Fireman's Fund Insurance Co.

National Labor Relations Board - Board Decisions

Nov 26, 1968

173 N.L.R.B. 982 (N.L.R.B. 1968)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fireman 's Fund Insurance Companyl and United
Industrial Workers of North America , Pacific
District , affiliated with Seafarers ' International
Union of North America , AFL-CIO.' Case
20-RC-8016.
November 26, 1968
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before David F. Sargent, David J.
Salniker, and Robert B. Hoffman, Hearing Officers.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision. The Employer
and the Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the National
Labor Relations Board finds
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner requests an election in a single
bargaining unit consisting of all claims adjusters at the
Employer's San Jose Branch Office, excluding clerical
employees, salesmen, all other employees, guards, and
supervisors as defined in the Act.' However, the
Petitioner states that if a more comprehensive unit is
found to be appropriate, it wishes to amend its
petition accordingly, and to submit an additional
showing of interest. The Employer contends that the
only appropriate unit is one that should include all
claims adjusters and claims clerical employees in all
the offices throughout its Pacific Region. There is no
history of bargaining for any of the Employer's
employees.
The Employer is the principal operating subsidiary
of the Fund American Companies. It is engaged in
practically all phases of the casualty insurance busi-
ness on a nationwide basis. Its Home Office and
Pacific Region office, which is one of five regional
offices, are located at the same address in San
Francisco, California.' The Pacific Region serves a
13-State area in the western part of the United States,
including Hawaii and Alaska. This region operates
through 18 branch offices covering separate geo-
graphical territories, and 8 Service branch offices,
which are attached to branch offices. The San Jose
branch office, involved in the Petitioner's unit re-
quest, has no subsidiary service office and is roughly
51 miles from the nearest branch office in San
Francisco.
Each branch office is headed by a branch manager
who has overall administrative responsibility for
branch performance and who reports to a regional
vice president. Likewise, each branch office is divided
into various functional departments such as office,
sales, underwriting, engineering, and claims, with the
branch manager administratively responsible for each
department. In addition, the departments submit
operational reports to counterpart departments in the
regional office.
Overall policies governing personnel administration,
budgeting, and claims handling are formulated and
ultimately controlled by the Home Office. Thus the
Home Office establishes wage and salary schedules
which are based on area standards, and fringe benefits
which are uniform for all employees. The Home
Office administers training programs for claims ad-
justers and has established personnel testing programs
for various categories of job applicants, including
claims adjusters and claims clericals. These are ad-
ministered, however, at the branch office level. In
addition, the payroll is processed at the Home Office
and personnel information is maintained at the
regional office. Further, hiring, pay increases, dis-
ciplinary action, and discharge generally require re-
gional office approval. However, it appears that the
initiation of hires, discharges, and pay increases
occurs at the branch level, and these personnel actions
normally receive regional approval, except for pay
increases at lower levels, which are entirely free from
regional control.
The branch controls individual work schedules,
1 The name of the Employer appears as amended at the hearing
2 The name of the Petitioner appears as amended at the hearing
3 It was stipulated at the hearing that Stern , the branch
claims manager , Denman , La Rosa , Desoto , and Cooper, Stern's sub-
ordinate claims adjuster supervisors, and Thompson, the claims clerical
superintendent , were to be excluded from the unit as supervisors It was
also stipulated that Glasby, claims attorney , was to be excluded from
the unit as a professional
4 The Employer is in the process of converting the five regions to
three regions . However, the structure of the Pacific Region will remain
the same except for a somewhat expanded territorial jurisdiction.
According to the Employer's annual reports , it appears that the branch
offices will become more autonomous as a result of the conversion
173 NLRB No 146
FIREMAN'S FUND INSURANCE CO.
operates under its own budget, elects its own internal
structure, and controls all matters such as purchasing,
office space rental, and selection of outside experts
for claims evaluation assistance.
Files involving claims with an estimated liability
over a predetermined amount must be sent in
duplicate to the region for settlement coordination
and control by the regional office. However, it
appears that the Branch has the initial responsibility
for handling liability estimates and has day-to-day
responsibility for handling most claims. The record
shows that in most instances it is the branch, rather
than the Region, which handles the negotiation of
claims.
In a few instances adjusters may work on a team
drawn from within and without the Pacific Region to
handle claims arising out of major catastrophes.
However, there is no showing that this occurs with
any frequency or even that adjusters from the San
Jose Branch have ever been assigned to catastrophes.
As evidence of employee interchange, the Em-
ployer showed that during 1966 and 1967 there were
110 transfers of employees involving the Pacific
Region. However, all of these transfers were perma-
nent, not temporary changes. Moreover, only five
were transfers into and only three were out from the
San Jose Office. None of the San Jose transfers listed
by the Employer involved claims adjusters.
In its decision setting forth the considerations for
the determination of appropriate collective-bargaining
units in the insurance industry, Metropolitan Life
Insurance Company,5 the Board held that "the single
district office is the basic appropriate unit for
insurance agents...." This policy was reaffirmed,
with court approval, in the Western and Southern Life
Insurance Company,6 recognizing that not all com-
panies have precisely the same administrative struc-
ture or office nomenclature, the Board stated in State
Farm Mutual Automobile Insurance Company' that
the basic appropriate unit for insurance claims repre-
sentatives or adjusters was "the smallest component
of the Employer's business structure which may be
said to be relatively autonomous in its operation" and
thus comparable to the district office involved in
Metropolitan, supra
Here the Petitioner seeks a unit of insurance
adjusters limited to a single branch office. While the
Employer's organization is so structured that, in some
areas, the smallest component is a branch service
office attached to a Branch Office, the record
indicates that the San Jose Branch office has no
Service Office, and is itself identifiable as a separate
geographic and administrative entity comparable to
the district office in Metropolitan, and is presumptive-
ly appropriate for collective bargaining.
983
As the Board has pointed out with respect to
comparable single location unit questions in the retail
industry, the foregoing presumption of appropriate-
ness may be overcome where it is shown that the
day-to-day interests shared by employees at a particu-
lar location have become merged with those of
employees at other locations. In this connection, the
Board has stated that an important factor to consider
is whether employees at the separate location perform
their day-to-day work under the immediate super-
vision of a manager who has a significant role with
respect to their hiring, promotion, and discharge, with
their work assignments, and the routine problems
which give rise to their grievances. For if the manager
lacks authority, this tends to minimize the otherwise
apparent community of interst of employees at such a
single location.' Other factors which are relevant, in
the above connection, include interchange of em-
ployees, previous history of bargaining, and geo-
graphic and functional relation to other parts of the
organization.
The Employer contends that the San Jose Branch
unit may not be found to be appropriate because
hiring and discharge of employees and wages and
salaries are determined at the Regional level, and not
at the Branch level; and because the San Jose Branch
is functionally integrated with other branch and
branch service offices throughout the Pacific Region.
The Employer also asserts there is considerable
interchange of employees among its offices. However,
as indicated above, the record shows that hiring and
discharges of employees are initiated at the branch
level, and wages and salaries, though determined by
the Home Office, are based on rates paid in each
branch area. Claims handling functions are, to a
substantial degree, subject only to the supervision of
the local branch office; thus, the great majority of
claims are settled exclusively by the Branch Office,
with the branch claims manager and branch claims
supervisors possessing considerable operational and
administrative autonomy. There is no significant
degree of employee interchange between this branch
and other branches in the Pacific Region. There is no
history of bargaining, and the nearest office to the
San Jose office is 51 miles away. Under the foregoing
circumstances, and particularly as claims adjusters at
this office perform their day-to-day work under the
immediate supervision of branch claims supervisors
and the branch claims manager, who have a significant
role with respect to hiring, discharge, work assign-
ments, and routine matters which give rise to their
grievances, we are satisfied that the presumption as to
the basic appropriateness of the San Jose Branch
Office has not been rebutted. Accordingly, we find
5 156 NLRB 1408, 1418 8 Dan's Star Market, 172 NLRB No 130, Haag Drug Company,
6 163 NLRB 138, enfd . 391 F 2d 119 (C A. 3) Incorporated, 169 NLRB No. 111.
7 158 NLRB 925, 929
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a unit limited to the San Jose Branch Office is an
appropriate unit for collective bargaining.
The Petitioner would exclude claims clerical em-
ployees from the unit of claims adjusters on the
ground that they have a separate community of
interest from the claims adjusters. The Employer
would, on the contrary, include them on the ground
that they work closely with the claims adjusters.
The record shows that there are some 13 claims
clericals, of whom 10 are under the separate super-
vision of a clerical supervisor, who reports to the
branch office manager.' Both this supervisor and the
branch office manager have supervision over other
clerical employees, some of whom appear also to
work for the claims adjusters. The claims clericals
perform work of pulling files and other incidental
routine tasks solely for the claims adjusters. They
earn from $70 to $91 a week, work the same hours,
and have the same fringe benefits as all other
employees who work inside the Employer's office. On
the other hand, the claims adjusters are under the
separate supervision of the claims supervisors and
Branch claims manager and earn from $107 to $167 a
week. Unlike claims clericals, all the claims adjusters
have authority to adjust claims on the Employer's
behalf, and regularly do so. In addition, the outside
claims adjusters, who form a substantial part of the
unit, spend the majority of their time away from the
office, and all the adjusters' work, though not
requiring college training, requires the exercise of
considerable independent judgment.
The record discloses that two of the claims
adjusters were promoted to that position from a
claims clerical position. Nonetheless, we view the
relationship between the claims clericals and adjusters
as not essentially different from the usual relationship
between employees in an office clerical unit and those
in a production unit. In view of the great disparity in
skills, earnings, hours, working conditions, and super-
vision, it would appear that the work of the claims
clericals is more closely allied to that of other clerical
employees. In the circumstances, we find it would not
be appropriate to depart from our normal policy of
exclusion of office clerical employees. Thus we shall
exclude claims clerical employees from the unit
sought.' 0
On the basis of the foregoing, we find that the
following employees constitute an appropriate unit
for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All San Jose, California, Branch Office claims
adjusters, excluding salesmen, professional, clerical,
and all other employees, guards and supervisors as
defined in the Act:
A question remains as to the status of three specific
employees. Employee Kennedy, a claims adjuster, has
greater authority and responsibilities than most of the
Employer's claims adjusters. Nevertheless, there is no
evidence or even claim that this added authority and
responsibility is in any way supervisory. We find that
the general nature of his employment is sufficiently
similar to that of other claims adjusters to include
him in the unit. Similarly, we find that claims adjuster
Geoghagen should be included in the unit. Although
Geoghagen is eligible for retirement, he is a per-
manent employee at the San Jose Branch Office
performing his work on a regular full time basis. On
the other hand, we find that Woldhagen, a claims
adjuster trainee, does not have sufficient expectation
of permanent assignment at the San Jose Branch
Office to warrant his inclusion and, therefore, he shall
be excluded from the unit until and unless perma-
nently assigned to San Jose.
[Direction of Election' omitted from publica-
tion.]
9 There are three other claims clerical or secretarial employees who
work under the branch claims manager . However, inasmuch as they
work primarily for him and an independent attorney , who the parties
agree should be excluded from the unit , they would appear to have even
fewer interests in common with the claims adjusters than the other
claims clericals.
10 Cf. Quaker City Life Insurance Company, 134 NLRB 960, where
a single clerical employee was included in a district office unit because
she would be otherwise unrepresented , and was licensed to sell
insurance like the insurance agents who comprised the bulk of the unit.
II An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
Director for Region 20 within 7 days after the date of this Decision and
Direction of Election. The Regional Director shall make the list
available to all the parties to the election . No extension of time to file
this list shall be granted by the Regional Director except in extraor-
dinary circumstances . Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are
filed . Excelsior Underwear Inc., 156 NLRB 1236.