The Colonial Life Insurance Co. of America

National Labor Relations Board - Board Decisions

Mar 12, 1948

76 N.L.R.B. 653 (N.L.R.B. 1948)

In the Matter of THE COLONIAL LIFE INSURANCE COMPANY OF AMER-
ICA, EMPLOYER and AMERICAN FEDERATION OF INDUSTRIAL AND
ORDINARY INSURANCE AGENTS UNION, LOCAL No. 23454,' A. F. OF L.,
PETITIONER
Case No. 2-C-5786.-Decided March 12, 1948
Mr. Bertram Diamond, for the Board.
White d Case, by Mr. Chester Bordeau, of New York City, for the
-respondent.
Mr. George L. Russ, of Washington, D. C., and Mr. Walter M. Col
ieran, of New York City, for the Union.
DECISION
AND
ORDER
On February 27, 1947, Trial Examiner Sidney Lindner issued his
-Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices 1 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 unfair
labor practices alleged in the complaint and recommended dismissal
-of those allegations. Thereafter, counsel for the respondent and for
the Board filed exceptions to the Intermediate Report and briefs in
support of their exceptions. The respondent requested and was
granted permission to argue orally before the Board at Washington,
D. C. On December 11, 1947, the Board notified the respondent that
it had rescinded its action in granting oral argument and that in lieu
of oral argument any party could file a supplemental brief or written
argument setting forth the matters which would have been covered
in the oral argument. The respondent filed a brief in lieu of oral
argument.
'Those provisions of Section 8 (1) of the National Labor Relations Act which the Trial
Examiner found were violated , are continued in Section 8 (a) (1) of the Act, as amended,
76 N. L. R. B., No . 102. 653
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
inediate Report, exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions and modifications
noted below :
The Trial Examiner found, as fully set forth in the copy of.the
Intermediate Report attached hereto, that, by certain activities of its
supervisory employees, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed diem
in Section 7 of the Act. We agree with this conclusion. We limit the
grounds for our findings, however, to (1) conduct, by supervisory em-
ployees Haile and Stahl and by rank and file employees Weingast and
Serra, constituting surveillance by the respondent of union meetings;
(2) conduct and statements by Haile and Stahl calculated to, and
which did, influence employees Serra and Weingast not to vote in a
Board-conducted election; and (3) statements of supervisory em-
ployees Lagana, Haile, and Dolan to employee Cavallo to the extent
that such remarks constituted efforts to coerce him from engaging
in union activity 3 and inquiring as to his union activity or his knowl-
edge about the progress of organization.
In its exceptions to the finding of unlawful surveillance, the Em-
ployer points out that no effort was made by the insurance agents to
keep the union meetings secret, in that such meetings were held openly
in a public restaurant, and in that insurance agents freely discussed
what transpired at these meetings. In adopting the Trial Examiner's
ultimate findings of surveillance, we are, however, placing no reliance
on the fact that representatives of management were present in the
public restaurant where the employees were openly discussing union
organizational plans 4 Our finding of a violation of the Act in this
regard is based primarily on the facts (a) that Assistant Manager
Stahl, at the request of General Manager Haile, instructed non-
supervisory employees Weingast and Serra to be on the look-out for
union activities at such meetings; (b) that, pursuant to this instruction,
these employees reported back to Stahl; and (c) that, insofar as ap-
Pursuant to the provisions of Section 3 (b) of the Act as amended, the Board has
delegated its powers in connection with this case to a three-man panel consisting of Mem-
bers Houston, Murdock, and Gray
3 As already found by the Trial Examiner, this unlawful intrusion into the organiza-
tional activities of Cavallo was punctuated with exhortations to think about himself and
his family and stop "sticking his neck out" and "to be careful" because the Employer was
"out to get him."
4 Cf. Matter of Industrial Metal Fabricators, Inc., 63 N L. R. B. 46. -
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 655
pears, Stahl readily accepted this information indicating thereby that
Weingast and Serra were acting with the respondent's approval.5
ORDER
Upon the entire record in 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 , The Colonial Life
Insurance Company of America, Jersey City, New Jersey, its officers,
agents, successors, and assigns shall :
1. Cease and .desist from interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations , to join or assist American Federation of In-
dustrial and Ordinary Insurance Agents Union , Local No. 23454, A. F.
of L., or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activ-
ities for the purposes of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately at its Manhattan District office copies of the
notice attached hereto marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for 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 respondent to insure that said
notices are not altered, defaced, or covered by any other material; and
(b) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that the respondent unlawfully discriminated against Michael J.
Cavallo in violation of Section 8 (3) of the Act, be, and it hereby is,
dismissed.
MEMBER MURDOOK took no part in the consideration of the above
Decision and Order.
Matter of Sohio Pipe Line, 75 N L. R B 858
In the event that this Order is enforced by a decree of a circuit court of appeals, there
shall be inserted before the words "A Decision and Order " the words "Decree of the United
States Circuit Court of Appeals enforcing."
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to.
form labor organizations, to join or assist American Federation of
Industrial and Ordinary Insurance Agents Union, Local No.
23454, A. F. of L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection. All our employees are
free to become or remain members of the aforesaid union, or any
other labor organization.
THE COLONIAL LIFE INSURANCE COMPANY OF AJIERICA,
Emaplo yer.
By -----------------------------------------------------
(Representative) (Title)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Bertram Diamond, for the Board.
iVhite & Case , of New York. N Y. by Ali. Chester Bo) d ea a. for the respondent
Mr. George L Russ, of Washington, D. C, and Mr It, alter M Colleran, of New
York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by American Federation of Industrial
and Ordinary Insurance Agents Union , Local No. 23454 , A. F. of L., herein called
the Union , the National Labor Relations Board , herein called the Board, by
its Acting Regional Director for the Second Region (New York , New York),
issued its complaint dated August 1, 1946, against The Colonial Life Insurance
Company of America, herein called the respondent , alleging that the respondent
had engaged in, and was engaging in, unfair labor practices affecting commerce
within the meaning of Section S ( 1) and ( 3) and Section 2 (6) and ( 7) of the
National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the
complaint, the first amended charge , and notice of hearing thereon, were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance :
( 1) that the respondent on or about October 27 , 1944, discharged Michael J.
Cavallo, its employee , and has since failed and refused to reinstate him, because
of his union and concerted activities; (2) that the respondent from on or about
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 657
1942, vilified, disparaged, and expressed disapproval of the Union; interrogated
its employees concerning their union affiliations; urged, persuaded, and warned
its employees to refrain from assisting, becoming members of or remaining mem-
bers of the Union; threatened its employees with discharge or other reprisals if
they joined or assisted the Union. kept under observation and surveillance the
meeting places, meetings, and activities of the Union or the concerted activities
of its employees; and (3) that by these acts, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The answer of the respondent duly filed, denied that it had committed any
unfair labor practices.
Pursuant to notice, a hearing was held at New York on October 14, 15, 16, 17,
and 18, 1940, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner.' The Board, the respondent, and the Union were
represented by counsel. All parties participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
hearing on the issues was afforded to all parties. At the close of the hearing,
the undersigned granted the motion of counsel for the Board to conform the
pleadings to the proof with respect to names, dates, spellings, and other non-
substantive matters, and took under advisement the motion of counsel for the
respondent to dismiss the complaint for lack of proof. The latter motion is
hereby denied except as hereinafter indicated. At the close of the hearing,
counsel for the Board and for the respondent argued orally before the under-
signed, and counsel for the respondent subsequently filed a brief with him.
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 Colonial Life Insurance Company of America is a corporation duly or-
ganized under and existing by virtue of the laws of the State of New Jersey,
maintaining it home office and principal place of business at Jersey City, New
Jersey. It is engaged in the business of insuring the lives of its policyholders, in-
vesting its funds, and in the various other operations incident to its life insurance
business In addition to its ]ionic office, it has 40 branch offices and 5 detached
offices located in the States of New Jersey, New York, Connecticut, and Penn-
sylvania. On December 31, 1945, the respondent had more than 500,000 policies
in force with a total face value in excess of $100,000,000, held by policyholders
iesiding throughout the 48 States During the calendar year 1945, the respond-
Cut in the course and conduct of its business operations caused a substantial
amount of furniture, fixtures, mechanical equipment, paper, and other stationery
supplies to be purchased, delivered, and transported in interstate commerce from
and through seveial States of the United States During this same period the
respondent spent approximately $25,000 for postage, telephone, telegraph, ex-
press set vice, and for traveling expenses of its supervisors.
The undersigned finds that the respondent is engaged in commerce within
the meaning of the Act.
'The hearing In this proceeding eas opened originally on October 7, 1946, by Trial
Examiner Martin S. Bennett . On motion of counsel for the respondent , the hearing was
continued until October 14, 1946 . In the interim , the undersigned was duly designated
by the Chief Trial Examiner to act as the Trial Examiner in this proceeding
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
American Federation of Industrial and Ordinary Insurance Agents Union,
Local No. 23454, A. F. of L., is a labor organization admitting to membership
employees of the respondent
III. THE UNFAIR LABOR PRACTICES
A. Background
The agents who sell and service the respondent's policies of insurance are
attached to some 40 branch offices and 5 detached offices of the respondent
located in the States of New Jersey, New York, Connecticut, and Pennsylvania.
One of such branch offices is known as the Manhattan District office, located at
2315 Broadway, New York City. These agents are employees of the respondent.
With the exception of ordinary insurance, on which premiums are payable in
quarterly, semiannual, or annual installments, the premiums on the respond-
ent's industrial insurance policies are payable weekly. Collections are normally
made by the agent, who is assigned a particular debit, and who calls on the
policyholder at the latter's home.
Organizational activities among the respondent's agents in the Manhattan
District office began in the latter part of 1940. In the organizational activities
which followed, Michael Cavallo, one of the agents, took a leading role. Thus,
he called and presided at meetings of the agents, outlining to them the union
activities that were taking place at the Manhattan District office, as well as
what the agents in the respondent's other offices were doing, and solicited and
signed up agents into Local 22293. Cavallo was elected secretary-treasurer of
the local 2
In the spring of 1941, Local 22293 won an election conducted under the auspices
of the New York State Labor Relations Board, and was thereafter certified by
the said agency as the sole collective bargaining agent of the respondent's agents
employed in the district offices of the respondent in New York City, Westchester
and Nassau counties.
On June 4, 1941, the respondent and Local 22293 entered into a written collective
bargaining agreement, which by its terms was to be in effect until December 31,
1941, and provided for renewal of 1 year thereafter unless notice was served in
writing, by registered mail, of a desire to terminate by either party 30 days
prior to December 31, 1941 Cavallo was one of the signatories to this agreement
as secretary-treasurer of Local 22293.
In January 1942, a committee of Local 22293 met with the respondent to
obtain a renewal of the collective bargaining agreement. The respondent took
the position at this meeting that Local 22293 no longer represented a majority
of the respondent's agents, that it had a signed petition from the agents to this
effect, and it therefore refused to negotiate for a renewal of the collective
bargaining agreement.
Local 22293 continued its organizational activities rather spasmodically,' and
during 1942 ceased functioning and dissolved. In 1943 efforts were made to
2 When the respondent ' s agents organized in 1940, they became members of Local 22293,
American Federation of Industrial Insurance Agents Union, A. F L As will be developed
hereinafter, Local 22293 was dissolved in 1942, and sometime thereafter the remaining
union, adlierents became affiliated with Local 23454, the Union involved herein
3 Cavallo testified that subsequent to 1942 , whenever George Russ , president of the
Union, came to New York, he would call Cavallo and talk to him about reorganizing the
respondent's agents. On these occasions, Cavallo would call meetings of the agents where
they discussed such possibilities.
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 659
reactivate the interests of the respondent's agents to join Local 23454 Cavallo
became a committeeman in this local and solicited the respondent's agents in
the Manhattan and Brooklyn District offices to membership. A Board-conducted
consent election was held on September 7, 1944, which the Union lost. No new
collective bargaining agreement has been entered into between the respondent
and the Union since December 31, 1941.
B. Inteiference, restraint , and coercion
As heretofore found, Local 22293, despite its unsuccessful effort to negotiate
a renewal of its collective bargaining agreement in January 1942, continued its
organizational activities among the respondent' s agents during 1942. In 1943
and up to September 1944, similar organizational activities were carried on in
behalf of Local 23454 with Cavallo the most active Union protagonist during
this entire period
In the latter part of October 1942, Anthony J. Lagana, a home office inspector;
was assigned to inspect Cavallo's debit because of alleged arrearages. The in-
spection lasted for 2 weeks during which time Lagana accompanied Cavallo to
the homes of the policyholders, made the regular collections, made entries in
the premium and collection books, and generally discussed the business con-
ditions of the debit While they were thus out together, Lagana, according to
Cavallo, mentioned that "Word gets around in Brooklyn,"' and then cautioned
Cavallo to "get wise" to himself and "leave the Union alone." On November
2, 1942, while they were having lunch together, Lagana told CaN allo that lie
should not have organized the respondent's agents and have himself pointed out
as an organizer , particularly since he (Cavallo) did not have any complaints
against the respondent. Lagana further told Cavallo that the respondent "could
always find things for which to hie you," pointing out that the discovery of
payment of excess arrears' by an agent was one method.'
On or about November 5, 1942, William Haile, the respondent's New York State
manager, in the presence of Novick, then manager of the respondent's Manhattan
District office, told Cavallo that the inspection revealed that his work was quite
satisfactory Haile asked Cavallo if lie was not happy in his job and why lie
was not a 'good boy." When Cavallo asked Haile what lie meant and whether
he was referring to the union, Haile, according to Cavallo, said, "Must you
mention that word?" Haile exhorted Cavallo to think about himself and his
family and to stop sticking his neck out ; to go out and work with a view to be-
4 The duties of a home office mspectoi were to investigate applications for msuiance,
approve insurabnlty , make inspection of agent ' s debits, investigate complaints and death
claims, and substitute for assistant managers when a distiict office was shoithanded.
According to Richard Evans, president of the respondent, a home office inspector could
recommend the dismissal of an agent The undersigned finds that Lagana is a supervisory
employee within the meaning of the Act
° Both Lagana and Cavallo were residents of Biooklyii
Payment of excess arrears as defined by Evans is the payment by an agent of premiums
for a policyholder, where the policyholder has failed to pay the same himself at the expia-
tion of the grace period Such a payment by an agent, according to the iespondent's rules
and regulations , is a dischargeable offense
I Lagana categorically denied talking to Cavallo about the Union at any time dining tile
2-week period that they were woikmg together on the inspection F urthermoie, lie denied
that lie knew that Cavallo was an active union member this, despite the fact that practi-
cally all of the other of the respondent's witnesses were well aware of Cavallo's Union
activities and Cavallo openly solicited agents to Union membership and collected their dues
in the office The undersigned does not credit the denials of Lagana and finds that the
statements attributed to him were made substantially as testified by CIR-allo
781902-48-vol 76-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming an assistant manager rather than to always remain an agent. Haile also
told Cavallo that he was known at the home office as a radical because of his
organizing activities in behalf of Local 22293 a
Cavallo testified that early in 1943, Dolan, an assistant manager in the Man-
hattan District office, engaged him in about five or six conversations about Local
22293, and Cavallo's activities with respect thereto. In the course of these con-
versations Dolan inquired of Cavallo regarding the number of agents who had
attended a union meeting, and then indicated that he knew the agents who were
there. He advised Cavallo that since there were other agents around the office
to let them do some of the union work, as Cavallo was already doing too much
and sticking his neck out. He also warned Cavallo to "be careful" because the
respondent was out to get him.'
In the early part of 1944, Novick spoke to Louis Stahl, an assistant manager in
the Manhattan District office, about the Union activities in the office.'° Novick,
according to Stahl's undenied testimony which the undersigned credits, told
Stahl that he did not like Cavallo ; that Cavallo's Union activities were disturbing
the other agents in the office; that the home office did not favor the Union, and
the respondent might close the Manhattan District office if the Union successfully
organized there; and that it would be best if Stahl "could get something" on
Cavallo and report the matter to him."
Novick left the respondent's employ during the first week of July 1944, and the
managership of the Manhattan District office was filled temporarily by Haile 12 In
August 1944, Haile called Stahl into the manager's private office and told him he
was to be discharged for having signed a petition which the agents had drafted
and submitted to the respondent demanding Novick's reinstatement to his man-
agerial position. Stahl testified that after he pleaded with Haile to be permitted
to remain in his job, Haile agreed, but only after lie had extracted a promise from
Stahl, that Stahl would "get something on Cavallo" because Cavallo was a trouble
maker in the office, and would give him (Haile) daily information about Union
activities that were going on in the office.
Haile denied having made the statements ascribed to him by Stahl. Although
he admitted talking to Stahl about the latter's signature on the petition for the
reinstatement of Novick, he stated he did not speak to him about Cavallo, nor
about enlisting his aid to spy on the Union, but merely told Stahl that he did
wrong in signing his name to the petition since he was in an administrative
capacity and in such a position he did not believe Stahl had a right to sign the
petition. The undersigned was impressed with the credibility of Stahl as
reflected by his over-all testimony, and his attitude and demeanor on the witness
stand Haile did not similarly impress the undeisigned. As heretofore noted,
the undersigned did not find the testimony of Haile generally to be credible. The
9 Haile categorically denied this conversation with Cavallo In answer to a series of
leading questions he denied that he tallied about the Union to Cavallo and that he told
Cavallo he was known as a radical Haile from his demeanor on the witness stand im-
pressed the undersigned as an unreliable and untiustworthy witness. The undersigned
does not credit Haile's denials and finds that the statements attributed to him were made
substantially as testified to by Cavallo.
Dolan was no longer in the respondent ' s employ at the time of the instant proceeding
and did not appear as a NNituess The undersigned credits Cavallo's testimony regarding
his conversations with Dolan.
10 Stahl was unable to place the exact date of the conversation , but testified that it took
place several months before Novick left the respondent ' s employ in July 1944
n Stahl was Cavallo's immediate supervisor at the time.
rz Haile acted as manager of the office until September 18, 1944 , at which time Frank
Becker was appointed to fill the position.
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 661
undersigned does not credit the denials of Haile and finds that the statements
attributed to him were made substantially as testified by Stahl.
After receiving the above-noted instructions, Stahl reported daily to Haile or
Becker" the information he had received or observed regarding the Union
activities of the respondent's agents, which usually consisted of Cavallo's activi-
ties, about meetings of agents held in a restaurant opposite the office, the agents
who attended these meetings, and the subject matter discussed at such meetings.
Stahl testified that he received the bulk of his information regarding the Union's
activities from agents Serra and Wemgast, who were under his immediate super-
vision, in addition to which he made his own observations of Union meetings in
the restam ant opposite the office. According to Stahl, when he consented to
Haile's demands as above noted, lie talked with Serra and Weingast, who were
very friendly with him and who had extreme confidence in him, and requested
their cooperation in reporting the agents' Union activities to him. Stahl further
explained that when he spoke to Weingast and Serra he related his conversation
with Haile, and indicated that if he did not fulfill his obligations he might lose
his job. Furthermore, that inasmuch as he (Stahl) was ineligible to attend the
Union meetings, whereas they could attend, the best thing for them to do would
be to work along with Stahl and the respondent, particularly since they werv
elderly men and if they did not cooperate they would not be in the favor of the
respondent34
Thursday of each week was a regular canvass day for new business for the
agents. The record reveals, however, that it was the custom for agents to stop
at a restaurant for a snack after they completed their office routine and before
going into their territories. Cavallo testified that while the agents were so
gathered together in the restaurant opposite the office, he would conduct a short
Union meeting advising the agents of current Union activities. Toward the end
of August 1944," Haile, according to Stahl. told him to try to hamper the Union
meetings and in this regard instructed him to take out several agents to canvass
for new business on Thursdays in order to prevent their appearance at the
Union meetings."
As heretofore noted, Becker, before his official appointment as manager of the
Manhattan District office on September 18, 1944, worked there from August 1944,
13 Although Becker officially took over the managership of the Manhattan District office
on September 18, 1944, he was regularly assigned to that office in August 1944 to assist
Haile.
14 Serra , testifying as a witness for the respondent , admitted being under Stahl's super-
vision in 1943 and 1944. Serra further admitted his membership in the Union and having
attended at least three Union meetings . Although he denied that Stahl ever requested him
to report union activities, Serra stated that on occasion he did talk to Stahl about the
Union, because they worked together. Serra impressed the undersigned as an unreliable,
untrustworthy witness. The undersigned does not credit his testimony. Weingast did not
appear as a witness, and the record does not disclose if he is yet in the employ of the
respondent The undersigned credits Stahl 's testimony and finds that Weingast and Serra
reported the Union's activities to him upon his request and that he in turn transmitted
such information to Haile or Becker
11 Stahl was unable to remember the exact date of this conversation, but testified that it
took place about a week or two before the Board election held on September 7, 1944
16 Haile denied that he told Stahl how to hamper union meetings He admitted that
while he was in charge of the Manhattan District office he wanted Stahl to go out with
the agents on Thursdays and Fridays to canvass. It is noted in this regard that the
agents do not have any set hours They work various hours during the day, at night,
Saturdays and even Sundays when they feel it is most feasible to make collections and
solicit new business. The undersigned does not credit Haile's denials and finds that the
conversation took place substantially as testified to by Stahl.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally assisting Haile Stahl testified that when Becker came on the scene
he continued to report the Union's activities to Becker in the same manner as he
had to Haile, and that Becker complimented him on his good work and told him
to continue In addition Becker told Stahl that Cavallo would have to be weeded
out because he was a "trouble maker." Becker further told Stahl to take the
agents out canvassing in order to make them unavailable for Union meetings."
About 10 or 12 days before the Board election Haile, according to Stahl, told him
to talk to Weingast and Serra and influence them not to appear in the office when
the balloting took place, foi the reason that even if these men promised Stahl that
they would vote against the Union there was the possibility that if they appeared
"they may get a change of heart the last clay" and vote for the Union Haile
warned Stahl to use his ingenuity in talking to Weingast and Serra, to explain
fully what the respondent expected of them, but not to be "too open about it" since
it was a violation of the National Labor Relations Act. In another conversation
just prior to the Board election, Haile told Stahl that in his efforts to break up the
Union, he (Haile) went to agent Vincelli's home, presented Vnicelli's daughter
with a gift, and promised him a larger debit; 18 that lie also promised agent Lopez
an assistant managership it Lopez did not work for the Union. In addition
Haile told Stahl that he was observing the other district offices of the respondent
and trying to do a job in them in order to arrive at a determination as to how
the election results would go Haile. according to Stahl, indicated that in the
other district offices lie had been successful in swaying the men to vote against
the Union and he knew from the meetings he held that they "will all vote for the
company."
Haile denied the above-noted conversation with Stahl. He admitted, however,
that lie had visited agent Vincelli's home during August 1944, on the occasion
when Vincelli's wife had given birth, and that he sent a $3 dress for the baby.
He explained that this was not the first occasion that lie had given an agent a
gift, since it was his regular custom to send flowers or other gifts when either
an agent or a member of an agent's family is sick With regard to a larger debit
for Vincelli, it was Haile's testimony that Vincelli had complained about other
agents having larger debits than he, and that in the spring of 1945, Vincelli's
debit was increased from $30 to $40. Vtncelli, testifying as a witness for the re-
spondent, stated that during the year 1944, both before and after the Board elec-
tion, he spoke to Haile about an increase in the size of his debit, and that it was
increased in February 1945. Vincelli denied that there were any conditions at-
tached to the increasing of his debit The undersigned was not impressed by
Vincelli's demeanor on the witness stand, and does not credit his testimony In this
regard. Halle testified further that Lopez had been an assistant manager in
1941 and 1942 and that because of a reduction in the agents staff at that time,
with a proportionate reduction Ili the number of debits, the assistancy staff was
cut by one Lopez was the youngest assistant manager in point of seniority and he
was reduced to an agent's status, with the understanding that if a promotion was
available in the suture, he would get it if his work was satisfactory. Although
no proof was offered by the respondent to show that either the business of the
Manhattan District office increased in 1944, or that new agents had been added
to the staff, nevertheless, Lopez was appointed an assistant manager again in
17 Becker categorically denied Stahl's testimony as set forth above The undersigned
does not credit Beckei's denials and finds that the statements attributed to him were made
substantially as testified by Stahl
"It should be noted that an agent's pay is to a large degree proportionate to the size
of his debit since he is paid a commission on his collections
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 663
October or November 1944, shortly after the Board election As hereinabove
noted, the undersigned did not find Haile's testimony generally to be credible.
The Undersigned does not credit Haile's denials and finds that Stahl's testimony
substantially reflects his conversation with Haile.
Stahl testified that lie talked with Weingast and Serra relating to them Haile's
conversation regarding the election. On September 7, 1944, Weingast and Serra,
according to Stahl, called the office where the balloting was taking place, to re-
port that they were sick and consequently they did not vote in the election. Wem-
gast did not appear as a witness. Even though Serra worked on the Monday,
Tuesday, and Wednesday preceding the election, lie admitted that he did not
vote in the election on Thursday, testifying as follows :
Q And will you tell us why you did not vote in that election?
A. The day previous to the election I had my foot sprained, and I was
trying to have it cured for three or four clays. Finally, I went to a private
woman, and she fixed it for me.
That is why I couldn't attend to that meeting. In fact, I would like to
attend that one in particular
Q. Did you go to a doctor?
A. Twice, yes, I think it was Dr Cavalli from 111th Street. He bandaged
it up for me and it was still worse than a woman nearby to my house who
massaged it and bandaged it up. That is how I was able to walk again.
Trial Examiner LINDNER. Did you go to the office on Friday?
The WITNESS. Yes.
Trial Examiner LINDNER. You went to the office on Friday?
The WITNESS I was limping around.
The WITNESS Yes, but I couldn't work even though I went there.
Serra from his demeanor on the witness stand did not impress the undersigned
as a trustworthy witness The undersigned does not credit his testimony as set
forth above and finds that Serra and Weingast did not appear to vote in the
Board election because of Stahl's conversation and instructions to them.
Shortly after the election, which the Union lost, Haile told Stahl that he "was
very glad that everything went according to Hoyle." Haile also requested Stahl
to continue making his daily reports about the activities of the agents, which
Stahl did until April 1945.10
Conclusions
It is the respondent's contention as set forth in its brief, that its consistent
policy was to refrain from interference with union organization and activity,
and that this policy is amply demonstrated by the fact that two circulars were
issued by the president of the respondent setting forth such position. The first
circular was dated August 22, 1944, and was addressed only to all New York
State managers. It referred specifically to the forthcoming Board election and
among other things contained a paragraph which in effect warned the managers
not to discuss the election in such a way that it might be construed as influencing
the way the agents vote. The second letter dated September 1, 1944, to all agents
"Stall was discharged by the respondent in April 1945 , allegedly for making excess
payments on two policies . His discharge is not alleged as a violation of the Act. Haile
denied the above statement to Stahl after the election His denial is not credited by the
undersigned.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the State of New York was an American Tube letter20 with minor variations.
This contention is without merit. It appears clear from the letters that they
referred specifically to the actions the respondent's managers were to take in
the scheduled election. Moreover, even if the letters can be construed to indicate
the respondent's neutrality with regard to union organization and activity, such
policy set forth to the managers on August 22. 1944, could not have affected
the unfair labor practices which were shown to have been committed prior
thereto, as the record contains no showing of any repudiation by the respondent
of such prior unfair labor practices More than mere lip-service to the command
of the Act is necessary if the right of the employees to remain free from employer
interference, restraint, and coercion is to be protected. If, indeed, the respondent
did at any time ever enunciate a policy of neutrality, that policy was honored
almost entirely in the breach-and the vu -itions of that alleged policy were
committed by some of the respondent's Ugliest supervisors, including its New
York State manager, the district office manager, and by the supervisor closest
to the employees, the assistant manager.
The undersigned finds that by the totality of the conduct and statements of
Haile, Becker, Stahl, Dolan, Novick, and Lagana as hereinabove set forth, the
respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The alleged discriminatory discharge of Michael Cavallo
The complaint alleges that the respondent on or about October 27, 1944, dis-
charged Michael Cavallo, an agent, and since has failed and refused to reinstate
him because of his Union membership and activities. The respondent contends,
however, that Cavallo was discharged for an infraction of its rules.
Cavallo was an agent in the respondent's employ from March 1939, until
October 27, 1944.
According to the undisputed and credited testimony of Richard Evans, presi-
dent of the respondent, the payment of excess arrears by agents is one of the
"great evils" of the insurance business, and something that the respondent was
constantly fighting and making every effort to eliminate. Thus district office
managers, state supervisors, and in fact Evans himself from time to time ad-
dressed agents at meetings, cautioning them that anyone involved in such prac-
tice would suffer dismissal. The agent's contract of employment with the
respondent, his collection book, and indeed the collective bargaining contract
between Local 22293 and the respondent during 1941 contained specific language
to the effect that payment of excess arrears by an agent is grounds for dismissal.
On October 13, 1944, Haile confronted Cavallo with the policies of Henry and
Frances Hartman carried by Cavallo on his debit, and accused him of paying
excess arrears on the said policies during May 1944. Cavallo admitted to Haile
that he had paid excess arrears on these policies,' with the result that Haile gave
him 2 weeks within which to settle his accounts and books with the respondent
and terminated his employment effective October 27, 1944.
It was the contention of counsel for the Board that before Cavallo's discharge
the respondent condoned the past payments of excess arrears by its agents.
Thus, Cavallo, in support of this contention, testified ti2at Haile either toward
R0 See Matter of American Tube Bending Co, 44 N L R. B. 121.
Y1 It is noted also that Cavallo admitted paying excess arrears on other policies prior to
this time.
THE COLONIAL LIFE' INSURANCE CO. OF AMERICA 665
the end of September or beginning of October 1944, addressed the agents on the
subject of enforcing the respondent's rules and said that any agent caught paying
excess arrears from that time on, would be discharged and that "what is past
is forgotten "
Haile denied having made the statement attributed to him by Cavallo. Five
agents who were in the respondent's employ at the time Haile was in charge of
the Manhattan District office in 1944, testified that they did not hear him make
any statement excusing the payment of excess arrears. On the contrary, the
evidepce, both documentary and oral, leads the undersigned to the opinion that
the respondent at every opportunity, tried to hammer home to its agents that
excess arrears payments would result in their dismissal. The undersigned finds
that Haile never condoned payment of excess arrears by agents.
Cavallo further testified that in an address to the agents in October 1944, Evans
mentioned "Let by-gones be by-gones and stick to work." Evans admitted that
he may have used this expression and explained that he was making an appeal to
the agents to forget any personal animosities which may have resulted from a
rather heated election. He, however, did not tell the agents that payment of
excess arrears by any of them in the past would be forgotten. Evans' explanation
in this regard is credited.
While, as heretofore found in the prior section of this report, the respondent
did in its activities against the Union, indicate a desire "to get" Cavallo, never-
theless, it appears clear to the undersigned that in its discharge of Cavallo, the
respondent (lid not deal with him differently than it dealt with approximately
12 other agents and assistant managers who were discharged in the past sev-
eral years for payment of excess arrears, and that Cavallo's Union activities did
not form a substantial element which brought about his discharge. Under all
the circumstances, the undersigned finds that the facts herein do not warrant
the inference that, in discharging Cavallo, the respondent did so because of his
Union and concerted activities. The case as to Michael Cavallo must therefore
be dismissed, and it is so recommended hereinafter.
IV. THE EFFECT OF TILE UNFAIR LABOR P iACTIOES 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, tiaflic, and commerce
among the several States and such of them as have been found to be unfair
labor practices tend to lead to labor disputes burdening and obstructing com-
merce 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.
The undersigned has found that the respondent has engaged in a general pattern
of unfair labor practices designed to discourage activity for and membership in
the Union . It has done this in various ways-through the activities of its super-
visory officials , by its disparagement of the Union , by its surveillance of Union
activities , and by its request to several employees not to vote in a Board elec-
tion. These are no mere isolated instances , but, on the contrary , they con-
stitute a general pattern of conduct designed to defeat the employees ' freedom
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of self-organization. They reveal an attitude by the respondent of opposition co
the purposes of the Act to protect the rights of employees generally '22 and it is
accordingly necessary that the respondent be ordered to cease and desist from
in any manner interfering with these rights, and the undersigned will so
recommend.
Upon the basis of the above findings of fact, and upon the entire record, the
undersigned makes the following:
CONCLUSIONS OF LAW
1 American Federation of Industrial and Ordinary Insurance Agents Union,
Local No. 23454, A. F. of L., is a labor organization within the meaning of Section
2 (5) of the Act.
2. 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 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
4 The respondent has not discriminated in regard to the hire and tenure
or the terms and conditions of employment of Michael Cavallo.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Colonial Life Insurance
Company of America, Jersey City, New Jeisey, its officers, agents, successors,
and assigns shall:
1. Cease and desist from interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Aniei ican Federation of Industrial and Ordinary Insurance
Agents Union, Local No 23454, A. F. of L., or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies-of the Act:
(a) Post at its Manhattan District office copies of the notice attached to the
Intermediate Report herein marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall, after being-
duly signed by the respondent's representative, be posted by the respondent im-
mediately upon receipt thereof and maintained by it for sixty (60) consecutive
(lays thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered by any
other material ;
(b) File with the Regional Director for the Second Region, on or before
ten, (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting foith in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of the Intermediate Report, the respondent notifies said
22 May Department Stores v. N. L. R. B , 326 U. S. 376.
THE COLONIAL LIFE INSURANCE CO. OF AMERICA 667
Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
It is recommended that the allegations of the complaint as to Michael Cavallo
be dismissed.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) dais from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D C , an of iginal and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203 65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board
SIDNEY LINDNER,
Trial Examiner.
Dated February 27, 1947
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist AMERICAN FEDERATION OF INDUSTRIAL AND ORDI-
NARY INSURANCE AGENTS UNION, LOCAL No. 23454, A. F. or L, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection. All our employees are
free to become or remain members of this union, or any other labor organi-
zation
THE COLONIAL LIFE INSURANCE COMPANY OF AMERICA,
Employer.
By -------------------------------------------------
(Representative ) (Title)
Dated------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.