Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Apr 20, 1964

146 N.L.R.B. 967 (N.L.R.B. 1964)

METROPOLITAN LIFE INSURANCE COMPANY , 967
Telephone No. 751-5500, 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-3338. April 20,
1964
DECISION AND ORDER
On February 4, 1964, Trial Examiner Abraham H. Mailer issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Decision.
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 Mem-
bers Fanning 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 Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the 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 We note that in the representation proceeding herein, the Regional Director , in finding
appropriate the scope of the unit in question, relied on the record of proceedings in an
earlier case involving this Respondent (Metropolitan Life Insurance Company, 138 NLRB
565), which record, by stipulation of the parties , was incorporated in the record of the
present proceeding and made a part thereof. The parties agreed that the factual and
legal issues in the proceeding were essentially similar to those in the earlier case. In that
case, in finding appropriate for collective -bargaining purposes a unit composed of debit
agents limited to Respondent 's district offices located in a separate and distinct geographic
area, the Board relied among other elements on the facts that the agents in each district
office were under the direct supervision of the district manager, that virtually no inter-
change or other contact took place between agents of different districts and that each
district office was a separate administrative entity through which Respondent conducted
its business . In view of its earlier findings in the representation case, the Board sub-
sequently found that the Respondent violated Section 8 (a) (5) by refusing to bargain
with the union certified as the exclusive bargaining agent in such appropriate unit. See
Metropolitan Life Insurance Company, 141 NLRB 337 , enfd. 328 F . 2d 820 (C.A. 3).
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent, Metropolitan Life Insurance Company, its officers, agents, suc-
cessors, and assigns, shall:
146 NLRB No. 113.
'968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 12, 1963, by Insurance Workers International
Union, AFL-CIO, herein called the Union, the Regional Director for the Eighth
Region of the National Labor Relations Board, herein called ,the Board, issued a
complaint on behalf of the General Counsel of the Board on,December 6, 1963,
against Metropolitan Life Insurance Company, herein variously called the Respondent
or the Employer. In substance, the complaint alleged:
(1) That all Metropolitan insurance consultants and all canvassing agents and
regular and office account agents of the Respondent in its Toledo district offices and
its detached offices located in the Toledo area, excluding retired agents, managers,
assistant managers cashiers, clerical employees, secretaries, professional employees,
guards, watchmen, and supervisors as defined in the Act, constitute an appropriate
unit for purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
(2) That on or about September 27, 1963, a majority of the employees of the
Respondent in said unit, in a secret election conducted under the supervision of the
Regional Director of the Thirteenth Region of the Board, designated and selected
the Union as their representative for purposes of collective bargaining with the
Respondent.
(3) That on or about October 7, 1963, said Regional Director certified the Union
as the exclusive bargaining representative of the employees in said unit.
(4) That since on or about October 14, 1963, and continuing thereafter, the Union
has requested the Respondent to bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in said unit.
(5) That commencing on or about October 23, 1963, and at all times thereafter,
the Respondent refused, and continues to refuse, to recognize or bargain collectively
with the Union as the exclusive collective-bargaining representative of all the em-
ployees in said unit.
(6) That by such conduct, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
The Respondent's answer, as amended, by failing to deny them, admits the allega-
tions of the complaint as to the Union's filing and service of the charge, the corporate
status and nature and extent of the Respondent's business as it affects commerce,
and the status of the Union as a labor organization. The answer admits that a
secret ballot election was conducted in the unit as set forth in the complaint; that
the Union received a majority of the ballots at said election; that the Regional Di-
rector for the Thirteenth Region certified the Union as the bargaining representative
of the employees in said unit; that the Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bargaining representative of the em-
ployees in said unit; and' that the Respondent has refused to bargain collectively
with the Union as the representative of the employees in said unit. The Respondent
denies generally all other allegations of the complaint, including those relating to
the appropriateness of the bargaining unit, the status of the Union as exclusive repre-
sentative of all employees in said unit, and the commission by the Respondent of
any unfair labor practices within the meaning of the Act. As affirmative defenses,
the Respondent alleges that: (1) the unit does not constitute a unit appropriate for
collective-bargaining purposes within the meaning of Section 9(b) of the Act, and
(2) the Board violated Section 9(c)(5) of the Act in determining that the unit
was an appropriate unit for collective-bargaining purposes by giving controlling
effect to the extent to which the employees had organized.
On January 9,• 1964, counsel for the General Counsel filed and served a motion
for judgment on the pleadings In support of his motion, he contends that the Re-
spondent's answer has admitted all the material allegations of the complaint and that
the affirmative defenses pleaded by the Respondent, i e., that the Board's unit finding
is inappropriate and is based upon the Union's extent of organization, have been
raised and/or litigated at various stages of the representation proceeding, and, there-
fore, the Respondent is foreclosed from raising said issues in the instant proceeding
and that the Trial Examiner is bound by the Board's ruling in the representation
. METROPOLITAN LIFE INSURANCE COMPANY 969
proceeding and ensuing certification.' Accordingly, he requests that the allegations
in the complaint be found to be true and tliaf the Trial Examiner make findings of fact
and conclusions of law based on said allegation.
The motion was referred to me by the Chief Trial Examiner. On January 14,
1964, I issued and caused to be served upon all the parties, a telegraphic order direct-
ing the Respondent, on or before January 21, 1964, to state ,what, if any, newly dis-
covered evidence or other evidence unavailable at the time of the representation
proceeding it intended to present at a hearing in the instant proceeding, and to show
such other cause, if any it had, why the motion for judgment on the pleadings should
not be granted.
On January 15, 1964, Respondent filed an opposition to the General Counsel's
motion and a cross-motion for judgment on the pleadings. In its document, the
Respondent alleges that the Board has acted arbitrarily and capriciously in deter-
mining a bargaining unit which is inappropriate under Section 9 of the Act; that
the Board's unit determination was controlled by the extent to which the employees
had organized, in violation of Section 9(c)(5) of the Act; and that the Board's
inclusion of Metropolitan insurance consultants in a unit of agents is arbitrary and
.capricious because, as the evidence in the representation proceeding demonstrates,
the Union cannot and will not fairly represent these employees. For the foregoing
reasons, the Respondent moves the Board to dismiss the complaint and to revoke
,the certification of the Union.
On January 16, 1964, counsel for the Union filed and served a motiori,for judgment
on the pleadings, adopting the grounds stated in the motion filed by the counsel for
the General Counsel. '
On January 23, 1964, I issued and served upon all parties a telegraphic order
canceling the hearing of the instant proceeding, which had been set for January 27,
1964, and vacating and setting aside the notice of bearing, because it appeared to
me from the motion papers filed by all the parties that there are no issues of fact,
offers of evidence, or arguments on the merits other than those previously presented
to and decided by the Board in the representation proceeding. I further advised
the parties that my rulings on the aforesaid motions and my Decision, including
findings of fact and conclusions of law, were being prepared and would be filed and
served in due course.
Rulings on Motions
The issue of the appropriateness of the bargaining unit has already been admittedly
litigated by the parties and decided by the Board in the representation proceeding.
It is well settled that, absent newly discovered evidence, the issues raised and deter-
mined in the prior representation proceeding may not be relitigated in the com-
plaint 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);
Metropolitan Life Insurance Company, 141 NLRB 1074; Metropolitan Life Insurance
Company, 141 NLRB 337. There is therefore no reason or justification for relitigat-
ing the issue in the instant proceeding. • Moreover, it is equally clear that, as a Trial
Examiner of the Board, I am bound by the Board's earlier unit determination and
the ensuing certification. Metropolitan Life Insurance Company, 141 NLRB 337;
Metropolitan Life Insurance Company, 142 NLRB 491; Air Control Products of St.
Petersburg, Inc., 139 NLRB 413. Accordingly, I now grant the motions of the
counsel for the General Counsel and of the Union for judgment on the pleadings
and deny the cross-motion of the Respondent to dismiss the complaint and to revoke
'the certification of the Union.
FINDINGS AND CONCLUSIONS
Since the allegations of the complaint with respect to the appropriateness of the
unit are supported and based upon the Board's decision in the representation case
1 Neither the motion nor the pleadings subsequently filed in the instant proceeding, all
of which are based upon the representation proceeding, identifies the representation pro-
ceeding by number. The Union's charge, attached to the complaint, identifies. the repre-
sentation proceeding as Case No. 13-RC-9130. I have Inspected the file of that proceeding
and have determined that it is, in fact, the representation proceeding to which all of the
moving papers in the instant proceeding refer. I have taken official notice of that
proceeding
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Case No. 13-RC-9130), and since all the other material factual allegations of the
complaint are expressly admitted or are admitted by the Respondent's failure to deny
them, I make the following findings of fact, conclusions of law, and Recommended
Order:
1. Respondent is now, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of New York,
with its principal office and place of business located in New York, New York, and
is engaged in the sale and issuance of life insurance, industrial insurance, and per-
sonal health insurance in the several States of the United States, including, but not
limited to, the States of Ohio, Indiana, and West Virginia. In the course and con-
duct of its business, Respondent annually receives money in excess of $50,000 at
its principal office in the State of New York, which money is forwarded from district
offices located in the States of the United States other than the State of New York
and which further represents premiums for the sale of insurance.
2. Respondent is now, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. The Union is now, and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
4. All Metropolitan insurance consultants and all canvassing agents and regular
and office account agents of the Employer at the district offices and detached offices
in the Toledo, Ohio, area, but excluding retired agents, managers, assistant managers,
cashiers, clerical employees, secretaries, professional employees, guards, watchmen,
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 .2
5: On or about September 27, 1963, a majority of the employees of the Respond-
ent in said unit, by a secret ballot election conducted under the supervision of the
Regional Director of the Thirteenth Region of the Board, designated and selected
the Union as their representative for the purposes of collective bargaining with the
Respondent, and on or about October 7, 1963, said Regional Director certified the
Union as the exclusive collective-bargaining representative of the employees in said
unit.
6. Since on or about October 7, 1963, the Union has been and is the exclusive
representative of all the employees in said unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, and other terms
and conditions of employment.
7. Since on or about October 14, 1963, the Union has requested, and is request-
ing, Respondent to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment as the exclusive
collective-bargaining representative of all of the employees of Respondent in said unit.
8. Since on or about October 23, 1963, Respondent has refused, and continues to
refuse, to recognize or bargain collectively with the Union as the exclusive collective-
bargaining representative of all the employees in the said unit and has refused and
continues to refuse to meet, negotiate, and discuss with the union matters with re-
spect to rates of pay, wages, hours of employment, and other terms and conditions
of employment, notwithstanding that the Union was at the time duly designated and
certified as the exclusive collective-bargaining representative of the Respondent's
employees in said unit.
9. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit on October 23, 1963, and there-
after, the Respondent 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.
10. The activities of the Respondent, set forth above, occurring in connection with
the business operations of the Respondent, described 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 thereof.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (5) and (1) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
2 The foregoing description of the appropriate unit is the one set forth in the certifica-
tion of representative in Case No. 13-RC-9130 . It differs slightly in wording , though not
in substance , from the description of the unit set forth in the complaint.
METROPOLITAN -LIFE INSURANCE COMPANY 971
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Metropolitan Life
Insurance Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
,(a) Refusing to bargain collectively concerning rates of pay, wages, hours, and
other terms and conditions of employment, with Insurance Workers International
Union, AFL-CIO, as the duly certified exclusive bargaining representative of all
employees in the following appropriate unit:
All Metropolitan insurance consultants and all canvassing agents and regular and
office account agents of the Employer at the district offices and detached offices in
the Toledo, Ohio, area, but excluding retired agents, managers, assistant man-
agers, cashiers, clerical employees, secretaries, 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 ex-
clusive representative of all 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 Toledo district offices and its detached offices located in the Toledo
area, copies of the attached notice marked "Appendix." 3 Copies of said notice, to
be furnished by the Regional Director for the Eighth Region, shall, after being duly
signed by Respondent's representative, be posted by it immediately upon receipt
thereof, and be 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writing, within- 20
days of the receipt of this Decision, what steps it has taken to comply herewith .4
$ 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 that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to thr Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
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 in the bargaining unit described below concerning rates of pay, wages,
hours of employment, and other conditions of employment, and, if an under-
standing is reached, embody it in a signed agreement. The bargaining unit is:
All Metropolitan insurance consultants and all canvassing, agents and
regular and office account agents of the Employer at the district offices
and detached offices in the Toledo, Ohio, area, but excluding retired agents,
managers, assistant managers, cashiers, clerical employees, secretaries, pro-
fessional employees, guards, watchmen, and supervisors as defined in the
Act.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the right to bargain collectively through the said Union, or any
other labor organization of their own choosing.
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, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No.
Main 1 -4465, 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. 13-CA-5981. April
20, 1964
DECISION AND ORDER
On February 20, 1964, Trial Examiner Samuel Ross issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision.
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 [Members Leedom, Fanning, 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 Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
1 We note that in the representation proceeding herein, the parties Incorporated by
reference and made a part thereof the record in a prior proceeding involving the same
parties ( Metropolitan Life Insurance Company, 138 NLRB 565 ). The parties agreed that,
with respect to the scope of the unit, the factual and legal issues were essentially similar
to those In the earlier case . In that case , In finding appropriate for collective-bargaining
purposes a unit composed of debit agents limited to Respondent 's district offices located in
a separate and distinct geographic area, the Board relied among other elements on the
facts that the agents in each district office were under the direct supervision of the district
manager, that virtually no interchange or other contact took place between agents of differ-
ent districts , and that each district office was a separate administrative entity through
which Respondent conducted its business . In view of its earlier findings in the representa-
tion case, the Board subsequently found that the Respondent violated Section 8 ( a) (5) by
refusing to bargain with the union certified as the exclusive bargaining agent in such
appropriate unit. See Metropolitan Life Insurance Co., 141 NLRB 337, enfd. 141 V. 2r1
337 (C.A. 3).
146 NLRB No. 116.