Liberty Mut. Ins. Co. v. N.L.R.B., 78-1215
| Decision Date | 13 February 1979 |
| Docket Number | No. 78-1215,78-1215 |
| Parties | 100 L.R.R.M. (BNA) 2660, 85 Lab.Cas. P 11,121 LIBERTY MUTUAL INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Kalvin M. Grove, Chicago, Ill., with whom Burton L. Reiter, and Fox & Grove, Chicago, Ill., on brief, for petitioner.
Christopher W. Katzenbach, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.
Liberty Mutual Insurance Company (Company) brings this petition to set aside an order of the National Labor Relations Board (Board or NLRB) issued on May 3, 1978. 1 The Board has filed a cross-application for enforcement of its order: that the Company cease and desist from the unfair labor practices found; that the Company offer reinstatement and reparation to discharged employee Martin J. Agacinski, Jr.; and that the Company reimburse Agacinski for all legal expenses incurred in defending the state court suit brought by the Company subsequent to his discharge. In that action, Liberty Mutual successfully sought to enjoin Agacinski from selling insurance in competition with it. 2 The Board adopted the findings of the administrative law judge (ALJ), concluding that the Company violated section 8(a)(3) and (1) of the Labor Relations Act, 29 U.S.C. § 8(a)(3) and (1), when it discharged account representative Agacinski and it violated section 8(a)(1) of the Act, 29 U.S.C. § 8(a)(1), when Liberty Mutual threatened Agacinski with discharge because of his union activities.
The Company alleges that the Board's findings of 8(a)(3) and 8(a)(1) violations are not supported in the record considered as a whole and that the award of attorney's fees in the state court proceeding was contrary to law.
This case does not fit into the traditional mold of subpar employee work performance being tolerated by the Company until it coincides with union organizational activity. There was no established labor union involved here directly or indirectly. The discharged employee was attempting to resolve personal grievances at the same time that he was engaged in an organizing effort of insurance salesmen. For this reason, it is necessary to develop the facts in detail.
The Company has its headquarters in Boston, Massachusetts, and is engaged in the sale of casualty, property, and life insurance. Agacinski, the discharged employee around whom this controversy centers, worked for the Company continuously from 1962 until his termination in March of 1976. During his years with Liberty Mutual, he advanced from personal sales representative in Morristown, New Jersey, to business sales representative in 1971, when he was transferred to East Orange, New Jersey. He was lauded for his "outstanding sales efforts" in 1973 in a letter from the Boston office. In 1975, Agacinski was the Company's highest earner for the State of New Jersey, and was cited as an example by his manager to fledgling salesmen. January of 1976 brought a promotion to account representative.
Even though he appeared to be on the road to success in the insurance world, Agacinski was not happy with the way the Company treated him and its treatment of insurance salesmen in general. He set forth his grievances in a memorandum, dated March 11, 1976, addressed to his superior, District Manager Joseph Anthony. The memorandum was composed during the first two weeks of March while Agacinski was on vacation. Agacinski distributed the four page memorandum on March 15 to all salesmen and managers in the East Orange office and to insurance salesmen throughout the Middle-Atlantic Division on his return from his vacation. He detailed his complaints and proposed the formation of an association of salesmen.
Our representatives, including myself, are distrustful and disheartened. I propose a Liberty Mutual sponsored Association of Middle-Atlantic Representatives; an association in which representatives are appointed by ballot of their peers to voice grievances to management.
His grievances were both general and personal. The general complaints included dissatisfaction with the assignment of sales territories, reassignment of accounts, low renewal percentages, conflicts between salesmen and sales managers, and distortions in sales reports. Agacinski's personal complaints were prefaced with his statement, "I, like others, have personal grievances that, for fear of reprisal, cannot be aired without support of an Association." Agacinski was irked by what he viewed as an inequitable salary maintenance formula, secrecy concerning the tabulation of career credits, inner strife in his office, and a reduction in reimbursed expenses, such as mileage. With the distribution of this memorandum. Agacinski's career as a Liberty Mutual salesman began hurtling toward its end. Our factual focus is primarily on the brief time span from March 15 to March 26, when Agacinski's status as a shooting star in Liberty Mutual's galaxy ended abruptly with his discharge. Agacinski realized before he distributed the memorandum that his employment would be in jeopardy and during his vacation at the beginning of March made inquiries and determined that, if he lost his position with Liberty, he would have an opportunity to represent other competing insurance companies as an agent.
Late in the morning on Monday, March 15, Agacinski met with Anthony at the latter's bidding to discuss the memorandum. After requesting the names of individuals to whom the memorandum had been sent, Anthony commented to Agacinski, They discussed Agacinski's grievances, but came to no resolution, with accusations of each party's irrationality bandied back and forth.
Anthony phoned James L. Walker, the division sales manager for the Middle-Atlantic Division after his lengthy session with Agacinski to discuss the memorandum. Anthony also spoke with Kenneth Spaulding, the assistant vice-president and manager of employee relations, corporate level, in Boston about the memorandum.
On Tuesday afternoon, March 16, Agacinski met with three account representatives in the East Orange office to discuss his memorandum, suggesting a second follow-up memorandum. He wanted "to further the Association" so he proposed to the trio "the idea of a no-show Thursday." Agacinski then wrote a second memorandum, which he addressed and sent to all divisional salesmen on Wednesday, March 17. Agacinski summarized the mixed reactions he received from the first memorandum: the senior salesmen "at best were sympathetic"; the newer salesmen "are enthusiastically behind organization and change"; the "newest salesmen are bewildered." Agacinski noted:
Managements (Sic ) attitude has been similarly predictable. As in 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.
Citing the comment of one of the junior salesmen to the effect that Agacinski must have been intoxicated when he composed the first memo, Agacinski continued, "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." Agacinski concluded by noting, "I am for decision and action," and proposed
After reading the second memorandum, Anthony phoned both Walker and Spaulding concerning its contents. Spaulding directed Anthony to gather the divisional sales managers for a meeting, which was held on the following day, Thursday, March 18, with Spaulding and Attorney Penny, counsel for the Company, in attendance. 3 The express purpose of the meeting, according to Spaulding's testimony was "for Mr. Penny and me to discuss with the managers their what they could and could not do during any attempt to organize the East Orange office." Anthony testified by deposition that at the meeting he was directed not to make any threats of termination, but that he could insist that Agacinski function in the accepted manner of a Liberty Mutual salesman.
Walker met with Agacinski on Friday, March 19, from about 11:00 a. m. until 2:00 p. m., during which time they addressed the contents of both memoranda and their distribution. When Walker noted his surprise at Agacinski's dissatisfaction with the Company and his attempt to form an association, Agacinski responded that, due to his high visibility as a successful salesman, "I am the most logical person to pursue this." When Walker questioned Agacinski if he intended to keep writing memoranda, Agacinski responded that he did. He then threatened to be "disruptive in an administrative sense at meetings," explaining that he could post a notice that no salesmen attend meetings unless prior written approval was obtained from the association. On hearing this, Walker warned Agacinski, "you know, you keep this up and you could lose your job." Agacinski retorted that the job was not any good and that he wanted it changed. Walker testified that he understood Agacinski's primary motive in creating a ruckus was to satisfy his personal...
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