Liberty Mutual Insurance Co.Download PDFNational Labor Relations Board - Board DecisionsMay 3, 1978235 N.L.R.B. 1387 (N.L.R.B. 1978) Copy Citation LIBERTY MUTUAL INSURANCE CO. Liberty Mutual Insurance Co. and Martin J. Agacin- ski, Jr. Case 22-CA-7022 May 3, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On July 5, 1977, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed a brief in support of the Decision. On December 8, 1977, the Board issued a Notice To Show Cause why the Board should not, assuming that it found that the Charging Party was discharged in violation of Section 8(a)(3) and (1) of the Act, order the Respondent, as part of the remedy, to reimburse the Charging Party for legal expenses incurred in defending an injunction action brought against him by the Respondent before the Superior Court of New Jersey. Both the Respondent and counsel for the General Counsel filed briefs pursuant to the notice. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy, 2 and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that the Respondent discharged the Charging Party, one of its sales agents, in violation of Section 8(a)(3) and (1) of the Act. Immediately after this unlawful discharge, the Charging Party formed his own insurance agency and began to solicit contracts of insurance for companies other than the Respon- I In its exceptions, the Respondent contends that the Administrative Law Judge failed to make credibility resolutions and that he completely ignored the preponderance of the evidence in reaching his conclusion that the Charging Party was unlawfully discharged. We have carefully reviewed the Decision and find this exception baseless. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The remedy is modified so that interest is computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 The temporary restraining order was issued on June 29, 1976. By order dated July 5, 1977, the court enjoined the Charging Party from soliciting contracts of insurance with any policyholders of the Respondent whom he served while in the Respondent's employ until July 16, 1977; ordered him to 235 NLRB No. 197 dent. The Respondent then brought an action in the Superior Court of New Jersey to enjoin the Charging Party from engaging in such practices pursuant to the terms of a noncompetition agreement the Charg- ing Party had entered into upon commencing his employment with the Respondent. Under the terms of this agreement, the Charging Party, in part, had covenanted not to solicit the sale of insurance within 25 miles of the city in which he represented the Respondent for a period of 18 months if his employ- ment with it was terminated for any reason. A temporary restraining order issued; while that action was pending, the Charging Party filed the unfair labor practice charge involved in the instant case.3 In his brief to the Administrative Law Judge, counsel for the General Counsel urged that, as part of the remedy, the Respondent be ordered to reimburse the Charging Party for legal expenses incurred in defending the injunction action. The Administrative Law Judge, however, declined to fashion such a remedy. In its reply to the Notice To Show Cause, the Respondent argued that the failure of counsel for the General Counsel to except to the refusal of the Administrative Law Judge to grant the Charging Party's attorney fees constituted a waiver of that request under the Board's Rules and Regulations. 4 It further contended that the award of fees in this case would be contrary to Board precedent. Counsel for the General Counsel maintained in his reply that the award of the requested fees was within the Board's general remedial powers and consistent with prior Board decisions. It is a well-established principle that the Board may consider the remedial provisions of its orders sua sponte.5 Section 10(c) of the Act charges the Board with the duty to take "such affirmative action . . . as will effectuate the policies of this Act."6 This clause has been interpreted as giving the Board broad discretion to define and develop the appropriate remedial means to attain this end.7 Included in this duty, the Supreme Court has held, is the requirement account to the Respondent for all sums derived subsequent to March 29, 1976, in violation of the restrictive convenant within 90 days of the date of the order; and ordered him to pay the Respondent's attorney fees in the amount of $500. The court also ordered that the Charging Party could move for dissolution of the final injunction and/or modification of its terms in the event that "he receives a final award from the National Labor Relations Board in his favor and against the plaintiffs." Execution of the monetary portions of this judgment were stayed pending final judgment by the Board. On October 11, 1977, the court issued a consent order modifying its order of July 5, which in pertinent part stayed until 90 days following a final adjudication and judgment of the Board the requirement that the Charging Party account to the Respondent for the sums derived by him in violation of the restrictive covenants of his employment agreement. 4 29CFR § 102.46(e)(1976). 5 E.g., N.LR.B. v. WTVJ, Inc., 268 F.2d 346 (C.A. 5, 1959). 6 29 U.S.C. § 160(c)(1970). 7 E.g., Phelps Dodge Corp. v. N.LR.B., 313 U.S. 177(1941). 1387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board restore a discriminatorily discharged employee to his status quo ante the illegal termina- tion.8 It is also within the Board's power in fashion- ing its remedial orders to design them in such a manner as to prevent or deter recurrence of the unlawful activity which is the subject of the action. 9 Applying these principles to the fact situation presented in the instant case, we are led to the inevitable conclusion that only by recompensing the Charging Party for the attorney fees incurred in defense of the injunction action can we properly discharge our duties under the Act and restore the discriminatee to his status quo ante. Clearly, but for the Respondent's unlawful dis- charge of him, the Charging Party would not have been forced to mitigate damages by selling insurance in contravention of the noncompetition covenant. The Respondent's own wrongdoing placed the Charging Party in the position of violating the covenant. It would be entirely unfair to allow the Respondent to assert this agreement against the Charging Party, which not only substantially limited the Charging Party in his ability to sell insurance, but in effect precluded him from obtaining interim employment which the Respondent's unfair labor practice had forced him to seek. In order to restore the Charging Party to his former position then, it is necessary to grant him the costs of defending that action. Additionally, such an award will have whole- some prophylactic effects. The Respondent's purpose in bringing the injunction action can easily be understood by its employees as part of an integrated plan designed to chill their interest in unionization by making an object lesson of the Charging Party, insuring that he could neither work for the Respon- dent nor for himself in the vocation which he had followed his entire adult life. The Board must be willing to shape full and appropriate remedies in order to demonstrate to the Charging Party and his fellow employees that we are prepared to preserve their right to engage in protect- ed activity. The award of attorney fees in this case will not only give such assurances, but will act as a deterrent to the Respondent's willingness to engage in further discriminatory discharges and related unfair labor practices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Liberty Mutual Insurance Co., East Orange, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Add the following as paragraph 2(b) and reletter the remaining paragraphs accordingly: "(b) Respondent shall reimburse the Charging Party in the instant case for all legal expenses incurred in his defense of an injunction action styled as Liberty Mutual Insurance Co., a Massachusetts Corporation; Liberty Mutual Fire Insurance Co., a Massachusetts Corporation; Liberty Life Assurance of Boston, a Massachusetts Corporation v. Martin Aga- cinski, Jr., Individually and Trading as Business Insurance Services, Docket No. C-4093-75, which Respondent caused to be instituted against the Charging Party in the Superior Court of New Jersey. This section of the Order shall become effective only upon the condition that the Superior Court of New Jersey does not award the Charging Party legal expenses incurred in defending the aforesaid action." 2. Substitute the attached notice for that of the Administrative Law Judge. 8 E.g., Phelps Dodge Corp. v. N.LR.B., supra; N.LR.B. v. Local Union 396, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [United Parcel Service], 509 F.2d 1075 (C.A. 9, 1975). 9 UA W v. Russell, 356 U.S. 634 (1958); Marriott Corp. v. N.L.R.B., 491 F.2d 367 (C.A. 9, 1974). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge our employees, thereby discriminating in regard to their hire or tenure of employment, in order to discourage their engage- ment in protected, concerted activities. WE WILL NOT threaten our employees with discharge unless they refrain from forming or joining a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL make Martin J. Agacinski, Jr., whole for any loss of pay which he may have suffered as a result of our discrimination practiced against him, with interest, and WE WILL reinstate him. WE WILL reimburse Martin J. Agacinski, Jr., for all legal expenses he incurred in defending an action in which we sought to enjoin him from selling insurance in competition with us. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. LIBERTY MUTUAL INSURANCE Co. 1388 LIBERTY MUTUAL INSURANCE CO. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Newark, New Jersey, on October 19 and 20, 1976, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer interposed thereto by Liberty Mutual Insurance Co., herein called Respon- dent.' At issue is whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by certain conduct to be chronicled hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent, a Massachusetts corporation, main- tains its principal office and place of business in Boston, Massachusetts, and various other offices throughout the United States, including an office in East Orange, New Jersey, which is involved in this proceeding, where it is engaged in the business of providing commercial and personal insurance and related services. During the annual period material to this proceeding, Respondent received gross revenues valued in excess of $500,000. During the same period, Respondent transferred funds valued in excess of $50,000 from its New Jersey place of business in interstate commerce directly to States of the United States other than the State of New Jersey, and received funds valued in excess of $50,000 which were transported to its place of business in interstate commerce directly from States of the United States other than the State of New Jersey. It is undisputed and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent independently violated Section 8(aX1) of the Act when, on March 24, 1976, District Manager Joseph E. Anthony, an admitted statutory supervisor and agent of Respondent, warned its employees that they would be discharged unless they ceased in their attempts to form or join a labor organiza- tion. The complaint further alleges that Respondent of- fended the provisions of Section 8(a)(1) and (3) of the Act by discharging employee Martin J. Agacinski, Jr., on March 24. For its part, Respondent denies the commission of any labor practices proscribed by the Act. I The complaint, which issued on August 9, 1976, is based upon a charge filed and served on June 14, 1976. It is undisputed and I find that Respondent is a Boston- based corporation which is engaged in the sale of casualty, property, and life insurance coverage throughout the United States. Administratively, Respondent's operation is broken down into divisions, which in turn are subdivided into districts. Within each division and district, the sales personnel vend either business lines of insurance, i.e., policies of insurance covering various risks to business ventures, or personal lines, i.e., insurance policies covering risks to individuals. Kenneth Spaulding occupies the position of assistant vice president and manager of employ- ee relations at the home office in Boston. The employees of Respondent who work in the State of New Jersey are included in the Middle Atlantic division whose main office is located in Balacynwyd, Pennsylvania. This division is headed by Robert Mytha. James Walker is classified as the divisional business sales manager and has direct jurisdic- tion on the divisional level over sales personnel such as Charging Party Agacinski. Embodied within the Middle Atlantic division is the East Orange, New Jersey, district office, which employs 20 business and personal sales representatives, including Agacinski, and which is under the direct supervision of District Manager Joseph Antho- ny. It is conceded and I find that, at all times material herein, none of Respondent's sales representatives have been represented by any labor organization. It is undenied and I find that Agacinski was first employed by Respondent on January 29, 1962. From that date until August 1966, he was assigned the duties of personal sales representative at Respondent's office in Morristown, New Jersey. During the period from August 1, 1966, to July 23, 1969, Agacinski was shifted to the position of personal sales manager at the Morristown facility, but was returned to his assignment as personal sales represen- tative on the latter date. Agacinski continued to be employed as a personal sales agent until January 1971 when he was transferred to Respondent's business sales department in East Orange. It is uncontroverted and I find that, by letter dated January 30, 1974, and signed by Paul A. Roche of the home office in Boston, Agacinski was notified of the following: RE: 1973 Sales Results Congratulations for your outstanding sales efforts last year with a total premium of $347,816. You made a real solid contribution to our net growth in 1973 and we want you to know that this tremendous effort is well recognized. Best of luck and good selling in 1974. In late February 1976, Agacinski was informed by District Manager Anthony that, as a result of the annual sales review for 1976, the former was "the number one earner . . .in the entire state of New Jersey." Moreover, Agacin- ski received a divisional bulletin in January 1976 which was signed by Division Business Sales Manager Walker and which recited: 1389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To: ALL BUSINESS SALES PERSONNEL RE: Weekly New Business Report - Week Ending 1/10/76 It is a pleasure to announce the promotion of three more Middle Atlantic Division Business Sales people, who have contributed largely to our past and present results, to new positions and opportunities: JOSEPH B. Mc DERMOTT, WILKES BARRE MANAGER TO DISTRICT SALES MANAGER, PHILADELPHIA DISTRICT THOMAS SCHMIDT, SOUTH PLAINFIELD BUSINESS SALES TO MANAGER WILKES BARRE, PENNSYLVANIA MARTIN J. AGACINSKI, SALES REPRESENTATIVE EAST ORANGE TO ACCOUNT REPRESENTATIVE, EAST ORANGE We are very proud of each of them - congratulate them on their accomplishments - wish them continued success and growth in their new responsibilities. Despite Agacinski's exemplary work record and his promotion, he nevertheless felt aggrieved by a variety of working conditions which Respondent had imposed upon him and his fellow employees and which he considered to be unfair. Having consulted with most of the sales representatives in the Middle Atlantic division about these matters over the years, and having learned that his colleagues also harbored similar grievances against Re- spondent, Agacinski decided that the collective complaints of the sales employees could best be satisfied by the achievement of bargaining power through the formation of an association of sales agents. Although he recognized that such an approach could be detrimental to his continued employment with Respondent due to his understanding that a previous attempt to form such an association had resulted in the ultimate dismissal of the organizers,2 Agacinski nonetheless felt impelled to undertake the task of banding the agents together into a union. However, as a hedge against any possible punitive action which Respon- dent might take to thwart his endeavors in this regard, Agacinski contacted other insurance companies to deter- mine the feasibility of obtaining an agency relationship with them.3 While on vacation during the first 2 weeks in March 1976, Agacinski prepared a memorandum dated March I I which was addressed to District Manager Anthony. In this document, Agacinski thanked Anthony for his recent efforts in obtaining the former's promotion to the job of account representative. Agacinski then complained that 2 On some undisclosed date prior to this proceeding, the Board dismissed certain charges brought against Respondent obstensibly dealing with the discharge of some agents who sought to organize Respondent's employees. I Contrary to Respondent's assertions, I do not view Agacinski's efforts to obtain remunerative employment with other agencies as an attempt either to blackmail Respondent or entrap it into violating the Act. Agacinski testified and I find that, over a 3-year period prior to his discharge and during which he had received two work performance commendations and a promotion, he had solicited several insurance companies about the prospect "Happy, however I am not. In order not to be [misunder- stood], I have set out below those things; past and present, that are disturbing me. Without regard to chronological order, I am detailing some of the events and circumstances that come to mind." Agacinski added: At no time in my years at Liberty Mutual have I experienced so many expressions of low moral [sic]. Our representatives, including myself, are distrustful and disheartened. I propose a Liberty Mutual spon- sored Association of Middle-Atlantic Representatives; an association in which representatives are appointed by ballot of their peers to voice [grievances] to management. After posing the rhetorical question, "What would such an association accomplish," Agacinski proceeded to enumer- ate an extensive list of grievances which he believed an association could resolve, including such matters as the assignment of territories, compensation, and expense ac- counts. Agacinski returned from his vacation on the morning of March 15, 1976, and immediately deposited a copy of the memorandum on Anthony's desk. Simultaneously, Agacin- ski distributed copies to all of Respondent's insurance salesmen and managers in the East Orange district office, as well as to all sales agents in the Middle Atlantic division. When Anthony reported for work that morning, his attention was directed to the document which he later read. It is Agacinski's testimony and I find that, at I 11 a.m., on March 15, 1976, he was summoned to Anthony's office where the latter informed Agacinski that Anthony had read the memorandum. Anthony inquired whether Agacinski had distributed the documents to other individuals, and the employee responded by providing Anthony with the names of the agents in the various offices to whom they were sent. Thereupon, Anthony stated, "[Y]ou know, Marty, associa- tions don't help superior salesmen. What they tend to do is force a company to keep lesser qualified people as opposed to letting them go." Agacinski then launched into a discussion of the various grievances which he and some fellow employees had regarding their conditions of employ- ment. At this juncture, Anthony expressed an interest in Agacinski's proposal that an association be created be- cause "[o]ur representatives, including myself, are distrust- ful and disheartened," and asked for specifics. Agacinski proceeded to recount a number of criticisms which the sales agents had leveled against Respondent, after which Anthony angrily terminated the meeting by directing Agacinski to service an account.4 Agacinski further testified and I find that, on the afternoon of March 16, he spoke with three other account representatives in the East Orange office about the subjects raised in his memorandum of March 11, and suggested that of becoming a sales agent for them. Moreover, the record discloses that Agacinski did not file the instant charges with the Board until sometime after Respondent lodged its suit for an injunction with the New Jersey Superior Court and, then, only on the advice and at the behest of his independent counsel. 4 Anthony testified that, at the conclusion of his meeting with Agacinski, "I had a feeling of total frustration, and the feeling I had is very vivid in my mind. It was like a balloon that just had the air go out of it .... " 1390 LIBERTY MUTUAL INSURANCE CO. a followup memorandum be drafted and circulated among the Middle Atlantic division sales representatives "to further the Association." In this connection, Agacinski advanced the idea of a "no-show Thursday," by which he meant that the salespersons should absent themselves from work on Thursdays to pressure Respondent into acceding to their demands concerning the current grievances. As a result of this conversation, Agacinski prepared a second memorandum which he addressed and sent to all divisional salesmen on March 17 which recited: My memo of 3/11/76 has generated a variety of reactions. Below I have attempted to put these in perspective. With few exceptions, the long term salesmen have made comments that at best were sympathetic. The successful 'newer' salesmen are enthusiastically behind organization and change. The newest salesmen are bewildered. All of these postures were predictable. The newest salesmen have nothing to gamble, the 'newer' salesmen have nothing to lose, and the older salesmen have no where to go. Managements attitude has been similarly predictable. As in the past attempts at organization, Home Office has dictated a low profile; a let them make a mistake attitude. Our Executive Vice-Presidents are as close to our attempted Association as they would be to the most critical of their responsibilities. Additional perspective can be gained from the happen- ings of the last two days. 'he must have been drunk when he wrote this' (meaning my 3/11/76 memo) was one of the comments supposedly made to Joe Anthony by one of our newest salesmen. This level of effrontery left me no choice but to explain to Joe Anthony that because they could not be trusted, I was literally at war with management and would fight with all my effort for an Association of salesmen. Since this early Monday confrontation the lines have clearly been drawn. Only management has a wait and see attitude. I am for decision and action. Our resolve will be tested beginning Thursday, 3/25/76; the first of an indefinite number of 'no show Thursdays'. I will not work any Thursday till I am satisfied that we are accomplishing the resolution of some of our grievances. Other salesmen, although working, can at the least refuse to either call in or be in their offices. More soon. On March 17, Agacinski placed a copy of this memoran- dum on Anthony's desk which Anthony read on his return from lunch. Meanwhile, on March 16, Anthony sent a memorandum to Respondent's Middle Atlantic division Business Sales Manager Walker summarizing the ingredients of his con- versation with Agacinski on the previous day relative to Agacinski's memorandum of March 11. Anthony reported that, following his discussion with Agacinski, he initiated interviews with five sales agents in his office who indicated that they were at odds with some of Agacinski's proposals. Anthony continued that "As far as I can determine, there is no swell of support for him here either among the veterans or among the younger men." At the conclusion of his memorandum, Anthony noted, "As you know, Marty is probably the hardest working person in the District," and promised to keep Walker "posted on any further develop- ments," a promise which Anthony thereafter kept. Kenneth Spaulding, Respondent's assistant vice presi- dent and manager of employee relations at the home office in Boston, testified that he had occasion to speak on the telephone with District Manager Anthony on March 16, and the topic of conversation revolved around Agacinski. Spaulding testimonially acknowledged that Anthony in- formed him of the contents of Agacinski's memorandum of March I 1, including the latter's expressed intention to form an association of sales' employees at Respondent's enter- prise, and advised Spaulding that Agacinski had dis- patched the memorandum to all of the sales personnel in the East Orange office as well as to those in other offices of the Middle Atlantic division. At the conclusion of the conversation, Spaulding directed Anthony to "keep me [Spaulding] informed of the developments," which direc- tive Anthony thereafter complied with on a daily basis. Spaulding thereupon conveyed this information to Robert A. Penney, Respondent's house counsel. On March 17, Anthony again telephoned Spaulding to report that Agacinski had drafted a second memorandum which had been circulated to the employees. In this discussion, Anthony related that he had attempted to gauge the employees' support for the creation of an association and indicated that "he didn't see a great deal of activity going on in the East Orange office." Despite these assurances, Spaulding testified that he "certainly" was concerned about Agacinski's attempt to organize the sales representatives and, in furtherance of that concern, he scheduled a meeting of the managers and attorney Penney which was held in Newark, New Jersey, on March 18. According to Spaulding, this session was convened so that he and Penney could discuss with the managers "what they could and could not do during any attempt to organize the East Orange office." The officials in attendance turned to a consideration of Agacinski's memoranda, as well as his intention to form an association. At no time during this meeting were any deficiencies in Agacinski's work perfor- mance mentioned or discussed. At the end of the session, a decision was made that Middle Atlantic Division Business Sales Manager Walker should personally explore the situation with Agacinski. Walker, who had been previously apprised by District Manager Anthony that Agacinski had distributed memoranda to the sales representatives on March 15 and 17, was told by Anthony on March 18 that a meeting with Agacinski was scheduled for March 19. Pursuant to this arrangement, Walker met with Agacin- ski for approximately 3 hours, from 11 a.m., to 2 p.m., at the East Orange office. Walker testified that the purpose of the meeting was "to find out his [Agacinski's] problems and make an effort to resolve his grievances." Walker conceded that, at the time of this encounter, he was unaware that Agacinski had missed any sales meetings at the office, or had failed to return telephone calls to 1391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD potential customers, or had declined to keep any appoint- ments with his policyholders. In his testimony, Walker admitted that he told Agacinski that he could not acquiesce in the formation of an association, although Walker claimed that "[t]he organization of an association was - had very little content in our conversation." When the meeting ended, Walker taped his recollection of the events which transpired and reduced his recorded thoughts to a memorandum dated March 22. At the outset of the memorandum, Walker noted: The net result of our entire conversation was that there was no discernible change in the position of Agacinski as stated in his memorandums dated March 11 to Joseph Anthony and March 16 to Middle Atlantic Division Salesmen. His expressed purpose continues to be either the resolution in his favor of all of the grievances enumer- ated in his March 11 memorandum or the formation of a Salesman's Association in an effort to secure the same objectives. After a lengthy review of the various points which Agacinski raised in his March 11 memorandum, Walker concluded: I am convinced that he will continue to pursue this type of course of action to cause management continuing problems and concern until he achieves his objectives, or until we terminate his employment. I recommend we find the appropriate circumstances to properly terminate his employment and do so at the earliest opportunity. When questioned as to whether he had reference to Agacinski's organizational activities by the use of the phrase "he [Agacinski] will continue to pursue this type of course of action to cause management continuing problems and concern until he achieves his objectives," Clark answered in the negative, claiming that this comment related solely to Agacinski's suggestion that the agents refuse to attend sales meetings, that they absent themselves from work on Thursdays, and that they engage in a work slowdown. Walker then acknowledged that, at the time that he transcribed his memorandum on March 22, Agacinski had been guilty of nothing more than argumen- tative assertion regarding these actions. Walker also con- ceded that, at this time, he had not learned from any source of any prior instances in which Agacinski had failed to attend a sales meeting, or to keep an appointment, or to telephone a policyholder. Agacinski's testimony regarding his meeting with Walker on March 19 is not at substantial variance with Walker's. After an exchange of pleasantries, Walker stated, "[W]hy don't we sit down and let me have you understand that what I'm here for is to listen to you, to find out what exactly you intend to do . . . what you mean by your 5 Anthony grudgingly admitted that he was aware that Agacinski was tied up in a meeting with Walker on March 19 and he "presumed" that this was the reason why Agacinski missed the I I a.m. appointment. Indeed, Walker testified that he was notified by Anthony on the preceding day that a session had been scheduled with Agacinski for the morning of March 19. memorandum here." Walker thereupon made an in-depth probe of the names of the salesmen to whom Agacinski had distributed his March 16 memorandum, inquiring, "who the newer versus newest salesmen were as opposed to the older, and those that fit in' each category and their names and their reactions they have given me in regard to both my first memorandum and my second memorandum." Walker then asked Agacinski, "[W]hat had changed so dramatically. He said, 'Now, Marty, you have been promoted. January 1 you were made an account represen- tative. You had your most successful year in 1975. You were used as an example by your managers to other salesmen. You just received a large February bonus.' He says, even Bob Hytha had mentioned to him that - while he was in the East Orange office I had thanked Bob Hytha for the promotion . ... And he said, '[I It just doesn't seem possible that now you could be here attacking the company and wanting to form an association of salesmen. He says, 'I just don't understand, what has happened?' " Agacinski replied that "the very reasons for the forming of the association was those promotions and the special distinc- tion because I am the most logical person to pursue this. That if anybody has to be dealt with it is me." Walker inquired, "[W]hat all additional I would do, whether I would continue writing these memorandums." Agacinski answered in the affirmative, stating that "I could go on forever. I could solicit typical grievances and publish them anonymously. Or if the salesmen would like me, to tell his particular grievance that points towards the need of an association. And the other thing I could do, I could do such things as being disruptive in an administrative sense at meetings. I could post a notice that no salesmen were going to attend meetings unless prior written approval of the association or whatever." At this juncture, Walker warned that "you keep this up and you could lose your job." Rounding out Agacinski's testimony regarding the events which transpired on March 19, he testified without contra- diction and I find that he had appointments to meet with customers that day at 11 a.m., 2 p.m., and 3 p.m. Although he missed the II a.m. appointment, Agacinski was not admonished for this happenstance. 5 Events abided until March 22, which was a Monday. Agacinski reported for duty at 8:30 a.m. and, after spending about an hour at work, he left his office to keep an 11 a.m. appointment with a prospective customer, Villi Fashions, to which he sold two insurance policies that morning. As a result of his attendance to this business transaction, Agacinski was not present at a sales meeting scheduled for that morning.6 In this connection, District Manager Anthony testified that, during the 22 years that he had worked for Respondent, it was mandatory for all salesmen to attend weekly sales meetings which were conducted at 8:30 a.m. each Monday. However, Anthony related that, for approximately 3 weeks prior to March 22, only junior salesmen were required to attend these meet- ings and all others, including Agacinski, were excused. Anthony further testified that, on the rare occasions on 6 So far as this record stands, it is unclear whether the moratorium upon forced attendance at these sessions by senior sales personnel had been lifted for the March 22 meeting. 1392 LIBERTY MUTUAL INSURANCE CO. which salesmen did skip a sales meeting, he "absolutely" made a point of talking to them about the matter to learn the reason for their absences. Although Anthony conceded that he "personally observed [Agacinski] coming through the parking lot" following the salesman's return on March 22 from his visit to Villi Fashions, and that he had noticed Agacinski in the office on March 23, he acknowledged that he had made no effort to contact Agacinski, in accordance with his standard operating procedure, to ascertain the reason for Agacinski's absence from the sales session on March 22. Despite this unexplained lapse, Anthony never- theless saw fit to telephone Assistant Vice President and Manager of Employee Relations Kenneth Spaulding in Boston, and Middle Atlantic Division Business Sales Manager James Walker in Balacynwyd on March 22 to report Agacinski's absence on that day. In his testimony, Spaulding stated that he had received a telephone call from Anthony on March 22 and 23 in which the latter reported that Agacinski had failed to attend the sales meeting on March 22, that he was not properly servicing policyholders, and that he had failed to return calls from customers. Spaulding was then questioned as to whether it was customary for Anthony to contact him about these matters, and Spaulding replied, "In this situation, yes. He would." When pressed as to what he meant by this response, Spaulding stated that it was normal practice for Anthony to communicate with him "In an organizational at- tempt. .. . Of an employee attempting to start an employ- ee association." However, Spaulding confessed that he could not.recollect any conversations with Anthony con- cerning other matters prior to this date and, so far as this record stands, this was the first occasion in 22 years that Anthony found it necessary to inform any of his superiors regarding items unconnected with an incipient organiza- tional campaign. At approximately 4 p.m., on March 23, Agacinski felt sick while at work and notified his sales assistant, Dorothy Neville, that he was going home because of his illness. The record discloses and I find that Neville's duties consisted of catering to the secretarial needs of the salesmen, including making telephone calls to customers on their behalf. Before he left the office, Agacinski turned over to Neville certain business files relating to an appointment which he had scheduled with a customer for March 24. According to Agacinski, "She [Neville] knew about the appointment on Wednesday [March 24]. She knew I was sick and that's what a sales assistant is for, to call of[f ] appointments if she knows I'm sick." 7 Agacinski remained indisposed on March 24 and did not report for work on that date. During the day, and at Anthony's direction, Neville telephoned Agacinski's cus- tomers to determine whether Agacinski had taken care of his appointments for that day, a curious procedure in light of the fact that Neville could easily have ascertained Agacinski's whereabouts by calling his home, a course of action which Neville could not recall having even taken. 7 It is undisputed and I find that Neville rescheduled the appointments which Agacinski missed on March 19, as a result of his meeting with Walker, for March 24. 8 In view of Anthony's testimony in this regard, I do not accept Spaulding's averments that he received reports to this effect from the district manager as early as March 22 and 23. Assistant Vice President Spaulding testified that, at 3 p.m., on March 24, he called a meeting at the home office in Boston which was attended by, among others, Spauld- ing, House Counsel Penney, Middle Atlantic Business Sales Manager Walker, and Kalvin M. Grove, a partner in a Chicago law firm which represents Respondent in labor matters. According to Spaulding, this convocation was the sole and direct result of a telephone call which he had received from District Manager Anthony at noon on March 24 in which Anthony told Spaulding that "Mr. Agacinski was not returning phone calls, he was not keeping appointments, and he's not servicing his policy- holders," although Spauling could not recollect whether Anthony had pinpointed any specific instances of Agacin- ski's derelictions. In his testimonial report concerning the meeting, Spaulding sought to create the impression that the session was hastily convened because of Anthony's noon report regarding Agacinski's lack of attention to business matters, although Spaulding brought himself to confess that one of the reasons for Anthony's call about Agacinski was "surely" due to "association overtones." However, Anthony testified that he telephoned Spaulding at 2 p.m. that afternoon to relay the intelligence which he had received for the first time that day from Sales Assistant Neville that Agacinski had failed properly to service policyholders or promptly to return customer calls.8 At the conclusion of this meeting, which lasted until approximately 4 p.m., on March 24, attorney Grove placed a call to Anthony at the East Orange office and instructed the latter to telephone Agacinski and direct him to be in Anthony's office at 8:30 a.m., on the following morning. At 6 p.m., Anthony called Agacinski at his home in compli- ance with Grove's directive. At the outset of the conversa- tion, according to the testimony of Agacinski, Anthony remarked that he wanted to see the employee on the following morning. Agacinski exclaimed, "Joe it sounds important, what's happening?" When Anthony refused to divulge the purpose for the meeting, Agacinski pressed his district manager for the reason and Anthony finally responded that "the word has come down from the home office, . . . this comes directly from the chairman of the board, you are to cease and desist your activities and [behave] as a Liberty Mutual salesman or you'll be terminated." Agacinski complained that "I don't think that Liberty Mutual can be that cavalier," and Anthony replied, "Marty, as a friend, he says, I advise you ... start acting like a Liberty Mutual salesman." According to Agacinski, he did not report to Anthony's office on the morning of March 25 because, due to his known unwillingness "to give up my attempt to form the association" and in view of Anthony's statement that "unless I ceased and desisted my activities, I would be terminated," Agacinski believed that he had been discharged by Respondent on the evening of March 24.9 Anthony's version of his conversation with Agacinski on March 24 ran to the effect that he telephoned the latter at 6 9 Agacinski was fortified in this conclusion by Walker's comment to him during their discussion of Agacinski's memoranda of March 1II and 16 that "If he [Agacinski ] continues to do the things that he told me that he would do to continue to cause us concern, irritation and disrupt our operation, that I felt that those continuations would in the future be grounds for us to terminate his employment." 1393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD p.m. and stated that "I had been called from home office, that we had some problems with him. One was that he had failed to attend the sales' meeting. Two, is that he apparently had said that he was going to miss certain days of work. And third, that it had come to my attention that he was not delivering services to our policyholders. And that he was to meet with me, if he had come into the office that day, to meet with me to discuss these problems. If he didn't come in, I was to communicate with him by telephone and ask him to come in and meet with me at 8:30 the following morning." When Agacinski replied that he would not go to the office as directed, Anthony cautioned, "Marty, if you don't come in and meet with me and discuss these you will be terminated." Agacinski protested that "Liberty can't do that, I have my sources. You wouldn't be that cavalier," to which Anthony rejoined, "Marty, I spoke to you as a manager of Liberty Mutual. Now let me tell you as a friend, you will be terminated if you don't meet with me in my office tomorrow morning." While Anthony conceded in his testimony that he possessed the authority at all material times to terminate Agacinski, he denied in his testimony that he had done so in his conversation with this employee on March 24. However, in a sworn deposi- tion which Anthony gave in an injunction proceeding brought before the Superior Court in New Jersey by Respondent against Agacinski after the latter's termina- tion, and which was introduced into evidence in this proceeding, Anthony was asked: Q. So is it correct that based upon the direction given you by Mr. Grove on March 24 that you felt that that constituted authorization to terminate Mr. Agacin- ski if he did not do whatever it was that was stated. Is that correct? Anthony answered: A. It was more than authorization. It was direction. In other words, I interpret authorization that I could if I wanted to. I was directed to do it. On March 26, Anthony dispatched a letter to Agacinski which recited in pertinent part: In accordance with our telephone conversation on Wednesday evening, March 24, 1976, and this after- noon, this is to advise you that your employment with Liberty Mutual is terminated as of the end of the working day today, Friday, March 26, 1976. Accompanying the letter was Agacinski's final paycheck and other insurance and compensation forms. The General Counsel contends that Respondent dis- charged Agacinski on March 24, 1976, in violation of Section 8(a)(1) and (3) of the Act, because he attempted to and did engage in the protected concerted activity of encouraging his fellow employees to form and join a labor organization styled as the "Association" in order to correct a variety of grievances relating to working conditions which they deemed unfair. For its part, Respondent maintains that Agacinski was terminated on March 26 solely because he precipitated a series of intermittent and partial strikes by failing to attend the sales meeting on March 22, by refusing to return phone calls to customers, and by declining to attend appointments which had been scheduled with customers and potential customers. I find no merit in Respondent's defenses to this action. It is undisputed and I have heretofore found that, before Agacinski began to draft his memoranda of March 11 and 16 and circulate them among Respondent's employees suggesting that they form an association to pressure Respondent more effectively to redress their grievances, he was considered by management to be a highly productive and a model sales agent. Thus, Agacinski was commended by the Boston home office for his outstanding sales efforts during the year 1973, was congratulated by District Manager Anthony for having sold more insurance than any other agent in the State of New Jersey in 1975, and received a promotion to account representative in January 1976 in recognition of his sustained superior performance. Having learned on March 15 and 17 that Agacinski had enlisted the concerted support of some of the agents in the East Orange office as well as in the Middle Atlantic division to press their collective and individual grievances through the auspices of an association whose formation he proposed, Respondent's estimation of Agacinski's value as an insurance salesman dropped markedly, while their interest in his organizational activities escalated sharply. Hence, when District Manager Anthony learned of the contents of Agacinski's first memorandum on March 15, he obtained from Agacinski the names of the agents in the various offices to whom the document was sent, and he told the employee that "associations don't help superior salesmen. What they tend to do is force a company to keep lesser qualified people as opposed to letting them go." Anthony immediately interviewed five agents in his office to ascertain their organizational inclinations and, on March 16, he sent a written report to Middle Atlantic Division Business Sales Manager Walker apprising the latter of Agacinski's attempts to form an association and the degree of his success in this endeavor. On the same day, Anthony communicated with Assistant Vice President Spaulding at the Boston office and con- veyed the same information to his superior. On March 17, Anthony once again telephoned Spaulding to relate that Agacinski had prepared and mailed another memorandum to the employees urging their membership in the Associa- tion, and that the support for such a labor organization appeared to be scant. However, Spaulding became so concerned about Agacinski's efforts that he scheduled a meeting of senior officials for March 18 to discuss "what they could and could not do during any attempt to organize the East Orange office." After considering the range of Agacinski's efforts as expressed in his memoranda, Business Sales Manager Walker was delegated to discuss the matters with Agacinski on the following day. Walker met with Agacinski on March 19, and made it clear that he would not tolerate the formation of an association. Despite the fact that Walker conceded that he was totally unaware at the time that he prepared a memorandum on March 22 memorializing the contents of his conversation with Aga- cinski of any business shortcomings of the latter, Walker stated in his memorandum, a copy of which was subse- quently shown to Spaulding, that "I am convinced that he 1394 LIBERTY MUTUAL INSURANCE CO. will continue to pursue this type of course of action to cause management continuing problems and concern until he achieves his objectives, or until we terminate his employment." Accordingly, I find that this notation could only have reference to Agacinski's unconcealed attempts to organize Respondent's salesmen into an association. On March 24, Assistant Vice President Spaulding con- ducted a meeting at 3 p.m., in his Boston office to discuss the continued employment of Agacinski. Although Spauld- ing professed that the meeting was scheduled solely to discuss Anthony's telephonic report on that day that Agacinski had been remiss in his duty to return calls to customers, to keep his appointments with them, and to service the need of his policyholders, Spaulding acknowl- edged that one of the reasons for holding the session was to consider Agacinski's organizational endeavors. At the conclusion of the meeting, Attorney Grove telephoned Anthony and instructed the latter to call Agacinski and arrange for a meeting with Agacinski on the morning of March 25 to discuss the "problems" which Respondent had encountered with the employee. Anthony telephoned Agacinski and warned him that "if you don't come in and meet with me and discuss these you will be terminated." In view of Anthony's testimony set forth in his deposition given in the state court proceeding, and his letter of March 26 which he sent to Agacinski, I find that Anthony was directed by Grove to discharge Agacinski on March 24 if he failed to report to Anthony on March 25 to discuss his activities on behalf of the association, as Agacinski did. In my opinion, Respondent's assigned reasons for Aga- cinski's discharge are too frivolous to warrant serious consideration, Respondent claims that one of the bases for Agacinski's separation was his failure to attend a sales meeting on the morning of March 22. With regard to this incident, it is undisputed and I have found that Agacinski left his office prior to the meeting and successfully solicited two sales of insurance. Although Anthony insisted that it was his uniform practice to question salesmen about their absences from such sessions to ascertain the reasons therefor, and although he observed Agacinski return to the office that day and noted his presence at work on March 23, Anthony admittedly made no attempt to contact Agacinski and learn the reason for his failure to show up at the meeting. Moreover, Agacinski was not censured for this alleged misconduct and, so far as appears, attendance at this gathering was not mandatory for senior personnel. With respect to Agacinski's asserted failure to keep scheduled appointments with potential customers and to return the calls of clients, the record discloses that, on March 19, Agacinski was unable to meet with a customer at 11 I a.m. as scheduled because of his session with Business Sales Manager Walker that morning, a circumstance well- known to Anthony. Agacinski failed to keep appointments with approximately two customers on March 24. However, I have found that Agacinski was taken ill on March 23 and 24 and, on the former date, he advised his sales assistant, io The Barnsider, Inc., 195 NLRB 754 (1972). " In his brief, the General Counsel urges that the undersigned Adminis- trative Law Judge fashion a remedy to reimburse Agacinski for legal expenses which he incurred in defense of the injunction suit filed against him by Respondent in the Superior Court of New Jersey. In that action, Respondent sought to restrain Agacinski from breaching an employment Neville, of his intended absence from work, gave her the business files for these customers, and relied upon her customary practice pursuant to which she uniformly telephoned his customers to advise them of his unavailabil- ity. In short, I find that Respondent discharged Agacinski on March 24, 1976, not because he had in any way embarked upon a series of "intermittent and partial strikes," but solely because he had engaged in concerted activities protected under the Act by soliciting and encouraging his fellow employees to form and join an association to better their working conditions. I therefore conclude that, by the foregoing conduct, Respondent violated Section 8(a)(I) and (3) of the Act.' 0 I have also found that, on March 24, 1976, District Manager Anthony threatened Agacinski with discharge if he persisted in his efforts to form the Association. By this conduct, I conclude that Respondent violated Section 8(a)(1) of the statute. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I1, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close and intimate relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY I have found that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them under Section 7 of the Act, and thereby violated Section 8(aXl) of the statute. I shall therefore order that Respondent cease and desist there- from. I have also found that Respondent effectively discharged Martin J. Agacinski, Jr., on March 24, 1976, because he had engaged in protected concerted activities guaranteed by the Act, and thereby offended the provisions of Section 8(a)3) of the Act. To remedy this violation, I shall recommend that Respondent offer Agacinski immediate and full reinstatement to his former job or, if it no longer exists, to substantially equivalent employment, and make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him. The backpay provided for herein shall be computed in accor- dance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962)."t agreement with Respondent which debarred him from engaging in competi- tive employment for a specified number of months following the relinquish- ment of his position with Respondent. and Agacinski retained private counsel to represent him. In his prayer for this relief. the General Counsel relies upon Local Unions Nos. 186, et al., affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Continued) 1395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Martin J. Agacinski, Jr., thereby discriminating in regard to his hire and tenure of employ- ment, in order to discourage his engagement in protected concerted activities under the Act, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the purview of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 12 The Respondent, Liberty Mutual Insurance Co., Boston, Massachusetts, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their engagement in protected concerted activi- ties. (United Parcel Service), 203 NLRB 799 (1973), enfd. 509 F.2d 1075 (C.A. 9, 1975). 1 find the United Parcel Service case inapposite to the facts and circumstances presented herein. In that case, the Board, with court approval, awarded legal fees to certain employees whose collective-bargain- ing agent had refused, for unlawful reasons, to process their grievances under a labor compact with their employer. In doing so, the Board noted that the employees were entitled to independent legal representation before the arbitral tnbunal to which their grievances had been referred because their union had prejudged the merits of their complaints, and the facts demonstrated that the legal costs were incurred as a direct result of the union's illegal conduct. In the instant proceeding, Respondent's suit had no direct or proximate nexus with its illegal discharge of Agacinski because Respondent could have proceeded against Agacinski in the state court regardless of whether his termination was violative of the Act. Moreover, he filed a counterclaim in the injunction suit, which is still pending, wherein he (b) Threatening employees with discharge unless they refrained from forming orjoining a labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which I deem is necessary to effectuate the policies of the Act: (a) Offer to Martin J. Agacinski, Jr., immediate and full reinstatement to his former job or, if it no longer exists, to substantially equivalent employment, and make him whole for any loss of pay he may have suffered as a result of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Reme- dy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records and reports, and all other records necessary to analyze the amounts of backpay due herein. (c) Post at its district offices in East Orange, New Jersey, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms to be provided by the Regional Director for Region 22, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. claimed the same attorney's fees for which the General Counsel now presses. Conceivably, Agacinski might recoup his legal expenses depending upon the outcome of that litigation. I shall therefore deny the General Counsel's remedial request. 12 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1396 Copy with citationCopy as parenthetical citation