Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 553 (N.L.R.B. 1967)

METROPOLITAN LIFE INSURANCE 553
Metropolitan Life Insurance Company and
Insurance Workers International Union,
AFL-CIO. Cases 8-CA-3486 and 8-CA-4085
June 30, 1967
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 30, 1966 , Trial Examiner Robert
Cohn issued his Decision in the above -entitled
proceeding . finding that the Respondent had not en-
in conduct violative ofgaged (a) ( 1) of the
Act subsequent to the execution of a settlement
agreement warranting the issuance of a remedial
order, and recommending that the complaint be
dismissed in its entirety and further recommending
that the settlement agreement in Case 8--CA-3486
be reinstated . Thereafter , the General Counsel filed
exceptions to the Trial Examiner 's Decision and a
supporting brief, and the Respondent filed cross-ex-
ceptions, and supporting and answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed .' The Board has considered the
Trial Examiner's Decision , the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Trial Examiner found that District Manager
Demski 's interrogation of Agent Boyd as to why he
was wearing a union button . Demski 's direction to
remove the button, and his subsequent interroga-
tion of Boyd concerning union visitors to Boyd's
house constituted interference and restraint within
the meaning of Section 8(a)(1) of the Act.'' He con-
cluded, however, that in view of the isolated nature
of the violation , a remedial order was not war-
ranted. However , we conclude that Demski's con-
duct in several instances noted hereinafter also vio-
lated Section 8(a)(1) of the Act and, together with
the violation involving Boyd , warrants the issuance
of a remedial order.
In September 1965, Demski was in a night club
with Agent Robert Joseph , leader of the union or-
I The Trial Examiner denied a motion of the General Counsel to ad-
journ the hearing and resume in Los Angeles , California , for the purpose
of receiving testimony of a witness who had moved there. As we do not
believe the alleged violation about which this particular witness would
have testified , even if proved , would materially affect the nature of our
Order, we find it unnecessary to decide whether a violation was therein in-
volved, and accordingly we deem it unnecessary to pass upon the validity
or the basis of the Trial Examiner 's ruling
ganizational campaign, and another agent when
Joseph remarked that he was disappointed at the
benefits paid his father-in-law, a retired employee
of the Respondent. According to the credited
testimony of Joseph. Demski stated, "if you really
want to know why [the Respondent] did not pay
more ... it is because of all the things you have
been doing here in Toledo concerning the union."
The remark was clearly intended to warn Joseph
and the other agent present of the potential con-
sequences of union support.3 We do not accept the
Trial Examiner's characterization that this was an
offhand remark of a minor supervisor or that the
coercive impact of such statement was substantially
diluted because of the setting in which it occurred.
Demski was the office manager over some 25 em-
ployees, including Joseph, and it is unlikely a pru-
dent employee would lightly disregard such warning
wherever made.
On October 8, 1965, Demski threatened Joseph
with the abolishment of his agency assertedly
because of the lapse of some policies involving
some $45.38 worth of premiums. However, a week
or two prior to the threat to discharge, Demski had
complimented Joseph, an employee of 17 years, on
his outstanding job of placing over $100,000 of in-
surance in a month. In view of Demski's continuing
antipathy to union organizational attempts, and his
previous night club remark to Joseph, we find that
Demski's threat to abolish Joseph's agency was in
fact motivated by Joseph' s union activities.
We conclude, therefore, that the separate in-
cidents involving Demski and Boyd, and the two in-
cidents involving Demski and employee Joseph, are
each separate violations of Section 8(a)(1). In view
of these findings, Demski's conduct cannot be
categorized as isolated and we will, therefore, issue
the usual remedial order.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(1)
of the Act, we shall order it to cease and desist
therefrom and from all other 8(a)(1) violations, and
take certain affirmative action. However, as the
violations herein occurred nearly 18 months after
the settlement agreement in Case 8-CA-3486, and
as the broad order we are issuing would not be
materially changed by any finding of these earlier
violations, as alleged, we shall affirm the Trial Ex-
aminer's recommendation that the settlement agree-
ment in Case 8-CA-3486 be reinstated.
3 The Trial Examiner rejected the General Counsel's effort to amend the
complaint to allege similar restrictions by the other supervisors of
Respondent . We find it unnecessary to pass on this ruling , because the ad-
ditional violations if proven would be merely cumulative and would not
materially affect our order.
3 While this incident was not specifically alleged in the complaint, the
matter was fully litigated without objection or exception thereto.
166 NLRB No. 53
554 DECISIONS OF NATIONAL
AMENDED CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The unfair labor practices herein found are
unfair labor practices within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby orders that the Respond-
ent, Metropolitan Life Insurance Company, Mau-
mee District Office, Toledo , Ohio , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with discharge or
abolishment of their agencies , or other economic
reprisals because of union membership, activities,
and sympathies ; interrogating employees concern-
ing union activities and sympathies and refusing
employees permission to wear union insignia under
threat of discharge ; and threatening employees or
their relatives with lower or reduced retirement or
other benefits because of union activities and sym-
pathies.
(b) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form labor or-
ganizations , to join or assist Insurance Workers In-
ternational Union , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing, or to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment , as authorized in Sec-
tion 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Post at its Maumee District Office , Toledo,
Ohio , copies of the attached notice marked "Appen-
dix." 4 Copies of said notice , on forms provided by
the Regional Director for Region 8, after being duly
signed by the Company 's representative , shall be
posted immediately upon receipt thereof, and be
LABOR RELATIONS BOARD
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 8,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the settlement
agreement in Case 8-CA-3486 be reinstated.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT threaten employees with
discharge or abolishment of their agencies or
other economic reprisals because of union
membership, activities, and sympathies; inter-
rogate employees concerning union activities
and sympathies and refuse employees permis-
sion to wear union insignia under threat of
discharge; and threaten employees or their
relatives with lower or reduced retirement or
other benefits because of union activities and
sympathies.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations , to join or assist In-
surance Workers International Union,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to
refrain from any or all of such activities, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
METROPOLITAN LIFE IN-
SURANCE CO.
(Employer)
Dated By
(Representative ) (Title)
METROPOLITAN LIFE INSURANCE 555
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board' s Regional
Office, 720 Bulkley Building, 1501 Euclid Ave.,
Cleveland, Ohio 44115, Telephone 621-4465.
TRIAL EXAMINER'S DECISION
At the hearing, all parties were afforded full opportuni-
ty to present evidence, examine and cross-examine the
witnesses, to argue orally at the close of the hearing, and
to file briefs. Oral argument was waived by all parties.
Briefs had been received from counsel for the General
Counsel and counsel for the Respondent, respectively,
which have been duly considered.2
Upon the basis of The entire record, including my ob-
servation of the demeanor of the witnesses while testify-
ing, and the arguments of counsel, I hereby make the fol-
lowing:
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This consolidated
proceeding, with all parties represented,' was heard be-
fore me in Toledo, Ohio, on July 11 and 12, 1966.
Case 8-CA-3486 arose upon a charge filed by In-
surance Workers International Union, AFL-CIO (herein
the Union), on April 23, 1964, alleging, in substance, that
Metropolitan Life Insurance Company (herein the Com-
pany or Respondent) had committed various unfair labor
practices at its Maumee District Office in Toledo, Ohio.
After investigation, that charge was resolved by an all-
party settlement agreement, approved by the Regional
Director for Region 8 of the National Labor Relations
Board (herein the Board) on June 15, 1964. Said settle-
ment agreement provided, in essence , that the Company
would cease in any manner interfering with, restraining,
or coercing its employees in the rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, as amended
(herein the Act), and that it would post a notice to all em-
ployees at its Maumee office to that effect.
Case 8-CA-4085 arose upon a charge filed by the
Union against the Company on November 23, 1965,
which charge alleged substantially that the Company was
continuing to coerce and discriminate against its em-
ployees, members of the Union, at its Maumee District
Office.
On January 6, 1966, the Regional Director for Region
8 of the Board, by letter, notified the Company that he
was vacating the approval of, and setting aside, the settle-
ment agreement of June 15, 1964, because the terms of
said settlement agreement had not been complied with,
and that he was therefore reinstating the charge in Case
8-CA-3486. On January 11, 1966, the Regional Director
issued an order consolidating the two aforementioned
cases, along with the complaint and notice of hearing in
the instant matter. By its duly filed answer, the Company
generally denied the commission of any unfair labor
pratices and affirmatively pled that several of the allega-
tions in the complaint were barred by the statute of limita-
tions contained in Section 10(b) of the Act; and that,
further, the Respondent had complied in all respects with
the said settlement agreement of June 15, 1964, which
constituted an accommodation of all violations alleged in
certain other paragraphs of the complaint.
' Although an appearance was made on behalf of Leonard Greenwald,
Esq, of New York, New York, for the Charging Union, he was not per-
sonally present at the hearing.
2 Prior to and at the hearing, counsel for the General Counsel made a
motion to remove the hearing from Toledo, Ohio, to Los Angeles, Califor-
nia, for the purpose of taking the testimony of a witness who resided at the
latter location I took the matter under advisement, and, by order dated
August 15, 1966, denied the same. By order dated September 29, 1966,
the Board denied the General Counsel's request for special permission to
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues3
The principal issue in this case is whether the Respond-
ent, subsequent to the execution and approval of the set-
tlement agreement in Case 8-CA-3486, by its officers
-and agents, engaged in conduct inconsistent with, and
violative of, the commitments made therein. If this query
be answered in the affirmative, the issue arises as to
whether the Respondent, by its officers and agents, en-
gaged in conduct prior to and subsequent to the execution
of said settlement agreement which interfered with,
restrained, and coerced employees in the rights guaran-
teed in Section 7, thereby violating Section 8(a)(1) of the
Act.
The settlement agreement provided , inter alia, that the
Company would comply with all of the terms and provi-
sions of a notice which states as follows:
WE WILL NOT interrogate our employees or
prospective job applicants for the purpose of interfer-
ing with, restraining, or coercing them in any manner
in regard to their activity or membership.
WE WILL NOT take nor will we threaten reprisals
against our employees because of their union sym-
pathies, membership, or attitudes.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or assist Insurance Workers In-
ternational Union, AFL-CIO, or any other labor or-
ganization, to bargain collectively through represent-
atives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959. All our
employees are free to become or remain members of
this Union, or any other labor organization.
appeal my ruling without prejudice to the General Counsel's right to raise
the issue in any exceptions filed to this Decision.
i I here is no issue as to the Board's jurisdiction or labor organization
The complaint alleges sufficient facts which are undenied upon which I
may, and do hereby, find that the Respondent is an employer engaged in
commerce , and that the Union is a labor organization, within the meaning
of the Act. The Board has, in prior cases, so found see Metropolitan Life
Insurance Company, 146 NLRB 967, 972
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Postsettlement Unfair Labor Practices
As previously noted, the settlement agreement which
resolved the charges in Case 8-CA-3486, was approved
on June 15, 1964. The complaint, as amended at the hear-
ing, contains three allegations of conduct allegedly viola-
tive of Section 8(a)(1) which occurred subsequent to said
date, and upon which the Regional Director presumably
based his setting aside of the settlement agreement. They
will be discussed seratim, as follows:
1. "On or about September 1965, and continuing to
date, at the Maumee District Office, [Respondent]
refused to permit an employee to utilize office secretarial
assistance and the use of office machines, because of his
union membership, activities, and sympathies." The ob-
ject of the alleged conduct is Agent Robert A. Joseph.
Joseph had worked for the Company for 17 years, and
at all times material herein was an office account or
"D.O." agent.' There is no question but that Joseph was
a known leader in the Union 's organizational campaign
which culminated in the NLRB election in October 1963,
which the Union won.5 Indeed, District Manager Chester
Demski admitted that he knew "pretty well" who was in
the Union and who was not, and that in April 1964 he
spoke to Joseph concerning the latter's solicitation of em-
ployees into the Union.6
The evidence shows that in September 1965 Joseph
noticed a newspaper article concerning group life and
hospitalization insurance which the city of Toledo was
apparently considering for its employees. Joseph clipped
the article from the paper and wrote a letter in longhand
to the Respondent's Cleveland Regional Office (which
encompassed the Maumee district). He requested one of
the office secretaries, a Mrs. Linda Parker, to type it for
him. However, Parker, who was primarily Demski's
secretary, requested of the latter that she not be required
to type the letter because (1) Joseph's handwriting was il-
legible, and (2) she did not have the time due to a shortage
of clerical help.?
Joseph testified that after Parker refused to type the
letter, he asked if he could use an office typewriter to type
it himself and she replied in the negative - that she had or-
ders that he could not use an office typewriter. Joseph
claims that this conversation with Parker was overheard
by Mrs. Jean Latak, the supervisor of the office force.
Both Parker and Latak denied that they ever advised
Joseph that he could not use the office equipment,
although Latak testified that while some of the agents oc-
casionally use a typewriter for addressing envelopes, they
were not supposed to.8
Demski denied instructing Parker never to type any let-
ters for Joseph or to deny Joseph the use of the Com-
pany's office equipment. He instructed Parker to tell
Joseph to write this kind of letter on a form 29A as the
other agents did.9
2. The complaint alleges that "on or about October
8, 1965, and continuing to date, at the Maumee District
Office, [Respondent] threatened an employee with
discharge, the abolishment of his agency and other
economic reprisals because of his union membership, ac-
tivities, and sympathies." The evidence shows that on or
about the stated date, Manager Demski wrote a note to
his assistant, John Zuelke, pointing out that Joseph's
agency had been doing quite poorly recently respecting
lapsed policies and "premium growth," ending the note
with the question, "Can we afford this agency or should
it be abolished?" 1 0
Although, as stated, the note was addressed to Zuelke,
it came to the attention of Joseph who asked Zuelke what
it meant. The latter replied that Joseph could become just
an ordinary insurance representative, or he could take an
open agency if one became available, or he could quit.
Joseph retorted that he was not prepared to do any of
those things at that time. Whereupon, Zuelke said they
would get together with Demski and discuss it. Ac-
cordingly, a day or two later the three men met in Dem-
ski's office. According to Joseph's testimony, Demski
claimed that because there had been too many policyhol-
ders who had either allowed their policies to lapse or who
had cashed in their insurance, he was planning to abolish
Joseph's agency. Joseph expressed shock and surprise at
this since, at the previous regular office meeting, which
occurred only a week or so previously, Demski had com-
plimented him on the outstanding job he had done in plac-
ing over $100,000 worth of insurance that month. At that
point, Demski had an office clerk bring in a large stack of
cash surrender files. Joseph questioned whether all of
them were his, to which Demski replied that they were
"almost all of yours anyway." The discussion continued
respecting the number of cash surrenders, Joseph inquir-
ing whether Zuelke was still making a personal inspection
of the policyholders in this regard as he had done in the
past. Zuelke admitted that he had, but that he was unable
to save any of the policies. Joseph suggested that perhaps
the time might better be spent producing other business
instead of worrying about business that the Company
could not save. After some more discussion on the
question of lapses, Joseph said that he was going to write
a letter concerning this matter to "both the Union and to
the NLRB" to which Demski replied, "Well, you always
had a good record. Let's just forget about the whole
thing."
Demski's version of the conversation is somewhat at
variance with the foregoing. He testified that he called
Joseph and Zuelke in because Joseph had been making a
"big to do out of nothing" and he wanted to get the matter
straightened out. He attempted to put Joseph at ease by
reminding the latter that he was a good salesman and
"secondly, if I was trying to get rid of you,'do you think
4 In this position he serviced insurance policies upon which payments
were made at the office rather than collecting premiums in the field as do
some other agents (sometimes called field or regular agents).
' The Respondent initially refused to bargain with the Union as the ex-
clusive collective -bargaining representative of the employees (in this as
well as other areas of the country), contending that the unit found by the
Board for that purpose was inappropriate . However, I have been adminis-
tratively advised that after litigation, which ultimately reached the United
States Supreme Court (see 380 U.S 438, 523, and 525) the Respondent
has since acquiesced on this issue.
', Demski claimed that some other agents had complained to him that
Joseph was pressuring t'iem into joining the Union
There is undemed evidence that during the months immediately prior
to this incident, the employee complement of stenographers and clerks in
the Maumee office declined numerically from eight to five
" Joseph testified that thereafter he saw Burt Plettner, another agent,
using a typewriter in the office Plettner stated that he occasionally used
office typewriters and could not recall any supervisor denying him use of
such equipment when it was available
" Form 29A is a snapout carbon form which is used for interoffice com-
munication.
" See G C Exh 2.
METROPOLITAN LIFE INSURANCE 557
less than a year ago that I would have recommended that
the Company double the size of your agency?"11
Demski's testimony corroborated that of Joseph with
respect to the clerk bringing in the stack of cash surrender
files and with respect to Zuelke's investigating cash sur-
renders. However, he did not "recall" Joseph's threaten-
ing to write letters to the NLRB and to the Union.
There is no evidence that the subject matter of this
meeting was raised by anyone subsequent to October
1965.12
3. The complaint alleges that "on or about November
1, 1965, and continuing to date, at the Maumee District
Office, [Respondent] interrogated an employee concern-
ing his union membership, activities and sympathies, and
refused to permit said employee to wear a union insignia
under threat of discharge."13
The evidence shows that in September or October
1965, union buttons were distributed to the agents in the
Maumee office who had signed authorization cards.14
Agent Tommie Boyd testified that on election day in
November 1965, he had a conversation with Manager
Demski concerning the button. Although the office was
officially closed due to the election, he was there when
Demski came in and said that he heard that Boyd had
joined the Union. Boyd admitted that he had, and, in
response to Demski's question of why he had done so,
Boyd replied that he had been connected with unions be-
fore. Demski then advised Boyd that the Union had not
been recognized by the Company at that time, and he
(Boyd) was therefore not permitted to wear the union but-
ton on company premises. Demski requested boyd to
remove it from his lapel; however, Boyd did not remove
it at that time. Later in the day, according to Boyd, Dem-
ski advised that he was "not kidding," and that Boyd
would have to remove the button. At that time Boyd
removed it.
Boyd further testified that about a week later, Demski
approached and said that he had heard Boyd had had
some visitors from the Union, and asked him what tran-
spired. Boyd admitted that he had, in fact, had visitors
from the Union and that the discussion centered around
the incident about the union button.
On cross-examination Boyd admitted that he had told
Assistant Manager Suter that the Union had been to his
home the previous weekend. Additionally, Boyd testified
that he did not stop wearing the union button after the in-
cident in November, but in fact he continued wearing the
button while at work until he left the Company in Janu-
ary, and that other employees also wore their buttons
while at work.
Demski's version of the conversation is not substan-
tially dissimilar from Boyd's. He admitted asking Boyd
why the latter joined the Union, to which Boyd stated
that he had always been a union man, that he believed in
unions, and that he would join the Union at the Respond-
ent's. Demski replied that his personal life was his own
but that he would prefer that Boyd not wear the button
around the office - that if he wished to wear it in the field
and risk public antagonism, that was up to him. Boyd then
asked why the Company was fighting the Union to which
Demski replied that the Company was not fighting the
Union but merely awaiting the final decision respecting
the bargaining unit.15 Demski did not "recall" directing
Boyd to remove the union button, and testified that Boyd
did not take it off at that time. He conceded having a con-
versation with Boyd about a week later concerning the
"union visitors" substantially as related by Boyd.
C. Analysis and Concluding Findings on Postsettlement
Conduct
In assessing whether a preponderance of the evidence
shows that the postsettlement conduct of Respondent,
through its agent, Demski, interfered with, restrained,
and coerced employees in the exercise of Section 7
rights, thereby violating Section 8(a)(1), and was in
derogation of its commitments under the settlement
agreement, it seems significant that the first two allega-
tions discussed above deal exclusively with Demski's
relationship vis-a-vis Joseph, while the third does not in-
volve Joseph at all. Stated another way, it is apparent that
the first two allegations of postsettlement conduct are
couched in terms of discriminatory action against Joseph
because of his union activities whereas the third allega-
tion rests upon the coercive impact of Demski's alleged
remarks to Boyd respecting removal of a union button.16
I do not believe that, considering the evidence in the
record as a whole, the General Counsel has sustained his
burden in this case. In the first place, the undenied
testimony of Demski shows that although Joseph was a
known leader of the Union during the organizational cam-
paign in 1963 and Demski was opposed thereto, the latter
was, in large measure, directly responsible for Joseph's
securing a substantial part of Huntsinger's agency in Au-
gust 1964. Moreover, Demski's testimony that in the
September 1965 conversaion with Joseph, he (Demski)
I I The record establishes that in August 1964 there were two office ac-
count or "D 0 " agents in the Maumee office; i.e, Joseph and one Harry
Huntsinger When Huntsinger resigned, the question arose as to what to
do with his accounts and it is undemed that Demski recommended that
most of them go to Joseph although this was contrary to company policy
which directed that the agency be distributed among "regular" as opposed
to "office account" agents. This recommendation was followed by the
Company, and, as a result , Joseph 's annual income increased some $3,000
to $4,000.
12 Although not alleged in the complaint , another postsettlement in-
cident involving Joseph was litigated by the parties In September 1965,
Joseph, Demski, and another agent named Shible (who was not called as
a witness) were together at a local nightclub. During the course of the con-
versation, Joseph told of the disappointment of his family at the fringe
benefits paid to his father-in-law, a retired Metropolitan agent, during the
latter's stay at a resthome According to Joseph, Demski stated "that if
you really want to know why Metropolitan in this case did not pay more
of Mr. Bronawicz payment, it is because of all the things you have been
doing here in Toledo concerning the Union "
Demski denied making the statement attributed to him, claiming that he
offered to-and did-intercede with the home office on Joseph's father-
in-law's behalf, but to no avail.
13 A proposed amendment to this allegation by counsel for the General
Counsel at the hearing was denied by me on the grounds of untimeliness
and undue hardship on the Respondent.
14 The buttons were of the type which could be worn in the lapel of a
business suit, see G C. Exh. 3 There is also evidence that some agents
wore the union button in 1964.
I> It is to be recalled, as previously noted, that at that time the Respond-
ent was, in fact, contesting in the courts the appropriateness of the
bargaining unit which had been found by the Board.
1" There is also some testimony in the record by witness Plettner that he
had been directed on some occasion by Demski to remove his union but-
ton. However, Plettner was so vague as to circumstances and time (he
could not say whether the incident occurred in 1964 or 1965) that I am
unable to accord any probative value to such testimony.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to intercede with the home office in the matter of
Joseph's father-in-law was not denied by Joseph although
he took the stand on rebuttal. This conduct of Demski's
does not reflect that of a person bent upon harassment or
discrimination against an employee because of union ac-
tivities (although it is obvious that Demski was
originally- and remained - antagonistic to the Union).
General Counsel argues that Demski's largess towards
Joseph in 1964 is not significant because the Union's
campaign was quiescent at that time , but was rekindled in
September 1965 when Joseph distributed the union but-
tons. While this theory had a certain initial attractiveness,
the facts simply do not, in my judgment, substantiate a
conclusion that such activity of Joseph's was a causative
factor in Demski's subsequent actions. Thus, there is not
the proverbial scintilla of evidence in the record that
Demski (or any other management representative) men-
tioned this fact in any conversation with Joseph or any
other agent.17 Secondly, the nature of the occurrences
themselves and the manner in which they arose do not
reflect a predetermined and calculated campaign by Dem-
ski to retaliate for Joseph's button-distributing activities.
Thus the typewriter incident , which arose as a result of
Joseph 's initiative , is a circumstance ' involving a profes-
sional-clerical relationship which could - and does-arise
in practically any commercial office of the size and nature
of Respondent's. There is not the slightest intimation in
the record that this incident was related to Joseph's union
activities, nor is there supporting evidence that Parker did
not refuse to type other agents' letters during this period,
nor is it shown that Joseph's production or efficiency was
deleteriously affected by any such deprivation in the use
of secretaries or office equipment. In short, this incident
strikes me as being of a quibbling nature, unrelated to the
union activities of Joseph.18
The "abolishment of agency" incident, while poten-
tially more dangerous to Joseph's working conditions and
tenure of employment , likewise seems lacking in sub-
stance when related to the probative value of proof of
violation. Again there is no contention or proof that any
representative of management uttered one word about the
Union or Joseph's activities therein during the discus-
sions. Although this, of course, is not critical to a finding
of illegal motivation, there is no denial by Joseph that the
facts contended by Demski concerning the poor showing
of Joseph 's agency respecting "lapses" and "cash-ins"
were valid. In other words, there was good and sufficient
cause for the issue of the productivity of Joseph's agency
to be raised at this time. The fact that the matter was
dropped after Joseph threatened to take up the issue with
the Union and the N LRB does not prove discriminatory
motivation of the Company.is
Demski 's staement at the Toledo nightclub concerning
the reason for the poor treatment accorded Joseph's
father-in-law, taken in vacuo could certainly be construed
to have a restraining effect on the exercise of employees'
Section 7 rights. However, when considered in context
and setting, the coercive impact is substantially diluted.
Thus, (1) it occurred in a nightclub after all parties had
been imbibing, as contrasted with the solemn milieu of
Respondent's office; (2) the utterance was in the nature
of an offhand opinion by a relatively minor supervisor of
the Respondent; and (3) the supervisor offered to -and
presumably did- seek to intercede on the employee's be-
half. Under these circumstances, considered in the
absence of other threatening or intimidatory statements,
I do not believe a violation should be concluded.
The Union Button Incident: It is well established that
the interrogation of agent Boyd by Manager Demski as to
why the former was wearing a union button and the
direction by Demski to remove it, constitutes inter-
ference with, restraint, and coercion of employees' rights
under the Act.20
However, the Trial Examiner does not believe that the
settlement agreement should be set aside and/or an inde-
pendent order issue based upon this incident (which in-
cludes the subsequent instance of interrogation related
thereto) for the following reasons : ( 1) It is an isolated
event;21 (2) although I am aware of the rule that a Section
8(a)(1) violation turns not upon whether the coercion suc-
ceeded or failed, but upon the reasonable tendency of the
language to interfere with employee rights (American
Freightways, Co., Inc., 124 NLRB 146, 147), it is
deemed appropriate in determining whether to recom-
mend an order to point out that Boyd admitted that he
continued to wear the button after the incident and
testified that other employees wore union buttons while
at work with no evidence of recrimination or retaliation;22
and (3) it is unlikely that there will be a recurrence of the
violation since Demski's action apparently stemmed from
his legally erroneous rationale that the agents were not
privileged to wear the buttons until the Union's certifica-
tion was finally up held by the courts. Since, as previously
noted, the Company has receded from that position,
Demski's position is no longer tenable (even to him) and,
as the record shows, there have been no subsequent in-
cidents of this nature.
11. THE REMEDY
Having found that the proof of alleged unlawful post-
settlement conduct of Respondent is sufficiently lacking
in substance to warrant the issuance of a remedial order,
I find it unnecessary to consider the evidence adduced as
to presettlement conduct.23 Accordingly, I will recom-
17 Demski 's conversation with Boyd respecting the union button took
place 2 months later in November , and did not relate to Joseph's distribu-
tion of the buttons
10 For the purposes of discussion of this incident , I have assumed the
veracity of Joseph's testimony to the extent that it conflicts with Parker
and Latak (although all of them appeared to me demeanorwise as credible
witnesses ), since, as indicated , I find no violation in the incident even as-
suming the correctness of Joseph's testimony
14 For purposes of this and subsequent discussions between Joseph and
Demski , I have credited the former to the extent that the testimony con-
flicts . In addition to demeanor considerations , I regard with disfavor the
Respondent's failure to call Zuelke as a witness to this incident.
20 See, e g , Cannon Electric Company, 151 NLRB 1465, and Floridan
Hotel of Tampa, Inc, 130 NLRB 1105, as supplemented 137 NLRB
1484, and cases cited therein. For purposes of this discussion , I credit
Boyd's testimony to the extent it differs from Demski's, although I would
find the violation based upon Demski 's admissions
21 As previously noted, Plettner 's testimony , vague and indefinite as it
is, and assisted by leading questions from the General Counsel, has been
given no probative weight by me The record does show that Demski ad-
jured Plettner not to wear the button if he and his wife ever came to the
Demskis' house on a social visit
22 Another of General Counsel 's witnesses , Agent Curicio , testified
that he had worn the union button at work for several years without
adverse comment or direction from Demski.
23 Conroe Creosoting Company, 149 NLRB 1174, at footnote 2.
METROPOLITAN LIFE INSURANCE 559
mend that the settlement agreement in Case 8-CA-3486
be reinstated and that the complaint in Case 8 -CA-4085
be dismissed.224
3. Respondent has not engaged in unfair labor prac-
tices sufficient in nature or extent to warrant the setting
aside of the settlement agreement of June 15, 1964.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
24 /bid In addition to the other reasons mentioned above , I have con-
sidered as bearing on my recommendation , the fact that 15 months
elapsed between execution of the settlement agreement and the date of the
first allegation of a commission of subsequent unfair labor practices
While I reject the Company 's contention that this lapse of time ". con-
clusively establishes that the Settlement agreement has been honored and
has succeeded in its purpose and that the Regional Director 's actions in
setting aside that agreement is an abuse of discretion ," I do think this fac-
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety , and the settlement agreement in Case
8-CA-3486 be reinstated.
tor should be weighed in determining whether the setting aside of the
agreement should now be sustained . (Cf. Wooster Brass Company, 80
N LRB 1633, 1635.) In the light of the relative unsubstantial nature of the
alleged violations themselves , and undemed evidence that none of them
are continuing, plus the fact that circumstances have now altered , i.e , the
Company is no longer contesting the certification , I am constrained to
hold that it was an error to set aside the settlement agreement , and, as
previously noted, I will recommend that it be reinstated.