Metropolitan Life Insurance Co.

National Labor Relations Board - Board DecisionsApr 2, 1963

141 N.L.R.B. 1074 (N.L.R.B. 1963)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the said Teamsters Local No. 959, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organiza- tion , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named or any other labor organization. JOHN STEPP'S FRIENDLY FORD, INC., 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, 327 Logan Building , 500 Union Street, Seattle 4, Washington , Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Case No. 8-CA-2963. April 2, 1963 DECISION AND ORDER On February 18, 1963, Trial Examiner Sidney D. Goldberg 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- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in the case, including the Re- spondent's exceptions, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations.' 1 Although the Intermediate Report does not state the facts upon which the Trial Examiner relied in finding that the Respondent as engaged In commerce within the mean- ing of the Act, we note that the Respondent admitted in its answer that it receives in excess of $50,000 in premiums annually at its principal office in New York State from offices located in other States and that it is engaged in commerce within the meaning of the Act We take notice , moreover , of the fact that the Board has frequently assumed jurisdiction over the Respondent in the past . See, for example, Metropolitan Life In- surance Company, 141 NLRB 337. 141 NLRB No. 96. METROPOLITAN LIFE INSURANCE COMPANY 1075 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modification : Substitute the following for the last paragraph below the signature line of the notice in Appendix A to the Intermediate Report : WE WILL NOT interfere with the efforts of the Insurance Work- ers International Union, AFL-CIO, to negotiate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. MEMBER LEEDOM, dissenting : In the representation case, Metropolitan Life Insurance Company, 138 NLRB 565, which is the predicate for the majority- decision in this case, the dissent indicated my disagreement with the Board's unit finding. I adhere to the position set forth in the dissent and conse- quently I would not find that the Respondent violated the Act by refusing to bargain with respect to what I consider to be an inappro- priate unit. INTERMEDIATE REPORT STATEMENT OF THE CASE In this proceeding, under Section 10(b) of the National Labor Relations Act (29 U.S.C. Sec. 151, et seq., herein called the Act), the complaint 1 alleges that Respondent has refused to bargain with the Charging Party (herein called the Union) as the certified collective-bargaining representative of certain of its employees and that Respondent is thereby violating Section 8 (a) (5) and (1) of the Act. The record herein amply supports the allegations of the complaint. On January 22, 1962,2 the Union requested that Respondent recognize it as the collective-bargaining representative for certain of Respondent's insurance agents attached to the nine district offices in the Cleveland, Ohio, metropolitan area. Respondent refused, stating that the unit designated was inappropriate by reason of its geography. The Union thereupon filed a representation petition (Case No. 8-RC-4599); a hearing thereon was held and the Regional Director transferred the case to the Board for decision. The Board, by decision dated September 7 (138 NLRB 565; Members Rodgers and Leedom dissenting), held that the unit was an appropriate one and directed an election. The Union was designated by a majority of the eligible voters and, on October 12, a certification was duly issued. By letter dated October 22, the Union requested that Respondent meet with a negotiating committee for the purpose of collective bargaining. By letter dated October 29, Respondent restated its position that the unit was inappropriate and declined to meet and the Union filed the charge herein. The complaint thereupon issued and a hearing was held before Trial Examiner Sidney D. Goldberg at Cleveland, Ohio, on January 14, 1963. The General Coun- sel's request that official notice be taken of all the proceedings and briefs in Case No. 8-RC-4599 was granted. No testimony was taken but the Union's written request for a meeting and Respondent's refusal thereof were introduced into evidence .3 Respondent, conceding that it could offer no "newly discovered" or "previously unavailable" evidence on the unit question that was not in the record before the Board in the representation proceeding, moved to dismiss the complaint on the ground that the Board had "acted arbitrarily and capriciously in determining a bargain- 1 Issued November 26, 1962, on a charge filed November 5, 1962. z All dates not otherwise designated are in 1962. 3 Typographical errors in the transcript of proceedings are hereby corrected as set forth in Appendix B. 708-006-64-vol . 141-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing unit which was clearly inappropriate under Section 9(a) of the Act" and that the Board's determination of the unit "was controlled by the extent to which the employees have organized, in violation of Section 9(c) (5) of the Act." Respondent also moved, on the same grounds, to revoke the certification of the Union. These motions were denied. As the Supreme Court has stated: "The unit proceed ing and this complaint on unfair labor practices are really one." (Pittsburgh Plate Glass Company v. NLRB., 313 U S. 146, 158.) Accordingly, it is fundamental that, absent newly discovered evidence, the issue previously decided herein by the Board may not be relitigated in this proceeding 4 On the basis of the entire record in this case, including the representation proceed- ing, I make the following: FINDINGS OF FACT 1. Respondent, a New York corporation engaged in the sale of life insurance throughout the United States and Canada, maintains a number of offices in the Cleveland, Ohio, metropolitan area. 2. The Union is a labor organization. 3. Upon a petition for certification of representatives, filed by the Union on January 18, 1962, the Board, on September 7, 1962, issued a Decision and Direction of Election holding that: . . . the following employees of the Employer's [Respondent's] district offices located in the metropolitan Cleveland, Ohio area, including 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, Metropolitan Insurance consultants, managers, assistant managers, cashiers, clerical employees, secretaries, profes- sional employees, guards, watchmen and all supervisors as defined in the Act. 4. On October 5, 1962, a majority of Respondent's employees in the unit above set forth designated the Union as their representative for the purpose of collective bar- gaining and the Union was, on October 12, 1962, duly certified as such collective- bargaining representative. 5. Since October 12, 1962, the Union has been and is the representative for the purposes of collective bargaining of the employees of Respondent in the unit set forth above. 6. Since on or about October 22, 1962, the Union has requested, and continues to request, that Respondent bargain collectively with it as the representative of the employees in the unit set forth above but since on or about October 29, 1962, Re- spondent has refused, and continues to refuse, so to bargain. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE Respondent's said refusal to bargain with the Union, occurring in connection with the operations of Respondent as set forth herein, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Respondent having conceded that it has refused and is refusing to bargain collec- tively with the Union as the exclusive representative of its employees and, it being found herein that the unit involved is an appropriate unit and that Respondent has thereby engaged in unfair labor practices, I shall recommend that Respondent, upon request, bargain collectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Employer is engaged in commerce and the Union is a labor organization within the meaning of the Act. 4 N L R B. v West Kentucky Coal Company, 152 F. 2d 198 , 209 (C.A. (I) ; N.L R.B v. American Steel Buck Corp ., 227 F. 2d 927, 929 ( C A. 2) ; Air Control Products of St. Petersburg , Inc, 139 NLRB 413; Esquire , Inc (Coronet Instructional Films Division), 109 NLRB 530 , 538-539, enfd. 222 F. 2d 253 (C.A. 7) ; The Baker and Taylor Co, 109 NLRB 245. METROPOLITAN LIFE INSURANCE COMPANY 1077 2. The following employees of Respondent's district offices located in the Metro- politan Cleveland, Ohio, area, including Brookside, Shaker Heights, Cuyahoga, Forest City, East Side Office, Euclid, Harvard, Lakewood, and West Side: All can- vassing, 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, Metropolitan Insurance consultants, managers, assistant man- agers, cashiers, clerical employees, secretaries, professional employees, guards, watch- men, and all supervisors as defined in the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. 3. At all times since October 12, 1962, the Union has been the exclusive representa- tive of all employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit on October 29, 1962, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Metropolitan Life Insurance Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Insurance Workers International Union, AFL-CIO, as the exclusive representative of its employees at its Brookside, Shaker Heights, Cuyahoga, Forest City, East Side Office, Euclid, Harvard, Lakewood, and West Side district offices in the Cleveland, Ohio, metropolitan area in the appropriate unit described below: All canvassing, regular, and office account agents of the Employer selling in- dustrial life insurance and other forms of insurance sold by the Employer, ex- cluding independent agents, retired agents, Metropolitan Insurance consultants, managers, assistant managers, cashiers, clerical employees, secretaries, profes- sional employees, guards, watchmen, and all supervisors defined in the Act. (b) Interfering with the efforts of the Insurance Workers International Union, AFL-CIO, to negotiate for or represent the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Insurance Workers International Union, AFL-CIO, as the exclusive bargaining agent in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement (b) Post at its Brookside, Shaker Heights, Cuyahoga, Forest City, East Side Office, Euclid, Harvard, Lakewood, and West Side district offices in the Cleveland, Ohio, metropolitan area, copies of the attached notice marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after having been duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the said Regional Director for the Eighth Region, in writing, within 'In 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 of enforcement of the Board's Order 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." 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20 days of the receipt of the Intermediate Report and Recommended - Order, what steps it has taken to comply herewith.6 6In 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 " APPENDIX A 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 Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Insurance Workers Inter- national Union, AFL-CIO, as the exclusive bargaining representative of all employees at the Brookside, Shaker Heights, Cuyahoga, Forest City, East Side Office, Euclid, Harvard, Lakewood, and West Side district offices in the Cleve- land , Ohio, metropolitan area , in the bargaining unit described below concern- ing wages , rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached , embody it in a signed agreement- The bargaining unit is: All canvassing, regular, and office account agents selling industrial life insurance and other forms of insurance sold by the Company, but exclud- ing independent agents, retired agents, Metropolitan Insurance consultants, managers , assistant managers , cashiers, clerical employees , secretaries, professional employees , guards, watchmen, and all supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid , nor will we, in any 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, Empl ?yer. 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 communiacte directly with the Board' s Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. APPENDIX B CORRECTIONS TO TRANSCRIPT OF PROCEEDINGS Page 1, line 18 should read "Mr. MARVIN DICKER ( Proskauer , Rose, Goetz & Mendelsohn." Page 3, lines 8 and 9, "their appearances sheets" should be "the appearance sheet." Page 4, line 3 should read "appropriate order, an objection and exception, will be per"; line 9 , "permit-" should be "submit-"; line 10, "being" should be "been"; line 14, "all" should be "oral." Page 5, line 20, "issues" should be "issuance." Page 6 , line 2 , "in pleadings" should be "in the pleadings"; line 7 should read "out of the pleadings is the reason for the Respondent 's refusal to recognize the Union as the"; line 10 should read "pleadings"? "It seems to me that many a paragraph otherwise unobjectionable." Page 7, line 8, "and the" should be "numbered"; line 12 should read "of a single phrase in a paragraph to bring about the denial of the." Page 8, lines 6 to 9 should read "to skip a great deal of the material concerning the organization and the duties of the managers of the various kinds-I'm bound by everything in that." Page 10, line 16 should read "Mr. DICKER: I stipulate we received it on or about. UNITED STATES ALUMINUM CORP. 1079 Page 12 , line 7 , "union" should be "unit"; line 18 should read "TRIAL EXAMINER: The motions will be denied . Is there." Page 13 , lines 7 and 8 should read "Mr. GRONER : That the Board has petitioned for an order before the Fourth Circuit and the case was argued , I"; line 10 strike out -not." Page 14, lines 13 to 16 should read "TRIAL EXAMINER : No newly discovered and not previously available evidence that you want to present ? (No answer .) So I guess That about completes it: it took us only 32 minutes." United States Aluminum Corp . and Delbert Markley, Jr. Case No. 21-CA-4924. April 2, 1963 DECISION AND ORDER On January 21, 1963, Trial Examiner Wallace E. Royster 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- mediate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at thehearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 1 The General Counsel has excepted to the Trial Examiner 's failure to make additional findings with respect to certain statements made by President Linder and Superintendent Bernard to the discriminatees which would buttress his conclusion that Respondent vio- lated Section 8(a) (3) of the Act. As these findings would merely be cumulative , we over- rule the General Counsel 's exceptions. 2 For the reasons set forth in the dissenting opinion In Isis Plumbing & Heating Co., 138 NLRB 716 , Member Rodgers would not award interest on backpay. The note below the signature line at the bottom of the page in the Appendix is hereby modified to read: Nora.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. 141 NLRB No. 95.