
without contradiction as follows :
A. On that morning, it was a Friday morning, around ten o'clock, Mr.
Winkel called me to his office and told me not to leave the office until he
had seen me later about a very important matter. I went out of his office
and then I waited around for about two hours.
Q. What did you observe during that two-hour period?
A. The other three assistant managers, Mr. Milton Kerl, Mr. Joseph Weiss,
and Mr. Bernard Lanigan, were called in individually into Mr. Winkel's
.office. When they came out they. had made arrangements with me to meet
them. after. I had. seen Mr. Winkel, and we: made arrangements to meet
at Bickford's restaurant on the Concourse at 188th Street.
Q. For what purpose?
A. To discuss what transpired that morning in the office, what Mr. Winkel
was going to tell me and what they. discussed with Mr. Winkel.
Later, around 12 o'clock, !Mr: Winkel called me into his office.
Q. Alone? -
*A. Yes, sir. He told me that he had a very important matter to discuss
with me about my case.
Q. Did he tell you why he had kept you waiting for that two-hour period?
A. Yes. He apologized , he said he kept me waiting because . he had to
wait and hear word of instructions from the 42nd Street office of the
.John Hancock Company, the regional district office.
Q. With respect to what?..
A. Instructions as to.my case and my union activity. He then told me.
-that the company and he both knew of my organizing the Insurance Super-
visors' Union No. 24221; that I had arranged for. and hired a meeting room
at the Concourse Plaza, until a .few weeks before, to hold a meeting of the
union; that I had paid for the room and for the meeting that was to be
held the following day on February 8, 1948, at the Capitol Hotel ; that Mr.
Robert H. Brennan, another assistant district manager in another office,
had mimeographed the meeting notices for the union for this meeting to
be held on Saturday, February 8th, and he told me that, and that the
company knew everything that was going on and that he advised me, for.
my best interests, my.resigning from the union.
He said, "I can't promise you that you will have a job with the company,
but I will do my best." But he advised me to resign from the union- right-
then and there.
5 Winkel was not called by the Respondent as a witness . A statement , signed by a doctor, ,
to the effect that Winkel would be "unable to appear in court for several monthq" due to a -
"very extensive operation ," was received in evidence . Although the undersigned indicated
that any necessary adjournment for the purpose- of taking Winkel 's testimony would be
granted, the Respondent did not so move at the close of the hearing.
JOHNIANCOCK MUTUAL 'LIFE INSURANCE COMPANY 131
I told him that I Couldn ' t think of it at the moment , but I 'would think
it over , and call him back that afternoon.
The next day Kohen told Winkel that he would not resign from the Union.
On April 10 , 1947, the Union filed its petition in Case No. 2-R-7772. A hearing
in the proceeding was held in January and February 1948. Kohen testified
at that hearing as a witness for. the Union , and assisted the counsel for the
Union in the cross-examination of Butts and Frank B. Maher , the then director
of agencies , who were the principal witnesses for the Respondent
e The Board
issued its decision in the matter on August 18, 194S, holding that assistant
district managers were supervisors within the meaning of the Act.
On September 21, 1948, Butts wrote a letter to Winkel , as follows :
You have been furnished with a . bulletin showing the standing of your
district as well as the rank of each of your Assistant District Managers
in your area.
We particularly call your attention to your Assistant District Manager
Kohen who ranks second from last among all Assistants in the New York
area who have been . serving in the position of Assistant District Manager
for the full .year. The number of points credited for the production of his
staff totals 103.59 whereas the' leading Assistant in the area has 260.09.
We suggest that you have a serious talk with Mr. Kohen and formulate
plans to correct this unfavorable situation.
After you have decided on a plan please write me in detail.
Winkel spoke to Kohen on September 23 concerning his, poor production.' At
Winkel's request , Kohen presented . to him the following letter, dated September
27, 1948: 8
In reference to our conversation of Sept. 23rd , I wish : to state that I have
given it the utmost consideration . The. seriousness of the situation has
been graphically stated to me and I fully understand it.
I had given considerable thought to this matter prior to our conversation
and will now redouble my efforts to correct the situation . This matter has
been discussed fully with my staff and plans have been made to improve our
record.
I have prescribed a definite plan of prospecting for my staff and intend
to follow it through to completion.
I• am sure that you will note a great deal of improvement in the near
future.
By letter dated September 30, Winkel advised Butts that he had talked to
Kohen about his unfavorable record ; and informed him that unless a "decided
improvement" took place , it would "be advisable to make a change in the near
future ." Butts then wrote to Maher on October 1, recommending the removal
of Kohen "in the near future." Maher sent Winkel a letter , dated O•2tober 20,
in which he reviewed Kohen's poor production record and stated in conclusion,
U The Respondent contended in the above matter that assistant district managers were
supervisors . within the meaning of the Act. The testimony of Butts and Maher stressed
the supervisory nature of the assistant district manager ' s position . Kohen ' s testimony, on
the other hand , was to the effect that the work of an assistant district manager was
nonsupervisory.
The undisputed evidence discloses that Kohen 's industrial work did hot come up to
standard for any year after 1944, and, in fact , got progressively worse.
s Kohen testified that it was customary for the district manager to request such letters:
132 -DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
"We think the. time has come when you can no longer permit this condition to
exist and we invite your correspondence, therefore, in order that we may be
completely informed of what you may have in mind as a corrective measure.
In answer to Maher's letter, Winkel wrote to him on October 27, 1948, recom-
mending not only that Kohen be removed from the position of assistant district
manager but also that "it would be most advisable that his services with our-
Company be terminated."
After receiving a letter from Maher, dated January 14, 1949, in which the
termination recommendation was approved, Winkel notified Kohen on January
27 of his discharge effective February 12. Kohen testified without contradic-
tion that when he asked Winkel the reason for his discharge, Winkel stated,.
"Well officially, for non-production." Concerning a conversation with Winkel
the next day, Kohen testified as follows : °
The following day I went back into his Office 'and I asked him again why-
I was being fired, and he told me, "Well I had testified at the hearing the
year before, and the home office had told him that I had made him .look
silly in the testimony, and that he could come up to the home office and..
look at the record and see for himself, and that they had told him that it
would be best, that they could have no respect for him if he did not get
rid of me.
I then asked him to see the letter of dismissal, the reason why, and I
asked to see a letter dismissing me, and he said, "Well," he couldn't show
me any letter of dismissal.
I then asked him why I couldn't be hired as an agent, being there were two
vacancies open in, the office at the time. I asked him why, and he said,
"Well, he couldn't give me any reason why, only that the company didn't
want me to work for them as an employee.
On February 8 and again on or about March 3, Kohen requested the Respond-
ent to rehire him as-an agent. Although there were vacancies in the Bronx
office at the time, the Respondent refused and has continued to refuse to rehire
Kohen as an agent.
B. Conclusions
The complaint alleges that the Respondent discriminated against Kohen by
its failure and refusal to hire Kohen as an insurance agent because of his
adherence to the Union and because he engaged "in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection and
for the further reason that he gave testimony under the Act." Further, the
General Counsel, in effect, urges- in his brief :that-the. discharge of. Kohen may
be found to be violative of Section 8 (a) (4) of the Act, since the matter was
fully litigated at the hearing. In support of this contention the General
Counsel cites the Board's brief to the United States Court of Appeals for the
Second Circuit in N. L. R. B. v. Universal Camera Corporation.1° The Respondent
contends, in substance, that the evidence shows that Kohen was refused em-
ployment as an insurance agent because of his poor industrial record; and that,
as a matter of law, he was not protected by the provisions of the Act since he
was a supervisor and not an employee.
° Kohen also testified to a conversation with Assistant District Manager Weiss on'
November 11, 1948. This testimony was received over the Respondent's objection. Upon
reconsideration, I do not believe that it comes within an exception to the hearsay rule, as
contended by the General Counsel, .and: it is therefore rejected.
10 179 F. 2d 749 (C. A. 2), enforcing 79 NLRB 379.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY 133
I find that the Respondent on and after February 12, 1949, refused to hire
xohen because he gave testimony under the Act, in violation of Section 8 (a) (4)
thereof. The , Respondent 's contention that Kohen was not an employee is re-
jected . Section 8 (a) (4) of the Act.provides : "It shall be an unfair labor
.practice for an employer-to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under that Act." There
is no dispute that Kohen was a supervisor at the time of his discharge. How-
-ever, when he applied for the position of insurance agent, he became an appli-
cant for employment and', as such , again became an employee ." As to the factual
findings, there is substantial and credible evidence which shows that the Respond-
ent's motives were discriminatory . It was Winkel 's recommendation not to
aehire Kohen as an agent ; which the Respondent followed ; and his conversa-
tion with Kohen on January 28 clearly shows 'that the reason for the refusal
to hire Kohen as an insurance agent was his testimony in the representation
proceeding . Kohen's testimony concerning this and other conversations with
Winkel stands uncontradicted in the record .12 It is not disputed that Kohen's
weekly premium or industrial production-was below standard , as an individual
and as assistant district manager. The record reveals that this situation pre-
vailed for a number of years, both before and after his promotion . However,
he excelled in other types of insurance ; and the Respondent saw fit to promote
him and award him various achievement awards until as late as 1946. Beyond
.question the production of industrial insurance was stressed by the Respondent,
particularly with respect to the assistant district managers . It was the main
part of their job to see , to it that the debits of the agents under them were main-
tained in a satisfactory condition . Although at the hearing the Respondent
attempted to minimize the importance of production of other types of insurance
by its agents , the record reveals the contrary . The various achievement awards
and Winkel 's letters recommending Kohen 's promotion clearly show that such
production rated high in importance in evaluating the merits of an insurance
agent.
. Moreover , the evidence reveals that when an assistant district manager's per-
formance was unsatisfactory , it was customary to demote him to an agent
rather than discharge him. Of the 80 assistant district managers demoted dur-
ing the period of 3 years before the hearing herein , only 12 were discharged.
These 12 were discharged for such reasons as personal misconduct , account dis-
crepancies; lack of interest , "lacked capacity ," "complete non-success," "failing in
supervisory responsibilities" and "poor performance ." The record does not dis-
close whether any of these cases were comparable to Kohen's. Certainly, in view
of his outstanding production in other types of insurance , they do not appear
to fit his case.
The General Counsel's contention that Kohen's discharge was violative of the
Act is rejected . The discharge was not alleged as a violation in the complaint,
.and the General Counsel did not make this claim at the hearing. If Winkel
bad appeared as a witness , there might be some merit to the General Counsel's
contention . If the Respondent had been aware that the discharge was at issue,
it may have sought an adjournment in order to have Winkel available as a witness.
As a matter of defense , insofar as the refusal to hire allegation is concerned,
n Phelps Dodge Corporation v. N. L. R . B., 313 U. S . 177 ; N . L. R.' B. V. Waumbee Mills,
Inc., 114 F . 2d 226 ( C. A. 1) ; Briggs Manufacturing Company, 75 NLRB 569.
12As related above , the undersigned at the hearing afforded the Respondent every
opportunity to call Winkel as a witness.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
the Respondent may have determined to rely upon the law alone. For these
reasons I do not agree that the discharge was fully litigated. Moreover, dictum
in the decision of the Court of Appeals in the Universal Camera case" indicates
that discharge of a supervisor. for giving testimony in a proceeding before the
Board would not be held to be violative of Section 8 (a) (4) of the Act.
The General Counsel's contention that the refusal to hire also constituted
a violation of Section 8. (a) (3) of the Act is also rejected. The Union is not
a labor organization within the meaning of the Act since its membership is con-
fined to-supervisors of the Respondent. Accordingly, it could not be found that
the Respondent failed and refused to hire Kohen in order to discourage mem-
bership in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, 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
' Having found that the Respondent has engaged in certain unfair labor prac-
"tices, it will be'recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent on and after February 12, 1949, dis-
criminated against Samuel Kohen because he gave testimony under the Act.
Accordingly, it will be recommended that the Respondent offer him immediate
'employment as an insurance agent at its Bronx office, and make him whole for any
loss of pay be has suffered through the Respondent's discrimination against Dim.
by payment to him, of a sum of money equal to that which he normally would
have earned as wages while in'the°Respondent's employ-from the date of the dis-
crimination to the date of the Respondent's offer of employment, less his net
earnings during said period.
Because of the Respondent's unlawful conduct it appears that, unless enjoined,
danger of the commission by the -Respondent in the future of like and related
unfair labor practices is to- be anticipated from the Respondent's conduct in
-the past.. In order'to effectuate the policies of the 'Act, it will be recommended
"that the Respondent cease and desist from discriminating. in regard to the hire
'and tenure "of employment of any employee because he has filed charges or
given testimony under the Act, or in any other manner interfering with the
Tights of employees to file and'proseeute charges and to give'testimony under
the Act.
Upon the .basis of -the above findings of fact and: upon the entire record in
the case, the Trial Examiner makes the following:
""CONCLUSIONS OF LAW
1. Insurance Supervisors Union No. 24221, AFL, is not a labor organization
within the meaning of Section 2 (5.) of the-Act. -
11 See footnote 10, supra.
JOHN. HANCOCK MUTUAL LIFE INSURANCE COMPANY 135.
2. By discriminating in regard to the hire of Samuel Kohen because he gave-
testimony under the Act, the Respondent has engaged in and is engaging in.
unfair labor practices within the meaning of Section 8 (a) (4) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent 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.
[Recommended Order omitted from publication in this volume.]
a