Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Sep 7, 1962

138 N.L.R.B. 512 (N.L.R.B. 1962)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to accede to the Union 's demands for recognition and bargaining ; that an object
of such picketing has been, and is, to force and require Hested to recognize and
bargain with the Union ; and that by reason of such picketing within a period of 12
months following the election of March 18, 1960, the Union has violated Section
8(b) (7) (B ) of the Act.ii
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union , set forth in section III, above , occurring in connection
with 'the operations of Hested , described in section I, above , have a close, intimate,
and substantial relation to trade , traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , I make the following conclusions of law:
1. Hested Stores Company is, and has been at all material times, an employer
within the meaning of Section 2 (2) of the Act.
2. Retail Clerks International Association , Local 57, AFL-CIO, is, and has been
at all material times, a labor organization within the meaning of Section 2(5)
of the Act.
3. Retail Clerks International Association , Local 57, AFL-CIO, is not, and has
not been at any material times, certified as the representative of a unit of Hested
Stores Company 's employees appropriate for the purposes of collective bargaining,
within the meaning of Section 9 of the Act.
4. The election held among employees of Hested Stores Company in Great Falls,
Montana, as found above, was a valid election under Section 9(c) of the Act, within
the meaning of Section 8(b) (7) (B ) of the Act.
5. By picketing with the object of forcing and requiring Hested Stores Company
to recognize and bargain with Retail Clerks International Association , Local 57,
AFL-CIO, as the representative of the said employees , within 12 months following
the said election, as found above , the said Union has engaged in, and is engaging
in, unfair labor practices , within the meaning of Section 8(b)(7)(B ) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
u I am mindful that the conclusion reached here as to the aim of the picketing since
May 3 differs from the holding of the United States District Court for the District of
Montana in Graham v . Retail Clerks International Association ( Heated Stores Co.), 188
F Supp. 847 (D.C. Mont). The cited decision arose from an action brought by the
General Counsel under Section 10 (1) of the Act to enjoin the picketing pending final
adjudication by the Board in this proceeding . Finding that the preelection picketing had
the aim of forcing Heated to recognize the Union , and the employees to accept it, the
court , for'reasons not necessary to describe here, came to the conclusion , which it termed
"not entirely free from doubt," that there was insufficient evidence that the object of
the second picketing was the same as the first. That conclusion is not, upon close in-
spection, irreconcilable with that reached here, for it does not appear from the court's
opinion that it had before it the testimony by Meyer to the effect that the basis upon
which the picketing could be discontinued "would be up to Hested 's," and that the Com-
pany "could probably negotiate" and thereby achieve the removal^of the picket.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO,' Petitioner . Case No. 8-RC-
4599. September 7, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Arthur R. Mattson, hearing
138 NLRB No. 64.
METROPOLITAN LIFE INSURANCE COMPANY 513
officer. The hearing officer's rulings made at the hearing are free
from' prejudicial error and are hereby affirmed.
Upon the entire record' in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) andSection2(6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of debit insurance agents at the Em-
ployer's nine district offices located in the Cleveland, Ohio, metropoli-
tan area. The Employer is in agreement with Petitioner regarding
the unit inclusions and exclusions, but contends that Petitioner's unit
is too limited in scope. The Employer's position is that the only ap-
propriate units in this instance would encompass either: (1) all its
offices in the United States; (2) all offices, in its central territory; or
(3) all its offices in the State of Ohio.
The Employer is engaged in the sale and issuance of various types
of insurance policies and does business throughout the United States
and Canada. It maintains its principal office in New York, New York,
and, for administrative purposes, it has divided its offices throughout
the United States into 14 territorial divisions. Each such division is
headed by a superintendent of agencies who reports directly to a com-
pany vice president. The offices involved in the instant petition are
all located in the Employer's central territory, which encompasses
68 offices in the States of Ohio, Indiana, and West Virginia.
The record discloses that the Employer's operations are highly cen-
tralized. Detailed instructions and procedures are prepared at the
home office which uniformly govern the operations of the district of-
fices and the duties and functions of the agents. No action may be
taken which does not comport with these directives, unless specific
home office approval is obtained. All agents are appointed, initially
trained, and terminated at the home office. All labor relations are cen-
trally conducted and all agents receive uniform wages and fringe ben-
efits. There is no recent bargaining history affecting the employees
sought by the Petitioner,' and no other labor organization seeks a
broader unit than the one requested by the Petitioner.
While there would appear to be factors supporting the appropriate-
ness of the units proposed by the Employer, the question remains
1 Because, in our opinion , the record and briefs adequately set forth the issues and posi-
tions of the parties, the Employer 's request for oral argument is hereby denied.
2 The Employer had a bargaining contract covering a statewide unit in Ohio which
expired in 1949.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether those factors are so compelling as to require a finding that
only such units are appropriate. Bearing in mind that the Board
has recently decided to treat insurance agents the same as any other
group of employees, and to apply its normal unit principles to cases
before it involving employees in the insurance industry,' we now
consider the factors relied upon by Petitioner to support its unit
contention.
The Petitioner's unit would include all six of the Employer's dis-
trict offices located in the city of Cleveland and three suburban offices
situated 8 or 9 miles from the center of the city. Apart from these,
the closest district office is located in Akron, Ohio, and is approxi-
mately 30 miles from the center of Cleveland and 21 miles from the
closest petitioned-for district office. Each district office has a manager
in charge, who is the immediate supervisory authority for the em-
ployees in the office. Agents are required to perform all of their work
through and subject to the general supervision and direction of the
manager of the district office to which they are assigned 4 Most of
a debit agent's time is spent away from the office. However, he is
expected to report to the office 2 days a week. On one of these days,
the manager conducts a meeting to explain to the agents the latest
company directives. The manager may call an agent to the office at
any time in order to review the agent's performance record and to
offer suggestions to him as to how he might improve. While the
manager does not have the authority to terminate an agent's appoint-
ment, he may suggest to the agent that he resign, or he may make
a recommendation to the superintendent of agencies to that effect.
The manager may order an audit of the agent's accounts whenever he
thinks it necessary and, in the event there is a deficiency of $75 or
more in the agent's accounts, the manager is required to suspend him
until further notice. Recruiting for the district office is normally
handled by the manager, who accepts applications, interviews appli-
cants, and orders a retail credit and medical report. The application,
along with the manager's recommendation, is forwarded to the super-
intendent of agencies who makes the final determination. At least
two-thirds of the time the manager's recommendation is followed.
Each district office is visited by the superintendent of agencies on an
average of five times a year. However, the manager maintains fre-
quent communications with the superintendent of agencies' office in
New York. There appears to be no transfer of agents among the dis-
trict offices, and there is no business or social contact among these
agents except on the district office level. Also, bidding for job open-
ings is confined to the district office.
s Quaker City Life Insurance Company, 134 NLRB 960 ( Members Rodgers and Leedom
dissenting).
* The parties have agreed to exclude the managers and assistant managers from the
unit, apparently on the theory that they are supervisors within the meaning of the Act.
METROPOLITAN LIFE INSURANCE COMPANY 515
On the basis of the foregoing, and the entire record, we find that
the individual district office is in effect a separate administrative en-
tity through which the Employer conducts its business operations, and
therefore is inherently appropriate for purposes of collective bargain-
ing. In reaching this conclusion, we rely particularly upon the fact
that each such office is a complete, self-contained operating unit; that
there is a substantial distance between the district offices here involved
and the home office; that each office is in certain respects autonomous
in its day-to-day operations ; that there is separate, immediate super-
vision in each such office ; and that there is no transfer or interchange
among offices." Although we have found that the individual district
offices may constitute separate appropriate units, we do not believe that
such a finding should preclude the grouping of such offices where such
grouping is justified by cogent geographic considerations. There-
fore, as the Petitioner is seeking a unit comprising all of the Em-
ployer's offices in a separate and distinct geographic area in the city
of Cleveland, Ohio, and as there is no recent history of collective
bargaining and no union seeks a broader unit, we find that such a
unit may be appropriate for purposes of collective bargaining.'
Accordingly, we find that the following employees of the Employer's
district offices located in the metropolitan Cleveland, Ohio, area, in-
cluding Brookside, Shaker Heights, Cuyahoga, Forest City, East Side
Office, Euclid, Harvard, Lakewood, and West Side, constitute a unit
appropriate for collective bargaining purposes within the meaning of
Section 9 (b) of the Act :
All canvassing, regular and office account agents of the Employer
selling industrial life insurance and other forms of insurance sold
by the Employer, excluding independent agents, retired agents, Metro-
politan Insurance consultants, managers, assistant managers, cashiers,
clerical employees, secretaries, professional employees, guards, watch-
men, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and LEEDOM, dissenting :
In Quaker City Life Insurance Company, 134 NLRB 960, we ex-
pressed our disagreement with the majority's decision to abandon the
principle adopted by the Board 18 years ago in Metropolitan Life In-
surance Company, 56 NLRB 1635, of avoiding the setting up of units
of insurance agents less than statewide in scope. We adhere to this
position, and, for such reason alone, we would dismiss the instant
petition.
5 Quaker City Life Insurance Company, supra; American Linen Supply Co , Inc., 125,
NLRB 993
6 Cf. The Great Atlantic and Pacific Tea Company , Inc, 128 NLRB 342.
6 623 53-63-vol 138-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from our basic disagreement with our colleagues' abandon-
ment of the principle first announced in the Quaker City case, we do
not believe that the unit sought by the Union here is appropriate. The
unit sought, and the one which our colleagues are finding appropriate,
consists of the debit agents employed in nine different district offices
located in the Greater or Metropolitan Cleveland, Ohio, area. It seems
clear that the only justification for this finding is the geographic loca-
tion of the offices. We believe this to be no reason for granting this
unit. As the majority notes, each of these different district offices
operates independently of another, the debit agents in each have sep-
arate, immediate supervision, there is no contact among the debit
agents of the different offices either on a business or social level. In
our view, the debit agents in these different offices do not have a com-
munity of interest with respect to the unit sought. Thus the unit
which the majority finds appropriate appears to be based upon the
Union's extent of organization of these debit agents.
For the foregoing reasons, we would dismiss the instant petition.
Inland Motor Corporation of Virginia and District 50, United
Mine Workers of America . Case No. 5-CA-1735. September 10,
1962
DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued by the
Board on December 31, 1959 (Case No. 5-RC-2952, not published in
NLRB volumes), an election was conducted on January 27, 1960,
among the Employer's Radford, Virginia, employees. Of the 53
eligible voters, 50 cast valid ballots, of which 25 were for and 22 were
against the Union. There were also three ballots challenged by the
Union on the ground that the challenged voters were supervisors.
As the challenges were sufficient in number to affect the results of
the election, the Regional Director investigated them. On February
29, 1960, he issued his report on challenges in which he recommended
that the challenges to Wagner's and McCoy's ballots be overruled
upon the ground that they were not supervisors, and that the chal-
lenge to Schwichtenberg's ballot be sustained as he was a supervisor.
He recommended further that the ballots of Wagner and McCoy not
be opened and counted as their votes could not affect the outcome of
the election and that the Union be certified as collective-bargaining
representative. The Employer filed timely exceptions to the Regional
Director's recommendation that the challenge to Schwichtenberg's
ballot be sustained and the Union certified, and requested a hearing.
On May 3, 1960, the Board issued a Supplemental Decision and
Certification of Representatives (not published in NLRB volumes)
138 NLRB No. 66.