Liberty Mutual Insurance Co.

National Labor Relations Board - Board Decisions

May 3, 1978

235 N.L.R.B. 1387 (N.L.R.B. 1978)

LIBERTY MUTUAL INSURANCE CO.
Liberty Mutual Insurance Co. and Martin J. Agacin-
ski, Jr. Case 22-CA-7022
May 3, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On July 5, 1977, Administrative Law Judge Max
Rosenberg issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and counsel for the
General Counsel filed a brief in support of the
Decision. On December 8, 1977, the Board issued a
Notice To Show Cause why the Board should not,
assuming that it found that the Charging Party was
discharged in violation of Section 8(a)(3) and (1) of
the Act, order the Respondent, as part of the remedy,
to reimburse the Charging Party for legal expenses
incurred in defending an injunction action brought
against him by the Respondent before the Superior
Court of New Jersey. Both the Respondent and
counsel for the General Counsel filed briefs pursuant
to the notice.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order, as modified herein.
The Administrative Law Judge found, and we
agree, that the Respondent discharged the Charging
Party, one of its sales agents, in violation of Section
8(a)(3) and (1) of the Act. Immediately after this
unlawful discharge, the Charging Party formed his
own insurance agency and began to solicit contracts
of insurance for companies other than the Respon-
I In its exceptions, the Respondent contends that the Administrative
Law Judge failed to make credibility resolutions and that he completely
ignored the preponderance of the evidence in reaching his conclusion that
the Charging Party was unlawfully discharged. We have carefully reviewed
the Decision and find this exception baseless. It is the Board's established
policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We
have carefully examined the record and find no basis for reversing his
findings.
2 The remedy is modified so that interest is computed as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
3 The temporary restraining order was issued on June 29, 1976. By order
dated July 5, 1977, the court enjoined the Charging Party from soliciting
contracts of insurance with any policyholders of the Respondent whom he
served while in the Respondent's employ until July 16, 1977; ordered him to
235 NLRB No. 197
dent. The Respondent then brought an action in the
Superior Court of New Jersey to enjoin the Charging
Party from engaging in such practices pursuant to
the terms of a noncompetition agreement the Charg-
ing Party had entered into upon commencing his
employment with the Respondent. Under the terms
of this agreement, the Charging Party, in part, had
covenanted not to solicit the sale of insurance within
25 miles of the city in which he represented the
Respondent for a period of 18 months if his employ-
ment with it was terminated for any reason. A
temporary restraining order issued; while that action
was pending, the Charging Party filed the unfair
labor practice charge involved in the instant case.3
In his brief to the Administrative Law Judge,
counsel for the General Counsel urged that, as part
of the remedy, the Respondent be ordered to
reimburse the Charging Party for legal expenses
incurred in defending the injunction action. The
Administrative Law Judge, however, declined to
fashion such a remedy.
In its reply to the Notice To Show Cause, the
Respondent argued that the failure of counsel for the
General Counsel to except to the refusal of the
Administrative Law Judge to grant the Charging
Party's attorney fees constituted a waiver of that
request under the Board's Rules and Regulations. 4 It
further contended that the award of fees in this case
would be contrary to Board precedent. Counsel for
the General Counsel maintained in his reply that the
award of the requested fees was within the Board's
general remedial powers and consistent with prior
Board decisions.
It is a well-established principle that the Board may
consider the remedial provisions of its orders sua
sponte.5 Section 10(c) of the Act charges the Board
with the duty to take "such affirmative action . . . as
will effectuate the policies of this Act."6 This clause
has been interpreted as giving the Board broad
discretion to define and develop the appropriate
remedial means to attain this end.7 Included in this
duty, the Supreme Court has held, is the requirement
account to the Respondent for all sums derived subsequent to March 29,
1976, in violation of the restrictive convenant within 90 days of the date of
the order; and ordered him to pay the Respondent's attorney fees in the
amount of $500. The court also ordered that the Charging Party could move
for dissolution of the final injunction and/or modification of its terms in the
event that "he receives a final award from the National Labor Relations
Board in his favor and against the plaintiffs." Execution of the monetary
portions of this judgment were stayed pending final judgment by the Board.
On October 11, 1977, the court issued a consent order modifying its order
of July 5, which in pertinent part stayed until 90 days following a final
adjudication and judgment of the Board the requirement that the Charging
Party account to the Respondent for the sums derived by him in violation of
the restrictive covenants of his employment agreement.
4 29CFR § 102.46(e)(1976).
5 E.g., N.LR.B. v. WTVJ, Inc., 268 F.2d 346 (C.A. 5, 1959).
6 29 U.S.C. § 160(c)(1970).
7 E.g., Phelps Dodge Corp. v. N.LR.B., 313 U.S. 177(1941).
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board restore a discriminatorily discharged
employee to his status quo ante the illegal termina-
tion.8 It is also within the Board's power in fashion-
ing its remedial orders to design them in such a
manner as to prevent or deter recurrence of the
unlawful activity which is the subject of the action. 9
Applying these principles to the fact situation
presented in the instant case, we are led to the
inevitable conclusion that only by recompensing the
Charging Party for the attorney fees incurred in
defense of the injunction action can we properly
discharge our duties under the Act and restore the
discriminatee to his status quo ante.
Clearly, but for the Respondent's unlawful dis-
charge of him, the Charging Party would not have
been forced to mitigate damages by selling insurance
in contravention of the noncompetition covenant.
The Respondent's own wrongdoing placed the
Charging Party in the position of violating the
covenant. It would be entirely unfair to allow the
Respondent to assert this agreement against the
Charging Party, which not only substantially limited
the Charging Party in his ability to sell insurance, but
in effect precluded him from obtaining interim
employment which the Respondent's unfair labor
practice had forced him to seek. In order to restore
the Charging Party to his former position then, it is
necessary to grant him the costs of defending that
action. Additionally, such an award will have whole-
some prophylactic effects. The Respondent's purpose
in bringing the injunction action can easily be
understood by its employees as part of an integrated
plan designed to chill their interest in unionization by
making an object lesson of the Charging Party,
insuring that he could neither work for the Respon-
dent nor for himself in the vocation which he had
followed his entire adult life.
The Board must be willing to shape full and
appropriate remedies in order to demonstrate to the
Charging Party and his fellow employees that we are
prepared to preserve their right to engage in protect-
ed activity. The award of attorney fees in this case
will not only give such assurances, but will act as a
deterrent to the Respondent's willingness to engage
in further discriminatory discharges and related
unfair labor practices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Liberty Mutual Insurance Co., East Orange,
New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order, as so modified:
1. Add the following as paragraph 2(b) and
reletter the remaining paragraphs accordingly:
"(b) Respondent shall reimburse the Charging
Party in the instant case for all legal expenses
incurred in his defense of an injunction action styled
as Liberty Mutual Insurance Co., a Massachusetts
Corporation; Liberty Mutual Fire Insurance Co., a
Massachusetts Corporation; Liberty Life Assurance of
Boston, a Massachusetts Corporation v. Martin Aga-
cinski, Jr., Individually and Trading as Business
Insurance Services, Docket No. C-4093-75, which
Respondent caused to be instituted against the
Charging Party in the Superior Court of New Jersey.
This section of the Order shall become effective only
upon the condition that the Superior Court of New
Jersey does not award the Charging Party legal
expenses incurred in defending the aforesaid action."
2. Substitute the attached notice for that of the
Administrative Law Judge.
8 E.g., Phelps Dodge Corp. v. N.LR.B., supra; N.LR.B. v. Local Union
396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America [United Parcel Service], 509 F.2d 1075 (C.A. 9, 1975).
9 UA W v. Russell, 356 U.S. 634 (1958); Marriott Corp. v. N.L.R.B., 491
F.2d 367 (C.A. 9, 1974).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees, thereby
discriminating in regard to their hire or tenure of
employment, in order to discourage their engage-
ment in protected, concerted activities.
WE WILL NOT threaten our employees with
discharge unless they refrain from forming or
joining a labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL make Martin J. Agacinski, Jr., whole
for any loss of pay which he may have suffered as
a result of our discrimination practiced against
him, with interest, and WE WILL reinstate him.
WE WILL reimburse Martin J. Agacinski, Jr.,
for all legal expenses he incurred in defending an
action in which we sought to enjoin him from
selling insurance in competition with us.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
LIBERTY MUTUAL
INSURANCE Co.
1388
LIBERTY MUTUAL INSURANCE CO.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was heard before me in
Newark, New Jersey, on October 19 and 20, 1976, on a
complaint filed by the General Counsel of the National
Labor Relations Board and an answer interposed thereto
by Liberty Mutual Insurance Co., herein called Respon-
dent.' At issue is whether Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, by certain conduct to be chronicled hereinafter.
Briefs have been received from the General Counsel and
Respondent which have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses as
they testified on the stand, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, a Massachusetts corporation, main-
tains its principal office and place of business in Boston,
Massachusetts, and various other offices throughout the
United States, including an office in East Orange, New
Jersey, which is involved in this proceeding, where it is
engaged in the business of providing commercial and
personal insurance and related services. During the annual
period material to this proceeding, Respondent received
gross revenues valued in excess of $500,000. During the
same period, Respondent transferred funds valued in
excess of $50,000 from its New Jersey place of business in
interstate commerce directly to States of the United States
other than the State of New Jersey, and received funds
valued in excess of $50,000 which were transported to its
place of business in interstate commerce directly from
States of the United States other than the State of New
Jersey. It is undisputed and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent independently
violated Section 8(aX1) of the Act when, on March 24,
1976, District Manager Joseph E. Anthony, an admitted
statutory supervisor and agent of Respondent, warned its
employees that they would be discharged unless they
ceased in their attempts to form or join a labor organiza-
tion. The complaint further alleges that Respondent of-
fended the provisions of Section 8(a)(1) and (3) of the Act
by discharging employee Martin J. Agacinski, Jr., on
March 24. For its part, Respondent denies the commission
of any labor practices proscribed by the Act.
I The complaint, which issued on August 9, 1976, is based upon a charge
filed and served on June 14, 1976.
It is undisputed and I find that Respondent is a Boston-
based corporation which is engaged in the sale of casualty,
property, and life insurance coverage throughout the
United States. Administratively, Respondent's operation is
broken down into divisions, which in turn are subdivided
into districts. Within each division and district, the sales
personnel vend either business lines of insurance, i.e.,
policies of insurance covering various risks to business
ventures, or personal lines, i.e., insurance policies covering
risks to individuals. Kenneth Spaulding occupies the
position of assistant vice president and manager of employ-
ee relations at the home office in Boston. The employees of
Respondent who work in the State of New Jersey are
included in the Middle Atlantic division whose main office
is located in Balacynwyd, Pennsylvania. This division is
headed by Robert Mytha. James Walker is classified as the
divisional business sales manager and has direct jurisdic-
tion on the divisional level over sales personnel such as
Charging Party Agacinski. Embodied within the Middle
Atlantic division is the East Orange, New Jersey, district
office, which employs 20 business and personal sales
representatives, including Agacinski, and which is under
the direct supervision of District Manager Joseph Antho-
ny. It is conceded and I find that, at all times material
herein, none of Respondent's sales representatives have
been represented by any labor organization.
It is undenied and I find that Agacinski was first
employed by Respondent on January 29, 1962. From that
date until August 1966, he was assigned the duties of
personal sales representative at Respondent's office in
Morristown, New Jersey. During the period from August 1,
1966, to July 23, 1969, Agacinski was shifted to the position
of personal sales manager at the Morristown facility, but
was returned to his assignment as personal sales represen-
tative on the latter date. Agacinski continued to be
employed as a personal sales agent until January 1971
when he was transferred to Respondent's business sales
department in East Orange. It is uncontroverted and I find
that, by letter dated January 30, 1974, and signed by Paul
A. Roche of the home office in Boston, Agacinski was
notified of the following:
RE: 1973 Sales Results
Congratulations for your outstanding sales efforts last
year with a total premium of $347,816.
You made a real solid contribution to our net growth in
1973 and we want you to know that this tremendous
effort is well recognized.
Best of luck and good selling in 1974.
In late February 1976, Agacinski was informed by District
Manager Anthony that, as a result of the annual sales
review for 1976, the former was "the number one earner
. . .in the entire state of New Jersey." Moreover, Agacin-
ski received a divisional bulletin in January 1976 which was
signed by Division Business Sales Manager Walker and
which recited:
1389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To: ALL BUSINESS SALES PERSONNEL
RE: Weekly New Business Report - Week Ending
1/10/76
It is a pleasure to announce the promotion of three
more Middle Atlantic Division Business Sales people,
who have contributed largely to our past and present
results, to new positions and opportunities:
JOSEPH B. Mc DERMOTT, WILKES BARRE
MANAGER TO DISTRICT SALES MANAGER,
PHILADELPHIA DISTRICT
THOMAS SCHMIDT, SOUTH PLAINFIELD BUSINESS
SALES TO MANAGER WILKES BARRE,
PENNSYLVANIA
MARTIN J. AGACINSKI, SALES REPRESENTATIVE
EAST ORANGE TO ACCOUNT REPRESENTATIVE,
EAST ORANGE
We are very proud of each of them - congratulate
them on their accomplishments - wish them continued
success and growth in their new responsibilities.
Despite Agacinski's exemplary work record and his
promotion, he nevertheless felt aggrieved by a variety of
working conditions which Respondent had imposed upon
him and his fellow employees and which he considered to
be unfair. Having consulted with most of the sales
representatives in the Middle Atlantic division about these
matters over the years, and having learned that his
colleagues also harbored similar grievances against Re-
spondent, Agacinski decided that the collective complaints
of the sales employees could best be satisfied by the
achievement of bargaining power through the formation of
an association of sales agents. Although he recognized that
such an approach could be detrimental to his continued
employment with Respondent due to his understanding
that a previous attempt to form such an association had
resulted in the ultimate dismissal of the organizers,2
Agacinski nonetheless felt impelled to undertake the task
of banding the agents together into a union. However, as a
hedge against any possible punitive action which Respon-
dent might take to thwart his endeavors in this regard,
Agacinski contacted other insurance companies to deter-
mine the feasibility of obtaining an agency relationship
with them.3
While on vacation during the first 2 weeks in March
1976, Agacinski prepared a memorandum dated March I I
which was addressed to District Manager Anthony. In this
document, Agacinski thanked Anthony for his recent
efforts in obtaining the former's promotion to the job of
account representative. Agacinski then complained that
2 On some undisclosed date prior to this proceeding, the Board dismissed
certain charges brought against Respondent obstensibly dealing with the
discharge of some agents who sought to organize Respondent's employees.
I Contrary to Respondent's assertions, I do not view Agacinski's efforts
to obtain remunerative employment with other agencies as an attempt either
to blackmail Respondent or entrap it into violating the Act. Agacinski
testified and I find that, over a 3-year period prior to his discharge and
during which he had received two work performance commendations and a
promotion, he had solicited several insurance companies about the prospect
"Happy, however I am not. In order not to be [misunder-
stood], I have set out below those things; past and present,
that are disturbing me. Without regard to chronological
order, I am detailing some of the events and circumstances
that come to mind." Agacinski added:
At no time in my years at Liberty Mutual have I
experienced so many expressions of low moral [sic].
Our representatives, including myself, are distrustful
and disheartened. I propose a Liberty Mutual spon-
sored Association of Middle-Atlantic Representatives;
an association in which representatives are appointed
by ballot of their peers to voice [grievances] to
management.
After posing the rhetorical question, "What would such an
association accomplish," Agacinski proceeded to enumer-
ate an extensive list of grievances which he believed an
association could resolve, including such matters as the
assignment of territories, compensation, and expense ac-
counts.
Agacinski returned from his vacation on the morning of
March 15, 1976, and immediately deposited a copy of the
memorandum on Anthony's desk. Simultaneously, Agacin-
ski distributed copies to all of Respondent's insurance
salesmen and managers in the East Orange district office,
as well as to all sales agents in the Middle Atlantic division.
When Anthony reported for work that morning, his
attention was directed to the document which he later read.
It is Agacinski's testimony and I find that, at I 11 a.m., on
March 15, 1976, he was summoned to Anthony's office
where the latter informed Agacinski that Anthony had read
the memorandum. Anthony inquired whether Agacinski
had distributed the documents to other individuals, and the
employee responded by providing Anthony with the names
of the agents in the various offices to whom they were sent.
Thereupon, Anthony stated, "[Y]ou know, Marty, associa-
tions don't help superior salesmen. What they tend to do is
force a company to keep lesser qualified people as opposed
to letting them go." Agacinski then launched into a
discussion of the various grievances which he and some
fellow employees had regarding their conditions of employ-
ment. At this juncture, Anthony expressed an interest in
Agacinski's proposal that an association be created be-
cause "[o]ur representatives, including myself, are distrust-
ful and disheartened," and asked for specifics. Agacinski
proceeded to recount a number of criticisms which the
sales agents had leveled against Respondent, after which
Anthony angrily terminated the meeting by directing
Agacinski to service an account.4
Agacinski further testified and I find that, on the
afternoon of March 16, he spoke with three other account
representatives in the East Orange office about the subjects
raised in his memorandum of March 11, and suggested that
of becoming a sales agent for them. Moreover, the record discloses that
Agacinski did not file the instant charges with the Board until sometime
after Respondent lodged its suit for an injunction with the New Jersey
Superior Court and, then, only on the advice and at the behest of his
independent counsel.
4 Anthony testified that, at the conclusion of his meeting with Agacinski,
"I had a feeling of total frustration, and the feeling I had is very vivid in my
mind. It was like a balloon that just had the air go out of it .... "
1390
LIBERTY MUTUAL INSURANCE CO.
a followup memorandum be drafted and circulated among
the Middle Atlantic division sales representatives "to
further the Association." In this connection, Agacinski
advanced the idea of a "no-show Thursday," by which he
meant that the salespersons should absent themselves from
work on Thursdays to pressure Respondent into acceding
to their demands concerning the current grievances. As a
result of this conversation, Agacinski prepared a second
memorandum which he addressed and sent to all divisional
salesmen on March 17 which recited:
My memo of 3/11/76 has generated a variety of
reactions. Below I have attempted to put these in
perspective.
With few exceptions, the long term salesmen have
made comments that at best were sympathetic. The
successful 'newer' salesmen are enthusiastically behind
organization and change. The newest salesmen are
bewildered. All of these postures were predictable. The
newest salesmen have nothing to gamble, the 'newer'
salesmen have nothing to lose, and the older salesmen
have no where to go.
Managements attitude has been similarly predictable.
As in the past attempts at organization, Home Office
has dictated a low profile; a let them make a mistake
attitude. Our Executive Vice-Presidents are as close to
our attempted Association as they would be to the most
critical of their responsibilities.
Additional perspective can be gained from the happen-
ings of the last two days. 'he must have been drunk
when he wrote this' (meaning my 3/11/76 memo) was
one of the comments supposedly made to Joe Anthony
by one of our newest salesmen. This level of effrontery
left me no choice but to explain to Joe Anthony that
because they could not be trusted, I was literally at war
with management and would fight with all my effort for
an Association of salesmen.
Since this early Monday confrontation the lines have
clearly been drawn. Only management has a wait and
see attitude. I am for decision and action. Our resolve
will be tested beginning Thursday, 3/25/76; the first of
an indefinite number of 'no show Thursdays'. I will not
work any Thursday till I am satisfied that we are
accomplishing the resolution of some of our grievances.
Other salesmen, although working, can at the least
refuse to either call in or be in their offices.
More soon.
On March 17, Agacinski placed a copy of this memoran-
dum on Anthony's desk which Anthony read on his return
from lunch.
Meanwhile, on March 16, Anthony sent a memorandum
to Respondent's Middle Atlantic division Business Sales
Manager Walker summarizing the ingredients of his con-
versation with Agacinski on the previous day relative to
Agacinski's memorandum of March 11. Anthony reported
that, following his discussion with Agacinski, he initiated
interviews with five sales agents in his office who indicated
that they were at odds with some of Agacinski's proposals.
Anthony continued that "As far as I can determine, there is
no swell of support for him here either among the veterans
or among the younger men." At the conclusion of his
memorandum, Anthony noted, "As you know, Marty is
probably the hardest working person in the District," and
promised to keep Walker "posted on any further develop-
ments," a promise which Anthony thereafter kept.
Kenneth Spaulding, Respondent's assistant vice presi-
dent and manager of employee relations at the home office
in Boston, testified that he had occasion to speak on the
telephone with District Manager Anthony on March 16,
and the topic of conversation revolved around Agacinski.
Spaulding testimonially acknowledged that Anthony in-
formed him of the contents of Agacinski's memorandum of
March I 1, including the latter's expressed intention to form
an association of sales' employees at Respondent's enter-
prise, and advised Spaulding that Agacinski had dis-
patched the memorandum to all of the sales personnel in
the East Orange office as well as to those in other offices of
the Middle Atlantic division. At the conclusion of the
conversation, Spaulding directed Anthony to "keep me
[Spaulding] informed of the developments," which direc-
tive Anthony thereafter complied with on a daily basis.
Spaulding thereupon conveyed this information to Robert
A. Penney, Respondent's house counsel.
On March 17, Anthony again telephoned Spaulding to
report that Agacinski had drafted a second memorandum
which had been circulated to the employees. In this
discussion, Anthony related that he had attempted to
gauge the employees' support for the creation of an
association and indicated that "he didn't see a great deal of
activity going on in the East Orange office." Despite these
assurances, Spaulding testified that he "certainly" was
concerned about Agacinski's attempt to organize the sales
representatives and, in furtherance of that concern, he
scheduled a meeting of the managers and attorney Penney
which was held in Newark, New Jersey, on March 18.
According to Spaulding, this session was convened so that
he and Penney could discuss with the managers "what they
could and could not do during any attempt to organize the
East Orange office." The officials in attendance turned to a
consideration of Agacinski's memoranda, as well as his
intention to form an association. At no time during this
meeting were any deficiencies in Agacinski's work perfor-
mance mentioned or discussed. At the end of the session, a
decision was made that Middle Atlantic Division Business
Sales Manager Walker should personally explore the
situation with Agacinski. Walker, who had been previously
apprised by District Manager Anthony that Agacinski had
distributed memoranda to the sales representatives on
March 15 and 17, was told by Anthony on March 18 that a
meeting with Agacinski was scheduled for March 19.
Pursuant to this arrangement, Walker met with Agacin-
ski for approximately 3 hours, from 11 a.m., to 2 p.m., at
the East Orange office. Walker testified that the purpose of
the meeting was "to find out his [Agacinski's] problems
and make an effort to resolve his grievances." Walker
conceded that, at the time of this encounter, he was
unaware that Agacinski had missed any sales meetings at
the office, or had failed to return telephone calls to
1391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
potential customers, or had declined to keep any appoint-
ments with his policyholders. In his testimony, Walker
admitted that he told Agacinski that he could not acquiesce
in the formation of an association, although Walker
claimed that "[t]he organization of an association was -
had very little content in our conversation." When the
meeting ended, Walker taped his recollection of the events
which transpired and reduced his recorded thoughts to a
memorandum dated March 22. At the outset of the
memorandum, Walker noted:
The net result of our entire conversation was that there
was no discernible change in the position of Agacinski
as stated in his memorandums dated March 11 to
Joseph Anthony and March 16 to Middle Atlantic
Division Salesmen.
His expressed purpose continues to be either the
resolution in his favor of all of the grievances enumer-
ated in his March 11 memorandum or the formation of
a Salesman's Association in an effort to secure the same
objectives.
After a lengthy review of the various points which
Agacinski raised in his March 11 memorandum, Walker
concluded:
I am convinced that he will continue to pursue this type
of course of action to cause management continuing
problems and concern until he achieves his objectives,
or until we terminate his employment.
I recommend we find the appropriate circumstances to
properly terminate his employment and do so at the
earliest opportunity.
When questioned as to whether he had reference to
Agacinski's organizational activities by the use of the
phrase "he [Agacinski] will continue to pursue this type of
course of action to cause management continuing problems
and concern until he achieves his objectives," Clark
answered in the negative, claiming that this comment
related solely to Agacinski's suggestion that the agents
refuse to attend sales meetings, that they absent themselves
from work on Thursdays, and that they engage in a work
slowdown. Walker then acknowledged that, at the time
that he transcribed his memorandum on March 22,
Agacinski had been guilty of nothing more than argumen-
tative assertion regarding these actions. Walker also con-
ceded that, at this time, he had not learned from any source
of any prior instances in which Agacinski had failed to
attend a sales meeting, or to keep an appointment, or to
telephone a policyholder.
Agacinski's testimony regarding his meeting with Walker
on March 19 is not at substantial variance with Walker's.
After an exchange of pleasantries, Walker stated, "[W]hy
don't we sit down and let me have you understand that
what I'm here for is to listen to you, to find out what
exactly you intend to do . . . what you mean by your
5 Anthony grudgingly admitted that he was aware that Agacinski was
tied up in a meeting with Walker on March 19 and he "presumed" that this
was the reason why Agacinski missed the I I a.m. appointment. Indeed,
Walker testified that he was notified by Anthony on the preceding day that
a session had been scheduled with Agacinski for the morning of March 19.
memorandum here." Walker thereupon made an in-depth
probe of the names of the salesmen to whom Agacinski had
distributed his March 16 memorandum, inquiring, "who
the newer versus newest salesmen were as opposed to the
older, and those that fit in' each category and their names
and their reactions they have given me in regard to both
my first memorandum and my second memorandum."
Walker then asked Agacinski, "[W]hat had changed so
dramatically. He said, 'Now, Marty, you have been
promoted. January 1 you were made an account represen-
tative. You had your most successful year in 1975. You
were used as an example by your managers to other
salesmen. You just received a large February bonus.' He
says, even Bob Hytha had mentioned to him that - while
he was in the East Orange office I had thanked Bob Hytha
for the promotion . ... And he said, '[I It just doesn't seem
possible that now you could be here attacking the company
and wanting to form an association of salesmen. He says, 'I
just don't understand, what has happened?' " Agacinski
replied that "the very reasons for the forming of the
association was those promotions and the special distinc-
tion because I am the most logical person to pursue this.
That if anybody has to be dealt with it is me." Walker
inquired, "[W]hat all additional I would do, whether I
would continue writing these memorandums." Agacinski
answered in the affirmative, stating that "I could go on
forever. I could solicit typical grievances and publish them
anonymously. Or if the salesmen would like me, to tell his
particular grievance that points towards the need of an
association. And the other thing I could do, I could do such
things as being disruptive in an administrative sense at
meetings. I could post a notice that no salesmen were going
to attend meetings unless prior written approval of the
association or whatever." At this juncture, Walker warned
that "you keep this up and you could lose your job."
Rounding out Agacinski's testimony regarding the events
which transpired on March 19, he testified without contra-
diction and I find that he had appointments to meet with
customers that day at 11 a.m., 2 p.m., and 3 p.m. Although
he missed the II a.m. appointment, Agacinski was not
admonished for this happenstance. 5
Events abided until March 22, which was a Monday.
Agacinski reported for duty at 8:30 a.m. and, after
spending about an hour at work, he left his office to keep
an 11 a.m. appointment with a prospective customer, Villi
Fashions, to which he sold two insurance policies that
morning. As a result of his attendance to this business
transaction, Agacinski was not present at a sales meeting
scheduled for that morning.6 In this connection, District
Manager Anthony testified that, during the 22 years that he
had worked for Respondent, it was mandatory for all
salesmen to attend weekly sales meetings which were
conducted at 8:30 a.m. each Monday. However, Anthony
related that, for approximately 3 weeks prior to March 22,
only junior salesmen were required to attend these meet-
ings and all others, including Agacinski, were excused.
Anthony further testified that, on the rare occasions on
6 So far as this record stands, it is unclear whether the moratorium upon
forced attendance at these sessions by senior sales personnel had been lifted
for the March 22 meeting.
1392
LIBERTY MUTUAL INSURANCE CO.
which salesmen did skip a sales meeting, he "absolutely"
made a point of talking to them about the matter to learn
the reason for their absences. Although Anthony conceded
that he "personally observed [Agacinski] coming through
the parking lot" following the salesman's return on March
22 from his visit to Villi Fashions, and that he had noticed
Agacinski in the office on March 23, he acknowledged that
he had made no effort to contact Agacinski, in accordance
with his standard operating procedure, to ascertain the
reason for Agacinski's absence from the sales session on
March 22. Despite this unexplained lapse, Anthony never-
theless saw fit to telephone Assistant Vice President and
Manager of Employee Relations Kenneth Spaulding in
Boston, and Middle Atlantic Division Business Sales
Manager James Walker in Balacynwyd on March 22 to
report Agacinski's absence on that day. In his testimony,
Spaulding stated that he had received a telephone call from
Anthony on March 22 and 23 in which the latter reported
that Agacinski had failed to attend the sales meeting on
March 22, that he was not properly servicing policyholders,
and that he had failed to return calls from customers.
Spaulding was then questioned as to whether it was
customary for Anthony to contact him about these matters,
and Spaulding replied, "In this situation, yes. He would."
When pressed as to what he meant by this response,
Spaulding stated that it was normal practice for Anthony
to communicate with him "In an organizational at-
tempt. .. . Of an employee attempting to start an employ-
ee association." However, Spaulding confessed that he
could not.recollect any conversations with Anthony con-
cerning other matters prior to this date and, so far as this
record stands, this was the first occasion in 22 years that
Anthony found it necessary to inform any of his superiors
regarding items unconnected with an incipient organiza-
tional campaign.
At approximately 4 p.m., on March 23, Agacinski felt
sick while at work and notified his sales assistant, Dorothy
Neville, that he was going home because of his illness. The
record discloses and I find that Neville's duties consisted of
catering to the secretarial needs of the salesmen, including
making telephone calls to customers on their behalf. Before
he left the office, Agacinski turned over to Neville certain
business files relating to an appointment which he had
scheduled with a customer for March 24. According to
Agacinski, "She [Neville] knew about the appointment on
Wednesday [March 24]. She knew I was sick and that's
what a sales assistant is for, to call of[f ] appointments if she
knows I'm sick." 7
Agacinski remained indisposed on March 24 and did not
report for work on that date. During the day, and at
Anthony's direction, Neville telephoned Agacinski's cus-
tomers to determine whether Agacinski had taken care of
his appointments for that day, a curious procedure in light
of the fact that Neville could easily have ascertained
Agacinski's whereabouts by calling his home, a course of
action which Neville could not recall having even taken.
7 It is undisputed and I find that Neville rescheduled the appointments
which Agacinski missed on March 19, as a result of his meeting with
Walker, for March 24.
8 In view of Anthony's testimony in this regard, I do not accept
Spaulding's averments that he received reports to this effect from the district
manager as early as March 22 and 23.
Assistant Vice President Spaulding testified that, at 3
p.m., on March 24, he called a meeting at the home office
in Boston which was attended by, among others, Spauld-
ing, House Counsel Penney, Middle Atlantic Business
Sales Manager Walker, and Kalvin M. Grove, a partner in
a Chicago law firm which represents Respondent in labor
matters. According to Spaulding, this convocation was the
sole and direct result of a telephone call which he had
received from District Manager Anthony at noon on
March 24 in which Anthony told Spaulding that "Mr.
Agacinski was not returning phone calls, he was not
keeping appointments, and he's not servicing his policy-
holders," although Spauling could not recollect whether
Anthony had pinpointed any specific instances of Agacin-
ski's derelictions. In his testimonial report concerning the
meeting, Spaulding sought to create the impression that the
session was hastily convened because of Anthony's noon
report regarding Agacinski's lack of attention to business
matters, although Spaulding brought himself to confess
that one of the reasons for Anthony's call about Agacinski
was "surely" due to "association overtones." However,
Anthony testified that he telephoned Spaulding at 2 p.m.
that afternoon to relay the intelligence which he had
received for the first time that day from Sales Assistant
Neville that Agacinski had failed properly to service
policyholders or promptly to return customer calls.8
At the conclusion of this meeting, which lasted until
approximately 4 p.m., on March 24, attorney Grove placed
a call to Anthony at the East Orange office and instructed
the latter to telephone Agacinski and direct him to be in
Anthony's office at 8:30 a.m., on the following morning. At
6 p.m., Anthony called Agacinski at his home in compli-
ance with Grove's directive. At the outset of the conversa-
tion, according to the testimony of Agacinski, Anthony
remarked that he wanted to see the employee on the
following morning. Agacinski exclaimed, "Joe it sounds
important, what's happening?" When Anthony refused to
divulge the purpose for the meeting, Agacinski pressed his
district manager for the reason and Anthony finally
responded that "the word has come down from the home
office, . . . this comes directly from the chairman of the
board, you are to cease and desist your activities and
[behave] as a Liberty Mutual salesman or you'll be
terminated." Agacinski complained that "I don't think that
Liberty Mutual can be that cavalier," and Anthony replied,
"Marty, as a friend, he says, I advise you ... start acting
like a Liberty Mutual salesman." According to Agacinski,
he did not report to Anthony's office on the morning of
March 25 because, due to his known unwillingness "to give
up my attempt to form the association" and in view of
Anthony's statement that "unless I ceased and desisted my
activities, I would be terminated," Agacinski believed that
he had been discharged by Respondent on the evening of
March 24.9
Anthony's version of his conversation with Agacinski on
March 24 ran to the effect that he telephoned the latter at 6
9 Agacinski was fortified in this conclusion by Walker's comment to him
during their discussion of Agacinski's memoranda of March 1II and 16 that
"If he [Agacinski ] continues to do the things that he told me that he would
do to continue to cause us concern, irritation and disrupt our operation, that
I felt that those continuations would in the future be grounds for us to
terminate his employment."
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m. and stated that "I had been called from home office,
that we had some problems with him. One was that he had
failed to attend the sales' meeting. Two, is that he
apparently had said that he was going to miss certain days
of work. And third, that it had come to my attention that
he was not delivering services to our policyholders. And
that he was to meet with me, if he had come into the office
that day, to meet with me to discuss these problems. If he
didn't come in, I was to communicate with him by
telephone and ask him to come in and meet with me at 8:30
the following morning." When Agacinski replied that he
would not go to the office as directed, Anthony cautioned,
"Marty, if you don't come in and meet with me and discuss
these you will be terminated." Agacinski protested that
"Liberty can't do that, I have my sources. You wouldn't be
that cavalier," to which Anthony rejoined, "Marty, I spoke
to you as a manager of Liberty Mutual. Now let me tell you
as a friend, you will be terminated if you don't meet with
me in my office tomorrow morning." While Anthony
conceded in his testimony that he possessed the authority
at all material times to terminate Agacinski, he denied in
his testimony that he had done so in his conversation with
this employee on March 24. However, in a sworn deposi-
tion which Anthony gave in an injunction proceeding
brought before the Superior Court in New Jersey by
Respondent against Agacinski after the latter's termina-
tion, and which was introduced into evidence in this
proceeding, Anthony was asked:
Q. So is it correct that based upon the direction
given you by Mr. Grove on March 24 that you felt that
that constituted authorization to terminate Mr. Agacin-
ski if he did not do whatever it was that was stated. Is
that correct?
Anthony answered:
A. It was more than authorization. It was direction.
In other words, I interpret authorization that I could if
I wanted to. I was directed to do it.
On March 26, Anthony dispatched a letter to Agacinski
which recited in pertinent part:
In accordance with our telephone conversation on
Wednesday evening, March 24, 1976, and this after-
noon, this is to advise you that your employment with
Liberty Mutual is terminated as of the end of the
working day today, Friday, March 26, 1976.
Accompanying the letter was Agacinski's final paycheck
and other insurance and compensation forms.
The General Counsel contends that Respondent dis-
charged Agacinski on March 24, 1976, in violation of
Section 8(a)(1) and (3) of the Act, because he attempted to
and did engage in the protected concerted activity of
encouraging his fellow employees to form and join a labor
organization styled as the "Association" in order to correct
a variety of grievances relating to working conditions
which they deemed unfair. For its part, Respondent
maintains that Agacinski was terminated on March 26
solely because he precipitated a series of intermittent and
partial strikes by failing to attend the sales meeting on
March 22, by refusing to return phone calls to customers,
and by declining to attend appointments which had been
scheduled with customers and potential customers. I find
no merit in Respondent's defenses to this action.
It is undisputed and I have heretofore found that, before
Agacinski began to draft his memoranda of March 11 and
16 and circulate them among Respondent's employees
suggesting that they form an association to pressure
Respondent more effectively to redress their grievances, he
was considered by management to be a highly productive
and a model sales agent. Thus, Agacinski was commended
by the Boston home office for his outstanding sales efforts
during the year 1973, was congratulated by District
Manager Anthony for having sold more insurance than
any other agent in the State of New Jersey in 1975, and
received a promotion to account representative in January
1976 in recognition of his sustained superior performance.
Having learned on March 15 and 17 that Agacinski had
enlisted the concerted support of some of the agents in the
East Orange office as well as in the Middle Atlantic
division to press their collective and individual grievances
through the auspices of an association whose formation he
proposed, Respondent's estimation of Agacinski's value as
an insurance salesman dropped markedly, while their
interest in his organizational activities escalated sharply.
Hence, when District Manager Anthony learned of the
contents of Agacinski's first memorandum on March 15, he
obtained from Agacinski the names of the agents in the
various offices to whom the document was sent, and he
told the employee that "associations don't help superior
salesmen. What they tend to do is force a company to keep
lesser qualified people as opposed to letting them go."
Anthony immediately interviewed five agents in his office
to ascertain their organizational inclinations and, on
March 16, he sent a written report to Middle Atlantic
Division Business Sales Manager Walker apprising the
latter of Agacinski's attempts to form an association and
the degree of his success in this endeavor.
On the same day, Anthony communicated with Assistant
Vice President Spaulding at the Boston office and con-
veyed the same information to his superior. On March 17,
Anthony once again telephoned Spaulding to relate that
Agacinski had prepared and mailed another memorandum
to the employees urging their membership in the Associa-
tion, and that the support for such a labor organization
appeared to be scant. However, Spaulding became so
concerned about Agacinski's efforts that he scheduled a
meeting of senior officials for March 18 to discuss "what
they could and could not do during any attempt to
organize the East Orange office." After considering the
range of Agacinski's efforts as expressed in his memoranda,
Business Sales Manager Walker was delegated to discuss
the matters with Agacinski on the following day. Walker
met with Agacinski on March 19, and made it clear that he
would not tolerate the formation of an association. Despite
the fact that Walker conceded that he was totally unaware
at the time that he prepared a memorandum on March 22
memorializing the contents of his conversation with Aga-
cinski of any business shortcomings of the latter, Walker
stated in his memorandum, a copy of which was subse-
quently shown to Spaulding, that "I am convinced that he
1394
LIBERTY MUTUAL INSURANCE CO.
will continue to pursue this type of course of action to
cause management continuing problems and concern until
he achieves his objectives, or until we terminate his
employment." Accordingly, I find that this notation could
only have reference to Agacinski's unconcealed attempts to
organize Respondent's salesmen into an association.
On March 24, Assistant Vice President Spaulding con-
ducted a meeting at 3 p.m., in his Boston office to discuss
the continued employment of Agacinski. Although Spauld-
ing professed that the meeting was scheduled solely to
discuss Anthony's telephonic report on that day that
Agacinski had been remiss in his duty to return calls to
customers, to keep his appointments with them, and to
service the need of his policyholders, Spaulding acknowl-
edged that one of the reasons for holding the session was to
consider Agacinski's organizational endeavors. At the
conclusion of the meeting, Attorney Grove telephoned
Anthony and instructed the latter to call Agacinski and
arrange for a meeting with Agacinski on the morning of
March 25 to discuss the "problems" which Respondent
had encountered with the employee. Anthony telephoned
Agacinski and warned him that "if you don't come in and
meet with me and discuss these you will be terminated." In
view of Anthony's testimony set forth in his deposition
given in the state court proceeding, and his letter of March
26 which he sent to Agacinski, I find that Anthony was
directed by Grove to discharge Agacinski on March 24 if
he failed to report to Anthony on March 25 to discuss his
activities on behalf of the association, as Agacinski did.
In my opinion, Respondent's assigned reasons for Aga-
cinski's discharge are too frivolous to warrant serious
consideration, Respondent claims that one of the bases for
Agacinski's separation was his failure to attend a sales
meeting on the morning of March 22. With regard to this
incident, it is undisputed and I have found that Agacinski
left his office prior to the meeting and successfully solicited
two sales of insurance. Although Anthony insisted that it
was his uniform practice to question salesmen about their
absences from such sessions to ascertain the reasons
therefor, and although he observed Agacinski return to the
office that day and noted his presence at work on March
23, Anthony admittedly made no attempt to contact
Agacinski and learn the reason for his failure to show up at
the meeting. Moreover, Agacinski was not censured for this
alleged misconduct and, so far as appears, attendance at
this gathering was not mandatory for senior personnel.
With respect to Agacinski's asserted failure to keep
scheduled appointments with potential customers and to
return the calls of clients, the record discloses that, on
March 19, Agacinski was unable to meet with a customer
at 11 I a.m. as scheduled because of his session with Business
Sales Manager Walker that morning, a circumstance well-
known to Anthony. Agacinski failed to keep appointments
with approximately two customers on March 24. However,
I have found that Agacinski was taken ill on March 23 and
24 and, on the former date, he advised his sales assistant,
io The Barnsider, Inc., 195 NLRB 754 (1972).
" In his brief, the General Counsel urges that the undersigned Adminis-
trative Law Judge fashion a remedy to reimburse Agacinski for legal
expenses which he incurred in defense of the injunction suit filed against
him by Respondent in the Superior Court of New Jersey. In that action,
Respondent sought to restrain Agacinski from breaching an employment
Neville, of his intended absence from work, gave her the
business files for these customers, and relied upon her
customary practice pursuant to which she uniformly
telephoned his customers to advise them of his unavailabil-
ity.
In short, I find that Respondent discharged Agacinski on
March 24, 1976, not because he had in any way embarked
upon a series of "intermittent and partial strikes," but
solely because he had engaged in concerted activities
protected under the Act by soliciting and encouraging his
fellow employees to form and join an association to better
their working conditions. I therefore conclude that, by the
foregoing conduct, Respondent violated Section 8(a)(I)
and (3) of the Act.' 0
I have also found that, on March 24, 1976, District
Manager Anthony threatened Agacinski with discharge if
he persisted in his efforts to form the Association. By this
conduct, I conclude that Respondent violated Section
8(a)(1) of the statute.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I1,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
THE REMEDY
I have found that Respondent has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed them under Section 7 of the Act, and
thereby violated Section 8(aXl) of the statute. I shall
therefore order that Respondent cease and desist there-
from.
I have also found that Respondent effectively discharged
Martin J. Agacinski, Jr., on March 24, 1976, because he
had engaged in protected concerted activities guaranteed
by the Act, and thereby offended the provisions of Section
8(a)3) of the Act. To remedy this violation, I shall
recommend that Respondent offer Agacinski immediate
and full reinstatement to his former job or, if it no longer
exists, to substantially equivalent employment, and make
him whole for any loss of pay which he may have suffered
as a result of the discrimination practiced against him. The
backpay provided for herein shall be computed in accor-
dance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum in the manner
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962)."t
agreement with Respondent which debarred him from engaging in competi-
tive employment for a specified number of months following the relinquish-
ment of his position with Respondent. and Agacinski retained private
counsel to represent him. In his prayer for this relief. the General Counsel
relies upon Local Unions Nos. 186, et al., affiliates of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Continued)
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Martin J. Agacinski, Jr., thereby
discriminating in regard to his hire and tenure of employ-
ment, in order to discourage his engagement in protected
concerted activities under the Act, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(l) and (3) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)( ) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the purview of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER 12
The Respondent, Liberty Mutual Insurance Co., Boston,
Massachusetts, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging employees, thereby discriminating in
regard to their hire and tenure of employment, in order to
discourage their engagement in protected concerted activi-
ties.
(United Parcel Service), 203 NLRB 799 (1973), enfd. 509 F.2d 1075 (C.A. 9,
1975). 1 find the United Parcel Service case inapposite to the facts and
circumstances presented herein. In that case, the Board, with court
approval, awarded legal fees to certain employees whose collective-bargain-
ing agent had refused, for unlawful reasons, to process their grievances
under a labor compact with their employer. In doing so, the Board noted
that the employees were entitled to independent legal representation before
the arbitral tnbunal to which their grievances had been referred because
their union had prejudged the merits of their complaints, and the facts
demonstrated that the legal costs were incurred as a direct result of the
union's illegal conduct. In the instant proceeding, Respondent's suit had no
direct or proximate nexus with its illegal discharge of Agacinski because
Respondent could have proceeded against Agacinski in the state court
regardless of whether his termination was violative of the Act. Moreover, he
filed a counterclaim in the injunction suit, which is still pending, wherein he
(b) Threatening employees with discharge unless they
refrained from forming orjoining a labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Offer to Martin J. Agacinski, Jr., immediate and full
reinstatement to his former job or, if it no longer exists, to
substantially equivalent employment, and make him whole
for any loss of pay he may have suffered as a result of the
discrimination practiced against him, in the manner set
forth in the section of this Decision entitled "The Reme-
dy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records and reports, and all
other records necessary to analyze the amounts of backpay
due herein.
(c) Post at its district offices in East Orange, New Jersey,
copies of the attached notice marked "Appendix." 13
Copies of said notice, on forms to be provided by the
Regional Director for Region 22, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
claimed the same attorney's fees for which the General Counsel now presses.
Conceivably, Agacinski might recoup his legal expenses depending upon the
outcome of that litigation. I shall therefore deny the General Counsel's
remedial request.
12 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1396