Reliance Insurance Companies v. NLRB

• Decision Date: 04 September 1969
• Docket Number: No. 19566.,19566.
• Citation: 415 F.2d 1
• Parties: RELIANCE INSURANCE COMPANIES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.2d 1 (1969)

RELIANCE INSURANCE COMPANIES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19566.

United States Court of Appeals Eighth Circuit.

September 4, 1969.

Byron J. Beck of Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, Mo., for petitioner.

Robert A. Giannasi, Atty., National Labor Relations Board, Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N.L.R.B., on the brief.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Petitioner, Reliance Insurance Companies, seeks to review and to set aside an order of the National Labor Relations Board entered on December 3, 1968 against Reliance, reported at 173 NLRB 161, finding Reliance in violation of §§ 8 (a)(3) and 8(a)(1) of the Labor Management Relations Act, as amended, 29 U.S.C. § 151 (1965) et seq. The Board files a cross-application for enforcement of its order.

The Trial Examiner found that the General Counsel had failed to establish by the preponderance of the evidence the unfair labor practice charges set forth in the complaint and recommended that the complaint be dismissed in its entirety, but the Board in a 2-1 decision found that Reliance had violated §§ 8(a)(3) and 8(a)(1) of the Act by failing to give nondiscriminatory consideration to the application of Robert L. Thomas for employment and § 8(a)(1) of the Act by interrogating Thomas concerning his interest and activity in the Union (American Claims Union, the complainant).¹

The broad question raised on appeal is whether there is substantial evidence on the whole record to support the Board's findings. Two distinct issues are presented: (1) whether Reliance's questioning of Thomas about his union activity violates § 8(a)(1) of the Act; and (2) whether Reliance discriminated against Thomas with regard to his application for employment in violation of §§ 8(a)(3) and 8(a)(1) of the Act. A resolution of these issues necessarily involves a comprehensive review of the evidence.

The undisputed evidence shows that Reliance, operating nationwide, had an opening in its Kansas City office on May 1, 1967 for a claims adjuster. Reliance unsuccessfully attempted to fill this position by transferring Robert Davidson, a claims employee with 13 years experience, from Grand Island, Nebraska to Kansas City. On May 31,² Davidson declined the opportunity to transfer. In the interim, on or about May 10, Jack Miller applied for the job. He was told that Reliance would keep his application but would take no action until negotiations with Davidson were concluded. Previously, under date of November 16, 1966, John Folk, vice president in charge of claims, sent a notice to all district claims offices stating (1) he wanted to know about all personnel matters, including proposed hirings, and (2) he would be sending "a profile to follow in recruiting applicants for positions in the Claims Department," and requesting that the offices in the interim advise him about any vacancies so that "This will give us an opportunity to make any suggestions before you commit yourself to any prospective employee. * * * These instructions apply to all technical claims employees * * * but not to clerical employees * * *." In line with the above letter, Reliance established the policy of obtaining claims adjusters with at least three years experience in the claims field or else obtaining novices with no experience and starting them out as trainees; college graduates were desired if available.

On June 5, John Travers, claims manager for the Reliance office in Kansas City, Missouri, wrote to Folk of his intention to fill the vacancy with a man possessing a minimum of three years experience in line with Folk's requirement for new claims adjusters, which individual would be passed upon by Folk, and if no such applicant were secured the trainee route would be pursued. This procedure was followed by the Kansas City office in hiring Robert Therlin on June 22.

On June 26, Robert L. Thomas who had 2½ years claims experience with the Hartford Insurance Group in Kansas City applied for the opening with Reliance. Thomas had resigned from Hartford in May. Previous to his resignation he was actively involved in an unsuccessful union organizational attempt at Hartford. (The Union lost the representational election held on February 27.) He worked for a short period as a book salesman and in June sought to return to the adjustment field and obtain a position as a claims adjuster. Before applying to Reliance, Thomas consulted with Gary Widmer, president of the American Claims Union, who promised to call Travers and inform him that Thomas was not a rabble-rouser or troublemaker.

At the interview of June 26, Thomas presented a resume of his background and when Travers mentioned that he knew Joe Shramek, the regional claims manager of the Hartford Insurance Group, and that he was a friend of his, Thomas's response and Travers' questioning, according to Thomas, was:

"* * * I shook my head and smiled. He Travers said, `Have you had any problems with Hartford or Mr. Shramek?\' I said, `Well Mr. Travers, you know as well as I do we had a union election at Hartford and other than the union I had no problem with Mr. Shramek or the company.\'"

The interview continued with Travers stating they had a new company policy for hiring men but Travers could not find the letter setting forth the policy. Travers then asked Thomas, "Are you still active in the union, Bob?" Thomas answered he was not necessarily pro-union but he was very active with the Union while at Hartford. At this point the conversation was interrupted by a telephone call from Widmer, who asked Travers to consider Thomas on his merits, which Travers said he would do.³

At the conclusion of Widmer's call the interview continued, according to Thomas, as follows:

"I asked `Was that Gary?\' He said, `Yes.\' Mr. Travers then said, `Well, Bob, unions, I\'m very interested in unions and I\'m not really against them myself, but as I said before, we\'ve got a new company policy and the man above me, he might not like your being a member.\' I said, `Well, Mr. Travers, I would do a good job for you, to the best of my ability, and I\'m not here to cause any trouble.\' Mr. Travers then said, `Well, we\'ll put your name in the hopper along with the rest of the men.\' and he gave me an application to fill out and I told him I would return it as soon as possible."

Thomas took the application form and returned it two or three days later, June 28 or 29 (the record is not clear on the precise date), at which time he had a second interview with Travers. At this time Thomas expressed the view that Travers should have the authority to act on his application without consulting the home office and volunteered the statement, "Well, Mr. Travers, I realize you have to be careful of me because of my union activity." to which Travers replied, "Well, yes, I do." Travers testified he accepted the application and said, "Fine, as I told you in my first interview, I have just started to find a man and I will let you know in due course." Additional brief conversation ensued; Thomas shook hands with Travers and left. Thomas then apparently contacted Widmer and on the following Monday, July 3, the American Claims Union on behalf of Thomas filed the unfair labor practice charges against Reliance and the American Mutual Liability Insurance Company.

Several applicants for the position were interviewed by Reliance both before and after the charge was filed. On July 6 or 7, Jack Miller again contacted Reliance to say he was still available for the position. On July 12, Folk sent a memorandum to Travers in which he inquired as to the status of the attempt to fill the job vacancy. On July 13, Travers sent the applications of Thomas and Miller, but none of the other applications, to Folk. Travers said nothing about the Thomas application but recommended the hiring of Miller on the basis of his experience and qualifications for the job. On July 14, Folk approved the hiring of Miller, who was hired officially on July 24.

On July 13, a discussion ensued at a luncheon meeting of the Kansas City Claims Managers' Council about the unfair labor practice charges filed by Thomas against three insurance companies. Conflicting versions of what transpired appear in the record. One witness, Louis Haverland, an alternate member of the Council, testified that Travers said he used the ruse of having to get the application approved by the home office in order to get rid of Thomas. Travers denied making this statement and Travers' version was supported by three other claims men who were present at the meeting.

COERCIVE INTERROGATION ISSUE — 8(a)(1)

During the first interview Travers asked Thomas, "Are you still active in the union, Bob?" to which Thomas replied, "I'm not necessarily pro-union. I was very active with the union while I was with Hartford." This question according to the Board constitutes a violation of § 8(a)(1) — coercive interrogation concerning protected activity under the Act. According to the Board the question had no legitimate purpose and had a "natural tendency to instill in the minds of employees fear of discrimination on the basis of the information sought." N. L. R. B. v. West Coast Casket Co., Inc., 205 F.2d 902, 904 (9 Cir. 1953). The Board points out there was no issue of a union majority which might legitimize such inquiry under § 8(c) and noted that Thomas was not assured his answer would not penalize him.

We think the Board has placed undue significance on this innocuous question and the response it invoked. The question in context shows no union animus⁴ and cannot be considered coercive even under a strained construction of the evidence. In the first place, Travers or Reliance of their own volition expressed little interest in...