United Insurance Co. of America

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 590 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590
United Insurance Company of America and United
Food and Commercial Workers International
Union, AFL–CIO, CLC. Cases 12–CA–19979
and 12–CA–20016
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On March 6, 2000, Administrative Law Judge William
N. Cates issued the attached bench decision. The Gen-
eral Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Michael Maiman, Esq., for the General Counsel.
Michael I. Richardson, Esq., for the Respondent.
R. David Stocks, Representative, for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is
an issuance of warnings and placing on probation case. At the
close of trial proceedings conducted in Tampa, Florida, on Feb-
ruary 10 and 11, 2000, and after reviewing pretrial briefs and
hearing oral argument by counsel for the General Counsel
(Government counsel) and counsel for United Insurance Com-
pany of America (Company counsel), I issued a Bench Deci-
sion pursuant to Section 102.35(a)(10) of the National Labor
Relations Board’s Rules and Regulations, setting forth findings
of fact and conclusions of law, including my ultimate conclu-
sion that the complaint lacked merit and should be dismissed.
For the reasons (including credibility determinations) stated
by me on the record at the close of the trial, I found the Com-
pany did not violate the National Labor Relations Act (the Act)
when on or about December 28, 1998, it issued warning notices
to its employees Edward C. (Bud) Russell and Jeffery Last-
inger, placed them on probation for 1 year and prohibited them
from participation in company incentive recognition such as
regional trips and the president’s club. Accordingly, I dis-
missed the complaint.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 366 to 396, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
Exceptions may now be filed in accordance with Section
102.46 of the National Labor Relations Board’s Rules and
Regulations, but if they are not timely or properly filed, Section
102.48 provides that my Bench Decision shall automatically
become the National Labor Relations Board’s Decision and
Order.
CONCLUSION OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and has not
violated the Act in any manner alleged in the complaint.
On these conclusions of law, and on the entire record, I issue
the following recommended2
ORDER
The complaint is dismissed.

APPENDIX A
BENCH DECISION
366
JUDGE CATES: On the record.
WILLIAM N. CATES, Administrative Law Judge. I heard
these cases in trial proceedings conducted in Tampa, Florida,
on February 10 and 11, 2000.
I have heard oral argument by Government counsel and
Company counsel. I received pretrial briefs from Government
counsel and Company counsel, which I have considered.
I am issuing this Bench Decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s Rules
and Regulations. In so doing, I shall set forth findings of fact
and conclusions of law.
These cases are in the matter of United Insurance Company
of America, hereinafter the Company, and United Food and
Commercial Workers International Union, AFL–CIO, CLC,
hereinafter the Union, in Cases 12–CA–19979 and 12–CA–
20016.
These are unfair labor practice cases prosecuted by the Na-
tional Labor Relations Board’s General Counsel, acting through
the Regional Director for Region 12 of the National Labor Re-
lations Board, hereinafter Board, following an investigation by
Region 12’s staff.
The Regional Director for Region 12 of the Board issued an
Order Consolidating Cases, Consolidated
1 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in the attached appendix B. [Omit-
ted from publication.]
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
332 NLRB No. 57
UNITED INSURANCE CO. OF AMERICA 591
367
Complaint and Notice of Hearing, hereinafter Complaint, on
September 29, 1999, against the Company based on unfair la-
bor practice charges filed by the Union in Case 12–CA–19979
on March 10, 1999, and in Case 12–CA–20016 on March 22,
1999.
The charge in Case 12–CA–19979 was amended on July 28,
1999, and the charge in Case 12–CA–20016 was amended on
June 17, 1999 and again on July 28, 1999.
Specifically, the Complaint alleges the Company issued
warning notices to its employees Edward C. (Bud) Russell,
hereinafter Russell, and Jeffrey Lastinger, hereinafter Lastinger,
and placed these two employees on probation for one year ef-
fective from December 3, 1998, to December 3, 1999, and pro-
hibited these two employees from participating in Company
incentive recognition programs such as Company regional trips
and the Company’s President’s Club.
It is alleged the Company took the action it did against these
two employees because Russell and Lastinger joined and as-
sisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
It is also alleged the Company took the action it did against
these two employees because they gave testimony to the Board
in the form of affidavits, and
368
because Lastinger filed an unfair labor practice charge against
the Company in Case 12–CA–19391.
It is alleged the Company’s actions constitute unfair labor
practices within the meaning of Section 8(a)(1), (3) and (4) of
the National Labor Relations Act, as amended, hereinafter Act.
In its answer to the complaint, as well as admissions made at
trial, the Company admits the Board’s jurisdiction is properly
invoked and that the Union is a labor organization within the
meaning of the Act.
Specifically it is admitted the Company is an Illinois corpo-
ration with offices and places of business located throughout
the United States, including an office and place of business
located at all material times herein, until on or about October
1998, in St. Petersburg, Florida, and at all material times since
on or about October 1998, in Bradenton, Florida, herein called
the St. Petersburg District Office, and has been engaged in the
sales and servicing of insurance products.
During the twelve months preceding the issuance of the
Complaint herein, the Company, in conducting its business
operations, derived gross revenues in excess of $500,000.
369
During that same time, the Company purchased and received
at its statewide Florida facilities, goods valued in excess of
$50,000 directly from points outside the State of Florida.
The evidence establishes the parties admit and I find the
Company is an Employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The evidence establishes, the parties admit, and I find the
Union is a labor organization within the meaning of Section
2(5) of the Act.
This case, as in most cases, requires some credibility resolu-
tions or, stated somewhat differently, I will rely on certain tes-
timony, a result of which will be to reject other testimony.
In arriving at my credibility resolutions, I carefully observed
the witnesses as they testified, and I have utilized such in arriv-
ing at the facts herein. I have also considered each witness’
testimony in relation to other witness’ testimony and in light of
exhibits presented here.
If there is any evidence that might seem to contradict the
credited facts I set forth, I have not ignored such evidence but,
rather, have discredited or rejected it as not reliable or trustwor-
thy. I have
370
considered the entire record in arriving at the facts here.
There are certain facts somewhat of a background nature and
some of a more essential nature that for the greater part are not
disputed in this case.
First, the two individuals, of whom it is alleged that the
Company committed unfair labor practices against, are both
long term, exemplary employees of the Company.
It is also undisputed that both of these individuals, meaning
Russell and Lastinger, supported the Union’s efforts at the
Company. Both were known to management to have supported
the Union.
And more specifically, District Manager O’Brian specifically
knew of both employees’ support for the Union.
The Company knew, as well as District Manager O’Brian, in
particular, that Lastinger had filed a National Labor Relations
Board type unfair labor practice charge against the Company as
an individual, and that case was settled with the settlement
agreement being approved by the Regional Director for Region
12 of the Board on or about September 2, 1998.
It is also undisputed that the Union activity, either in the
form of organizational activity or
371
related types of activity, or negotiating relations between the
Company and the Union has been commenced and/or ongoing
at all times material to this case. The crux of the case is cen-
tered around or revolves from two pieces of business, meaning
insurance type business, that was generated by and/or involved
the two individuals named as alleged discriminatees in the
Complaint, namely Russell and Lastinger.
Those will be dealt with in length as we proceed through the
facts of the case.
Again, before I get into more specific Union related activi-
ties by the two individuals, it is undisputed on this record that
Lastinger is the one who brought the Union involvement to the
Company, and that he did so, based on his testimony, in either
late 1996 or early 1997.
Further, it is without issue, based on General Counsel Ex-
hibit Number 2, that a Certification of Representative issued for
the applicable employees herein by the Regional Director for
Region 12 of the Board on February 26th, 1998.
Further, as I indicated earlier, it is undisputed that Lastinger
filed a charge against the Company as an individual in Case
12–CA–19391, which was settled, and the Regional Director
approved the settlement on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592
372
September 2, 1998.
Further, it is undisputed that Russell was and continues to be
on the Union negotiating committee that is negotiating or at-
tempting to negotiate an agreement between the Company and
the Union for the employees herein.
It is likewise undisputed that the two individuals involved
herein were notified on December the 28th, 1998 that they had
been placed on probation for one year, effective from Decem-
ber 3, 1998 to December 3, 1999.
Although further stipulated to by the parties that the indi-
viduals had Union activity and that the Company was aware of
that activity, I shall highlight some of the additional evidence
that indicates the individuals’ support of the Union and the
Company’s knowledge of that.
I have already made reference to certain of Lastinger’s testi-
mony and/or exhibits with respect to his Union activities.
Further indications of the knowledge of the Union activities
of Lastinger is demonstrated by a meeting Lastinger had with
District Manager O’Brian that took place sometime after Last-
inger returned to work from disability.
373
Lastinger testified he went on disability June 11, 1997. He
had a heart attack on or about June 13, 1997, but returned to
work on or about September 15, 1997.
Upon his return to work, he and District Manager O’Brian
had a meeting in which District Manager O’Brian suggested
certain work Lastinger could take, the job that he previously
had, or he would offer him the work in and around the Arcadia,
Florida area, which was a block of work referred to sometimes
in this trial as a book of work that would cover a larger area and
be more revenue generating than he previously had.
Either in that meeting or one that happened shortly thereaf-
ter, District Manager O’Brian stated to Lastinger that with his
heart attack he, perhaps, should not be shop steward for the
Union, that he might want to find some position or job that had
less tension with it.
As I have noted earlier, Russell had involvement with the
Union that the Company stipulates knowledge about. Most
particular is Russell’s involvement on the Union’s negotiating
committee. Further, Russell and District Manager O’Brian had
a conversation that perhaps took place in early 1998, in
374
which the two of them discussed various items about the opera-
tion, function and procedures of the Company, and how the
Company and its employees should be focused.
And in that meeting, District Manager O’Brian indicated that
under a worse case scenario, the Company President might well
close the St. Petersburg District Office, or that the Union could
go on a strike.
So it is clear beyond question that the two individuals herein
had Union activity and the Company was fully aware of that
Union activity.
It is likewise certain the Company knew and was fully aware
that a charge had been filed by Lastinger and that the charge
was processed through the Board’s normal processes until it
reached a settlement on the dates I have previously indicated.
Next I turn to the somewhat critical facts that brought us to
the place where we are today. Those facts first came to light,
perhaps, on or about the first part of October 1998, perhaps
specifically on or about October the 8th, 1998, when two pieces
of business for the Company came to the attention of manage-
ment that gives rise to the case herein.
I shall start with the Company’s version of that particular
meeting, simply because there was no one
375
present that was not from the Company in either a manage-
ment’s position or as a clerical, which I believe was excluded
from the appropriate unit.
On or about that time in October of 1998, the Company,
based on the testimony of District Manager O’Brian, was in a
bit of turmoil for a number of reasons.
One was that they were short of support or clerical staff per-
sonnel. They previously had two employees, at least, if not
more working in the office, one being a Ms. Rhodes, and the
other perhaps being an employee by the name of Janis.
One of those employees left the employment of the Com-
pany and it left essentially Ms. Rhodes taking care of the paper
work in the office.
The Company was also in the process or in the planning
stages, or perhaps even in the accomplishment stages of mov-
ing their office from St. Petersburg, Florida, to someplace south
of here.
At any rate, District Manager O’Brian observed on that date
that Ms. Rhodes was getting behind in the amount of work she
had to do that day.
And so District Manager O’Brian, as was his
376
practice, asked if he could help or assist his office manager
specifically referring to Ms. Rhodes—and she indicated
that, yes, he could.
It ended up that District Manager O’Brian was doing perhaps
the simplest or easiest task to be performed in the office. He
was simply putting together policies with a copy of the applica-
tion for those policies.
The procedure at this Company, when business is generated,
is that two copies of the application, or at least two copies of
the application are brought into the Company.
One copy of the application is sent to the Company’s Home
Office in Chicago, while a copy is retained in the office files in
the District Office.
Once the Company has approved and actually issued the pol-
icy, that policy is returned, usually on a Monday or a Wednes-
day, back to the St. Petersburg District Office.
And it is the office practice to then get the remaining copy of
the application, place it with the policy, and put both pieces of
information in the agent’s box that actually generated or wrote
the business.
District Manager O’Brian testified he was
UNITED INSURANCE CO. OF AMERICA 593
377
doing specifically that on the day in question, and noted, when
putting the application for insurance coverage on the contents
of a home, a mobile home in this case for Lastinger’s home, he
noticed it was signed by Russell, and Russell had indicated he
had taken the action that appeared below his signature.
O’Brian testified he knew that Lastinger’s mobile home was
a five wheel mobile home. He also testified he knew that it was
out of the city or built up municipal area, and was out in a less
populated area.
And so that caused him to flag or set aside the policy and the
application that was referring to the insurance coverage for the
contents of the home owned by Lastinger.
District Manager O’Brian stated that further in his placing
the applications for insurance with the actual policies that had
been issued, he noted a policy that had been written on the life
of Robert Lastinger, which was the father of the Lastinger that
is involved herein.
District Manager O’Brian testified he knew that the father
had health problems, and he knew that from more than one
source. That Agent Lastinger
378
had stated, at least on one occasion that he had the same type
heart problems his father had.
Also, he knew that a previous policy had been issued involv-
ing the father, the elder Lastinger, that had indicated on the
policy itself that he had problems that would warrant a special
type of policy being issued.
The previous type policy was referred to as a graded death
benefit life insurance policy. So he knew for those reasons
Agent Lastinger should have noted on the application for pol-
icy, or at least attached a supporting document to indicate that
the father, the elder Lastinger, had a health problem so that the
Company could fully evaluate whether they wanted to insure
this risk or not.
Because the policy that he was matching up with the applica-
tion on October 8, was a whole life policy that made no indica-
tion of any health conditions or problems that would cause the
Company not to issue a whole life unrestricted policy O’Brian
was concerned.
District Manager O’Brian testified he called the Home Of-
fice of the Company and spoke with Bill Koski, and asked him
for guidance on what should be done with respect to what he
perceived were irregularities in these two pieces of business.
379
He testified that in both cases Koski recommended and/or di-
rected he obtain additional information in the form of state-
ments from the agents, specifically from Lastinger about the
status surrounding his father.
And from Russell whether, in fact, he had seen the property,
meaning the five wheeler mobile home that Lastinger was liv-
ing in on the day the application was prepared, and whether he
knew if it was, in fact, a mobile home or a home of some other
nature.
The individual that District Manager O’Brian spoke with,
namely Bill Koski, at the time in question was the Vice Presi-
dent of Consumer Affairs for the Company, and also sat as one
of approximately five or six members on the Market Conduct
Committee.
The evidence establishes the Company has a Market Con-
duct Committee that from time-to-time and perhaps once a
week reviews business that has been written by various agents
in all States that this Company does business in to ascertain if
there has been compliance with the rules, guidelines and in-
structions of the Company with respect to good business for the
Company.
That is, whether the agents in the field are
380
applying the standards and requirements and good business
practices that the Company, its officers, and officials, and
stockholders would want to take place.
The matter of the life insurance policy on the elder Lastinger,
and the insuring for casualty loss the contents of Lastinger’s
mobile home, were reviewed by the commi t t ee in Chicago
after the applications and related information that was sought
was provided to the Market Conduct Committee in Chicago.
That committee specifically felt that the guidelines, instruc-
tions and operating procedures of the Company had not been
followed by Agents Russell and Lastinger, and it placed the
employees on probation for one year, effective from December
3, 1998 until December 3, 1999.
Specifically, Russell was placed on probation for one year
for his involvement in signing the application for coverage for
the contents of Lastinger’s mobile home.
The Company found Russell had signed beneath the follow-
ing comments:

“I, a certified Company representative, hereby confirm
that I have inspected the property to be insured and it is in
compliance with underwriting guidelines.
381
“I have asked the above questions of the proposed in-
sured at the described location and have accurately re-
corded the responses.”
The Company committee determined that could not have
been accurate because Russell knew Lastinger lived in a five
wheel mobile home and there’s no mention of that fact, and that
he knew the home was not located in the class district that was
listed on the application for coverage.
Lastinger was placed on probation by the committee because
he had processed an application for life insurance on his father
as a whole life insurance policy, without notation that his father
had in the past been issued a graded death benefit insurance
policy, and he knew his father had health related problems with
no history of that appended to the application or otherwise
made known to the Company.
The committee, having made those determinations prepared
letters to both of the individuals and dated them December 3,
1998.
Russell’s letter, which was presented to him on December
28th, 1998, reads in pertinent part:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594
“This letter is notification that you are being placed on
probation for a period of one year, December 3, 1998
through December 3, 1999, for a violation of
382
Rule Number 1C of the Company’s Market Conduct
Rules.
“Probation will also include prohibition from Com-
pany incentive recognition, such as Regional Trips and
President’s Club.
“It is very important that all of the company underwrit-
ing rules and other company requirements are followed.
Failure to adhere to them in the future, could result in ter-
mination of employment.”

And that was signed by Regional Vice President G. E. Mac-
Donald.
Lastinger’s letter of the same date, given to him likewise on
December the 28th, 1998 reads in pertinent part:

“This letter is notification that you are being placed on
probation for a period of 1 year, December 3, 1998
through December 3, 1999, for a violation of Rule Number
1G and 1L Company’s Market Conduct Rules.
“Probation will also include prohibition from Com-
pany incentive recognition, such as Regional Trips and
President’s Club.
“It is very important that all of the company underwrit-
ing rules and other company requirements are followed.
Failure to adhere to them in the future, could result in the
termination of employment.”
383
A brief meeting was had between Russell, Lastinger, District
Manager O’Brian and a Mr. Murray on December the 28th, at
which the two individuals were informed that disciplinary ac-
tion was being taken against them in the form I have just indi-
cated, and they were so notified.
Those are the facts that establish the framework for the case
herein.
Before I go further and delve deeper into the individual tes-
timony of the two individuals and the responding action by the
Company, let me state the legal principals which I will be ap-
plying in this case and how I will arrive at the conclusions I do,
based on an application of facts and legal p r inc ip l e s .
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board set forth its causation test alleging violations
of the Act that turn, as does the case herein, on employer moti-
vation.
This causation test applies to Section 8(a)(4) allegations, as
well as Section 8(a)(1) and (3) allegations.
384
Under this test, the Government must persuade the Board
that antiunion sentiment and/or charge filing and related activi-
ties were substantial or motivating factors in the challenged
employer conduct or decision.
Once this is established, the burden then shifts to the em-
ployer to prove its affirmative defense that it would have taken
the same action even if its employees had not engaged in pro-
tected activity.
See Manno Electric, Inc., 321 NLRB 278 fn. 12 (1996).
How does the Government establish its burden? Govern-
ment counsel must demonstrate by a preponderance of evidence
that the employees were engaged in protected activity, that the
Employer was aware of the activity, that the activity or the
worker’s union affiliation or charge filing activities were a
substantial or motivating reason for the employers action, and
there was a causal connection between the employer’s animus
and its disciplinary decision.
The Government may meet its Wright Line burden with evi-
dence short of direct evidence of motivation. For example,
inferential evidence arising form a variety of circumstances,
such as union animus, timing or pretext may sustain the Gov-
ernment’s burden.
385
Furthermore, it may be found that where an employer’s prof-
fered non-discriminatory motivational explanation is false, even
in the absence of direct testimony or evidence of motivation,
the trier of fact may infer unlawful motivation.
Shattuck Dean Mining Corp. v. NLRB, 362 F.2d 466 at 470
(9th Cir. 1996), Flour Daniel, Inc., 304 NLRB 970 (1991).
Motivation of union animus may be inferred from the record
as a whole where an employer’s proffered explanation is im-
plausible or a combination of factors support circumstantially
such an inference.
Union Tribute Co. v. NLRB, 1 F.3d 486 at 490 to 492 (7th
Cir. 1993).
Direct evidence of Union animus is not required to support
such an inference.
NLRB v. 50-White Freight Lines, Inc., 969 F.2d 401 (7th Cir.
1992).
The Government, in this case, contends that it should prevail
on at least one of three, if not all three, stated reasons.
The Government contends Russell and Lastinger were spe-
cifically selected for the discipline they received because of
their union activities.
Further, the Government contends the reasons
386
advanced by the Company were simply a pretext for the ac-
tions they took against the individuals.
And thirdly, that they have met their burden under Wright
Line and that the Company has failed to demonstrate it would
have taken the action it did, even in the absence of any pro-
tected conduct on the part of the individuals involved.
The Company, on the other hand, urges the Wright Line
analysis is appropriate, that certain elements of the Wright Line
requirements that the Government has to meet have been met,
such as the individuals involvement in union activity, that the
Company was aware of it and adverse actions were taken
against the two individuals. But the Company contends the
Government’s case comes apart at that point.
UNITED INSURANCE CO. OF AMERICA 595
That it has demonstrated it would have taken the action it did
with respect to the discipline herein, even if an initial case has
been established by the Government.
Did the Government establish a prima facia case here? And
I recognize that certain of the most recent Board cases have quit
using the word prima facia and have spoken only in terms of
the Government meeting its burden.
387
Whichever way I refer to it in this case, I am referring to an
application of the Wright Line analysis regardless of what I
refer to it as.
I am fully persuaded the Government initially met its burden.
The Government established that both of the individuals
herein were involved in union activity and that Lastinger was
also involved in charge filing against this Company.
There is no question, based on the facts I’ve outlined above,
the Company knew of the union and charge filing activities of
these two individuals.
It is also noted that the timing between the filing of the
charge and the settling of the case by Lastinger is critical. The
settlement in Case 12–CA–19391, was approved on September
2, 1998. The timing between that approval and the action that
was taken against Lastinger and Russell happened shortly
thereafter.
Or the events that started in motion had their genesis shortly
thereafter. There is no question that there was adverse action
taken against the two individuals.
They were placed on probation for one year, and
388
they missed whatever belonging to the President’s Club and
regional trips entails. This record is silent as to what the Presi-
dent’s Club and the regional trips involve. I need not reach
what they involve to decide the merits of this case.
Was there evidence the Company was motivated at least in
part by the activities of these two individuals?
I’m persuaded the Government met its burden on that point
for, among other reasons, the Company knew Lastinger had
brought the Union in.
The Company knew Russell was on the negotiating commit-
tee and was a visible and vocal supporter of the Union.
The Company had indicated, through District Manager
O’Brian, that under the worst set of circumstances, the Com-
pany could decide to simply close its St. Petersburg facility and
noted also that the Union could go on strike and bring about the
demise of this particular facility.
So I’m persuaded the Government met its burden of estab-
lishing a violation of the Act as far as it is required to go to shift
the burden to the Company, to either come forward with an
affirmative defense or lose the case.
389
Did the Company come forward with an affirmative defense
that would indicate it would have taken the action it did, even
in the absence of the protected conduct on the two individuals
involved?
Before I answer that question, it is appropriate to look at the
documents and the testimony that centered around or gave rise
to the Company taking the action it did.
First, I shall start by looking at the documentation that gave
rise to the discipline that was administered against Russell.
Specifically, I am referring to General Counsel Exhibit 14,
which is the casualty insurance application for the contents of
Lastinger’s mobile home.
Agent Russell testified that he signed the document in ques-
tion, doesn’t dispute it. He testified the only thing he was do-
ing by signing it was he was witnessing the signature of the
insured. That is in this case, Lastinger, and that was all he was
doing.
He testified that was the procedure the Company followed
when an agent was insuring property of the agent’s own hold-
ing, and he denied familiarity with a number of rules or regula-
tions that might govern this type situation.
390
However, when shown certain of the Company’s rules and
regulations and guidelines, specifically the Underwriting Guide
Book, which I think came into evidence as Company Exhibit
19, he acknowledged he recognized parts of it and that he had,
perhaps, seen parts of it, but he had not seen it in the form that
it was presented.
And notwithstanding that, he still believes his signing was
simply to witness the other individual’s signature.
District Manager O’Brian, on the other hand, testified the
guidelines were clear that an individual signing in the manner
that Agent Russell did, was actually underwriting the policy
and that he had not only provided this information to all of the
agents, which would include Russell, but that he had specifi-
cally read at employee meetings at which Russell, among oth-
ers, attended, the actual rules and regulations of Monthly Home
Service Insurance Plans, Riders, Premiums, Guidelines, which
was referred to in Company Exhibit 16.
The question arises then as to, A, did Russell understand
what he was signing and B, was he following Company policy
when he signed the application for coverage for Lastinger’s
mobile home.
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Russell readily admitted that he had not inspected the prop-
erty on the day that he signed it, and that he wasn’t sure
whether it was a five wheel or a six wheel, but he did know that
it was a mobile home.
I believe Lastinger testified that it was on blocks and that it
sat near a pad, at least, if not on a pad.
Russell acknowledged that he was familiar with where the
mobile home was placed and he knew that property had classi-
fications, based on where it was physically located, and that
those classifications would impact the rate that would be
charged for coverage on such a piece of property.
I’m persuaded that Russell knew what he was doing because
the testimony in this trial and the evidence tends to indicate that
he is by far the most productive agent in this office.
And perhaps he’s one of the most productive agents in the
country for this insurance Company, which sells insurance of
various nature to low to moderate level income individuals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
Notwithstanding Russell’s protestations to the contrary, I’m
persuaded that he knew the company’s rules and regulations.
I’m convinced that an individual who can produce as
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much as Russell can, and be the exemplary employee that he is
and withstand a complete and full audit of his package contain-
ing, perhaps, 800 properties and millions of dollars of business,
knows the rules and regulations.
And that he was familiar with them, and that he knew and
understood when he signed as the licensed sales representative,
he was signing in that capacity.
And that he knew that insurance coverage on a home such as
Lastinger’s was property that would well have a question as to
whether it would be covered at least into the classification that
was on the document that he attested he had reviewed by sign-
ing the document.
So I’m persuaded he signed with full knowledge that he was
the licensed sales representative and that he had not seen the
property on the date in question, and that he knew or should
have known that the property was not properly classified.
Now, did District Manager O’Brian happen upon this infor-
mation coincidentally or was he on a mission to seek out,
search and find any information he could find on Russell and,
for that matter, Lastinger, so he could take action against them
because they had been involved with the Union or because they
had filed
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charges, or both combined together, or that he was in some
manner seeking to punish or retaliate against these two indi-
viduals for the actions they had taken?
The evidence persuades me District Manager O’Brian was
not on a mission to destroy the two individuals or to punish or
to retaliate against them.
He testified that he helped out on the day in question only
because Rhodes was over-burdened that day, that he had no
way of knowing what policies or applications would be there,
and that he was reviewing these simply because he was helping
out in the office.
Rhodes testified she had no way of knowing what policies
were coming in on any given day or what applications would be
matched up with those.
That she was over-burdened that day, and that O’Brian per-
formed tasks that required the least amount of effort.
And I’m persuaded that a clerical employee who was need-
ing help, but who did not want to over-burden her superior
would give him work that would required the least amount of
office knowledge on his part to go into it.
So I’m persuaded that he came upon the fire policy coinci-
dentally. That he observed it was in violation of the printed
rules, the “read to the employee” rules,
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and that he simply called William Koski for guidance.
And from that point on, the matter was taken up by the
committee in the Home Office, and the discipline taken by the
committee in the Home Office was based on the documents that
were provided, the explanations that were given, and the rules
under which this Company issues insurance through its agents.
Next I move to the matter for which Lastinger was disci-
plined and the situation that gave rise to his discipline.
Again the application for coverage, along with the policy,
was placed together by District Manager O’Brian on the same
occasion and in the same manner.
He discovered it. He knew that the younger Lastinger had
heart problems because he had most recently returned from
heart surgery.
He knew that in the past, the individual that was attempting
to be covered had issued on him a graded death benefit insur-
ance policy.
I reject the contention that somehow it made it lawful in this
case because there was an intervening policy that was a whole
life policy that was issued by the Company that was in effect
for approximately a
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year, that did not make mention or note that the elder Lastinger
had a health problem.
I’m persuaded District Manager O’Brian, as he testified,
would have no reason to come upon that unless he was in such
a situation as someone providing him the information or he
happened, by chance, to be putting applications and policies
together and observed such.
So I’m persuaded that the policy and the application for a
policy for life insurance on the elder Lastinger was forwarded
to the Company committee in Chicago simply because District
Manager O’Brian knew of the earlier health problems of the
elder Lastinger, and he knew that he had been informed that the
younger Lastinger had the same health problems that his father
had.
I find again the policy and the application from which the
discipline was taken against Lastinger was taken based on
Company rules, policies and guidelines as determined by the
Chicago committee, and it was not done in a manner by District
Manager O’Brian or anyone else at the Company in retaliation
for the actions of Lastinger and/or for that matter, Russell with
respect to their Union or charge filing activities.
396
I further credit the testimony of O’Brian in light of all the
evidence I have just outlined, that he was not motivated by nor
had animus toward the two individuals involved in his finding
the documents and forwarding them to the home office in Chi-
cago.
I find the Company met its burden of establishing it would
have taken the action it did, notwithstanding the Union or
charge filing activities of the two individuals involved herein.
Having so concluded, I shall dismiss the Complaint in its en-
tirety, and I so do.
I thank you for your attention.
It has been a pleasure being in Tampa, Florida, and this trial
is closed.