The Life Insurance Co. of Virginia

National Labor Relations Board - Board Decisions

Feb 19, 1946

65 N.L.R.B. 1140 (N.L.R.B. 1946)

In the Matter of THE LIFE INSURANCE COMPANY OF VIRGINIA and
AMERICAN FEDERATION OF INDUSTRIAL AND ORDINARY INSURANCE
AGENTS, LOCAL 22264, A. F. L.
Case No. 7-C-144P.-Decided February 19, 1946
DECISION
AND
ORDER
On January 17, 1946, the Trial Examiner- issued his Intermediate
Report'in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
that it had not engaged in certain other unfair labor practices, and
recommending that it cease and desist from the unfair labor prac-
tices found and take certain affirmative action and that the complaint
be dismissed in all other respects, as set forth in the copy of the In-
termediate Report attached hereto. No exceptions to the Intermediate
Report, briefs, or request for oral argument before the Board in Wash-
ington, D. C., were thereafter filed with the Board by any of the par-
ties. The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report and the entire
record in the case. As previously noted, none of the parties have
filed exceptions to the Intermediate Report. The Board, accordingly,
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, The Life Insurance Company of
Virginia, Richmond, Virginia, and its officers, agents, successors, and
assigns, shall: _
1. Cease and desist from :
(a) Discouraging membership in American Federation of Indus-
trial and Ordinary Insurance Agents, Local 22264, affiliated with the
American Federation of Labor, by discharging or refusing to rein-
state any of its employees, or in any other manner discriminating in
65 N. L . R. B., No. 200.
1140
THE LIFE INSURANCE COMPANY OF VIRGINIA 1141
regard to their hire and tenure of employment, or any term or condi-
tion of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to joijl or assist American Federation of Indus-
trial and Ordinary Insurance Agents, Local 22264, affiliated with
the American Federation of Labor, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose 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) Offer to Harold M. Reilly immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges;
(b) Make whole Harold M. Reilly for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned as wages from April 6, 1945, the effective date
of his discharge, to the date of the respondent's offer of reinstatement,
less his net earnings during said period;
(c) Post at its district offices in Detroit, Michigan, copies of the
notice attached to the Intermediate Report herein, marked "Appendix
A." 1 Copies of said notice to be furnished by the Regional Director
for the Seventh Region, after being signed by the respondent's repre-
sentative, shall be posted by the respondent immediately upon the
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;
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated in regard to the hire and tenure of em-
ployment of Frank J. Tokarski, Urvill W. Willson, and Marion Nagle
Winkler, be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
'Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. David Citrin, for the Board. -,
Clark, Klein, Brucker & Waples, by Mr. Robert C. Winter, of Detroit, Mich.,
and Mr. William R Shands, of Richmond, Va., for the respondent.
Messrs. Rene J. DeLorme and J. N. Cummings, of Detroit, Mich., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 2, 1945, by American Federation of
Industrial and Ordinary Insurance Agents, Local 22264, A. F. L., herein called
the Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Seventh Region (Detroit, Michigan), issued its-com-
plaint on July 27, 1945, against The Life Insurance Company of Virginia, 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 8 (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 and the
amended charge, accompanied by notice of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended, alleges
in substance that the respondent: (1) by discharging certain named employees
on or about certain specified dates, and thereafter refusing to reinstate them
because of their union membership and other concerted activities, thereby dis-
couraging membership in the Union; 1 and (2) since March 1942 and at various
times thereafter, to and including August 1945,2 by advising, urging, and warning
its employees against membership in, and by disparaging, the Union, by advising
and warning its employees that they had jeopardized their chances for advance-
ment or promotion with the respondent by joining and assisting the Union and
engaging in other concerted activities, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The respondent's answer admits, substantially, the allegations concerning the
nature and extent of its operations.- It further admits that the respondent
discharged the employees involved,' but denies that it discharged them because
of their union membership or activities, asserting, on the contrary, that it dis-
charged them for adequate cause. The respondent further denies the commission
of any other unfair labor practices.
Pursuant to notice, a hearing was held at Detroit, Michigan, from August 9 to
August 25, 1945, inclusive, before Irving Rogosin, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were repre-
sented by counsel, and the Union by representatives. All parties participated in
the hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues . At the
commencement of the hearing the respondent moved to "dismiss the complaint.
The motion was denied. The motion was renewed at various stages during the
1 The employees named and the dates of their respective discharges as alleged in the
complaint are :
Harold M Reilly, April 7, 1945
Frank J Tokarski, May 5, 1945.
Urvill W. Willson, May 18, 1945.
Marion.Nagle, May 18, 1945
2 As amended during the course of the hearing.
9 According to the respondent's answer, the employees were discharged on April 6,
May 5, May 26 , and May 26 , 1945, respectively , in the order named in footnote 1.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1143
Board's case and after counsel for the Board had rested and was similarly denied.
The motion was again renewed at the conclusion of the evidence. Ruling thereon
was reserved. For reasons appearing hereinafter, the motion is hereby denied.
Prior to the close of the hearing, counsel for the respondent moved for leave to
withdraw physically a copy of the transcript of the proceedings in Case No.
8-R-1795, offered in evidence by the respondent, excluded by the undersigned,
and filed with the rejected exhibits. Ruling on this motion was reserved; the
same is hereby denied.` Motions of counsel for the Board made at various stages
of the proceedings to conform the complaint to the proof with respect to formal
matters, not affecting the substantive issues, as well as a similar motion by counsel
for the respondent to conform the answer to the proof, were granted without
objection. All parties were afforded an opportunity to argue orally upon the
record and to file briefs with the undersigned. Counsel for the Board and for
the respondent argued orally upon the record ; only the respondent filed a brief.
Upon the entire record in the case,5 and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF F ACT
1. THE BUSINESS OF THE RESPONDENT
The Life Insurance Company of Virginia, a Virginia corporation, having its
principal or Home Office in Richmond , Virginia, is engaged in the business of
writing life, health and accident insurance, and annuities. It is duly licensed to
conduct business in 18 States and in the District of Columbia, and in the course
and conduct of its business, operates District Offices in 12 States, including
Michigan, West Virginia, and Ohio, and in the District of Columbia. The business
of the respondent is managed and directed by its directors and officers located at
the Home Office. As of Decernber 31, 1944, the respondent's accumulated assets
consisting of cash, securities, real estate, loans secured by mortgages upon real
estate, and other assets were valued in excess of $154,000,000 As of said date,
cash belonging to the respondent was deposited in 121 banks and trust companies
located in 18 States and the District of Columbia. During the year 1944, the
respondent purchased securities from companies located in 13 States and the
District of Columbia, all of which were delivered to the respondent at its Home
Office. The principal stock holdings of the respondent consist of preferred stocks
of railroads, public utilities, industrial and miscellaneous companies. Outstand-
ing loans made by the respondent are secured by mortgages of real estate in 20
States and the District of Columbia, of which some are insured by the Federal
Housing Authority. The respondent has loan correspondents in 19 States and
the District of Columbia through whom loans are purchased or mortgage invest-
ments are made. During the year 1944, the respondent expended in excess of
$43,000 for postage, telephone, telegraph, and express service. During the same
period, the respondent expended in excess of $24,000 for traveling expenses' of
its Agency Supervisors. Expenditures by the respondent during this period, for
paper and other stationery supplies used at the Home Office and in other offices
4 During the course of the hearing ruling was reserved on the respondent ' s motion to
strike certain testimony of witness DiMaggio relating to conversations with Agent Tokarski
following Agent Reilly ' s discharge . The motion , insofar as it relates to the testimony
appearing at page 607 , lines 22-25, page 608 , lines 1-2, and page 609 , lines 3-21 of the
typewritten transcript, is hereby granted, but otherwise denied.
5 On December 27, 1945, an order was entered by the undersigned correcting the
transcript of the testimony in accordance with a stipulation of the parties , dated Sep-
tember 26 , 1945, and an unopposed motion of counsel for the Board, dated September
25, 1945, to correct the transcript in a further respect.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by the respondent, exceeded in value $63,000 As of May 28, 1945,
there were in force in the city of Detroit more than 88,000 policies of insurance
with the respondent, amounting to in excess of $50,000,000, equivalent to approxi-
mately 6 6 percent of the total amount of insurance in force with the respondent
The respondent concedes that it is engaged in commerce within the meaning of
the Act e
]I THE ORGANIZATIONS INVOLVED
American Federation of Industrial and Ordinary Insurance Agents, Local
22264, affiliated with the American Federation of Labor, is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, rostra nit , and coercion
1. Introduction
The facts hereinafter related occurred in the following setting. The Union
was organized early in 1940, and on February 1 of that year was granted a
charter by the American Federation of Labor. It has had no constitution or
by-laws of its own, but has operated under those of its parent. On November
24, 1943, the Union filed a petition for investigation and certification of repre-
sentatives in behalf of the respondent's weekly premium agents' in its four
district offices in Detroit, Michigan, as a single unit. Following a consent election
agreement, an election was held on December 27, 1943, and, on January 3, 1944,
the Regional Director issued his report in which he found that the Union had
been designated the exclusive bargaining representative of the employees in the
unit. Thereafter, a collective bargaining agreement was entered into by and
between the parties, effective April 3, 1944, for a term of 1 year. This agreement
was subsequently extended by mutual consent to October 1, 1945.
On February 15, 1945, by separate letters addressed to Vice-President I. T.
Townsend, the Union notified the respondent of its claim to represent a majority
of the agents of the Wheeling, West Virginia, and Toledo, Ohio, district offices,
respectively, advising that the Union was prepared to submit evidence of the
agents' union membership to the Board , and announcing its desire that the
existing collective bargaining' agreement covering the agents in the Detroit
District Offices be extended to the agents of the Wheeling and Toledo offices 8
On March 17, 1945, the Union filed a Petition for Investigation and Certification
,of Representatives covering the weekly premium agents of the respondent at
its Toledo District Office. This petition was withdrawn and, on March 24, a
6 The above findings are based principally upon a stipulation entered into by and be-
tween the parties Although the respondent originally declined to concede or deny that
it was engaged in commerce within the meaning of the Act, counsel for the respondent
stipulated during the course of the hearing that the respondent was so engaged within
the purview of the Polish National Alliance and South-Eastern Underwriters cases See
Polish National Alliance of the United States of America v . N L. R. B, 322 U. S 643,
and U S v South-Eastern Underwriters Ass'n., 322 U S . 533, 65 S Ct 26
'Referred to in the petition in Case No. 7-R-1647 , as "debit collectors "- District
managers , assistant district managers , office and clerical employees , and inspectors were
.specifically excluded from the unit alleged to have been appropriate
s Although the instant proceedings do not directly involve the agents in the Wheeling,
West Virginia or Ohio districts, evidence concerning those proceedings was received, over
the respondent 's objection , and the facts concerning them are related herein merely as
part of the chronology of events The letters referred to in the text above were signed
by Harold M Reilly , one of the agents alleged herein to have been discriminatorily dis-
charged ', as secretary and treasurer of the Union.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1145
new petition was filed in behalf of all the respondent's weekly premium agents
in the State of Ohio D On March 26, the Regional Director for the Eighth Region
notified the respondent by letter of the filing of the petition by the Union in Case
No: 8-R-1795 in behalf of all weekly premium agents of the respondent in the
State of Ohio, and informed the respondent that the petition had been assigned
to a Field Examiner for investigation. The respondent, on March 29, through
its general counsel, acknowledged receipt of the notice of the filing of the petition
and stated that its counsel would be pleased to discuss the matter with the Field
Examiner assigned to the case. Thereafter, following a hearing on the petition
on May 21, 1945, the Board, on July 26, 1945, issued its Decision and Direction
of Election.'°
2. Interference, restraint„ and coercion
The first of the alleged acts of interference upon which the Board relies
transpired late in March or early in April 1942, when Joseph DiMaggio, an agent
in Detroit District Office No. 1, visited Lee Searcy, then home office supervisor
of the respondent, at his home in Richmond, Virginia.' During the course of a
conversation with Searcy in the presence of DiMaggio's wife, Searcy urged
DiMaggio to withdraw from the Union and to form a company union among the
agents of the respondent, instead of contributing money to the A. F of L."
Early in November 1944, shortly after 11:00 o'clock one morning, District
Manager Robert P. Stearns asked Agent Harold Al. Reilly to come into his
office Reilly informed him that he was unable to do so because he intended to
attend a union meeting. Stearns thereupon remarked, "What do you want to
attend a Union meeting for? The Union won't put bread and butter in your
mouth." 13
In the latter part of 1944, on an occasion when Agent Rene DeLorme of District
Office No. 2 was in the office of District Manager John A. Ziegler, Ziegler coun-
selled DeLorme to resign from, and abandon his activities in, the Union, re-
marking that both men had reached an age at which it behooved them to think
of the future. Ziegler further stated that because of his own age he had ad-
vanced as far as he expected to go, but that DeLorme ought to take advantage of
O Apparently no further actioif was taken by the Union at this time respecting the re-
spondent's weekly premium agents in the Wheeling, West Virginia, District Office. The
original petition which was subsequently withdrawn was filed in Case No . 8-R-1787;
the subsequent petition, on March 24, in Case No 8-R-1795.
10 On August 17, 1945, while the hearing in the instant proceeding was in progress,
the Board Issued a Supplemental Decision denying the motion of the respondent herein
for rehearing . Since the close of the hearing in the instant case, the Board , on September
28, 1945, has certified the Union as the exclusive collective bargaining representative of
the agents of the respondent in the State of Ohio.
11 Searcy had formerly been district manager of Detroit District No 1, and had been
promoted to the position of home office supervisor shortly prior to that time. DiMaggio
was leaving for a vacation in Florida at about the time of Searcy's promotion, and Searcy
had invited DiMaggio to visit him in Richmond on his way back from Florida
12 This finding is based upon the credible and uncontradicted testimony of DiMaggio.
Although Searcy admitted meeting DiMaggio on the occasion in question , he was not asked
about , nor did he deny making , the statements attributed to him by DiMaggio. While the
undersigned is cognizant of the fact that this incident occurred some 2 years before the
respondent subsequently recognized the Union and entered into contractual relations with
it, he is not con%iiiced that the effect of this statement was dissipated thereby, in view of
Searcy's position with the respondent, the fact that he did not disavow the statement
thereafter , and especially in view of anti -union statements by supervisors subsequently
made.
13 This finding is based upon Reilly ' s testimony which the undersigned credits Stearns
admitted having had the conversation adverted to, but testified that lie asked Reilly "for
whom he was working, the Union or the Company." Apparently the meeting was scheduled
at union headquarters during non-working time.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing opportunities. He added that, since DeLorme's activities in the Union
consumed part of his time, "it would be -a lot better if [he] would just forget
the whole thing." Ziegler's denial of the statements attributed to him is not
credited.
On December 22, 1944, following a Christmas party in District Office No. 1,
District Manager Stearns and Agents Reilly, Jennie M. Hughes, Marion Nagle,
and Fred Winterburn proceeded to the nearby Morris Bar During a conversa-
tion, Stearns complained that "production" by the agents in his district had
not been satisfactory in 1944, and remarked that unless there was an improve-
ment in 1945 there would be a new manager. Reilly thereupon replied, "Mr.
Stearns, don't forget we still have Local 22264." According to Reilly, Stearns
continued, "There will be a new manager and conditions will be better. I will
break the Union and [sic] there will be a new manager in No. One office." When
Agent Nagle asked Stearns why he was opposed to the Union, Stearns related
an unsatisfactory experience his father had had with a union while he was
engaged in a printing business years ago, which, according to Stearns, had
resulted in financial loss to his father. As a consequence, Stearns stated, ac-
cording to Nagle, that he had "never had much use for the union." 14 Stearns
admitted that he had been present in the company of the agents on the occasion
in question, and that he "may have made some kind of a statement with reference
to [his] father's experience with union difficulties he encountered a number of
years ago" but denied making the statement to Nagle that he had since been
opposed to unions. With respect to the statement that "he would break the
damned Union," he testified, "I definitely do not recall ever making such a state-
ment at the first of the year or at any time." Later, however, when called as a
witness for the respondent, he categorically and emphatically denied making
such a remark then or at any other time.
According to Stearns' version,' he discussed production in his district office
for the year 1944, comparing it unfavorably with production in 1943. He in-
formed the agents that he expected production to improve considerably in 1945
and added that if it did not improve he might be replaced by a new manager.
When Reilly remarked, "Don't forget that we still have Local 22264," referring
to it as the union organization, Stearns replied, according to his own testimony,
"Mr. Reilly, I don't give a damn about the Union. What I am interested in is
increase in production in the organization . . . I don't care anything about
Local 22264 or how many unions you may belong to. That doesn't enter into
the situation at all. I am interested in results." Except for Stearns' denial of
the alleged statement that "he would break the Union," there is no substantial
conflict as to what transpired. Although it is true that Nagle was corroborated
in her testimony regarding this statement by Hughes and Reilly," the'under-
signed finds, upon a consideration of the entire circumstances, that Stearns did
not actually make the statement that he would break the Union 1e
14 Nagle, too, testified that Stearns had remarked that "he would break the damned
Union or there would be a new manager in No One Office."
15 According to Hughes, Stearns said that "he didn't care nothing about the Union, if
it was necessary he would break it and things would have to go his way." Winterburn
testified that he did not hear the conversation, having left before the others.
16 The undersigned finds that Stearns did in fact make the statement concerning his
father's experience with a union, and further finds, contrary to Stearns' testimony, that
he stated that he was opposed to unions in consequence thereof. However, the undersigned
is not persuaded from the above that the statements should be attributed to the respond-
ent under the circumstances disclosed so as to warrant av finding of interference, restraint,
and coercion with respect to the statement admittedly made by Stearns in response to
Reilly's reference to Local 22264, "I don't give a damn about the Union. What I am
interested in is increase in production." The statements are, however, considered in
determining Stearns' attitude in connection with Reilly's subsequent discharge.
THE LIFE Il>'SURANCE COMPANY OF VIRGINIA 1147
On another occasion in February 1945, at the close of a conference with the
union grievance committee consisting of Frank J. Tokarski, Fred E. Fisher,
Harold M. Reilly, and DeLorme, District Manager Ziegler stated that he con-
sidered that DeLorme's union activities consumed too much of his time, and
that he preferred that De].orme hold no office in the Union" According to
Reilly's uncontradicted testimony, which the undersigned credits, Ziegler further
remarked that the respondent had "wonderful plans for [DeLorme], every ad-
vancement in the world," b -it that they would never materialize as long as he
remained with "the damned Union."
At about this time, during an argument with District Manager Stearns, Agent
Arthur VanHala remarked to Stearns that there was "an undercurrent of ill
feeling in this office towarc [Stearns]" which VanHala was unable to under--
stand. Stearns thereupon replied, "Mr. VanHala, that goes back a long way.-
It will take too long for me t) go into that, but it is caused by two Union agitators
in this office . . . I am going to do something about that."
On Friday, March 16, 1945, about a month after the Union had notified the
respondent of its claim to -epresent a majority of its agents in the Wheeling
and Toledo offices, Agents Castle 0. Blough, Nedeein Karam, and another agent
were having lunch when they were joined by Assistant Manager Joseph A.
Chabie. According to Blough and Karam, Chabie remarked, "Well, it looks
like they [the respondent] are out to get you boys I just heard that they are
prepared to spend a million dollars if necessary to break the Union." Shortly
thereafter, Assistant Managers Kenneth 0. LePard and Edward F Langlois
of District Office No. 1 joined the group, and Langlois remarked, "Well, it
looks like they're out to get you boys, doesn't it?" According to Blough, LePard
also remarked that he too had heard the statement made 19
On May 21, 1945, and on several occasions during a period of 2 or 3 months
prior to that time, District lianager W D Dicken advised Agent George Bevill
to "stop working" for the Union and start working for himself, remarking that
Bevill was "putting in too much . . . time with the Union and not enough out
in the field 11 "
17 The above findings are based upon the testimony of DeLorme , which the undersigned
credits Although Ziegler denied the statement attributed to him at that time, and
testified that he did not recall making any such remark at any other time, his testimony
in this connection was otherwise indefinite and unconvincing Thus, for example, when
asked whether he had had arty conversation on that occasion with DeLorme , he replied,
"Not that I recall " Asked whether he had exhausted his memory about that matter,
he replied , " Well, there was just a lot of talking We all took part in talking. I may
have addressed Mr. DeLorme in some remarks or something , but Mr DeLorme wasn't in
charge at that time at all ." There was no evidence that DeLorme ' s union activities had
in any way interfered with the performance of his duties with the respondent
Is Tins finding is based upon the undisputed testimony of VanHala , which the under-
signed credits Although Vanliala testified that he did not know to whom Stearns re-
ferred , Stearns , after testifying that he had stated to VanHala during that discussion
that there had been "a certain amount of ill-feeling created , possibly by a couple of
troublemakers," admitted on cross -examination , " I meant Mr Reilly definitely for one, '
but testified that he did not remember whom he had intended as the other Stearns did
not deny the statement attributed to him that he intended to do something about it
'n Although Chabie denied making the remarks attributed to him as well as to Langlois,
his testimony on this point wan unconvincing Langlois ' denial of the remarks asciibed
to him and Chabre was equally inconvincing LePard ' s denials were vague and equivocal.
LePard did not deny directly the remarks attributed to him by Blough. The undersigned
finds on the basis of the credible testimony of Blough and Karam that Chabre , Langlois
and LePard made the statements substantially as set forth
20 This finding is based upon the undisputed testimony of Bevill Dicken did not
testify, and there was no showing that lie was unavailable at the time of the hearing.
Nor did the record disclose that Bevill ' s union activities interfered with the performance
of his duties with the respondent
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about June 29, 1945 . Assistant Manager Chabie visited Blough at his
home and, in the course of conversation , informed him that he had attended a
meeting of the district and assistant managers of the respondent and stated
that "it looked like a rather hopeless situation ."" Chabie informed Blough that
during a discussion at that meeting, a statement had been made that the respond-
ent was indifferent to whether the agents returned to work, and that District
Manager Ziegler of District Office No. 2 had remarked that "he personally hoped
they never did come back , that if and when they did come back some of them
were going to be beaten up." 22
Sometime between May 21 and July 9, 1945 , District Manager Ziegler called at
the home of Agent Clara Cybulski to inquire about an insurance policy which
she had sold and which had been issued by the respondent , but not delivered to
the customer . Cybulski explained that the policy had not been delivered because
the agents had been "on a protest" and had not been servicing their debits. She
added that she was "sticking with the Union until the whole thing was settled."
Thereupon , according to Cybulski , Ziegler became "quite provoked , and said
this was all uncalled for, that we had lousy Union leadership , and that they are
misleading us and telling us a bunch of lies , and that he was surprised that an
intelligent person like myself . . . would believe what they are telling us '
Later , on August 3, 1945, while Cybulski was alone in the office with Assistant
'Managers Noble and Conley , Conley inquired of her "what the whole affair
jwasl about , whether it was a protest or a strike ." When she referred him to
Union representative DeLornie , Conley stated that "the Company had no use
for the Union any more; and it would take five years for the Union to clear
its name up " 24
21 On May 21, 1945, the agents in the Deti oit District Offices failed to report for work
in "protest" against the announcement of the respondent requiring them to report to
their offices oftener than they had been ieporting prior to that date The agents icniained
away trom work until July 9, 1945. The incident related in the text occurred nhilc they
were thus absent from work.
'' Chabie, who resided in the same vicinity as Blough, testified that be had called on
Blough several times at or about the time in question, but was unable to state whether he
visited Blough on the particular occasion concerning which the latter testified, although
he stated that he may have done so He denied that lie had attended the meeting referred
to, and testified that he did not recall telling him that he had attended such a meeting.
However, he admitted that he had called at the office of respondent' s counsel where the
meeting was alleged to have taken place on several occasions between May 21 and July
9, 1945, to discuss the situation respecting the agents' absence from work, and on one
occasion to discuss the matter of an injunction In view of the fact that the record
discloses that district and assistant managers were present on some of these occasions,
it is probable that a discussion occurred with respect to the absence of the agents on what
the respondent considered a strike The undersigned finds that, whether or not the
discussion to which Blough referred in his testimony did in fact occur, Chabie made the
statements attributed to him by Blough in the conversation related by the latter
OAlthough Ziegler admitted that he called on Cybulski at about the time in question
and that lie discussed with her ceitain matters pertaining to this and other insurance
policies, he denied the statements attributed to him by her as well as that there was any
discussion concerning the Union In view of the fact that the agents were absent from
work "on protest" at the time, that Ziegler was probably provoked because lie had been
obliged to investigate the failure to deliver the policy, and especially in view of the credi-
bility of Cybulski's testimony, with which the undersigned was impressed, Ziegler's denials
are not credited. i
21 These findings are based upon the uncontradicted testimony of Cybulski As has
already been indicated, the complaint was amended, over the respondent's objection, during
her testimony, to include this incident in the allegations of interference, restraint, and
coercion The manner in which the evidence regarding this episode was adduced, at the
conclusion of the cross-examination of the witness, indicated that the facts disclosed were
not previously known to counsel for the Board Although counsel for the respondent was
advised by the undersi_ned that he would be afforded a reasonable op-nortunit;; to meet
THE LIFE INSURANCE COMPANY OF VIRGINIA 1149
In determining whether the facts found above constitute interference, restraint,
and coercion, the undersigned has, of necessity, considered the effect of the
statements and remarks of tl e respondent's supervisors in their totality rather
than in isolation.GS While scme of these statements, standing alone, may not
necessarily compel a finding of interference, the facts considered in their en-
tirety indicate a pattern of anti-union conduct justifying the conclusion that
the respondent, by the foregoing course of conduct, and the unfair labor practices
hereinafter found, has interfered with, restrained, and coerced its employees in
the rights guaranteed them urder the Act.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that, by the statements of its supervisors related hereinabove,
excepting the statements of District Manager Stearns, at the Morris Bar follow-
ing the Christmas party in 1944, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed them under
the Act.20 -
B. Disc?inisnatton in regard to line and tenure of employment
1. Reporting days
The following data are relevant to a consideration of the allegations of dis-
crimination and may be appropriately discussed at this point.
Prior to December 7, 1941, the respondent's agents had been reporting to their
respective district offices five mornings a week, Monday through Friday. In the
Spring of 1943, following a protest by the union grievance committee to District
Manager Stearns of District Office No. 1, the respondent relaxed this rule to
permit the agents in District Cilice No 3 to report three mornings a week, Monday,
Wednesday and Friday, and those in District Offices No. 1, 2, and 4, two mornings,
Wednesday and Friday. A letter from the Home Office authorizing this change
was read to the agents in District Office No. 1 at one of their regular agency
meetings . Shortly afterwarc, when District Manager Stearns attempted to
require the agents in his district to report three days a week, the grievance com-
mittee again protested to Stearns, and refused to comply when it ascertained
that the respondent had not withdrawn its permission to the agents to report
two mornings a week. The agents in District Office No. 1 continued to report
two mornings a week until early March 1945
In February 1945, the agents in District Office No. 3 complained about reporting
three mornings a week, and requested that the number of reporting days be
reduced to two. Later that month, Vice-President J. Cowin Smith and Assistant
the evidence adduced , neither Conley nor Noble was called to testify , nor was any request
made by the respondent for a continuance to enable it to produce them as witnesses
" That the Board is entitled to consider the evidence, "not simply in isolation, but
cumulatively and compositely as well," see. The Canyon Corporation v. N. L. R. B, 128 F.
(2d) 953 (C C. A 8), enf'g as modified 33 N. L It B. 885
" The undersigned has conside-ed the respondent's contention that it would have been
illogical for it to have engaged in unfair labor practices, after it had recognized the Union,
following a consent election agreement, and entered into a collective bargaining agreement
with it. The respondent's further contention that it has bargained collectively with locals
of both AFL and CIO unions in several district offices of the respondent in areas other
than Detroit has also been consi lered Due weight has been accorded these contentions
in arriving at the facts found and the conclusions reached The undersigned is not per-
suaded, however , that the evidence of the respondent's bargaining relationships overcomes
the weight of the evidence that tie respondent engaged in the unfair labor practices found.
It may be noted , incidentally, thi t the respondent's contention, in the repiesentation pro-
ceeding respecting its Ohio agents, that the Union ( Local 22264 ) could not act as collec-
tive bargaining representative foi those agents, was rejected by the Board See Hatter of
Life Insui ante Company of Virginia, 62 N L. R. B. 1444, 63 N L R. B 397
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secretary Searcy discussed the matter at District Office No. 3 with District Mana-
ger Samuel S Harrell and Union Steward James Vigner. Vigner urged the
reduction because of the shortage of gasoline and tires. Searcy declined, but
instructed Vigner to refer any cases involving "undue hardship" to the appro-
priate assistant manager and to have him report the same to the Home Office
for further consideration if necessary.
On Monday morning, March 5, 1945, 14 agents in District Office No. 3 failed
to report. 21 When this was communicated to the Home Office by District Manager
Harrell, Vice President I. T. Townsend wired all district offices in Detroit the
next day, directing attention to the respondent's rule requiring agents to report
five mornings a week, and advising that reporting two days a week in some dis-
tricts would no longer be permitted. On and after Monday, March 12, the tele-
grain continued, agents would be required to report three mornings a week on
days to be determined by the district manager, until such time as the respondent
should decide to revert to the five-day reporting rule. Cases involving unusual
hardship were to be taken up with the district manager. Failure of agents to
comply with these instructions would result in "appropriate action." Following
its receipt at District Office No. 1, District Manager Stearns read the telegram
to the agents and informed them that they were to report on Monday mornings
thereafter, in addition to Wednesday and Friday.
On Monday, March 12, none of the agents in any of the district offices in
Detroit reported Consequently, on the following Friday, Assistant Secretary
Searcy and Vice-President Smith visited the Detroit offices,28 and read a prepared
statement to the agents requiring them to report three days each week and, if
deemed advisable by the manager, an additional day each week for the Agency
Training Course, discussed hereinafter Failure, ;vithout adequate excuse, to
report on the following Monday and on succeeding Mondays would result in
termination of the agent's contract. Agents were required, pursuant to the
announcement, to leave their collection books and ordinary receipts before
leaving the office that day. These were to be returned to those agents reporting
the following Monday, March 19, and pledging to comply with the requirements
as to reporting, including reporting the additional day tor the Agency Training
Course. When the agents reported to their respective offices the following Mon-
day morning, their collection books were returned to them. Thereafter, agents
in all the Detroit District offices were required to report Monday, Wednesday,
and Friday mornings.
2. The Agency Training Course
In August 1944, the respondent inaugurated an "Agency Training Course"
for agents in its district offices. Part of this course consisted of "the Dollar-
a-week plan," a stereotyped "sales talk" which agents were expected to memorize
and utilize in approaching insurance prospects. The course was received by
the agents with varying degrees of enthusiasm. Although there was considerable
disagreement as to whether the taking of the course was compulsory, witnesses
for the Board testifying that they had been informed by representatives of the
respondent that it was not, any doubt in this respect was resolved when, on
January 23, 1945, Vice-President Townsend, in response to a report from District
Manager Stearns that agents were refusing to take the course, telegraphed that
agents were required to take the course unless specifically excused by the Home
n It will be recalled that agents in District Offices No. 1, 2, and 4 were reporting two days
at this time, District Office No. 1, on Wednesday and Friday
28 According to Searcy ' s uncontradicted testimony , he called upon District Offices No. 1
and 2, and Smith called on District Offices No. 3 and 4
THE LIFE INSURANCE COMPANY OF VIRGINIA 1151
Office. Failure to comply with this requirement would, the telegram continued,
result in "appropriate action" by the respondent.
Prior to the initiation of the course, agents in District Office No. 1 had been
reporting two mornings a week, Wednesday and Fridays. Stearns, after con-
ferring with his assistant managers, decided to conduct the course on Thursday
of each week, as a result of which the agents were actually required to report
an additional day. The first class was held in about the middle of August when
several of the agents, including Reilly, failed to report Later, however, after
some persuasion by Stearns all the agents commenced to attend the classes on
Thursday and continued to do so until sometime in October. Shortly afterward,
a grievance committee, of which Reilly was a member, waited on Stearns with
a request that classes be held on Friday instead of Thursday. At a regular
agency meeting, several days later, Stearns informed the agents of the grievance
committee's visit, and stated that, although he was personally opposed to the
change, he would communicate their views to the Home Office. At the close of
that meeting, Agent Frank Tokarski delivered to Stearns a petition signed by
all the agents requesting the change. Stearns forwarded the petition to the
Home Office. On the following Thursday, however, before a reply was received
from the Home Office, the agents again failed to report. Ultimately, the re-
spondent authorized the agents in District Office No. 1 to attend classes on
Fridays instead of Thursdays.
Sometime afterward, the respondent communicated with Stearns and requested
that several agents, including Reilly, devote more time to the dollar-a-week
drill work and rehearse it with Stearns personnally. Stearns notified these
agents and arranged for special drill sessions at the conclusion of the regular
Friday morning meetings. At their suggestion this program was postponed for
a week to afford them an opportunity to familiarize themselves with the material.
The following week when Stearns reminded them of the scheduled rehearsal,
Reilly stated that he was too busy to devote any time to it, and requested that
it be postponed another week. At the end of that interval Reilly told Stearns
that he contemplated dropping out of the course. Ngents DiMaggio and Tokarski
had also objected to drilling on the dollar-a-week plan and expressed their
intention of discontinuing the course. Shortly afterward, Stearns reported the
lack of cooperation of some agents with respect to the agency training course.
On January 23, 1945, Stearns received the telegram from Vice-President Townsend
already mentioned, and informed the agents of the respondent's decision. Fol-
lowing this, Reilly reluctantly agreed to take the drill work, but announced that
he would not put the plan into operation. He did, however, resume the written
portion of the course and continued with it to the time of his discharge.
3. The discriminatory discharges
Harold M. Reilly was employed by the respondent in October 1940 as an insur-
ance agent at District Office No. 1 under Lee Searcy, then district manager S0 On
March 30, 1945, while under the supervision of District Manager Stearns, his
employment was terminated effective April 6, 1945. During the latter part of
his employment, he served as a member of the union grievance committee and
as secretary and treasurer of the Union 31
20 Reilly was leaving on his vacation at about the time the course was commencing, and
obtained permission from his manager to take the first few written lessons with him.
J° It will be recalled that Searcy later became Home Office Supervisor and still later
Assistant Secretary of the respondent.
ai As has already been shown, he served on the grievance committee which conferred with
District Manager Ziegler of District Office No 2 on about February 17, 1945.
679100-46-vol 65-74
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 7 and 8, 1944, the respondent held a convention at a hotel in
Cleveland, Ohio, to which certain of the respondent's agents and their supervisors
were invited as guests of the respondent.32 On the morning of December 7, a
union organizing committee consisting of Business Agent DeLorme, Agents Reilly,
Frank Tokarski, and Richard Cockburn 33 registered at the same hotel and occu-
pied a suite, which was utilized as the committee's headquarters for the purpose
of conducting an organizational campaign among agents of other district offices
of the respondent 36 The name of the Union was listed on the hotel directory
bulletin board, directly beneath that of the respondent. Membership was solicited
of agents who were invited to the suite while the convention was in progress,
application cards were provided, and signatures obtained.
At about 1: 30 in the morning of December 8, 1944, Lee Searcy, then assistant
secretary of the respondent, visited the suite of the organizing committee35
All members of the committee were present. After greeting them, Searcy asked
Reilly to go down and play the piano, but he refused Searcy asked permission
to use the telephone, and Reilly ushered him into an adjoining bedroom. While
there, the men engaged in conversation. When Reilly inquired about his pros-
pects with the respondent, 'Searcy, according to Reilly, informed him that he
had "had a splendid opportunity with the Company, but I had ruined all my
chances with the Company due to being affiliated with the Union, and especially
with this Club 88 trip" ; that "many other employees of the Company had ruined
their chances, working for the Union, and that it would be only a short period of
time before the Union would be disbanded" because "The Company would not
tolerate it " Searcy, who admitted being present in the rooms of the organizing
committee under the circumstances related, agreed that Reilly had inquired
as to his prospects with the respondent, but testified that lie informed Reilly
that "his chances were good. He had plenty of ability, that there was no reason
for him not to make progress with the Company if he maintained the proper
spirit of cooperation and attitude with the Company." He emphatically denied,
however, making the statements attributed to him by Reilly as well as engaging
in any discussion regarding the Union or union activities of any of the persons
present. DeLorme, Tokarski, Cockburn and DiMaggio, on the other hand, each
of whom were present in the parlor of the suite, and in a position to overhear
the conversation between Reilly and Searcy, corroborated Reilly's version 36
On February 15, 1945, Reilly, as secretary and treasurer of the Union, notified
the respondent of its claim to represent a majority of its agents in the Wheeling,
32 Agents qualified for the trip to the convention by acquiring a certain number of points
based upon the volume of insurance sold over a given period . The group thus qualifying
was designated by the respondent as Club 88
33 None of these agents were in Cleveland at the time as members of Club 88
34 Agents from the district offices at Detroit, Michigan, Toledo, Columbus, and Cleveland,
Ohio, as well as Wheeling and Huntington, West Virginia, attended this convention
3 Earlier, after the dance band had ceased playing for the convention dance, Agent
DiMaggio had telephoned Reilly at the suite and informed him that Searcy had requested
that Reilly tome down and play the piano for dancing. Reilly had declined and Searcy
called on him personally in an attempt to induce him to play
36 Although it was suggested in cross-examination by respondent 's counsel that it would
not have been possible for the agents in the parlor to overhear a conversation in an ad-
joining room , it was generally agreed that both Reilly and Searcy spoke in loud voices, that
the door to the bedroom was open, that there was no conversation going on in the parlor
at the time, and that the persons in the parlor were close enough to overhear the conver-
sation It was the observation of the undersigned at the hearing that both Reilly and
Searcy spoke in loud, resonant voices Furthermore, it is entirely likely, as suggested by
DeLorme's testimony, that the men in the pailor were deliberately listening to the con-
versation Upon the basis of the foregoing and a critical evaluation of the pertinent testi-
mony, the undersigned concludes and finds that Searcy made the statements attributed to
him by Reilly as related by him.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1153
West Viigima, and Toledo, Ohio, District offices. Several days later, Reilly
attended a conference with District Manager Ziegler as a member of the union
grievance committee On March 26, 1945, the Regional Director notified the
respondent of the filing of the Petition for Investigation and Certification of Repre-
sentatives in behalf of the respondent's weekly premium agents in the State
of Ohio
Early in March 1945, on the occasion of District Manager Stearns' reading
of the telegram requiring the agents in that office to report three days a week
instead of two, as theretofore, Reilly remarked that the respondent's conduct
would "force the agents into the black market to purchase gasoline and tires """7
On March 22, 1945, Reilly, as secretary of the Union, addressed a mimeographed
letter to its members referring to the Home Office telegram of March 6 which had
been read at all Detroit District Offices. The letter rehearsed the events which
had transpired, including the visit to the district offices of respondent's officials
on March 16. Members were informed that the matter was being considered by
the grievance committee with a view to arriving at a solution to the problem, and
were advised to comply with the "Company's ill-advised order" in the meantime.
Referring to the acute gasoline and tire shortage, the letter commented,
In spite of this, the Company, evidently placing their selfish motives ahead
of their patriotism, show no inclination whatever to try to cooperate with
the Government in its efforts to conserve precious and assential gasoline and
rubber. Your executive committee recommends that you avoid any black
market transactions for gasoline and tires, even though you are placed in
such a difficult situation by an imbecilic ruling of the Company.
The following day, according to Stearns' testimony, which the undersigned
credits, Agent Marion Nagle met him in the corridor of the building in which the
district office was located, and asked to speak to him privately away from his
office Stearns invited her to accompany him to the drugstore in the building,
and as they were going down in the elevator, Nagle handed him an envelope
containing a copy of the mimeographed letter which had been sent to union mem-
bers over Reilly's signature. While they were in the drugstore, Nagle informed
him that Reilly had made certain derogatory statements about Stearns; that she
was dissatisfied with the Union and disapproved of Reilly's attitude in the office ;
and that she was considering resigning from the Union or from her position.
Although Nagle denied the entire incident, the undersigned does not credit her
denial She was not asked at the hearing, however, nor did' she deny giving
Stearns the copy of the letter. -
Stearns transmitted the letter to the Home Office where it was the subject of
some discussion between Vice-President Townsend and Assistant Secretary
Searcy Although the respondent contended at the hearing that it did not con-
sider that Reilly was responsible for the letter, maintaining that it was the
action of the executive committee of the Union, it is apparent from the discussion
between Stearns and Nagle in which Nagle severely criticized Reilly that Stearns
considered that Reilly had pal tieipated in the preparation of the letter.
On March 28, during an agency meeting, the episode occurred, hereinafter more
fully related, which culminated in Reilly's discharge. Stearns reported the occur-
rence to the Home Office immediately afterward in a telephone conversation with
Searcy, and strenuously urged that Reilly be discharged The matter was dis-
cussed by Searcy with Home Office officials, following which Searcy was instructed
"This finding is based upon the uncontradicted testimony of Assistant Manager John P
Ziegler, of District Office No 1 (not to be confused with District Manager John A Ziegler
of District Office No 2).
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to leave for Detroit 'to investigate the matter, and authorized to discharge Reilly
if his investigation substantiated Stearns' charges. Searcy arrived in Detroit the
following day and, after reviewing Reilly's case with Stearns, and interviewing
a number of the assistant managers the next day, authorized Stearns to discharge
him. On March 30, in the presence of Searcy, Stearns discharged Reilly, effective
April 6, 1945, allegedly for "conduct unbecoming an agent" of the respondent.
A grievance conference was later held at the Book-Cadillac Hotel on May 4,
1945, between the respondent's officials and the representatives of the Union On
June 6, pursuant to an agreement between the respondent and the Union, an
arbitration hearing was commenced in connection with Reilly's discharge 38 The
hearing was never concluded for reasons appearing hereinafter, and the Union
proceeded with the charges in the instant proceeding.
Respondent's contentions regarding Reilly's discharge; conclusions
The respondent contends that Reilly's conduct during agency meetings and
at the office over a period of six to eight months prior to his discharge was loud,
boisterous, belligerent and lacking in restraint; that his attitude toward his
district manager was disrespectful and insolent; and that he failed to cooperate,
especially in connection with the "dollar-a-week plan" of the Agency Training
Course.S° District Manager Stearns objected, in particular, to Reilly's "out-
bursts" during agency meetings in which he strenuously opposed certain changes
in respondent 's policy, announced from time to time by circular letters from the
Home Office. Although Stearns' objections were directed to the mamier of Reilly's
disapproval, it is apparent that Stearns resented the fact that Reilly interposed
objection to the proposed changes themselves Many of them were of vital con-
cern to the agents affecting, as they did, the method of payment of agents' coin-
missions , the amount of weekly premium insurance which agents were authorized
to write, the number of reporting days, personal delivery of premium notices by
agents, and the like. Although Reilly was doubtless most vociferous in his dis-
approval,'0 other agents had also complained.
With respect to his refusal to memorize and utilize the "dollar-a-week plan,"
Reilly was only one of a number of agents who had been recalcitrant in this re-
gard. Agents DiMaggio and Tokarski, who had also refused to memorize the
course until Vice-President Townsend wired that all agents were required to
3e The collective bargaining agreement, in effect at the time, provided for arbitration of
grievances , disputes or questions of interpretation of the agreement in the event of failure
of settlement by means provided in the contract Although the suspension or discharge
of agents for any of several enumerated reasons was specifically excluded from the scope of
arbitration , the agreement expressly provided that arbitration might nevertheless be
resorted to if the parties agreed in writing that it was "both expedient and necessary" to
submit the controversy to arbitration.
a° Testimony was offered by the respondent that at a party at the home of Assistant
Manager Ziegler in January 1945, attended by members of the respondent's organization,
Reilly made some deprecatory remark concerning Vice- President Townsend, and stated
that no employee who was not a member of the Union could hope to go very far with the
respondent . The remark concerning Townsend was later reported to Stearns who in turn
reported it to Searcy Reilly was not questioned about the remarks at the hearing nor did
he deny them. The undersigned finds that Reilly did in fact make the statements attributed
to him. However, although counsel for the respondent contended at the hearing that the
respondent relied upon this episode as one of the grounds for Reilly's discharge , the under-
signed finds that the respondent attached no substantial weight to the incident, if in fact
it considered it, in determining upon his discharge, especially since it was never stated to
Reilly or the union representatives as a ground for the discharge , and since Stearns had
stated to Business Agent De Lorme that he had considered only events which had occurred
at the office in recommending his discharge
40 Stearns admitted that Reilly "used to grieve plenty."
THE LIFE INSURANCE COMPANY OF VIRGINIA 1155
take the course, were not disciplined. Although DiMagglo continued with the
clinic work thereafter, he informed Stearns that he did not intend to change his
"sales talk" which had proved successful in the past. The record is silent, as to
whether Tokarski continued to take the oral drill work or to use the plan as part
of his sales presentation. The record does not disclose that either was disci-
plined thereafter in this connection.
The climax to Reilly's alleged misconduct, however, according to the respond-
ent, occurred during an agency meeting on March 28, when Stearns read two
letters from the Home Office. One, a circular letter announcing a change in the
method of payment of agents' commissions, arousejl strenuous protest from
Reilly. Maintaining that the change would remove all incentive for selling or-
dinary insurance, he announced that he would refuse to do so. The other letter,
from Assistant Secretary Searcy, related to the controversial question as to
the number of days agents were required to report to the Office. A number of
the agents, including Reilly, had maintained that the Home Office had at some
time issued a circular letter authorizing agents to report two mornings a week
instead of three. Searcy's letter stated that a thorough search at the Home Office
disclosed that no such circular letter had been issued, although the respondent
had on occasion replied to individual requests of district managers for changes
in the schedule of reporting, and that this was doubtless what had caused the
confusion in the minds of the agents. Reilly vehemently contradicted the state-
ment in the letter, insisting that such a letter had been sent and that Stearns
had read it at an agency meeting. The only conflict as to what transpired dur-
ing this episode relates to the degree of vehemence with which Reilly spoke;
Stearns insisting that Reilly leaped to his feet and pounded the table, Reilly
asserting that he spoke calmly and respectfully. It is apparent that both were
prone to some exaggeration and that the "outburst" was neither as violent as
Stearns contended nor as restrained as Reilly maintained. Stearns' contention,
however, that Reilly had in effect called him a liar, seems somewhat strained.41
That some heat, was generated during the exchange is apparent from the fact,
that, as the meeting adjourned, Reilly muttered some deprecatory remark about
Searcy which was overheard by Stearns.
Later that morning, Stearns reported the incident in a telephone conversation
with Searcy at the Home Office. Stearns informed him that he "had had just
about all of Mr. Reilly that [he] could stand" and, after reviewing his complaints
about Reilly's "repeated outbursts," his disrespectful attitude and lack of co-
operation, stated that he was again recommending his discharge Searcy adopted
a somewhat conciliatory tone, and stated that in view of Reilly's ability and
satisfactory record the respondent had not seen fit to discharge him, in the hope
that Reilly's conduct would improve, notwithstanding Stearns' previous com-
plaints.
As late as March 28, according to Searcy's testimony, it was not only his opin-
ion but also his decision, as expressed to Stearns, that the respondent did not
consider Reilly's behavior had afforded sufficient grounds for the termination
of his employment ; that Reilly not only had ability but also that there was like-
lihood of improvement in his attitude. However, on March 30, following his in-
vestigation at the district office which, it should be noted, revealed no new facts
not previously known to the respondent, and coincidental with receipt at the
Home Office of notice of the Union's petition for certification in behalf of the
Ohio agents, the respondent decided to terminate Reilly's employment.
41 In a private discussion with Searcy immediately following his discharge , Reilly made
precisely the same charge against Stearns.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is significant that, for approximately four years after the commencement of
his employment, Reilly's attitude, behavior, and production record had been satis-
factory and had elicited no adverse criticism. Assistant Secretary Searcy testi-
fied that Reilly's "attitude, demeanor and general amiability" for a period of a
year and a half while he was under his supervision had been satisfactory ; that
although he may have spoken in a loud voice, his attitude was not "loud"; and
that at no time while Searcy was district manager was Reilly "prone to be argu-
mentative and contentious." Moreover, according to Searcy, Reilly "had a
much better production record under Stearns than he ever had under [Searcy].
by far." There is nothing in the record to indicate that Reilly's attitude and
behavior underwent any substantial change from then until the summer of 1944.
Most of the complaints against Reilly, except in connection with his refusal
to cooperate on the "dollar-a-week plan," occurred during the period when his
role as a militant union advocate became increasingly evident. Thus, it appears
that the complaints regarding his behavior became more frequent following the
Union's organizational campaign in which he participated during the Club 88
convention.'2 His encounter with Searcy at the hotel suite while the conven-
tion was in progress ; the incident at the Morris Bar following the Christmas
party, during which Reilly reminded Stearns of the existence of the Union ;
Reilly's notice to the respondent, as secretary and treasurer of the Union, of
its claim to represent the agents in other district offices ; his letter to the mem-
bers of the Union, condemning the respondent's position regarding the number
of reporting days, of which the respondent acquired actual knowledge, have
already been mentioned. When Stearns' explicit threat, in his conversation
with Agent VanHala in February 1945, to "do something" about the two,"Union
agitators" or "trouble makers," one of whom Stearns identified at the hearing as
Reilly, is considered in conjunction with the foregoing, it becomes apparent
that the respondent was not wholly impervious to Reilly's union activity.
Assistant Manager LePard's testimony that he told Searcy during the latter's
investigation prior to Reilly's discharge that "it was the old Mr. Reilly . . .
he was a . . . little bit of a flannelmouth . . . his position in the Union had
done some of the talking .. ," is significant 43
It is further significant that, although Stearns maintained that he had repeat-
edly requested Reilly, directly and through his assistant manager, to correct
his attitude, he at no time disciplined him or warned him that he risked dis-
charge. Nor, for that matter, did such warning emanate from the Home Office.
Admittedly, the respondent was confronted with a manpower shortage during
the period involved and good agents especially were difficult to obtain.
It is apparent that a certain friction existed between Reilly and his district
manager, doubtless arising from an incompatibility between the two men. It is
"Although both Searcy and Stearns denied that they were aware of the committee's
purpose at the time of the convention, the record discloses that the committee's activities
were conducted openly , that several assistant managers visited the Union's suite and
could hardly have failed to observe their activities In any event, it is clear that Stearns,
at least, learned of the purpose of the commitee, shortly after his return to Detroit, from
both District Manager Harrell and Stearns' cashier, several months before Reilly's
discharge
"Called as a witness by the respondent, LePard admitted on cross-examination that
during a conference between the grievance committee and Stearns he had stated that
Reilly was one of the best agents-he had ever had ; that his production was excellent and
the condition of his debit very good , that Reilly had worked for him for four years ; that
he disagreed with Stearns that Reilly was an improper person to represent the respondent:
that LePard was positive that he could "get along with him for many more years" ; that
it would be difficult to replace him ; and that LePard was of the same opinion at the time
of the hearing.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1157
unnecessary to decide, however, whether there was any excuse or justification
for the temperament generated on the occasions complained about, since it is
patent that if the respondent discharged Reilly for any or all of the reasons
advanced by it, or, tndeed for no reason at all, so long as it was not motivated
in whole or in material part by Reilly's membership or activity in behalf of the
Union, the allegations of discrimination must fail.
However, the undersigned is persuaded, upon an analysis of the entire record,
including the anti-union statements of its supervisors, that the respondent was
motivated, in material part, if not in whole, by his union activity in ultimately
determining upon his discharge. Under these circumstances, it rested upon the
respondent to "disentangle the consequences for which it was chargeable from
those from which it was immune"" This, the respondent has failed to
accomplish.
Although it is hereinafter recommended that Reilly he offered reinstatement.
this is not to be taken to mean that conduct of the type complained of, attributed
to him, is approved Upon such reinstatement the respondent may, of course,
properly discipline Reilly for insubordination or any other future misconduct, so
long as such action is not motivated by anti-union considerations
Upon the basis of the foregoing and the entire record, the undersigned finds
that the respondent, by dischal Bing Harold M. Reilly and thereafter refusing
to reinstate him, because of his union membership and activity, has discriminated
against him in regard to the hire and tenure of his employment, and has thereby
discouraged membership in the Union"
Frank J. Tokarski was employed in February 1943 as an insurance agent at
Detroit District Office No. 1. He was discharged on April 27, 1945, effective May
4, 1945, allegedly for withholding funds collected in behalf of the respondent.
In July 1944, lie had been elected vice president of the Union, and held that office,
as well as that of steward of District Office No. 1, at the time of his discharge.
On several occasions he had acted as a member of the grievance committee which
conferred with District Manager Stearns. His participation as a member of
the union organizing committee during the Club 88 convention has already been
mentioned. It will further be recalled that he had presented to Stearns the
petition which, despite Stearns', objection, had resulted in the change of day
upon which the Agency Training Course was to be held.
It is undisputed that on March 26, 1945, Tokarski collected from policyholder
Davies a premium amounting to $781 covering "ordinary" insurance, which he
failed to turn in to the office until April 18, 1945, when he indicated on the
accompanying form that the collection had been made on April 16, 1945. This
was first discovered by District Manager Stearns after a "final notice" of non-
payment of premium, mailed to the policyholder on about April 17, was returned
with a notation that the premium had been paid to the agent on March 26 Stearns
thereupon interviewed the policyholder and learned that Tokarski had also col-
" See N . L R. B v. Remington Rand, Inc, 94 F ( 2d) 862, 872 ( C C A. 2).
95 The undersigned has considered the respondent ' s contention that the Board is
"estoppel" from proceeding to a determination of Reilly ' s discharge for the reason that the
Union withdrew from the arbitration proceedings and submitted the case to the Board
instead - The record indicates that after the arbitration hearing had commenced, one of
the arbitrators , when it became apparent that Reilly's union activity was in issue, ques-
tioned the propriety of proceeding with the hearing. Moreover, charges of discrimination
having been filed in the meantime with respect to the remaining agents alleged herein to
have been discriminatorily discharged , the respondent's counsel required the Union to elect
whether it would proceed under the Act or under the arbitration proceedings with regard
to Reilly. The arbitration proceedings mere thereupon suspended and the Union proceeded
before the Board . The undersigned therefore finds the respondent ' s contention without
merit.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lected at the same time the sum of $2.96, covering two payments on weekly
premium insurance in force at the same household. Although this sum had been
entered in Tokarski's regular debit book, no record was made of the collection
of the ordinary insurance premium. On Monday, April 23, Stearns questioned
Tokarski about the collection of the "ordinary" premium and was informed that
he had forgotten making the collection and had overlooked turning it in. Stearns
thereupon asked him for, and obtained, a written statement to that effect. On
the same day, Stearns reported the matter to the Home Office by letter, accom-
panied by supporting documents, including Tokarski's signed statement. After
discussing the details of Stearns' investigation, the letter expressed the opinion
that Tokarski had deliberately withheld funds and had misrepresented the facts.
Stearns recommended that the agent's account be audited and stated that upon
advice from the Home Office, his account would be closed as of the week of
April 30.
Further investigation, pursuant to instructions from the Home Office, revealed
that Tokarski had also collected, on the same day on which he had collected the
Davies' premiums, an ordinary premium from policyholder Piazza in the amount
of $1130, which Tokarski had entered at the back of his debit book. Although
normally this premium should have been turned in to the district office on March
28, it was not actually turned in until April 6, 1945, when it was accompanied
by a voucher indicating that it had been collected the preceding day.
As Stearns proceeded with his investigation, he also discovered that in addi-
tion, Tokarski, on February 19, 1945, had collected from policyholder McDermott
a sum of money covering three items: (1) $2160 on an "ordinary" premium,
(2) an unspecified amount to be applied on weekly premium, and (3) $20.00 on
account of a loan on an ordinary insurance policy. Although, according to
Tokarski, he had received a single check from this policyholder covering the
three items, he turned in, on February 21, an amount covering only the ordinary
and weekly premium insurance on this transaction. The sum of $2000 on account
of the loan which, according to the respondent, should have been turned in on
the same day was not in fact turned over to Stearns until subsequently demanded
by him on April 27, 1945. Although Tokarski had entered the collection of the
McDermott premiums in his debit book, he made no record of the collection of
the sum of $20.00 on account of the loan.
On April 27, when Stearns sent for Tokarski, the latter inquired whether he
"owed the Company any money". Stearns asked him the reason he had not
turned in the Piazza premium promptly and why, when he had finally done so,
he had not given the correct date of collection. His only explanation was that
lie had discovered, in preparing his account for the period in question, that he
had approximately $12 00 in his collections for which he was unable to account,
and that he had checked his account with Agent Fred Fisher, president of the
Union, but neither was able to discover the error. He did not, however, turn
in this amount to the cashier but retained it without mentioning it to his man-
ager or assistant Stearns thereupon asked Tokarski for another written state-
ment in connection with the collection of the Piazza premium, but Tokarski,
after consulting with the union representatives, refused. Union President Fisher
attempted to intercede in Tokarski's behalf, asking that Stearns overlook
Tokarski's derelictions and give him a "break," but Stearns was noncommittal:
Later that day, Stearns confronted Tokarski with a receipt over his signature
for the collection of the sum of $20 on account of the McDermott loan. Tokarski
acknowledged his signature and asked Stearns whether he might have until the
following Monday to pay it. Stearns insisted that the amount be repaid that
THE LIFE INSURANCE COMPANY OF VIRGINIA 1159
clay, but permitted him several hours in which to procure the money. He required
him, however, to leave his debit book.
In a telephone conversation with Searcy that afternoon, Stearns was instructed
to terminate his contract for mishandling funds. When Tokarski returned to
the office late that afternoon and repaid the $20 00 sum, Stearns informed him
that he was being discharged for mishandling funds and that he would receive
the customary one week "final," during which his account would be audited. Sev-
eral grievance conferences have since been held between representatives of the
Union and of the respondent, but Tokarski has not since been reinstated.
Contentions of the parties; conclusions
It is evident that Tokarski violated the rules of the respondent requiring
agents to turn in collections of ordinary premiums and payments on account
of policy loans on the next reporting day following the date of the collection,-
and that he did so with respect to collections from three separate policyholders
between February 19 and March 26, 1945. The only explanation advanced for
his failure to turn the funds in promptly is that he forgot or overlooked doing so.
Although the respondent does not contend that the withholdings were deliberate,
this does not render the agent's remission any less serious.
Evidence was, however, introduced by the Board in support of its contention
that the respondent not only condoned withholding of funds by its agents but
in some instances actually authorized it. Instances on which the Board sought
to rely included evidence that on an occasion when agents had complained that
their pay checks were late, District Manager Stearns remarked that "an insurance
agent should never be broke," from which agents apparently sought to infer per-
mission to draw upon collections for their own use ; 4Q that on another occasion
Stearns had told an agent to "juggle" funds; that Stearns and his assistant
managers had, pursuant to rehpon(lent's policy, instructed agents to withhold
collections at the end of the year in order to turn in a large collection at the
beginning of the new year. With respect to the latter contention, while figures
covering the periods involved tended to support this position, the respondent
contended that this result was accomplished by slackening collections by agents
toward the end of the year, advancing the last regular agents' "turn-in" day
of the year and postponing the regular first "turn-in" day of the next year."
Specifically, the Board further contends that the respondent condoned conduct
similar to Tokarski s on the part of other agents Apai t from the testimony of
agents generally that it was common practice for them to withhold collections
under circumstances similar to those involving Tokarski, evidence of specific
instances was offered. Thus, evidence was introduced that Agent Karam had
forgotten to turn in collections for as long as several weeks on occasions and,
when he informed his assistant manager to this effect, was permitted to turn the
funds in late without being penalized except for a reprimand. Karam cited
two specific instances, one while he was under the supervision of Searcy as
district manager, the other, in the summer of 1942, while lie was under Stearns'
49 The undersigned does not consider this inference warranted Stearns, in explanation,
testified that he merely intended that with the opportunity for earning a good living in
the insurance business, agents ought not to be dependent upon each pay check "to tide them
over . . . a week-end "
44 It is apparent that the agents, doubtless to suit their own convenience , construed this
as authority to continue with their collections as usual and to defer turning them in to the
district office until after the first of the new year.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision. On the first of these instances, Karam had collected funds which
he had failed to turn in for over a month. Searcy asked Karam whether the
withholding had been intentional and, when he was assured that Karam had
forgotten it, admonished him against a recurrence of the incident, but did not
otherwise discipline him. The second withholding, involving collection of an
ordinary premium of $6.00 or $7.00, was discovered by a traveling agency auditor
while Karam was on vacation. Upon Karam's return, Stearns questioned him
about the matter Karam informed him that he had overlooked turning in the
collection in his preparation for leaving on vacation Stearns reported the mat-
ter to the Home Office but recommended that Karam should not be discharged.
The recommendation was apparently adopted, and Karam was not otherwise dis-
ciplined." Uncontradicted evidence of similar instances which went undisciplined
involved two agents employed in District Office No 4 under District Manager
Dicken. One involved a collection of a $5 00 loan payment collected by Agent
Edith Morse in April 1944 which she had withheld for about six weeks 49 The
other involved a $4.12 loan interest collection by Agent George Beville in August
1943 which he had failed to turn in until it was called to his attention by his
district manager following its discovery by a traveling agency auditor. Signifi-
cantly, not only were these agents not discharged or disciplined, except possibly
for a reprimand, but none of their accounts were investigated or audited, follow-
ing the discovery of the withholdings to ascertain whether other irregularities
may have existed, contrary to the procedure adopted with respect to Tokarski '
If the respondent had determined to enforce its rules respecting collections more
rigidly, after condoning the past conduct of these agents, it seems reasonable
to assume that it would have warned agents during agency meetings, or by other
appropriate means, that future withholdings would not be tolerated under penalty
of discharge before peremptorily exacting such a penalty. These and other
circumstances already related give rise to the suspicion that the respondent
might not have discharged Tokarski for withholding funds in the absence of his
not inconsiderable activity in behalf of the Union It will be noted that Stearns
recommended his discharge immediately upon the discovery of the first with-
holding, before he had undertaken his investigation at the direction of the Home
Office, and before Tokarski's other withholdings had been discovered However,
it is evident that the actual decision to discharge Tokarski was made by the
Home Office and then, not until after the investigation had been concluded.
On the other hand, the respondent introduced evidence of specific instances of
agents who had been discharged for mishandling funds on a single occasion. Of
98 The respondent conceded the incident which occurred under Stearns , but contended
that Karam's explanation constituted extenuating cncumstances The incident alleged
to have occurred under Searcy was not denied. While the record is silent as to whether
Karam was a member of the Union at the times involved, it is apparent that the Union,
although organized, had not been recognized by the respondent, and had not engaged in
any extensive activity.
4D Agent Morse left the employ of the respondent at about the time of the collection, and
the matter was not brought to her attention until about six weeks later. She was, how-
ever, subsequently reemployed at the same office, and was not prejudiced by the incident.
61 Further evidence of alleged disparate treatment related to withholding of weekly
premiums collected by Assistant Manager Louis D Sigismond of District Office No. 2 from
two policyholders The recoid discloses that these collections were made by the assistant
manager during a period when agents were absent on what the respondent considbred a
stuke Agents had apparently refused to turn over their debit collection books to the
respondent and Sigismond , unable to make appropriate entries in the debit books, over-
looked turning in these two collections although he had reported an apparent discrepancy
in his accounts to his district manager at the time. Under the circumstances it cannot
be said that the respondent was not justified in taking the position that extenuating cir-
cumstances existed excusing the assistant manager 's failure to turn in the funds promptly.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1161
these, two agents were from the same district office as Tokarski, one in November
or December 1941 for withholding a sum of about $7.00 for 6 days, the other in
1943, in connection with the mishandling of a premium of $500 or $6.00. Five
,others named were from areas outside Detroit.
While the situation is not altogether free from doubt, the undersigned is not
persuaded upon the basis of the foregoing and the entire record, and in view of
the aggravated nature of his withholdings, that the allegation that Tokarski
was discharged because of his union membership and activity and for the purpose
of discouraging membership in the Union, has been sustained, and will therefore
recommend that that allegation be dismissed
Urvill W. Willson was employed as an insurance agent in Detroit District
Office No. 2 from 1936 to 1939. He was reemployed in March 1940 and continued
in its employ until May 26, 1945, when he was discharged pursuant to notice
given on May 18, 1945.
On Thursday,- May 3, 1945, at about 10' 00 o'clock in the forenoon, following
reports over a period of several months that Willson had been working at a
gasoline station during working hours, District Manager John A. Ziegler, accom-
panied by Assistant Manager Bernard Conley, drove to the gasoline station
and observed Willson in the uniform of a gas station attendant 61 The following
Monday Ziegler sent for Willson and informed him that he was violating the
union contract requiring agents to work for the respondent five days a week.
Willson admitted that he had been workingat the gas station, helping out the
proprietor, but stated that it did not interfere with his work as an agent. Ziegler
expressed his disapproval, but informed Willson that if he wished to help out a
friend, he should inform Ziegler of the facts and request permission. Ziegler
stated that he would then take the matter up with the Home Office." In the
ensuing discussion, Ziegler remarked that Willson had undoubtedly failed to
realize the seriousness of the situation, and pointed out that it might prove
embarrassing to both of them. He agreed to overlook the incident, and told
Willson to return to work. Although Willson made no comment, Ziegler appar-
ently considered the incident closed and assumed it would not be repeated.
He did not report the matter to the respondent, but warned Willson that if the
incident were repeated he would be obliged to do so
At about 9: 30 the following morning, Ziegler had occasion to drive past the
gas station again and observed Willson working there. Ziegler stopped his car
and as he walked to the gas station, Willson approached him. Ziegler remarked
that Willson apparently had not heeded his admonition of the previous day.
As Willson started to explain, Ziegler told him that he was late for an appoint-
ment and that lie would see him later at the office Willson reported to the office
the following Wednesday, but did not see Ziegler until the following morning
He then informed him that he had decided to comply with Ziegler's request to
discontinue working at the gas station. Willson explained that the proprietor
had requested him, the night before he last worked there, to accommodate him
by working the following morning. Willson did not, however, communicate with
Ziegler in an endeavor to obtain permission to do so. On May 11, 1945, Ziegler
wrote to the Home Office reviewing Willson's case and suggesting that his poor
record may have been due to the fact that lie had probably been spending more
time at the gas station than Willson admitted. On May 14, Assistant Secretary
"Ziegler testified that he had seen Willson at the some gas station about a year prior to
this when Willson waited on him, but that since Willson was not then in uniform Ziegler
assumed that he had just happened to be there and served him as a matter of courtesy
" Ziegler testified that he considered the fact that Thursday was not then a regular
reporting day immaterial.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Searcy authorized Ziegler to "final" Willson's account the week of May 21,
effective May 26.
There is no substantial dispute as to the facts here involved The employment
contract between the respondent and the agents, one of which Willson signed,
requires agents to devote their entire time to the business of the respondent and
to abide by the rules and requirements contained in the Manual of Instructions
furnished to all agents. Specifically, the Manual provides, in this respect:
"The full time, talent, and energy of all representatives belong to the com-
pany. They must have no other business connection and are not permitted to
carry or distribute circulars, canvassing or advertising material pertaining
to any other business."
The union contract, effective at the time, provides that the work week shall he
from Monday to Friday, inclusive. It is apparent that Willson violated. the
provisions of each of these instruments
Counsel for the Board, however, in urging that Willson was discriminated
against, contends that with respect to three agents, the respondent did not re-
quire strict observance of these provisions. One of these agents, at the time
of his appointment, had informed the respondent that he officiated as a preacher
on Sunday mornings and Thursday evenings and obtained permission to pursue
these duties. Another acted as a justice of the peace, a matter which had
been considered by the respondent before making his appointment. A fire in-
surance business which he had been conducting was also the subject of some
correspondence between the district manager and the Home Office. The last
involved an agent who had been working at a jewelry store Saturday afternoons,
on which agents were not required to work for the respondent. There was also
evidence that he worked in this, jewelry store during the Christmas period, a
normally slack period in the respondent's business. Although the record does not
indicate that he had previously obtained permission to do so, the respondent
contends that he was entitled to this time in lieu of vacation
The instances cited of alleged disparate treatment are not comparable. Here,
Willson had not only been working at another job with some degree of regularity
during time which he should have devoted to the business of the respondent,
but he also persisted in doing so after he had been warned against it Although
he attempted to excuse his working at the gas station on the day after he had
been warned by explaining that he had merely assisted the proprietor in an
emergency which he claimed had arisen, he had made no attempt to communicate
with his manager to request permission as the latter had suggested. Furthermore,
Willson's union activity was slight and comparatively insignificant. According
to his own testimony, he had held minor offices in the Union, had served in 1944 as
a member of the grievance committee for his district office, but had otherwise
been inconspicuous
Counsel for the Board contends, however, that while the respondent may not
have deliberately embarked upon a program of eliminating the outstanding
protagonists of the Union, it nevertheless seized upon the derelictions of union
members as a pretext for discharge, which it would otherwise have excused in
non-union employees. The record does not justify the conclusion that such
motive existed with respect to Willson
Upon the basis of the foregoing and the entire record, the undersigned con-
cludes and finds that Willson was not dischargqd because of his union member-
ship and activity, for the purpose of discouraging membership in the Union,
and will therefore recommend that those allegations be dismissed.
THE LIFE INSURANCE COMPANY OF VIRGINIA 1163
Marion Nagle Winkler n was employed as an insurance agent in District Office
No. 1 on July 24, 1944, and was discharged on May 18, 1945, effective May 25,
allegedly for failure to report to the office on a regular reporting day.
On Wednesday, May 2, 1945, District Manager Stearns asked Nagle to report
to the office the next day, a day on which agents were not ordinarily required
to report, to be interviewed by General Counsel Shands and Assistant Secretary
Searcy regarding Harold Reilly, the agent whose discrumnatoly discharge has
been heretofore discussed .14 She consented. Later that day, according to her
testimony, she met Business Agent DeLorme and infoi med him that she had
been requested to come into the office the next clay When DeLorme asked
her whether she intended to do so, she replied that she did not. She did not,
however, communicate 'with Stearns or notify anyone in behalf of the respondent
of her change of mind
On Wednesday-evening, Nagle left the city on personal business She failed
to report on Thursday or Friday, a regular report day. On Friday morning
Assistant Manager Langlois telephoned Nagle's home to ascertain the reason
she had not reported. Her mother informed him that Nagle was out of town
and that she had requested her to notify the office but that she had forgotten
to do so.
When she returned to the office the following Monday, and on subsequent
days, Stearns asked Nagle the reason for her failure to report on Friday. She
informed him that she had gone out of town to view some property and had
requested her mother to notify the office, but that she had forgotten to do so.
Stearns did, however, ask Nagle whether the Union had anything to do with
her failure to be present on Thursday. He reminded her of the rule regarding
reporting and pressed her for her reason in not first obtaining permission to be
absent on Friday inasmuch as she had known in advance that she intended
to be out of the city on that day. On May 9, Stearns notified the Home Office
by letter of what had transpired and recommended that her employment be
terminated. He added that he intended to obtain a written statement from
her regarding the reason for,her violation of the rule.
On May 11, 1945`s Nagle furnished Stearns with a written statement which
reiterated her oral statements Stearns forwarded the statement to the Home
Office with an accompanying letter, expressing the opinion that her reason (lid
not justify her absence without permission, and recommended her discharge
On May 18, Stearns notified the Home Office that Nagle's final inspection would
he made for the week of May 21 and that her contract was being terminated.
Stearns offered her an opportunity to resign. At first she agreed but later re-
considered. Stearns thereupon terminated her employment and notified the
respondent accordingly by letter on May 21.
53 Nagle was married on July 11 , 1945 To avoid confusion she is referred to, except in
the formal portions of this report, by her former name.
64 According to Stea-rns' testimony , which Nagle denied , but which the undersigned has
credited, on the occasion in March 1945, when she gave him the mimeographed copy of
Reilly 's letter to the members of the Union denouncing the respondent's policy respecting
reporting, Nagle informed Stearns of her dissatisfaction with the Union and of her dis-
approval of Reilly's attitude She also informed Stearns that Reilly had referred to him
in a recent conversation as "a rat" and had threatened to "get him " According to
Stearns, similar statements had been reported to him by the assistant nianaeer of another
officer who had been present with Nagle and Reilly at the time. The undersigned finds that
Nagle discussed this situation with Stearns and that he requested her to he present on
Thursday, May 3, 1945, to discuss those matters with Shands and Searcy in preparation for
the grievance conference scheduled at the Book-Cadillac Hotel for the following clay -
The letter is erroneously dated Apiil 11, 1945.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Board contends that Nagle was discharged, not for her failure
to report on Friday, but for her failure to appear on the preceding day He
further contends that the respondent discharged her because it had concluded
that the Union had prevailed upon her not to keep her appointment with the
respondent's officials. Hence, it is argued that the respondent discharged her
because of her adherence to and sympathy for a fellow union member and the
Union. It is apparent that the purpose of the interview was to enable the re-
spondent to prepare its case in connection with the grievance conference regarding
Reilly, which was later held at the Book-Cadillac Hotel on May 4. There is no
doubt that Stearns resented her failure to appear for that interview after she
had consented, especially inasmuch as he had previously made arrangements
for the interview with Home Office officials who were in Detroit in connection with
the grievance proceedings regarding Reilly. It is therefore singular that although
Stearns inquired of Nagle, when she returned, why she did not report on Friday,
he did not inquire as to the reason she had failed to appear on Thursday, an
occasion of considerably greater importance from the respondent's viewpoint.
Moreover, the fact that Stearns inquired whether Nagle had discussed with
union representatives her contemplated interview strongly suggests that her sub-
sequent discharge may have been motivated by the respondent's conclusion that
her failure to appear on Thursday was attributable to her union adherence.
Stearns had also requested Agent Brunk to be present on Thursday, May 3, so
that she too might be interviewed by Shands and Searcy. Although Brunk also
failed to appear for the interview, Stearns testified that her husband had tele-
phoned to report that "she was upset and nervous over the situation, and would
prefer not to come in." Brunk was never subsequently asked for any further
explanation of her failure to appear on Thursday.
Nagle was not active in the Union There is, moreover, reason to believe
that she had been dissatisfied with the Union and had on one occasion informed
Stearns that she was considering withdrawing from the Union or resigning from
her position. '19
It is unnecessary to decide whether the respondent would have been justified
in discharging Nagle if it believed that her failure to appear on Thursday resulted
from what it may have considered the Union's unwarranted interference with
its managerial prerogative in advising Nagle against appearing in connection
with an investigation involving another member of the Union The fact is that
Nagle failed to report to the office on a day upon which she was required to
do so; that she knew in advance that she would not be present on that day, yet
she made no effort to obtain permission to be absent ; that she was without a
satisfactory excuse for her absence. It is clear from the record that the whole
question of reporting had involved a serious controversy between the agents
and the respondent ; that it had finally resulted in a notice to the agents by
telegram that failure to comply with the rule regarding reporting would result
in appropriate action being taken by the respondent. Nagle's attitude indicated
a complete indifference to this admonition.
Upon the basis of the foregoing, and the entire record, the undersigned is not
convinced that the respondent, by discharging Marion Nagle, discriminated in
regard to her hire and tenure of employment, for the purl)ose of discouraging
membership in the Union, and will therefore recommend that those allegations
in the complaint be dismissed.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that, by discriminating in regard to the hire and tenure of
employment of Harold M. Reilly, thereby discouraging membership in the Union,
and by the statements of its supervisors heretofore found,, including the state-
THE LIFE INSURANCE COMPANY OF VIRGINIA 1165 ,
meats of Assistant Secretaiy Searcy to Harold 111 Reilly on the morning of
December 8, 1944, at the hotel suite of the union organizing committee, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them under the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
In considering the scope of the recommendations to be made as to the type of
conduct from which the respondent shall be required to cease and desist, the
following facts have been considered especially significant: (1) late in March
or early in April 1942, a representative of the Home Office urged an employee to
withdraw from the Union and form a company union; (2) from the latter part of
1944 to the summer of 1945, district managers and assistant district managers
of the respondent, admittedly supervisors, (a) questioned employees concerning
the advantages to be gained from membership in the Union, (b) stated to em-
ployees that their opportunities for advancement had been and would be preju-
diced by their membership in and activity in behalf of the Union, (c) threatened
to dischaige a union member, who was in fact subsequently discharged, (d)
stated that the respondent was prepared to spend large sums of money to destroy
the Union, (e) disparaged the Union's leadership, and (f) discriminatorily dis-
charged an active union member as it had threatened to do, all as more fully
revealed in the findings made and conclusions reached herein. In particular, the
discriminatory discharge of Reilly "goes to the very heart of the Act." 60
In view of the respondent's unlawful conduct and its underlying purpose, the
undersigned is convinced and finds that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed by the Act
and that a danger of their commission in the future is to be anticipated from
the course of the respondent's conduct in the past F The preventive purpose of
the Act will be thwarted unless the recommendations are coextensive with the
threat. In 'order, therefore, to make effective the interdependent guarantees of
Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize
strife which burdens and obstructs commerce and thus effectuate the policies of
the Act, it will be recommended that the respondent cease and desist from in any
other manner infringing upon the rights guaranteed in Section 7 of the Act.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Harold M. Reilly. It will therefore be recommended
that the respondent offer immediate and full reinstatement to the said Harold M.
Reilly to his former or substantially equivalent position without prejudice to
'IN. L R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 532, 536 (C. C. A. 4) ;
see also N L R B. v. Automotive Maintenance Machinery Company, 116 F. (2d) 350
(C C. A. 7), where the Court said, "No more effective form of intimidation , nor one more
violative of the N. L. R Act can be conceived than a discharge of an employee because
be joined a union "
11 See N L R B. v Express Publishing Company , 312 U. S 426.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his seniority or other rights and privileges, and make him whole for any loss
of pay he may have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he normally would have
earned as wages from the date on which he was discriminatorily discharged to
the date of the offer of reinstatement, less his net earnings ' during said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Federation of Industrial and Ordinary Insurance Agents, Local
22264, affiliated with the American Federation of Labor, is a labor organization
within the meaning of section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Harold
M. Reilly, thereby discouraging membership in a labor organization, the re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights. guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not discriminated in regard to the hire and tenure of
employment of Frank J Tokarski, Urvill W Willson, and Marion Nagle Winkler.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, The Life Insurance Com-
pany of Virginia, of Richmond, Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Industrial and
Ordinary Insurance Agents, Local 22264, affiliated with the American Federation
of Labor, by discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure of employment,
or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist American Federation of Industrial and Ordinary In-
surance Agents, Local 22264, affiliated with the American Federation of Labor,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, as guaranteed in Section
7 of the Act.
68 By "net earnings" is meant earnings less expenses , such as for transportation, room,
add board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his unlaw=
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company, S N L It B. 440 Monies received for work per-
formed upon Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings. See Republic Steel Corporation v N. L. R B., 311 U. S 7.
THE LIFE I\ SURANCE COMPANY OF VIRGINIA 1167
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Offer to Harold M. Reilly, immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges ;
(b) Make whole Harold M. Reilly for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment to him of
a sum of money equal to that which he normally would have earned as wages
from April 6, 1945, the effective date of his termination, following the respondent's
discrimination against him to the date of the offer of reinstatement, less his net
earnings n during said period ;
(c) Post at its district offices in Detroit, Michigan, copies of the notice attached
hereto marked "Appendix A." Copies of said notice to be furnished by the
Regional Director for the Seventh Region, after being signed by the respondent's
representative, shall be posted by the respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the respondent to insure that
said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Seventh Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint, insofar as it alleges that the
respondent discriminated in regard to the hire and tenure of emloyment of
Frank J. Tokarski, Urvill W. Willson, and Marion Nagle Winkler, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original 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. Immediately upon the filing of such
statement of exceptions and/or brief, 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. As further provided in said Section 33,
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 the order transferring the case to the Board.
IRVING ROGOSIN,
Trial Eaiaminer.
Dated January 17, 1946.
59 See footnote 58, supra
679100-46-vol. 65-75
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National 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
organizations, to join or assist American Federation of Industrial and
Ordinary Insurance Agents, Local 22264, affiliated with the American Fed-
eration of Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection. -
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoved, and
make them whole for any loss of pay suffered as a result of the discrimination.
Harold M. Reilly
All our employees are free to become or remain members of the above-named
union or any, other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
THE LIFE INSURANCE COMPANY OF VIRGINIA,
Employer.
Dated ---------------- By ------------------------------------------- -
(Representative) (Title)
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.