The Hartford Insurance Group

National Labor Relations Board - Board Decisions

Sep 24, 1969

178 N.L.R.B. 579 (N.L.R.B. 1969)

THE HARTFORD INS. GROUP 579
The Hartford Insurance Group and United Industrial
Workers of North America , Pacific District,
affiliated with Seafarers ' International Union of
North America, AFL-CIO. Cases 20-CA-5071 and
20-CA-5113
September 24, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCii AND MEMBI RS
JENKINS AND ZAGORIA
On June 9, 1969, Trial Examiner Benjamin K.
Blackburn, issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
the dismissal of these allegations. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, The Hartford Insurance
Group, San Jose, California, its officers, agents,
successors, and assigns. shall take the action set
forth in the Trial Examiner's Recommended Order.
the Charging Party, filed unfair labor practice charges
against The Hartford Insurance Group, referred to herein
as Respondent, in Case 20-CA-5071 on June 27, 1968,'
and in Case 20-CA-5113 on July 22. On September 6 the
Charging Party filed an amended charge in the latter case.
On December 12 the General Counsel of the National
Labor Relations Board, by the Acting Regional Director
for Region 20 (San Francisco, California), consolidated
the two cases for hearing and issued a consolidated
complaint in which he alleged that Respondent had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondent's answer, duly
filed on December 18, admits certain allegations contained
in the consolidated complaint, denies others, and denies
that Respondent committed any unfair labor practices. I
heard these cases, pursuant to due notice. in San
Francisco, California, on February 27 and 28 and March
31 25. 26, and 27, 1969. At the outset of the hcarng I
granted the General Counsel's motion to amend the
complaint in various respects, as a result of which some
alleged unfair labor practices were stricken. Consequently,
the issues litigated were (1) whether words allegedly
spoken by Respondent's admitted Supervisors John Clark
and Carlin P. Christensen on various occasions violated
Section 8(a)(l) of the Act and (2) whether the admitted
discharges of outside adjusters Robert E. Shea on June 18
and Robert E Dilley on August 30 violated Section
8(a)(3) and (1).
All parties appeared at the hearing and were given lull
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
to file briefs.
Upon the entire record,' including briefs filed by
Respondent and the General Counsel, and from my
observations of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS Oi• FACT
I.'i Hr BUSINESS 01 RESPONDENT
Respondent, a Connecticut corporation, is engaged in
the insurance business throughout the United States. Its
home office is located in Hartford, Connecticut It has
branch offices scattered over the country, including several
in California One of these is located in San Jose. During
the year just prior to issuance of the consolidated
complaint herein, Respondent received more than $1
million in premiums and paid out more than $1 million in
benefits which crossed State lines in getting to or coming
from its home office During the same period the San Jose
office grossed more than $500,000, more than $50,000 of
which was remitted to the home office. On the basis of
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THi . LABOR ORGANIZATION INVOLVED
TRIAL EXAM [NER'S DECISION
STATEMbNT OF THE CASi,
BENJAMIN K. BLACKBURN, Trial Examiner. United
Industrial Workers of North America, Pacific District.
affiliated with Seafarers' International Union of North
America, AFL-CIO, referred to herein as the Union or
The consolidated complaint alleges . the answer admits,
and I find that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
'All dates are 1968, unless otherwise spcLified.
'The General Counsel's motion to correct the transcript in various
respects is granted
178 NLRB No.96
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE UNFAIR LABOR PRACTICES
These cases grow out of an organizing campaign. The
Union petitioned (Hartford Insurance Group, Case
20-RC-8037) March 11 for an election in a unit composed
of adjusters and appraisers at Respondent's San Jose
branch office A hearing was held on that petition on
April 19. On June 17 the Regional Director issued his
decision that a unit of claims department employees at the
San Jose office was appropriate and directed an election.
The election was held on July 15. The Union was certified
as collective-bargaining representative of the San Jose
claims department employees on July 23. During the
course of the campaign conversations took place in which,
the General Counsel contends, John Clark, manager of
the San Jose claims department, and Carlin P
Christensen, a supervisor of outside adjusters at the next
lower level in Respondent's supervisory hierarchy in San
Jose, violated Section 8(a)(1). I deal with these various
incidents here before turning to the major issue
Respondent's motive for discharging Robert Shea and
Robert Dilley in the interest of simplicity. Although I
pass on them separately, 1 have considered each in the
context of the total situation set forth in detail below.
A. The Independent 8(a)(1) Issues
1. John Clark
Just after the election on July 15, an adjuster named
Philip Reinheimer had occasion to go into Clark's office.
Clark was admittedly upset at the time. He said, referring
to the Union's victory, "I suppose congratulations are in
order for you." Reinheimer said. "Thank you, we are
pretty sure that we have done the right thing, at least 80
percent sure." Clark said, "You'd better be real sure
because your career depends on it."' I agree with the
General Counsel that Clark thereby threatened
Reinheimer with reprisal because of his adherence to the
Union. I find, therefore, that Respondent violated Section
8(a)(1) of the Act in this episode.
2. Carlin Christensen
a. Interrogation
The complaint alleges that Christensen "during March
1968, and on or about July 21, 1968,4 . . interrogated
employees regarding their membership in or activities on
behalf of the Union." This portion of the complaint is
based on the testimony of the two discriminatees. Shea
and Dilley testified that, from the time union activities
became a topic of common knowledge and interest in the
office, Christensen asked them casual questions about
what was going on. Shea said, for example, "On several
occasions he asked me what was going on in the union. .
. On several occasions he asked me what was going on
and I would just give him negative answers. I didn't give
him any information " A typical part of Dilley's
testimony reads:
'The only discrepancy between Reinheimer 's version and Clark's version
is Clark's assertion that his closing remark was " i hope you know what
you have done " If this is a credibility conflict , I credit Reinheimer over
Clark In any event , I think the words Clark admitted speaking are as
much of an implied threat as the words attributed to him by Remheimer. I
would find a violation of Sec 8(a)(1) in this incident even it I credited
Clark over Reinheimer
'There is no evidence of any specific incident on or about July 21 which
Q. What would he say to you?
A. Well, "What' s going on with the union ? What's
happening?" questions like you might have a problem
as far as classification of th4 girls This type of thing.
Christensen admits that this sort of exchange went on
during the preelection period . Christensen works in a large
room alongside nonsupervisory employees The desks are
only a few feet apart Conversations among the employees
about the union campaign and such details as whether
certain job classifications would be in or out of the unit
were carried on freely and openly in front of Christensen
There is no evidence that Christensen sought to learn any
secrets about the Union for Respondent 's benefit , that any
of the employees were, in fact, interfered with , restrained,
or coerced by Christensen ' s casual remarks, or that the
conversations differed in any respect from the passing
comments on other topics of general interest which were a
daily occurrence between Christensen and the persons
working around him. I find , therefore, that the questions
asked by Christensen on these occasions were not of the
sort which would reasonably be found to interfere with,
restrain , or coerce employees in the exercise of their
Section 7 rights and that Respondent did not thereby
violate Section 8(a)(1).
b. Threat of blacklisting
The complaint alleges that Christensen "threatened
employees with blacklisting or loss of employment in the
insurance industry " Dilley testified that in May or June,
before the discharge of Shea, Christensen "informed me
that insurance companies keep or blacklist people that are
involved in union activity and that I was either on the
blacklist or would be because of my activities. . . I
agreed that I probably would be." Christensen denied
making any such statement. I credit Dilley. This
statement was obviously made during one of the
conversations rife in the office while the Union's petition
was pending. Unlike Christensen's casual inquiries
considered just above, this remark was, considering the
context in which it was made, reasonably calculated to
coerce Dilley. Dilley was a leader in the organizing
campaign. Even if Christensen meant it only as a joke. the
spirit in which lie says he made many of his comments
about the Union, mention of a blacklist could not have
been funny to an employee in Dilley's position. I find,
therefore, that Respondent violated Section 8(a)(1) of the
Act in this espisode.
c. Threat of discharge
The complaint alleges that Christensen "threatened
employees with discharge" between June 18 and July 15
Dilley testified that, sometime in late June.
Somebody had made a comment about something [-]
one of the girls said something and I jokingly said that
it would be in the budget for next year and as I walked
toward my desk Mr. Christensen said that I wasn't in
the budget for next year. . . As I recall he said that if
the union loses the election that I would be around for
a couple of weeks at best - or something like that. . . . I
replied that it would probably be shorter than that.
Christensen was asked whether he ever threatened
employees with discharge between June 18 and July 15.
could be interpreted as an interrogation Shea was discharged more than a
month before and was no longer on the premises Dtlley was on vacation at
that time
THE HARTFORD INS. GROUP 581
He answered that he had one conversation with Dilley in
which he said, "Mr. Dilley, I don't care about your union
activities, but we still have to get the work done here
regardless. That is what we are hired for, to get the work
done." It is obvious that Dilley and Christensen are
talking about two different conversations I take
Christensen's response to the question put to him to be a
denial that he ever spoke the words attributed to him by
Dilley I credit Dilley. Even though Dilley himself puts the
beginning of this exchange in a joking context,
Christensen's remark is the same as the blacklist incident
considered just above. To a man in Dilley's shoes, whether
he would be in next year's budget if the Union lost the
election was no joking matter. I find, therefore, that
Respondent violated Section 8(a)(1) of the Act in this
episode
d. Jobs for anti a ion votes
The complaint alleges that Christensen "advised an
employee that the Respondent had assured employees
permanent employment upon condition they would vote
against representation by the Union." The only evidence
offered in support of this allegation is Dilley's testimony
that, on June Rl, Christensen told him "that an adjuster
by the name of Bud Mohn was being transferred to the
San Jose office from the Oakland office, that he was a
long time employee of the Hartford, some 15 years, and
that he had been interviewed by people in San Francisco
as far as management of the Hartford and probably would
have no choice but to vote against the union . . I said
something about `Here come the transfers,' or something
like that "
There is no support for the precise allegation of the
complaint in this testimony nor do the words allegedly
spoken by Christensen in this conversation establish, by
any reasonable interpretation, that Respondent did, in
fact, predicate Mohn's transfer to San Jose or his future
with the Company on Mohn's promise to vote against the
Union. I find, therefore, that Respondent did not violate
Section 8(a)(l) of the Act in this episode.
B The Discharges
1 Facts
The claims department of Respondent's San Jose
branch office employs both outside and inside adjusters. A
case is assigned to an outside adjuster when, in the
judgment of a claims supervisor, work is required outside
the office in order properly to investigate, evaluate, and
settle the claim Robert Dilley went to work for
Respondent as an outside adjuster in September 1966,
Robert Shea, in March 1967. Dilley had 8 year.' prior
experience in claims work. Shea had 10 John Clark came
to the San Jose office as manager of the claims
department in July 1967. William Dugan came to the San
Jose office as a claims supervisor in late August 1967
Dilley, Shea. Stallcup, and Mackey were assigned to him
for supervision Respondent review's each employee's work
on the anniversay date of his hiring and grants or
withholds an annual raise. When Dilley's anniversary date
came up in September 1967 Clark withheld his raise and
placed him on a month's probation. No formal notice was
taken of the end of the probation At the end of the
month Dilley continued to work for Respondent Ife did
not receive a raise. Carlin Christensen came to the San
Jose office as a claims supervisor in July 1967. Gilbert
Cooper and Donald Smith were originally assigned to him
for supervision. Around January 22 Dilley was transferred
from Dugan's supervision to Christensen's '
On December I, 1967, Shea was involved in a minor
accident while driving his company car Shea had been
drinking at the time, a fact reflected in the police report.
Driving a company car while drinking is a firing offense
under Respondent's rules. Shea reported what had
happened to Clark. Clark told Shea, "Well, I don't think
that's any problem. We'll work that out all right." Clark
talked to higher management about the accident. Shea
was not discharged In February, Shea's company car was
damaged on two more occasions In one incident the front
end was damaged when Shea pushed his wife's car In the
other, a fender was dented while the car was parked on a
parking lot. Shea did not report either accident because he
considered the first his fault and had the damage from
both repaired at the same time at his own expense. None
of the accidents was mentioned in any of Shea's
subsequent dealings with Respondent leading up to his
discharge. They were first raised by Respondent in
cross-examination of Shea during the hearing before me
Several material incidents took place in January in
addition to the transfer of Dilley from Dugan's to
Christensen's supervision Dilley received a raise It was
smaller than the annual increase he would have received
on the occasion of his anniversary in September 1967 if
Clark had not found him wanting at that time. Dugan
told Dilley he was being transferred to Christensen
because Respondent needed someone who was reliable to
handle the Santa Cruz territory Clark told Dilley he
appreciated the way Dilley had worked with Dugan and
recognized Dilley's ability to deal with people effectively.
Clark discharged Mackey on Dugan's express
recommendation Clark ordered adjusters to give priority
to new cases Shea complained about and was taken off
subrogation cases. a special responsibility he had handled
up until that time in addition to his other duties. In late
February or early March Christensen recommended that
Clark fire I)illcy. Dilley was not discharged.
From February 19 through March 1 a team composed
of two men from Respondent's home office and Marvin
Franklin,' a Pacific Department field supervisor, audited
the San Jose office. The audit consisted, in part, of
inspecting the files of all cases "created" in November
1967, that is. all files which had come into existence
because of claims filed in November A written report the
auditors prepared at the end of their inspection rated
Shea. "Aptitude good. initiative fair. ability as negotiator
and investigator is fair Has tendency to short-cut
investigations and documentation of files. Potential is
limited at the present time." It rated Dilley. "Aptitude is
fair, initiative is fair, ability as negotiator and investigator
is fair. Files disclose late reporting and attempts to
short-cut investigation
'This shill was caused by Dilley's assignment to the Santa Cruz
territory Donald Smith quit on December 18, 1967 . at which time the
Santa Cruz territory was assigned to Lee Purycar Although the record is
not completely clear on the point, I gather that Purycai, if he was not
already under Christensen's supervision , came under it at that point The
Santa Cruz territory came open again on January R2 when Puryear
became Respondent's resident claims adjuster in Monterey Assignment to
the Santa Cruz territory simply meant that Dilley was assigned all claims
requiring outside work which originated in and around Santa Cruz
'During the summer of 1967 Franklin performed a 6-week temporary
tour of duty in the San Jose office as a fill-in claims supervisor Dilley was
under his supervision at that time 1-ranklm was not happy with Dilley's
work because he felt that Dilley did not get enough information in his
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime in December 1967 or January 1968 union
activity began among adjusters employed in San Jose by
Fireman's Fund Insurance Company. The activity was
common knowledge in the industry. In February Clark
was instructed by his superiors in Respondent's Pacific
Department. located in San Francisco, not to discharge
anyone without clearing it with them. This order was
issued because Respondent anticipated unfair labor
practice charges if it discharged employees during an
organizing campaign.
Shea initiated union activities in Respondent's San Jose
claims department in the latter part of February He
began by telephoning Sal Lopez, AFL-CIO representative
for Santa Clara County. He told Lopez that he had heard
that Fireman's Fund's adjusters were organizing and that
he was interested in organizing Respondent. Lopez
referred him to a representative of Insurance Workers
International Union, AFL-CIO. When Shea called that
man he learned that the Insurance Workers were no
longer interested. Shea then telephoned a friend who
worked for Fireman's Fund. Fhe friend put him in touch
with Dick Nyburg. an organizer for the Charging Party.
The net result of all these telephone calls was a meeting
on February 26 in a San Jose restaurant of Shea, Lopez,
Nyburg, John Salazar, the Union's attorney, and Jack
Jordan, an adjuster who worked for 1-ireman's Fund. Shea
left the meeting with a supply of the Union's
authorization cards.
Sometime between February 26 and March 7 Shea
recruited Dilley. They jointly started to sound out other
adjusters. The result was a meeting in another San Jose
restaurant on March 7 arranged and conducted by Shea
and Dilley and attended by other adjusters employed by
Respondent. On March 9 Nyburg met with Shea. Dillcy,
and the other adjusters at the restaurant where Shea had
first gotten together with representatives of the Union. At
the end of this meeting the adjusters named Shea and
Dilley as their in-plant representatives for purposes of the
organizing campaign. On March Il the Union filed the
petition in Case 20-RC-8037, supported by authorization
cards obtained by Shea and Dillcy. The petition was
received in Respondent's San Jose office the same day.
Dugan criticized Shea's work from the beginning of
their supervisor-employee relationship. This was not
unusual, for the nature of Dugan's job required him to
oversee closely the work of several adjusters all of whom
he criticized from time to time He was especially
concerned that Shea missed appointments This caused
extra work for Dugan because persons called up to
complain or inquire, thus putting Dugan to the extra task
of straightening the matter out with Shea On several
occasions Dugan discussed his concern about the way
Shea was doing his job with Clark He never
recommended that Clark discharge Shea. Clark initiated a
conversation of this type with Dugan in early March.
Dugan did not recommend that Clark lire Shea on this
occasion. Clark decided to discharge Shea on March S.
Pursuant to his instructions, he telephoned Rufty, claims
manager of the Pacific Department, to report his decision.
In a return call that day from Robert Harkins, personnel
director of the Pacific Department, Clark was authorized
to discharge Shea on March 11. When the petition in
Case 20-RC-8037 was received in the San Jose office on
March 11, Jack Carlson, manager of the office, called
Harkins to report. He reminded Harkins that Shea was
scheduled to be fired that day and asked whether Clark
investigations for Dilley and Franklin to be able to do their jobs properly
should go ahead as planned . Harkins told Carlson to hold
up until he heard from San Francisco . The Pacific
Department consulted Wesley Sizoo, Respondent 's lawyer.
Later in the day, Harkins called Clark and, pursuant to
Sizoo's advice , revoked the decision to discharge Shea.
A few days after March 11 Dilley learned that
Christensen had been talking to some of the girls in the
office about the organizing campaign Dillcy told
Christensen to ask him or Shea. not the girls, it he had
any questions about the Union . Christensen reported this
conversation to Clark. Sometime around this date
Christensen wrote a note to Clark in which he stated that
Dilley was spending too much time on union activities and
not enough time on his work This followed a
conversation with Dilley in which Christensen told Dilley
the same thing When the anniversary date of Shea's
hiring came up in March, he was passed over for a raise
It was during this period following the filing of the
petition in Case 20-RC-8037 that general conversations
about the organizing campaign, what was going to happen
next, and who would be included in the unit were
particularly common in the otlice. These conversations are
treated in greater detail in section A, 2 , a, above. On
April 19 the hearing in Case 20-RC -8037 was held at the
Board ' s office in San Francisco to resolve disputes over
who should be included in the unit. Clark testified for
Respondent . Dilley and Karen Shiraki, an inside adjuster,
testified for the Union.
In early May, while Dugan was on vacation, Clark
reviewed Shea's case files with him, pointing out areas in
which Shea ' s work was deficient . The deficiencies
consisting of not having done things which ought to have
been done such as interviewing a witness to an accident
or, if the thing had been done, not properly reducing it to
some tangible form such as a memorandum or a
photograph which was present in the file. These criticisms
were similar to those voiced by Dugan to Shea throughout
their relationship . Shea conceded that Clark 's criticisms
were justified and promised to try harder . In late May
Dugan again came to Clark and discussed Shea's
shortcomings Again, Dugan did not recommend that
Clark discharge Shea Shea was on vacation the week of
June 9-15.
On June 8 Clark again decided to discharge Shea. He
wrote to Rusty, his superior in San Francisco , that day
pursuant to his standing instructions about clearing
discharges during this period of union activities On June
17 Rufty telephoned Clark and authorized him to fire
Shea. That same day the Regional Director for Region 20
issued his Decision and Direction of Election in Case
20-RC-8037 A copy was received in the San Jose office
on June 18. Despite receipt of the decision , Clark called
Shea in and discharged him as planned around 5:30 p.m
that day. Clark told Shea he had to let him go because his
work was not up to par and Dugan had to supervise his
files too closely Shea asked whether receipt of the
decision in the office that day had anything to do with the
decision to terminate him. Clark replied that he did not
know what Shea was talking about.
Sometime shortly before Shea's discharge the
Dilley-Christensen conversation about blacklisting set
forth in section A , 2. b. above. occurred. Sometime
shortly after Shea's discharge the Dilley-Christensen
conversation about next year ' s budget set forth in section
A, 2 , c, above , occurred . On June 21 the
Dilley -Christensen conversation about adjuster Bud Mohn
set forth in section A, 2, d, above, occurred Sometime
during June, at a biweekly adjusters meeting, Clark
THE HARTFORD INS. GROUP 583
complimented Dilley on the manner in which he had
handled a particular case.
Sometime between June 18 and July 15 Christensen
told Miss Shiraki, "Dille} better watch it. You know what
happened to Shea,' and it's a funny thing, Shea was
terminated the same day that NLRB election date was
sent down."'
Dilley began a 2-week vacation on July 15 That day he
acted as the Union's observer in the election in Case
20-RC-8037 Following the election, which the Union won
by a margin of 19 to 3, the Clark-Reinheimer
conversation set forth in section A, 1. above, took place
In July, apparently after July 15 and before July 19.
Christensen again recommended to Clark that he
discharge Dilley.' On July 19 Jack Birkland, Rufty's
assistant in the Pacific Department, inspected the San
Jose office Clark asked him to review Dilley's work.
Birkland audited all of Dilley's files created in June He
told Clark that, if the work prior to June was as bad as it
was in June, Dilley probably should be terminated.
Dilley returned from his vacation on July 29 That
afternoon he was summoned to a meeting with Clark,
Harkins, and Christensen. He was told by Clark that
Respondent was not satisfied with his work, especially the
manner in which he was investigating claims and placing
documentation of his work in the files. He was placed on
30-day probation. He was told that if his work did not
improve in that time he would he discharged. Christensen
suggested that he plan his work more efficiently by
coming to the office early each morning and by keeping a
log, known as an adjuster's route sheet. of his daily
activities. Dilley refused to sign some notes of the meeting
which were prepared by Harkins.
Dilley did his best to impiove his work during the
month of August. He came early to the office most
mornings to plan his day's activities and get an early start
on carrying out those plans He worked some evenings
and Saturdays He kept a daily route sheet and turned it
'7 he record is hereby corrected to remove the quotation mark which
appears at this point on line 17 of page 162 of the transcript I heard no
close quotation mark at this point in the inflection of Miss Shiraki's
answer to the General Counsel's request , " Please tell us what was said"
Miss Shiraki was not examined further or cross-examined after this
question and answer
'As indicated in section A, 2, above, I credit Christensen only where his
testimony is corroborated by another witness I found him a superficially
frank and candid witness who became extremely evasive whenever the
examination, whether direct or ,cross, got into areas dangerous for
Respondent His testimony on this episode is illustrative He first denied
categorically saying to Miss Shiraki " Dilley better watch it, look what
happened to Shea " He was then asked the same thing about the second
half of the statement Miss Shiraki attributed to him His reply was that he
may have made such a statement in a jovial context to a group of people
in the office but not particularly to Miss Shiraki Later, on redirect
examination . he was asked , "Did you discuss the union with [Miss
Shirakil" Mr Dilley with her7" lie replied , " I may have said , ' What is
cooking''' or "What are you people up to" " Then, still on redirect after a
long effort to elicit from him what he remembered about his conversations
with Miss Shtraki , he was asked, "Are you saying this, that Miss Shiraki
might have participated as an observer in some group discussion'"" He
replied, "That ' s correct " Finally, on recross examination , after his
recollection was refreshed by an affidavit given to the General Counsel
during the investigation of these cases , he acknowledged making "an
offhand remark to an employee that it was peculiar that Shea was
terminated the same day that the National Labor Relations Board election
decision was received " lie went on, "As to whether it was to Miss Shiraki
or not, I couldn't answer that "
'The record is unclear on precisely when this happened I gather,
however, that it formed a part of Clark 's thinking on July 19 when he
asked Birkland's opinion about Dilley's work
in to Christensen in order to keep his supervisor apprised
of what he was doing.
On August 29 Clark reviewed Dilley's files which had
been created in July He decided to fire Dilley. On the
morning of August 30 Dilley was summoned to 'a meeting
with Clark and Christensen Clark told Diller that he had
reviewed his ides and had come to the conclusion that
Dilley had not put forth the effort he said he would and
that his work did not show any improvement during the
probation period. After a discussion of Dilley's work and
shortcomings , Clark discharged Dilley,
In November Clark and Reinheimer had a second
conversation about Reinheimer's career with Respondent.
Clark told Reinheimer that he did not understand why a
man with Reinheimer 's management potential wanted to
get involved in union activities. 10 He pointed out that
Rcinheimer s identification with the Union could tip the
scales against him it, in the future, he was competing
against another employee for promotion to a management
position and their qualifications were equal in all other
respects.
2 Conclusions
First, I do not credit Clark's testimony that he first
learned of union activity among employees in
Respondent's San Jose office on March II when the
petition in Case 20-RC-8037 was served on Respondent
Efforts to organize insurance workers in San Jose were
admittedly common knowledge as early as January, if not
before The situation was sufficiently serious to cause
Respondent to take official cognizance of it by instructing
Clark to check with his superiors in San Francisco before
discharging anyone during this perilous period Therefore,
I find that Clark knew full well that Shea and Dilley were
the coleaders of the move to organize his adjusters when,
on March 8, he made his initial decision to fire one of
them i i
But to find that Clark knew of Shea's and Dillcv's
union activities when he first began thinking of getting rid
of them is not to find that he was necessarily motivated
by their union activities. It is clear that Respondent's
niotite in these cases is Clark's motive. Therefore.
whether the discharges of Shea and Dilley violate Section
8(a)(3) and (1) of the Act must turn on an inquiry into the
state of Clark's mind
"At the time Rcinheimer was active in negotiations between Respondent
and the Union as a member of the Union' s negotiating team He is still
employed as an outside adjuster in Respondent s San Jose office There is
no indication that he has been discriminated against in any way because of
his union activities
"Respondent 's brief, in effect , concedes this point It first states, "Clark
had no knowledge of the union 's activity in the office until March 11.
1968 This stands unchallenged in the , record and is very significant "
However, a page later, in discussing Respondent 's reason for canceling its
decision to discharge Shea at that time the brief states, "Shea had
announced his advocacv of the union and his work for the union lie had
been warned about the low quality of his work for months He was aware
his employment was in jeopardy To be discharged on the day an RC
petition was received would virtually constitute a threat, defiance and
gesture of contempt to the union - even though the two events were pure
coincidence , as was the case here For these very obvious and
elementary reasons , it was decided on Mr. Harkins' instructions upon
consultation with counsel to cancel the plans of discharge on March 11,
1968 A wise and practical decision , forming no basis for inference,
innuendo or suspicion (as Mr Orenstem suggested by question) that
Respondent had decided to wait until things cooled off" (Emphasis
supplied )
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is much uncontradicted evidence in the record to
show that Respondent's incompetence defense is not a
blatant pretext. This evidence is particularly strong in
Dilley's case. Marvin Franklin, the fill-in supervisor in the
summer of 1967, tiled a written report dated August 9.
1967, on the San Jose office with Jack Birkland when he
returned to San Francisco. It contains a passage which is
especially critical of Dilley '= Dilley was passed over for a
raise by Clark in September 1967. Both events took place
long before Dilley became involved in any union activities
and are, therefore, above the suspicion which attaches to
evidence of dissatisfaction with his work growing out of
incidents coining after Respondent knew he was trying to
bring in the Union. Moreover, all the evidence which
dates from the period of Shea's and Dilley's known union
activities is not unworthy of belief for that reason. I credit
the testimony of Respondent's witnesses, even Clark, when
they detail their reasons for concluding that Shea and
Dilley were less than outstanding in their work as claims
adjusters. A key exhibit in Respondent's case is a stack of
more than 125 memoranda written to Dilley by
Christensen between January and August in connection
with various cases assigned to Dilley. Each one is critical,
in some degree, of the work Dilley was doing on the case.
A major part of the hearing was devoted to examination
and cross-examination of Christensen on the files which
gave rise to these memoranda. The General Counsel's
point is that the exhibit cannot be taken at face value to
throw Dilley out of court It is a point well taken.
However, when all the points scored by both sides about
all of Dilley's cases, points which I find it unnecessary to
detail here, are thrown into the scale, the exhibit does
establish that Christensen had grounds for being.crittcal of
Dillev's work.
But to find that Clark may have had sufficient reason
for deciding that Shea and Dilley were not doing their
work well enough to continue in Respondent's employ is
not to find that he, in fact, reached that decision without
being swayed materially by their known union activities
The answer still requires a finding as to what was going
on in Clark's mind when he decided to discharge them.
Two brief excerpts from Clark's testimony especially
reveal his state of mind. Neither relates directly to his
motive
Clark was asked when he found out about Shea's
December 1967 automobile accident and under what
circumstances. His answer was:
I believe on the Monday following the accident, Bob
came to me first thing in the morning and told me
about it. He told me he had a problem because the
police report indicated that there had been some
drinking involved and I told him that we had a little
problem here because this was a direct violation and he
knew it. that I would do what I could to help him out.
1="Bob Dilley was almost completely non-productive in the older cases
and Suit files in the hands of our attorneys . He has a mental block in
opening these old cases to determine what he should do to move them to
closing or pricing Supervisory memorandums failed to secure a proper
response Both Dilley and Attorney Chadwick were aware that I desired to
set up a conference to compare the Company file with the attorney's file
for necessary investigation and pricing However I was unable to make an
appointment because Dilley shuns these files as well as the older non-suit
files Our attorneys still control the Suit files too much
"in newer files , it was noticeable that Dilley suffers from indecision. His
background is such that we should not expect this trait Frankly . I doubt
that he will remain under John Clark 's management . I think he will hang
on as long as he can but , if he does not change , John will terminate him
when aware of the foregoing shortcomings "
I do believe that I spent most of that day in that
regard. I felt that at that time that Bob Shea showed a
potential to be a very good adjuster. That maybe this
would stimulate-him - it is a problem, but,"We will go
to bat for you if you will go to bat for me." 1 hoped
that Bob would go to bat for us.
Clark was asked whether he told Reinheimer, in their
November conversation, that his membership or activity
in behalf of the Union would interfere with his promotion
or progress His answer was
No, only to the extent I said, "It will be very
possible that if two people of equal ability and equal
stature were sitting here and a decision had to he made
and everything else was equal, that possibly it could go
the other way " Now, this was a very logical statement.
The questions were put to Clark by Respondent's counsel.
The answers show that Clark thought in terms of loyalty
to himself as the personification of Respondent and a
penalty to be paid if employees placed any other interest
before that loyalty Clark went to bat for Shea because
Shea was doing his best to do a good job as an adjuster
for Clark at a time when Shea had not turned to the
Union to help him in his dealings with Clark. It is logical
to Clark that an employee should be denied promotion to
management level for turning to a union to help him in
his dealings with Clark. Therefore, I find, for the
following reasons, that but for their union activities Shea
and Dilley would not have been discharged by Clark:
1. Both Shea and Dilley had long experience in claims
adjusting While both had been with Respondent only a
relatively short time and there is evidence that criticism of
their work began early in their employment and bel'ore
their union activities, neither was so had before his union
activities began that Respondent could not use him.
2. Neither Shea nor Dilley was the worst outside
adjuster on the San Jose staff. In fact. Dugan testified
that Shea's work was about on a par with the work of
other adjusters under his supervision. All of them, as
Dugan pointed out, have their good points and their bad
points, and both Shea and Dilley carried approximately
150 cases up until their discharges, the workload of a fully
qualified journeyman adjuster.
3. Shea and Dilley were not unique in the particular
shortcomings pointed to by Respondent. All adjusters tail
to meet their 15-day and 90-day report deadlines from
time to time. All adjusters have to be prodded by their
supervisors from time to time to perform various chores.
That is the nature of the supervisor's job and one of the
main reasons for his existence. And memoranda from
supervisor to adjuster are a normal way of applying that
prod, so that the fact that Christensen wrote numerous
critical memoranda to Dilley is of no special significance.
even if the number is greater than he wrote to any other
adjuster under his supervision, as Christensen claimed.
4. Clark discharged Shea despite the fact that Dugan
thought Shea was good enough to work for Respondent
and did not recommend his discharge even though Dugan
did complain to Clark about Shea's work Yet Mackey,
the only adjuster who was discharged by Clark other than
Shea and Dilley insofar as this record reveals, was
discharged on Dugan's express recommendation.
5. Respondent condoned Shea's violation of a strict rule
against driving a company car while drinking prior to
Shea's union activities
6. Both Shea and Dilley were assigned new cases just
before they went on vacation. Shea was discharged soon
alter he returned, Dilley was placed on the probation
which led to his discharge. In each case a significant
THE HARTFORD INS. GROUP 585
development in Case 20-RC-8037 took place in the
interim. In Shea's case Clark learned that an election was
going to be held. In Dilley's case Clark learned that an
overwhelming majority of the employees in his department
wanted to be represented by the Union.
7. Christensen told Miss Shiraki, in effect, that Shea
had been discharged for his union activities and Dilley was
in the same danger. While I do not inter from this
conversation that Clark had taken Christensen into his
confidence or that Christensen was making a confession of
motive which is binding on Respondent, I think that
Christensen's remark accurately reflects the atmosphere
prevalent in the San Jose office during the organizing
campaign and that Christensen, as a supervisor, was in a
position to be aware of Clark's attitudes and opinions.
8 Franklin's report dated August 9, 1967, on his brief
tour as a claims supervisor in the San Jose office does not
establish Dilley's incompetence. The fact that Dilley lasted
moie than a year after Franklin made his observations,
standing alone, might be attributed to Clark's
forbearance. However, immediately following the part of
Franklin's report which I have quoted in footnote 12
above appears the following paragraph:
Gil Cooper is working but you cannot tell how
effectively. His files are very poorly documented.
During his two-week vacation, it was almost impossible
to take action on his files, because we never knew where
he stood His "Full Cap." Report is not supported by
documentation. He carries too much in his head There
are frequent complaints that he fails to contact on
schedule or return telephone calls. His future is also in
doubt in my personal opinion.
Cooper was promoted in February to the managership of
Respondent's office in San Luis Obispo
9. The records of the home office audit of the San Jose
office carried out in late February do not support
Respondent's position that Shea and Dilley were
discharged solely because of their incompetence. Notes
made on the various files created in November 1967 show
that every adjuster was criticized for his handling of cases.
Lloyd Stallcup's cases are especially noteworthy in this
respect. For example, the auditor's remarks on case
AL79966, show Christensen as Stallcup's supervisor.
indicate that Stallcup's 15-day report was late and then
continue, "no claimant statement; no interview form or
authorization or verification of medical." This is precisely
the point Respondent was making as its reason for finding
Shea and, especially, Dilley incompetent, i.e.. that they
did not place in the files sufficient documentation of the
work they had done to permit others to pass on the claim
and their work in connection with it. Moreover, the field
inspection report from which I have extracted comments
about Shea and Dilley set forth above contains more
derogatory comments about other adjusters, especially
Stallcup. There are 9 "code 12" adjusters listed in this
report. Three of them, Reinheimer, Fred Samler, and
Norman Womack, are deemed "too new to evaluate."
George Lucero is rated good in all aspects of his job.
Puryear would seem to be rated a little higher than Shea
and Dilley since the comments on him read, "Aptitude is
good, initiative is fair, ability as negotiator and
investigator fair, but improving in more recent
assignments. Present assignment as a resident adjuster
should reveal his further potential." But the comments on
Smith place him at best on a par with Shea and Dilley in
the opinion of the inspectors ("Aptitude is fair. Initiative
is fair. Ability as negotiator and investigator is fair, prior
to leaving us. Improvement noted since return in
February"). And their comments on Stallcup place him
well below Shea and Dilley ("Aptitude is fair: initiative is
poor; ability as negotiator is poor with attorneys, fair with
general public: ability as investigator is poor. Potential is
limited"). Yet Smith was rehired by Clark in February
after quitting in December 1967, and Stallcup is
apparently still employed by Respondent in the San Jose
office
10. Shea was discharged despite the lailure of his
immediate supervisor, Dugan, to so recommend. In fact.
firing Shea was so far from Dugan's mind that, when
Shea returned from vacation on June 17, Dugan reviewed
Shea's files with him and gave him 2 weeks in which to
correct deficiencies Dugan found in them. Dilley, on the
other hand. was placed on probation and ultimately
discharged shortly alter his immediate supervisor,
Christensen. recommended his discharge. The fact that
their cases differ in this normally significant respect does
not establish that Clark was differently motivated in the
one case than in the other The distinction grows out of a
difference in the personalities of Dugan and Christensen,
not out of any significant difference in the level of Shea's
and Dilley's competence. Dugan is a somewhat phlegmatic
pragmatist, as evidenced by his ability to get along with
Shea despite the fact that Shea's shortcomings sometimes
annoyed him. Christensen is an abrasive supervisor
frequently at odds with those under him. Smith quit in
December 1967 because he could not get along with
Christensen. When he returned in February after
discovering that the job he had gone to was not as good as
the one with Respondent he had quit, Clark assigned him
to Dugan's supervision. Cooper took umbrage at the style
and tone of a memorandum Christensen wrote to him in
December 1967 or January 1968. Clark reprimanded
Christensen Clark was fully aware of Christensen's
propensity for alienating those under him when
Christensen came to hint about Dilley.
For these reasons, therefore, 1 find that, despite
grounds he may well have had, Clark would not have fired
Shea and Dilley if they had not been the leaders in the
Union's drive to organize the employees under him When
Clark discharged Shea on June 18 and Dilley on August
30 for that reason, Respondent violated Section 8(a)(3)
and (1) of the Act.
Upon the foregoing findings of fact, and on the entire
record in these cases, I make the following:
CONCLUSIONS OF LAW
1. The Hartford Insurance Group is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2 United Industrial Workers of North America,
Pacific District, affiliated with Seafarers' International
Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3 By threatening employees with reprisals, including
discharge and blacklisting in the insurance industry, for
their union activities, Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act and
thereby has violated Section 8(a)(1) of the Act.
4. By discharging Robert E. Shea on June 18, 1968,
and Robert E. Dilley on August 30, 1968, because of their
union activities, Respondent has discriminated with
respect to their hire and tenure of employment,
discouraging membership in the above-named labor
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, and thereby has violated Section 8(a)(3) and
(I) of the Act.
5. The aforesaid unfair labor practices arc unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The allegations of the consolidated complaint that
Respondent violated Section 8(a)(1) of the Act by Claims
Supervisor Carlin P. Christensen's interrogations of
employees during March 1968 and on or about July 21,
1968, and by Christensen's advising an employee on June
21, 1968, that Respondent had assured employees
permanent employment upon the condition they would
vote against representation by the above-named labor
organization have not been sustained
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, L will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent has discriminated against
Robert E. Shea and Robert E. Dilley Therefore, I will
recommend that Respondent otter each immediate and
full reinstatement to his former or substantially equivalent
position without prejudice to any seniority or other rights
and privileges previously enjoyed and make each whole for
any loss of earnings he may have suffered as a result of
his discharge by paying to him a sum of money equal to
that which he normally would have earned as wages from
the date of his discharge until the date of Respondent's
offer of reinstatement, less his net earnings during such
period, with backpay and interest thereon to be computed
in the manner prescribed in F W Woolworth Company.
90 NLRB 289, and Isis Plumbing & Heating Co, 138
NLRB 716
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following'
RECOMMENDED ORDER
The Hartford Insurance Group, its officers , agents,
successors , and assigns, shall
1. Cease and desist from:
(a) Threatening its employees with reprisals for their
union activities
(b) Discriminating against its employees in order to
discourage membership in United Industrial Workers of
North America, Pacific District, affiliated with Seafarers'
International Union of North America, AFL-CIO, or any
other labor organization
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act
2 rake the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Robert E. Shea and to Robert E. Dilley
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to any
seniority or other rights and prn ileges previously enioycd
and make each whole for any loss of pay suffered as a
result of Respondent ' s discrimination against him in the
manner set forth above under "The Remedy."
(b) Notify Robert E. Shea and /or Robert E. Dilley if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request. make available to the
Board or its agents. for examination and copying, all
payroll records, social security payment records,
timecards. personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its office in San Jose, California, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 20. after being duly signed by Respondent's
representative, shall he 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 customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith."
I FURTHFR RECOMMEND that the complaint be dismissed
insofar as it alleges that Carlin P. Christensen
interrogated employees during March 1968 and on or
about July 21, 1968, regarding their membership in or
activities on behalf of the Union and that Christensen
advised an employee on June 21, 1968, that Respondent
had assured employees permanent employment upon the
condition they would vote against representation by the
Union
"in the event that the Recommended Order is adopted by the Board, the
words "this notice is posted by order of the National Labor Relations
Board alter a trial at which all sides had the chance to give evidence, the
National Labor Relations Board found that we, the Hartford Insurance
Group, violated the National Labor Relations Act, and ordered us to post
this notice ," shall be substituted for the words "Pursuant to the
Recommended Order of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Ac,t, as amended, we hereby notify our employees that." in the
notice In the further event that the Board's order is enforced by a decree
of the United States Court of Appeals, the words "this notice is posted by
order of the United States Court of Appeals" shall he substituted for the
words "this notice is posted by order of the National Labor Relations
Board "
"In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read. "Notify the Regional Director for
Region 20, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMI'LOYEFS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection, and
To refrain from any or all of these things.
THE HARTFORD INS. GROUP
WE WILL NOT threaten to fire you or blacklist you in
the insurance industry if you take part in union
activities.
WE WILL immediately offer to reinstate Robert E.
Shea and Robert E. Dilley to their former or
substantially equivalent jobs %k ithout any change in the
seniority or other privileges they enjoyed before we
discharged them and we will pay to them any money
they lost as a result of our discrimination against them
with interest at 6 percent.
WE wli.i notify Robert E. Shea and/or Robert E.
Dillcy, if either or both of them are presently serving in
the Armed Forces of the United States, of their right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
All our employees are free to join or not join United
587
Industrial Workers of Forth America, Pacific District,
affiliated with Seafarers' International Union of North
America, AFL-CIO, or any other labor organization.
Dated By
THE HARTFORD INSURANCE
GROUP
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 415-556-3197.