Metropolitan Life Insurance Co.

National Labor Relations Board - Board Decisions

Sep 30, 1964

148 N.L.R.B. 1471 (N.L.R.B. 1964)

METROPOLITAN LIFE INSURANCE COMPANY 1471
[Text of Direction of Election omitted from publication.]
[The Board dismissed the petition filed by Dalmar Ranch Market.]
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 13-CA-6367. Sep-
tember 30, 1964
DECISION AND ORDER
On July 21, 1964, Trial Examiner William F. Scharnikow issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing 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 Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's 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 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 In-
termediate Report and the entire record in the case, including the
Respondent's exceptions, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act
the Board adopts as its order the Recommended Order of the Trial
Examiner, with the following modifications :
1. Add the following paragraph 1(b) to the Recommended Order:
"1(b) Interfering with the efforts of the Insurance Workers Inter-
national Union, AFL-CIO, to negotiate for or represent the employ-
ees in the said appropriate unit as the exclusive bargaining agent."
2. Add the following as the third indented paragraph of the notice
in the Appendix to the Trial Examiner's Decision.
• WE WILL NOT interfere with the efforts of the Insurance Work-
ers International Union, AFL-CIO, to negotiate for or represent
as exclusive bargaining agent the employees in the bargaining
unit described above.
148 NLRB No. 145.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER LEEDOM, dissenting :
In the representation case, Metropolitan Life Insurance Company,
13-RC-9768, which is the predicate for the majority decision in this
case, the Regional Director found that a single-office unit of insurance
agents was appropriate for the purpose of collective bargaining, and
the Board denied a request for review of that decision. I adhere,
however, to the position set forth in the dissent in Quaker City Life
Insurance Company 1 and other cases,2 that a unit of insurance agents
less than statewide in scope is inappropriate. Consequently, I would
not find that the Respondent herein violated the Act by refusing to
bargain 'with respect to what I consider to be an inappropriate unit.
1 134 NLRB 960, 138 NLRB 61
2 See, for example , Metropolitan Life Insurance Cornpany, 138 NLRB 512
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 1, 1964, the complaint in the present case was issued against, and served
upon the Respondent, Metropolitan Life Insurance Company, on the basis of charges
filed and served upon the Respondent on April 23 and 25, 1964, respectively, by
Insurance Workers International Union, AFL-CIO, herein called the Union. The
complaint alleges in substance that on and since February 24, 1964, the Respondent
has committed unfair labor practices affecting commerce within the meaning of
Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act,
as amended, 29 U S.C. Sec. 151 et seq. (herein called the Act), by refusing to bar-
gain collectively with the Union which had been certified by the Board's Regional
Director on February 5, 1964, as the exclusive collective-bargaining representative
of the Respondent 's employees in an appropriate bargaining unit, in accordance with
the vote of a majority of these employees in an election by secret ballot conducted
by the said Regional Director on January 24, 1964.
In its answer to the complaint , the Respondent (a) by its silence with respect
thereto, admits certain allegations of the complaint setting forth the Union 's filing
and the service of its 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; and (b) expressly admits that the Union received a majority of the
ballots in the election conducted by the Regional Director in the employee -unit de-
scribed in the complaint ; that the Regional Director certified the Union as bargaining
representative of the employees in this unit ; and that on or about February 18, 1964,
the Union requested, but on or about February 24, 1964, the Respondent refused, to
bargain collectively with the Union as the representative of the employees in said
unit. The Respondent , however, generally denies all other allegations of the com-
plaint, including those relating to the appropriateness of the bargaining unit described
in the complaint , the status of the Union as exclusive representative of all the em-
ployees in this unit, and the commission by the Respondent of any unfair labor prac-
tices within the meaning of the Act . Finally, as affirmative defenses , the Respondent
also expressly denies that the bargaining unit described in the complaint constitutes
a unit appropriate for collective bargaining purposes within the meaning of Section
9(b) of the Act, and asserts that "The National Labor Relations Board violated
Section 9(c)(5) of the Act in determining that the unit described in ... the Com-
plaint was an appropriate unit for collective bargaining purposes by giving controlling
effect to the extent to which the employees had organized."
On June 23 , 1964, the General Counsel filed and served upon the Respondent a
motion for judgment on the pleadings . In support of his motion , the General Coun-
sel summarized the essential allegations of the complaint and the Respondent's an-
swer, and added a further allegation that on December 19, 1963, the Regional Direc-
tor, in a Decision and Direction of Election in Case No . 13-RC-9768 , had found that
the employees in the unit described in the complaint constituted a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act. The General Counsel contends in substance that the only issues which the
Respondent now seeks to raise by its answer relate to the appropriateness of the unit
METROPOLITAN LIFE INSURANCE COMPANY 1473
described in the complaint and are therefore issues which have already been litigated
before, and determined by, the Board in the representation proceedings. Accord-
ingly, the General Counsel prays in its motion that, in the premises and without hold-
ing a hearing, findings of fact should be made, conclusions of law should be reached,
and an order be issued against the Respondent upon, and in full accordance with, the
allegations of the complaint.
The motion having been referred to me [Trial Examiner William F. Scharnikow]
on June 26, 1964, I issued and caused to be served upon the Respondent and the other
parties a telegraphic order directing the Respondent to show cause on or before July 9,
1964, if any it had, why the motion of the General Counsel for judgment on the
pleadings and a vacation of the hearing should not be granted, and, in connection
therewith, to state (1) whether the determination of the Board referred to in the
second affirmative defense of its answer consisted of the Board's telegraphic refusal
on January 9, 1964, to review the Decision and Direction of Election issued by the
Regional Director in Case No. 13-RC-9768 on December 19, 1963, as set forth in
paragraph 1 of the General Counsel's instant motion;' (2) whether, as indicated in
the Regional Director's aforesaid Decision and Direction of Election, the Respondent
had previously participated in a hearing on the issue of the appropriate unit in Case
No. 13-RC-9768 and had stipulated that the record in that proceeding should also
include the record in Case No. 13-RC-9051; (3) if so, what, if any, newly discovered
evidence or other evidence unavailable at the time of the representation proceeding,
the Respondent intended to present at a hearing in the instant complaint proceeding;
and (4) its reasons and its authority for believing that the pleadings in the instant
case present any issue of fact or law not already decided in Case No. 13-RC-9768
and requiring a further trial or hearing in the present proceeding.
On July 7, 1964, counsel for the Respondent filed its statement of opposition to
the General Counsel's motion and a cross-motion for judgment on the pleadings. In
response to the inquiries made in my, order to show cause, the Respondent stated,
in substance, that it had participated in a representation hearing in Case No. 13-RC-
9768 and had then stipulated that the record in that case should consist of the record
in Case No. 13-RC-9051 with certain additions and modifications; that the Regional
Director had thereafter found in Case No. 13-RC-9768, and the Board subsequently
denied a review of his finding, that the employee-unit described in the complaint was
appropriate for purposes of collective bargaining within the meaning of Section 9(b)
of the Act; and that, notwithstanding the majority vote received by the Union in the
subsequent election held in this unit in Case No. 13-RC-9768 and the Regional Direc-
tor's certification of the Union as the exclusive bargaining representative of the
employees in said unit, the Respondent has refused to bargain with the Union as such
representative on the ground that the unit was clearly inappropriate under Section 9
of the Act. However, despite the second inquiry in my order to show cause, the
Respondent did not state what, if any, newly discovered evidence or other evidence
unavailable at the time of the representation proceeding, it intended to present at a
hearing in the instant complaint case. Instead, having stated its disagreement with
the Regional Director's and Board's basic determination of the appropriate unit in
Case No. 13-RC-9768, and apparently relying solely upon the record already made
at the hearing in that case and the decision of the Court of Appeals for the First
Circuit in Metropolitan Life Insurance Company V. N.L.R.B., 327 F. 2d 906, the
Respondent has moved to dismiss the complaint in the present case and to revoke the
Union's certification Case No. 13-RC-9768 upon the following asserted grounds:
(a) the Board acted arbitrarily and capriciously in determining a unit which is
clearly inappropriate under Section 9 of the Act; (b) 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 (c) the Board includes in the bargaining unit a
group of employees who will not and cannot be fairly represented by the Union.
On July 9, 1964, by telegraphic order served upon the parties, I canceled the hear-
ing set for July 27, 1964, and vacated and set aside the notice of hearing because it
appeared to me "from the submissions [of the parties on the present cross-motions]
and the pleadings herein, that there are no issues of fact nor offers of evidence, nor
arguments 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
cross-motion, and my Decision and Recommended Order, including findings of fact
I These inquiries were necessary to my understanding of the allegations of the Respond-
ent's answer and were based, in part, upon my inspection of the formal file in Case No
13-RC-9768, of which the Trial Examiner and the Board, as well as the court upon re-
view, are required to take notice under the provisions of Section 10(d) of the Act.
760-577-65-vol. 148-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conclusions of law, were being prepared and would be filed and served in due
course.
Rulings on Motions
From the motion papers filed and the statements made by the General Counsel and
the Respondent in connection with the present motions, it appears that the issue of
the appropriateness of the bargaining unit is the only issue the Respondent attempts
to raise, and that this issue has already been litigated by the parties and decided by
the Board upon, and after, a hearing in the representation case, 13-RC-9768. The
Respondent now proffers no additional evidence in support of its position, and my
examination of the Respondent 's request to the Board for review of the Regional
Director's determination of appropriate unit in Case No. 13-RC-9768, shows that
it now makes the identical arguments which the Board rejected in the representation
case on January 9, 1964. It is true that, in the Metropolitan Life Insurance case
cited to me by the Respondent, the Court of Appeals for the First Circuit has dis-
agreed with the Board in an apparently comparable factual situation involving one
of the Respondent's other district offices. But, as a Trial Examiner, I am bound to
follow the Board's decisions and the Board has more recently reaffirmed its position
with respect to the appropriateness of the type of unit in the present case .2 Further-
more, unlike the Court of Appeals for the First Circuit, three of the other courts of
appeals have agreed with the position thus taken by the Board.3
In sum , the issue of the appropriateness of the bargaining unit in the present case,
which is the only issue the Respondent is now attempting to raise, has already been
admittedly litigated by the parties and decided by the Board in Case No. 13-RC-9768,
the Respondent proffers no further evidence or additional argument upon the issue,
and, since the Board 's existing determination of unit is binding upon me as a Trial
Examiner, I cannot properly permit its relitigation but respect and follow the Board's
determination in Case No. 13-RC-9768.4 Accordingly, I grant the General Coun-
sel's motion for judgment on the pleadings in accordance with the allegations of the
complaint, and deny the Respondent's cross-motions for a dismissal of the complaint
in the present case and a revocation of the Board's certification of the Union's Case
No. 13-RC-9768.
Since the allegations of the complaint with respect to the appropriateness of the
unit are thus supported by the Board's decision in the representation case, and since
all the other material factual allegations of the complaint are expressly admitted, or
admitted by the Respondent's failure to deny them, I make the following findings of
fact, conclusions of law, and recommendations upon the basis of the Board's deter-
mination of unit in the representation case and upon, and in accordance with, the
allegations of the complaint and the applicable principles of law and policy recog-
nized by the Board.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Respondent is, 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.
2. At all times material herein , Respondent has maintained its principal place of
business at One Madison Avenue, city of New York, State of New York, herein
called the Home Office, and various other offices, places of business, and other facili-
ties in the States of Illinois , Ohio, and many other States, and is and has been at all
times material herein continuously engaged at said offices, places of business, and
facilities , in the business of selling and issuing life , industrial , and personal health
insurance policies. Only the Company's district office located at Chicago Heights,
Illinois, is involved in this proceeding.
3. Respondent presently has in effect in excess of 44.000,000 policies of insurance
having a total face value in excess of $94,000,000,000. Respondent presently has
policies of insurance in effect in the State of Illinois valued in excess of $4,000,000,
from which it derives revenues in excess of $50,000.
2 Metropolitan Life Insurance Company, 147 NLRB 69
2 N L.R B. v Quaker City Life In8urance Company, 319 F 2d 690 (C A 4) ; Metropoli-
tan Life Insurance Co v N L R B., 328 F 2d 820 ( C.A. 3) ; Metropolitan Life In8urance
Company v . N.L.R B., 330 F. 2d 62 (C A 6).
4 Pittsburgh Plate (3la8 .s Company v N L.R B., 313 U.S 146 ; Metropolitan Life Insur-
ance Co , 142 NLRB 491 ; Metropolitan Life Insurance Company , 141 NLRB 337; Metro.
politan Life Insurance Company , 141 NLRB 1074; N L R.B. v Amerooan Steel Buck Corp,
227 F 2d 927 (C.A. 2) ; N L R B. v. Botany Worsted Mills . 133 F 2d 876 (C A. 3) ;
N L R B v West Kentucky Coal Sompany, 152 F. 2d 193, 200-201 (C A 6), cert denied
328 U.S. 866.
METROPOLITAN LIFE INSURANCE COMPANY 1475
4. During the past calendar year, Respondent, in the operation of its business at
its Chicago Heights, Illinois, office, has received premiums in excess of $500,000 from
policy holders located outside of the State of Illinois and has paid claims in excess of
$50,000 to claimants located outside the State of Illinois.
5. Respondent is now, and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
6. The Union is, and has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
7. All Metropolitan Insurance consultants and all canvassing agents, regular and
office account agents of the Respondent at the Chicago Heights district office located
at Chicago Heights, Illinois, but excluding retired agents, managers, assistant man-
agers, cashiers , clerical employees , secretaries , professional employees , guards, watch-
men, and supervisors as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining with Respondent within the meaning of Section 9(b) of
the Act.
8. On or about January 24, 1964, a majority of the employees of Respondent, in
the unit described above in paragraph 7, by a secret ballot election conducted under
the supervision of the Regional Director for Region 13 of the National Labor
Relations Board, designated and selected the Union as their representative for the pur-
poses of collective bargaining with Respondent.
9. On or about February 5, 1964, said Regional Director certified the Union as
the exclusive collective-bargaining representative of the employees in said unit.
10. The Union is, and at all times since February 5, 1964, has been, the representa-
tive for the purpose of collective bargaining of the employees in the unit described
above in paragraph 7, and by virtue of Section 9(a) of the Act, has been, and is now,
the exclusive representative of all the employees in said unit for the purpose of col-
lective bargaining with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
11. Commencing on or about February 18, 1964, and continuing to date, and more
particularly on or about February 18, 1964, the Union has requested, and is request-
ing, Respondent to bargain collectively with respect to wages and other terms and
conditions of employment as the exclusive collective-bargaining representative of all
the employees of Respondent in the unit described above in paragraph 7.
12. Commencing on or about February 24, 1964, and at all times thereafter, the
Respondent did refuse, and continues to refuse, to bargain collectively with the Union
as the exclusive collective-bargaining representative of all the employees in the unit
described above in paragraph 7, in that on or about February 24, 1964, and at all
times since, Respondent has refused, and continues to refuse, to meet, negotiate and/
or discuss with the Union matters with respect to rates of pay, wages, hours, and other
terms and conditions of employment.
13. By the acts described in paragraph 12, above, and by each of said acts, Re-
spondent did interfere with, restrain, and coerce, and is interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby did engage in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
14. By the acts described above in paragraph 12, and by each of said acts, Re-
spondent has failed and refused, and continues to' fail and refuse, to bargain col-
lectively with the representative of its employees, and thereby did engage in, and is
engaging in, unfair labor practices within the meaning of Section 8(a) (5) of the Act.
15. The acts of Respondent described in paragraph 12, above, occurring in connec-
tion with the operations of Respondent described in paragraphs 1 through 4, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce, and constitute unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (5) of the Act, I will recommend that
it cease and desist therefrom and take certain affirmative action in order to effectuate
the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Metropolitan
Life Insurance Company, its officers, agents , successors , and assigns , shall:
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment, with Insurance Workers
International Union, AFL-CIO, as the exclusive representative of all employees in the
following appropriate unit:
All Metropolitan Insurance consultants and all canvassing agents, regular and
office account agents of the Respondent at the Chicago Heights district office located
at Chicago Heights, Illinois, but excluding retired agents, managers, assistant man-
agers, cashiers, clerical employees, secretaries, professional employees, guards, watch-
men, and supervisors as defined in the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees.in the foregoing appropriate unit, and embody in
a signed agreement any understanding reached with respect to the employees in said
unit.
(b) Post at its district office, Chicago Heights, Illinois, copies of the attached
notice marked "Appendix." 5 Copies of said notice to be furnished by the Regional
Director for Region 13, shall, after being duly signed by the Respondent 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 that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13 in writing within 20 days from
the receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.6
5 If this Recommended Order' is 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order "
a If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify the Regional Director for Region 13, 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 the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Insurance Workers Interna-
tional Union , AFL-CIO, as the exclusive representative of the employees in the
bargaining unit described below.
WE WILL, upon request , bargain with the above -named union as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment , and other conditions of
employment , and if an understanding is reached , embody such an understanding
in a signed agreement.
The bargaining unit is:
All Metropolitan Insurance consultants and all canvassing agents, regular
and office account agents at our Chicago Heights district office located at
Chicago Heights, Illinois, but excluding retired agents, managers, assistant
managers , cashiers , clerical employees , secretaries, professional employees,
guards, watchmen , and supervisors as defined in the Act.
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.
MISSOULA MOTEL ASSOCIATION, ETC. 1477
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572, if they have any questions concerning this notice or com-
pliance with its provisions.
Missoula Motel Association ; Bel Aire Motel ; Big Chief Motel ;
Canyon Motel ; Circle M Motel ; City Center Motel ; Down-
town Motel ; Lodge Motel ; Missoula Motel ; Parkway Motel;
Royal Motel ; Shady Grove Motel ; Sleepy Inn Motel ; Sweet
Rest Motel ; and Westerner Motel and Hotel, Motel & Res-
taurant Employees Union , Local No. 427, AFL-CIO. Cases
Nos. 19-CA-2677, 19-CA-2707, and 19-CA-2738. September 30,
1964
DECISION AND ORDER
On June 3, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceedings, finding that 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 Trial Exami-
ner's Decision. Thereafter, Respondents and the Charging Party
each filed exceptions to the Trial Examiner's Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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, the briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications 1
stated below.
The Trial Examiner found that Respondents had violated Section
8 (a) (5), (3) and (1) of the Act. Respondents have not excepted to
the findings of 8 (a) (5), and independent 8 (a) (1) violations. Nor
have they excepted to the Trial Examiner's finding that Respondent
Lodge Motel refused to reemploy Louise Stroud in violation of Sec-
tion 8(a) (3) of the Act. We accordingly adopt these findings pro
forma.
1 For the reasons stated in his dissenting opinion in Sea-Way Distributing , Inc., 143
NLRB 460, 461-462, Member Brown would affirm the Trial Examiner's conclusion that
Respondent Bel Aire Motel unlawfully discharged its striking employees . Member Brown
would also approve the Trial Examiner 's resolution of Christine Spadt's discharge. He
therefore dissents on both matters.
148 NLRB No. 146.