Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Mar 11, 1963

141 N.L.R.B. 337 (N.L.R.B. 1963)

METROPOLITAN LIFE INSURANCE COMPANY
V. THE REMEDY
337
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Trial Examiner has found that the Respondent has refused to bargain with
the Union as the exclusive representative of the employees in the appropriate unit.
It will therefore be recommended that, upon request, Respondent bargain collectively
with the Union as the exclusive representative of its employees in the appropriate
unit and that such bargaining take place in St. Louis, Missouri . If an understanding
is reached, such understanding is to be embodied in a signed agreement . Further,
Respondent is to grant to authorized NMU patrolmen access to the Eleanor Gordon
under the same blanket insurance policy with limits of $25 ,000/$50,000, as has
proved satisfactory to all other shipping companies with agreements with NMU.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Mid-America Transportation Company is an employer within the meaning of
Section 2 ( 2) of the Act , and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. National Maritime Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All unlicensed employees of Respondent 's towboat , Eleanor Gordon, excluding
masters, mates , pilots, chief engineers , assistant engineers , office clerical employees,
guards, professional employees , and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. On February 28, 1962, and at all times material thereafter , NMU was and now
is the exclusive representative of Respondent 's employees in the said appropriate unit
for the purpose of collective bargaining within the meaning of Section 9(a) of the
Act.
5. By its adamant insistence on and after April 3, 1962, that negotiations between
Respondent and NMU take place only in the State of Tennessee and by insisting upon
unnecessary and unreasonable conditions for granting permission to union patrol-
men to board the Eleanor Gordon on and after May 11 , 1962 , Respondent has re-
fused to bargain with the Union as the exclusive representative of all its employees
in the above -described appropriate unit , and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (5) of the Act.
6. By the conduct described in paragraph 5, above, Respondent has interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act , and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 4-CA-2769. March
11, 1963
DECISION AND ORDER
On January 7, 1963, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
141 NLRB No. 37.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Respondent's exceptions, and
the entire record in this case, and hereby adopts the findings, conclu-
sions , and recommendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications :
Substitute the following for paragraph 1(b) of the Recommended
Order: "Interfering with the efforts of the Insurance Workers Inter-
national Union, AFL-CIO, to negotiate for or represent the em-
ployees in the said appropriate unit as the exclusive bargaining agent."
Substitute the following for the last paragraph of the Appendix to
the Intermediate Report :
WE WILL NOT interfere with the efforts of the Insurance Work-
ers international Union, AFL-CIO, to negctiate for or represent
the employees in the said appropriate unit as the exclusive bar-
gaining agent.
MEMBERS RODGERS and LEEDOM, dissenting :
In our dissenting opinion in the representation proceeding which
underlies this complaint case, 138 NLRB 565, we indicated that we
would have found inappropriate the unit that the Union was seeking.
We adhere to our views there expressed, and would accordingly dis-
miss the instant complaint.
I As set forth in footnote 1 of the Intermediate Report, at the hearing Respondent and
the Union indicated their intention to move the Board to amend the unit description herein
for purposes of clarification . However, no such motion has been received by the Board
and no exception was taken to the Trial Examiner 's denial of Respondent 's motion made
to him.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed October 29, 1962, by Insurance Workers International Union,
AFL-CIO, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Fourth Region , issued a complaint on November 9, 1962,
alleging that Metropolitan Life Insurance Company, Respondent herein , refused to
bargain collectively with the Union , the certified majority representative of Respond-
ent's employees in an appropriate bargaining unit . Respondent admits that it has
refused to bargain with the Union but contends that the Union was not properly
certified , in that the unit found by the Board in the representation proceeding, Case
No. 4-RC-4865 , was not an appropriate unit.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel M.
Singer in Philadelphia , Pennsylvania , on December 17, 1962. All parties were rep-
resented by counsel and were afforded full opportunity to be heard and to adduce
evidence.
METROPOLITAN LIFE INSURANCE COMPANY 339
Upon the entire record in the case, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal office in New York City,
is engaged in the business of selling various types of insurance throughout the United
States and Canada, including the State of Delaware Among its numerous offices,
Respondent maintains two district offices in the Metropolitan Wilmington, Dela-
ware, area which are involved in this proceeding. During the past year, a repre-
sentative period, Respondent, in the course and conduct of its business operations,
derived an income in excess of $1,000,000, of which more than $50,000 (derived
from premiums collected within the State of Delaware) was remitted from its
Delaware offices.
Upon the foregoing facts, Respondent concedes, and I find, that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Insurance Workers International Union, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Upon a petition for certification filed by the Union in Case No. 4-RC-4865, and
after a hearing held on March 20 and 21, 1962, the Board on September 13, 1962,
issued a Decision and Direction of Election (138 NLRB 565) in which it directed
an election in a unit consisting of certain employees i at Respondent's two district
offices (Brandywine and Kirkwood) in the Metropolitan Wilmington area. On
October 5, 1962, in an election by secret ballot conducted under the supervision of
the Regional Director for the Fourth Region, a majority of the employees selected
the Union as their representative, and on October 15, 1962, the Regional Director
certified the Union as the exclusive bargaining representative of the employees in
the appropriate unit.
The complaint alleges that commencing on or about October 17, 1962, and con-
tinuing to date, the Union has requested Respondent to bargain with it as the statu-
tory bargaining representative of the employees in the unit found appropriate above
but that Respondent has since on or about October 25, 1962, refused to
bargain with it. Respondent in its answer admits its refusal to bargain with
the Union, contending, by way of "affirmative" defenses, that the unit estab-
lished by the Board is not appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act; and that the Board, contrary to the mandate
of Section 9(c) (5) of the Act, gave "controlling effect to the extent to which the
employees had organized" in determining the appropriate unit. Respondent at the
hearing renewed these contentions, explaining that its objections are predicated on
the geographical extent of the unit established by the Board and adding that the
Board, by reason of establishing an "inappropriate" geographical unit, acted arbi-
trarily and capriciously. However, Respondent conceded that its contentions have
been raised previously in the representation proceeding, that they have been con-
sidered by the Board, and that they have been decided adversely to it. Respondent
did not seek to offer any new evidence and neither Respondent, nor any other party,
called any witnesses.
1 The unit consists of: "All debit insurance agents, including all canvassing regular and
office account agents selling industrial life insurance and other forms of insurance sold
by the Company, but excluding independent agents, retired agents, Metropolitan Insurance
consultants, managers, assistant managers, cashiers, clerical employees, secretaries, pro-
fessional employees, guards, watchmen and supervisors as defined in the Act "
In the instant complaint hearing, Respondent moved to amend the above unit descrip-
tion by including certain "clarifying" language which, it was claimed, was Inadvertently
omitted by the Board. Although the Union joined in the motion and the General Counsel
did not specifically object thereto, I denied the motion on the ground that I considered
myself without authority to amend the unit description in the Board's Decision and
Direction of Election. The parties thereafter indicated that they would file a joint motion
directly with the Board. Pending the Board's ruling on the proposed motion, I must find
that the unit as hereinbefore set forth Is the appropriate bargaining unit.
708-006-64-vol. 141-23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The law is settled that, absent newly discovered evidence, the issues raised and
determined in the prior representation proceeding may not be relitigated in the
complaint proceeding, Pittsburgh Plate Glass Company v. N L.R.B., 313 U S. 146,
157-158; N.L.R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2);
N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3); N.L.R.B. v. West
Kentucky Coal Company, 152 F. 2d 198, 200-201 (C A. 6), cert. denied 328 U.S.
866; Quaker City Life Insurance Company, 138 NLRB 61 It is equally clear that
as an Examiner of the Board, I am bound by the Board's earlier unit determination
and the ensuing certification. West Kentucky Coal Co., supra, 152 F. 2d at p. 201;
Air Control Products of St. Petersburg, Inc., 139 NLRB 413; Esquire, Inc, 109
NLRB 530, 539, enfd. 222 F. 2d 253 (C.A. 7).
Accordingly, on the basis of the Board's prior determination in the representation
proceeding, I find and conclude that during all times material herein, the Union has
been, and now is, the certified collective-bargaining representative of Respondent's
employees in the appropriate unit hereinbefore described. I further find and con-
clude that Respondent has, since October 25, 1962, refused to bargain collectively
with the Union as the exclusive representative of its employees in the unit; and that
Respondent by such refusal has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and, derivatively, also Section 8(a)(1) of
the Act.
On the basis of the foregoing and upon the entire record in this and the repre-
sentation proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the
following:
RECOMMENDED ORDER
Metropolitan Life Insurance Company, its agents, officers, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Insurance Workers International Union,
AFL-CIO, as the duly certified exclusive bargaining representative of its employees
at its Brandywine and Kirkwood district offices in the Metropolitan Wilmington,
Delaware, area, in the following unit:
All debit insurance agents, including all canvassing regular and office account
agents selling industrial life insurance and other forms of insurance sold by the
Company, but excluding independent agents, retired agents, Metropolitan Insurance
consultants, managers, secretaries, assistant managers, cashiers, clerical employees,
professional employees, guards, watchmen, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to bargain collectively through said Union,
or any other labor organization of their own choosing.
2. Take the following affirmative action, which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the said certified Union as the exclu-
sive representative of the employees in the appropriate unit described above, with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and, if an agreement is reached, embody it in a signed contract.
(b) Post at its Brandywine and Kirkwood district offices, in the Metropolitan
Wilmington, Delaware, area, copies of the attached notice marked "Appendix." 2
Copies of the said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by Respondent's representative, be posted by it
immediately upon receipt thereof and 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 Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director for the Fourth Region, in writing, within
20 days of the receipt of the Intermediate Report and Recommended Order, what
steps it has taken to comply herewith?
2In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
JOINT COUNCIL OF TEAMSTERS NO. 38, ET AL., ETC. 341
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL bargain collectively , upon request, with Insurance Workers Interna-
tional Union, AFL-CIO, as the exclusive bargaining representative of all
employees at the Brandywine and Kirkwood district offices in the Metropolitan
Wilmington , Delaware, area , in the bargaining unit described below concerning
wages, rates of pay, hours of employment , and other conditions of employment.
and, if an understanding is reached , embody it in a signed agreement. The
bargaining unit is:
All debit insurance agents, including all canvassing regular and office
account agents selling industrial life insurance and other forms of insurance
sold by the Company , but excluding independent agents, retired agents,
Metropolitan Insurance consultants , managers, assistant managers , cashiers,
clerical employees , secretaries , professional employees , guards, watchmen,
and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively as aforesaid , nor will we , In ariy
like or related manner , interfere with , restrain , or coerce our employees in the
exercise of their right to bargain collectively through said Union.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia 7, Pennsylvania,
Telephone No. Pennypacker 5-2612, if they have any question concerning this
notice or compliance with its provisions.
Joint Council of Teamsters No. 38 , et al., Arden Farms Co., et al.
and California Association of Employers . Case No. 20-CE-10-
March 11, 1963
DECISION AND ORDER
On August 15, 1962, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent Unions and the Re-
spondent Employers 1 filed exceptions to the Intermediate Report
and supporting briefs 2
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
1 The Respondent Unions and Respondent Employers are listed in the attached Schedules
"A" and "B," respectively.
3 The Respondent Unions ' request for oral argument is denied as the record , exceptions,
and briefs adequately present the issues and positions of the parties.
141 NLRB No. 14.